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SUPPLANTING THE LAW AND LOCAL 

EDUCATION AUTHORITY THROUGH 

REGULATORY FIAT 

HEARING 

BEFORE THE

SUBCOMMITTEE ON EARLY CHILDHOOD, 

ELEMENTARY, AND SECONDARY EDUCATION 

COMMITTEE ON EDUCATION 

AND THE WORKFORCE 

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED FOURTEENTH CONGRESS 

SECOND SESSION 

HEARING HELD IN WASHINGTON, DC, SEPTEMBER 21, 2016 

Serial No. 114–53 

Printed for the use of the Committee on Education and the Workforce 

( 

Available via the World Wide Web: 

www.gpo.gov/fdsys/browse/committee.action?chamber=house&committee=education 

or 

Committee address: http://edworkforce.house.gov

CEWDOCROOM with DISTILLER

(II) 

COMMITTEE ON EDUCATION AND THE WORKFORCE 

JOHN KLINE, Minnesota, Chairman 

Joe Wilson, South Carolina 

Virginia Foxx, North Carolina 

Duncan Hunter, California 

David P. Roe, Tennessee 

Glenn Thompson, Pennsylvania 

Tim Walberg, Michigan 

Matt Salmon, Arizona 

Brett Guthrie, Kentucky 

Todd Rokita, Indiana 

Lou Barletta, Pennsylvania 

Joseph J. Heck, Nevada 

Luke Messer, Indiana 

Bradley Byrne, Alabama 

David Brat, Virginia 

Buddy Carter, Georgia 

Michael D. Bishop, Michigan 

Glenn Grothman, Wisconsin 

Steve Russell, Oklahoma 

Carlos Curbelo, Florida 

Elise Stefanik, New York 

Rick Allen, Georgia 

Robert C. ‘‘Bobby’’ Scott, Virginia 

Ranking Member 

Rube ́n Hinojosa, Texas 

Susan A. Davis, California 

Rau ́l M. Grijalva, Arizona 

Joe Courtney, Connecticut 

Marcia L. Fudge, Ohio 

Jared Polis, Colorado 

Gregorio Kilili Camacho Sablan, 

Northern Mariana Islands 

Frederica S. Wilson, Florida 

Suzanne Bonamici, Oregon 

Mark Pocan, Wisconsin 

Mark Takano, California 

Hakeem S. Jeffries, New York 

Katherine M. Clark, Massachusetts 

Alma S. Adams, North Carolina 

Mark DeSaulnier, California 

Juliane Sullivan, Staff Director 

Denise Forte, Minority Staff Director 

SUBCOMMITTEE ON EARLY CHILDHOOD, ELEMENTARY, AND 

SECONDARY EDUCATION 

TODD ROKITA, Indiana, Chairman 

Duncan Hunter, California 

Glenn Thompson, Pennsylvania 

Dave Brat, Virginia 

Buddy Carter, Georgia 

Michael D. Bishop, Michigan 

Glenn Grothman, Wisconsin 

Steve Russell, Oklahoma 

Carlos Curbelo, Florida 

Marcia L. Fudge, Ohio, 

Ranking Minority Member 

Susan A. Davis, California 

Rau ́l M. Grijalva, Arizona 

Gregorio Kilili Camacho Sablan, 

Northern Mariana Islands 

Suzanne Bonamici, Oregon 

Mark Takano, California 

Katherine M. Clark, Massachusetts 

CEWDOCROOM with DISTILLER

(III) 

C O N T E N T S 

Page 

Hearing held on September 21, 2016 ..................................................................... 1 

Statement of Members: 

Fudge, Hon. Marcia, L., Ranking Member, Subcommittee On Early Childhood, Elementary, and Secondary Education ............................................. 4 

Prepared statement of ............................................................................... 6 

Rokita, Hon. Todd, Chairman, Subcommittee On Early Childhood, Elementary, and Secondary Education ............................................................. 1 

Prepared statement of ............................................................................... 4 

Statement of Witnesses: 

Canavero, Dr. Steve, Superintendent of Public Instruction, Nevada Department of Education .................................................................................. 8 

Prepared statement of ............................................................................... 11 

Gordon, Ms. Nora, Ph.D., Associate Professor, McCourt School of Public 

Policy, Georgetown University, and Research Associate, National Bureau of Economic Research .......................................................................... 28 

Prepared statement of ............................................................................... 30 

Owens, Mr. Ryan, Executive Director, Cooperative Council for Oklahoma 

School Administration .................................................................................. 15 

Prepared statement of ............................................................................... 17 

Sargrad, Mr. Scott, Director, K-12 Education Policy, Center for American 

Progress ......................................................................................................... 21 

Prepared statement of ............................................................................... 24 

Additional Submissions: 

Ms. Fudge: 

Letter dated April 28, 2016, from The Leadership Conference on 

Civil and Human Rights ....................................................................... 58 

Letter dated May 10, 2016, from Teach Plus .......................................... 61 

Letter dated May 27, 2016, from National Urban League .................... 67 

Letter dated August 31, 2016, from Civil and Human Rights Coalition .......................................................................................................... 69 

Letter dated August 31, 2016, from Teach Plus ..................................... 70 

Letter dated September 1, 2016, from Congressional Hispanic Caucus ........................................................................................................... 71 

Letter dated September 1, 2016, from MALDEF ................................... 72 

Letter dated September 2, 2016, from National Council of LaRaza 

(NCLR) .................................................................................................... 73 

Chairman Rokita: 

Slides .......................................................................................................... 75 

Questions submitted for the record ......................................................... 83 

Questions submitted for the record by: 

Bishop, Hon. Michael D., a Representative in Congress from the 

State of Minnesota ................................................................................. 83 

Carter, Hon. Buddy, a Representative in Congress from the State 

of Georgia ............................................................................................... 81, 83, 85 

Curbelo, Hon. Carlos, a Representative in Congress from the State 

of Florida ................................................................................................ 81, 83, 85 

Grothman, Hon. Glenn, a Representative in Congress from the State 

of Wisconsin ........................................................................................... 81 

Hunter, Hon. Duncan, a Representative in Congress from the State 

of California ............................................................................................ 81 

Russell, Hon. Steve, a Representative in Congress from the State 

of Oklahoma ........................................................................................... 85 

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IV 

Additional Submissions—Continued 

Questions submitted for the record by—Continued 

Thompson, Hon. Glenn, a Representative in Congress from the State 

of Pennsylvania ......................................................................................81, 85 

Response to questions submitted for the record: 

Dr. Canavero .............................................................................................. 87 

Ms. Gordon ................................................................................................. 91 

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(1) 

SUPPLANTING THE LAW AND LOCAL 

EDUCATION AUTHORITY THROUGH 

REGULATORY FIAT 

Wednesday, September 21, 2016 

U.S. House of Representatives 

Committee on Education and the Workforce, 

Subcommittee on Early Childhood, Elementary, and Secondary 

Education 

Washington, D.C. 

The Subcommittee met, pursuant to call, at 10:01 a.m., in Room 

2175, Rayburn House Office Building, Hon. Todd Rokita [chairman 

of the subcommittee] presiding. 

Present: Representatives Rokita, Thompson, Carter, Bishop, 

Grothman, Fudge, Davis, Bonamici, and Clark. 

Also Present: Representatives Kline, Scott, Polis, and Adams. 

Staff Present: Janelle Gardner, Coalitions and Members Services 

Coordinator; Tyler Hernandez, Deputy Communications Director; 

Amy Raaf Jones, Director of Education and Human Resources Policy; Nancy Locke, Chief Clerk; Dominique McKay, Deputy Press 

Secretary; Krisann Pearce, General Counsel; Mandy Schaumburg, 

Education Deputy Director and Senior Counsel; Alissa Strawcutter, 

Deputy Clerk; Leslie Tatum, Professional Staff Member; Brad 

Thomas, Senior Education Policy Advisor; Sheariah Yousefi, Legislative Assistant; Tylease Alli, Minority Clerk/Intern and Fellow Coordinator; Jamitress Bowden, Minority Press Assistant; Jacque 

Chevalier, Minority Deputy Education Policy Director; Denise 

Forte, Minority Staff Director; Mishawn Freeman, Minority Staff 

Assistant; Brian Kennedy, Minority General Counsel; Alexander 

Payne, Minority Education Policy Advisor; and Aneesh Sahni, Minority Education Policy Fellow. 

Chairman ROKITA. Good morning, and welcome to today’s hearing. When the committee last met to discuss the Every Student 

Succeeds Act, we heard concerns from State and local education 

leaders that the administration was 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 that I find so unprecedented and so unlawful, in 

fact, that it demands its own examination, which we are going to 

do today. 

The proposal I am referring to is the department’s proposed ‘‘supplement not supplant’’ regulation. This proposal changes the longCEWDOCROOM with DISTILLER

2 

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 the school served. As a result, schools 

faced different requirements. Some are more onerous than others. 

That changed with the bipartisan Every Student Succeeds Act, 

legislation that again was passed with overwhelming support from 

both Republicans and Democrats. 

Now, according to the law, the rule should be enforced equally 

across every school. To do that, the bipartisan law, again that the 

President signed, says districts only have to show that funds are 

distributed in a way that does not take into account Federal resources, and Congress deliberately chose not to prescribe a specific 

approach or outcome. I remember this. It was in the final negotiations. 

The law also clearly prohibits the Secretary of Education from 

interfering in the process. However, that is exactly what the department and the Secretary is doing with their proposed rule, and 

the consequences will be significant. It would be one thing if it was 

a distinction without a difference, but I think as we are going to 

hear today, the consequences will be significant. 

As Chairman Kline himself explained when the regulation was 

proposed, it threatens to impose a multibillion 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 do not have the resources to meet this 

new burden. Some districts may have to do both. 

So 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 numbers to work and not on what is in the best 

interest of their students, and the Federal Government will have 

unprecedented control over local education funding. 

The department has said its proposal will provide ‘‘flexibility,’’ 

but it really just dictates a short list of options, and frankly bad 

options at that. At the end of the day, it will be America’s poorest 

neighborhoods that are impacted the most, and that is the last 

thing we intended as Congress when it passed the Every Student 

Succeeds Act. 

In fact, Congress considered similar reforms during the debate of 

the legislation. We focused, for example, on a separate provision 

you may recall, comparability; instead, Congress specifically chose 

not to go down that road, not to touch that provision, and flat out 

rejected adopting a policy like the very one the department is proposing now. 

The department insists that 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. Anyone who was 

involved in passing the Every Student Succeeds Act knows that, 

whether they are willing to say so or not. 

CEWDOCROOM with DISTILLER

3 

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, if you look at the quotes on the screen, you 

can see that this language is taken directly from the law, the Every 

Student Succeeds Act specifically prohibits the Secretary from, 

quote ‘‘prescribing the specific methodology a local education agency uses to allocate State and local funds to each school receiving 

the assistance,’’ close quote. 

The department claims that is not what they are doing, but with 

its limited list of options, it is clear that is exactly what is happening. That is why we have called on the department to throw 

this punitive policy out and to implement the law as it was written 

and as intended. 

For too long, our schools were forced to contend with a failed top 

down approach to education, and that all changed with the Every 

Student Succeeds Act, but it seems the department has not learned 

this or chooses to ignore it, and is intent on undermining those important bipartisan reforms. 

We will do everything within this committee’s power to ensure 

that does not 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, which I know that is why we 

are all here. 

The best chance we have to accomplish that critical goal is to ensure that the Every Student Succeeds Act is implemented according to the letter and intent of the law as we wrote it. 

I look forward to hearing from our witnesses today and how this 

proposal is impacting their local communities across this country. 

With that, I will yield to Ranking Member Fudge, Ms. Fudge, for 

her opening remarks. 

[The statement of Chairman Rokita follows:] 

Prepared Statement of Hon. Todd Rokita, Chairman, Subcommittee on 

Early Childhood, Elementary, and Secondary Education 

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. 

CEWDOCROOM with DISTILLER

4 

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—[gesture to 

quote on screens] 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. 

With that, I will yield to Ranking Member Fudge for her opening remarks. 

Ms. FUDGE. Thank you, Mr. Chairman, and thank you all for 

being here to provide testimony today. 

Certainly, this is a bipartisan law, and I believe if fully implemented, it will fulfill congressional intent and honor the Elementary and Secondary Education Act’s civil rights legacy to promote 

and protect the right to educational opportunity for our Nation’s 

most vulnerable children. 

Money matters. Poverty, especially when highly concentrated, 

presents unique educational challenges. It takes more money, not 

less, to provide equitable educational opportunities in high poverty 

communities, which is why Congress enacted Title I to serve as a 

supplemental funding stream for our Nation’s neediest schools. 

Simply put, Title I is Congress’ longstanding recognition that 

equal is not always equitable. Unfortunately, the intent of Title I 

has gone unrealized in school districts that continue to spend less 

to educate children in high poverty schools, perpetuating educational disparities within the district, despite drawing dollars 

from the same tax base. 

For too long, school district decisions on budget allocation have 

gone unchecked, with schools serving high poverty neighborhoods 

getting less than their fair share. 

CEWDOCROOM with DISTILLER

5 

The supplement not supplant, or SNS, requirement that Title I 

funds be in addition to State and local investment in schools receiving Federal dollars was first adopted by Congress in 1969, and is 

the most important fiscal accountability provision in the entire law. 

In ESSA, Congress amended the provision. Compliance with SNS 

can no longer be determined using cost test demonstrations that allowed inequities to go unresolved. Congress did not agree, however, 

to remove or waive compliance with the SNS requirement. 

To support enforcement of the requirement, the U.S. Department 

of Education has a replacement proposed funds-based standard for 

compliance. The replacement honors the intent of Congress to permit for greater flexibility in how Title I dollars are spent, while ensuring those dollars are in fact supplemental to State and local investment. 

According to the proposal, each school district, not the Federal 

Government, determines its own formula for allocation of State and 

local funds. If a district’s Title I schools are receiving their full 

share of State and local funds based on the district’s formula, Title 

I dollars are truly supplemental, and the district is fully compliant 

with Federal law. That seems to be reasonable to me. 

The proposed rule seeks to address the annual underfunding of 

high poverty schools. Meeting this new funds-based standard for 

SNS compliance will likely be uncomfortable in some school districts, those where inequities have gone unchecked. It will likely 

drive hard conversations and new found accountability and transparency for local budgeting processes. 

While all of this may make compliance challenging, none of it 

disqualifies the proposal as inappropriate or illegal. 

This is just how my colleagues on the other side of the aisle are 

characterizing the proposal, as part of a larger GOP narrative, attacking the legitimacy of the executive branch. 

While their outrage and chest pumping is loud and distracting, 

I implore members of this subcommittee to not be distracted from 

the real issue. 

Nothing about the proposal supplants the law or local authority 

as the title of this hearing would suggest, unless they are speaking 

of the local authority to undermine congressional intent by using 

Title I dollars to plug budget holes that shortchange high poverty 

schools. 

I respectfully remind my friends in the majority that SNS is a 

Federal requirement to be enforced by the Federal agency. Nothing 

in ESSA allows a local educational authority to supersede that enforcement. 

Let me be clear. Enforcement of the supplement not supplant requirement is the responsibility of the department. It is my expectation and the expectation of Congress that the Secretary fulfill his 

responsibility to set an enforceable compliance standard for the 

nearly 15,000 school districts across the country. 

In ESSA, Congress made it very clear that supplement not supplant would remain a requirement. We chose to amend it, not to 

eliminate it. At this point, I find the rhetoric of those opposed disingenuous and devoid of any suggestion of what would constitute 

an acceptable standard of compliance. Decrying the standard put 

forth by the department without suggestion for what the standard 

CEWDOCROOM with DISTILLER

6 

should be is the same as asking for no standard and no enforcement. 

That, my friends, was not the bipartisan agreement of ESSA. 

With the enactment of ESSA, we have the opportunity to create a 

more equitable system of public education. It would be inexcusable 

for the Secretary to render the supplement not supplant requirement meaningless without a Federal standard for compliance. 

I thank the witnesses for taking time out of their busy schedules 

to participate in today’s hearing, and look forward to learning 

about their experiences and recommendations for ensuring a 

smooth and successful transition to the new law in a way that preserves the critical Federal role to promote educational equity. 

Thank you, Mr. Chairman. I yield back. 

[The statement of Ranking Member Fudge follows:] 

Prepared Statement of Hon. Marcia L. Fudge, Ranking Member, 

Subcommittee on Early Childhood, Elementary, and Secondary Education 

Thank you, Mr. Chairman. And thanks to our witnesses for appearing before the 

subcommittee today to discuss the implementation of the Every Student Succeeds 

Act, a bipartisan law that I believe, if implemented with fidelity, will fulfill both 

Congressional intent and honor the Elementary and Secondary Education Act’s civil 

rights legacy to promote and protect the right to educational opportunity for our nation’s most vulnerable children. 

Poverty, especially when highly concentrated, presents unique educational challenges. It takes more money, not less, to provide equitable educational opportunity 

in high-poverty communities, which is why Congress enacted Title I – to serve as 

a supplemental funding stream for our nation’s neediest schools. Simply put, Title 

I is Congress’ longstanding recognition that equal doesn’t mean equitable. 

Unfortunately, the intent of Title I has gone unfulfilled in school districts that 

continue to spend less to educate children in their high-poverty schools than in their 

lower-poverty schools, perpetuating within-district educational disparities, despite 

drawing upon dollars from the same tax base. 

First adopted by Congress in 1969, the ‘‘Supplement not supplant’’ or ‘‘SNS’’ requirement that Title I funds be supplemental to state and local investment in 

schools receiving federal dollars is the most important fiscal accountability provision 

in the entire law. Congress agreed, in ESSA, to amend the provision to no longer 

allow compliance with SNS to be determined using current-practice cost test demonstrations that have allowed within-district inequities to go unresolved. 

Congress did not agree, however, to remove or waive compliance with the SNS 

requirement. And so, to ensure the integrity of the requirement, the U.S. Department of Education has put forward a proposal to replace the now disallowed cost 

test demonstrations with a new standard for compliance. One that honors the intent 

of Congress to allow for greater flexibility in how Title I dollars are spent while also 

ensuring those dollars are, in fact, supplemental to state and local investment. 

According to the proposal, each school district, not the federal government, comes 

up with its own formula for allocation of state and local funds. If the district’s Title 

I schools are receiving their full share of state and local funds based on the district’s 

own formula, Title I dollars are truly supplemental and the district is fully compliant with federal law. That seems like a reasonable standard to me. 

The proposed rule seeks to address, not ignore, the annual underfunding of highpoverty schools in setting forth the standard for compliance. Meeting this new 

standard for SNS compliance will 

be uncomfortable in some school districts. It will likely drive politically hard conversations and newfound accountability for local budgeting processes. And while all 

of that may be challenging, none of it inherently disqualifies the proposal as inappropriate or illegal. 

As part of a larger narrative and attack on the role of the executive branch, colleagues on the others side of the aisle are characterizing the proposal as inappropriate and illegal. Nothing about the proposal ‘‘supplants’’ the law or local authority 

as the title of this hearing would suggest – unless they’re speaking of the local authority to undermine the spirit and intent of Title I by using it to plug budget holes. 

Let me be clear: enforcement of the supplement not supplant requirement is the 

responsibility of Department, and it is my expectation – and the expectation of 

House Democrats – that the Secretary fulfill his responsibility to set an enforceable 

CEWDOCROOM with DISTILLER

7 

standard for the nearly 15,000 school districts across this country. In ESSA, Congress made it very clear that supplement not supplant would remain a requirement. 

We chose to amend it, not eliminate it. 

With the enactment of ESSA we have the opportunity to create a more equitable 

system of public education. It would be inexcusable for the Secretary to render the 

supplement not supplant requirement meaningless without a federal standard for 

compliance and squander that opportunity. 

I thank the witnesses for taking the time out of their busy schedules to participate in today’s hearing, and look forward to learning about their experiences and 

recommendations for ensuring a smooth and successful transition to the new law 

in a way that preserves the critical federal role in promoting educational equity. 

Thank you, and I yield back. 

Chairman ROKITA. I thank the gentlelady. A quorum being 

present and pursuant to Committee Rule 7(c), all members will be 

permitted to submit written statements to be included in the permanent hearing record, and without objection, the hearing record 

will remain open for 14 days to allow such statements and other 

extraneous material referenced during the hearing to be submitted 

for the official hearing record. 

I will now turn to the introduction of our distinguished witnesses. First to testify will be Dr. Steve Canavero. He serves as the 

superintendent of public instruction for the Nevada Department of 

Education in Carson City, Nevada. 

Prior to this position, Dr. Canavero served as the deputy superintendent of student achievement at the Nevada Department of 

Education, and as the first director of the State Public Charter 

School Authority. 

Dr. Canavero has a background in evaluation and planning, and 

has worked as a teacher and principal. Welcome. 

Next, Mr. Ryan Owens serves as executive director for the Cooperative Council for Oklahoma School Administration in Oklahoma 

City, Oklahoma. Prior to this position, Mr. Owens served with the 

United Suburban Schools Association and the Oklahoma Education 

Coalition, the Oklahoma Education Technology Trust, and is an adjunct professor in the Colleges of Education at Southern Nazarene 

University and the University of Oklahoma at Tulsa. Welcome, sir. 

Next, Mr. Scott Sargrad serves as the managing director for the 

K–12 Education Policy team at the Center for American Progress 

in Washington, D.C., and in this position, Mr. Sargrad focuses on 

the areas of standards, assessments, school and district accountability systems, and school improvement. 

Prior to this position, Mr. Sargrad served as the deputy assistant 

secretary for policy and strategic initiatives with the Office of Elementary and Secondary Education at the U.S. Department of Education. Welcome, sir. 

Finally, Dr. Nora Gordon serves as associate professor of public 

policy with the McCourt School of Public Policy at Georgetown University, and as a research associate with the National Bureau of 

Education Research. 

Dr. Gordon’s research focuses on fiscal federalism in American 

education policy, and the current and historical Federal role in elementary and secondary education. She is a member of the expert 

panel to the Department of Education on its study on the Title I 

formula as mandated by the Every Student Succeeds Act. Welcome 

to you as well. 

CEWDOCROOM with DISTILLER

8 

I will now ask our witnesses to raise your right hand. There is 

no need for you to stand. 

Do you solemnly swear or affirm that the testimony you are 

about to give will be the truth, the whole truth, and nothing but 

the truth? 

Let the record reflect that the witnesses all answered in the affirmative. 

Before I recognize you to give your testimony, let me briefly explain our lighting system, and sometimes it is a reminder for us 

up here, not just you all over there. You each have five minutes 

to present your testimony. When you begin, the light in front of you 

will turn green, of course. When one minute is left, it will be yellow, and will turn red when your time is over. Please respect those 

signals. When the red light occurs, I will ask you to wrap up your 

remarks almost immediately. Members, those of us here, will have 

five minutes each to ask questions. 

So with that, Dr. Canavero, I recognize you for five minutes. 

TESTIMONY OF STEVE CANAVERO, SUPERINTENDENT OF 

PUBLIC INSTRUCTION, NEVADA DEPARTMENT OF EDUCATION 

Mr. CANAVERO. Thank you, Chairman Rokita, Chairman Kline, 

Ranking Member Fudge, and Ranking Member Scott, members of 

the subcommittee for the opportunity to testify today, and for your 

work to approve the Every Student Succeeds Act. 

This new law will allow Nevada to build on our existing education improvement efforts while at the same time setting high 

standards for student success. 

On behalf of the many chiefs like myself who are using this opportunity present under the Every Student Succeeds Act to transition our conversations away from Federal mandate to State priorities and finding opportunities within the Federal law and Federal 

funding to support our priorities, again, thank you. 

One of the most important aspects of the Every Student Succeeds 

Act is its focus on equity, as was mentioned here, its civil rights 

legacy. We must ensure all students have the opportunity to succeed and having access to the economic opportunities that a quality 

education provides, and that States, districts, and schools should be 

held accountable for clear and measurable results. 

In Nevada, Governor Brian Sandoval and the legislature have 

taken a number of steps to promote equity and improve student 

achievement. In 2005 alone, including additional financial and program supports for English learners and for students living in a 

poorest zip codes in Nevada; support for effective literacy instruction to raise student achievement in reading; several new programs 

for consistently underperforming schools, including an Achievement 

School District, which allows the State to intervene in failing 

schools; a Social Worker in Schools Program; student access to 

technology and professional development for teachers to utilize that 

technology in the classroom; and addressing educator quality by 

providing PD and improving the educator pipeline throughout the 

State. 

Each of these programs represents a substantial financial investment by the State to promote equity and achievement for our 

460,000 students and schools. All told, Nevada’s legislature inCEWDOCROOM with DISTILLER

9 

vested roughly 340 million into additional funding into education 

in 2016 and 2017 alone. That is approximately a 10 percent increase in the State’s education budget all going to students who 

need it most. And we intend to grow this investment on a biannual 

basis. 

It was these investments and my Governor and State strong 

commitment to equity that lead me to testify here today about the 

Department of Education’s proposed supplement not supplant regulations. I know my fellow chief State school officers share similar 

concerns. 

The department’s goals are laudable. It is clear underperforming 

schools need more funding to support their students’ needs. However, imposing sweeping new Federal mandates on how school districts must spend their State and local funds in addition to the 

complicated way the proposed regulations approach equity and 

school funding could actually hurt State and local efforts to provide 

equity for all students. 

Here is a few reasons why. First, the regulations look only at the 

amount spent in Title I schools versus non-Title I schools. While 

the total dollars spent is important, it is not the only measure of 

how we support students. These regulations do not take into account other equity measures, such as improved access to educational opportunities like advanced placement, magnet schools, career and technical education programs, the arts, or effective educators. By ignoring these measures, the proposed regulations could 

harm State and local efforts to promote these measures to benefit 

students. 

In Nevada, our schools are providing these types of opportunities 

for all kids, and we seek to expand them. I fear the proposed regulations could result in significant restructuring of these opportunities to allow students to support a perverse incentive to lower the 

number of offerings to make sure we are in compliance with the 

proposed fiscal rules. 

Second, districts will have to manage spending centrally to comply with the proposed regulations. This means that any decision 

that affects spending, which we know is virtually all decisions, will 

have to be vetted through the district finance office for compliance 

checks. This will affect everything from school hiring and purchasing to curriculum. 

In my State, we are working to return these decisions to the local 

level, to those who understand students’ individual needs best. In 

fact, our State just approved a plan, a bipartisan committee and 

the State board approved a plan for the reorganization of Clark 

County School District, our largest school district in Las Vegas, 

which shifts the major decisionmaking around capital, human, financial, operations, and academic planning from the central service 

of the district to each school site. 

Third and finally, I am concerned about what the regulations do 

not say. For example, the rule does not define many important 

terms like what it means to distribute ‘‘almost all’’ of a district’s 

money to schools, or what it means to have a ‘‘high proportion’’ of 

disadvantaged students in a non-Title I school to qualify for one of 

the exceptions. 

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Importantly, the rule does not address what State education 

agencies should do if there is noncompliance. While these seem like 

technical issues, they will have a significant impact on my State’s 

investments in an effort to promote equitable opportunities for all 

kids. 

I care deeply about equity. I am working closely with my Governor and my State legislature to promote greater equity and 

achievement for all kids in my State. We have made great strides 

to create a more equitable education system, and I urge the department to reconsider its proposed rule to interpret supplement not 

supplant in a way that is both consistent with the spirit of the 

Every Student Succeeds Act and promotes equity. 

Thank you, sir, for the time. 

[The statement of Mr. Canavero follows:] 

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Chairman ROKITA. Thank you, Doctor. Mr. Owens, you are recognized for five minutes. 

TESTIMONY OF RYAN OWENS, EXECUTIVE DIRECTOR, COOPERATIVE COUNCIL FOR OKLAHOMA SCHOOL ADMINISTRATION 

Mr. OWENS. Good morning, Chairman Rokita, Chairman Kline, 

Ranking Member Fudge, and Ranking Member Scott, and honorable members of this committee. 

My name is Ryan Owens, and I am the executive director of the 

Cooperative Council for Oklahoma School Administration. Thank 

you for the opportunity to be here today. CCOSA represents all of 

Oklahoma’s public, private, and charter school administrators. 

With more than 2,700 members actively serving almost 700,000 

students, we work each day to give voice to the issues impacting 

educational attainment in the Sooner State. 

In the interest of brevity, I am not going to detail the specifics 

of the proposed regulations. I am going to focus my comments on 

the realities that school districts and superintendents will face in 

implementing the proposed rule, and what it could mean for the 

students they serve. 

Over 66 percent of school sites in Oklahoma qualify as Title I. 

Superintendents in Oklahoma and across the Nation are acutely 

aware of the consequences of inequitable resource allocation. Prescriptive regulations like these are not the solution. These regulations create new administrative burdens and encourage compliance-driven decisionmaking, which robs communities of their ability to govern their local schools. 

It would be far more helpful for the department to issue technical assistance that instructs States and districts about how to 

achieve the goal of equitable distribution of resources. 

In seeking to equalize State and local spending among schools, 

the proposed regulations, while noble in their goal, reach far beyond the intent of ESSA, which merely requires LEAs to demonstrate that Title I schools receive at least as much State and 

local funds as they would otherwise receive if they were not a Title 

I school. 

Currently, in Oklahoma, site level administrators are given the 

flexibility to assess student needs and determine the amount of resources necessary to facilitate instruction. Under the proposed regulation, district administration will have to override school level 

decisions to ensure balanced resource allocation between Title I 

and non-Title I schools without regard to how those resources are 

used to benefit children. 

The proposed rule is focused on teacher salaries as part of the 

calculation for equitable resource allocation among Title I and nonTitle I schools. Destroying stability within classrooms and among 

schools is a major concern as last-minute movement of staff and 

other resources is likely in districts with multiple sites. 

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ized spending when the resource to be measured, teachers, does not 

exist? 

If the proposed rule becomes law, cost variability with enrichment programs will no longer be tolerable due to the need for uniform spending among Title I and non-Title I schools. For example, 

John Marshall Mid-High School in Oklahoma City Public Schools, 

a Title I school, offers students the opportunity to participate in a 

Finance Academy where they learn about the finance industry and 

work with university accounting students to file income tax statements at no cost for eligible Oklahomans. This is the type of specialized program at risk under the proposed rule. 

Another concern is enforcement of the proposed rule, and what 

will happen to districts if they fall out of compliance. 

The proposed regulation is silent about the meaning of key 

terms, as was mentioned. We are all left confused about what it 

means to allocate ‘‘almost all’’ of State and local funds to school 

sites. The lack of clarity and the meaning of key terms in the proposed rule increases the risk of uneven enforcement. 

Recently, in Oklahoma, in one school, there was a profoundly disabled student that was required to be served out of State. The annual cost for these services exceeded $250,000. Would these costs 

be included in a compliance calculation for equitable fund distribution and, if so, how would a district equalize the effect of such allocation? 

Will local bond levies or maintenance of the physical plant be included in these cost calculations and, if so, will the proposed rule 

seek to override the decision of local voters by equalizing construction and improvement among Title I and non-Title I schools? 

The proposed rule could undermine local support for future bond 

issues as it could get harder to pass bond issues in compliance with 

the rule. 

ESSA recognized that those closest to students and schools had 

the best hope for improving learning conditions. The regulations 

proposed by the department take away the very flexibility ESSA 

guarantees. 

I respectfully ask that the department revisit the proposed regulations and require of schools only what ESSA demands, which is 

to demonstrate that Title I schools receive as much State and local 

funds as they would otherwise receive if they did not participate 

in Title I. 

Thank you, Mr. Chairman. 

[The statement of Mr. Owens follows:] 

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Chairman ROKITA. Thank you, Mr. Owens. Mr. Sargrad, you are 

recognized for five minutes. 

TESTIMONY OF SCOTT SARGRAD, MANAGING DIRECTOR, K–12 

EDUCATION POLICY, CENTER FOR AMERICAN PROGRESS 

Mr. SARGRAD. Thank you, Chairman Rokita, Chairman Kline, 

Ranking Member Fudge, and Ranking Member Scott for the opportunity to speak here today on the supplement not supplant provision in the Every Student Succeeds Act. 

And I just want to note that I bring here today my perspective 

as a former teacher and special ed aide as well. That is how I started my career in education, and that is something I bring with me 

wherever I go. 

As you all know, in 1965, Congress designed Title I of the Elementary and Secondary Education Act to provide additional resources to disadvantaged students in poor schools. Within years, it 

was clear that poor students did not receive their fair share of resources. 

To address this inequity, Congress soon after approved the first 

supplement not supplant provision to ensure that districts did not 

use Federal money to replace State and local dollars. 

On September 6 of this year, the Department of Education issued 

draft regulations on ESSA’s updated supplement not supplant provision taking another important step towards fulfilling the law’s requirements. 

But before I dive into the research and policy, I just want to step 

back and note that we are not considering here just dry academic 

questions. Even as we sit here today, in too many schools across 

the country, too many low-income students are in crumbling 

schools without access to effective and experienced teachers. They 

do not have rigorous courses. They do not have the wrap around 

services that they need to be successful. 

In fact, just two weeks ago in Baltimore, on a hot September day, 

every school closed early because those schools did not have air 

conditioning and those students lost valuable learning time. 

As Ranking Member Fudge said earlier, money matters in education. It matters particularly for students from low-income families. This is common sense, and it is supported by a growing body 

of research. 

For low-income students, a 10 percent increase in spending increased adult wages by nearly 10 percent. Another study found 

that greater State spending on low-income students dramatically 

improved student learning in both reading and in math. Students 

in poorer schools, however, continue to receive less than their richer peers. 

The Department of Education found in approximately 1,500 

school districts across the country, about 5,700 schools receive on 

average $440,000 less per year than wealthier schools in the same 

district. That is a lot of money, $440,000 could let a school hire 8 

new guidance counselors, it could give a $10,000 bonus to 40 teachers. 

This inequity also happens across districts, and while there is 

significant variation between States, high poverty districts on average spend 15 percent less per pupil than low poverty districts. 

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In Pennsylvania, where I grew up, poorer school districts spent 

33 percent less per pupil than wealthier districts in the State. 

As a result of these policies, children of color often suffer the 

most. Compared to high poverty and high minority schools,w 

wealthier and low minority schools offer more rigorous core programs. Wealthier schools are twice as likely to offer a full range 

of math and science courses, they offer three times as many AP 

courses, and they are twice as likely to offer dual enrollment opportunities. 

But again, these are not just facts and figures. Every day real 

kids walk into real schools with so few resources that every single 

one of us would find them unacceptable for our own child. 

In one Detroit elementary and middle school, black mold covers 

the gym floor and ceilings are full of exposed wires. In the William 

Penn School District, just down the road from where I grew up, 

students like Jameria Miller ‘‘race to class to get the best blankets’’ 

because they needed to stay warm since the school’s metal walls 

have no insulation. 

From the passage of the original ESEA in 1965, the Federal Government’s role has been to protect historically disadvantaged students and ensure they have the same opportunities as their more 

advantaged peers. Beginning with the original supplement not supplant provision, the Federal Government has had a responsibility 

to enforce this requirement of the law, and today’s ESSA is no different. 

Districts have historically shown compliance with the supplement not supplant requirement by ensuring that every service purchased with Title I funds was ‘‘supplemental’’ and would not have 

been provided otherwise, and this meant that districts often limited 

their spending to programs they could easily show were supplemental and not necessarily programs that were the most impactful, 

and Congress rightly with the new law stopped that shortsighted 

practice. They did not make districts justify every purchase. 

Now instead, districts must demonstrate that their methods of 

funding make sure that poorer schools get their fair share. 

Recognizing that these historical funding inequities are a problem without an easy solution, the new regulation provides multiple 

options for districts to demonstrate compliance, and States can develop their own compliance tests. 

There is additional flexibility for schools serving lots of students 

with disabilities, lots of English learners, districts with small 

schools or schools with a single grade span. And there is plenty of 

time to comply. 

While this change will require extra efforts from school districts, 

it does not mean that they will have to use completely new strategies to distribute their school funding. Ninety percent of districts 

will already be in compliance. That does not mean we can rest on 

our laurels. Those 10 percent of districts have to do the hard work 

to show they are fairly supporting low-income schools, and they 

have to do that with State and local funds before the Federal dollars, but this hard work is worth it. 

We know these funding inequities remain. We know that money 

matters, and the department’s regulations give flexible options and 

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time to comply so that districts can be thoughtful about investing 

as part of their broader plan to support students in need. 

Thank you again for the opportunity to be here today. 

[The statement of Mr. Sargrad follows:] 

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Chairman ROKITA. Thank you. Dr. Gordon, you are recognized 

for five minutes. 

TESTIMONY OF NORA GORDON, ASSOCIATE PROFESSOR, 

McCOURT SCHOOL OF PUBLIC POLICY, GEORGETOWN UNIVERSITY, AND RESEARCH ASSOCIATE, NATIONAL BUREAU 

OF ECONOMIC RESEARCH 

Ms. GORDON. Chairman Kline, Chairman Rokita, Ranking Member Fudge, and members of the subcommittee, thank you for the 

opportunity to testify today. 

For decades, compliance with supplement not supplant was tested by looking at each individual Title I expenditure. When this rule 

was in place, in 2014, in the course of my academic research, I 

interviewed district Title I managers across four States and found 

that compliance, not the effective use of funds, was their central 

concern. But despite their concern and attention to compliance, administrators were confused about what was and was not legal. 

What districts did understand was that Title I should only support 

extra things that were different from the core curriculum. 

This led to districts purchasing staff or services with Title I that 

were often unaligned with a core curriculum because they were 

easy to audit under the old rule rather than because of student 

needs. 

Meanwhile, research suggests that effective school improvement 

requires comprehensive strategies and alignment to good curriculum, not an assortment of add-ons. 

The problems with the old supplement not supplant rule have 

been around and documented by researchers since the 1970s. When 

it looked like reauthorization of ESSA might be possible in 2012, 

the left-leaning Center for American Progress, Mr. Sargrad’s organization, and the right-leaning American Enterprise Institute jointly published recommendations describing how supplement not supplant should be fixed. 

CAP and AEI stated that the test currently in use should be replaced, and I quote, ‘‘with a simpler, more objective test, specifically: if districts can document that the manner in which they allocate state and local resources to schools is ‘‘Title I neutral,’’ they 

should be clear of suspicion around supplanting of nonfederal funds 

with Title I dollars.’’ 

ESSA’s new supplement not supplant test follows those recommendation and transforms what was already an option for 

schoolwide programs under No Child Left Behind and makes it the 

compliance standard for all Title I schools. 

As Ranking Member Fudge noted, ESSA absolutely does not 

waive the requirement to supplement not supplant. It is just the 

opposite; that language in the statute itself contains a compliance 

standard which could set an auditable test for supplement not supplant. 

The standard as presented in plain language, which may contribute to very common misperceptions that the law has no test 

and without regulation supplement not supplant, cannot be enforced. In short, districts have to explain how they are funding 

their schools and show that this method ensures that each Title I 

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school receives all of the State and local funds it would have if it 

did not participate in Title I. 

In July 2015, the department itself explained how a district could 

pass such a test for its schoolwide schools. The language of ESSA 

simply expands the schoolwide approach to supplement not supplant under No Child Left Behind to all Title I schools. 

The department’s proposed rule takes an entirely different approach to supplement not supplant than the statute’s language or 

the department’s own previous guidance on the topic. It mandates 

that Title I schools get a certain baseline of State and local funds 

measured in dollars. This approach essentially requires ad hoc adjustments in school level resources instead of a consistent and 

transparent allocation methodology. 

The goal of greater equity here is critical. Mr. Sargrad’s testimony highlights how high the stakes are on getting equity right, 

but the department’s approach does not get it right. It has major 

potential negative policy and practical implications, including districts needing to cut entire programs, like music, art, or PE, in 

order to get the money they need to make the numbers come out 

right; putting more expensive but less effective teachers into Title 

I schools; the potential to reduce local support for public schools 

and the taxes that support them; the possible loss of State and 

local funds for low-income schools that do not participate in Title 

I, and there are many of these schools. 

I just want to briefly turn to the cost-benefit analysis the department has offered and state this is a superficial analysis, and the 

data it is based on are not reliable. The department does not know 

and cannot know how districts will respond to the rule. This is the 

whole issue, how will districts respond, and that is what will determine the cost and the benefits to students. 

ESSA also contains a critically important new reporting provision that requires districts to report per pupil spending data at the 

school level. This will result in much greater transparency, but it 

will take time to implement. 

The department should help districts develop good transparent 

systems that generate reliable spending information rather than 

proposing a complicated rule that could hurt the very students it 

aims to help. 

[The statement of Ms. Gordon follows:] 

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Chairman ROKITA. Thank you very much. I am going to recognize 

myself for 5 minutes of questioning. I find it very interesting, Dr. 

Gordon, that not only is the department going in a completely opposite direction of what Congress intended in this bipartisan law, 

but what you are saying is it is going against its own guidance previously issued. Is that right? 

Ms. GORDON. It is changing the direction. It is much more specific than its previous guidance. 

Chairman ROKITA. Right. I want to focus also on this issue of 

congressional intent, Dr. Gordon. Your testimony highlighted this 

2012 recommendation by the Center for American Progress and the 

American Enterprise Institute. 

The recommendation, which is quoted up on the screen here on 

the slide, was to simplify the long-standing supplement not supplant provision so that school districts would only have to show the 

State and local funding allocations to schools are, quote ‘‘Title I 

neutral,’’ unquote. 

You mentioned in your testimony that the gentleman sitting to 

your right is from the Center for American Progress. 

It seems to me that this report, this idea, from a left leaning 

group, organization, and a right leaning group actually is what we 

did in the law. Is that correct, Title I neutral? 

Ms. GORDON. Yes. 

Chairman ROKITA. Due to the reforms adopted by Congress last 

year, specifically in Section 1118, the law now includes this recommendation, again, shown on the screen, to ensure States allocate 

funding in a Title I neutral manner. Is that correct? 

This recommendation that we are showing on the screen is what 

you believe to be what we wrote into the law and signed by the 

President? 

Ms. GORDON. Yes. 

Chairman ROKITA. Now, is it true that the identical language 

originated in the bipartisan proposal that was negotiated by Senator Alexander and Senator Murray? Did you follow those negotiations? 

Ms. GORDON. Yes. 

Chairman ROKITA. And is this the same thing? 

Ms. GORDON. Yes. 

Chairman ROKITA. In fact, as you point out in your testimony, 

the bipartisan committee report for the Senate bill, now showing 

that on the screen, explains the congressional intent for this language. Are you familiar with this language? Is this what we . . . ? 

Ms. GORDON. Yes. 

Chairman ROKITA. Alright. It is certainly what I remember. Dr. 

Gordon, given the clear legislative history behind this provision 

and the unambiguous bipartisan explanation of the provision contained in the Senate committee report, is there any conceivable 

honest way to argue that Congress intended this provision to be 

implemented in the way that the department is now proposing? 

Ms. GORDON. Not that I can imagine, no. 

Chairman ROKITA. That was the question. Thank you very much. 

I appreciate that. Dr. Canavero, do you have anything to add to 

this discussion we are having, this line of questioning? 

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Mr. CANAVERO. Chairman Rokita, I do not have anything to add. 

I will just say obviously we are supportive of the language that is 

the law. We believe that is a fair test for demonstrating compliance 

for Title I, and we applaud the changes in ESSA that allow a more 

schoolwide determination as opposed to the classic and historic 

compliance-based expenditure test that we have been working 

under so far. 

Chairman ROKITA. Well, I thank you for being for it. We all have 

been for it. We all voted for this thing. The only ones that do not 

seem to be for it now is the department, which again is why we 

are here. 

Mr. Owens, do you have anything to add? 

Mr. OWENS. Thank you, Mr. Chairman. I think again the test 

that is created in statute is the one that should drive the work of 

the department, which is very clearly whether the Title I schools 

receive all the State and local funds to which they were entitled, 

which is far and away very different than trying to look at an 

equalization of expenditures of State and local resources. 

Chairman ROKITA. Thank you. And I will yield back and recognize the chairman of the full committee, Mr. Scott, for 5 minutes. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Chairman ROKITA. Long time before you retire. Mandy days. Excuse me, the ranking member of the full committee, Mr. Scott. 

Mr. SCOTT. There is no objection. 

Chairman ROKITA. The gentleman did not notice. 

Mr. SCOTT. It just came so naturally, I did not notice. Thank you, 

Mr. Chairman. Mr. Sargrad, when you talk about to which entitled, 

is it not a fact that schools attended by low-income students are 

chronically underfunded? 

Mr. SARGRAD. Yes, that is right. 

Mr. SCOTT. When we wrote the law, is there any question that 

we intended a change in the way it would be calculated, that is to 

say we required new rulemaking to make sure we had a new 

standard? 

Mr. SARGRAD. Yes, that is very clear. 

Mr. SCOTT. How did you interpret the effect of that new standard? 

Mr. SARGRAD. That it moved from an activities and services 

based test to a funds based test, to ensure that schools received all 

the funds they are entitled to. 

Mr. SCOTT. And how low can you get in terms of underfunding 

before you get out of compliance, according to the old standard? 

Mr. SARGRAD. There is no limit, you could be significantly underfunded. 

Mr. SCOTT. You mentioned a lot of district to district comparisons, what about within the district comparisons? Are there districts that have students going to low-income schools receiving significantly less per student than those going across town within the 

same district? 

Mr. SARGRAD. Yes, there are significant gaps in many districts. 

Mr. SCOTT. How does the new standard deal with that? 

Mr. SARGRAD. It simply ensures that the Title I schools receive 

the State and local funds that they are entitled to. 

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39 

Mr. SCOTT. And that would mean that they would receive the 

funds and then the Title I funds would be on top of that, would 

supplemental to what they should have gotten in the first place? 

Mr. SARGRAD. That is right. 

Mr. SCOTT. Mr. Canavero, you indicated that the financial standard by itself is too narrow. Is that right? You ought to consider 

other activities like AP courses, CTE courses, arts, effective teachers, things like that ought to part of the calculation? 

Mr. CANAVERO. Correct, sir. 

Mr. SCOTT. Does that mean total dollars spent, should you not 

at least have the money equal before you get into the other activities? If you ought to consider other things, ought not the money get 

straight before you go to the other activities? 

Mr. CANAVERO. Certainly, sir. The notion of providing these opportunities to all students is critical. 

Mr. SCOTT. Within the district, are there disparities in terms of 

funding before you get to the Title I funds? 

Mr. CANAVERO. Are you asking specifically what the district 

within Nevada or general? 

Mr. SCOTT. Within school districts. Are there school districts that 

before you get to the Title I money fund schools attended by lowincome students, are they getting more or less generally than those 

attended by high-income students? 

Mr. CANAVERO. The only detailed knowledge I have is within my 

State, and generally speaking, they are all funded equally. 

Mr. SCOTT. All of the Title I schools get equal funding before you 

get to the Title I funding? 

Mr. CANAVERO. That is correct, sir, and there are obviously some 

nuisances related to cost of teachers within those programs or as 

I mentioned in my testimony, the creation of choice based programs 

that are meant to break down historic enrollment patterns, related 

magnet schools in particular, signature academies, whatever you 

want to call them. 

Mr. SCOTT. Does the teacher calculation reflect the fact that traditionally more effective teachers tend to teach at the schools attended by high-income students rather than low-income students, 

and so the payroll at schools attended by high-income students 

would be higher than those attended by low-income students? 

Mr. CANAVERO. Historically, the discussion has not been around 

effectiveness and pay, it has been around tenure and pay, the 

longer they have been in service. What we find in Nevada in particular is that under a significant shortage of teachers, those shortages, however, are not equally spread. We found that they are disproportionately spread with some hard to fill schools such as those 

with students in poverty and communities in poverty. 

Mr. SCOTT. And so the payroll at the low-income school will be 

significantly lower than that at a high-income school? 

Mr. CANAVERO. It may be. 

Mr. SCOTT. Generally speaking. 

Mr. CANAVERO. Yes. 

Mr. SCOTT. Thank you, Mr. Chairman. I yield back. 

Chairman ROKITA. I thank the gentleman. Now, let me take this 

opportunity in high honor to introduce the chairman of the full 

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committee, a great American, and most importantly, a benevolent 

and forgiving leader, Mr. Kline, for 5 minutes. 

Chairman KLINE. Clinging fearlessly to my job and title for a few 

more weeks, I thank the chairman. 

The discussion here fundamentally is about what happens when 

the Congress takes a bill, works it through, passes it, the President 

signs it into law, and you have a new law, and an administration, 

any administration, then goes through the regulatory process and 

starts to promulgate regulations to allow for the implementation of 

that law. 

The issue is that the administration, any administration, is not 

allowed to decide what parts of the law it wants to enforce and 

what parts it wants to change and what parts it wants to leave out. 

The administration is not allowed to rewrite law. 

And so, there are some of us who feel like that is in fact what 

is happening here with this administration and this Secretary’s implementation of the Every Student Succeeds Act. 

So, Dr. Gordon, I want to come back to you and go through a 

pretty step by step series of questions and answers so this will be 

perfectly clear, at least to me and you. I am going to go down the 

same line that Chairman Rokita was taking up in his questions. 

So, Dr. Gordon, the Center for American Progress and the American Enterprise Institute had a specific proposal addressing supplement not supplant, and that proposal was adopted by Congress. Is 

that correct? 

Ms. GORDON. Yes. 

Chairman KLINE. And these two organizations also recommended 

Congress address actual per pupil spending of State and local 

funds through the law’s comparability provision. Is that correct? 

Ms. GORDON. The Center for American Progress did, yes. 

Chairman KLINE. Right. Okay, right. Does the department’s regulatory proposal that we are discussing today reflect the goal behind that proposal? 

Ms. GORDON. The comparability proposal? 

Chairman KLINE. Yes. 

Ms. GORDON. Yes. 

Chairman KLINE. But did Congress change comparability or any 

other provision in any way consistent with that proposal? 

Ms. GORDON. No. 

Chairman KLINE. No, that is right. In fact, in the Senate, Senator Bennet offered a specific amendment on comparability that reflected the goals of the organizations’ proposal. Did the Senate 

adopt the Bennet amendment? 

Ms. GORDON. No. 

Chairman KLINE. No. In the House, our colleague, the ranking 

member of this subcommittee, also offered an amendment with 

similar goals. Did the House adopt the Fudge amendment? 

Ms. GORDON. No. 

Chairman KLINE. No. So Congress explicitly rejected proposals to 

address actual per pupil spending in the law, but did adopt the 

AEI/CAP recommendation to make this information transparent, 

right? 

Ms. GORDON. It adopted the CAP/AEI recommendation about 

having a methodology based test of supplement, not supplant. 

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Chairman KLINE. Thank you. I probably had too many words in 

my question. Thank you. So, to summarize, Congress was aware of 

recommendations to address actual per pupil spending, as we just 

noted, in both the House and Senate, but on multiple occasions, 

flatly rejected this idea selecting instead to require States and 

school districts make per pupil spending public, yet here we are 

today examining a regulatory scheme put forth by this administration that Congress explicitly rejected, and that I believe will wreak 

havoc on communities across the country. 

So, Dr. Gordon, again, staying with you, is there any conceivable 

way to interpret the law’s supplement not supplant or comparability provisions as requiring any form of equalized spending 

between Title I and non-Title I schools? 

Ms. GORDON. No. 

Chairman KLINE. Exactly. Thank you very much. I yield back. 

Chairman ROKITA. I thank the gentleman. Ms. Clark, you are 

recognized for 5 minutes. 

Mrs. CLARK. Thank you, Chairman Rokita, and Ranking Member 

Fudge, and to all the panelists for being here today. 

First, I want to give Mr. Sargrad a chance to respond to the line 

of questioning we have had for Dr. Gordon. If you could tell us 

about CAP’s role in this definition and how you see the implementation of the current supplement but not supplant rolling out, and 

is it in line with your research? 

Mr. SARGRAD. Thank you, yes. So there are a couple of things 

that I would want to say to this, the first is that just like in the 

law, Congress decided to change to a funds based supplement not 

supplant test but did not go into specific details about how the department might enforce that requirement and how precisely districts would comply, our recommendation also was a policy recommendation that I think we anticipated, although I was not at 

the Center for American Progress in 2012—we anticipated an administration would need to go through rulemaking to interpret and 

to make sure atthe districts were complying. 

The second point that I would make is that the recommendation 

around distribution of funds being Title I neutral, is that if that 

method results in shortchanging Title I schools, it seems pretty 

clear that is not Title I neutral, and so that is a key piece of the 

recommendation and a key piece of how we believe the law should 

be implemented. 

Mrs. CLARK. Thank you. I wanted to follow up also with Dr. 

Canavero. In your testimony, you stated that, quote ‘‘One of the 

most important aspects of the ESSA is its focus on equity,’’ and I 

could not agree more. And you have set forth some of your victory 

schools program where I believe the State of Nevada put 25 million 

dollars into low-income schools, as you described different programs, social workers, arts, other programs that you felt were necessary. 

But absent from your list of your State’s ongoing effort to implement is your State’s effort to implement the most expansive private 

school tuition tax credit in the Nation, one that gives 51 hundred 

dollars to private school tuition regardless of family income. This 

in a state where you are the seventh highest percentage of children 

CEWDOCROOM with DISTILLER

42 

living in poverty in Nevada, and at least according to the Ed Week 

report card, the lowest ranking school system in the country. 

I am curious, how do using these public funds intended for public 

education, as we are here talking about how we can best serve our 

lowest income students, how does that further your State’s focus on 

educational equity? 

Mr. CANAVERO. Thank you for the opportunity to respond, Representative Clark. So that is obviously a legislative directive from 

the State legislature that is presently tied up in the courts. And 

so, to the extent that I can control the legislature, which I cannot, 

that is what it is. 

I can tell you definitively that in a State with a Republican Governor and a Republican controlled legislature, in 2015 to raise 

taxes to fund education, acknowledging the need in our State, the 

undeniable need in our State to improve outcomes for students, 

given all that you have just suggested and more, fundamentally reflects, I think, the general commitment of our State and our leadership in our State to making things work, and to become, I think, 

at the end of the day the fastest improving State in this Nation. 

We recognize the challenges before us and we placed major investments down to remediate those efforts. 

There are a number of other . . . 

Mrs. CLARK. Is it not true, Dr. Canavero, that the Nevada State 

Treasurer has estimated that this program if fully implemented, 

and at this point 80 percent of the applicants for this tax credit are 

higher income, only 11 percent are in your 40th or below in income 

levels, so only 11 percent really beginning to touch the bottom 40th 

of earners, that could divert up to $200 million from public schools. 

Do you think there is a feeling in Nevada, in the State legislature, that equal amounts of tax credit builds equity into the system? 

Mr. CANAVERO. I think that is a question that the legislature and 

individual legislators could answer. It is not within the Department 

of Education, as you recognize. It is within the Treasurer. To the 

extent it is implemented, it is implemented, and obviously, I follow 

the State’s laws. 

Mrs. CLARK. Thank you. I yield back. 

Chairman ROKITA. I thank the gentlelady. Mr. Thompson, you 

are recognized for 5 minutes. 

Mr. THOMPSON. Chairman, thank you. Thank you for members of 

the panel for being here on this important topic. 

Let me bring our discussion right back to where it is supposed 

to be, on the United States Department of Education, and quite 

frankly, the intent of Congress. Because that is the friction point 

we have at this point. My question I will open-up to all. 

Most of you have talked to some extent about the potential impact on special programs, things like career and technical education, magnet schools, art programs, physical education mentioned. I am sure there may be others. Be curious to hear what others you have concerns about with how the department is moving 

ahead contrary to the intent of Congress. 

Can you explain more about why these programs will be at risk 

and how those programs are addressing equity concerns? Let’s 

start with Dr. Canavero, please. 

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Mr. CANAVERO. Certainly. Thank you, Representative Thompson. 

In my testimony, I did mention career and technical education, career and technical academies, magnet schools. These are not provisions within the exceptions that are currently listed within the regulations. 

My concerns are as follows: they are expensive. Magnet school 

programs are expensive. Career and technical academies are expensive. Career and technical education is expensive, and rightfully so 

given the infrastructure that needs to be built out in order to provide students the opportunity for either real world experience in a 

career/tech-ed or skill based work, or whether it is in a magnet 

school specifically focused on law, for example, or culinary. 

Magnet schools themselves, if my memory serves me correctly, 

began in the 1970s in response to there was a clear opportunity to 

increase or decrease segregation in our schools, and they provided 

an opportunity, open enrollment opportunity to students. Typically, 

they are theme based. An opportunity to enroll students outside of 

a traditional attendance boundary. That is indeed what we see 

across our State, is that there are-they have waiting lists. We could 

do and obviously fill more. 

If we utilized the level funding test, in my testimony, my fear is 

that school districts will be incentivized to lower the offerings at 

magnet schools or career and technical education programming in 

order to equalize the funding across, even though those opportunities are made available to and many students participate in the 

magnet school and career/tech academies across our State from 

low-income. 

Mr. THOMPSON. Just to follow up on that, you mentioned the cost 

of career and technical education. Truly, if we are meeting market 

demands and we are educating, and my understanding was career 

and technical education, the dropout rate there is much lower than 

in traditional education settings, but there is a cost, if it is welding, 

medicine related, agriculture, machining. 

If those are where the costs occur obviously with this equalization that the Department of Education is trying to pursue, essentially if you do not have state-of-the-art equipment, you are not 

really preparing the students with the competencies to go right into 

the workforce. That is my concern. Is that accurate? 

Mr. CANAVERO. Representative Thompson, that is accurate, and 

that is the genesis really and the nature of my testimony. Again, 

reflecting absent additional dollars in the system, you would need 

to make decisions that may mean that you have to lower or reduce 

course offerings or reduce expansion of magnet programs or reduce 

career and technical academies or reduce career/tech ed in order to 

meet the fiscal test proposed. 

Mr. THOMPSON. Thank you. Mr. Owens, any thoughts/impacts on 

the types of programs we have been reflecting on? 

Mr. OWENS. Thank you, Representative Thompson. I would just 

echo Dr. Canavero’s statements regarding the career technical component. In Oklahoma, we have Statewide open enrollment, open 

transfer, so students can move freely between districts, when they 

get within the open enrollment process, to access the programs that 

are most beneficial to them and meeting their needs. 

CEWDOCROOM with DISTILLER

44 

So again, any of those programs that have cost variability components really become intolerable under a rule that really promotes 

uniformity of spending. So the example I cited in my testimony 

that the Financial Academy, at the Title I school, John Marshall 

Mid-High, has a banking center inside the school, it brings students from universities in to help Oklahomans do their taxes, those 

costs that you can’t control at a district level become programs that 

have to be wiped away. 

Mr. THOMPSON. Thank you, Chairman. I yield back. 

Chairman ROKITA. I thank the gentleman. Ms. Bonamici, you are 

recognized for 5 minutes. 

Ms. BONAMICI. Thank you very much, Chairman Rokita and 

Ranking Member Fudge. Implementing the Every Student Succeeds Act is going to further the goals of equity, and I am glad that 

seems to be something everyone agrees on is going to help all of 

our children across the country, students of color, low-income students, Native students, English learners, students with disabilities. 

And certainly the supplement not supplant requirement plays a 

critical role in achieving this goal. I know educators, parents, and 

students in high poverty schools are frequently shortchanged, and 

reports show that about 40 percent of Title I schools receive less 

personnel funding per pupil than non-Title I schools, and schools 

that serve almost entirely students of color receive about $700 less 

per student than schools that are predominantly white. 

There is a disparity that needs to be addressed, and it is especially troubling if we know that in some cases, it is not just equal 

funding that is equitable, the schools serving communities of concentrated poverty actually need additional resources and support. 

I think that is the goal. 

When Congress added this supplement not supplant requirement 

to ESSA back in 1970, I was not here then, but I think that was 

certainly the goal, so that those high needs schools would receive 

that additional support, and for decades Congress has stood by that 

principle. 

I am a former State legislator and I think many of us are, and 

understanding that need to send that message that these Federal 

dollars are not to replace your K–12 investment. 

We had a hearing in June, and Chairman Kline noted that the 

law, that ESSA, requires districts to show that funds are distributed fairly before they receive Title I dollars. And I do not think 

anyone disagrees with that, I mean that is certainly the intention 

here. 

And to uphold our intention, Congress expects the Department of 

Education to enforce the supplement not supplant requirement, so 

there need to be some clear standards. I do not think anyone would 

disagree with that. 

I wanted to ask you, Mr. Sargrad, one concern that we have 

heard is that this supplement not supplant requirement could force 

districts to reassign teachers in ways that may not be in the best 

interest of students. As the law supports a move to greater equity, 

I want to make sure it does not create undue disruption for hard 

working educators, and given your expertise as a teacher and an 

official responsible for overseeing Title I, how will States and districts be able to create greater parity in school funding while also 

CEWDOCROOM with DISTILLER

45 

minimizing that uncertainty for educators and making sure that 

school staffing decisions are really driven by the needs of the students. 

And if when you are discussing this, could you talk about the difference between like large urban districts. I have 25 school districts 

in my congressional district, and they really differ. Some of them 

are very large and some of them are very small and rural. So 

would you talk about that as well, and how this might affect the 

difference between rural and urban schools, but really with a focus 

on whether this is going to create undue disruption for educators. 

Mr. SARGRAD. Thank you, Representative Bonamici, I am happy 

to talk about that. I absolutely agree with a lot of what folks have 

said here today, that forcing transfers of teachers is a bad idea. It 

is bad practice and it is not a good idea for students and it is not 

a good idea for teachers. 

But this proposed regulation will not require districts to do that. 

There are multiple ways that districts can get additional resources 

to poor schools without moving teachers around. They could pay 

teachers more. They could provide incentives for teachers to teach 

in these hard to staff low-income schools. They could invest in 

these schools in wrap around services and make sure every low-income school has a guidance counselor and a school nurse and librarian, which many of them do not. They could extend the school 

day or extend the school year in these schools to make sure students have enough time to learn what they need to learn to be prepared for college or for a career. 

And they can change their systems for funding, and they can 

move to things like weighted student funding formulas that provide 

additional resources for students with disabilities, low-income students, and English language learners. 

So there are lots of ways to get these resources to the low-income 

schools, and I think the proposed rule does give time for districts 

to figure this out, and they do not have to make decisions right 

away about how they are going to do this, but they can be thoughtful about how they are going to make sure these schools get the 

resources that they need. 

And I think to your question about the differences in districts, 

I think that is a really important point. And I think there are huge 

differences between a large urban district and a small rural district 

or a mid-sized suburban district, and they do have different options 

on how to comply with some of these requirements. 

And I think it is absolutely right there is not a single test here. 

I think the fact that there are multiple options and there is additional flexibility for specific unique circumstances, and that there 

is an option for States to be able to develop their own test here is 

very important. 

Ms. BONAMICI. Thank you very much. I see my time has expired. 

Thank you, I yield back. Thank you, Mr. Chairman. 

Chairman ROKITA. I thank the gentlelady. Mr. Grothman, you 

are recognized for 5 minutes. 

Mr. GROTHMAN. Sure, Mr. Canavero, I have a couple of questions. But first, I would like to congratulate your State; I was not 

aware they had passed a program allowing poorer kids, all kids, to 

attend schools of their choice. There are so many backward looking 

CEWDOCROOM with DISTILLER

46 

people who hate these programs because they think that if they 

send their children to a private school, they should not have the 

school watered down with other kids. Maybe they do not want their 

children going to school with, and I think it took a lot of guts of 

your legislature to do that, so you can say I congratulate them for 

looking out for the kids. 

I used to be in the State legislature, and I understand the interplay between State and local authority. Your testimony discusses 

ambiguity for the States in balancing their Federal enforcement obligation with the realities of State and local laws that may limit a 

district’s ability to comply or a State’s ability to enforce compliance. 

Can you describe the kind of State and local laws you are talking 

about and how they might conflict with this rule, and can you describe the process that State and locals will have to undertake to 

come into compliance with the department’s proposal? 

Mr. CANAVERO. Certainly, Representative. So there are a few examples here, one that I pull from my interactions with other chiefs 

and with the [l1]CCSSO, the Council of Chief State School Officers, 

relates to levies or bonds that are specific to providing and raised 

by a district for a specific activity or tied to a specific program. 

And, if in fact that bond issuance or that levy conflicts with the 

adjustment of resources that would be required under the regulations or otherwise directed differently, how the local system, how 

the local school district, would balance that tension between what 

the levy requires or what that bond commitment requires as acted 

on by the voters versus how to remain compliant with the Federal 

rules. So that would be one. 

The other maybe specific to Nevada is related to—it is part of the 

ambiguity that we seek to get clear on, is related to State initiatives around investments in schools, and what that would translate 

to for a local education agency or a school district in identifying 

their weights in compliance with this particular provision. 

So there would be some tension there specifically the laws, that 

is something we continue to review, as a chief in my State, we continue to review, but knowing again from a national discussion, 

there is some concern related to the ability for districts to both fulfill the obligations of a levy or a bond issuance and be compliant. 

Mr. GROTHMAN. Okay. I have a question. Does this requirement 

apply not only within a district but to a State as a whole? 

Mr. CANAVERO. My review of the regulations requires the LEA, 

the district, to be compliant. Obviously, there is a State role to be 

played here. You heard earlier the role that a State could play 

which is to create its own algorithm. 

Mr. GROTHMAN. I’ll give you a question. They only give us 5 minutes. One of the things that surprises me, at least in Wisconsin, 

maybe Wisconsin is an anomaly, I do not think there are significant differences at all from school to school within a district. 

There are differences in spending between districts, but I would 

think for an average district, if they have 5 or 10 elementary 

schools, they probably all get almost identical amounts of money. 

Is that the norm, or are there districts around the country – I will 

ask any of you in which- really, within the same district, different 

elementary schools are getting wildly different amounts of money? 

CEWDOCROOM with DISTILLER

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Mr. SARGRAD. I would say that this is part the key piece of this 

supplement not supplant provision, and the department’s regulation, that in 90 percent of districts, this is probably not an issue, 

but in 10 percent of districts, there are significant differences between low-income and high-income schools, and for those students, 

those differences really matter. 

Ms. GORDON. I could just add to that, the districts where there 

are differences, it may not be apparent because they may have 

similar staffing, so you may see schools within a district that all 

have relatively similar teacher/people ratios, and what is driving 

the differences is largely the teacher salaries. 

Mr. GROTHMAN. Would it not sometimes be inadvertent? I can 

imagine the districts I have, usually the longer you teach, the higher your salary goes, so just by chance one district may have teachers averaging $60,000 a year and the other $45,000, and it really 

does not have anything to do with quality. Is that true? 

Ms. GORDON. Yes, that is what is driving the difference, pay 

scale. 

Mr. GROTHMAN. Seems to be a lot of paperwork, too. I would be 

surprised if districts that I am aware of even know if there is a difference in costs from school to school. I do not know if they even 

break things down that way. 

Ms. GORDON. Many districts do not have dollars at the school 

level. 

Chairman ROKITA. The gentleman’s time has expired. I thank 

the gentleman. Mr. Polis, you are recognized for 5 minutes. 

Mr. POLIS. Thank you, Mr. Chairman. I want to thank the witnesses for being today, and Ranking Member Fudge and Chairman 

Rokita. Last fall, I had the opportunity to be on the conference 

committee to reauthorize ESEA, and when we were in our final negotiations, one theme remained consistent: ESEA is a civil rights 

law first and foremost; it was created with the idea that all students regardless of where they come from, their race or ethnicity, 

deserve a fair shot. 

And the issue we are discussing today really goes to the core of 

ESEA’s role in fulfilling that mission. And I think it is important 

that the discussion today is around making sure that the money 

provided in ESEA for the neediest schools actually gets to these 

schools. 

I briefly wanted to address the quote that Chairman Rokita put 

on the wall regarding a congressional prohibition around a specific 

methodology. Now, you know, I am not an attorney but the simple 

read of the congressional intent there is a specific methodology is 

prohibited, not several particular approaches that are dictated, not 

several specific or parameters. 

If Congress had not wanted the department to give several possible approaches, the prohibition would have been against guidelines at all being issued, against several different approaches being 

outlined. 

But the particular bar is a specific methodology, and of course, 

there is not a specific methodology in the department’s proposed 

regs. There are in fact several very contrary to the word ‘‘a’’ proposed approaches. 

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I also wanted to follow up on Mr. Thompson’s question to Dr. 

Canavero. I join Mr. Thompson in being a big fan of vocational and 

career programs. I wanted to ask Dr. Canavero if he is aware in 

Nevada of instances of Title I funds being used for some of the 

things Mr. Thompson mentioned, like for instance, the physical 

equipment for welding programs or shop programs. 

Mr. CANAVERO. Thank you, Representative Polis. I am not. 

Mr. POLIS. Reclaiming my time, the point being made is that 

would be an unusual, perhaps not explicitly prohibited use of 

funds, but in general, to the extent Title I funds are used for equipment, it is equipment for Title I programs, it would not be used forreally ever-it would be very difficult to use for welding programsoh, I see Mr. Thompson has left- or for other types of programs. 

The point being that of course we recognize the need for the 

physical investment in vocational and career education programs. 

I would also point out that in many cases this is done in partnership with those who already have that equipment. That is kind of 

the new way of doing that, community colleges and others that 

have that equipment. 

It is rare, not unheard of, for school districts to have to purchase 

this equipment themselves these days, but of course, it would be 

even rarer still for any Title I funds to be used for that, almost impossible under previous guidelines and current guidelines. I did 

want to point that out. 

I wanted to go to Mr. Sargrad for a question. In your testimony 

you mentioned that 90 percent of school districts already meet the 

requirements under the proposed supplement not supplant. Now, 

we have heard various instances of doom and gloom about the proposed regulations. 

For clarity, can you again explain how most school districts already comply with these proposed standards, and realistically, 

what do you think the effect of these regulations would be? 

Mr. SARGRAD. Thank you, Representative Polis. So the department estimates, as you mentioned, that approximately 90 percent 

of districts have no Title I schools that are receiving less than their 

non-Title I counterparts. And that means that in a small subset of 

districts and with a certain number of schools, this is a significant 

problem, and as I mentioned, the department also estimates that 

these differences are about $440,000 per school. 

But for the remainder of districts, they are already spending 

enough money in their non-Title I schools to meet this requirement, and combined with the flexibility that the regulation provides on a 5 percent buffer year to year on the spending, combined 

with flexibility for students with disabilities and English learners. 

Mr. POLIS. Mr. Owens, it is my understanding your organization, 

and I do not know if you personally as well, but along with many 

State superintendent associations, are supportive of the department’s 2015 guidance on schoolwide programs, and that guidance 

actually provides the same two examples the department has included in its regulation. 

The proposal also includes a State determined option for compliance, very similar to those 2015 guidance, and I was wondering 

why your organization or perhaps you can address it on a personal 

level as well, why you are supportive of those options in the 2015 

CEWDOCROOM with DISTILLER

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guidance but not those same examples and options in the current 

proposed regulation. 

Mr. OWENS. Thank you, Representative Polis. As I understand 

the 2015 guidance and regulations, it provides much more flexibility to my members to assess the needs of their students and deploy resources accordingly, which is not as - the flexibility is not 

as visible to us in the proposal today from the department in terms 

of the methodologies that would be prescribed for districts that result in uniform spending per student. 

Mr. POLIS. Thank you. 

Chairman ROKITA. Thank you. The gentleman’s time has expired. 

I will now recognize Mr. Bishop for 5 minutes. 

Mr. BISHOP. Thank you, Chairman Rokita. Thank you for this informative hearing today, and thank you to the panel for your testimony and your time, really appreciated it. 

I know a number of the members of this committee were State 

legislators, I have heard them indicate that, and I think we have 

all seen the heavy hand of the Federal Government as a State legislator. Many times these programs were forced down upon State 

legislatures, they call them ‘‘incentives,’’ but they are in the form 

of a mandate, many case, an unfunded mandate. 

As a State legislator, I knew how very damaging they were to 

what we were trying to do on behalf of our local school districts. 

I am also a parent, so I have three children in public schools today, 

and I am very concerned about the state of our public schools, and 

that is why I was very proud of what we did with the ESEA, which 

was a direct attempt at making sure we ended these failed top 

down policies, and we reduced the Federal rule, and really restored 

local control to K–12 education, which was a bipartisan effort. 

It was the intent of Congress. I thought the law was clear and 

unambiguous. We made every effort to try to drill down and polish 

to ensure that there would be no questions as to interpretation, but 

of course, now we are seeing that. 

We had the director in several times expressing our concerns 

about implementation. And now we are faced with an implementation question. I am sure this is going to continue as time goes on. 

I have a question and I guess I do not know who to ask it to, 

and please feel free to weigh in if you would like to, but I would 

like to begin with Dr. Gordon, because I noticed in your bio you 

focus on fiscal federalism and American educational policy and the 

current historical Federal role in elementary and secondary education, which I think is specific to this question. 

The department has estimated that all but about 1,500 school 

districts around the country will be in compliance with what they 

are calling the ‘‘special rule.’’ In your testimony, you questioned 

this data. How valid do you think the estimate is? 

Ms. GORDON. To clarify, that estimate comes from the 2013 civil 

rights data collection, which is now publicly available for anyone 

who would like to try to replicate, and I have spent some time with 

preliminary estimates with these data. 

I do not question there would be about 1,500 districts who, if you 

believed those numbers, which is an issue because many school districts in that data collection are being asked to report spending at 

the school level in dollars, and they do not have the data infraCEWDOCROOM with DISTILLER

50 

structure to generate those numbers, so they are reporting something, something that is measured with error, but if you take those 

data as a starting point, I think that is probably correct that you 

would find about 1,500 districts that are not in compliance. 

What I disagree with, there are not 90 percent of districts who 

are in compliance, rather the majority of that 90 percent, the rule 

does not apply to them because they are so small they do not have 

one Title I school and one non-Title I school within the same grade 

span, so it is not that most districts meet this rule. Rather, the rule 

does not apply to many districts. 

Mr. BISHOP. Okay. But we agree that 1,500 is a good number in 

terms of those that are not in compliance? 

Ms. GORDON. Ballpark. 

Mr. BISHOP. Okay. The department also estimates that this 

would cost about $800 million and $2.2 billion for those 1,500 districts to come into compliance with the special rule. Again, how 

valid is that number? 

Ms. GORDON. I have not tried to replicate that number, but just 

to give some background on what I think is the methodology because they have not shared details of how they calculate that number, which you cannot replicate without knowing some of the assumptions, I think the lower number comes from assuming that 

you are just moving the money from non-Title I schools into nonTitle I schools, and the higher number comes from assuming you 

are going to keep all Title I schools the same and level up. 

Mr. BISHOP. In any case, the compliance number is astronomical, 

especially for a local school district who is already tied up and having difficulty making ends meet to begin with. 

Ms. GORDON. I think what should receive more attention, actually in the proposed rule they discuss how there are 500 districts 

who are going to have greater costs, and it would be interesting to 

see their data on what the costs are going to be for those districts. 

Mr. BISHOP. It is unfortunate because communities will be forced 

to relocate teachers, raise taxes or both, and America’s poorest 

neighborhoods will probably be hit the hardest. 

Thank you. My time is up. I yield back. 

Chairman ROKITA. I thank the gentleman for yielding. Ms. 

Adams, you are recognized for 5 minutes. 

Ms. ADAMS. Thank you, Mr. Chair, Ranking Member Fudge, and 

thank you to the panelists for your testimony. 

Mr. Sargrad, what in your estimation would happen without an 

enforceable standard for compliance with the supplement not supplement requirement that can be used by State auditors, and what 

happens if it is left completely open for interpretation? 

Mr. SARGRAD. Thank you, Representative Adams. I think that is 

a great question. There are two things that I think could happen. 

One is that districts will continue to be confused by this requirement just as they have been in the past. I think you have heard 

from a number of us today that the old supplement not supplant 

requirement really did not serve kids well because districts were so 

concerned about these audit requirements and there was not clear 

guidance and there were not clear regulations on this. 

The second thing is that you could continue to see these inequities persist at the district level. As we have mentioned, this repCEWDOCROOM with DISTILLER

51 

resents 1,500 districts, but there are a lot of students that there 

in those districts and a lot of students that this money could do 

real good for. 

And if the department cannot enforce this requirement and districts continue to perpetuate those inequities, those students are 

going to lose. 

Ms. ADAMS. Thank you. Dr. Canavero, the proposed rule simply 

asks each LEA to come up with an allocation formula for State and 

local funds, to apply that formula, and then to prove that the Title 

I schools within the district receive the funding they deserve under 

the LEA’s own allocation formula. 

Can you help me understand why this is bad or an inequitable 

policy? 

Mr. CANAVERO. Certainly, thank you, Representative Adams. So 

number one, I do not think it is disputable, and I would suggest 

that I think Nevada has taken great strides to ensure that schools 

receive additional funds, in particular, schools serving communities 

in poverty, English language learners, insomuch as the State has 

passed additional funding for gifted and talented pupils, as well as 

special education, or students in special education. 

The challenge we have with the regulation or the issue I have 

with the regulation is trying to reconcile what it is suggesting and 

offering versus the path that the State is pursuing and the course 

that we have charted. 

The issues related to what I find to be ambiguous language about 

‘‘almost all’’ and others related to the special rule or the exemptions that may or may not apply. 

In particular cases for me, when we look at funding English 

learners in non-Title I settings, which is as we work our way towards distributing the weight across more and more students as 

we invest as a State, what we find is that the English learners may 

be in concentrations of 30 percent at a non-Title I school, and it is 

unclear whether or not the additional expenses at that school within a district would have to come down if in fact the Title I school 

that does not receive the EL funding is not in locked step with that 

EL school. 

So just recognizing the auditing of this process as was mentioned 

earlier, I am having a tough time figuring out how I would advise 

my districts related to auditable standard, related to the language 

that, for example, high proportion or most, I believe, versus the 

auditable standard that would be applied to the language in the 

law, which is very similar to the auditable standard that was created under the schoolwide allocation for Title I schools, which is 

something districts are comfortable with, States know. That seems 

a little bit more predictable than the potential auditable standard 

that is created or not created under the regulations. 

Ms. ADAMS. Okay. Thank you. Mr. Owens, you argued that allowing district administrators to override school level decisions to 

ensure there is a balance. However, superintendents are tasked 

with overriding school level decisions all the time in order to balance competing demands and make sure that all children are 

served. 

So are there times when superintendent decisions should override school level decisionmaking? 

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Mr. OWENS. Thank you, Representative Adams. Certainly, the 

superintendent is the last voice for children at a school district, and 

if they ever exercise their authority to override a school level decision, it should be done based on the best interest of an individual 

child, not in an effort to be in compliance with a Federal regulation. 

Ms. ADAMS. Alright. Thank you very much. I yield back. 

Chairman ROKITA. I thank the gentlelady. Ms. Davis, you are 

recognized for 5 minutes. 

Mrs. DAVIS. Thank you, Mr. Chairman and ranking chairman as 

well. I am very sorry that I missed all of your discussion before 

this. But as a former school board member for nine years, I am just 

trying to understand. Certainly, the situation in San Diego, California is different, for example, then in Oklahoma. 

But it seems that you are asking for a very clear rule on this, 

and at the same time, asking for perhaps no rule, and I wonder if 

you could clarify for me what you feel is absolutely best. 

One of the things I know is that nothing makes people crazier, 

of course, when they are trying to follow the rules and having difficulty with it, and on the other hand you have just from a governance point of view the problem of a school board member who is 

trying to balance out very, very close numbers perhaps, percentages of young people in one group or another who need to be 

served, and it is minuscule in many cases, and yet they are having 

to decide and direct resources. 

How would you do that? Because we are struggling with this, obviously. What needs to be done? How clear or on the other hand, 

how muddled? Which makes more sense? 

Mr. OWENS. Thank you, Representative Davis. In my testimony, 

what we suggest from Oklahoma is that the U.S. Department of 

Education, if the numbers are accurate, and I do not have the capacity to evaluate whether it is 10 percent of schools that would 

be out of compliance with the special rule or 20 percent, I do not 

know what that number is, but if the number is at that 10 percent 

mark, would it not make more sense for the Department of Education to provide individualized special treatment for districts that 

have been identified as not investing an appropriate amount of 

State and local funds in their Title I schools because they received 

Title I funds, rather than passing a sweeping regulation that impacts so many districts that either do not fall under the rule but 

nevertheless have to do the paperwork associated with it to show 

they are in compliance. 

I am king of a simple think, I like analogies, so for me, it is as 

if we are going to buy a new car because we have a flat tire, when 

we could just replace the tire. 

So if we know there is just a small percentage that are out of 

compliance, we should direct our energy and our effort there. 

Mrs. DAVIS. Mr. Sargrad, could you respond as well? Because I 

think the issue that we are all grappling with is how do you limit 

the inequities that children are going to experience because funds 

are either going towards substitute teachers or obviously we have 

teachers who are newer to teaching, and those schools may not be 

getting the funds. Where do you fall on that? 

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53 

Mr. SARGRAD. I think, just to do a different analogy, maybe I 

would say what we want to do is to make sure just like the FDA 

is responsible for ensuring that all food is safe, we want to make 

sure the Federal Government has the responsibility for making 

sure all districts are spending the amount of money in their poor 

schools that those students deserve. 

We do not tell the FDA to not monitor food safety across the 

country because it might only be in a handful of places there is a 

problem. 

I think it is again a critical Federal role to make sure that all 

districts are meeting the responsibility that the law lays out, to say 

they are using the Federal funds to supplement and not supplant 

the local and State dollars. 

Mrs. DAVIS. Anybody else want to comment, especially in terms 

of fairness issues? What is fair? 

Ms. GORDON. Thank you. Thank you for your question, Representative Davis. I think this is exactly the crux of the matter is, 

is this rule, which is in the statute itself, so simple that people do 

not realize it is a rule. 

And so rather than showing – and if you go back to the July 

2015 guidance that the department issued when the language now 

in the law applied under No Child Left Behind schoolwide programs - there was no kind of going back and checking the numbers 

in individual schools, it was about the methodology. 

So this was something Mr. Sargrad described as funds based, but 

it was really about what is the methodology that you are using to 

distribute the funds. It could be you have staffing methodology and 

then you pay the actual salaries of the teachers who wind up in 

the different schools. 

So I would just refer you to that guidance to see how even 

though it is one plain language sentence in the statute, it is an 

auditable standard rather than the rule. 

Chairman ROKITA. The gentlelady’s time has expired. I thank the 

gentlelady. Ms. Fudge, you are recognized for 5 minutes. 

Ms. FUDGE. Thank you, Mr. Chairman. I sit here and listen to 

them talk about congressional intent. I thought the intent of the 

law was equity, that the intent of the law is to at least give every 

child a fighting chance. The intent of the law was to make sure 

every child has an equal opportunity to succeed. That is the intent, 

so I don’t know what – if maybe we were in different meetings, but 

that is my recollection. 

Especially as we look at schools becoming more and more segregated across this country, and as we look at the fact that data 

continues to show that poor kids are getting shortchanged, so I do 

not know what we are fighting about if the real intent of the law 

is equity. I just do not understand for the life of me why if we give 

poor children their fair share, it is a problem. 

Mr. Sargrad, and I am going to use the words of Mr. Owens, he 

indicates that if we give poor children their fair share, the sky is 

going to fall, but his words, and I quote, ‘‘It will destroy the stability within classrooms and amongst schools, and likely lead to the 

elimination of programs and initiatives that increase student and/ 

or parent choice.’’ Do you agree with that? 

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54 

Mr. SARGRAD. Thank you, Ranking Member Fudge. I do not 

agree. I think that these special programs and these additional 

services that Mr. Owens and Dr. Canavero have talked about, career and technical education, arts and physical education, those are 

key and they are just as key for low-income students as they are 

for high-income students. 

So I see no reason why non-Title I schools should have those opportunities and Title I schools should not. 

Ms. FUDGE. Let me further ask this question. For what reason 

would schools not want to give us this information? 

Mr. SARGRAD. I cannot see a reason why they would not want to. 

I think the information is certainly complicated, and I think Congress was right to include new transparency requirements in the 

law around this kind of spending. 

And so, with those requirements, school districts are going to 

need to be more transparent around spending, and that will help 

them comply with this new supplement not supplant requirement. 

Ms. FUDGE. What do you believe the intent of the law was, Mr. 

Sargrad? 

Mr. SARGRAD. I think the intent is very clear, to protect equity 

and improve achievement for all students, and particularly, disadvantaged students. 

Ms. FUDGE. Okay. Dr. Canavero and Mr. Owens, you have both 

testified that the new standard for compliance in the proposed rule 

is unacceptable. I have not heard either of you suggest what an acceptable standard would be. I can assure you it was not Congress’ 

intent to allow compliance with this important requirement to be 

subject to the whims of more than 15,000 school districts. 

So what in your judgment is a satisfactory standard? Dr. 

Canavero and then Mr. Owens. 

Mr. CANAVERO. Thank you, Ranking Member Fudge. You know, 

I go back to some comments that Mr. Owens made in relation to 

the issue and the problem statement that is being attempted to 

solve here through this policy. I do not believe anybody or at least 

I do not disagree that additional funding is necessary and I think 

the track record in our State demonstrates that is something we 

support, and that all students absolutely fundamentally deserve an 

opportunity to succeed and claim those opportunities in the future. 

What would be a reasonable standard, I think, is what you are 

asking. 

Ms. FUDGE. That is the question. 

Mr. CANAVERO. It is related to, I think, honing in, utilizing the 

data that are available, and I tried to find the dataset and I could 

not, I would love to find it if someone can send it to me, utilizing 

the dataset that is available to attack the problem. 

If there is a problem of inequitable spending in 10 percent of the 

school districts, utilizing the very policy and enforcement action 

available to U.S. Ed to get after that— 

Ms. FUDGE. What is the answer? You are reciting the problem. 

What is the answer? Mr. Owens, do you have an answer? 

Mr. OWENS. Thank you, Ranking Member Fudge. I believe that 

is the answer, if the department— 

Ms. FUDGE. And you would do it how? Tell me how you would 

do that if that is the answer. 

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Mr. OWENS. You could use the language from the statute itself 

where the LEA has to demonstrate to the State Department of 

Education that each Title I school received at least as much State 

and local funds as it would have otherwise received absent its status as Title I. 

Ms. FUDGE. Is that not the same thing the rule says? 

Mr. OWENS. Well, the rule has a heavy focus on the spending 

within Title I schools and non-Title I schools as adjusted for personnel or per pupil, and without auditable standards around what 

that looks like, there is confusion at the district level as to how the 

State will interpret. There is confusion at the State level as to how 

the Federal department will interpret. 

Ms. FUDGE. Thank you, Mr. Owens, but what I am hearing you 

saying is what the rule is saying. Thank you so much all of you 

for your testimony. Mr. Chairman, I yield back. 

Chairman ROKITA. I thank the gentlelady. The gentlelady is recognized for her closing. 

Ms. FUDGE. Thank you, Mr. Chairman. I thank you for this hearing today. I thank you all for being here. I would like, Mr. Chairman, to submit for the record a letter from a coalition of 31 civil 

rights education and child welfare organizations in support of the 

department’s original proposed supplement not supplant regulation. 

Chairman ROKITA. Without objection. 

Ms. FUDGE. Thank you, Mr. Chairman. With that, I would just 

suggest this. If in fact the intent is what we have all agreed it is, 

just as we have talked at least from my perspective, then I would 

hope that we would not continue to shortchange students because 

we do not want to fill out a piece of paper. I yield back, Mr. Chairman. 

Chairman ROKITA. I thank the gentlelady. Let me again thank 

the witnesses for their testimony. From my perspective, it is pretty 

clear again what Congress’ intent was. We had these discussions. 

We agreed on a solution. Some amendments were filed. Some were 

successful, some were not. 

What is not at issue here is congressional intent and what the 

law is, regardless of any one person’s or one organization’s or 31 

organizations’ opinion. 

We are either going to live in a country where we all are equal 

under the law, and the law is followed, or we are going to live in 

a country that is dictated by bureaucrats, which one is it going to 

be? We are all after the same goal, and that is equity and that is 

improving the lives of our best and most precious asset, our children. No one disputes that. No one is not trying to get that done. 

And again, we agreed on what the new approach should be, and 

it is nothing at all what the Department of Education is now trying 

to propose and the authority it is trying to usurp. 

I want to go back, again, to this issue of congressional intent. We 

understand that executive agencies are responsible for implementing the laws, not making them. They are not allowed to take 

the plain language of statutes and rewrite it. 

And I want to direct everyone in the room back to the screen. On 

the screen, this came up in my questioning as well, it is the 2012 

recommendation from the Center for American Progress and the 

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American Enterprise Institute. Reading the last half, it says, quote, 

‘‘If districts can document that the manner in which they allocate 

State and local resources to schools is Title I neutral, they should 

be clear of suspicion around supplanting non-Federal funds with 

Title I dollars.’’ Right? 

A left leaning group and a right leaning group came together and 

agreed that this makes sense, why? For the benefit of our children. 

The next slide on the screen is the statutory language from the 

Every Student Succeeds Act that Congress again adopted and the 

President signed in response to this recommendation. It says, 

quote, ‘‘To demonstrate compliance with paragraph one, a local 

educational agency shall demonstrate that the methodology used to 

allocate State and local funds to each school receiving assistance 

under this part ensures that such school receives all of the State 

and local funds it would otherwise receive if it were not receiving 

assistance,’’ ‘‘under this part’’ meaning Title I, close quote. 

And finally, the next slide is the Senate committee report produced by Ranking Member Murray and Chairman Alexander. Most 

of us participated in that conference committee. It explained the 

congressional intent. It says, quote ‘‘Specifically, the bill allows 

States and LEAs to comply with SNS for Title I Part A funds if 

they can document that the manner in which they allocate State 

and local resources to schools is Title I neutral, or that the methodology does not account for the Title I funds that schools will receive,’’ close quote. 

So the statutory language says that the school districts will be 

considered in compliance with supplement not supplant if they can 

demonstrate that the method, to Dr. Gordon’s point, that the method they use to allocate funds does not consider whether or not a 

school receives Title I funds. The statute very specifically does not 

require any particular funding outcome, Mr. Sargrad. That is the 

law. That is what we intended. 

Funding outcomes are not considered here. and there is nothing 

in the statute or the history of this provision to support what the 

department is proposing. 

Again, I want to thank the witnesses for their testimony. When 

we negotiated this final legislative language and the President 

signed it, I thought we were out to a good start. I thought we were 

really breaking ground. I still think that today. I am optimistic. 

The leadership here, by all four of you, is emblematic of that. And 

you are going to be on the front lines of this. 

I do not believe that Washington has better answers than you do, 

especially you, Dr. Canavero, and you, Mr. Owens. You have the 

right intent, you have the right heart and the right brains for this 

kind of work, and the colleagues that you represent. And that is 

what we intended in Congress, is to give you that responsibility 

and that authority back to protect and grow our best assets. 

And that is why we are going to continue this approach, and we 

are going to continue in this oversight phase of ESSA to make sure 

that we remain a country where all of us live under law that were 

passed by this body and not the Executive Branch. 

Thank you very much for your time today. This hearing is adjourned, seeing no other business before it. 

[Whereupon, at 11:43 a.m., the subcommittee was adjourned.] 

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[Additional submissions by Ms. Fudge follows:] 

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[Additional submissions by Mr. Rokita follows:] 

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[Questions submitted for the record follows:] 

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[Dr. Canavero responses to questions for the record follows:] 

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[Ms. Gordon responses to questions for the record follows:] 

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Æ 

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