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Rokita Statement: Hearing on “Supplanting the Law and Local Education Authority Through Regulatory Fiat"

When the committee last met to discuss the Every Student Succeeds Act, we heard concerns from state and local education leaders that the administration is not implementing the law in a way that respects its letter and intent. Since that time, the Department of Education has released a regulatory proposal so unprecedented—and so unlawful—that it demands its own examination.

The proposal I’m referring to is the department’s proposed “supplement, not supplant” regulation. This proposal changes the long-standing policy that federal funds supplement—rather than supplant—state and local resources. For years, the rule was applied differently depending on how many low-income students a school served. As a result, schools faced different requirements—some more onerous than others. That changed with the Every Student Succeeds Act—legislation that was passed with overwhelming support from both Republicans and Democrats.

Now, according to the law, the rule should be enforced equally across all schools. Districts only have to show that funds are distributed in a way that doesn’t take into account federal resources, and Congress deliberately chose not to prescribe a specific approach or outcome. The law also clearly prohibits the secretary of education from interfering in the process. However, that is exactly what this proposed rule would do, and the consequences will be significant.

As Chairman Kline explained when the regulation was proposed, it threatens to impose a multi-billion dollar regulatory tax on schools across the country. To comply with the policy, many school districts will have no choice but to change their hiring practices and relocate their teachers. Other communities may have to raise taxes because they simply don’t have the resources to meet this new burden. Some districts may have to do both.

Regardless of how a district must cope with the new regulation, the bottom line is that schools will be forced to make decisions based on getting the numbers to work—not on what’s best for their students—and the federal government will have unprecedented control over local education funding.

The department has said that its proposal will provide schools “flexibility,” but it really just dictates a short list of bad options. And, at the end of the day, it will be America’s poorest neighborhoods that are impacted most. That is the last thing Congress intended when it passed the Every Student Succeeds Act.

In fact, Congress considered similar reforms during debate of the legislation that focused on a separate provision, comparability. Instead, Congress specifically chose not to touch that provision and flat out rejected adopting a policy like the one the department is now trying to impose.

The department insists their “supplement, not supplant” proposal is not related to comparability, but even the nonpartisan Congressional Research Service has explained how this proposal is essentially an indirect way to amend the comparability provision. In short, this regulatory scheme is an attempt to accomplish something Congress specifically chose not to do. And anyone who was involved in passing the Every Student Succeeds Act knows that—whether they are willing to say so or not.

Still, even if the department were confused about the intent of the law, nothing excuses the fact that what it is proposing is simply unlawful. Again—as you can see in this language taken directly from the law—the Every Student Succeeds Act specifically prohibits the secretary from “prescribing the specific methodology a local education agency uses to allocate state and local funds to each school receiving assistance.” The department claims that is not what they’re doing, but with its limited list of options, it’s clear that is exactly what is happening. That’s why we have called on the department to throw this punitive policy out and to implement the law as it was written and intended.

For too long, our schools were forced to contend with a failed, top-down approach to education. That all changed with the Every Student Succeeds Act, but it seems the department hasn’t learned its lesson and is intent on undermining those important, bipartisan reforms. We will do everything in our power to ensure that doesn’t happen.

This hearing is part of our efforts to protect students, families, and taxpayers from this unprecedented and unlawful regulatory scheme—and just as importantly, to help every child receive an excellent education. The best chance we have to accomplish that critical goal is to ensure the Every Student Succeeds Act is implemented according to the letter and intent of the law.

I look forward to hearing from our witnesses today and how they see this proposal impacting their local communities and schools across the country.

 

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