U.S. GOVERNMENT PUBLISHING OFFICE

30–069 PDF WASHINGTON : 2018

S. HRG. 114–767 

ESSA IMPLEMENTATION: PERSPECTIVES FROM 

EDUCATION STAKEHOLDERS 

HEARING 

OF THE

COMMITTEE ON HEALTH, EDUCATION, 

LABOR, AND PENSIONS 

UNITED STATES SENATE 

ONE HUNDRED FOURTEENTH CONGRESS 

SECOND SESSION 

ON

EXAMINING EVERY STUDENT SUCCEEDS ACT IMPLEMENTATION, 

FOCUSING ON PERSPECTIVES FROM EDUCATION STAKEHOLDERS 

MAY 18, 2016 

Printed for the use of the Committee on Health, Education, Labor, and Pensions 

( 

Available via the World Wide Web: http://www.gpo.gov/fdsys/ 

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COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS 

LAMAR ALEXANDER, Tennessee, Chairman 

MICHAEL B. ENZI, Wyoming 

RICHARD BURR, North Carolina 

JOHNNY ISAKSON, Georgia 

RAND PAUL, Kentucky 

SUSAN COLLINS, Maine 

LISA MURKOWSKI, Alaska 

MARK KIRK, Illinois 

TIM SCOTT, South Carolina 

ORRIN G. HATCH, Utah 

PAT ROBERTS, Kansas 

BILL CASSIDY, M.D., Louisiana 

PATTY MURRAY, Washington 

BARBARA A. MIKULSKI, Maryland 

BERNARD SANDERS (I), Vermont 

ROBERT P. CASEY, JR., Pennsylvania 

AL FRANKEN, Minnesota 

MICHAEL F. BENNET, Colorado 

SHELDON WHITEHOUSE, Rhode Island 

TAMMY BALDWIN, Wisconsin 

CHRISTOPHER S. MURPHY, Connecticut 

ELIZABETH WARREN, Massachusetts 

DAVID P. CLEARY, Republican Staff Director 

LINDSEY WARD SEIDMAN, Republican Deputy Staff Director 

EVAN SCHATZ, Minority Staff Director 

JOHN RIGHTER, Minority Deputy Staff Director 

(II) 

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C O N T E N T S 

STATEMENTS 

WEDNESDAY, MAY 18, 2016 

Page 

COMMITTEE MEMBERS

Alexander, Hon. Lamar, Chairman, Committee on Health, Education, Labor, 

and Pensions, opening statement ....................................................................... 1 

Murray, Hon. Patty, a U.S. Senator from the State of Washington ................... 3 

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 5 

Enzi, Hon. Michael B., a U.S. Senator from the State of Wyoming .................... 46 

Bennet, Hon. Michael F., a U.S. Senator from the State of Colorado ................. 47 

Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia ....................... 49 

Warren, Hon. Elizabeth, a U.S. Senator from the State of Massachusetts ........ 51 

Murkowski, Hon. Lisa, a U.S. Senator from the State of Alaska ........................ 53 

Casey, Hon. Robert P., Jr., a U.S. Senator from the State of Pennsylvania ...... 55 

Cassidy, Hon. Bill, a U.S. Senator from the State of Louisiana .......................... 56 

Murphy, Hon. Christopher, a U.S. Senator from the State of Connecticut ........ 58 

Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode Island ...... 60 

WITNESSES

Garcı ́a, Lily Eskelsen, President, National Education Association, Washington, DC ............................................................................................................. 6 

Prepared statement .......................................................................................... 8 

Weingarten, Randi, J.D., President, American Federation of Teachers, AFL– 

CIO, Washington, DC .......................................................................................... 10 

Prepared statement .......................................................................................... 12 

Evers, Tony, Ph.D., State Superintendent of Public Instruction, Wisconsin 

Department of Public Instruction, Madison, WI ............................................... 14 

Prepared statement .......................................................................................... 15 

Ahart, Thomas, Ed.D, Superintendent, Des Moines Public Schools, Des 

Moines, IA ............................................................................................................. 17 

Prepared statement .......................................................................................... 19 

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

Georgetown University, Washington, DC .......................................................... 22 

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

Marshall, Denise, Executive Director, Council of Parent Attorneys and Advocates, Towson, MD ............................................................................................... 30 

Prepared statement .......................................................................................... 32 

Murguı ́a, Janet, J.D., President and CEO, National Council of La Raza, 

Washington, DC ................................................................................................... 37 

Prepared statement .......................................................................................... 39 

ADDITIONAL MATERIAL 

Statements, articles, publications, letters, etc. 

Response by Lily Eskelsen Garcı ́a to questions of: 

Senator Collins .......................................................................................... 63 

Senator Sanders ........................................................................................ 64 

Senator Whitehouse .................................................................................. 69 

(III) 

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(IV) 

Response by Randy Weingarten, J.D., to questions of: 

Senator Burr .............................................................................................. 70 

Senator Collins .......................................................................................... 71 

Senator Sanders ........................................................................................ 72 

Senator Whitehouse .................................................................................. 75 

Response by Tony Evers, Ph.D., to questions of: 

Senator Enzi .............................................................................................. 76 

Senator Collins .......................................................................................... 77 

Senator Sanders ........................................................................................ 78 

Senator Whitehouse .................................................................................. 83 

Response by Thomas Ahart, Ed.D., to questions of: 

Chairman Alexander ................................................................................. 84 

Senator Collins .......................................................................................... 85 

Senator Sanders ........................................................................................ 86 

Senator Whitehouse .................................................................................. 90 

Response by Nora Gordon, Ph.D. to questions of: 

Chairman Alexander ................................................................................. 92 

Senator Sanders ........................................................................................ 92 

Senator Whitehouse .................................................................................. 93 

Response by Denise Marshall to questions of: 

Senator Collins .......................................................................................... 95 

Senator Sanders ........................................................................................ 95 

Senator Whitehouse .................................................................................. 102 

Response by Janet Murguı ́a, J.D., to questions of: 

Senator Collins .......................................................................................... 103 

Senator Sanders ........................................................................................ 104 

Senator Whitehouse .................................................................................. 107 

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(1) 

ESSA IMPLEMENTATION: PERSPECTIVES 

FROM EDUCATION STAKEHOLDERS 

WEDNESDAY, MAY 18, 2016 

U.S. SENATE, 

COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS, 

Washington, DC. 

The committee met, pursuant to notice, at 10 a.m., in room SD– 

430, Dirksen Senate Office Building, Hon. Lamar Alexander, chairman of the committee, presiding. 

Present: Senators Alexander, Murray, Enzi, Burr, Isakson, Murkowski, Scott, Hatch, Cassidy, Casey, Franken, Bennet, Whitehouse, Murphy, and Warren. 

OPENING STATEMENT OF SENATOR ALEXANDER

The CHAIRMAN. The Senate Committee on Health, Education, 

Labor, and Pensions will please come to order. Senator Murray and 

I will each have an opening statement. Then we’ll introduce our 

witnesses, and Senators will have 5 minutes of questions each. 

I’m delighted to have the witnesses here. This is an extraordinary group of individuals with a broad perspective about children 

in elementary and secondary education, and we welcome your comments on how we implement the new reauthorization of the Elementary and Secondary Education Act. 

This is our third of six hearings to discuss the implementation 

of the Every Student Succeeds Act, which the President signed in 

December. It is the second opportunity for this committee to hear 

from the States, school districts, teachers, principals, and others 

that helped us pass this overwhelmingly bipartisan law and are 

today working together to implement it in a way that’s consistent 

with congressional intent. 

I want to focus my remarks on the administration’s proposed 

supplement not supplant regulation. This is the very first opportunity the administration has to write regulations on our new law. 

In my view, they earned an F. The reason for that is that the regulation violates the law as implemented since 1970 and seeks to do 

it in a way that is specifically prohibited in the new law. 

In writing the new law last year, Congress debated and ultimately chose to leave unchanged a provision in the law referred to 

as comparability. That’s section 1605. This provision says school 

districts have to provide at least comparable services with State 

and local funding to title I schools and non-title I schools. But the 

law plainly states that school districts shall not include teacher pay 

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when they measure spending for purposes of comparability. That’s 

been the law since 1970. We didn’t change it last year. 

There is an entirely separate provision, known as supplement not 

supplant that’s intended to keep local school districts from using 

Federal title I dollars as a replacement for State and local dollars 

in low-income schools. What the Department’s proposed supplement not supplant regulation attempts to do is to change comparability by writing a new regulation governing supplement not 

supplant. 

In other words, their proposal would force school districts to include teacher salaries in how they measure their State and local 

spending, and would require that State and local spending in each 

title I school be at least equal to the average spent in non-title I 

schools. The effect of this would be to violate the law as implemented since 1970, section 1605. So the administration may get an 

A for cleverness, but an F for following the law, in my opinion. 

The negotiated rulemaking committee couldn’t agree on the proposal, and at least one member, Tony Evers, a witness here today, 

said that, ‘‘congressional intent isn’t necessarily being followed 

here.’’ Last week, the nonpartisan Congressional Research Service 

said the same thing. 

CRS issued a report that said, ‘‘The Department’s interpretation 

appears to go beyond what would be required under a plain language reading of the statute.’’ CRS found that the proposed supplement not supplant regulations, ‘‘appear to directly conflict,’’ with 

statutory language that, ‘‘seems to place clear limits on the Department’s authority and thus raises significant doubts about the Department’s legal basis for proposed regulations.’’ 

Today, I am looking forward to hearing from witnesses whether 

what I have been hearing from principals, teachers, and education 

leaders across the country is true. Here’s what I’ve been hearing: 

No. 1, that the Department’s proposed regulation could turn upside down the funding formulas of almost all the State and local 

school systems across the country. 

Most States and local districts allocate K through 12 funding to 

schools based on staffing ratios. This often results in different 

amounts going to different schools in the same district because 

teacher salaries vary from school to school for reasons having nothing to do with a school’s participation in title I. Instead, salaries 

vary because of teacher experience, merit pay, or the subject or 

grade level they teach. 

No. 2, I’ve been hearing that the proposed regulation could effectively require wholesale transfers of teachers and the breaking of 

collective bargaining agreements. 

No. 3, I’ve been hearing that school districts won’t receive enough 

funds to comply with the proposed regulation. 

No. 4, that students could be forced to change schools. 

No. 5, that the proposed regulation could increase the segregation of low-income and high-income students. 

And, No. 6, that it could require States and local school districts 

to move back to the burdensome practice of detailing every individual cost on which they spend money to provide a basic educational program to all students, which is exactly what we were 

trying to free States and districts from when we passed the law. 

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According to the Council of Great City Schools, the proposed reg- ulation would cost $3.9 billion a year just for their 69 urban school 

systems to eliminate the differences in spending between schools. 

What the Department has done for the first time is try to put together the two major provisions of the law that have always been 

separate. 

On comparability, which is the first one, members of this committee discussed and debated changing this provision. We discussed it at great length over the past 6 years. Senator Bennet of 

Colorado, who has lots of experience with this, had one proposal. 

I had another. We ultimately decided not to make changes in comparability. 

Instead, we included more transparency in the form of public reporting, on the amount districts are spending on each student, including teacher salaries, so that parents and teachers know how 

much money is being spent and can make their own decisions 

about what to do, rather than the Federal Government mandating 

it be used in comparability calculations. 

Then on the second provision in the law, on supplement not supplant, we addressed this provision and made changes with an effort 

to simplify the law, not make it more complicated. By no stretch 

of the imagination did we intend—does any of the language in the 

law say that supplement not supplant may be used to modify the 

comparability provision. In fact, we specifically prohibited that. 

We prohibited, expressly, the Secretary from requiring local 

school districts to identify individual costs or services as supplemental. We prohibited the Secretary from prescribing any specific 

methodology that districts use to distribute State and local funds. 

And, most importantly, we prohibited the Secretary from requiring 

a State, local school district, or school to equalize spending. 

The proposed regulation is nothing less than a brazen effort to 

deliberately ignore a law that passed the Senate 85 to 15, passed 

the House 359 to 64, and was signed by the President. No one has 

to guess what the law says. As the Congressional Research Service 

says, we can just read its plain language. And if the administration 

can’t follow language on this, it raises grave questions about what 

we might expect from future regulations. 

Senator Murray. 

OPENING STATEMENT OF SENATOR MURRAY

Senator MURRAY. Thank you, Chairman Alexander, for holding 

this hearing. I really appreciate all of our witnesses for taking the 

time to be here with us today. 

Last year, Chairman Alexander and I worked together on legislation to fix No Child Left Behind. We both agreed—in fact, nearly 

everyone across the country agreed—that the law had been badly 

broken. I’m proud that we were able to break through that partisan 

gridlock in Congress, find common ground, and pass the Every Student Succeeds Act with strong bipartisan support. 

At its heart, the Nation’s primary elementary and secondary education law is a civil rights law. And it is in that spirit that I, along 

with my colleagues, worked to help make sure all students will 

have access to a quality education, regardless of where they live, 

how they learn, or how much money their parents make. Now that 

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our law is on the books, I am committed to making sure it helps 

our students and our parents and our teachers and our schools in 

my home State and across the country. 

As a reminder, here’s what our education law does. The Every 

Student Succeeds Act gives States more flexibility. But it also includes strong Federal guardrails for States as they design their accountability systems. It preserves the Department’s role to implement and enforce the law’s Federal requirements. It also reduces 

reliance on high-stakes testing. And it makes significant new investments to improve and expand access to preschool for our Nation’s youngest learners, to name just a few provisions in the law. 

Right now, the Department of Education and States are taking 

this law from legislative text to action steps. While the Department 

goes through this process and as States develop new systems and 

policies, I will continue to closely monitor several issues to make 

sure our law lives up to its intent to provide all students with a 

high-quality education. 

I expect the Department to use its full authority under the Every 

Student Succeeds Act to hold schools and States accountable. While 

we were writing this law, we were deliberate in granting the Department the authority to regulate on the law and hold schools and 

States accountable for education. That includes things such as 

making sure States and districts take action every year to improve 

student achievement in any school that has groups of students who 

are struggling. 

I will be taking a close look at any guidance or regulations from 

the Department for school intervention and supports. Those things 

will be critical to helping low-performing schools improve. One important part of holding schools and States accountable for educating every child is fiscal accountability. 

I hear from teachers and principals in my home State of Washington about how important Federal funding is to supporting their 

work. We need to make sure Federal investments in education support State and local resources and do not simply replace them. The 

regulation, known as supplement not supplant, is an important fiscal accountability measure, and it is important to get this right. 

Many stakeholders, including teachers, administrators, and civil 

rights groups have provided thoughts on how to regulate in this 

area. I hope that as the process moves forward, the Department 

will continue to work with these groups on this issue. 

Collaboration will be critical, not just for one particular regulation or another, but throughout the process to implement the Every 

Student Succeeds Act. Getting input from teachers, civil rights 

groups, parents, and many more will be essential in making sure 

the law works in the coming months and years. 

I’ve been frustrated to hear from many stakeholders that they 

don’t feel like they have a seat at the table as their States work 

on implementation. That includes teachers who aren’t receiving 

time off of work to be part of State planning sessions and parents 

who can’t attend meetings held during the workday. 

I, along with Ranking Member Bobby Scott in the House, have 

asked the Department to help States and districts eliminate the 

systemic barriers that stakeholders face in getting involved in the 

implementation process. I’ll continue to encourage stakeholders like 

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5 

all of those represented here today and many more to stay active 

and make their voices heard throughout the implementation process. 

It is up to all of us to uphold the legacy and promise of our Nation’s primary education law so it works for all students. I look forward to hearing from everyone today on how we can make sure 

that this law helps provide a good education for every child. 

Thank you. 

The CHAIRMAN. Thank you, Senator Murray, and thanks to you 

and the other members of the committee for your hard work on this 

legislation. 

I am pleased to welcome seven witnesses to our hearing today. 

Thank you to each of you for coming and for all you’ve done to help 

improve the education of the Nation’s children. 

Senator Hatch, a former chairman of this committee, will now introduce our first witness, who is Ms. Lily Eskelsen Garcı ́a, President of the National Education Association. 

Senator Hatch. 

STATEMENT OF SENATOR HATCH

Senator HATCH. Thank you, Mr. Chairman. I appreciate this opportunity, and I’m pleased to be here today and grateful that we 

could be joined by a true leader in education policy, Lily Eskelsen 

Garcı ́a. I consider myself lucky to know Lily and even luckier to 

call her a friend. It’s truly an honor to introduce her to the committee today. 

Ms. Eskelsen Garcı ́a has had a remarkable path in education. 

She began her career as a cafeteria worker and later became an 

aide to a special education teacher. And as a young mother, she 

worked her way through the University of Utah where she graduated magna cum laude with a bachelor’s degree in elementary 

education and later earned a master’s degree in instructional technology. 

Ms. Eskelsen Garcı ́a eventually taught fourth, fifth, and sixth 

grades at Orchard Elementary in the Granite School District in 

Utah. While in Utah, she also worked with homeless children in a 

single classroom, mentored student teachers, and acted as a peer 

assistant team leader. After demonstrating her effectiveness in the 

classroom, Ms. Eskelsen Garcı ́a was named Utah Teacher of the 

Year in 1989. 

Ms. Eskelsen Garcı ́a’s passion for education extended beyond the 

classroom and eventually led her to a career in policymaking. She 

served as president of the Utah Education Association before joining the National Education Association, where she has served as 

a leader since 1996. 

In 2014, she was elected to serve as the president of the NEA. 

She was instrumental in helping Congress pass the Every Student 

Succeeds Act, and I am sure she will be equally helpful as we work 

to implement this groundbreaking legislation. 

ESSA represents a momentous opportunity for students and 

teachers alike by removing many of the overbearing Federal policies that stifled classroom instruction in the past. This new law allows educators more room to innovate and tailor their teaching to 

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6 

sable role Ms. Eskelsen Garcı ́a played in helping this reform become a reality. 

Ms. Eskelsen Garcı ́a, we really welcome you to today’s hearing 

and look forward to your guidance on the questions at hand. And 

I just want to personally testify how much I appreciate what you’ve 

done with your life. Thank you so much. 

The CHAIRMAN. Thank you, Senator Hatch. 

I’ll now introduce the other witnesses, and then beginning with 

Ms. Eskelsen Garcı ́a, we’ll ask you each to summarize your views, 

if you can, in about 5 minutes, and that will leave time for Senators to engage in a conversation and ask questions. 

Our second witness is Ms. Randi Weingarten. Ms. Weingarten is 

the current president of the American Federation of Teachers 

which represents 1.6 million members nationwide. Prior to that, 

she served for 12 years as president of the United Federation of 

Teachers, AFT Local 2. 

Our third witness is Dr. Tony Evers. We’re getting accustomed 

to seeing him here. Welcome, Dr. Evers. He is the Wisconsin State 

Superintendent of Public Instruction. He serves as president of the 

Board of the Council of Chief State School Officers and served on 

the Department of Education’s recent negotiated rulemaking panel 

for regulations on the Every Student Succeeds Act. 

Our fourth witness is Dr. Thomas Ahart. He is the superintendent of Des Moines Public Schools in Iowa. He also served on 

the Department of Education’s recent negotiated rulemaking panel 

for regulations on the Every Student Succeeds Act. 

Our fifth witness, Dr. Nora Gordon, is associate professor in the 

McCourt School of Public Policy at Georgetown University. Her research focuses on the economics of education and fiscal federalism. 

Next we’ll hear from Ms. Denise Marshall. Ms. Marshall serves 

as executive director for the Council of Parent Attorneys and Advocates. She has over 30 years of experience working and advocating 

in the field of disabilities. 

Our final witness is Ms. Janet Murguı ́a. She is president and 

chief executive officer of the National Council of La Raza. She advocates for the Latino community in areas including education, 

workforce, and civic engagement. 

Thank you each for being here. 

Ms. Eskelsen Garcı ́a. 

STATEMENT OF LILY ESKELSEN GARCI ́A, PRESIDENT, 

NATIONAL EDUCATION ASSOCIATION, WASHINGTON, DC 

Ms. ESKELSEN GARCI ́A. Thank you so much. 

And thank you, Senator Hatch. I appreciate that introduction. 

I am president of the 3 million member National Education Association. But more important than that, I am a sixth grade teacher, 

and not only that. I’m a really, really good sixth grade teacher. I 

give myself goose bumps. I’m amazing. 

I have spent the last 13 years fighting against what I saw as a 

cloud of test and punish that was hanging over every public school 

in the United States of America, and I cried for joy the entire day 

that the President signed the new law, Every Student Succeeds. 

That day would not have come without the leadership of Senator 

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ing you and thanking all of your colleagues for making that day 

possible. 

I have about 14 hours worth of really good advice to give you. 

They told me I have 5 minutes, so I will talk really, really fast. 

No. 1—and I cannot stress this enough—I am a really good 

teacher. You should really listen to me. I mention that because I 

remember I was in my classroom at the Salt Lake homeless shelter, in a one-room classroom, a K–6 classroom, in the shelter when 

Congress was debating the passage of this thing called No Child 

Left Behind. I just was beside myself thinking, ‘‘Wait a minute. 

One hundred percent of our kids are going to hit a cut score on a 

standardized test? That’s not even possible.’’ 

I remember thinking, ‘‘Did anyone stop to ask a working classroom teacher how we made out a report card, how we measured 

success? Did anyone stop to ask a working classroom teacher what 

might be the unintended consequences of high-stakes testing on 

our most vulnerable students, like the students I was teaching?’’ 

For me, a huge part—and the first thing I want to talk about— 

is the fact that in this new law, States and districts must engage 

the people who know the names of the students. It says over and 

over again that you have to include the educator’s voice in developing that dashboard of indicators and how we’re going to be measuring student success. 

Some folks in States are going to respect that, and some folks 

aren’t. We’re already hearing back where someone—an educator is 

asked to sit on a committee, but they meet during the school day, 

and they don’t provide a substitute teacher. Or you put an educator 

on a committee, and she has to drive 3 hours to the meeting, and 

there’s no reimbursement for her gas to get to the meeting. 

We know that it’s possible to do it right. We’re hearing good 

things from places like Oregon. The Oregon Education Association 

knocked at the door, and folks on the State level said come on in, 

and they’re at the table, and they’re making amazing things happen very collaboratively. Then you go to New Mexico, where our 

NEA New Mexico affiliate knocked on the door, and the door was 

slammed in their faces, and they said, ‘‘We don’t need you.’’ 

So we’re going to have this implemented in very different ways 

across the country. We have so much hope that if our voices are 

in the room, we will get something really good out of this much better law, and we hope that you will continue to encourage those 

State leaders to abide by the law you passed and welcome the educators to the table. 

No. 2, you cannot possibly imagine how excited we are about better data, better information, aside from that one-size-fits-all standardized test, to have that dashboard of indicators we believe is 

going to be the game changer for our students. The original 1965 

ESEA did give school districts some important resources for title I 

schools and other programs to help fill that resource gap that was 

so obvious among schools that had so much and schools that had 

so little, depending on what zip code you were in. But it was never 

meant to take over the primary responsibility of State and local 

government for running our schools. 

The Federal Government’s role in ESSA is still to assist. But 

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8 

ernment is to require that we have better data, more complete 

data, that transparency that the community deserves so everyone 

can see whether all students have that equal opportunity to learn, 

and where it is unequal, what the State and the local school district plan to do about it. That needs to be on the table. 

We’re thrilled that everyone seems to be using the word, equity. 

That was what we feel like we got away from, looking at the equitable resources that are given our most vulnerable students. But, 

finally, I do want to say that even though we’re all using that 

word, Governors, the Department of Education, the unions, and 

certainly Congress in putting it in the law, we’re defining it sometimes in very different ways. 

We think you did a very good thing in spelling out in the law 

that school districts have flexibility in how they’re going to report 

what services are being provided to our students. You rejected that 

continuation of a one-size-fits-all number; that there’s only one way 

to judge this. We think it’s very good, and so we’re very worried 

at the proposals of the Department of Education that appear to 

take away that flexibility. 

I need to say this very clearly. We support the new reporting element that requires all public schools to report their actual perpupil expenditures, local, State, and Federal, disaggregated by personnel and non-personnel. That’s an improvement. That gives better transparency. 

But we also know that we’re seeing popping up around the country some very creative programs in giving services to students. If 

all you’re doing is counting those specific dollars spent by education 

departments, you’re going to miss some services that are provided 

in a community school concept, maybe by social services. You might 

not count some of the services that are provided by a Boys and 

Girls Club. 

The CHAIRMAN. Excuse me for interrupting, but I want to make 

sure everyone has their 5 minutes. Go ahead and wind up. 

Ms. ESKELSEN GARCI ́A. Winding up right now. If you’re just 

counting dollars that a district makes in teacher placement decisions based on the specific salary or benefits costs so that things 

look—you’re going to worry about things looking equal instead of 

saying, ‘‘Are we actually giving services to our students?’’ All we’re 

saying is why in the world would you want to cutoff reasonable 

flexibility that a district might have in giving something creative 

and meaningful to our students and discourage districts from finding those creative solutions. We hope that you will make your intent crystal clear. 

In closing, I would just say we are ready, willing, and able to find 

those creative solutions. We’re excited about being at the table, and 

we appreciate you giving us the chance to show you what we can 

do. 

[The prepared statement of Ms. Eskelsen Garcı ́a follows:] 

PREPARED STATEMENT OF LILY ESKELSEN GARCI ́A

Thank you Chairman Alexander, Senator Murray, and members of the committee 

for inviting me to join you today. 

My name is Lily Eskelsen Garcı ́a and I am an elementary school teacher from 

the great State of Utah. I also have the honor and the privilege of representing 3 

million educators as president of the National Education Association. 

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Classroom educators, across the country, welcome the Every Students Succeeds 

Act (ESSA) as a critical juncture in education—a chance to reduce and eliminate 

opportunity gaps and inject the expertise of educators into decisions that impact 

teaching and learning in the classroom. Much as we were committed to the passage 

of this law and ending the era of test and punish, our members stand united on 

ensuring that we make the best decisions for students as States and districts move 

forward with the important work of implementation. 

ESSA has already reinvigorated the national conversation about equal opportunity for all our students, no matter what zip code they live in. But that is not 

enough. I will focus today on what we must do to fulfill ESSA’s potential to be a 

game changer with regard to accountability, State and local flexibility, and doing 

right by the students most in need. 

ESSA is a civil rights law, so the renewed focus on equity and closing opportunity 

gaps is important. ESSA is also a major course correction from the stifling Federal 

overreach of No Child Left Behind—a critical opportunity for all stakeholders in 

education to participate meaningfully in making the decisions at the State and district level. 

While we welcome this approach—and believe it is necessary—the process of cocreating such plans through meaningful dialog will be demanding and complicated. 

Stakeholder engagement and planning will need to happen at the Federal, State, 

and district level simultaneously, and will require really listening to the concerns 

of different stakeholders. Everyone involved will need to stretch muscles that 

haven’t been used in quite some time if we are to arrive at solutions that work for 

our students. 

The undertaking will be hard but more than justified by the result: advancing equity for all our students. For the first time, students’ access to opportunities and 

resources will be systematically tracked. New State-developed accountability systems, which will be fully implemented in the 2017–18 school year, must include at 

least one indicator of school success or student support. Determining which indicators to measure and capturing that data will push States to identify and begin closing opportunity and resource gaps to the benefit of all students—especially those 

that have been historically underserved. Parents, teachers, and other stakeholders 

can use the indicators as an additional tool to advocate for change at the State and 

local level. 

ESSA also empowers educators and students to return their focus to teaching and 

learning in the classroom—it encourages States and districts to right-size the 

amount of testing and explore alternatives to standardized tests. As an educator, 

I believe that every student deserves access to a curriculum that is broad and rich 

in content—not just reading and math, but the arts, physical education, civics, 

hands-on career and technical education, and more. 

Making that a reality is easier said than done, of course. That is where ESSA 

comes into play, and why implementing the new law as Congress intended is so important. 

Resources are key and there are only so many of them. Federal dollars are intended to ‘‘supplement, not supplant’’ the use of State and local dollars for the students most in need—the reason the Federal Government got involved in public education in the first place. However, we continue to have concerns with the proposal 

the U.S. Department of Education offered during the negotiated rulemaking process. 

Districts should have the flexibility to develop a methodology that shows Federal 

dollars are supplemental to their efforts. At the same time, we want to ensure that 

students are getting access to the services and programs they need, regardless of 

their zip code. Therefore we strongly support the new reporting element that will 

require all public schools to report actual per pupil expenditures of Federal, State 

and local funds (disaggregated by personnel and non-personnel). This is a significant 

improvement that will provide the transparency that was lacking under NCLB. 

At this critical juncture, the devil is in the details. Those details are complex, as 

is our mission: developing new State accountability systems built around multiple 

measures, not just standardized test scores. For ESSA to fulfill its potential to be 

a game changer for students, the new accountability systems must be developed collaboratively, with the input of all stakeholders. That approach is the only way to 

ensure stakeholders’ commitment and buy-in. 

Educators must have a seat at the table, along with parents and other stakeholders. Together, we will determine key elements of the new accountability systems—how much tests count, what tests could be eliminated, and which indicators 

of student or school support to use. Together, we will determine who conducts school 

needs assessments, what interventions look like, and more. 

Other concerns include some of the U.S. Department of Education’s regulatory 

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tempts to circumvent congressional intent could create ripples that extend far beyond the regulations to which they pertain—specifically, a chilling effect that discourages States and districts from thinking creatively or being proactive. That, in 

turn, could undermine the promising new paradigm that ESSA represents. 

Settling these issues will take time and demand patience. That is to be expected, 

given the far-reaching nature of the changes we are making and the complexity of 

the issues we are addressing. In Oregon, for example, there has been a multi-year 

collaborative dialog on what testing should look like for students and how test results should be used. Several States are setting up task forces and listening sessions. The best conversations revolve around this central question: What type of 

schools do we want for our students? 

These experiences have taught us a lot about what it means to involve stakeholders in meaningful ways, the benefits as well as the barriers. We know that including educators at the decisionmaking table is critical—it is the voice of classroom 

practitioners that has been missing for the last 14 years. It is also critical for the 

educators at the table to get the respect and buy-in from other educators in the 

State. In addition, we need to make sure that States and districts are doing everything in their power to reduce barriers to educators’ participation in the process— 

for example, ensuring that they are given release time and helping to cover their 

travel expenses. We want to express our appreciation for the letter that Senator 

Murray and Representative Scott sent last week to Secretary King raising these 

very issues. 

We also want to keep the pressure on the way-too-many States that are telling 

their educators nothing needs to change as a result of ESSA. This is not what anyone had in mind when ESSA was signed into law. 

Those who know our students best—their parents and their educators—must have 

a meaningful say in what schools, districts and States are held accountable. We 

need to learn from the past, not repeat mistakes such as No Child Left Behind’s 

one-size-fits-all approach to accountability, the inequities of Race to the Top, or 

tying teacher evaluations to poorly designed tests that are neither valid nor reliable. 

ESSA has opened window to a new direction for students and schools. While that 

path is challenging, with challenge comes opportunity—and responsibility. 

For ESSA to become the game changer Congress intended it to be, the Department of Education, States, and school districts must live up to their end of the bargain. Educators and other stakeholders must stand up, speak out, and advocate for 

their students. And all of us must insist on keeping the focus where it belongs: on 

equity and opportunity for all students, no matter what zip code they live in. 

The CHAIRMAN. Thank you. 

Ms. Weingarten. 

STATEMENT OF RANDI WEINGARTEN, PRESIDENT, AMERICAN 

FEDERATION OF TEACHERS, AFL–CIO, WASHINGTON, DC 

Ms. WEINGARTEN. Thank you. My name is Randi Weingarten. I 

am President of the AFT, and it is my privilege to be here to talk 

about our views on the implementation of ESSA. But I do want to 

start where my colleague and friend, Lily Eskelsen Garcı ́a, started 

with as well, which is I cannot thank this committee and, particularly, Senator Alexander and Senator Murray enough for listening 

to parents and practitioners and helping to navigate this bill to law 

and to break the gridlock in DC to enact ESSA. We need to thank 

you over and over again on that issue. 

What I wanted to discuss was the promise of ESSA, but I’ll focus 

my comments on the regulatory process, particularly on what the 

U.S. Department of Education has released so far on ESSA’s ‘‘supplement, not supplant’’ provisions and what we anticipate will be 

released on accountability systems. 

We at the AFT view these policy details through the lens of 

whether they both work in America’s classrooms and reflect the 

voices of educators. I, particularly, today am speaking with two 

decades of experience in the largest school district in the United 

States where we actually had to deal and had to work through and 

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make sure equity mattered in terms of some of these provisions. I 

am particularly pleased that Senator Murray and Representative 

Scott, as Senator Murray has already referred, reiterated the priority that getting the voices of practitioners and parents in this implementation is absolutely critical. 

Unfortunately, in its first regulatory action on the proposed supplement not supplant rules, the Education Department demonstrated that it was neither listening to stakeholders nor following the framework of the legislation. Instead, by conflating, as 

Senator Alexander has already said, the supplement not supplant 

and comparability policies, the Department seems to be pushing or 

pursuing an agenda that was rejected in the legislative process. 

The pursuit of both equity and excellence for our children is part 

of the AFT’s DNA, and there are several ways to do this. One is 

through full funding of title I, something we will keep fighting for 

through this appropriations process. I would suspect that almost 

anyone involved in education would be fighting to level up spending rather than level down spending so that schools currently 

spending the least could be made whole. 

In addition, ESSA continues important equity safeguards so 

States cannot deny disadvantaged children the additional funding 

that the Federal Government has provided to level the playing 

field. That includes the maintenance of effort provisions as well as 

the SNS provisions as well as the way in which the title I formula 

is currently structured, all of which we fought very hard for, as all 

of you know. 

This is why I disagree with the Department’s supplement, not 

supplant proposal. The Department essentially, as Lily said, wants 

to make dollar for dollar comparisons rather than what happens 

right now. This is what that means in practical terms. Right now, 

principals have a number of teachers they can hire based on positions rather than an exact dollar amount they can spend. If that 

changes, then a teacher’s salary and benefits is what will determine whether the teacher gets hired, whether the teacher gets retained, or whether the teacher gets transferred, not anything else, 

not what the school needs to run a program, not what the school’s 

particular programmatic focus is, not the needs of school children. 

What will happen is that some schools will face cuts that will 

compel them to make no-win choices about which teachers they 

keep or they hire. Dollar for dollar comparisons—I can talk about 

this for hours, because I’ve lived this. Dollar for dollar comparisons 

in a district can even be thrown off by something as simple as how 

many teachers in each school have individual health coverage as 

opposed to family coverage, the difference between $5,000 for coverage versus $20,000 for coverage. 

These types of unintended consequences are major disruptions 

that have nothing to do with equity or opportunity. When you force 

districts to count exact spending in a school, their goals get lost in 

translation. We cannot equalize spending that way. 

Finally, we are concerned that the Education Department will 

take the level of prescription it has proposed for supplement not 

supplant to the upcoming regulations on school and district accountability systems. This could strip the flexibility necessary to 

create accountability systems that envision new ways to define and 

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measure learning, as opposed to the current and far too restrictive 

and counterproductive focus on test scores. 

The promise of ESSA lies in the opportunity for States, with 

broad stakeholder input, to create robust systems of accountability, 

that we define how we measure learning so that learning is really 

about learning, not simply math and English test scores. 

Thank you very much. I’m sorry I went over by 34 seconds. 

[The prepared statement of Ms. Weingarten follows:] 

PREPARED STATEMENT OF RANDI WEINGARTEN

Good morning. My name is Randi Weingarten, and I am president of the American Federation of Teachers (AFT). On behalf of the AFT’s 1.6 million members, it 

is my privilege to be here today to represent our views on the implementation of 

the Every Student Succeeds Act (ESSA). I will focus my comments today on the regulatory process, particularly on what the U.S. Department of Education has released 

so far on ESSA’s supplement-not-supplant provisions and what we anticipate will 

be released on accountability systems. 

As Washington policymakers wrangle with the details of this law, the AFT views 

these details—those sorted out in both last year’s legislative process and this year’s 

regulatory process—through the lens of whether they are workable in America’s 

classrooms and reflect the voices of educators. Senator Patty Murray and Representative Bobby Scott recently reiterated this priority in a joint letter to the Administration. The regulatory process is the process through which ESSA enables States— 

informed by the collective wisdom of those who help kids every day—to shape their 

education systems to create great environments for teaching and learning, not testing, particularly for disadvantaged children. 

Unfortunately, in its first regulatory actions—on the proposed supplement-notsupplant rules offered during negotiated rulemaking—the Education Department 

did not demonstrate that it was either listening to stakeholders or following the 

framework of the legislation. Instead, by conflating supplement-not-supplant and 

comparability, the Department is pursuing policy in rulemaking that was either rejected or barred in the legislative process. 

The AFT believes in both equity and excellence, and there are several ways to accomplish this. One is through full funding of title I, something we will keep fighting 

for through the appropriations process. AFT members, and most people involved in 

the education of children, would love to have a discussion about ‘‘leveling up’’ spending (rather than ‘‘leveling down’’), so that those schools currently spending the least 

could be made whole. 

When it comes to equity, ESSA continues important safeguards—something we 

fought hard for as we fought against the portability proposals. These include the existing supplement-not-supplant and the maintenance-of-effort provisions. These protections are in place so States cannot do a bait and switch to deny disadvantaged 

children the additional funding that the Federal Government has provided to level 

the playing field. 

The policy details of supplement-not-supplant seem complicated, but the basic 

ideas are simple: Federal education funding slated for needy students should be provided in addition to, not instead of, State and local dollars. We agree. In places like 

Detroit, for example, we would be in so much better shape than we are now if the 

Federal Government just stuck to ensuring that this basic provision was adhered 

to. 

What makes supplement-not-supplant complicated is that the Education Department is pursuing changes that it wanted, but didn’t get, in the law itself. When 

Congress passed ESSA, it made no changes to the existing rules and regulations 

around comparability—a fiscal requirement similar to supplement-not-supplant, 

though focused on funding between schools. What the Department wants is a dollarfor-dollar comparison between schools. It is trying to achieve in regulations the policy it failed to get in legislation. 

What would the draft regulations mean in practical terms? A lot. Right now, principals have a number of teachers they can hire based on positions, rather than a 

dollar amount they can spend. We don’t want a teacher’s salary and benefits to keep 

him or her from getting hired, just like we don’t want a teacher’s salary and benefits 

to force him or her to be transferred. 

Will schools have the latitude to make staffing decisions—like how many experienced teachers they retain or how many new teachers they hire—based on their own 

needs? Or will Federal policy force the leveling down of funding, so some schools 

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face budget cuts that compel them to make no-win choices about which teachers to 

keep or hire? 

Here are a couple of examples of how this can play out at the district and school 

levels: 

• Sometimes schools expand, for example from K–5 to K–8. In such cases, they 

generally hire new teachers to cover the expansion. Other schools in the district 

shouldn’t have their staffing cut so as to average out with the school that has expanded. 

• Sometimes districts create specialized programs in one school, such as a dualimmersion language program. By necessity, such programs hire staff with specialized backgrounds or credentials—for example, professionals who are new to teaching 

but whose backgrounds and skills are particularly appropriate for the new program. 

Again, schools with specialized programs should not have to ‘‘level down’’ the 

amount spent on their programs to ensure equal spending across a district. 

• Dollar-for-dollar comparisons in a district can even be thrown off by something 

as simple as how many teachers in each school have individual health insurance 

coverage rather than family coverage. 

These types of unintended consequences are major disruptions that have nothing 

to do with equity and opportunity. When you force districts to count exact spending 

in a school, the goals get lost in translation. We cannot equalize spending without 

creating winners and losers; it will result in some schools having to give up resources, services or staff in order for others to gain. That’s neither equitable nor 

sensible. 

Comparable spending in schools has been a critical way to ensure equity in school 

spending over the years. It makes sense that you’d want districts to spend the same 

amount on all its kids—regardless of whether they go to school in a rich neighborhood or a poor one. 

But the goal is equitable, not equal, spending, and that’s something unions have 

spent decades bargaining for. That’s why, when the education law was being negotiated in Congress last year, the AFT fought to make sure this standard of comparability was preserved. And it’s why we are so concerned about the attempt to 

legislate through the regulatory process. 

The legality of the proposed regulations is also in question. A recent legal analysis 

by the Congressional Research Service found that ‘‘a legal argument could be raised 

that ED exceeded its statutory authority if it promulgates the proposed SNS rules 

in their current form.’’ 

What is perhaps most concerning about the proposed regulations? It is that the 

Education Department will take the level of prescription it has proposed for supplement-not-supplant to the upcoming regulations on school accountability systems. 

This could strip the law of the flexibility necessary to create accountability systems 

that envision new ways to define and measure learning—ways that help the whole 

child, as opposed to the current and far too restrictive and counterproductive focus 

on test scores. The promise and opportunity of ESSA was in the opportunity for 

States, with broad stakeholder input, to create robust systems of accountability that 

measure school success beyond reading and math test scores. 

We are worried that the Department’s actions on supplement-not-supplant signal 

that it will try to restrict the weights that States can put on different measures in 

their accountability systems, that it will attempt to impose rules around the 95 percent participation requirement that go well beyond the letter of the law, or that it 

will very narrowly define terms such as ‘‘significant’’ or ‘‘evidence-based’’ that were 

carefully negotiated by Congress to provide States latitude to decide what is best. 

It is apparent from ESSA’s unprecedented prohibitions against the secretary of 

education overreaching on policy that parents, communities and educators are not 

interested in having highly prescribed rules and mandates for preK–12 education 

from the Federal Government. And, as evidenced by the persistence of the opt-out 

movement, this has not changed since ESSA was enacted. 

Frankly, this is not an auspicious beginning, and ESSA’s unprecedented prohibitions against overreaching by the Education Department were intended to curb this 

type of action. Equally concerning, the Department’s actions run the risk of squandering all the goodwill that ESSA created. Now is the time for the Department to 

help and enable, not restrict and prescribe. 

This is happening at the very time stakeholders are beginning the process of developing these new education systems. The Education Department’s overreaching 

draft regulations, especially if they are a harbinger of what is to come in the way 

of accountability, will undermine the potential of ESSA before it ever has a chance 

to be implemented. 

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I would like to thank Senator Alexander for remaining so vigilant on this issue 

and working to make sure that ESSA is appropriately implemented. 

The CHAIRMAN. But it was an enthusiastic 34 seconds. Thank 

you, Ms. Weingarten. 

Dr. Evers. 

STATEMENT OF TONY EVERS, Ph.D., STATE SUPERINTENDENT 

OF PUBLIC INSTRUCTION, WISCONSIN DEPARTMENT OF 

PUBLIC INSTRUCTION, MADISON, WI 

Mr. EVERS. Thank you, Chairman Alexander and Ranking Member Murray and the members of the committee, for allowing me to 

testify today. It’s good to be back. I’m back again. 

I highlighted in previous testimony before this committee, State 

and local leaders are committed to making sure that all kids 

achieve at the highest level. Under No Child Left Behind, overly 

prescriptive Federal mandates left States and local districts without the ability to tailor strategies to meet the needs of their kids. 

As a lifelong educator, I believe that we must learn from our mistakes. We have the Every Student Succeeds Act which gives us a 

chance to move our State and local education systems forward in 

ways that are impactful. But in doing so, we have to admit and recognize that ESSA is a landmark piece of civil rights law and one 

that presents us with the opportunity to see our challenges with 

new eyes in the hopes of finding solutions that make a difference 

for kids. 

Last week, I sent invitations to convene a primary advisory 

group, the Wisconsin Equity and ESSA Stakeholder Council. To 

identify members of this group, I reached out to national civil 

rights organizations and groups that have not traditionally focused 

exclusively on K through 12 issues. We have a joint education related organization, parents, legislators, teachers, and others, to advise on the State plan which will help districts increase the opportunities for all kids. 

I told prospective members of this council in their invitation, we 

need a diversity of experience and expertise if we are going to be 

successful in closing one of the Nation’s largest achievement gaps, 

and that is in the State of Wisconsin. In addition to this council, 

Wisconsin’s broader outreach plan consists of three in-person facilitated listening sessions and two virtual sessions. We will also use 

web-based feedback for anyone in the State who wants to provide 

us with information, and this information will be received and used 

to inform the Equity Council as they convene. 

I’m proud of the work we’re doing in Wisconsin, and I believe the 

best solutions often come from places closest to the kids. To support 

States in doing that kind of local work, regulation and guidance, 

as has been said before, developed by ESSA should be limited to 

providing clarity on otherwise ambiguous or confusing areas, not 

implementing requirements that were not envisioned by Congress. 

Flexibility has been a central element of ESSA, because I believe 

there is recognition that the States have very different systems and 

supports for K through 12 education. The flexibility currently provided in the law allows States to focus on the most important and 

difficult work ahead in supporting each and every student in the 

United States. 

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In contrast, the regulations the Department proposed during a 

negotiated rulemaking process on supplement not supplant—they 

were well intended. I will grant them that. But it would have significant impacts on our students, drawing focus away from student 

learning and service to unwieldy fiscal balancing acts. 

It is the responsibility of school leaders to put the best teachers 

in front of the kids who need them the most. They weigh qualifications, diversity, and skill sets in service to kids. They contemplate 

optimal grade configurations, staffing patterns, and facility needs, 

all with an eye toward increased student achievement for all kids. 

I worry that the proposed supplement, not supplant rules reduce 

these complex decisions to an overly simplified financial calculation, which at the end of the day does not actually guarantee student access to high-quality educators. 

As a member of the negotiated rulemaking committee, I understand the arguments on both sides of this issue. But I also believe—and it is clear—that the proposed regulations on supplement, not supplant exceed the Department’s authority under the 

law. 

State and local schools absolutely have a responsibility to their 

kids to examine current Federal funding and how it’s used. They 

owe it to parents and families that they support—that they have 

discussions that are open and meaningful and transparent. And 

they need to be sure that they’re reaching all the people that make 

up their school community. But that type of authentic discussion 

and problem solving simply cannot be achieved through a Federal 

mandate. 

I firmly believe that States should be held accountable for their 

students’ results. When it comes to both funding and educational 

practice, the States are committed to using additional flexibility 

found in ESSA to improve education outcomes for all kids. 

Let us lead the way, and thank you so much, again, for allowing 

me to testify, and I look forward to your questions. 

[The prepared statement of Mr. Evers follows:] 

PREPARED STATEMENT OF TONY EVERS, PH.D. 

Thank you Chairman Alexander, Ranking Member Murray, and members of the 

committee for the opportunity to testify today. I also want to thank you for your 

ongoing efforts to support the implementation of the Every Student Succeeds Act 

(ESSA). As States and local school districts across the country develop strategies to 

close achievement gaps and promote equity for our students under the new law, and 

the U.S. Department of Education (Department) moves forward with the regulatory 

and guidance process, it is important that States retain the renewed flexibility that 

is the central element of the ESSA. Flexibility is critical if we are to keep the focus 

on our students. This is the Every Student Succeeds Act and it is aptly named. To 

be successful in implementation, those of us closest to our students must be empowered to do the work that is needed to ensure that every one of them has the opportunity to graduate college- and career-ready. 

As I highlighted in previous testimony before this committee, State and local leaders are committed to achieving optimal results for all of their students. Under No 

Child Left Behind (NCLB), overly prescriptive Federal mandates on the overall design of statewide systems left States and local districts without the ability to tailor 

school improvement strategies to the unique needs of their schools and students. We 

should not repeat these mistakes. 

The ESSA is a landmark piece of civil rights legislation that provides States with 

the opportunity to engage their citizens about the importance of education. Part of 

that dialog needs to be how we measure success. I firmly believe that States should 

be held accountable for their student results. But as States begin to implement the 

law, we must take into consideration the very different systems and supports for 

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K–12 education States across the Nation have in place. The regulations the Department proposed during the negotiated rulemaking process on supplement, not supplant, while well-intended, fail to recognize the importance of those differences and 

would have significant impacts on our students. 

I encourage you to think about what the proposed supplement, not supplant rule 

would mean for our kids. It is the job of school leaders to ensure that the best teachers are in front of the kids who need them the most. School leaders look at qualifications, diversity, and skill sets. They contemplate optimal grade configurations, staffing patterns and supports, and facility needs, all with an eye toward the best way 

to increase student achievement for all students. School leaders will not have the 

ability to make optimal decisions for kids with the supplement, not supplant rule 

in effect as proposed during negotiated rulemaking. Nor will kids be guaranteed access to a qualified educator who has the skills and life experience necessary to fulfill 

their needs. As it stands now, the proposed regulations would require States to fund 

individual schools on a per-pupil basis and require State education agencies to redirect existing staff in an attempt to build capacity to monitor and enforce per-pupil 

expenditures. 

School districts may be required to break contracts or force placement of teachers, 

without regard to educational outcomes. This is not good for kids and it will inhibit 

our ability to attract and retain teachers. Districts may be forced to eliminate specialized and more expensive programming in some schools such as career and technical education, engineering, music, and art. Students may be reassigned to different schools because of additional needs, special education status, or transportation requirements due to costs involved. School districts, in an effort to limit the 

disruption to students, may decrease the number of title I schools and concentrate 

low-income students in fewer schools, instead of economically integrating them, 

which research demonstrates results in better educational outcomes. None of these 

decisions will be based on educational factors that lead to the best outcomes for 

kids. 

Put simply, the proposed rule is not focused on educational results, but rather dollar for dollar spending. Hold us accountable for results, but do not make the same 

mistakes of NCLB by tying our hands so we are prohibited from considering or implementing certain school improvement strategies, assigning teachers, and providing 

requisite supports and other programming to improve outcomes for kids. We all 

know that there are better ways to determine whether someone is a high-quality 

educator than looking only at how much they are compensated for their services. 

I believe everyone wants to get to the same result here: better educational opportunities and outcomes for all students and the closing of opportunity and achievement gaps. As I stated in the negotiated rulemaking sessions, I also believe the proposed regulations on supplement, not supplant, exceed the Department’s authority 

under the law. In the pursuit of more equitable outcomes, we should ensure we are 

not eliminating options and undercutting systems States and school districts have 

put in place to address inequities. Those systems may have merit and should not 

be tossed aside without careful consideration. 

We need to work harder and smarter to address inequities in a way that will not 

cause harm to the educational experience of all students. To best facilitate that, regulation and guidance throughout ESSA should be limited to providing clarity on otherwise ambiguous or confusing issues; not implementing additional requirements 

that were not envisioned by Congress. Guidance is not regulation, but it does give 

States and school districts information as to how the Department both interprets 

and plans to address provisions in the law as it moves forward in its administration. 

An example of an area my colleagues are watching closely is the innovative assessment pilot. Innovation is not often associated with standardized and detailed 

rulemaking processes. In order to respect congressional intent and ensure a carefully designed study and valid assessment, it will be important for the Department 

to stick to the guardrail philosophy that is evidenced in ESSA. State and local decisionmakers have a critical role to play in identifying or developing strategies that 

will be effective for their schools and students and implementing these strategies 

with fidelity. 

This is especially true in areas where unique State-and district-level strategies 

are critical to improving educational outcomes for all students. Accountability is a 

prime example of this. Wisconsin is committed to leveraging the new flexibility to 

examine the statewide accountability system to ensure it is responsive to stakeholder feedback about best practices and effective strategies. The end goal being 

that all students, including low-income students, minority students, English learners, and students with disabilities, have access to a high-quality education. We are 

asking our stakeholders to take a look at our State report cards, how they interface 

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ments they would suggest, how accountability measures should relate to school improvement strategies, what those strategies look like, and when do we intervene as 

a State in a school or district. These important conversations will inform our school 

improvement efforts and help us ensure that all students have an equitable access 

to a high-quality education that results in graduation and career and college readiness. If we are going to take on these conversations in an authentic fashion, we have 

to bring everyone to the table. To that end, in Wisconsin, we have developed a comprehensive stakeholder engagement process to facilitate discussions around strategies that result in equitable access to educational opportunities and closing achievement gaps. This process starts with statewide listening sessions, which will be ongoing through the summer. 

Wisconsin’s statewide listening sessions are focused on getting educators, representatives from parent groups, civil rights groups, community organizations, businesses, and others together to provide critical feedback on school accountability and 

school improvement. Furthermore, this week we will be deploying a web-based feedback form for anyone in the State to provide us with information. And in August, 

we will be having virtual sessions on school improvement and accountability for 

anyone in the State who wants to participate. These efforts represent the first round 

of feedback that we will use to inform the Equity Council I have established as my 

primary advisory group as we develop our State plan. I reached out to national civil 

rights organizations to help me build this council, and they will join education-related organizations, legislators, and others so we can work together on a comprehensive State plan. 

When it comes to both funding and educational practice, States are committed to 

using additional flexibility to improve educational outcomes for all students, addressing inequities, and closing achievement gaps. Over the course of the regulatory 

and guidance process, I hope the Department remains committed to the civil rights 

purpose of ESSA while allowing States to retain the flexibility to meet student 

needs and work with all stakeholders in a meaningful way. Thank you again for 

the opportunity to testify, and I look forward to your questions. 

The CHAIRMAN. Thank you, Dr. Evers. 

Dr. Ahart. 

STATEMENT OF THOMAS AHART, Ed.D, SUPERINTENDENT, 

DES MOINES PUBLIC SCHOOLS, DES MOINES, IA 

Mr. AHART. Good morning, Chairman Alexander, Senator Murray, and the rest of the HELP Committee. Thank you for your leadership on finally achieving the reauthorization of ESEA, long overdue. 

I am Tom Ahart, superintendent of the Des Moines public 

schools. With my seven-member board of education, I am responsible for the education of the largest school district in the State of 

Iowa. We are committed to meeting the educational needs of each 

one of our students by recruiting and supporting a team of talented 

professionals in each of our 63 schools. Our 33,000 students were 

born in 106 different countries, speak over 100 languages, qualify 

for free and reduced price meals at a rate of 75 percent, and are 

58 percent minority. 

That commitment is reflected in a steady increase in our graduation rate and in reading, math, and science proficiency rates and 

considerable progress in closing achievement gaps. Des Moines continues to operate under the antiquated No Child Left Behind Act 

since Iowa is one of the few States without a NCLB waiver. We 

have more reasons than most to welcome the enactment of the 

Every Student Succeeds Act, and we are working closely with our 

State department of education on a statewide implementation process. 

Virtually all of the school-based representatives of the ESSA regulations negotiations committee expressed practical concerns reHELPN-003 with DISTILLER

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garding the impact and feasibility of a number of the proposed regulations. These operational concerns relate to regulatory barriers to 

effective instructional services for students; interference in school 

autonomy in staff recruitment, selection, and placement; unworkable criteria; unnecessary requirements; additional costs; and unrealistic administratively created obligations. 

While regulations are intended to clarify provisions of the statute 

and facilitate effective implementation, many of the regulatory provisions appear to restrict, condition, redefine, and even expand 

ESSA. I am hard pressed to identify any regulatory additions offered by the Education Department that are necessary for effective 

implementation at the local level. 

The most troubling regulatory proposal, as many others have 

mentioned, was the Department’s draft regulation to impose perpupil expenditure comparability requirements under the supplement not supplant provision of the Act. Despite no changes in the 

current ESEA comparability provisions, the Department drafted 

supplement not supplant regulations that would require per-pupil 

expenditure comparability between title I schools and the average 

of non-title I schools. 

Operationally, this proposed regulation would effectively require 

salary equivalency between such schools. As Senator Alexander already mentioned, since the Nation’s teacher salary system is primarily based on years of experience and advanced education, 

schools with older, higher paid staff compared to younger, less 

higher paid staff would necessarily trigger noncompliance on an 

unprecedented scale. Moreover, current Federal requirements already ensure that at least the same number of full-time equivalent 

teachers are deployed in title I as in non-title I schools. 

To comply, districts would have to spend additional State and 

local funds to cover salary differential between higher paid and 

lower paid teachers, or, in an alternative compliance scenario, districts potentially could shift their higher paid teachers to title I 

schools and their lower paid teachers to non-title I schools. Unfortunately, neither of these options correlate with improving student 

performance, because to state it simply, there is no relationship between salary level and teacher effectiveness. 

School districts clearly do not have the State and local funds to 

cover the salary differential costs of compliance, nor should districts disrupt instructional continuity and communities of practice 

in our schools by summarily transferring teachers. Moreover, the 

teacher transfer option would violate most collective bargaining 

agreements. 

Many districts literally would be faced with an impossibility of 

performance under these regulations which have no reasonable 

basis in the Act and appear to violate at least three separate statutory prohibitions in ESSA. I hasten to add that neither of these solutions, even if possible to implement, reflect best education practice. 

What often seems to be lost on the Department is that many 

high-poverty schools are not served with title I because, frankly, 

there is not enough to go around. While a 40 percent free and reduced price meal rate can qualify a school for title I services, just 

in Des Moines public schools, we have multiple schools with an 

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over 70 percent free and reduced price lunch rate that we are not 

able to provide with title I services. Additionally, our ability to 

serve schools with concentrated poverty for which we do not have 

title I funds would be jeopardized under the proposed regulations. 

The ESSA was enacted with a broad base of support and good 

will at the national, State, and local levels. The tendency toward 

over-regulation, evident during the negotiated rulemaking process, 

could undermine that broad support. No Child Left Behind has 

demonstrated that the best intentions for improving achievement of 

at-risk students cannot be micromanaged from the Federal level. I 

would suggest that State and local officials be given the opportunity to get it right under ESSA. 

On the other hand, the Education Department could be helpful 

in issuing non-regulatory guidance that provides a non-exclusive 

range of examples of implementation options for various provisions 

of ESSA. There is no such thing as one-size-fits-all. Even in Iowa, 

the broad range of individual district characteristics vary widely. 

The only hope for successful results from ESSA rests in the State 

agencies’ ability to craft a guidance that is meaningful to individual 

State and district contexts. 

Finally, I am proud of the progress that my district has made 

over the last 4 years, despite insufficient State funding and everincreasing student needs. The current supplement, not supplant 

regulations focused on positions not funding have helped to make 

that possible. DMPS is becoming the model for urban education in 

the United States. 

The proposed ESSA regulations will force us to disrupt some of 

the most effective school reform efforts in the country and threaten 

the progress of some of our Nation’s most disadvantaged students. 

We can do better if ESSA regulations align with the letter and the 

spirit of the statute itself. 

Thank you for the opportunity to discuss the new regulations 

with you. 

[The prepared statement of Mr. Ahart follows:] 

PREPARED STATEMENT OF THOMAS AHART, ED.D. 

Good morning Chairman Alexander, Senator Murray and members of the HELP 

Committee. I am Tom Ahart, superintendent of the Des Moines Public Schools 

(DMPS). With my seven member board of education, I am responsible for education 

in the largest school district in the State of Iowa, serving 33,000 students across 

our 63 schools. 

Like many school districts across the country, DMPS has undergone major demographic changes from barely qualifying for title I concentration grants at 15 percent 

census poverty two decades ago to now having 75 percent free and reduced priced 

lunch eligibility. Des Moines now enrolls 21 percent English learners, 25 percent 

Hispanic students, 18 percent African American students, 7 percent Asian and Pacific Islander students, 0.5 percent Native American students, and 15 percent students with disabilities. The country of birth of our student body spans 106 nations 

and enter our schools speaking more than 100 languages. 

We are committed to meeting the educational needs of each one of our 33,000 students by recruiting and supporting a team of talented professionals at the district 

level and in each one of our schools. DMPS has been the recipient of the ASBO Certificate of Excellence in Financial Reporting, the GFOA Certificate of Achievement. 

We are implementing one of six national Principal Supervision and Support Programs from the Wallace Foundation and a U.S. Department of Education School Climate Transformation grant. There is an expectation of providing a positive learning 

environment in every school and classroom across Des Moines. That commitment is 

reflected in a steady increase in our 4-year graduation rate and in reading, math 

and science proficiency rates on our State test. Additionally, we have dramatically 

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decreased our days lost to out of school suspension, made considerable progress in 

closing achievement gaps, and have increased student enrollment and completion of 

advanced placement courses by more than 400 percent in the last 3 years. We were 

also one of the first districts in the country to sign onto and commit to The Males 

of Color Pledge, part of President Obama’s My Brother’s Keeper initiative. 

Des Moines continues to operate under the antiquated No Child Left Behind Act 

(NCLB), since Iowa is one of the few States without an NCLB waiver. We have 

more reasons than most school districts to welcome the enactment of the Every Students Succeeds Act (ESSA). I look forward to the development of a more thoughtful 

State accountability system under ESSA, and we are working closely with our State 

department of education on a statewide implementation process. 

As with most Iowa school officials, I have benefited in many ways from the tutelage of Chairman Tom Harkin over the years. In fact, my board of education president Rob Barron was a long-serving Harkin staff member. That background and ongoing interaction on Federal education policy with our Iowa delegation, however, did 

not prepare me for the ESSA negotiated rulemaking process. 

As a member of the Education Department’s Negotiated Rulemaking Committee, 

representing local school district officials, I expressed serious concerns with proposals to expand Federal ESSA requirements beyond those specified in the Act, as 

well as the proposed regulations that directly ignored ESSA-legislated prohibitions. 

Virtually all the school-based representatives on the committee expressed practical concerns regarding the impact and feasibility of a number of the proposed regulations. These operational concerns relate to regulatory barriers to effective instructional services for students, interference in school autonomy in staff recruitment and 

selection, intrusion in the deployment of effective school leaders, unworkable criteria 

and unnecessary requirements, additional costs, and unrealistic administratively 

created obligations. 

While regulations are designed to clarify provisions of the statute and facilitate 

effective implementation, many of the regulatory provisions appear to restrict, condition, redefine, and even expand ESSA. 

A number of the regulatory proposals during negotiated rulemaking were rationalized as helping school districts understand their responsibilities and helping auditors better monitor program implementation. I am hard pressed, however, to identify any regulatory additions offered by the Education Department or members of 

the Rulemaking Committee that I would consider, from my perspective as superintendent of schools, to be necessary for the effective implementation of ESSA at 

the local level. 

The most troubling regulatory proposal during negotiated rulemaking was the 

Education Department’s draft regulation to impose per-pupil expenditure comparability requirements under the supplement, not supplant provision of the Act. 

Proposals to revise the comparability of services provisions of the Elementary and 

Secondary Education Act (ESEA) had been circulating for more than a decade, but 

have never been enacted. Despite no changes in the current ESEA comparability 

provisions of the statute, the Education Department drafted proposed supplement, 

not supplant regulations that would require new per-pupil expenditure comparability, including teacher salary differentials between title I schools and the average of non-title I schools. Operationally, this proposed regulation would effectively 

require salary equivalency between such schools or require school districts to make 

up the difference with State and local funds. Since the Nation’s teacher salary system is primarily based on increasing salary increments for years of experience (as 

well as for advanced educational attainment), schools with older, higher paid staff 

compared to younger, less highly paid staff would necessarily trigger noncompliance 

on an unprecedented scale. The school representatives on the Rulemaking Committee did not agree with the Department’s draft regulations, and more flexible regulatory options were rejected by the Department as well. 

To comply with the Education Department’s draft regulations school districts 

would have to spend additional State and local funds to cover the salary differentials between higher paid and lower paid teachers. The Center of American Progress 

(CAP) reported in 2012 that the cost of compliance with this type of per-pupil comparability requirement would be $6.8 billion based on national data at the time, and 

in 2015 CAP estimated the compliance cost at $8.5 billion nationally using the most 

recent OCR expenditure data. The Council of the Great City Schools estimated the 

compliance cost for their 69 member school districts could reach $3.9 billion, ranging 

from millions to hundreds of millions of dollars in individual districts. 

In an alternative compliance scenario, school districts potentially could shift their 

older, higher-paid teachers to title I schools and their younger, lower-salaried teachers to non-title I schools in order to comply. 

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Unfortunately, neither of these options correlate with improving the academic performance of our students, since there is no relationship between salary level and 

teacher effectiveness. Moreover, the teacher transfer option would violate most collective bargaining agreements and result in unwarranted disruptions in instructional continuity and communities of practice in our schools. 

Higher paid teachers teach for the same 6 hours daily and 180 school days annually as teachers with lower salaries and less time in the profession; students receive 

an equivalent level of service from their teachers regardless of salary or years of 

service. Moreover, current Federal requirements already ensure that at least the 

same number of full-time equivalent teachers are deployed in title I as in non-title 

I schools. 

School districts clearly do not have the State and local funds to cover the salary 

differential costs of compliance with these draft regulations, nor would districts 

want to summarily transfer higher paid staff in order to comply. Many districts literally would be faced with an impossibility of performance under these draft regulations—which have no reasonable basis in the Act and appear to violate at least 

three separate statutory prohibitions in ESSA. 

Title I is an important element of my district’s efforts to effectively serve all of 

our students. What seems often to be lost on the Department is that many high poverty schools are not served with title I because, frankly, there is not enough to go 

around. While a 40 percent free/reduced price meal rate can qualify a school for title 

I services, we have multiple schools with over 70 percent of students qualifying for 

free/reduced priced meals that do not qualify for title I in Des Moines. In addition 

to those challenges already mentioned, our ability to best serve schools with concentrated poverty without title I funds will also be jeopardized under the proposed 

regulations. 

Other regulatory additions from negotiated rulemaking also are of concern, including provisions that apparently would require: middle schools to offer advanced math 

coursework to any requesting student statewide, once the State opts to exercise the 

ESSA eighth grade advanced math assessment double-testing relief; a series of unauthorized regulatory conditions to be met before States could qualify for an alternate assessment waiver; and restrictions on the authorized use of nationally recognized high school assessments. 

Based on the negotiated rulemaking experience, I am also concerned about other 

Federal regulations that may be proposed and ultimately finalized on ESSA implementation. While there are clearly new flexibilities allowed under ESSA, there are 

numerous new State and local responsibilities, including additional performance indicators, more schools likely to be identified for improvement and intervention, additional reporting and data disaggregation, and new State and local plan requirements. We already have a lot of implementation challenges during the upcoming 

transition year. 

There is now an unprecedented level of collaboration in Iowa between our State 

education department and local school districts on implementation of our new responsibilities. We are jointly looking at defining our new performance indicators, differentiating schools for improvement measures, defining under-performance criteria, 

and establishing goals and benchmarks. I meet regularly with our State chief school 

officer, and several ESSA implementation planning teams are currently being organized by our State department of education with membership from school district 

staff, community members, and other organizations from around the State. In Des 

Moines Public Schools, our School Improvement Advisory Committee and our Equity 

Committee, both made up of a broad range of community members, will collaborate 

with my district staff to ensure sound implementation of ESSA at the local level. 

Federal regulatory expansions or restrictions, such as we experienced in negotiated rulemaking will complicate, if not impede the implementation process in 

Iowa. There are sufficient statutory parameters on the performance indicators and 

weighting priorities that States should be allowed to design their own benchmarks 

including ‘‘acceleration or catch-up’’ objectives. The definitions and criteria for school 

differentiation need no further regulatory enhancements. Since the English learner 

subgroup composition has been delegated to the States, additional Federal requirements or further disaggregation is unwarranted. 

Even in areas of some ambiguity, such as Additional Targeted Support and Improvement criteria beyond school year 2017–18, I would encourage letting State and 

local officials work out the intricacies of the various components of the State accountability and school improvement system. After the draft comparability-based 

supplement, not supplant regulations, I have serious concerns regarding any additional Federal regulations on local resource allocations under the school improvement provisions of the Act. Further Federal regulatory action regarding the evidence-based activities referenced in numerous sections of the Act could result in the 

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Federal Government restricting curriculum and intervention options, or even prohibiting instructional activities that have shown positive results but don’t have experimental or quasi-experimental designs. 

The Every Student Succeeds Act was enacted with a broad base of support and 

good will at the national, State and local level. The tendency toward over-regulation 

that was evident during the negotiated rulemaking process could undermine that 

broad support. No Child Left Behind has demonstrated that the best intentions for 

improving achievement of at-risk students cannot be micromanaged effectively from 

the Federal level. Since the Federal Government did not get it right under NCLB, 

I would suggest that State and local officials should be given the opportunity to get 

it right under ESSA. On the other hand, the Education Department could be helpful 

in issuing non-regulatory guidance that provides a non-exclusive range of examples 

of implementation options for various provisions of ESSA that can be considered by 

State and local educators. One-size-fits-all is a misnomer. Clearly, even in Iowa, the 

broad range of individual district characteristics vary widely and the only hope for 

successful results from ESSA rests in the State agencies’ ability to craft guidance 

that is meaningful to individual State and district contexts. 

Clearly, the committee and the Department have oversight responsibilities, and 

hopefully will identify those instances where State or local school officials may fall 

short in initial implementation. I am encouraged, however, by the cooperation and 

collaboration on ESSA between State and local education officials and other stakeholders that has begun in the field. I hope the Education Department ultimately 

takes a more collaborative approach to ESSA regulations and implementation than 

has occurred to date. 

Finally, I am proud of the progress my district has made over the last 4 years, 

despite insufficient State funding. We are becoming the model for urban education 

in the United States. The proposed ESSA regulations will force us to disrupt some 

of the most effective school reform efforts in the country and threaten the progress 

of some of the most disadvantaged students in the country. We can do better if 

ESSA regulations align with the letter and the spirit of the statute itself. 

Thank you for the opportunity to discuss ESSA implementation with you this 

morning. 

The CHAIRMAN. Thank you, Dr. Ahart. 

Dr. Gordon. 

STATEMENT OF NORA GORDON, Ph.D., ASSOCIATE PROFESSOR, MCCOURT SCHOOL OF PUBLIC POLICY, GEORGETOWN UNIVERSITY, WASHINGTON, DC 

Ms. GORDON. Thank you. Chairman Alexander, Ranking Member 

Murray, and members of the committee, thank you for the opportunity to testify today. I am Associate Professor at Georgetown 

University’s McCourt School of Public Policy and a research associate at the National Bureau of Economic Research. 

I conduct research on U.S. education policy, school finance, and 

desegregation. In the course of my research on title I, I have analyzed finance data and have also interviewed many State and district title I directors. Today, I’ll discuss how ESSA changes the definition of supplement, not supplant and how the Department of 

Education proposes to regulate it and discuss some of the unintended consequences that could come from this proposed regulation. 

The Department’s proposed rule, as other witnesses have testified, is meant to support equity. This is a laudable goal, but when 

you look at the compliance incentives it generates and consider 

what districts might do in order to comply with the rule, you could 

see how it could actually wind up hurting disadvantaged students 

both in title I schools and in non-title I schools. 

Supplement not supplant is meant to ensure districts do not reduce the amount of State and local money they give to a title I 

school compared to what they would give that school if it did not 

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participate in title I. This is an important mission, given the history of the law and past abuses. 

Under No Child Left Behind and earlier versions of ESEA, districts could comply with supplement, not supplant based on what 

they bought with title I dollars, even if they gave title I schools less 

State and local money and had title I funds make up the difference. 

ESSA fixes that, requiring districts to show how they distribute 

State and local funds to each of their schools and that their methodology does not reduce a school’s State and local funding because 

of the school’s participation in title I. 

Federal law still requires districts to spend funds in accordance 

with program goals and track their spending regardless of how 

supplement, not supplant is regulated. The Department of Education’s proposed rule would require districts to use a methodology 

to allocate State and local funds that results in each title I school 

spending an equal or greater amount per pupil than the average 

amount it spends per pupil in its non-title I schools. 

Current data don’t permit us to generate reliable evidence on 

how many districts would be in compliance with the proposed rule 

based on current resource allocations or how much they would need 

to spend in order to comply. Aside from these unknown costs, the 

rule could trigger consequences that are bad for equity as districts 

are forced to consider compliance first and what’s best for kids second. 

For example, the rule could penalize districts working to increase 

economic or racial integration and could incentivize districts to concentrate disadvantaged students in title I schools. The rule could 

penalize district efforts to increase teacher diversity in title I 

schools, because increasing teacher diversity typically requires the 

recruitment of new and, therefore, typically less expensive teachers. 

The rule could penalize districts that allocate State and local 

funds through weighted per-pupil formulas that generate more 

money for low-income, special education, or English language 

learner students. Such districts could, nonetheless, fail under the 

proposed rule if higher weighted students attend non-title I schools. 

Importantly, the proposed rule only compares funding levels in 

title I schools to non-title I schools. This narrow focus penalizes 

other local approaches to equity and ignores the many low-income 

schools that do not receive title I funds, as we’ve just heard. This 

could punish districts that attempt to mitigate poverty effects in 

those poor but non-title I schools. 

Stakeholders are absolutely right to want to ensure that Federal 

funds aren’t used as a substitute for State and local ones in title 

I schools. ESSA’s new statutory language does this by requiring 

districts to have allocation methodologies that do not reduce a 

school’s access to State and local funds because of its participation 

in title I. 

An alternative regulatory approach than the one that’s been proposed would be to require districts to make their methodologies, 

like their spending data, publicly available. Then parents and voters would not only see how much is spent at each school, but they 

would also see district priorities as revealed through their funding 

mechanisms. 

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1 Note: the views expressed here are my own and do not necessarily reflect those of Georgetown University or the National Bureau of Economic Research. 2 Gordon, Nora and Sarah Reber. 2015. ‘‘The Quest for a Targeted and Effective Title I: Challenges in Designing and Implementing Fiscal Compliance Rules.’’ RSF: The Russell Sage Foundation Journal of the Social Sciences, 1(3), 129–147. 3 U.S. Department of Education. July 2015. ‘‘Supporting School Reform by Leveraging Federal 

Funds in a Schoolwide Program.’’ Accessed 5/13/16 at: http://www2.ed.gov/policy/elsec/guid/ 

eseatitleiswguidance.pdf. 

Thank you for the opportunity to comment on this topic. 

[The prepared statement of Ms. Gordon follows:] 

PREPARED STATEMENT OF NORA E. GORDON, PH.D.1

Chairman Alexander, Ranking Member Murray, and members of the committee, 

thank you for the opportunity to testify today. I am Associate Professor at Georgetown University’s McCourt School of Public Policy where I conduct research on U.S. 

education policy with a focus on school finance redistribution and school desegregation. In the course of my research on title I over the past 15 years, I have analyzed 

finance data and interviewed State and district leaders and title I directors. My research on title I has been supported by the National Science Foundation and the 

Spencer Foundation, and published in peer-reviewed economics and policy journals. 

Today I will explain how ESSA changes the definition of supplement, not supplant, how the Department of Education proposes to regulate it, and the potential 

for that regulation to cause serious adverse consequences. 

WHAT IS SUPPLEMENT NOT SUPPLANT?

Supplement, not supplant is meant to ensure districts do not reduce the amount 

of State and local money a title I school would receive if it did not participate in 

title I—an important mission, given the history of the law and past abuses. 

Prior to ESSA, compliance was typically determined on a cost-by-cost basis, evaluating whether each cost charged to title I was ‘‘extra.’’ This compliance approach 

promoted inefficient title I spending on low-impact, unaligned ‘‘add-ons.’’ 2

The cost-by-cost approach was also bad for equity. Districts could comply based 

on what they bought with title I dollars, even if they were giving title I schools less 

State and local money because they knew those schools would be getting title I 

funds to make up the difference—exactly what the rule was always meant to prevent, and what ESSA’s new requirements do prevent. 

HOW DOES ESSA CHANGE SUPPLEMENT NOT SUPPLANT?

Under ESSA, to demonstrate compliance with supplement, not supplant, districts 

must show how they distribute State and local funds to each of their schools, and 

that their methodology does not reduce a school’s State and local funding because 

of the school’s participation in title I. Specifically, the law provides a test for compliance with supplement, not supplant in sec. 1118(b)(2): 

‘‘. . . 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 were it not receiving assistance under this part.’’ 

Last week teachers sent Secretary King a letter about their concern that ‘‘some 

States could misunderstand the law’s intent and use title I for other purposes, including using it to replace State and local funding.’’ Though other provisions of 

ESSA are often described as ‘‘loosening things up,’’ ESSA’s supplement, not supplant change raises the bar on equity and explicitly prevents exactly this concern. 

The Department already has excellent guidance on this point, because ESSA takes 

what was already an option for how title I schoolwide programs could demonstrate 

how title I funds were supplemental, and turns it into law for how all title I schools 

must demonstrate title I funds are supplemental.3

To make this requirement even more powerful, the Department of Education 

should require districts to make these methodologies publicly available. Then parents and voters would not only see how much is spent at each school—as newly required elsewhere in ESSA—but they would also see district priorities, as revealed 

through their funding mechanisms. 

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4Stullich, Stephanie. 2011. ‘‘The Potential Impact of Revising the Title I Comparability Requirement to Focus on School-Level Expenditures.’’ Policy Brief from the U.S. Department of 

Education, Policy and Program Studies Service. Accessed 5/13/16 at: https://www2.ed.gov/ 

rschstat/eval/title-i/comparability-requirement/comparability-policy-brief.pdf. 

HOW IS THE DEPARTMENT OF EDUCATION PROPOSING TO REGULATE SUPPLEMENT NOT

SUPPLANT?

The Department has proposed regulatory language on supplement, not supplant 

that is quite different from the statute. It relates to a different part of the law, comparability, which aims to promote equitable spending across schools and which Congress did not change. ESSA’s language on comparability, like earlier versions of 

ESEA, prohibits including ‘‘staff salary differentials for years of employment’’ in the 

determination of comparability. Sec. 1118(c)(2)(B). 

The Department wants to require districts to use a methodology that results in 

each title I school spending at least as much from State and local sources, in perpupil dollars, as it does on average level in its non-title I schools. The remainder of my testimony focuses on the proposed rule, rather than the statutory language on supplement, not supplant. 

HOW MUCH WOULD THE PROPOSED RULE COST DISTRICTS TO IMPLEMENT?

We do not have reliable evidence on how much this is going to cost districts. 

Costs will be different for every district, largely based on what distributions of 

teacher experience across schools look like at the district level. To answer this question convincingly at a national level requires data that simply do not exist. 

To know if each title I school in a district spends at least as many State and local 

dollars per pupil as the average non-title I school in the district, you would need 

to know how much State and local money per pupil each school gets, and which 

schools participate in title I. 

This is less straightforward than it sounds, because most school districts allocate 

full-time equivalent staff positions, or FTEs, to their schools, rather than dollars. 

To know how many State and local dollars are spent, you need to use the actual 

salaries of those teachers in the school building, rather than district averages. But 

many districts have one data system linking teacher names to school buildings, and 

a separate data system with teacher names linked to teacher salaries. This is why 

the reporting requirement in ESSA will be so useful, and so challenging. 

Some districts have systems in place already that could produce these numbers. 

The Department has not provided any cost runs from such districts. 

Though most districts do not actually keep their records in a format amenable to 

producing these data, they have reported out such data to the Federal Government 

as required under the American Recovery and Reinvestment Act of 2009. The Department of Education conducted its first School-Level Expenditure Survey in 2009; 

in 2011, the relevant questions were asked again as part of the Civil Rights Data 

Collection. In each of the two available years of data, districts were asked to report 

expenditures, by whether or not they were related to personnel, at the school level. 

They were explicitly instructed to: ‘‘report actual school finance data for this school. 

Do not report data based upon average teacher expenditures.’’ They were also instructed to exclude Federal funds from the school-level expenditures. 

The Department’s own analyses that come closest to assessing the costs of the 

proposed rule use the 2009 data. The study noted: 

‘‘Because school districts typically do not have accounting systems that track 

expenditures at the school level and this was the first time such data have ever 

been collected on a large-scale basis, this effort faced challenges that may affect 

the accuracy and consistency of the data reported. ‘‘ . . . the data collected 

through this study are not consistently defined across all States and districts, 

and are best used to examine resource patterns within districts rather than 

across districts.’’ 4

Therefore, the Department is proposing a rule at a point in time where the information needed to understand how it would actually affect districts and students is 

not reliable. 

HOW COULD THE PROPOSED RULE WORSEN SCHOOL QUALITY FOR POOR STUDENTS?

We can understand how the proposed rule changes incentives for district-level policy in a more general sense, even if we cannot reliably estimate how much it would 

cost districts nationally to comply. Districts seeking to comply with the new rule 

would take money out of their non-title I schools in order to bring average spending 

down there, and use it to raise State and local spending in some or all of their title 

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5 Balingit, Moriah. March 20, 2016. ‘‘Separate but equal? Wealthy county’s plan would concentrate low-income, Hispanic students.’’ Washington Post. Accessed 5/13/16 at: https:// 

www.washingtonpost.com/local/education/separate-but-equal-loudoun-plan-would-concentratepoor-Hispanic-students/2016/03/20/db6f2cca-e7a8-11e5-b0fd-073d5930a7blstory.html. 

I schools. How districts would do this would depend on local circumstances, particularly how teachers are spread across schools by experience. But many strategies districts are likely to turn to conflict with equity. 

• All parties involved at negotiated rulemaking did not want to make districts do 

‘‘forced transfers’’ of teachers. But if you need to move a lot of money around across 

schools, and you spend most of your money on teachers, it’s unclear how else to do 

it. 

• Forced transfers isn’t just a union issue, it’s a quality issue. title I schools could 

wind up with the teachers the non-title I schools choose not to retain. If principals 

choose which teachers they retain, non-title I principals will release their least preferred teachers into the pool for title I schools to hire. While teacher spending at 

title I schools would go up, average teacher quality at title I schools could go down. 

How else could districts get funds out of non-title I schools and into title I schools? 

• They could reduce existing efforts for economic or racial desegregation, or not take up new ones. For example, recent events in Loudoun County 

are an example of how proponents of integration sometimes must argue against proposals that segregating high-needs students is beneficial because it gives them access to more resources.5 This effort to segregate students failed, but the proposed 

rule would give ammunition to similar efforts to segregate children because under 

the proposed rule, establishing or maintaining a more integrated school system 

could result in non-compliance if it results in a higher per pupil average in nontitle I schools. 

Furthermore, because the proposed rule only judges equity and compliance based 

on title I vs. non-title I school status, districts might give pause to anything that 

could raise average per-pupil spending in non-title I schools. This could include, but 

is not limited to: 

• drawing more economically integrated school boundaries and giving additional resources to support economically diverse schools, 

• voluntary school desegregation efforts like magnet schools which typically cost 

more money, 

• transfer options or school choice options that allow low-income students to 

move from low-performing schools to higher performing schools, when the 

money follows the student, 

• efforts by municipalities to integrate affordable housing into neighborhood development through zoning requirements and provide additional resources to receiving schools. 

• Districts could cut back on efforts to increase teacher diversity in title I schools 

because increasing teacher diversity typically requires the recruitment of new, and 

therefore typically less expensive, teachers. 

• Districts could change which eligible schools receive title I funds, either no 

longer serving schools that currently receive title I, or distributing funds to additional eligible schools—not based on educational need, but based on compliance concerns. 

• Districts could remove or reduce specialized schools or programming if they 

raise the non-title I average, such as schools that focus on career technical education, performing arts, or science and technology, as well as within-school programs 

that address specific needs such as autism programs, dyslexia programs, or gifted 

and talented programs. These types of programs are often used to increase racial 

or economic diversity within a district. 

• Districts could choose to eliminate existing, or not implement, pay for performance initiatives if they result in increased spending in non-title I schools. 

The rule creates a compliance assumption that title I students are better off remaining in title I schools that receive more State and local money. District practices 

to intentionally dilute high concentrations of poverty at the school-level, such as 

those described above, may run afoul of the proposed rule. 

To understand the types of mechanisms listed above, one needs to consider how 

districts allocate resources. 

HOW THE INCENTIVES WORK: HYPOTHETICAL LINCOLN PUBLIC SCHOOLS EXAMPLE

It seems counterintuitive that a rule requiring districts to spend the same or more 

dollars per pupil in each of their title I schools than the average in their non-title 

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I schools could result in making poor students worse off. However, to show the mechanics of these incentives, I have constructed a simplified example with a hypothetical school district, Lincoln Public Schools (LPS). Its three elementary schools 

are described in Table 1. In practice, the exact incentives will vary by district, mainly depending on how its teachers are distributed across schools by experience. 

Table 1: Baseline Enrollment 

School Title I 

school 

Percent 

poor 

Poor 

students 

Non-poor 

students 

Adams ES ..................................................................................................... Yes 80 800 200 

Main St. ES ................................................................................................... Yes 75 750 250 

Union ES ....................................................................................................... No 40 400 600 

It shows each school has 1,000 students. Adams ES is 80 percent poor, Main St. 

ES is 75 percent poor, and Union ES is 40 percent poor. Though all three schools 

are eligible for title I funds under Federal law, the district has chosen to serve 

Adams and Main St. but not Union, with title I funds. 

STAFFING METHODOLOGY

LPS weights poor students when determining how many teachers are assigned to 

each school—with the policy goal of having more FTEs in poor schools. The practice 

of using enrollment to assign teachers to schools is far more common than using 

enrollment to assign dollars to schools. In LPS’s methodology, each non-poor student 

receives a weight of 1.0, and each poor student receives a weight of 1.2. Each 

school’s weighted enrollment therefore is equal to its number of poor students multiplied by 1.2, plus its number of non-poor students (multiplied by 1). 

LPS then assigns one full-time equivalent teacher (FTE) per 20 weighted students. 

20 poor students = 20*1.2 = 24 weighted students, so would generate 24/20 = 1.2 

FTEs for their school. 20 non-poor students simply generate 20*1 = 20 weighted students and 1 FTE. 

Table 2 shows each school’s weighted enrollment and the number of FTEs per 

school generated under this methodology. 

Table 2: Baseline Weighted Enrollment and FTEs 

School Title I 

school 

Percent 

poor 

Poor 

students 

Non-poor 

students 

Weighted 

enrollment 

Formula 

FTEs 

Adams ES ........................................................... yes 80 800 200 1,160 58 

Main St. ES ........................................................ yes 75 750 250 1,150 57.5 

Union ES ............................................................. no 40 400 600 1,080 54 

It is well-established that high-poverty schools are disproportionately staffed by 

less experienced teachers. Because teacher salaries rise with experience, this means 

that a school with fewer experienced teachers will spend less per student than another school with the same teacher:student ratio. 

In this simplified example, consider only two types of teachers, experienced (paid 

$75,000 per year) and inexperienced (paid $35,000 per year). Table 3 shows the distribution of teachers by experience over the schools in LPS: 45 percent of teachers 

in Adams ES are inexperienced and 50 percent of teachers in Main St. ES, while 

30 percent of teachers in Union ES are inexperienced. 

Applying the salaries for experienced and inexperienced teachers, we can see how 

much each school is spending in dollars. To calculate school spending per pupil, divide this amount by the school’s enrollment (not the weighted enrollment). 

Table 3: FTEs, Teacher Experience and Spending Per Pupil 

School Title I 

school 

Percent 

poor 

Formula 

FTEs 

Percent FTEs 

inexperienced 

School 

spending 

PP 

Adams ES ............................................................................ yes 80 58 45 $3,306.00 

Main St. ES .......................................................................... yes 75 57.5 50 $3,162.50 

Union ES .............................................................................. no 40 54 30 $3,402.00 

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Table 3 shows how even though LPS is choosing to allocate more teachers to higher poverty schools by weighting poverty in its staffing methodology, the distribution 

of teacher experience in LPS means it is spending less in dollars per pupil in its 

title I schools than its non-title I schools. 

Because there is only one non-title I school in this example, Union ES, the average spending per pupil in LPS’s non-title I schools is simply spending per pupil in 

Union ES, $3,402. Neither of the title I schools, Adams and Main St., spends as 

much per pupil. LPS would therefore not comply with the proposed rule. 

During negotiations, LEA and SEA representatives spoke about how they would 

have to move people around in order to comply. What does this look like in this example? There are several approaches. 

GETTING TO COMPLIANCE BY CONCENTRATING POOR STUDENTS

The proposed rule requires LPS to get money into its title I schools and out of 

its non-title I school. Because its staffing methodology means poor students bring 

additional FTEs to a school than non-poor students, taking poor students out of 

Union and putting them into title I schools will help LPS comply with the proposed 

rule. Table 4 shows how this would work in LPS. 

Imagine LPS moves 250 poor students who previously attended (non-title I) Union 

ES to (title I) Main St. ES, and 250 non-poor student who previously attended Main 

St. to Union. It could do so in any number of ways: redrawing attendance boundaries, eliminating an intradistrict choice plan, or stopping an existing busing plan. 

Table 4: Increasing Economic Segregation Yields Compliance 

School Title I 

school 

Percent 

poor 

Poor 

students 

Non-poor 

students 

Weighted 

enrollment 

Formula 

FTEs 

Percent 

FTEs inexp 

School 

spending 

PP 

Adams ES ................. yes 80 800 200 1,160 58 45 $3,306.00 

Main St. ES .............. yes 100 1,000 0 1,200 60 50 $3,300.00 

Union ES ................... No 15 150 850 1,030 51.5 30 $3,244.50 

Now, the average spending per pupil in non-title I schools (Union ES) is $3,244.50 

and both Adams and Main St. exceed that, so LPS has achieved compliance with 

the rule. While increasing economic segregation across schools allows LPS to comply, there is strong research consensus that this is actively bad for economically disadvantaged students. This research base underlies the Department of Education’s 

new Stronger Together initiative, offering grants to school districts for voluntary 

economic desegregation plans. 

In this simple example, I have not included any additional weights for students 

with disabilities or English learners, but such weights are common in practice and 

the same logic applies. The exact incentives facing a particular district will depend 

on its weights. 

What if LPS does not want to move its students around? What other options 

exist? 

GETTING TO COMPLIANCE BY CHANGING WHICH TITLE I-ELIGIBLE SCHOOLS ARE SERVED

In the baseline scenario described in Tables 1–3 (that is, before LPS moved students as described in Table 4) LPS had the option to serve one, two, or three of its 

three elementary schools, because at least 40 percent of students were poor in each 

school. LPS initially had been serving Adams and Main St., which were 80 percent 

and 75 percent poor, and choosing not to serve Union, that was only 40 percent 

poor. In practice, districts vary widely in how they choose which title I eligible 

schools, within the ranking and serving rules, and a policy like this one is not uncommon. 

If LPS chooses to serve all its title I eligible schools, the new rule would not apply 

so the district would not be in violation. It would, however, be reallocating Federal 

funds from its highest poverty schools to its lowest poverty school in order to gain 

this exception. 

LPS could also choose to no longer serve Main St. ES with title I, instead serving 

only Adams. In this case, the average spending per pupil in non-title I schools now 

would come from the average of Adams and Union rather than just high-spending 

Union alone (see Table 3). Low-spending Main St. now pulls down this average to 

$3,282.25 (the $3,402 PP at Union + 3,162.50 PP at Main St., divided by two), making Adams—which still would be spending the same amount as before, $3,306 per 

pupil—now spending more than the average in the district’s non-title I schools. 

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Adams therefore meets the rule. By not serving Main St., LPS is no longer required 

to meet any particular threshold spending per pupil at the school, though it remains 

a high-poverty school. Overall, this change makes LPS compliant. 

INCREASING WEIGHTS ON POOR STUDENTS IN STAFFING METHODOLOGY

LPS may well want to keep title I funds in Adams and Main St. because these 

are its highest poverty schools, without spreading them to Union, or increasing economic segregation in its schools. If it is committed to having a consistent and transparent staffing methodology (that is, it doesn’t want to use its formula and then 

take some fractional position out of Union in a post hoc manner to spread over 

Adams and Main St.) it might think increasing the weights on student poverty 

would help. 

In this example, even if LPS increase the weight on poor students from 1.2 to 1.4, 

it would fall short of meeting the proposed rule. Table 5 shows how this change in 

weighting would affect FTEs and spending per pupil across the schools, assuming 

that the fraction of inexperienced teachers remains constant at each school. 

Table 5: Weighting Poor Students 1.4 instead of 1.2 

School Title I 

school 

Percent 

poor 

Poor 

students 

Non-poor 

students 

Weighted 

enrollment 

Formula 

FTEs 

Percent 

FTEs inexp 

School 

spending 

PP 

Adams ES ................. Yes 80 800 200 1,320 66 45 $3,762.00 

Main St. ES .............. Yes 75 750 250 1,300 65 50 $3,575.00 

Union ES ................... No 40 400 600 1,160 58 30 $3,654.00 

The average spending per pupil in the non-title I schools is still determined by 

Union ES, now $3,654. The additional weight brought Adams above that level but 

not Main St., so LPS would not be in compliance, even after adding 19.5 FTEs as 

dictated by the new staffing methodology. 

FORCED TRANSFERS

All parties involved in negotiations did not support the use of forced transfers of 

teachers and collectively bargained agreements prohibit them in many cases. However, LPS could solve its compliance problem by forcing teacher swaps: Adams and 

Main St. could each trade five inexperienced teachers to Union for five experienced 

teachers. Table 6 shows the allocation of teachers and dollars before and after that 

forced transfer. 

Table 6: Forced Transfers Achieve Compliance 

Before Forced Transfer 

School Weighted 

enrollment 

Formula 

FTEs 

Inexp. 

FTEs 

Exp. 

FTEs 

School 

spending PP 

Adams ES ............................................................................ 1,160 58 26.1 31.9 $3,306.00 

Main St. ES .......................................................................... 1,150 57.5 28.75 28.75 $3,162.50 

Union ES .............................................................................. 1,080 54 16.2 37.8 $3,402.00 

After Forced Transfer 

Adams ES ............................................................................ 1,160 58 21.1 36.9 $3,506.00 

Main St. ES .......................................................................... 1,150 57.5 23.75 33.75 $3,362.50 

Union ES .............................................................................. 1,080 54 26.2 27.8 $3,002.00 

Table 6 shows what happens when 10 experienced teachers are moved out of 

Union. Five of these teachers are placed in Adams and five in Main St. They are 

replaced at Union with five inexperienced teachers from Adams and five inexperienced teachers from Union. Because of the salary differentials, the new spending 

per pupil in non-title I Union is now lowered to $3,002.00, and Adams and Main 

St. each spend more, complying with the proposed rule. 

RECOMMENDATIONS

Given the history of title I, stakeholders are absolutely right to want to know how 

equity will be ensured. ESSA’s statutory language does so by forcing districts to deHELPN-003 with DISTILLER

30 

scribe their resource allocation method and to show it does not penalize title I 

schools because of their participation in title I. 

The statutory language prevents districts from using Federal funds to replace 

State and local revenue in title I schools. At the same time, it allows local school 

districts to design programs specific to district needs. The Department’s proposed 

rule either requires one specific methodology (a weighted student funding formula)—and the law prohibits a federally defined methodology—or a lot of post-hoc 

moving around of funds, actually forcing districts to move away from consistent and 

transparent funding allocations. 

The Department should work with States to make sure districts understand this 

rule now applies to all title I schools. And they should require districts to make 

these methodologies publicly available to improve transparency and make accountability local and meaningful. 

Thank you for the opportunity to comment on this important topic. 

The CHAIRMAN. Thank you, Dr. Gordon. 

Ms. Marshall. 

STATEMENT OF DENISE MARSHALL, EXECUTIVE DIRECTOR, 

COUNCIL OF PARENT ATTORNEYS AND ADVOCATES, TOWSON, MD 

Ms. MARSHALL. Chairman Alexander, Ranking Member Murray, 

and members of the committee, I’m honored to be here today to 

represent COPAA, a national peer-to-peer network that works to 

protect the civil rights of students with disabilities and their families. 

We stand strong to say our kids count, they can achieve, and 

what they need and deserve is an equal opportunity to succeed. 

COPAA thanks you for your bipartisan leadership in passing our 

Nation’s general education law, the Every Student Succeeds Act. 

We worked very closely throughout the reauthorization with our 

disability, civil rights, and business communities to ensure that 

ESSA included critical provisions that would, in fact, buoy up the 

students it is intended to support. This includes 7.7 million black 

students, 13.1 million Hispanic students, 25 million students from 

low-income families, 4.5 million English language learners, and 6.4 

million students with disabilities. 

ESSA gained COPAA’s support precisely because, although it has 

that great focus on State flexibility, which is important, we were 

also able to ensure that it had accountability, key provisions that 

would protect all. It’s harsh to recall and it’s unbelievable to realize 

that students with disabilities only had access to education in my 

lifetime, but it took them 40 years. Prior to the passage of No Child 

Left Behind, they were not counted. They were not included in the 

assessments in the State, local, or district accessibility systems, 

and as a result, they were all but invisible. 

Not including them in the count and not holding schools accountable for their learning limited access to the general education curriculum and created separate and often segregated instruction. 

Parents had no idea how their children were doing in school as 

compared to the State standards. Now, the requirements of ESSA 

give us clear information that can assist parents in assuring their 

child can access the regular classroom, access the regular curriculum, and have a real shot at a regular diploma. 

This is a civil rights law, and we have fought hard for equal access. Our kids want in, and our families deserve to have the same 

data about their child’s achievement as every other child in the 

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building. Through the eyes and ears of the COPAA network, we 

know the importance of this law and its regulations to keep expectations high. 

Coupled with the requirements of the IDEA and other Federal 

laws protecting the rights of students and their families, the provisions in ESSA can change the trajectory of a student’s life. I want 

to share two stories. One is about Bruce, a 19-year-old from South 

Carolina who struggled and suffered, bullied relentlessly, unable to 

keep up because of his dyslexia. But with the relentless efforts of 

his parents and his educators and the right services for his dyslexia, he is graduating high school, has a full-time job, and heading 

to college in the fall. 

And Blair, a young woman from Pennsylvania who with accommodations and the support of her service dog graduated high school 

and is currently a public relations major in college. We have a long 

way to go before we can support the success of all students. But 

we know the possibilities for each to succeed are substantial and 

real. 

Today, I focus on some important provisions for us: Creating that 

public transparency in the data, which I know we all share, and 

requiring school leaders to do something about it when the data 

shows there is reason to act. Accountability equals responsibility. 

ESSA no longer contains the mandates and consequences of its 

predecessor, and I think we were all dancing for that. 

But the responsibility lies squarely with the schools. ESSA includes core principles and important guardrails that we know can 

both guide educational decisionmaking and protect resources and 

students. Critical provisions are intended to assure, and strong regulations must support the requirement for action when outcomes or 

the lack thereof demand it. 

We have to have State-designed systems that have rigorous goals 

and interim measures of progress; that have statistically valid 

summative ratings on both academic and the additional quality indicators; clear requirements for identification and intervention in 

each of the three categories of the law; timely, evidence-based 

intervention focused on raising achievement. We simply cannot 

leave any child to languish with no intervention. They need to have 

the intervention and services in a timeframe that can have an impact in their educational lifetime. 

We also want title I regulations to provide for a range of statistically reliable and accepted N sizes, and we want to assure State 

support is provided to districts to reduce bullying, harassment, and 

discipline, and the use of restraint and seclusion, all of which are 

disproportionately used on students with disabilities and students 

of color and result not only in harm and trauma, but make it impossible for them to learn. We need safe school climates. 

You passed ESSA to advance the educational equity and serve 

the interests of all students. That is the test and the measurement 

that counts. State and district efforts to implement ESSA must target policies and resources on the urgent needs of students in what 

is arguably the most important journey of their formative lives, 

their K to 12 education. 

I want to just finally add that I urge us to get past the tug of 

war of control and figure out a way to invest equitably in students 

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1 IDEA eligible students ages 3–21, (2012). NCES, U.S. Department of Education. 

2 National Center on Education Statistics at: http://nces.ed.gov/fastfacts/#. 3 National Center on Education Statistics, National Assessment of Educational Progress 

(NAEP), 2015, at http://nces.ed.gov/nationsreportcard/pubs/main2013/2014451.aspx. 4 37 percent of 8th grade students with disabilities scored at or above basic in reading on the 

National Assessment of Education Progress (NAEP), compared with 81 percent of students without disabilities; 63 percent of students with disabilities graduate from high school as compared 

to 82 percent of students without disabilities; and, 19.1 percent of people with disabilities are 

participating in the U.S. Labor force as compared to 68.2 percent of people without disabilities. 

See: National Center on Education Statistics, National Assessment of Educational Progress 

(NAEP), 2015, at http://nces.ed.gov/nationsreportcard/pubs/main2013/2014451.aspx. National 

Center on Education Statistics, 2013–2014, at http://nces.ed.gov/ccd/tables/ACGRlREl andlcharacteristicsl2013-14.asp; U.S. Department of Labor, 2015 at www.dol.gov. 

and find innovative ways to assure that greater numbers of students, including those of color, ELL, and with disabilities, are able 

to succeed. 

I thank you for this opportunity, and I look forward to your questions. 

[The prepared statement of Ms. Marshall follows:] 

PREPARED STATEMENT OF DENISE MARSHALL

Chairman Alexander, Ranking Member Murray and members of the committee 

thank you for inviting me to testify today on the implementation of the Every Student Succeeds Act (ESSA). I am Denise Marshall, executive director of the Council 

of Parent Attorneys and Advocates (COPAA). COPAA is a national non-profit peerto-peer network of parents, attorneys, advocates, and related professionals who work 

to protect the civil rights and secure excellence in education on behalf of the 6.4 million children with disabilities 1 attending public school across the United States. We 

are an important voice in our children’s education and we stand strong and loud 

to say our kids count, they can achieve and they want an equal opportunity to succeed. 

It is through your bipartisan partnership that the Nation’s general education law 

has successfully been updated. COPAA appreciates your leadership to accomplish 

this. Throughout the reauthorization process, COPAA worked closely in coalitions 

with the disability, civil rights and business communities—across lines that often 

divide us on public policy issues—to assure that ESSA included provisions we all 

believed were critical to assuring students for which the law is intended to support—would in fact do so. And yes, in the process, none of the parties invested in 

ESSA’s outcome secured everything they wanted, however, COPAA believes ESSA 

does include the essential components that protect and support our most disadvantaged students. 

These students are the: 7.7 million Black students; 13.1 million Hispanic students; 25 million students from low-income families; 6.4 million students with disabilities; and 4.5 million English Language Learners 2 who attend our Nation’s public schools. 

ESSA gained COPAA’s support because, while it provides new flexibility for decisions to be made by States and districts, it does include several provisions that we 

believe are key to providing continued accountability for all students, including students with disabilities who, as you know, prior to the passage of No Child Left Behind (NCLB) had never been included in State assessments and in school, district 

or State accountability systems. While hard to imagine, it’s true and while the performance of all student groups, including students with disabilities, has risen dramatically between 2000 and 2013,3 the achievement gap is still far too large between White students and students of color. And, students with disabilities continue 

to lag far behind on substantive outcomes that we know predict future success, especially on key outcomes such as: grade level proficiency in reading and math; graduation from high school; matriculation into college and, becoming employed. 4 We do 

see improvement when districts and States take seriously the need to set high expectations for all students; to increase and sustain full access to the regular classroom staffed with trained and certified teachers; and, to provide the instructional 

support, interventions and accommodations that allow students with disabilities to 

succeed alongside their peers. 

Through the eyes and ears of our network of members, we know the importance 

of the law and its accompanying regulations to keep expectations high and change 

the trajectory of student lives. I’d like to share a few COPAA stories to remind us 

all of what the real possibilities are for real students. 

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Bruce, a 19 year-old from South Carolina struggled and suffered; bullied relentlessly, unable to keep up, suffered trauma and self-esteem issues from low expectations due to his inability to read. The fact is that Bruce is incredibly bright, and 

with persistence, relentless efforts of his parents and educators, and the right services and supports for his dyslexia—he graduated high school and is off to college 

in the Fall. 

Mariano from California has an Individualized Education Program and is working 

hard in high school to fulfill his goal to play and conduct for the New York Philharmonic Orchestra—and to be a Music and History Professor. 

Blair, a young woman from Pennsylvania, who with accommodations and the support of her service dog, graduated high school and is currently a sophomore at York 

College. She is a Public Relations major with a minor in Nonprofit Management. 

ACCOUNTABILITY: WHY IT MATTERS & WHAT IT INCLUDES

Today, I’d like to focus on the important components of ESSA that are inherently 

linked to both creating public transparency in the data—which is a goal I know we 

all share—and giving school leaders and the public the information and requirements necessary to actually do something when the data show there is reason to 

do so. I’d also like to reiterate what we’ve said throughout the reauthorization and 

as I’ve shared through several stories: real accountability for student subgroups matters and it matters to children right now. Real accountability is not an esoteric exercise in reporting test scores and it is not about gaming the numbers so it appears 

as if schools are doing better than they really are, nor, as history has shown, is it 

setting standards so low that the diploma students receive is virtually worthless 

when they try to enter the military, matriculate into college or access career training only to find they are ill-prepared for the next phase of their life. Accountability 

is responsibility—and now that important responsibility lies squarely with the 

school, the district and the State. 

ESSA assures that this shift in responsibility is still backed by core principles and 

important guardrails that we know can both guide educational decisionmaking and 

protect resources and students. While ESSA no longer contains the mandates and 

consequences of its predecessor, it does include critical provisions intended to assure 

the adults responsible for the children do something when outcomes demand it. 

A key function of a school accountability system is to communicate what is expected of schools both to the schools themselves and to the public. In order for 

school accountability systems to support improvement and gap closing, these expectations have to be both rigorous and focused on student outcomes. Schools and districts must be compelled by the important combination of data and accountability 

requirements to provide the instructional support, intervention and supports students need and in a timeframe that will actually impact struggling students. States 

must design systems that will strike this critical balance. 

Unfortunately, past history shows that when left to their own devices, States 

often set expectations for their schools far too low. They typically do this because 

pressure from special interest groups makes setting rigorous goals too daunting. In 

fact, States have set graduation goals as low as 60 percent and allowed as little 

as .1 percent of annual growth to count as progress against State goals. Recently, 

we’ve also seen how easily States can allow the focus of accountability to shift away 

from student learning. This is unacceptable. 

Sarah, a parent currently living in Maryland, whose husband is active military, 

knows firsthand from advocating across multiple States due to family moves, that 

academic expectations and allowed level of parent involvement vary greatly from 

State to State and from school to school. The fact is that one mile, whether it’s a 

country mile or a city mile, can make a huge difference in educational opportunity 

and therefore in the life of a family and a child. While we respect State rights and 

autonomy, Sarah and so many other parents like her across our great country urge 

regulators to use all authority to put up guardrails in ESSA that ensure meaningful 

progress is realized toward closing the achievement gap for at risk children. We 

must have clear regulations for such areas as the definition of ‘‘consistently underperforming’’ and specifying timeframes for necessary intervention and action when 

subgroups of students are not achieving to ensure Sarah’s children and all at-risk 

children do not slip through the cracks or experience multi-year delays in their educational progress. 

We must stay focused on the purpose of ESSA which as stated in the statute 

is: ‘‘To provide all children significant opportunity to receive a fair, equitable, and 

high-quality education, and to close educational achievement gaps.’’ COPAA and the 

entire civil rights community has long recognized equal educational opportunity as 

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central to our struggle to achieve equality for all Americans. Full ESSA implementation must not delay nor promote retreat. 

Our children deserve better and require prompt action. So, we want an accountability system, designed by each State that will ensure: 

(1) the expectations for all student groups are rigorous; 

(2) the State-designed school ratings reflect the learning outcomes of all groups 

of students, and 

(3) meaningful action is taken whenever the school is underperforming for all students or for any student group. 

In order to achieve these three important components of State accountability systems, we have encouraged ED, through forthcoming ESSA regulations on accountability to assure that: 

• States explain their methodology for setting ambitious goals and interim performance targets that require significant progress toward closing achievement gaps. • States fully understand and provide the [types of] clear evidence needed to demonstrate that their goals meet their system’s criteria including alignment with State 

standards and levels of achievement as applicable. • States provide a statistically valid summative rating based on their academic 

indicators and the additional school quality indicator(s) to annually provide meaningful differentiation between schools and determine how the school is doing in 

meeting the interim performance targets and ambitious goals. 

• All school quality indicators are disaggregated by student group within each 

school as required in ESSA in a statistically valid manner. 

• State systems maintain a strong focus on student achievement and attainment 

including that States have to demonstrate that the other indicator of school quality 

cannot be weighted such that it prevents a school from being identified for comprehensive support and improvement, targeted support and improvement, or additional targeted support and improvement if the school would have been identified 

as such based on the academic indicators. 

• States base the definition of ‘‘consistently underperforming’ on their statewide 

goals and interim performance targets for each group of students. The definition for 

consistently underperforming must not be based on the size of the achievement gaps 

within schools. States must publicly report their definition of ‘‘consistently underperforming,’’ including both the level and duration of underperformance required. 

Because ESSA requires States to ensure that their accountability systems clearly 

identify and require action in any school that is consistently underperforming for 

any group of students. The fact that both school identification and action are triggered by ‘‘consistent underperformance’’ the way this term is defined will be critical 

to ensuring that schools are held accountable for the performance of all groups of 

students. A lax definition could allow some students to languish for years in schools 

that are not serving them well. 

• In alignment with the statute, States are prohibited from measuring the performance of a super-group of students in place of individual student groups. In recent years, as more and more States have been designing their own accountability 

systems, many have chosen to base their school ratings either solely on schoolwide 

average performance, or on schools’ performance for students overall and for a 

super-group of students. As a result, in most States, school ratings tell parents and 

community members little about how schools are performing for individual groups 

of students. Schools that are doing fairly well on average, but are performing poorly 

for, for example, their poor students, or their students with disabilities, are allowed 

to ignore this underperformance. 

• School accountability [summative] ratings, or combination of ratings (be they 

letter grades, other labels, index values or rankings etc.) must reflect how each 

school is performing for each group of students that it serves, as well as whether 

the school is consistently underperforming for any student group. Ratings must be 

based on disaggregated results for each group of students, and differentiate schools 

that consistently underperform for any group. 

• States demonstrate how their exit criteria for schools identified for comprehensive support and improvement, as well as for those requiring additional targeted 

support and improvement (a) require meaningful, sustained improvement on the indicators in the system, and (b) are related to the State’s long-term goals and interim 

progress targets. Exit criteria are public and States must describe how the school 

meet the criteria. 

• States specify what constitutes ‘‘unsuccessful implementation’’ of improvement 

plans in targeted support and improvement schools; timelines for escalated action 

in comprehensive support and improvement and additional targeted support and improvement schools; and, describe how they will ensure that their districts take acHELPN-003 with DISTILLER

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5 2013 The Inclusion of Students with Disabilities in School Accountability Systems, Institute 

for Education Sciences, U.S. Department of Education at: http://ies.ed.gov/ncee/pubs/ 

20134017/. 

tion in targeted support and improvement schools within a reasonable timeframe. 

The law is not clear on what constitutes ‘‘unsuccessful implementation’’—a term 

that is important both for setting clear improvement expectations and for preventing students from languishing for an extended period of time in schools that are 

not serving them well. Also, States must intervene in schools receiving comprehensive support and improvement that do not meet exit criteria within a State-determined number of years (not to exceed 4 years per ESSA). • States describe how they will determine the appropriate supports and interventions for comprehensive support and improvement schools and additional targeted 

support and intervention schools that do not meet State-determined exit criteria. In 

addition, States should be required to describe how they will ensure that their districts will take similarly meaningful action in targeted support and improvement 

schools that do not make necessary improvements. 

In addition to the specific accountability provisions articulated above, COPAA has 

also advocated for title I regulations that, in summary, support a strong accountability system and provide: 

• clear requirements for identification, intervention and exit criteria for schools 

in each of the three categories identified in the law—the bottom 5 percent, schools 

with graduation rates below 67 percent and schools with consistently low performing groups of students; and assure evidence-based intervention systems focused 

on raising achievement are initiated whenever any school is underperforming for all 

students or for any student group so that students don’t languish year after year 

without help; • definitions and/or parameters set for new statutory terms—specifically for new 

terms: ‘‘meaningful differentiation,’’ ‘‘substantial weight’’ and ‘‘much greater weight’’; • specifications that the 95 percent participation requirement is included in the 

accountability system so the performance of students matters, provide Federal guidance on options for doing so and define consequences for failure to meet the requirement; 

• assurances for support to districts to reduce bullying, harassment, use of disciplinary practices (e.g. suspension and expulsion) and use of aversives (e.g. seclusion and restraint), all of which disproportionately impact students with disabilities 

and students of color; 

• universal access in all data reporting; cross-tabulated data and expansion on 

the availability of data disaggregated by Asian American and Pacific Islander categories; 

• clarity that supplement, not supplant provisions presume and ensure an equal 

base of actual per-pupil funding before any Federal funds are considered supplemental. 

ACCOUNTABILITY: CALCULATION AND REPORTING

The basis of a good accountability system is a reliable cell size, or N size. The 

minimum subgroup size, or ‘‘N’’ size, established by many States under NCLB resulted in seriously limiting accountability for students with disabilities. A 2013 report of subgroup sizes used in States found that across 40 States with relevant data 

for the 2008–9 school year, slightly more than a third (35 percent) of public schools 

were accountable for the performance of the students with disabilities subgroup, 

representing just over half (58) percent of tested students with disabilities in those 

States.5

States must assure the subgroup data used as the basis of their accountability 

determinations and reporting truly reflect the students attending school while still 

protecting privacy. COPAA has also advocated that in addition to ED providing regulations that provide a range for statistically reliable and acceptable N sizes to 

States so that as many students are included in school, district and State accountability metrics as possible and that ED must also clarify that while subgroup size 

must be the same for all subgroups, subgroup size may vary depending on the metric, i.e., proficiency, participation and graduation rate.) While subgroup size for proficiency involves statistical reliability (the degree of confidence associated with the 

decision of whether or not enough students in a subgroup performed above the cut 

point for proficiency to meet the annual objective), test participation and graduation 

rate calculations are only tempered by the requirement to not reveal personally 

identifiable information (the inability to determine from the subgroup values reported how an individual student performed on an indicator). 

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Accountability for the outcome of each child’s journey remains critically important 

and matters more than ever. We must not give into the belief and argument by 

some that all our struggling schools need is just more resources and more time. 

COPAA insists that accountability at the school and district level is often the only 

tool to assure action occurs when low income, minority, English learners and students with disabilities are in miserable need for more. 

RULEMAKING AND MOVING TOWARD IMPLEMENTATION

As we anticipate new regulations to be promulgated on ESSA’s accountability provisions, COPAA supports ED’s goal to assure such regulation provides clarity to 

States and districts as they strive to implement the new law. In previous testimony, 

COPAA said: 

COPAA and its civil rights and business coalition partners are confident that 

the provisions [in ESSA] are specific and limited enough as to not erode the regulatory authority of ED. The statutory language acknowledges that regulations 

will be promulgated. In so doing, the Secretary of Education will issue regulations that clarify and interpret statutory provisions to help schools and districts 

in implementing the law and to protect the rights of all children—without exceeding the scope of the statute and without being inconsistent with the statute. 

This regulatory action is necessary and appropriate to fulfill the requirements 

of the law. It is clear that ED has the correct regulatory authority to develop 

regulations for implementation, as noted in the beginning of section 

1111(e)(1)(A). Prior to enactment of the ESSA, at no time has the Secretary of 

Education had the authority to promulgate regulations that are inconsistent 

with or outside the scope of Federal law. 

We know from past history regarding civil rights laws that we need regulations in order to ensure the law is implemented. The effect of no regulations 

means that courts must adjudicate the intent of the statute. An example is the 

turmoil that happened when the section 504 statute of the Rehabilitation Act 

was passed in 1973 and there were no regulations issued. In order for this law 

to become effective, regulations had to be issued defining who was a ‘‘person 

with a disability’’ what did ‘‘otherwise qualified’’ mean, what constituted ‘‘discrimination’’ and ‘‘nondiscrimination’’ in the context of disability etc. Enforcement timelines had to be developed as well as an administrative enforcement 

mechanism. The regulations would provide a consistent, coherent interpretation 

of 504s legal intent rather than leaving it up to any judge who heard a 504 case 

to interpret what the law meant. There was much delay; the disability community filed a lawsuit in Federal court; the judge ruled that regulations must be 

issued but not when. After much back and forth with the Carter administration, 

regulations were finally issued in 1977. History has taught us that the courts 

are not set up to be experts. 

We also know that States’ provisions that restrict entitlements established by 

Federal statutes are void under the Supremacy Clause of the Constitution. The 

Supreme Court has applied this principle in cases regarding benefit programs 

in which the Federal Government provides funding to States on the condition 

that they comply with the terms of the Federal program, the same arrangement 

that exists for special education under IDEA. The Court held that the State was 

not free to adopt a definition that restricted benefits in a way the Federal statute did not specifically authorize. 

In its simplest form, regulation allocates responsibility to implement statutory law. Our Founding Fathers were insightful in their separation of powers. 

The members of the Judicial Branch are experts in judging the law, Congress 

maintains the knowledge in making laws and the executive branch holds the 

expertise in implementing the laws. Where we get in trouble is where one 

branch tries to do the job of another. 

The test of regulations, guidance, technical assistance and other implementation 

activities for ESSA must be whether or not they advance educational equity and 

serve the interests of all students. Low-income students, students of color, students 

with disabilities, English learners, and Native students deserve no less than robust 

and thorough regulation to close opportunity and achievement gaps. 

COPAA is satisfied with the recent outcome of negotiated rulemaking on draft 

regulations focused on ESSA’s assessment provisions. In our view, a delicate balance 

was struck to ensure that all students are fully included in State assessment systems and that students with disabilities in particular will have access to testing accommodations and assistive technology and be properly included in State guidelines 

as required when States develop alternate assessments on alternate academic 

achievement standards. We were also content with provisions included to guide ED 

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in determining whether States can access annual waivers to exceed the cap on student participation at the State level on alternate assessments. Good statutory language helped support this thoughtful negotiation and we thank this committee for 

your leadership and support in protecting students with the most significant cognitive disabilities whose disabilities are often used as the sole reason to lower expectations and relegate such students to segregated settings thus limiting access to the 

regular classroom, to a regular diploma and to competitive employment. 

We were disappointed however, that agreement was not reached to ensure funding equity in the ‘‘supplement, not supplant’’ provisions because title I funding is 

critical to improving our most impoverished schools. Although students with disabilities are found in every school, the disability community is particularly concerned 

about the needs of students with disabilities in high-poverty schools and are likely 

to bear the brunt of weak instruction, insufficient supports and inadequate services 

which further stresses teaching staff who already have to do too much with too little 

and it perpetuates and widens the achievement gap for these students. Students of 

color who have disabilities are some of the most marginalized students in our 

schools today, they are more likely to be found in high-poverty schools than their 

White, nondisabled peers and are disproportionately impacted by harsh and exclusionary disciplinary practices. We cannot continue to deny these schools their fair 

share. Students with disabilities in high-poverty schools are the short-changed of 

the short-changed. These dollars mean more to them than just about anyone. 

CONCLUSION

It is COPAA’s hope that in State and district efforts to redesign and implement 

ESSA locally, that they will work with our families and others to use this as an 

opportunity to focus and target new policies and valuable resources on the serious 

and urgent needs of students. By doing so, COPAA believes ESSA implementation 

can support students in what is arguably the most important journey of their formative lives—their K–12 education. This new responsibility taken on by States can assure that the success of more students like Bruce Blair and Mariano are the reality 

for all of America’s children. Thank you for this opportunity and I look forward to 

your questions. 

The CHAIRMAN. Thank you, Ms. Marshall. 

Ms. Murguı ́a. 

STATEMENT OF JANET MURGUI ́A, J.D., PRESIDENT AND CEO, 

NATIONAL COUNCIL OF LA RAZA, WASHINGTON, DC 

Ms. MURGUI ́A. Thank you, Mr. Chairman. Chairman Alexander 

and Ranking Member Murray, I really want to thank you all and 

all members of the committee for the opportunity to appear before 

you here today and to discuss a subject that is so critically important to the civil rights community, this implementation of ESSA. 

For over a decade, I’ve served as President and CEO of the National Council of La Raza, NCLR. We’re the largest civil rights and 

advocacy organization in the United States representing Hispanics, 

and we represent over 250 affiliates which are community, localbased organizations serving Latino and immigrant populations nationwide. 

I was very proud to stand with many of you behind the President 

when this important legislation was signed into law. Thank you for 

your leadership. We know it has the potential to benefit 13 million 

Latino students and 5 million English learners across the country. 

For the first time, English learner students will be included in 

States’ accountability systems, and States must standardize entrance and exit criteria for these students. That is a big step. 

My remarks focus on Latino educational attainment. I will share 

ways that appropriate implementation of ESSA can improve outcomes for communities of color. Last year, American schools 

reached a significant demographic milestone. A majority of students in our classrooms were students of color. As schools across 

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the country have become increasingly diverse, Latino students 

make up 25 percent of our K through 12 enrollments, the second 

largest group of students in schools after white students. 

In part as a result of comparable standardized assessments and 

college and career oriented curricula, Latino students are now 

graduating at higher rates than ever, and they are enrolling in 

postsecondary institutions in record numbers. However, despite improvements in key areas, inequalities in access and achievement 

among Latino and other students of color remain persistent, and 

still too many Latino students are not college ready. 

According to the 2015 National Assessment of Educational 

Progress, regrettably, nearly half of Latino fourth graders were 

reading at below basic levels compared to 21 percent of whites, a 

startling statistic given our changing workforce. As the Department 

of Education moves forward implementing ESSA, it is important to 

recognize the legacy of the original Elementary and Secondary 

Education Act in promoting equity for our Nation’s most vulnerable 

children. 

It is imperative that Federal funds are used to supplement State 

and local resources for those most in need. Students in high poverty districts receive nearly 10 percent less in State and local funds 

per student than those in the lowest poverty districts, meaning students in districts most in need of extra services staff or educational 

supports, including English language instruction, are being shortchanged. The future success of students of color and English learner students in large part depends on addressing this resource gap. 

In addition to furthering equity, ESSA mandates that the Department of Education issue regulations to hold schools accountable if groups of students are not meeting challenging academic 

standards. While States and districts have flexibility in designing 

their accountability plans, the Federal Government must play a 

role to ensure progress for these students does not erode. To this 

end, the Department of Education should set clear parameters for 

State accountability systems and timely interventions for students 

falling behind. 

Finally, we know the Department of Education cannot fulfill its 

mandate alone. Stakeholders from the business and civil rights 

communities have a role to play to ensure States and districts 

faithfully implement the law’s requirements. Already, Conexio ́n 

Ame ́ricas, a Nashville-based affiliate, has organized partner organizations to jointly engage the Tennessee Department of Education 

on the State’s accountability and equity plans, making the case for 

needs of Latino and immigrant students. 

In the months ahead, these stakeholders will be closely monitoring the regulatory process to emphasize ESSA’s potential to promote an educational system that is transparent, accountable, and 

equitable to further the achievement of all students. 

Thank you, and I look forward to working with all of you as we 

implement this important law. 

[The prepared statement of Ms. Murguı ́a follows:] 

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1 U.S. Department of Education, ‘‘Digest of Education Statistics 2014,’’ Table 202.25, http:// 

nces.ed.gov/programs/digest/d14/tables/dt14l202.25.asp?current=yes (accessed May 15, 2016). 2 U.S. Department of Education, ‘‘Digest of Education Statistics 2013,’’ Table 203.60, http:// 

nces.ed.gov/programs/digest/d13/tables/dt13l203.60.asp (accessed May 15, 2016). 3 U.S. Department of Education, ‘‘Digest of Education Statistics 2014,’’ Table 203.50, http:// 

nces.ed.gov/programs/digest/d14/tables/dt14l203.50.asp (accessed May 15, 2016). 4 U.S. Department of Education, The Biennial Report to Congress On the Implementation of 

the Title III State Formula Grant Program. Washington, DC, 2012, http://www.ncela.us/files/ 

uploads/3/BienniallReportl0810.pdf (accessed May 15, 2016). 5 Ibid. 

PREPARED STATEMENT OF JANET MURGUI ́A, J.D. 

INTRODUCTION

Chairman Alexander, Ranking Member Murray, and distinguished members of 

the committee, thank you for inviting me to appear this morning on behalf of the 

National Council of La Raza (NCLR), where for more than a decade I have served 

as the president and CEO. I thank you for your leadership to enact bipartisan, comprehensive education reforms and I appreciate the opportunity to provide expert testimony today on the implementation of landmark civil rights legislation, the newly 

reauthorized Elementary and Secondary Education Act. This law is a top priority 

for the Nation’s 55 million Latinos and its successful implementation is vital to the 

Nation’s future. 

NCLR is the largest national Hispanic civil rights and advocacy organization in 

the United States, an American institution recognized in the book Forces for Good 

as one of the leading nonprofits in the Nation. We have a network of more than 

250 Affiliates—local, community-based organizations in 41 States and the District 

of Columbia that provide education, health, housing, workforce development, and 

other services to millions of Americans and immigrants annually. 

Many of these Affiliates operate as charter schools, provide early education, or 

offer after-school programming or family literacy services. The programmatic efforts 

of our Affiliates helps to inform NCLR’s national policy agenda. 

NCLR was on the forefront of embracing standards-based education reforms and 

has a record of supporting policy grounded in student-based outcomes that will result in equality of opportunity for all children, regardless of circumstance. We applauded the passage of the Every Student Succeeds Act as a much-needed update 

to our Federal education law, but recognize that passage was just the first step. It 

is critical that ESSA be implemented in a manner consistent with the original Elementary and Secondary Education Act to ensure its promise for all students. 

My testimony today will focus on the importance of ESSA in closing the achievement gap for students of color, and the ways in which implementation can further 

this goal. I strongly believe that if implemented appropriately, ESSA has the opportunity to prepare a new generation of students, including English learners, for a 

changing and competitive U.S. workforce. 

CLOSING THE ACHIEVEMENT GAP

Last year, American schools reached a significant demographic milestone: a majority of students in our classrooms were students of color. As schools across the 

country have become increasingly diverse, much of the shift can be attributed to the 

Latino students who account for 25 percent of our K–12 enrollments and represent 

the second-largest group of students in schools after White students. In 2013, Hispanic 3- and 4-year-olds alone made up nearly 40 percent of our current pre-K enrollment.1 This fact has prompted the U.S. Department of Education to project that 

by 2024, Hispanic students will account for nearly one-third of total enrollments, 

from early childhood through grade 12.2

In addition to overall population growth, the Latino population is no longer concentrated in a few States. In 2012, every region in the United States experienced 

growth in the share of Latino students in schools.3 In fact, according to a report 

from Pew Hispanic Center, in 2012, Hispanics made up more than 20 percent of kindergarten classes in 17 States. As a result, policymakers and other leaders in education must work to ensure that our educational system prepares all children, including the growing Latino population, for academic success. 

As the number of Latino students has increased in recent years, the number of 

English learner (EL) students has also grown. Currently, there are nearly 5 million 

ELs enrolled in schools across the country.4 Nearly 80 percent of EL students are 

from a Spanish-speaking background.5 In the last decade, the EL population has inHELPN-003 with DISTILLER

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6 Ibid. 

7 NCLR calculation using U.S. Department of Education, ‘‘Digest of Education Statistics 2013,’’ 

Table 203.50, http://nces.ed.gov/programs/digest/d13/tables/dt13l203.50.asp (accessed May 

15, 2016). 8 U.S. Department of Education, ‘‘Digest of Education Statistics 2013,’’ Table 219.70, http:// 

nces.ed.gov/programs/digest/d13/tables/dt13l219.70.asp (accessed May 15, 2016). 9 U.S. Department of Education, ‘‘Digest of Education Statistics 2013,’’ Table 302.60, http:// 

nces.ed.gov/programs/digest/d13/tables/dt13l302.60.asp (accessed May 15, 2016). 10Daria Hall, ‘‘The Every Student Succeeds Act: Implications for State and Local Policymakers’’ (presentation, The Education Trust, Washington, DC, March 2016). 11 Ibid. 12 Ibid. 

creased by 7.1 percent,6 predominately in States in the Midwest and Southeast that 

traditionally have not had significant EL populations.7

In part as a result of comparable standardized assessments and college- and career-oriented curricula, Latino students are now graduating from high school at 

higher rates than ever,8 their high school dropout rate is the lowest it has ever 

been, and they are enrolling in postsecondary institutions in record numbers.9 However, despite improvements in key areas, inequities in access and achievement between Latinos and their peers remain. 

According to the 2015 National Assessment of Educational Progress (NAEP), 

nearly half of Latino fourth graders were reading at below basic levels compared 

to only 21 percent of Whites (Chart 1).10 These disparities are even starker for 

Black students: only 18 percent of students scored proficient in fourth-grade reading 

compared to 46 percent of Whites in the same year.11 Scores for math show similar 

data in disparities among students of color and their White counterparts. Fewer 

than one-third of Black, Latino, and Native American students scored proficient in 

eighth-grade math,12 a startling statistic given the increased demand for highskilled jobs in our Nation’s workforce. 

Source: National Center for Education Statistics, NAEP Data Explorer, http:// 

nces.ed.gov/nationsreportcard/nde/. 

As diversity increasingly becomes a fact of our Nation’s education system, it is important that policymakers at all levels of government assess current supports and 

services to ensure that the instructional needs of Latino students and their families 

are met. Schools must be prepared to teach a changing population of students, including more ELs. To address this reality, schools need financial resources to provide essential professional development for personnel and educational supports to 

create an inclusive environment that attends to the cultural and linguistic needs of 

Latino and EL students. Teachers, administrators, and others must have the tools 

necessary to help these students achieve college- or career-readiness. 

ADDRESSING RESOURCE INEQUITIES

The Elementary and Secondary Education Act was enacted in 1965 to provide resources for our Nation’s must vulnerable children—children living in poverty with 

few opportunities available. Consistent with this goal, it is imperative that Federal 

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13 Natasha Ushomirsky and David Williams, ‘‘Funding Gaps 2015: Too Many States Still 

Spend Less on Educating Students Who Need the Most,’’ (Washington, DC, The Education 

Trust, 2015), http://edtrust.org/wp-content/uploads/2014/09/FundingGaps2015lTheEducationTrust1.pdf. 14 Ibid. 15Letter from Catherine E. Lhamon, Assistant Secretary for Civil Rights, U.S. Department 

of Education, Office for Civil Rights, ‘‘Dear Colleague Letter: Resource Comparability,’’ http:// 

www2.ed.gov/about/offices/list/ocr/letters/colleague-resourcecomp-201410.pdf. 16 Ibid. 17 Ibid. 

funds are used to supplement State and local resources for those most in need. Yet, 

a recent analysis from the Education Trust found that students in high-poverty districts receive nearly 10 percent less in State and local funds per student than those 

in the lowest-poverty districts (Chart 2).13 Students in districts most in need of supplemental funds are literally being short-changed. 

Chart 2: Average State and Local Revenues Per Student, by Poverty Quartile 

Source: Education Trust. 2015, Funding Gaps 2015, http://edtrust.org/ 

wpcontent/uploads/2014/09/FundingGaps2015lTheEducationTrust1.pdf. 

When the data is disaggregated by race, patterns emerge wherein school districts 

with high numbers of students of color receive less in local funding than districts 

serving few students of color. Nationally, districts serving the most students of color 

receive roughly $2,000 or 15 percent less in State and local funding per student 

than districts serving the fewest.14

As enacted, ESSA requires that Federal funds, including funds for titles I and III, 

supplement rather than supplant dedicated State and local funding. At its core, this 

provision is designed to provide eligible students in high-poverty districts with extra 

services, staff, or educational supports, including English language instruction, that 

would not otherwise be available to them. 

However, there is a pattern of unequal access to educational resources for students of color and ELs: 

• English learners represent 5 percent of high school students, but only 2 percent 

of Advanced Placement course enrollment.15

• Latino students represent 21 percent of high school enrollments, but only 12 

percent of students enrolled in calculus.16

• Black and Latino students are 1.5 times more likely to be taught by novice 

teachers compared to schools with lower Black and Latino enrollments.17

Lack of access to rigorous coursework and effective teacher supports inhibit students from reaching their full potential. Unequal educational resources for students 

of color undermine the goals of our civil rights and K–12 law—to provide each stuHELPN-003 with DISTILLER


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18 Every Student Succeeds Act, Public Law 114–95, 114th Cong., 2d sess. (December 10, 2015). 19 Civil Rights Act of 1964, Public Law 88–352, 78 Stat. 241 (July 7, 1964), Title VI. 20 Jens Manuel Krogstad and Richard Fry, ‘‘Dept. of Ed. projects public schools will be ‘majority-minority’ this fall,’’ Pew Research Center, August 18, 2014, http://www.pewresearch.org/facttank/2014/08/18/u-s-public-schools-expected-to-be-majority-minority-starting-this-fall/ 

(accessed May 15, 2016). 

dent with a high-quality education regardless of race, ZIP code, or national origin.18 19

FULFILLING ESSA’S PROMISE

As a result of the leadership on this committee, Congress, and stakeholders in the 

civil rights community, ESSA includes landmark provisions for EL students. For the 

first time, States must include EL students in their accountability systems. Moving 

forward, advocates must solidify these hard-fought policy victories through extensive 

State-level engagement. State plans must include challenging goals for English language proficiency and find appropriate ways to include English language proficiency 

in school ratings systems. States must also report on ELs with disabilities and longterm ELs so parents and stakeholders can ensure these students receive needed 

supports. Additional resources authorized under the law should be appropriated to 

help improve outcomes for EL students. For too long, programs for EL students, especially in high-poverty districts, have not been adequately supported. 

ESSA provides the Federal Government with appropriate authority to pursue an 

education agenda strongly rooted in distributional equity to improve the educational 

outcomes for children. For example: 

• The law requires States to adopt high standards aligned with credit-bearing 

coursework at State systems of public higher education to ensure students are receiving a 21st century education. 

• States must annually assess students in reading and math in grades three 

through eight and once in high school and issue a science test at each grade span 

to ensure students are meeting challenging academic standards. 

• Critically, the law requires targeted supports and interventions, including additional resources, for schools if a subgroup of students is consistently underperforming. This hard-fought victory for the civil rights and business communities ensures that all students, regardless of income-level or race or ethnicity, will have the 

opportunity for success. 

The U.S. Department of Education has an obligation grounded in ESSA’s legislative intent to promulgate robust regulations related to accountability. Likely, without strong Federal oversight, progress for students of color seen over the last decade 

will erode. While the law cedes significant discretion to States and districts in the 

design of their accountability plans, as a counter-measure it also mandates consultation with key stakeholders including the civil rights community, the business community, and community-based organizations, like NCLR Affiliates. For example, 

Conexio ́n Ame ́ricas, a Nashville-based Affiliate, has proactively engaged the Tennessee Department of Education on the State’s accountability and equity plans, 

making the case for needs of Latino and immigrant students. Other States and districts may benefit from this type of stakeholder input. 

In addition, the U.S. Department of Education has ample authority to regulate 

elements of ESSA to promote the educational advancement of low-income students. 

Beyond resource-based rulemaking, the Department of Education should examine 

the following: 

• Making systems work for low-income kids through strong accountability guidance. 

• Providing timely interventions for students who are falling behind academically. 

• Addressing resource inequities for students in high-poverty schools and ensuring that students who need additional supports, like English learners and students 

with disabilities, can reach their full potential. 

As the Department begins its regulatory process, the goal is always to ensure a 

thoughtful focus on educational equity and advancing the educational achievement 

for all kids, especially those in vulnerable situations. 

CONCLUSION

Despite clear gains, barriers remain for students of color in achieving academic 

success. NCLR believes that poverty and other barriers to economic mobility will 

never be eradicated unless children from communities of color are thriving in our 

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20 Jens Manuel Krogstad and Richard Fry, ‘‘Dept. of Ed. projects public schools will be ‘majority-minority’ this fall,’’ Pew Research Center, August 18, 2014, http://www.pewresearch.org/facttank/2014/08/18/u-s-public-schools-expected-to-be-majority-minority-starting-this-fall/ 

(accessed May 15, 2016). 

classrooms. Composing more than 50 percent of today’s public school students,20

students of color are a significant presence in the K–12 system. The success of our 

Nation’s workforce is intrinsically tied to the academic success of these students. As 

a result, it is in our Nation’s interest to ensure that all children have the opportunity to obtain an excellent education, irrespective of the neighborhoods in which 

they live, their parents’ education level, and their family’s income. Targeted Federal 

intervention is necessary to set guardrails on State and district actions to achieve 

this. Our Nation’s students deserve nothing less. 

The CHAIRMAN. Thank you very much. We’ll now move to a 

round of 5-minute questions by the Senators, and I’ll begin. 

Dr. Gordon, you’re a scholar of education, finance, and legislation. Let me ask you this. The language in the law on supplement 

and supplant has as its goal to say that a school district can’t use 

title I money to replace State and local money, a fairly straightforward proposal. The language, we thought, was pretty plain and 

clear. 

Why is there a need for regulation of that law? Isn’t it possible 

just to read the law and know what to do without the Department 

elaborating on it through regulation? 

Mr. GORDON. Thank you for your question, Senator. I’ll read the 

law, because there’s a lot of questions about the law, and it’s actually—— 

The CHAIRMAN. I only have 5 minutes here. 

Mr. GORDON. One sentence. ‘‘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 were it not receiving assistance 

under this part,’’ and this part is title I. 

To me, that sentence is clear. I have read that sentence more 

times than most people. I understand how clarification could be 

useful to some people. But, interestingly, this part of the law already applied to school-wide programs under No Child Left Behind, 

and the Department of Education issued extensive guidance in July 

2015 clarifying how to interpret this with examples—— 

The CHAIRMAN. Let me interrupt just because I have only 5 minutes for questions. If the effect of the proposed regulation, because 

it would require title I schools to spend, on average, an amount 

that’s at least as much or greater than non-title I schools, would 

you say that would be an attempt to equalize spending among 

schools in a school district? Wouldn’t the effect of doing that attempt to equalize spending? 

Mr. GORDON. I’m not an attorney. I’m an economist. To me, yes. 

The CHAIRMAN. There’s a provision in the law, 1605, that says, 

‘‘Nothing in this title shall be construed to mandate equalized 

spending per pupil for a State and local education agency or 

school.’’ I agree that the proposed regulation specifically attempts 

to equalize spending, which could be a laudable goal. I think Wyoming may do that. It may be the only State that does that. But the 

Federal law says you may not do that. 

Let me move to Ms. Weingarten for a moment. You mentioned 

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lation either contradicting or not following specific provisions of the 

law, but what that might mean for future regulations. 

My understanding was that the whole discussion, or most of the 

discussion, about fixing No Child Left Behind was—the consensus 

that we had was we’d keep the federally required tests, and we’d 

even expand the amount of data that was used to let people know 

what the results of the tests were, but then what to do about the 

results of the tests became the responsibility of those closest to the 

children, the classroom teachers, the school boards, the Governors, 

the legislatures, and the parents. That’s called the accountability 

system. 

What about what the Department is doing with this proposed 

regulation worries you about what might happen with future regulations involving the so-called accountability system? 

Ms. WEINGARTEN. Thank you for the question. I share Janet 

Murguı ́a’s concerns in terms of the accountability system. That is 

where most of the real thought needs to go into. What are the 

guardrails and what is the flexibility that States should have to actually think about what constitutes real student learning these 

days, and how do we actually help kids get there, particularly our 

most vulnerable kids? 

The fact that the Department seems to be doing same old, same 

old, in terms of trying to rewrite history regarding supplement, not 

supplant as opposed to really thinking about how do we ensure 

that there’s flexibility that really looks at what kids need through 

the lens of the practitioners, is what is concerning all of us—issues 

like the weights, the definition of significant, the definition of evidence, what’s going to happen in terms of the 95 percent participation rate. So it is whittling away the good will that all of us have 

to actually helping all kids succeed, particularly our most vulnerable kids. 

The CHAIRMAN. Thank you very much. 

Senator Murray. 

Senator MURRAY. As I said at the beginning of this hearing, 

ESEA is fundamentally a civil rights law to provide all children access to a fair and equitable high quality education. ESSA maintains that commitment by requiring States to annually classify 

each school where any subgroup of students is consistently underperforming and districts to take meaningful action in these schools 

to improve student achievement. I agree with the civil rights community, including those who advocate for the rights of students 

with disabilities, that without strong regulations, our Nation’s most 

vulnerable students could be ignored or left behind. 

Ms. Marshall, I wanted to ask you if you can speak to why a regulation should focus on performance of individual groups of students rather than on comparing students to each other within the 

same school. And can you explain why that’s particularly important 

for students with disabilities? 

Ms. MARSHALL. Thank you, Senator Murray, for your commitment to equality and protection of the civil rights of students with 

disabilities. Students with disabilities are general education students first. It’s imperative that they be compared against the same 

State standards that every other student is compared against. 

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We want to make sure that they have a fair and equitable opportunity to both access and to benefit from their education. In order 

to find out how they’re doing in that regard as compared to peers 

at their grade level, we have to look at the subgroup or individual 

scores against the State standard. 

We want to make sure that we know how they’re doing in regards to the possibility of getting a diploma. Research is very clear. 

High expectations equal being further in life. Having no diploma 

basically equals lack of outcomes, no jobs, sitting at home. So the 

stakes could not be higher for our students. 

Senator MURRAY. For Ms. Garcı ́a and Ms. Weingarten, just yesterday was the 62d anniversary of the landmark Brown v. Board 

decision. GAO released a report detailing the relationship between 

resegregation and resource equity in our Nation’s schools. In particular, GAO found that schools with high percentages of low-income and minority students are less likely to have access to advanced course work and more likely to experience high rates of exclusionary discipline. 

ESSA requires any school in which one or more subgroups is performing at the level of the bottom 5 percent to address resource inequities and includes significant new reporting requirements related to resource equity. I want to ask both of you: How critical is 

the issue of resource equity, particularly in light of how far we still 

have to go in terms of the promise of Brown v. Board? 

Ms. ESKELSEN GARCI ́A. For all educators, resource equity is the 

game changer here. It’s what we haven’t been measuring. It’s why 

so many of the comments today were about let’s not go back to a 

numbers game where we pretend that if we hit this number, it 

must mean that we have equitable opportunity to learn. 

You can be measuring things on that dashboard. The dashboard 

is absolutely crucial for us, because when you have that collaboration between the professional educator that knows the kids, the 

parents, the administrators, the elected school board members, saying, ‘‘Here’s what we believe will be the game changer’’—how many 

of our students are graduating from high school having already 

earned college credit? You can measure that. 

That’s an opportunity to learn. That’s a program that could look 

very different if you’re in a rural community or an urban community, if you have a community college, if you have AP classes, international baccalaureate programs. We want to actually have that 

dashboard measure the real services and supports that those kids 

have. We believe that that is how you’re going to move the needle. 

Senator MURRAY. Ms. Weingarten, on the issue of resource equity? 

Ms. WEINGARTEN. Resource equity is absolutely essential. I 

would actually go a step further, which is not covered by this law, 

which is resource adequacy. We need to actually level the playing 

field for kids, and there are many, many times that vulnerable kids 

actually need a lot more, and that is baked into some of the title 

I formulas. What happens is we have to make sure that there’s not 

counterproductive efforts here. 

Adequacy and equity are essential to leveling the playing field. 

That includes a much broader view than just actual dollars. It includes—what are the programs? What do we need to do in terms 

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of dual-immersion? What do we need to do in terms of AP? What 

do we need to do to ensure that kids that I taught at Clara Barton 

High School, which was a title I school, could actually compete in 

debates against kids in Scarsdale High School, which was a very 

well-funded school? That requires a lot of thinking about how do 

you actually contour schools to the needs of your students. 

Senator MURRAY. I’m out of time. Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator Murray. 

Senator Enzi. 

STATEMENT OF SENATOR ENZI

Senator ENZI. Thank you, Mr. Chairman, and I’d like to start by 

stating that the actions of the U.S. Department of Education that 

they’ve taken over the last few months on a number of issues is 

of grave concern to me and the people that I represent. 

I want to thank all of you that have testified. You have provided 

some great information both in the printed testimony and what 

you’ve said. 

I want to thank the Chairman and Ranking Member for the tremendous leadership that they’ve provided so that this committee 

could have an influence on changing the law in a way that the 

President signed and that we’re now trying to get done. Now is not 

the time to implement the law differently. It’s important that we 

implement it as it was written, and we’re in charge of presiding 

over that, and this is a good start. It’s not the time to bring up 

things that were not agreed to and change the outcome through executive action. 

When I first got here, I had a principal who wanted to see where 

all the reports went that he had to do. He got leave from his school 

district to come back and spend a semester here, and he spent his 

time over at the Department of Education. When he reported back 

to me, he said, ‘‘You know, they take a look at every one of those 

forms. They make sure that every single blank has a logical answer. If it doesn’t, they send it back. And then when it’s completed, 

they file it and nobody looks at it.’’ We’ve been in the process of 

eliminating some of those in the meantime. 

This particular supplement, not supplant sounds like a new opportunity to get new reports that will contain a lot of information 

that may not be used or could be used detrimentally. I do know 

that the devastating effects that could be in the proposed 

changes—that it could have on States such as Wyoming. Wyoming’s Constitution, as the chairman mentioned, calls for a complete and uniform system of public instruction, one that mandates 

the equitable allocation of resources among all school districts in 

the State. 

Wyoming doesn’t need the Federal Government telling it how to 

provide equalized education for all students. We’ve been doing it 

since 1889 and taking it to court regularly to make sure that that 

would happen. It’s not just the dollars. It’s the supplies, and it’s 

even the school buildings that have to be equal. 

I’m hearing from my State that the proposed action by the Department of Education would cause the forced transfer of public 

school teachers across our county and maybe even the State. I’m 

the father of a public school teacher and the grandfather of public 

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school students, and there’s no reason that the Federal Government should be interfering with where my daughter chooses to 

teach or where my grandchildren get their instruction. 

Dr. Evers, can you tell me how this will impact frontier areas 

such as Wyoming? We’re the least populated State in the Nation. 

I understand the forced transfer of teachers sounds OK to individuals in this administration that don’t understand States like Wyoming or Wisconsin. It seems to me that rural and frontier States 

will be hit the hardest with such an outcome. As the superintendent of a rural State, can you tell me what kind of an impact 

this will have? 

Mr. EVERS. Absolutely. As an aside, one of the major issues in 

rural Wisconsin—and I’m sure in rural Wyoming—is who’s going to 

teach in those schools. We’re having an extraordinarily severe 

teacher shortage, and it can be blamed on a whole number of 

issues. I have my own opinions on that. 

But when we take the ability for local school districts, rural or 

local, and confine the way they hire people in a way that isn’t going 

to help kids necessarily, and we try to—and I get the idea that it’s 

important to have some transparency around equitable distribution 

of money. This just doesn’t get it. That’s the main thing. 

Rural districts have a very difficult time to begin with in hiring 

staff members. It would amplify that concern, in that it would take 

away principals and superintendents and those that do the hiring 

to really conflate a number of different issues that really doesn’t 

matter, and that’s the equalness of the distribution. 

It’s going to make their jobs more difficult to find high quality 

teachers. That’s the bottom line. For rural Wisconsin and Wyoming, that’s a huge issue. In rural areas, teachers are the main 

backbone of those communities, and we have to make sure that we 

get the best people in those positions. 

Senator ENZI. Thank you. I’ll be providing you with some written 

questions regarding the negotiated rulemaking panel that you’re 

on. 

I want to thank Dr. Gordon for the specificity of accounting consequences that you had in your testimony and in what you said, 

and I’ll be providing some more questions regarding that. I know 

that those have a tendency to put the audience to sleep, but they’re 

really important to what we’re doing. Thank you. 

The CHAIRMAN. We have one accountant on the committee, which 

is Senator Enzi. 

Thank you, Senator Enzi. 

Senator Bennet. 

STATEMENT OF SENATOR BENNET

Senator BENNET. Thank you, Mr. Chairman. 

Thank you to the panelists for being here today and for everything you do for our schools and for our kids. It’s been said today 

that this Federal law is a civil rights law, and I believe that. What 

that means for me as we sit here is thinking about the millions of 

children that are marooned in public schools, rural and urban, in 

America today that are schools that nobody on this panel would 

ever send one of our own kids or grandkids to. 

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It’s the reason I worked so hard to try to close the comparability 

loophole. We didn’t get there. We did get important reporting language on reporting actual salaries and other costs. I think that’s 

important because it will equip teachers and parents with information they need to be able to make the case going forward about how 

to create a system of public education that actually will work in 

America for kids living in poverty. That won’t be done by the people on this panel. It’s going to be done by all of you and the people 

that you represent all across America. 

Let me start with one question. We are one of three countries in 

the OECD who spend more money on wealthy students than we do 

on poor students. Is there anybody on the panel who will defend 

that system in terms of closing the achievement gap in the United 

States? In other words, do you expect that if we continue to spend 

more money on wealthy kids than we do on poor kids that we will 

have any hope of closing America’s achievement gap? 

[No verbal response.] 

Senator BENNET. It was said today—there was testimony today, Mr. Chairman—I think we spend $620 billion all in on education 

in America, and if you’re running a decent school district, 80 percent of that ought to be spent on teachers, or more, in my view. 

Testimony from my fellow superintendent today was that, ‘‘there is 

no relationship between salary level and teacher effectiveness.’’ 

Does anybody want to defend that? There is no relationship between the expenditure of 80 percent of what we spend and effectiveness of teachers. 

Randi. 

Ms. WEINGARTEN. Of course, there’s a relationship. I won’t speak 

for who is an amazing superintendent in Des Moines. But there is 

much evidence that there is a relationship between the experience 

of teachers and the stability of schools, and, frankly, part of what 

we’re trying to do in schools that are struggling is how do we nurture and secure great teachers to stay at those schools. Both in a 

macro and a micro way, there are real correlations here. 

I think what my colleague was saying is that the dollar for dollar 

piece that the Department is proposing doesn’t get you to the equity issues that you have spent your life, Senator—— 

Senator BENNET. You as well. What I’m saying is whether the 

Department ends up with this rule or doesn’t end up with this rule, 

the reality is the way we are spending resources in this country, 

I’m the first to say—maybe I’ll be the second or third, because the 

two of you are here—the first to say we should pay teachers more 

in this country. It’s a disgrace what we pay teachers in the United 

States. 

But how we pay them really is important. I don’t think we 

should be having people come here 10 years from now and say, 

‘‘There is no correlation between how we pay teachers and their effectiveness.’’ I think we need to work together to make sure that’s 

not the case, because then you can’t make the case that we should 

have more resources. 

It worries me that we continue to come here and tinker around 

the edges, and the reality is that if we don’t have a solution to the 

kids that are showing up to kindergarten having heard 30 million 

fewer words than their more affluent peers, if kids don’t have a 

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choice of a school that any of us would send our kid to, and if higher education continues to accelerate in its cost so that if you’re in 

the bottom quartile of income earners, to go to college it costs you 

85 percent of your net income, whereas if you’re in the top income, 

it’s 15 percent—you add all that together, and our system of education is reinforcing the income inequality that we have and the 

opportunity gap that we have, rather than liberating people from 

it. 

That’s an invitation from me to anybody on this panel to figure 

out how we go forward so that 10 years from now, we’re not sitting 

here seeing these kinds of results. That’s going to happen in America, not here. 

Ms. MURGUI ́A. Can I just comment on that, Senator? 

Senator BENNET. I have 7 seconds left, but please do. 

Ms. MURGUI ́A. It took an extraordinary amount of effort for us 

all to barely come together to get this law over the finish line. It 

required a lot of engagement of a lot of stakeholders. Honestly, as 

we look to implement this law, we’re going to have to do the same 

thing, local district by local school district, State by State. 

For those of us who are very invested in seeing that equity outcome that we know is so important and consistent with our American values, we believe that that flexibility is there now that we’ve 

created this law. But it does not, in my view, undermine the importance of requiring appropriate rigorous Federal oversight. And 

striking that balance as we move forward is going to be the challenge and the charge for all of us. 

I feel in many ways our work has just begun as we look at how 

we’re going to try to do this with that flexibility in mind. But I 

want a guarantee of strong, appropriate Federal oversight as we 

move forward. 

Senator BENNET. Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator Bennet. 

Senator Isakson. 

Senator Murkowski, I made a mistake. Senator Murkowski is 

next. I’ve done that once before. I don’t want to do it twice, Johnny. 

Excuse me. 

Senator MURKOWSKI. Actually, Mr. Chairman, I will defer to Senator Isakson, as I just came back in and I’m just finding out what 

has already been discussed. I will defer to Senator Isakson. 

The CHAIRMAN. Thank you, Senator Murkowski. 

Senator Isakson. 

STATEMENT OF SENATOR ISAKSON

Senator ISAKSON. Thank you, Mr. Chairman. 

Thank you, Lisa. I appreciate that. 

Thank you to Ranking Member Murray. 

I want to commend the Chairman and the Ranking Member on 

their leadership on ESEA and the Every Student Succeeds and the 

point we’re at today. I think it’s going to be a great empowerment 

for local boards of education and for the State boards of education 

to carry out the educational mandate in their State. 

Throughout the debate—and I’m one of the last remaining people 

that wrote No Child Left Behind, so I will still readily admit that. 

It was a great act for 6 years, but it went through 7 years where 

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it wasn’t reauthorized, and it became an impediment rather than 

an asset because it became harder and harder to make adequate 

yearly progress, and the ceiling got too low, and people ended up 

being put into non-performing schools that shouldn’t have been put 

in that category. 

The thing I focused on the most were children with disabilities 

and the assessment of children with disabilities. I’m married to a 

special ed teacher. When I chaired the State Board of Education in 

Georgia, I worked hard on psycho-education and our kids with disabilities, learning disabilities, to try and provide as much quality 

rules as we could and quality education. 

One of the things we had was a 1 percent exception, I guess 

you’d call it, for kids with that kind of disability to have an alternative assessment rather than the mandated test under No Child 

Left Behind. We rewrote in the Every Student Succeeds Act the 1 

percent cap stayed for the State, but it was overruled by a regulation that said that the State board could not keep a local system 

from determining if a kid needed an alternative assessment based 

on the IEP or the Individuals with Disabilities in Education Act to 

ensure there was more flexibility. 

The 1 percent cap really doesn’t apply because the State and the 

local education agencies—IDEA governs and the IEP is the governing document to determine whether the alternative assessment 

is necessary or not. As two superintendents, Mr. Ahart and Dr. 

Evers, would you tell me how that’s working and how you intend 

to carry that out in your respective systems? 

Mr. EVERS. That was an issue of lots of discussion, if the negotiated regulations work. And it is. ESSA has flipped the equation 

in that. Schools aren’t held to the 1 percent. States are. I think it’s 

an obligation as a State to make sure that we don’t, as a State, exceed the 1 percent. 

Asking for a waiver for any particular district, we have to go 

through a relatively rigorous process to make sure it doesn’t happen. It’s going to be about providing technical assistance to those 

districts that exceed 1 percent, and we’ll do that. It’s our responsibility. In the past, it’s been a local responsibility, but it’s clear that 

this committee determined that the State needs to be accountable 

for that, which we will be. It’s something that we take very seriously. 

Senator ISAKSON. Dr. Ahart. 

Mr. AHART. Thank you, Senator. My district probably has a bigger challenge in meeting that 1 percent mark simply because of 

some of the specialized programming that we have for medically 

fragile and severely and profound disabled students. We always fall 

under that 1 percent mark. 

This is another example where it’s very difficult at the Federal 

level to set benchmarks that translate into an equitable measure 

at the State and local level. One of the things that came up during 

regulations negotiations was just this issue, and there’s certainly 

what seems to be a bit of a paradox there. The State can’t go over 

1 percent, but individual districts can. 

I would argue that a district could have a lower percentage of 

students with that alternative assessment than what I have in my 

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cause of the nature of the programming that we offer. I think with 

good guidance from the State and the State offices working closely 

with the local education agencies, I don’t see this as being particularly problematic. 

Senator ISAKSON. That’s good to hear, because Chairman Alexander made a point of making sure that we got out of the national 

school board business and empowered the local and State school 

boards. And this is one of those areas where if the Federal agency 

decides to enforce its side of that 1 percent, it would be negative 

for the local systems and the State. We want to empower you to 

be in control of education, and we appreciate what you do for our 

kids. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator Isakson. 

Senator Warren. 

STATEMENT OF SENATOR WARREN

Senator WARREN. Thank you, Mr. Chairman. 

We have spent a lot of time today talking about the financial accountability provisions in the new education law and about the Department of Education’s plans for enforcing these provisions. Now, 

we’ve heard concerns from witnesses who represent the professionals on the front lines implementing ESSA, but I want to make 

sure we have an opportunity to clarify a few key points regarding 

these provisions and why they’re in the law in the first place. 

Congress strengthened the financial accountability provisions in 

ESSA for a simple reason: to ensure that Federal money is used 

to meet the purpose of title I—and I don’t have a poster, but I’ll 

read it—to provide all children significant opportunity to receive a 

fair, equitable, and high quality education. And I underline all, not 

just children in wealthy districts. 

Ms. Weingarten, let me start there. Why do you believe that it 

is important for Federal law to require equity and adequacy in how 

education money is spent? 

Ms. WEINGARTEN. ESSA is a civil rights law, and it is about trying to make sure that there’s opportunity for all children. If that 

is the case, equity is absolutely essential in order to get to excellence. 

But as I was saying to Senator Murray earlier, what we’re seeing 

locally is that we have to actually have a fight for adequacy, too, 

because it’s not simply, what is equal. In order to level the playing 

field, we actually have to give our vulnerable kids more. As Senator 

Bennet said, we have to flip what’s going on in this country. What 

the law does is it starts us on that path, but it’s at the end of that 

path, and we need to be vigorous and rigorous in making sure that 

the kids who have had the least get the most. 

Senator WARREN. All right. Thank you. I agree. And let me followup on that by asking do you believe that the Department has 

the authority to ensure that States and districts do not divert State 

and local funds away from public schools in low-income neighborhoods? 

Ms. WEINGARTEN. I am very glad, Senator Warren, you asked the 

question in that way, because the entire testimony, we’ve been 

talking about increasing as opposed to diverting. I believe that the 

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Federal Government and the Department of Education has the authority to ensure that there is no diversion. 

They have that in three different ways. It’s not just the title I 

funding formulas that focus on concentration of poverty—and I 

think Dr. Gordon is probably better at this than I would ever be— 

but it’s the maintenance of effort issues and provisions, and it’s the 

SNS provisions, as were clarified several months beforehand. 

They do have that authority. They need that authority. Part of 

what we’re concerned about is making sure that it’s not overreach 

so that they can actually do their job. 

Senator WARREN. Good. Let me then turn to that part of it. They 

have the authority, but how can the Department enforce these provisions in a manner that doesn’t result in the unintended consequences that you and others have discussed? 

Ms. WEINGARTEN. That, frankly, should have been what consumed the time of the Neg Reg committee, with all due respect. As 

Janet said earlier, this is a very complicated law, and there is a 

lot of complicated factors, because it is very much a law that is 

about human behavior and about lots of different multiple parts, 

as many of the Senators and many of the witnesses have talked 

about. 

The law provides some very powerful new provisions, including 

transparency, and that transparency provision, as Dr. Gordon earlier said, can be over methodology, not just over resources. We need 

to actually see what the funding levels are. We need to see how 

those transparency provisions operate. That can be the first set of 

enforcement processes. Then, after that, one looks at what you do 

next. 

Right now, to move to some one-size-fits-all enforcement mechanism that’s not even allowed by the law seems not right. 

Senator WARREN. All right. Not in the right direction. Thank 

you. And I will ask more questions for the record. 

But financial accountability is about making sure that Federal 

dollars are used to make sure that the money goes to the children 

who need it most. There are legitimate disagreements over how the 

Department of Education can best enforce financial accountability 

provisions, but these are not disputes over whether those accountability provisions should be enforced or whether the Department of 

Education has the power to enforce those provisions. 

On that issue, I believe that the Democrats and the teachers are 

in very strong agreement. Republicans, on the other hand, seem to 

be arguing that financial accountability provisions of the law 

should simply be ignored. The Department needs to figure out how 

to enforce financial accountability in a way that doesn’t have unintended consequences that disrupt schools. It is critical that the Department listen to our teachers and to our school leaders. 

But ignoring accountability provisions is not an option. Financial 

accountability is essential to ensure that States and districts actually give our teachers the resources they need to do their jobs and 

that the States and districts use Federal money to help our most 

vulnerable kids get a decent education. That is the law. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator Warren. 

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I’d like to say to the witnesses that I have an unavoidable conflict at 11:40, and I will need to leave. But Senator Cassidy has 

agreed to chair the remainder of the hearing. I want to thank each 

of you for coming and for your excellent written testimony and for 

what you’ve said this morning. 

Senator Murkowski. 

STATEMENT OF SENATOR MURKOWSKI

Senator MURKOWSKI. Thank you, Mr. Chairman. 

Thank you all for the discussion this morning—very important 

on a lot of different levels. I come from a State where we spend a 

lot of money per pupil on our students, and yet the outcomes are 

not consistent throughout, most particularly in our rural areas. 

Back in 2007, a case was heard before our State supreme court 

brought by stakeholders in three rural districts, and this was based 

on the concern that these districts were low-performing because of 

a lack of funding equity. There was considerable deliberation, longterm fact finding. But the judge came back and said that the problem wasn’t money, because each rural district got about the same 

per pupil, but what they were seeing, again, were very different 

outcomes among them and among the individual schools. 

What the judge found was that the issue was the degree of State 

support and its effectiveness within different communities, or perhaps a lack thereof within the communities. So it was local support 

for schools. It was community-school relationships. It was effective 

and culturally relevant curriculum. It was teacher and principal effectiveness. 

The data really demonstrated that this was what mattered here, 

not that money doesn’t matter. You have to have the money in 

order to do these things. But the judge, back in 2007, denied the 

move for more money and ruled that what the State needed to provide was more effective State support. 

Then back in 2012, there was a settlement, because there was 

still an argument about whether or not adequate financial funding 

was being provided. In 2012, we see a settlement where the Department of Education and the State agreed to create programs to 

support pre-K, targeted resources, grants, teacher retention grants, 

exit exam remediation. But it went specifically to the level of support that could be made available to these respective districts, rather than a dollar for dollar comparison. 

I guess I’d throw it out to anyone here on the panel. Ms. 

Eskelsen Garcı ́a, I wasn’t here when you made the comment, but 

you apparently made a comment that we want to measure actual 

service and supports, not just the dollars. 

Can you all comment on this situation in Alaska and what our 

State’s courts found? 

Ms. ESKELSEN GARCI ́A. I want to begin by saying I was a Utah 

teacher, but I was a Fairbanks, AK, student at Ryan Junior High. 

Senator MURKOWSKI. There you go. A great middle school there. 

Ms. ESKELSEN GARCI ́A. I know what it’s like to go to school when 

the stars are still out in the middle of the day. I want to tell you 

that the best teaching assignment I ever had was the Salt Lake 

homeless shelter, because of the surrounding support that I had as 

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ers that worked with the family. There was a health clinic. There 

was a dentist that came in every 2 weeks. There were nutrition 

programs that they had. 

I was never alone. I had the support I needed, a professional who 

could deal with sometimes mental health issues that that family 

had. I understand when you say you do need—every school needs 

the technology, the textbooks, the facility. You need the stuff. 

You also need to deal with the reality of that child’s life, and 

some children come to us with so many more needs that aren’t met 

in their home, in their community. They come from homes where 

they don’t have disposable income sometimes to take a child to the 

dentist. So that child walks into our classroom in pain, and we 

have to do something about it, whether we’ve been given the resources to do anything about it or not. 

For me, it is more than just counting the dollars. The dollars are 

important, but you also have to say, ‘‘How creative can I be in seeing what kind of service and supports, what kind of community organizations are out there that can help me?’’ 

In Utah, we’re the lowest per-pupil funded school district in the 

Nation. We can stretch a dollar until you can see through it. We 

are the most creative educators on the planet. Give us more money. 

That would be nice. But whatever we’re given, then we try and leverage that into something more meaningful and supporting those 

children. 

That’s why we want to say which services, which supports, which 

programs—it may cost a different number of dollars in this community than in this community. For instance, I keep using support 

as—how can we make sure our kids graduate from high school having already earned college credit? What would that look like? It 

might look like something very different if you’re in Nome than if 

you’re in Anchorage, where you have a university right there, and 

another might look like something online. 

But what we want is that power of professionals working in collaboration in each community to design something that makes 

sense for that community. If what you’re measuring—do you have 

the ability; do these children have the opportunity to earn college 

credit before they graduate from high school; how many of them 

are doing that; how many of them used graduation day as a springboard into higher education? Describe what you’re trying to accomplish and then be creative about designing something that meets 

the needs of that specific school community. 

Ms. MARSHALL. Senator Murkowski, may I respond briefly? 

Senator MURKOWSKI. I’m over my time, but if the chairman allows it. 

Ms. MARSHALL. What jumped out at me that you said initially 

about the case was that the judge ruled that there was already a 

per-pupil equality in the expenditures. It sounded like that’s what 

you said, that he said it wasn’t the money that necessarily made 

the difference. 

For us, that equality is important, because I’ve been in a lot of 

schools on both ends of the spectrum. And when you walk in the 

front door, and the starkness of the resources hits you in the face, 

I cannot imagine how adding some extra dollars there actually 

equals supplement when the scale is so tipped. 

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Ms. MURGUI ́A. I would just add a point. We know right now that 

black and Latino students are 1.5 times more likely to be taught 

by novice teachers. Is there a dollar for dollar solution that’s going 

to directly address that in every part of the country and in every 

district and in every State? I’m not sure. But I do know that a zip 

code should not dictate the resources available to students. 

We need to make sure that there is an opportunity for the voices 

of those communities most affected and impacted by the plans that 

are going to be set forth at the State level to be represented. For 

us, having affiliates—and we have affiliates in Alaska—to have 

that voice heard so that they can be represented in those State 

plans is going to be an important part of getting to an outcome 

that, hopefully, achieves that equity that is at the heart of the 

original legislation and I believe is still embodied in this legislation. 

It’s the strong Federal oversight role that is going to ultimately 

be the counterbalance to making sure that that is set forward in 

a manner that’s consistent with what we’ve intended. 

Senator Cassidy [presiding]. Thank you. I didn’t mean to cut you 

off, but—— 

Senator MURKOWSKI. Mr. Chairman, thank you, and I would like 

to add that within the Alaska court, the supreme court there, the 

funding may have been equally adequate, but the problem was that 

the results are not. Again, when you’re trying to measure this dollar for dollar, this is where the discussion gets even more intriguing. I thank you for the additional allowance of time for others to 

answer and the opportunity to speak. 

Senator CASSIDY. Senator Casey. 

STATEMENT OF SENATOR CASEY

Senator CASEY. Mr. Chairman, thanks very much. In the interest 

of time, let me first say thank you to the panel for being here and 

for your good work on this legislation. I’ll submit a question for the 

record, which will focus on NEA, AFT, and La Raza. But I do, in 

my very limited time, want to direct a question to Ms. Marshall regarding the 1 percent cap on assessments for students with the 

most significant cognitive disabilities. I guess maybe two, if I can 

get to that. 

It’s good that we have this win, that we codified an important 

policy and made it law. I just wanted to ask you how do you 

think—in terms of how it’s going to work, how will this policy, 

which is a continuation of prior policy, help special education 

teams, help schools, help school districts making that very critical 

decision about which children should take which tests? 

Ms. MARSHALL. Thank you, Senator Casey, and I want to thank 

you for your leadership on this issue. It was a huge win for us to 

get this cap, and we are the students that are represented around 

the table at the IEPs whose teams are making these decisions, all 

too often for whom there is a lack of presumption of competence. 

Before there was such a cap, we saw untold numbers of students 

taken off access to the general education curriculum as early as 

second grade, and that’s just unconscionable. 

We think this cap is important. As someone alluded to earlier or 

stated earlier, it’s adequate. We have far more fights for students 

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56 

trying to stay on the regular assessment and graduate than we 

have who are not allowed to take an alternate assessment. That’s 

critical. 

I think the Neg Reg process put up some important guardrails 

to make sure that States and teams are asking the right questions 

and that they’re very careful not to put students on there on the 

basis of their disability or on the basis of their past test performance, but that they push harder to make sure those students have 

what they need to succeed. 

Senator CASEY. I wanted to ask you because I know your work 

validates this principle, and I think the policy we were able to get 

done in this bill validates that students with disabilities have a lot 

of ability, and that’s an important validation. I want to ask you 

how can we ensure that districts and States implement this guidance to ensure that all students are held to these very high expectations? What would you hope would happen? 

Ms. MARSHALL. In our experience, the clearer the guidelines, the 

brighter the lines, the easier it is for the families to enforce the 

law, and it falls on their shoulders. That’s why we appreciate the 

Federal oversight. We have needed it repeatedly. We continue to 

need it to this day to make sure our kids have access to what they 

need. 

In response to what Senator Enzi was saying before about the 

Department of Ed and the check boxes, we rely on that data. We 

need it. That’s how we can show how our kids are being shortchanged and what they need to be able to get equitable access to 

receive the benefit they deserve from an appropriate and excellent 

education, just like any other student. 

Senator CASEY. Thanks very much. I appreciate it. 

Senator CASSIDY. Thank you, Senator Casey. 

STATEMENT OF SENATOR CASSIDY

Senator CASSIDY. I may take a little contrarian viewpoint to 

some. 

Ms. Marshall, you mentioned the 1 percent cap. Let’s go back to 

those dyslexic children. I don’t think there’s any school district in 

the Nation which screens for dyslexia at grade one. And if anyone 

knows of such a district, please let me know. 

We have 20 percent of the population dyslexic, and at some 

point, somewhere between third and fourth grade, children—a typical child begins to learn to read, whereas the dyslexic child is still 

learning to read. I think I got that right. We’re going to have a 

standardized test in fourth grade which assumes fluency, and yet 

that child who is dyslexic is still learning to decode and is not a 

fluent reader. In a sense we have program failure. 

At fourth grade, we’re going to test 20 percent of the children in 

a way which they are not yet ready to be tested by. I suppose if 

you have a 1 percent cap, let’s imagine that in the future, some 

progressive school district would actually screen all the children 

and find that 20 percent. Would we still test them with the same 

standardized test, knowing by grade four that they will still not be 

reading adequately? For some reason, that doesn’t make sense to 

me. 

Dr. Evers, do you have any thoughts on that? 

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Mr. EVERS. I can tell you in my home, we do screening for children entering school, and it’s—— 

Senator CASSIDY. For dyslexia? 

Mr. EVERS. It’s a more general screening, but it has to do with 

understanding and decoding skills and skills relating to phonics 

and things like that. I’m sure some of those children are caught or 

captured by that screening. We have a State law that, at third 

grade, if students are requiring additional help because they’re not 

at grade level in reading, that school districts have to develop a 

plan for them, whether it’s special ed or not. 

I can answer the question generally. I believe our State is working hard to address the needs of dyslexic children. But if your question is do we do a screening specifically for dyslexia, the answer 

would be no. 

Senator CASSIDY. I haven’t found one that does, actually. Most 

rely upon, sort of, the child not doing well. But by grade three, the 

horse is out of the barn. If the child is not doing well by grade 

three, typically, that deficiency is going to persist. If we were able 

to screen these children, and knowing that they’ve not yet learned 

to read fluently, would we still give them the same standardized 

test at grade four that the other children are receiving, even if we 

know they have not yet learned to read fluently? 

Ms. Marshall, would you advocate doing so? 

Ms. MARSHALL. Yes, Senator Casey, I would actually—— 

Senator CASSIDY. I’m—Casey is the right—— 

Ms. MARSHALL. Oh, Cassidy. I’m sorry. 

Senator CASSIDY. That’s OK. My mother-in-law gets the same 

mistake. So don’t worry about it. 

Ms. MARSHALL. I don’t have my glasses on, so without that accommodation, I’m in trouble, and that actually gets to my point. 

We absolutely agree that students with dyslexia are not being 

screened, are not being taught, and the teachers don’t have the 

training they need. In fact, I will broaden that to say that all students with disabilities who this law protects, as well as every other 

student, have trouble reading and are not getting the services that 

they need to succeed. 

We often hear the argument that you have put forth around not 

taking the test. But it is our belief, again, that we need to know 

where students are against the standards. We should not throw 

them in there without the accommodations, and we should make 

sure—— 

Senator CASSIDY. Now, what would you say—— 

Ms. MARSHALL [continuing]. If you could just let me finish—— 

Senator CASSIDY. But I have limited time. What would you say 

is an accommodation for the child who has not yet learned to read? 

Ms. MARSHALL. It differs for each child. But they need to be able 

to have the accommodations and the supports that they use in the 

classroom to learn when they take the test, and that is of grave 

concern to us right now. We find that students are not having that 

accessibility. They have to be tested on the content, not on their 

ability to take the test. 

Senator CASSIDY. Let’s get granular, not just conceptual, but 

granular. If the child has not learned to decode, and the child does 

not read fluently, taking a test which presumes fluency, that child 

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is going to fail, period. Do we really want to make that child take 

that particular test, as opposed to another test which may—a different test which may, indeed, adjust for the fact that the child has 

not yet learned to read fluently? 

Ms. MARSHALL. I can’t make those decisions. It’s on an individual 

basis with each student. But as a general principle, we want our 

kids to count, and we want them to be part of the tests that all 

kids are taking to see where they are on grade level according to 

the State standards. 

Senator CASSIDY. But we would know that these 20 percent of 

the kids, despite whatever their IQ is, they’re going to read less— 

by definition, dyslexia is a disconnection between the two—those 

children are going to read less well. 

Ms. MARSHALL. But we’ve gotten rid of the punitive nature. The 

intention of the tests, the reason to take them, is to know where 

the students are and to give them the appropriate services and 

supports to move them forward. 

Senator CASSIDY. I’m not sure that we came to a common mind, 

but I’m out of time. 

Senator Murphy. 

STATEMENT OF SENATOR MURPHY

Senator MURPHY. Thank you very much, Mr. Chairman. 

Thank you to all the panelists for your time today. I have one 

general comment, and then one specific question for, our favorite 

target today, Ms. Marshall. 

Here’s my general comment. I think Ms. Weingarten got it right 

when she made it clear that this law is a civil rights law, first and 

foremost. The Federal Government is in the business of education 

policy because we’re in the business of civil rights. There’s no reason for us to be writing Federal education policy if it’s not, at the 

foundation, about equal opportunity for disabled kids and poor kids 

and minority kids, and I thought your answers to Senator Warren’s 

questions were spot on. 

But that’s a real uncomfortable thing for us to talk about, especially an uncomfortable thing for us to talk about when we’re sitting in front of a bunch of educators and superintendents and State 

officials, because what we’re saying is that without some Federal 

requirement that kids of color or poor kids or disabled kids be 

treated fairly, local political dynamics are going to accrue to the 

detriment of those kids, and that if you don’t have a Federal requirement, ultimately, those kids are not going to get a fair shake. 

It becomes a very difficult thing for us to talk about here. But 

it’s been at the foundation of our Federal commitment to civil 

rights and at the foundation of our Federal education law for decades. 

I do think it’s important and I have since the beginning of the 

drafting process for this law to have some strong accountability requirements and some high expectations for schools and for kids. I 

don’t think it ends at the text of the law. I think there’s a very important and appropriate role for the Department of Education to 

play in setting the guardrails for the financial accountability, as 

Senator Warren was talking about, or this accountability system. 

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I understand, Dr. Gordon, the ways in which a requirement to 

spend more money on poor kids may occasionally not work to their 

benefit. But I think in the aggregate, if you’re spending more 

money on title I schools, that’s going to help students in title I 

schools, even if maybe it provides some perverse disincentives here 

and there. 

On accountability, I think we’ve got a good accountability section 

in this bill. But we’ve got to make sure that the interventions that 

are being used to try to turn around schools are not just whitewash. If a school is failing, it’s not enough just to paint the front 

of the school green. You’ve got to actually do something that’s 

meaningful. 

It’s uncomfortable, because I don’t doubt the willingness of school 

districts and States to try to be partners in this. But the regulations are important to make sure that we’ve got some basic guardrails to make sure that what is happening to make these schools 

better for these populations is based on what we know works and 

what we know doesn’t work. 

I appreciate the conversation here. But I’m interested in the Department of Education continuing to move forward on regulations 

that are in the spirit of the accountability sections of our bill, and 

I don’t think there’s a lot of disagreement on that. 

Here’s my specific question to you, Ms. Marshall, and it’s on a 

narrow issue that is a passion of mine, and that’s the use of seclusion and restraints in our schools. According to the Department of 

Education’s latest civil rights data collection in 2011 and 2012, 

70,000 students across the country were physically restrained, and 

37,000 of them were secluded, and I think that’s the tip of the iceberg. 

I don’t think we understand how deep and broad this problem is, 

and I’ll take ownership of it in Connecticut. We’ve got a problem. 

Scream rooms being used to throw kids into so that they can 

scream out their problems so they’re not a disruption to everybody 

else. We included language in this bill, bipartisan language, that 

would require State plans to address the use of what the bill calls 

aversive behavioral interventions, which really means seclusion 

and restraint. 

What do you want to see from the Department of Education 

when it comes to the guidance that they give to schools on how 

they attack this issue of the overuse of both seclusion and restraint? 

Ms. MARSHALL. Thank you very much, Senator Murphy, for asking me this question, because it’s also a passion of mine, and also 

for your leadership in ensuring that that clause was added to the 

law. There were many tears and dances of joy when this portion 

of the law was included to make sure that there are positive school 

climates and that we need to take steps—schools need to unequivocally stop this abuse of students in our schools. 

Secluding a student in a locked room from which they cannot escape is known to be one of the most torturous things you can do 

to another person. Why are we doing that to our kids? 

Restraint can only be used in emergency situations. The research 

is clear. It’s used for power and control on little tiny kids. That 

must stop. I’d be happy to submit more comments for the record. 

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I would like to say one more thing, which is I spent years as a 

positive behavior support specialist in the school dealing with the 

kids with the most challenging behaviors to keep them in school 

and keep them learning. If you’re in a seclusion room or you’ve got 

four adults sitting on top of you, what are you or the other students who are watching this learning? 

The scream rooms in Connecticut were called that by the other 

students, because that’s what they heard, kids in a room screaming. Imagine that effect on a little child when they’re trying to 

learn. That’s a life lesson no child in this country should be subjected to. 

What I know has made the difference is not money. It is about 

training. It is about the belief and the confidence of the teacher to 

keep all kids safe, the support of the principals and the other people in the building to make sure they have those services around 

the kids who challenge the most. But it can be done positively, and 

it can be done without those barbaric practices. 

Senator MURPHY. No teacher ever wants to engage in that kind 

of practice. 

Ms. MARSHALL. Right. 

Senator MURPHY. You are right. This is about supporting plans 

to create the climates and atmospheres in schools to make sure 

that those situations never arise. 

Mr. Chairman, one additional caveat to my initial comment. I 

want to make the point that this conversation about accountability 

is also uncomfortable because we often place the burden on accountability simply on the superintendents and the administrators 

and the teachers. When you look at the difference in educational 

outcomes that still persist among different groups, it often has to 

do with all sorts of factors that exist outside of schools. 

This conversation about accountability that, of course, I think is 

incredibly important is not a conversation just about what happens 

inside the school. It’s a conversation about what is happening in 

systems at large that are controlled by, frankly, folks way above 

the pay grade of teachers and administrators and superintendents. 

Thank you, Mr. Chairman. 

Senator CASSIDY. Senator Whitehouse. 

STATEMENT OF SENATOR WHITEHOUSE

Senator WHITEHOUSE. Thank you, Chairman Cassidy. I would 

like, first, to make the point that under title I, we said quite clearly 

that a school must get—if I quote the text correctly—the funds it 

would otherwise receive under title I. We did not say it should get 

the same funds as other schools receive. We could have said that, 

but there wouldn’t have been agreement on it, and the law is fairly 

clear. 

What worries me is that if we get into a wrangle over this regulation re-reading the law as the latter statement rather than the 

former statement, which seems to me, as a lawyer, a reasonably 

clear statement, then we’re going to start to get distracted from all 

of the areas that we baked into this law where there was common 

agreement that there is a great opportunity for reform and innovation. 

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One of the keys was to open up curriculum. We had curriculum 

get slaughtered in title I schools, because everything that didn’t 

teach to the test got thrown overboard for fear that the boat would 

sink if the testing came back poorly. That was a terrible disservice 

to the students in those schools. We set up innovative dashboard 

opportunities for people to report in much more effectively on how 

schools are doing so that there can be real accountability, not ersatz accountability. 

We have opened up the realm for interventions in failing and 

struggling schools so that there’s a lot more opportunity to bring 

different perspectives and different opportunities to bear. We’ve 

opened up the opportunity for innovation schools to exist. 

There are bright green lights in this bill saying, ‘‘Let’s do this 

better.’’ To insist on driving down a street that has a red light on 

it doesn’t seem to me to be constructive, and I hope that it does 

not take us into a place where we’re not taking advantage of all 

the green lights that this bill clearly lays out. 

Teachers, school administrators, pretty much everybody in Rhode 

Island is very excited about the new tools that this bill gives us. 

If we can avoid driving into this particular ditch and instead focus 

on the areas where there really is very, very significant bipartisan 

solid and legally founded opportunity for reform and innovation, 

boy, I’d like to encourage that. 

That said, it is absolutely clear and bipartisan and has always 

been the case that nobody wants to see Federal title I money come 

in and provide an excuse to school districts or States to quietly 

ease money out of those schools and out of those districts to the favored and wealthier districts knowing that title I was going to 

come in and make up the gap. 

If the equality of expenditure rule is not the one that we should 

be following, I would ask that each of the witnesses let us know 

what rule they would recommend that the Department of Education follow, because I don’t want to end up in a situation in 

which no regulation ever—nobody would agree with any regulation 

of this because people are waiting to be against anything and everything, no matter what it is. 

I think it is important that there be some affirmative statement 

from folks who are here about what they think the regulation 

should look like, not just what it should not look like. I only have 

about a minute, but I do see at least one hand up. 

And let me make it, Mr. Chairman, a question for the record so 

that anybody can fill in if they’d like to in writing. 

Ms. ESKELSEN GARCI ́A. I know what my NEA members think is 

the standard. There’s one thing about inter-district equality and 

equity. It’s much more dramatic when you look across district lines 

within a State. 

If you were to ask anyone with two eyes to go into the best 

school, the best public school in that State, and everyone can think 

about what public school that would be—in Utah, you’d go to Park 

City—and you’d say, ‘‘Let’s do an inventory of the services, the 

school nurses, the professional librarians, the programs, the international baccalaureate programs, the art classes, the theater classes, the field trips—if you were to go in and take an inventory of 

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the service supports and the programs in the best school in your 

State, make that your standard. 

Make that the dashboard. Why not? Then say, ‘‘Now, we are 

going to compare every single school in our State by how well it 

measures up.’’ Do you have a school nurse? Do you have a professional librarian? What’s your counselor-to-student ratio? How are 

you serving your special ed kids? What’s your ELL program? Do 

you have clubs after school? 

If you were to do that—and the Federal Government, by the way, 

is not saying if you don’t have perfect equality, somebody’s head 

rolls. You’re saying that role of the Federal Government is to be 

transparent, to give good information to people like the advocates 

sitting at this table, to say put that information in our hands so 

we can go back, and we can fight for the students that are being 

shortchanged. 

There are ways that you can do this without micromanaging 

from the Federal level and making it one more level of bureaucracy. 

Senator WHITEHOUSE. We’ve gone over my time. I appreciate it, 

Senator Cassidy, and I thank the panel very much for a very helpful conversation. 

Senator CASSIDY. I also thank y’all, to put a little southern touch 

there—y’all. Thank you for being here. 

The hearing record will remain open for 10 business days. Members may submit additional information and questions to our witnesses for the record within the time if they would like. 

Thanks for being here today. The committee will stand adjourned. 

[Additional material follows.] 

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ADDITIONAL MATERIAL 

RESPONSE BY LILY ESKELSEN GARCI ́A TO QUESTIONS OF SENATOR COLLINS, SENATOR

SANDERS, AND SENATOR WHITEHOUSE

SENATOR COLLINS

Question 1. During the reauthorization process, I worked with the junior Senator 

from Vermont and others to develop and improve an innovative assessment pilot 

program. We sought to give States and school districts the opportunity to move 

away from standardized tests and toward assessments that measure learning competency and proficiency in innovative ways. The pilot program is one way to address 

concerns about over-testing. And it is a way of supporting Maine and other States 

that want to focus on what students are learning and how well they are applying 

what they learn—not just how well they take a test. 

How do you recommend the Department of Education go about implementing this 

program? What does the Department need to do to maintain the flexibility Congress 

intended to provide to help foster innovative assessments? 

Answer 1. Senator Collins, we are so grateful to you and Senator Sanders—we 

deeply appreciate your tireless, bipartisan work on the innovative assessment pilot 

program. It is a critical component of the new law for the many educators, students, 

and parents who found the test-and-punish approach of No Child Left Behind counterproductive to both teaching and learning. I want to be clear that teachers invented tests—we aren’t opposed to assessment! But, in fact, we support assessment 

that is authentic and meaningful to both the student and the teacher. That means 

that it is linked to real standards and curriculum, and that results are available 

for teachers and parents in a timely way. Further, it means that results can help 

inform instruction immediately, rather than arrive deep into the summer, long after 

most students have moved on to the next grade. This is what we believe is authentic 

assessment, and something we strongly support. We believe that ESSA goes a long 

way to supporting movement to this ideal through a variety of mechanisms, including and especially through the innovative assessment pilot program. 

We strongly recommend having the Department take a ‘‘less is more’’ approach 

when it comes to regulating the innovative assessment pilot program. We hope that 

the Department follows congressional intent and allows each State to develop an assessment plan that works for its students, communities, and educators without 

dragging down a new program with onerous regulations that force ‘‘innovation’’ to 

look a specific predetermined way. 

As you said, those plans should include looking at competency and proficiency, as 

well as how students apply what they learn. It should also be possible to compare 

and disaggregate assessment results for different student subgroups. Disaggregation 

is really important. Above all, the new assessment systems should be meaningful, 

which means they must be relevant to students, parents, and educators. 

Question 2. During Secretary King’s confirmation hearing, I asked for his assurance that the Department would engage rural communities in the ESSA implementation processes. I am not sure that is happening. For example, I was alarmed that 

the Department held its initial public listening sessions in Washington, DC and Los 

Angeles, CA—both major urban areas. Rural districts also seem to have been underrepresented on the committee of negotiators selected for the negotiated rulemaking. 

It is vital for rural communities and rural educators to have a seat at the decisionmaking table. What should the Department be doing to ensure that rural communities are represented during the rulemaking process? What are you doing to ensure that rural voices are heard and contribute to State and local planning efforts? 

Answer 2. Senator Collins, thank you for that question. I share your concern 

about the engagement level the Department has shown in rural communities. There 

is definitely room for improvement. I agree that the selected negotiators during the 

rulemaking process could have been more representative of the broad range of types 

of schools across the country, particularly rural schools. As we know from NCLB, 

what works in Des Moines, IA, may not work in Southwest Harbor, ME, but in 

many cases some of those differences are not immediately obvious unless drawn out 

through meaningful engaged conversation and real listening on both sides. Negotiated rulemaking was a missed opportunity in this regard. We have to make sure 

these conversations are happening. Yet, ultimately, the same regulations must 

apply to all districts. This is why we argue that final regulations must provide 

States and communities the flexibility necessary to meet the unique needs of their 

communities. 

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Many States are doing a better job engaging stakeholders. For example, in Oregon, the State is holding listening sessions across the State in geographically diverse communities. We applaud these efforts. In addition, we at NEA are doing our 

part to engage our members across the geographic spectrum. Across the country, in 

every NEA affiliate, we are working hand-in-hand with local leaders and stakeholders, striving to help them understand the critical role they play in the decisionmaking process under ESSA. In every State, we want representation of our full 

membership—urban and rural, teacher and education support professional—at the 

table when key decisions are being made. We are also encouraging our members to 

file comments with the Department on the proposed rules and share their individual 

perspectives, and we hope the breadth of those comments showing the diverse 

makeup of the education community will impress upon the Department our members’ deep interest in the potential impacts of the proposed regulations. 

In addition, we have strongly advocated for the Department of Education to provide guidance to States about the importance of providing support—in both leave 

time and, if necessary, mileage—to make it possible for stakeholders to participate 

in the decisionmaking process. This is especially critical for rural educators who 

may have to travel long distances in order to take part in key conversations. 

In many States, one criticism we heard early on was that educators were not 

given a place at the decisionmaking table. Accordingly, we have focused on breaking 

down barriers to educators’ participation in stakeholder conversations. We are working with our partners—both here in Washington, DC and at the State level—to 

make sure that all voices are heard at the decisionmaking table. 

SENATOR SANDERS

Question 1. We must do everything that we can to ensure that every child—regardless of her or his circumstances—has access to a high-quality education. We 

know that a high-quality education is a resource-intensive endeavor. We also know 

that disadvantaged children need additional resources to combat the ravages of poverty and discrimination. The Elementary and Secondary Education Act (ESEA) of 

1965 marked the beginning of a strong role for the Federal Government in combating inequities on both fronts. Clearly, there is much more work that must be 

done. 

A key component of the Federal Government’s role in education is ensuring that 

our schools have the additional resources needed to ensure that every child can 

reach her or his full potential. Today, over half of all public school children come 

from low-income families. Examining the most recent data available, there is clearly 

an increased need, as well as a lack of sufficient Federal resources, to meet this 

need (see figure 1, page 3). Between school year 2004–5 and school year 2013–14, 

we have seen a 32 percent increase in children eligible for free or reduced lunch— 

an increase of over 6 million children. 

Yet not only has the main source of Federal funding for public schools serving 

low-income children—Title I-A of ESEA—failed to keep pace with the reality that 

our public schools are serving more low-income children than a decade ago, it has 

not even kept up with inflation. Real title I-A funding is down 6 percent since fiscal 

year 2005 while the percentage of low-income kids in public schools has increased 

by 32 percent over the same time period. If, at a bare minimum, title-I-A funding 

had kept pace with inflation since fiscal year 2005, appropriations for title-I-A would 

have been $15.2 billion in fiscal year 2014 instead of $14.4 billion—a difference of 

nearly a billion dollars. Furthermore, if title I-A funding had kept pace with both 

inflation and the growing number of children coming from low-income families since 

fiscal year 2005, title-I-A funding would have hit $20.2 billion in fiscal year 2014— 

a gap of over $5.5 billion when considering reality versus actual funding (see figure 

2, page 4). 

Ms. Eskelsen Garcı ́a, can you please speak to the importance of Federal education 

funding meeting the increased needs of our public schools? Beyond a dramatic increase to title-I-A funding, what other funding streams within ESEA and in other 

Federal programs require an increase to meet the realities of today’s public schools? 

Answer 1. Senator Sanders, we at the NEA could not agree with you more. Like 

you, we believe that ESSA is first and foremost a civil rights bill, and that preserving the historic Federal role in ensuring equal opportunity is critical. 

We are deeply concerned, as we know you are, that funding for formula-grant programs has not kept pace with either the growth in the student population or the 

rate of inflation. This is especially troubling with regard to programs serving the 

students most in need—among them, title 1, IDEA, and Perkins grants for career 

and technical and education. 

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To answer your question about what Federal funding streams need to be increased to address today’s realities, I would argue all those that target the students 

most in need—the reason ESEA was passed in the first place. That includes not just 

K–12 education programs, but high-quality child care, early childhood education, 

health care, school meals, safe and affordable housing, and on and on down the list. 

Over time, investments in these programs will more than pay for themselves. To 

give just one example: investments in high-quality early childhood education consistently generate benefit-to-cost ratios of at least 3-to–1—$3 or more for every single dollar spent, according to the Economic Policy Institute. 

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Question 2. I am very concerned that our schools and communities are dealing 

with a surge of students exposed to multiple adverse experiences, and that they are 

not equipped with the resources, training, and support to accommodate this crisis. 

According to the national Adverse Childhood Experience Study, over half of those 

surveyed reported at least one form of childhood adversity. Shockingly, two in three 

children in our Nation—46 million children—are exposed to violence, crime, abuse, 

or psychological trauma a year. In Vermont, over 20 percent of children have had 

two or more adverse experiences, which include traumatic events like living in 

chronic poverty, living with someone with a substance abuse problem, experiencing 

community or family violence, and more. Even more alarming is the fact that our 

youngest citizens and their parents are at the forefront of this crisis. Since 2014, 

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crease of children in State custody with children under the age of six making up 

more than two-thirds of this increase. Further, similar to nationwide trends, in my 

home State over 40 percent of children come from low-income families—and young 

children are the most likely of any age group to be poor. 

Ms. Eskelsen Garcı ́a, what can the Department of Education do to help schools, 

educators, and communities be prepared to deliver trauma-informed approaches to 

education when implementing the Every Student Succeeds Act (ESSA)? Additionally, what can the Department of Education do to ensure that educators teaching 

in environments where a large percentage of students have had adverse childhood 

experiences (ACEs) have the support and the self-care they need to succeed? Furthermore, what policies should Congress enact to help communities combat these 

challenges and attack the root causes—like poverty, exposure to violence and substance abuse—driving these adverse experiences? How would increased Federal investments in child care, preschool, maternal and child home visiting; before-school, 

after-school, and summer programming; nutritional supports; and wraparound services for schools help fight this crisis? Likewise, how would raising the Federal minimum wage, addressing under-employment and unemployment, implementing paid 

family leave, and enacting universal health care coverage help attack the root 

causes of these adverse experiences? 

As national education leaders, what plans are your organizations making to work 

with States to ensure that their schools and practitioners have trauma-informed approached to education? How will you make States and school districts aware of opportunities under ESSA to create trauma-informed environments? 

Answer 2. I agree with your assessment of the impact of trauma on our Nation’s 

public schools. NEA provides a wealth of resources on a wide range of topics, including many of those you cited, to help educators provide trauma-informed support for 

their students. We also provide hands-on training to help educators create safe, supportive learning environments. And, increasingly, educators are using collective bargaining to advocate for more resources and support for their students. 

For example, earlier this year in St. Paul, MN—a joint NEA-AFT affiliate—teachers used contract negotiations to advocate for greater investments in safety and resources for their students. And they succeeded! The school district will be investing 

$4.5 million over the next 3 years in restorative practices to help lift up struggling 

students. Thirty additional, specialized staff—a combination of social workers, 

nurses, counselors, school psychologists, and teachers for English-language learners—will be hired to help ensure that all the students in that district receive the 

support they need and deserve. 

NEA is committed to translating our members’ commitment to helping vulnerable 

students into action. Through a series of one-on-one conversations over the coming 

year, we aim to ensure that every single educator is aware of the opportunities created by ESSA. Then, we plan to mobilize them to work for change and equity for 

all students—to truly fulfill the promise of the original law, the Elementary and 

Secondary Act of 1965 that was a centerpiece of our Nation’s War on Poverty. One 

major way that educators can work for more inclusive environments for trauma impacted students is by making sure that voices of educators are included in State and 

local plans and that entire communities are engaged and lifted up. Teachers understand what their students need to succeed. We should listen to their voices and include their expertise in planning and decisionmaking in order to best serve all children, but particularly those who are most vulnerable. 

Question 3. On the 62d anniversary of the Brown v. Board decision, the Government Accountability Office (GAO) released a report confirming what educators, families, students, and community stakeholders have been telling us anecdotally for 

some time—our public schools are becoming more segregated by both race and family income. 

The share of public schools that are doubly segregated by race and income—where 

75 percent or more of the kids come from low-income families and are black or Hispanic—has risen from 9 percent in school year 2000–2001 to 16 percent in school 

year 2013–14. Today, one in five public school students attends a school that is doubly segregated, more than twice as many as 15 years ago. Hispanic children are 

often triply segregated—by race, family income, and native language. Shamefully, 

75 percent or more of the children are black and Hispanic at nearly two-thirds— 

61 percent—of high-poverty schools. 

Segregation and isolation by race and income in our public schools is an alarming 

phenomenon on its own. Even more troubling, these doubly segregated schools are 

not offering students an education comparable to that offered by non-segregated 

schools or schools at the other end of the spectrum—those in wealthy districts where 

the student population is predominately white. The GAO report reveals that doubly 

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segregated schools have fewer resources, do not offer the full range of core courses 

like math and science, offer less advanced coursework, and have disproportionately 

more disciplinary actions than other public schools. 

I’d like to ask this entire panel what the Federal Government can do to reverse 

the troubling trend of segregation by race and income, and ensure an equal and adequate education for all children? Please feel free to expound on reforms within education as well as system-wide changes in areas such as housing, transportation, 

jobs, and more. Additionally, through the implementation of the Every Student Succeeds Act (ESSA), what can the Department of Education do to make States and 

school districts aware of new opportunities to increase racial and socioeconomic diversity? 

I also invite Ms. Eskelsen Garcı ́a, Ms. Marshall, Ms. Murguı ́a, and Ms. 

Weingarten to address the related issue of increasing diversity in our schools. ESSA 

gives States and local school districts greater autonomy with regard to key educational decisions. How do your organizations plan to make States and districts 

aware of opportunities to increase diversity provided by the new law? Additionally, 

what tools or resources do States and communities need to tackle the difficult task 

of diversifying our schools to help ensure that they provide an equal and adequate 

education for all students? 

Answer 3. When discussing equity, we must be clear that it does not necessarily 

mean equality. In many under-served communities, the resource hole is so deep that 

providing funding equal to that in wealthier communities is not enough to compensate for the lack of opportunity. Instead, we must focus on parity—moving sufficient resources into under-served communities to achieve the same standards as 

better-served communities. We believe the promise of the additional indicator in accountability plans is just for this purpose. Holding schools accountable, even for just 

one additional indicator of school quality beyond a test score, can be a powerful tool 

to shed light on the critical gaps in opportunity for children that exist even within 

a single district. Further, we are also pleased by the extensive report card requirements around equity and opportunity that will offer parents and communities additional information about opportunity gaps in order to push for change. 

ESSA provides many tools that can be used to support the diversity of the student 

population. For example, we strongly support the use of magnet schools to provide 

challenging educational environments for children from all kinds of backgrounds. 

We also must take a clear look at the way in which charter schools enroll students 

to ensure that they do not resegregate communities, as some research has suggested. 

We also strongly support the use of community school strategies to support students. Community schools is a model of school support in which community organizations, parents, and educators all work together in creative ways to create supportive environments that support the whole child. Each community school is a little 

different. Community school models are as unique as the schools and communities 

they serve. Sustainable community schools try to ensure that every child has an opportunity to learn and succeed, which is a cornerstone of ESSA. As a union, we 

know how to organize, build connections between schools and the community, survey needs, and forge alliances. We are working across the country in diverse communities to build capacity around this incredibly promising model. 

We must also do more to increase diversity within the education professions. 

While growing numbers of children in public schools are members of minority 

groups, the majority of educators—especially teachers—continue to be white women. 

We must do more to put role models in our classrooms who reflect the cultural and 

ethnic diversity of America today, as well as to attract more men who can serve as 

role models. In addition, to support families and strengthen the social safety net, 

we must ensure high-quality child care, access to good nutrition and health care, 

and provide employment training. 

Finally, NEA has embarked on new work to deepen understanding of the role segregated housing policies—implicit or explicit—play in educational inequities and the 

many ways that growing up in segregated communities impacts students. This work 

is hard and requires each of us—as an organization and as individuals—to look deep 

within ourselves and confront ways in which we contribute to persistent inequality 

and then to dig even deeper to change our hearts, minds, and policies toward the 

path of justice. 

Question 4. The Every Student Succeeds Act (ESSA) rightly moves away from the 

blame and shame approach of the No Child Left Behind (NCLB) Act. In crafting the 

new law, Congress listened to educators, parents, students, stakeholders, and communities when they said, loudly and clearly, that schools and students are more 

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than test scores. That is why ESSA requires the use of multiple measures to assess 

our schools and students. 

Ms. Eskelsen Garcı ́a, as we move toward implementation of the new law, can you 

speak to the importance of using multiple measures and not just test scores in determining how well our schools and students are doing? Furthermore, as States 

begin to plan new accountability systems under ESSA, what recommendations do 

you have? What indicators of school quality and student success should States think 

about including in their accountability systems? 

Answer 4. NEA strongly advocated for accountability systems to include measures 

of the resources and opportunities available to students in different schools and districts. We also support holding States and school districts accountable for addressing any resource or opportunity gaps those measures reveal—specifically, for developing plans to address such gaps. 

ESSA requires the new State-developed accountability systems that take effect in 

the 2017–18 school year to be based on multiple measures, not test scores alone. 

Those systems must include at least one indicator of school success to student support—and we view that as the floor not the ceiling. 

Furthermore, the new law requires a needs assessment for most plans and programs—an examination of current resources such as funding, programs, policies, 

and performance. NEA’s Guide to Educator-Led School Improvement and GPS Indicators Framework provide detailed information on the type of accountability systems 

we envision and support. 

SENATOR WHITEHOUSE

Question 1. ESSA is a relief to many, especially in Rhode Island. Everyone who 

I’ve talked to is very excited about this bipartisan bill and the opportunities it presents. 

However, I am concerned about the ‘‘supplement, not supplant’’ issue. Many of 

you have said that the Department of Education’s proposed regulations on supplement, not supplant are an overreach. At the same time, I am aware of many inequities in local and State funding for education. 

Absolutely no one wants to see Federal money provide an excuse for redirecting 

other funding to wealthy, well-connected school districts—for title I to fill funding 

gaps in such districts. 

I’ve heard from many about the problems with the Department’s draft proposal 

on supplement, not supplant. My question is not what are the problems, but what 

should the Department do instead? That is, what would you affirmatively propose 

to ensure that title I funds are supplemental and that they do not supplant State 

and local funds? 

Answer 1. The affirmative action the Department of Education should take is reissuing and updating—to reflect changes made by ESSA—the non-regulatory guidance provided in July 2015, Supporting School Reform by Leveraging Federal Funds 

in a Schoolwide Program (https://www2.ed.gov/policy/elsec/guid/eseatitleisw 

guidance.pdf). 

The Department’s ‘‘Dear Colleague’’ letter discusses how to use Federal funds to 

supplement school reform in ways that are consistent with ESSA’s supplement, not 

supplant provision. It also says that local educational agencies (LEAs) should be 

given flexibility while required to use Federal funds efficiently and effectively. 

Question 2. Under NCLB and the Obama administration’s waivers, I consistently 

heard from Rhode Island teachers and principals that they could achieve better results if not for the layers of bureaucracy stifling innovation at multiple levels. 

I am very pleased that ESSA steps away from that one-size-fits-all, overly prescriptive posture. You have all heard me talk about the provisions I fought for in 

ESSA—requiring States to describe how they will encourage opportunities for more 

autonomy and flexibility. 

I am concerned because I do not want to see the Department of Education use 

the regulatory process to grab back the control that ESSA intended to push down 

to the State and local level. What could the Department do on the supplement, not 

supplant issue that would support greater innovation at the local level? 

Answer 2. My answer to this question is similar to my answer to the previous 

question. We believe that the Department of Education should reissue its non-regulatory guidance from July 2015 to reflect changes under ESSA. That guidance, not 

regulation, is consistent with ESSA’s devolution of responsibility to the local level— 

and it stresses how local districts can use existing flexibility to implement title I 

programs efficiently and effectively. 

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RESPONSE BY RANDI WEINGARTEN, J.D., TO QUESTIONS OF SENATOR BURR, SENATOR

COLLINS, SENATOR SANDERS, AND SENATOR WHITEHOUSE

SENATOR BURR

Question 1. I noted with some interest during your unprepared remarks you spoke 

about title I’s formula and its inadequacy in targeting poverty. I couldn’t agree 

more, which is why I and Senator Michael Bennet of Colorado put forward a plan, 

the Funding Educational Opportunity Act, during last year’s ESEA reauthorization 

debate. My understanding is you vocally opposed my amendment. Is that true? 

Answer 1. Senator Burr, you are 100 percent correct in characterizing my opposition to the inclusion of the Funding Educational Opportunity Act as part of the 

ESEA reauthorization proposal that moved through the Congress last year. 

We both share a commitment to targeting title I funding to districts serving the 

highest concentrations of poor students. The need to do this today is as important 

as it was 50 years ago when President Lyndon Johnson, a former schoolteacher, advocated for ESEA to level the playing field so disadvantaged students could have 

the same opportunities as their more-advantaged peers. Just like when ESEA was 

enacted into law in 1965, the need to invest resources to meet students’ needs remains vitally important as today’s poor students confront an ever-changing world 

and need extra assistance to help meet new and higher standards. 

However, I truly believe that your legislation would not achieve its intended goal. 

Your proposal would have a damaging effect on the distribution of title I funds to 

States and local educational agencies. Last year, it was estimated that your proposal 

would negatively affect nearly 10,000 LEAs (or more than 70 percent of all school 

districts), more than half of all eligible low-income children, and 1.9 million teachers 

working in districts receiving title I funds. This does not sound like better targeting 

to me. 

This would occur because your legislation seeks to turn on its face the value that 

a State’s average per-pupil expenditure plays in their title I allocation. The use of 

an ‘‘expenditure factor’’ in the current formula recognizes that there are differences 

in the cost of operating schools in different parts of the Nation, and allows a higher 

allocation in high-cost areas. Your proposal eliminates the expenditure factor, which 

would result in a cut in services for students in high-cost areas. States that invest 

significant resources in their education system are rewarded and incentivized to do 

so through the current Federal formula. Your legislation would negate that. In addition, another part of the title I formula is an ‘‘effort factor’’ that looks at how much 

a State spends relative to per capita income (PCI). States that spend a high percentage on education relative to PCI are rewarded by taking effort into account. Your 

bill would remove both the State average per-pupil expenditure and the effort factor 

in the title I formula. This means that it would hurt both States that spend a lot 

on education and States that have high effort relative to PCI. 

This amendment would have eliminated much of the formula funding structure, 

specifically the PCI provisions and the effort factor that still rewards poorer States 

for showing a willingness to invest in education. It would instead reward States that 

do not invest as much in education, in essence taking money from low-income students in one State and give it to low-income students in another State. This would 

amount to nothing more than robbing Peter to pay Paul and shows the need for additional investment rather than stripping it from some at-risk children in States 

that have historically made more of an investment in their students. I am pleased 

that Congress recognized the flaws in this proposed methodology and decided not 

to include it in the final version of the Every Student Succeeds Act. 

However, I would note that your efforts to better target the distribution of title 

II funds was successful because it actually removed a long-standing hold-harmless 

provision that was not sensitive to the shifting populations and concentrations of 

poor students. Unlike the changes you sought in title I, this change will actually 

lead to the better targeting of Federal funds to disadvantaged students, and I congratulate you on this accomplishment. 

Question 2. You also noted that a targeted title I formula should fund low-income 

schools, such as Clara Barton High School, while lessening funding for wealthier 

schools, such as Scarsdale High School because, as you noted, Scarsdale is ‘‘wellfunded.’’ As you might know, Scarsdale’s school district receives about $95,000 in 

title I dollars, despite a $150 million annual operating budget. My amendment attempted to do something akin to the concept you articulated by redirecting funds 

from higher wealth districts to the most impoverished across our Nation. Ninetyfive thousand title I dollars could go a lot further in high-poverty districts in other 

parts of the country, such as Charlotte Mecklenburg Schools. 

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Given that we seem to share similar goals on this matter and that increasing title 

I’s overall appropriation alone cannot fully address these inequities, can you share 

your plan for making title I’s formula itself—not just more funding—more equitable 

through targeting poverty? 

Answer 2. Senator, we are in agreement that we should focus on the schools and 

districts that have high concentrations of poverty. The provision in your legislation 

that implemented a minimum poverty rate threshold for school districts that could 

benefit from higher weights based on their numbers of formula children was laudable. Unfortunately, there were other provisions in the legislation (as I discussed 

in my response to Question 1) that eliminated the targeting benefits that the current formula provides to school districts today. 

SENATOR COLLINS

Question 1. During the reauthorization process, I worked with the junior Senator 

from Vermont and others to develop and improve an innovative assessment pilot 

program to give States and school districts the opportunity to move away from 

standardized tests and toward assessments that can measure learning competency 

and proficiency in innovate ways. This pilot program is one way to address concerns 

about over testing and could support those States, like Maine and others, that want 

to focus on what students are learning and how well they are applying that knowledge, not just how well they can take a test. 

How do you recommend that the Department implement this program, so that it 

maintains the flexibility Congress intended to foster innovation around assessments? 

Answer 1. The AFT views the assessment pilot as a crucial component of ESSA 

and worked hard to have it included in the final bill eventually signed into law. As 

we’ve seen with the supplement-not-supplant and accountability regulations proposed by the Department of Education, details and intent are crucial. The Department must respect the underlying goal of ESSA’s assessment pilot language, which 

is to allow States the opportunity to develop alternatives to the ‘‘drill-and-kill’’ testing regime NCLB has created. In practice, this means the Department should quickly establish the pilot program to allow States to get their innovative assessment systems up and running. It should also operate in the spirit of the law and exercise 

maximum flexibility in ensuring that a variety of innovative assessment systems be 

granted the waivers. In particular, the assessment system managed by the New 

York Performance Standards Consortium, with its decadeslong track record of effectively serving a diverse population, should be upheld as a model that can assist 

States in developing high-quality applications. 

Question 2. During Secretary King’s confirmation hearing, I asked for his assurance that the Department would engage rural communities in its ESSA implementation processes. For example, I was alarmed that the Department held its initial 

public listening sessions in DC and Los Angeles. Rural districts also seem to have 

been underrepresented on the committee of negotiators selected for the negotiated 

rulemaking. 

It’s vital that rural communities and rural educators have a seat at the table. 

What should the Department be doing to ensure rural communities are represented 

in its rulemaking? 

In your States, what are you doing, as stakeholders, to ensure rural voices are 

heard in your State and local planning efforts? 

Answer 2. Senator Collins, thank you for this question. The AFT is committed to 

making sure that all stakeholders have a voice in how ESSA is implemented, and 

that includes all educators working in urban, suburban or rural communities. One 

example of how the AFT has engaged with rural communities is our work in West 

Virginia. 

For more than 4 years, the AFT has guided the efforts of a public-private partnership to bring much-needed resources and services to McDowell County, WV, a geographically isolated area in the heart of Appalachia whose educators are AFT members. Known as Reconnecting McDowell, the initiative has encouraged a renewed 

emphasis on improving the county’s schools by focusing on mentoring students and 

establishing community schools. 

Some of the efforts that have begun to yield positive results in student achievement include providing thousands of books to replenish the book inventories at the 

seven literacy centers that were opened by Reconnecting McDowell throughout the 

county; establishing a new program starting in the fall that will put books on school 

buses so elementary school-age kids can read during their long rides to and from 

school; clearing the way for construction of Renaissance Village, an apartment building primarily intended as housing to help recruit and retain teachers; and creating 

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community schools with healthcare, mental and oral health services, food programs 

and other wraparound services that the community determined were needed for students and their families. 

It’s clear that rural educators may face unique challenges in helping their students succeed, and we support efforts to allow their voice to be heard during ESSA 

decisionmaking. Scheduling—time and location—of stakeholder meetings matters in 

order to make these meetings accessible to all educators, as does the appropriate 

use of technology. We also encourage the Department of Education to make use of 

the input of teacher unions, which are composed of the educators who will directly 

feel the impact of decisions relating to ESSA implementation. 

SENATOR SANDERS

Question 1. We must do everything that we can to ensure that every child—regardless of her or his circumstances—has access to a high-quality education. We 

know that a high-quality education is a resource-intensive endeavor. We also know 

that disadvantaged children need additional resources to combat the ravages of poverty and discrimination. The Elementary and Secondary Education Act (ESEA) of 

1965 marked the beginning of a strong role for the Federal Government in combating inequities on both fronts. Clearly, there is much more work that must be 

done. 

A key component of the Federal Government’s role in education is ensuring that 

our schools have the additional resources needed to ensure that every child can 

reach her or his full potential. Today, over half of all public school children come 

from low-income families. Examining the most recent data available, there is clearly 

an increased need, as well as a lack of sufficient Federal resources to meet this need 

(figure 1). Between school year 2004–5 and school year 2013–14 we have seen a 32 

percent increase in children eligible for free or reduced lunch—an increase of over 

6 million children. 

Yet the main source of Federal funding for public schools serving low-income children—Title I-A of ESEA—has not only not failed to keep pace with the reality that 

our public schools are serving more low-income children than a decade ago, funding 

has not even kept up with inflation. Real title I-A funding is down 6 percent since 

fiscal year 2005 while the percentage of low-income kids in public schools has increased by 32 percent over the same time period. If at a bare minimum title-I-A 

funding had kept pace with inflation since fiscal year 2005, appropriations for titleI-A would have been $15.2 billion in fiscal year 2014 instead of $14.4 billion—a difference of nearly a billion dollars. Furthermore, if title I-A funding had kept pace 

with both inflation and the growing number of children coming from low-income 

families since fiscal year 2005, title-I-A funding would have hit $20.2 billion in fiscal 

year 2014, a gap of over $5.5 billion when considering reality versus actual funding 

(figure 2). 

Ms. Weingarten, can you please speak to the importance of Federal education 

funding meeting the increased needs of our public schools? Beyond a dramatic increase to title-I-A funding, what other funding streams within ESEA and in other 

Federal programs require an increase to meet the realities of today’s public schools? 

Answer 1. Senator Sanders, I couldn’t agree with you more about the need to provide adequate support for students, especially vulnerable populations. Funding for 

education is an investment in the future of our individual students and our Nation 

as a whole. As the country continues its recovery from lingering effects of the Great 

Recession, as our student body grows more diverse, and as we work to implement 

the new provisions of the Every Student Succeeds Act, the Federal role in supporting schools is extremely important. 

The NCLB system of test-and-punish offered neither the time nor the tools for 

educators to teach and provide the supports all students need to succeed. Title I 

funding is foundational to that effort and to supporting Congress’ historic commitment to target Federal resources where there are concentrations of students in poverty. With half our kids in public schools coming from poverty, it’s vital to increase 

title I funding so that resources are available to the students who need it most. 

But as you point out, there are many pieces of the Federal funding puzzle that 

affect our students. It is difficult for children to learn if they are hungry, or don’t 

have adequate healthcare, or don’t have clean, safe water to drink. Federal funds 

in these areas are necessary investments for our students to succeed. Congress has 

never provided the promised level of funding for the Individuals with Disabilities 

Education Act to help our special education students get the services they are entitled to and deserve. For our students, and our country, to succeed, it is imperative 

to ensure robust support for providing all children a strong start through early education such as Head Start and pre-K; for ESSA Title II to provide teachers the tools, 

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time, and leadership opportunities they need to help our children succeed; for ESSA 

Title III to meet the needs of our country’s growing English language learner population; and for ESSA Title IV, which supports a well-rounded education and supportive, holistic school intervention strategies such as community schools. 

Question 2. I am very concerned that our schools and communities are dealing 

with a surge of students exposed to multiple adverse experiences and are not 

equipped with the resources, training, and support to accommodate this crisis. 

According to the national Adverse Childhood Experience Study, over half of those 

surveyed reported at least one form of childhood adversity. Shockingly, two in three 

children in our Nation—46 million children—are exposed to violence, crime, abuse, 

or psychological trauma a year. In Vermont, over 20 percent of children have had 

two or more adverse experiences, which include traumatic events like living in 

chronic poverty, living with someone with a substance abuse problem, experiencing 

community or family violence, and more. Even more alarming is the fact that our 

youngest citizens and their parents are at the forefront of this crisis. Since 2014, 

the Department for Children and Families in Vermont has seen a 33 percent increase of children in State custody with children under the age of six making up 

more than two-thirds of this increase. Further, similar to nationwide trends, over 

40 percent of children come from low-income families in my home State, with young 

children the most likely of any age group to be poor. 

Ms. Weingarten, what can the Department of Education do to help schools, educators, and communities be prepared to deliver trauma-informed approaches to education when implementing the Every Student Succeeds Act (ESSA)? Additionally, 

what can the Department of Education do to ensure that educators teaching in environments where a large percentage of students have had adverse childhood experiences (ACEs) have the support and the self-care they need to succeed? Furthermore, 

what policies should Congress enact to help communities combat these challenges 

and attack the root causes—like poverty, exposure to violence and substance 

abuse—driving these adverse experiences? How would increased Federal investments in child care, preschool, maternal and child home visiting, before-school, 

afterschool, and summer programming, nutritional supports, wrap-around services 

for schools and more help to fight this crisis? Likewise, how would raising the Federal minimum wage, addressing under-employment and unemployment, implementing paid family leave, and enacting universal health care coverage help attack 

the root causes of these adverse experiences? 

As national education leaders, what plans are your organizations making to work 

with States to ensure that their schools and practitioners have trauma-informed approached to education? How will you make States and school districts aware of opportunities under ESSA to create trauma-informed environments? 

Answer 2. Research shows that two-thirds of what affects student achievement occurs outside of the classroom. When this fact is placed in the context of half of all 

public school students living in poverty, it is not surprising that schools have become much more than education institutions. Teachers, paraprofessionals, nurses, 

counselors and other members of the school team try to meet student needs that 

are caused by poverty. When poverty is combined with additional traumatic experiences, educators and schools are pushed over the brink and are often challenged to 

do anything beyond responding to immediate crises. 

While these challenges have long been known, the Federal Government has 

sought to maintain an educational accountability system that ignores the impact of 

‘‘adverse experiences.’’ It is crucial to address poverty and trauma if the country 

wishes to have strong educational and economic outputs. This means increasing revenue so the Nation can provide services and supports to all who need them, including: free/low-cost child care and preschool; maternal and child home visitation programs; high-quality before- and after-school programs; effective apprenticeship programs; access to affordable higher education; a livable minimum wage; investment 

in the Nation’s infrastructure, schools and struggling communities to provide wellpaying jobs; and ensuring that pharmaceutical and other healthcare costs do not 

bankrupt families. 

More specifically, the AFT has found that community schools are an effective 

strategy that can be used to address the ‘‘multiple adverse experiences’’ described 

in your question. The Department can work to ensure that it supports the community school model under Title IV of ESSA, highlight the ability of schools to use title 

I funds to provide wraparound services where they are absent, circulate the Department of Health and Human Services’ 2014 letter stating that schools may seek reimbursement from Medicaid for the provision of health services, and develop regulations and guidance that encourage States to incorporate measures of student wellbeing into their accountability systems. Regarding the last point, the AFT is offering 

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a framework of indicators beyond test scores for school quality and student success 

that stakeholders can consider in designing accountability systems. This framework 

includes academic outcomes such as measures of students participating in and completing advanced coursework or career and technical education courses, measures 

that gauge students’ opportunity to learn such as access to safe and adequate facilities, and measures of students’ engagement and support such as chronic absenteeism. This framework is available at: http://dbweb01.aft.org/sites/default/files/ 

essalnew-accountability032116.pdf. 

The AFT is working to make sure our affiliates are aware of the positive potential 

ESSA represents and is encouraging our locals to be involved in the implementation 

process. The AFT has also developed guides to help educators support students 

threatened by Immigration and Customs Enforcement raids, assisted educators in 

addressing gun violence across the country after the mass murder of elementary 

students and educators in Newtown, CT, and convened a task force to address 

issues of racial bias. The task force produced a report titled ‘‘Reclaiming the Promise 

of Racial Equity: In Education, Economics and Our Criminal Justice System,’’ which 

provides a framework for the development of policy in national and State legislation, 

at the school board level and inside the AFT itself. The report can be found at: 

http://www.aft.org/news/aft-issues-groundbreaking-report-racialequity#sthash.qlsHHuOd.dpuf. 

Question 3. Yesterday, on the 62d anniversary of the Brown v. Board decision, the 

Government Accountability Office (GAO) released a report confirming what educators, families, students, and community stakeholders have been telling us 

anecdotally for some time—our public schools are becoming more segregated by both 

race and family income. 

The number of schools that are doubly segregated by both race and income— 

where 75 percent or more of the kids at these schools come from low-income families 

and are black or Hispanic—has increased from 9 percent of all public schools in 

school year 2000–2001 to 16 percent of all public schools in school year 2013–14. 

Additionally, today, nearly one in five public students attend these doubly segregated public schools—more than double the amount of kids who attended these 

schools almost 15 years ago. Furthermore, Hispanic children are often triply segregated by race, family income, and native language. Shamefully, nearly twothirds—61 percent—of all high-poverty schools are schools where over 75 percent or 

more of the children are black and Hispanic. 

Segregation and isolation by race and income in our public school is an alarming 

phenomenon on its own. Even more troubling is that the fact that these doubly segregated schools are not offering students a comparable education to non-segregated 

schools and schools at the other end of the spectrum that are wealthy and predominately white. The GAO report uncovers that these doubly segregated schools have 

fewer resources, do not offer the full range of core courses like math and science, 

offer less advanced coursework, and have disproportionately more disciplinary actions than other public schools. 

I’d like to ask this entire panel—what can the Federal Government do to reverse 

this troubling trend of segregation by race and income, and ensure an equal and 

adequate education for all children? Please feel free to expound on reforms within 

education and greater system wide changes including housing, transportation, jobs, 

and more. Additionally, through the implementation of the Every Student Succeeds 

Act (ESSA) what can the Department of Education do to make States and school 

districts aware of opportunities within this new law to increase racial and socioeconomic diversity in our schools? 

Relatedly, Ms. Eskelsen Garcı ́a, Ms. Marshall, Ms. Murguı ́a, and Ms. Weingarten, 

ESSA provides States and local school districts more autonomy to make key educational decisions. What are your organizations’ plans to make States and local 

school districts aware of opportunities to increase diversity under this new law? Additionally, what other tools or resources do States and communities need to tackle 

the difficult task of diversify our schools are providing equal and adequate education 

for all students? 

Answer 3. The AFT will continue to be committed to informing its members, parents, students and the public of the scope and impact of segregation, desegregation 

and resegregation across the Nation and take the appropriate actions to publicize, 

promote and motivate the unfulfilled goal of the integration of our public schools. 

We recently commemorated the 62d anniversary of the Brown v. Board decision, 

and data show that America’s schools are resegregating at an alarming rate. It is 

clear that, as a Nation, we have failed to carry out our moral and legal duty to ensure that educational opportunity is ‘‘available to all on equal terms.’’ 

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The fight for all children to have access to an excellent education is the Brown 

decision’s legacy. It requires a focus on equitable access and resources, evidence of 

effectiveness, and scaling and sustaining successful practices. One way that some 

school districts and States have addressed this in recent years—including my hometown district, New York City, led by Mayor de Blasio—is by providing high-quality 

early childhood education. 

Decades of research show that early childhood education can produce significant 

educational and economic benefits. Such programs help level the playing field for 

disadvantaged children, a particular concern in districts with concentrated poverty 

and deep segregation. 

Another way to overcome segregation and poverty is through community schools. 

In the Cincinnati Public Schools district, every public school is a community learning center offering supports ranging from healthcare, to legal and housing assistance, to mentoring. Cincinnati’s successful community schools approach demonstrates that while poverty matters in education, its effects can be mitigated. Ten 

years ago, one of every two students in this high-poverty district did not complete 

high school. Today, the graduation rate has surged to 80 percent. Achievement gaps 

between African American and white students are narrowing. Student mobility, 

which can be so disruptive to a child’s education, is down. And discipline referrals 

have dropped sharply—keeping students in school, keeping them learning. 

Through ESSA, this Congress and the Department of Education can significantly 

invest in early childhood education and community schools, programs that fight poverty and enable economic and racial integration. 

Additionally, through greater investments in title I, the AFT believes that American students and schools will benefit. ESSA continues important equity safeguards 

so States cannot deny disadvantaged children the additional funding that the Federal Government has provided to level the playing field. Starting with ESSA and 

continuing with some of the efforts outlined above, the Federal Government can 

play a vital role in ensuring that all American students enjoy the benefits of diversity and experience the joy that comes from learning in an invigorating, inspiring 

and inclusive integrated environment. 

Question 4. The Every Student Succeeds Act (ESSA) rightly moves away from the 

blame and shame approach of the No Child Left Behind (NCLB) Act. In crafting this 

new law, Congress listened to educators, parents, students, stakeholders, and communities, who spoke out loudly and clearly that schools and students are more than 

a test score. That is why ESSA uses multiple measures to examine the success of 

our schools and students. 

Ms. Weingarten, as we move toward implementation of this new law, can you 

speak to the importance of using multiple measures and not just test scores in determining how well our schools and students are doing? Furthermore, as States 

begin to plan new accountability systems under ESSA, what recommendations do 

you have? What indicators of school quality and student success should States think 

about including in their accountability system? 

Answer 4. Under NCLB, our public schools were subject to a test-and-punish accountability system that not only impeded learning but also led to unintended consequences. This system discouraged educational innovation, demoralized teachers, 

narrowed instruction and, most important, failed to address the needs of children, 

particularly the most disadvantaged. The passage of the Every Student Succeeds 

Act provides an opportunity for us to replace this faulty system with a new paradigm for accountability, one that supports deeper levels of learning for all students 

and one that incorporates measures beyond test scores. 

The AFT encourages States to meaningfully engage with their stakeholders—including educators, parents and community members—as to what they value in their 

children’s school. The AFT is offering a framework of indicators beyond test scores 

for school quality and student success that stakeholders can consider in designing 

accountability systems. This framework includes academic outcomes, such as measures of students participating in and completing advanced coursework or career and 

technical education courses; measures that gauge students’ opportunity to learn, 

such as access to safe and adequate facilities; and measures of students’ engagement 

and support, such as chronic absenteeism. This framework is available at: http:// 

dbweb01.aft.org/sites/default/files/essalnew-accountability032116.pdf. 

SENATOR WHITEHOUSE

Question 1. ESSA is a relief to many, especially in Rhode Island. Everyone who 

I’ve talked to is very excited about this bipartisan bill and the opportunities it presents. 

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I am concerned about the supplement, not supplant issue. Many of you have said 

that ED’s proposed regulations on ‘‘supplement, not supplant’’ are an overreach. But 

I am also aware of many inequities that exist in local and State funding for education. 

Absolutely no one wants to see Federal money come in and provide an excuse to 

send other funding into wealthier, well-connected school districts and have title I 

fill the gap. 

I’ve heard from many about the problems with ED’s draft proposal. My question 

is not what are the problems, but what should ED do instead? That is, what would 

you affirmatively propose to ensure that title I funds are supplemental and not supplanting State and local funds? 

Answer 1. Thank you for this question. What is absolutely essential is that we 

do not put in place rules that exacerbate inequitable school funding or that disrupt 

schools that are stable places in their communities for students and their families. 

Unfortunately, having witnessed many school funding scenarios during my time in 

New York City, and having watched closely and participated in the recent debate 

over supplement-not-supplant regulations, I see few good ways of mandating supplement-not-supplant methodologies at the Federal level without leveling down funding 

for some schools, thus destabilizing such schools. 

I am very willing to consider supplement-not-supplant proposals that give school 

systems time to level up funding so that they can ensure that resources—including 

but not limited to wraparound services, staffing, facilities and supplies—are provided to schools that are currently receiving less than their fair share. But this 

must be done without taking away such funding from schools that are just getting 

enough to maintain the services, staffing and supports they are providing students. 

Such a proposal must also protect students from having the staff at their schools 

move from year to year so that districts can balance funding allotments between 

schools, because a stable workforce with familiar faces from year to year is exactly 

what many of our most vulnerable students desperately need. 

Question 2. Under NCLB and the Obama administration’s waivers, I consistently 

heard from Rhode Island teachers and principals that they could achieve better results if not for the layers of bureaucracy stifling innovation at multiple levels. 

I am very pleased that ESSA is a step away from that one-size-fits-all, overly prescriptive posture. You have all heard me talk about the provisions I fought for in 

ESSA—requiring States to describe how they will encourage opportunities for increased autonomy and flexibility. 

I am concerned because I do not want to see ED use the regulatory process to 

grab back the control that ESSA intended to push down to the State and local level. 

What could ED do on the supplement, not supplant issue that would support greater 

innovation at the local level? 

Answer 2. ESSA’s predecessor, the No Child Left Behind Act, was in place for 

more than 14 years. One lesson this Congress and this administration can take from 

that is that it should not put in place overly prescriptive rules that stifle innovation 

now and in the future. We don’t know what schooling in 2026 or 2030 is going to 

look like, so this administration has a responsibility to not require box checking and 

dollar-for-dollar comparisons that can’t take into account how education will evolve 

over the next decade-plus. 

Affirmatively, one thing that the Education Department can do is encourage 

States and districts to fund initiatives like early childhood education, community 

schools and wraparound services at schools serving students in poverty. Such programs are rarely inexpensive, but research shows that they are exactly the investments needed to combat the effects of poverty, increase student learning and address the needs of the whole child. 

RESPONSE BY TONY EVERS, PH.D. TO QUESTIONS OF SENATOR ENZI, SENATOR

COLLINS, SENATOR SANDERS, AND SENATOR WHITEHOUSE

SENATOR ENZI

Question 1. Dr. Evers, as a State Education Chief, what has been the response 

of your rural districts as to the ‘‘supplement, not supplant’’ proposal you saw during 

the negotiated rulemaking session and how it will affect them, especially with the 

knowledge that it could cause the forced transfer of teachers? 

Answer 1. All school districts are wondering what direction the supplement, not 

supplant (SnS) rules will take when they are put out for public comment. There is 

great concern from both rural and urban school districts with the proposal the Department of Education (ED) presented in the negotiated rulemaking session earlier 

this year. Concerns range from the amount of administrative reporting that would 

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be created, and add onto already full plates, to the impact this could have on teacher assignments, teacher pay, and programs offered to students. The initial proposal 

seems predicated on a premise that school districts will be able to spend more to 

ensure compliance, when in reality our school districts are stretched thin in terms 

of resources and reallocation of those resources is the most likely response to come 

into compliance. 

Question 2. Dr. Evers, I’m an accountant by trade. I know that reporting school 

level expenditures by specific funding source is not supported by the fiscal data systems used by schools in Wyoming and would cause significant changes in order to 

comply. Can you talk about what feedback you received, after viewing the ‘‘supplement, not supplant’’ proposal during the negotiated rulemaking panel, from your 

data team as to the size of the changes that would be necessary if such a change 

were to be put into place? 

Answer 2. For many school districts across the country, ED’s supplement, not supplant proposal would require fundamental change from current practice. For example, under ED’s negotiated rulemaking proposal, school districts would be required 

to account for district-wide costs and services on a per-school basis. In general, these 

type of services are provided on a district-wide basis and aren’t presently accounted 

for on a school-by-school basis. For example, if a district provides district-wide professional development opportunities for its teachers, systems presently treat this as 

a district-wide expenditure, and not a school-by-school expenditure. In addition, districts often fund schools on a position-by-position (rather than per-pupil) basis, and 

the proposal would force them to create accounting systems that measure costs on 

a per-pupil basis. 

In terms of the size of the change needed to implement this different type of accounting system, it would largely depend on what services a given district might 

provide district-wide and the structure of their existing accounting systems along 

with State-level reporting and data collection requirements. In Wisconsin, this 

would involve significant new data collections at the State level that we would have 

to build into our existing school finance system. At the State level Wisconsin does 

not collect school building-level finance data. We do not know all that would be required of us at the moment to do so, but given the timelines involved, it will be difficult to impossible for us to build these systems and have them up and running 

for the next school year so they can be reported out in 2017–18. 

SENATOR COLLINS

Question. During Secretary King’s confirmation hearing, I asked for his assurance 

that the Department would engage rural communities in its ESSA implementation 

processes. For example, I was alarmed that the Department held its initial public 

listening sessions in DC and Los Angeles. Rural districts also seem to have been 

underrepresented on the committee of negotiators selected for the negotiated rulemaking. 

It’s vital that rural communities and rural educators have a seat at the table. 

What should the Department be doing to ensure rural communities are represented 

in its rulemaking? 

In your States, what are you doing, as stakeholders, to ensure rural voices are 

heard in your State and local planning efforts? 

Answer. As States, we work hard to represent all of our constituencies. As State 

Superintendent, CCSSO President, and a member of the negotiated rulemaking 

committee, I worked to represent the interests of my State, which includes many 

rural schools, as well as those of other chief State school officers who share both 

rural and urban concerns. 

In Wisconsin a quarter of our 424 school districts have fewer than 500 students 

and we have set up a significant process to solicit feedback on ESSA from across 

our State, including rural schools and communities. 

As we begin our planning efforts around ESSA, we are ensuring that at least one 

of our three school improvement and accountability listening sessions is located in 

northern Wisconsin to reach more rural communities. We sent special invitations to 

rural groups and school districts to participate in listening sessions. Wisconsin is 

also hosting a virtual listening session and an online feedback form to ensure that 

distance is not a barrier to providing input. Additionally, we will be soliciting feedback from the State Superintendent’s Rural Advisory Council and the Wisconsin 

Rural Schools Alliance. 

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SENATOR SANDERS

Question 1. We must do everything that we can to ensure that every child—regardless of her or his circumstances—has access to a high-quality education. We 

know that a high-quality education is a resource-intensive endeavor. We also know 

that disadvantaged children need additional resources to combat the ravages of poverty and discrimination. The Elementary and Secondary Education Act (ESEA) of 

1965 marked the beginning of a strong role for the Federal Government in combating inequities on both fronts. Clearly, there is much more work that must be 

done. 

A key component of the Federal Government’s role in education is ensuring that 

our schools have the additional resources needed to ensure that every child can 

reach her or his full potential. Today, over half of all public school children come 

from low-income families. Examining the most recent data available, there is clearly 

an increased need, as well as a lack of sufficient Federal resources to meet this need 

(figure 1). Between school year 2004–5 and school year 2013–14 we have seen a 32 

percent increase in children eligible for free or reduced lunch—an increase of over 

6 million children. 

Yet the main source of Federal funding for public schools serving low-income children—Title I-A of ESEA—has not only not failed to keep pace with the reality that 

our public schools are serving more low-income children than a decade ago, funding 

has not even kept up with inflation. Real title I-A funding is down 6 percent since 

fiscal year 2005 while the percentage of low-income kids in public schools has increased by 32 percent over the same time period. If at a bare minimum title-I-A 

funding had kept pace with inflation since fiscal year 2005, appropriations for titleI-A would have been $15.2 billion in fiscal year 2014 instead of $14.4 billion—a difference of nearly a billion dollars. Furthermore, if title I-A funding had kept pace 

with both inflation and the growing number of children coming from low-income 

families since fiscal year 2005, title-I-A funding would have hit $20.2 billion in fiscal 

year 2014, a gap of over $5.5 billion when considering reality versus actual funding 

(figure 2). 

Dr. Evers, can you please speak to the importance of Federal education funding 

meeting the increased needs of our public schools? Beyond a dramatic increase to 

title-I-A funding, what other funding streams within ESEA and in other Federal 

programs require an increase to meet the realities of today’s public schools? 

Answer 1. Funding matters at both the State and Federal level. In Wisconsin, this 

is enshrined in our State constitution which states in Article X, Section 3 that ‘‘The 

legislature shall provide by law for the establishment of district schools, which shall 

be as nearly uniform as practicable . . .’’ It is our responsibility to ensure that all 

children graduate college and career ready. Yet, all children do not come to us with 

equal needs or equally prepared. In this regard, Federal support for public education 

is critical to State and local efforts to provide all children—regardless of socioeconomic background—with a high quality education. 

The Every Student Succeeds Act (ESSA), which reauthorizes the Elementary and 

Secondary Education Act (ESEA), authorizes essential funding that will allow States 

to support school improvement, help recruit and train high-quality teachers, principals, and other school leaders, address the needs of students who face specific barriers to learning, and pursue innovations to improve the delivery of programming; 

together, these efforts should expand educational opportunity for all students, including those from low-income backgrounds. 

Yet ESSA is part, but not the whole picture when it comes to important Federal 

supports. For instance, I would point out that the Individuals with Disabilities Education Act (IDEA) is critically underfunded; we need fewer children coming to school 

hungry so reimbursements for school breakfast, lunch, and community nutrition 

programs are important; we need more dollars for mental health services in schools; 

and we need universal quality pre-kindergarten programs. 

While adequate funding is, obviously, tremendously important, it is equally important that Federal administrators maintain the flexibility embodied in ESSA—empowering States and local districts to use available funding effectively and efficiently to address the needs of their unique student populations. When it comes to 

deciding how to leverage Federal funding, State and local officials and educators 

have a critical role to play in identifying or developing strategies that will be effective for their schools and students. 

Finally, I should note that there is a wide variance among Wisconsin school districts in the share of their budgets that are from Federal sources. In the 2014–15 

school year, while Federal revenues represented 7.5 percent of all revenues received 

by school districts on a statewide basis in Wisconsin, they were 41 percent of all 

revenues (Federal, State, property taxes, and other local receipts) received by the 

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Lac du Flambeau School District and only 1.3 percent of the total revenues received 

by the Central Westosha School District. In short, Federal funding issues and requirements related to their receipt affect different school districts differently. 

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Question 2. I am very concerned that our schools and communities are dealing 

with a surge of students exposed to multiple adverse experiences and are not 

equipped with the resources, training, and support to accommodate this crisis. 

According to the national Adverse Childhood Experience Study, over half of those 

surveyed reported at least one form of childhood adversity. Shockingly, two in three 

children in our Nation—46 million children—are exposed to violence, crime, abuse, 

or psychological trauma a year. In Vermont, over 20 percent of children have had 

two or more adverse experiences, which include traumatic events like living in 

chronic poverty, living with someone with a substance abuse problem, experiencing 

community or family violence, and more. Even more alarming is the fact that our 

youngest citizens and their parents are at the forefront of this crisis. Since 2014, 

the Department for Children and Families in Vermont has seen a 33 percent increase of children in State custody with children under the age of six making up 

more than two-thirds of this increase. Further, similar to nationwide trends, over 

40 percent of children come from low-income families in my home State, with young 

children the most likely of any age group to be poor. 

Dr. Evers, what can the Department of Education do to help schools, educators, 

and communities be prepared to deliver trauma-informed approaches to education 

when implementing the Every Student Succeeds Act (ESSA)? Additionally, what can 

the Department of Education do to ensure that educators teaching in environments 

where a large percentage of students have had adverse childhood experiences 

(ACEs) have the support and the self-care they need to succeed? Furthermore, what 

policies should Congress enact to help communities combat these challenges and attack the root causes—like poverty, exposure to violence and substance abuse—driving these adverse experiences? How would increased Federal investments in child 

care, preschool, maternal and child home visiting, before-school, afterschool, and 

summer programming, nutritional supports, wrap-around services for schools and 

more help to fight this crisis? Likewise, how would raising the Federal minimum 

wage, addressing under-employment and unemployment, implementing paid family 

leave, and enacting universal health care coverage help attack the root causes of 

these adverse experiences? 

As national education leaders, what plans are your organizations making to work 

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proaches to education? How will you make States and school districts aware of opportunities under ESSA to create trauma-informed environments? 

Answer 2. Far too many children face challenges—including poverty, hunger, exposure to violence, lack of reliable healthcare, and other sources of trauma—that 

make it extremely difficult for them to learn when they come to school. In this context, our education system cannot exist in isolation. States understand the importance of being intentional and strategic to ensure that our education system works 

in close coordination with other systems that help address the day-to-day challenges 

faced by children and families. 

While States would welcome increased Federal funding for programs that address 

the needs of students living in poverty and other students exposed to adverse experiences, ensuring flexibility for States, districts, and schools in the use of Federal 

education funding is also important to supporting the development of a more integrated system that puts students in the best position to learn when they come to 

school. It is essential the Federal rules allow States and districts the discretion to 

allocate funding in ways that effectively address the unique challenges faced by 

their students, including, but not limited to, providing professional development on 

trauma-informed responses to educators. 

ESSA emphasizes the need for comprehensive supports for students, and States 

are prepared to tackle this challenge. Now, it is important that States and districts 

are empowered to utilize Federal funding to create responsive, effective systems. It 

is also important that we work with our national organizations and the Department 

of Education to ensure that we are sharing best practices as to what is working in 

our States and why. 

In Wisconsin, we have undertaken a number of steps to help school districts and 

provide an integrated approach to care. 

• Wisconsin provides access to training and supports around Trauma Sensitive 

Schools/Practices (TSS)—Wisconsin’s TSS resources and online learning modules are examples, as are our professional development resources for training and technical 

assistance. • Wisconsin has developed a school mental health framework that provides guidance to build and strengthen a comprehensive school mental health system. • We have made investments in resources, training, and implementation supports 

for Social Emotional Learning (SEL) competencies, especially at the early childhood 

and preschool levels. SEL programs implemented by school staff members (e.g., 

teachers, student support personnel) improve children’s behavior, attitudes toward 

school, and levels of academic achievement (CASEL, 2008). • We have developed statewide Response to Intervention and Positive Behavioral 

Intervention and Supports centers to help increase academic performance, improve 

safety and establish a positive school culture. 

Question 3. Yesterday, on the 62d anniversary of the Brown v. Board decision, the 

Government Accountability Office (GAO) released a report confirming what educators, families, students, and community stakeholders have been telling us 

anecdotally for some time—our public schools are becoming more segregated by both 

race and family income. 

The number of schools that are doubly segregated by both race and income— 

where 75 percent or more of the kids at these schools come from low-income families 

and are black or Hispanic—has increased from 9 percent of all public schools in 

school year 2000–2001 to 16 percent of all public schools in school year 2013–14. 

Additionally, today, nearly one in five public students attend these doubly segregated public schools—more than double the amount of kids who attended these 

schools almost 15 years ago. Furthermore, Hispanic children are often triply segregated by race, family income, and native language. Shamefully, nearly twothirds—61 percent—of all high-poverty schools are schools where over 75 percent or 

more of the children are black and Hispanic. 

Segregation and isolation by race and income in our public school is an alarming 

phenomenon on its own. Even more troubling is the fact that these doubly segregated schools are not offering students a comparable education to non-segregated 

schools and schools at the other end of the spectrum that are wealthy and predominately white. The GAO report uncovers that these doubly segregated schools have 

fewer resources, do not offer the full range of core courses like math and science, 

offer less advanced coursework, and have disproportionately more disciplinary actions than other public schools. 

I’d like to ask this entire panel—what can the Federal Government do to reverse 

this troubling trend of segregation by race and income, and ensure an equal and 

adequate education for all children? Please feel free to expound on reforms within 

education and greater system wide changes including housing, transportation, jobs, 

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and more. Additionally, through the implementation of the Every Student Succeeds 

Act (ESSA) what can the Department of Education do to make States and school 

districts aware of opportunities within this new law to increase racial and socioeconomic diversity in our schools? 

Answer 3. ESEA is, fundamentally, a civil rights law; one of its core tenets is ensuring that every child—regardless of race or income—has the opportunity to get 

a high-quality education. 

It was introduced as part of President Lyndon B. Johnson’s War on Poverty and 

on the occasion of its signing, President Johnson stated, ‘‘By passing this bill, we 

bridge the gap between helplessness and hope for more than five million educationally deprived children.’’ 

President Johnson’s words cannot be just an aspirational statement. Ensuring a 

quality education where every student graduates college- and career-ready is critical 

to fulfilling the original promise of ESEA. I am not proud of the fact that Wisconsin 

has one of the largest achievement gaps between African American students and 

their peers. I have taken active steps to address our gaps by providing intensive 

supports to school districts, identifying key issues through our State educator equity 

plan regarding the qualifications of educators teaching our students, and convened 

a task force to provide best practices that can be used in the classroom to address 

achievement gaps. I have also made closing gaps and equity my priority as President of the Chief Council of State School Officers. 

I know I am not alone in working to address this issue. All States have significant 

work to do. It is work that transcends education and calls for an examination of 

other policies surrounding housing, transportation, and economic development that 

result in concentrations of poverty that are reflected in our local schools. 

ESSA helps us address this concentration in the law’s pointed references to the 

importance of ensuring that low-income and minority students are afforded the 

same educational opportunities as their peers and requirements for stakeholder consultation. A good example of how concrete policy solutions must be offered at the 

State and local level can be found in ESSA’s requirement for States to describe, as 

part of their title I State plans, ‘‘how low-income and minority children . . . are not 

served at disproportionate rates by ineffective, out-of-field, or inexperienced teachers.’’ Local school districts are also required to address the findings. States take the 

responsibility for ensuring equitable educational opportunity seriously and will work 

with school districts and other stakeholders to that end. 

At the same time, the Department of Education has an important role to play in 

ensuring that States and districts remain within the strong Federal guardrails included in ESSA, while still maintaining State and local flexibility to innovate and 

share effective and evidence-based practices. As I noted in earlier testimony before 

this committee, in States like Wisconsin we welcome Federal oversight of the 

progress we are making, but it is important that States and local districts have the 

flexibility to identify measures and design interventions that reflect the realities facing their unique student populations, because we have seen that No Child Left 

Behind’s one-size-fits-all approach is ineffective. 

Question 4. Dr. Evers, in the United States, over 1.7 million students attend about 

18,000 schools with student bodies that are less than 200 hundred students. In 

Vermont nearly 14,500 students attend 130 schools that have less than 200 students. 

The Every Child Achieves Act (ESSA) maintains important accountability and 

transparency requirements to help us ensure that each child can reach their full potential. States must choose their own ‘‘n-size’’ or the minimum number of students 

necessary to comprise the student subgroup categories of low-income students, students from major racial and ethnic groups, children with disabilities, and English 

Language Learners. As you know, accountability under this law is conducted at the 

school level. 

States with many small schools struggle with finding an n-size that accurately 

captures the performance of all students and student subgroups. In Vermont for example, setting an n-size of 11, and using school-based accountability would still suppress the outcomes of 25 percent of all elementary schools and nearly 70 percent 

of all low-income students. Setting a higher n-size of 40, and using school-based accountability, would suppress student outcome data of almost 80 percent of all elementary schools. 

As the chief State school officer of a State with many rural areas and small 

schools, how do you negotiate the tension of setting an appropriate n-size with the 

reality of small schools and the fact that some children may not be identified using 

school-level accountability? What recommendations do you have for the U.S. Department of Education and other States where school-level accountability creates a chalHELPN-003 with DISTILLER

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lenge to setting an n-size that will appropriately capture the educational outcomes 

of students? Is school-district wide accountability an appropriate substitute for the 

resource intensive small school verification process or an additional layer of accountability for States to use when the size of schools obfuscates the reporting on outcomes of student achievement? 

Answer 4. How to ensure reliable and valid data is not simple in a State like Wisconsin given the variance in the size of our school districts. In Wisconsin, we have 

424 school districts, 24 independent charter schools who are their own local educational agency, and an additional 218 charter schools authorized by school districts. 

We have over 867,000 students. Our largest school district serves over 75,000 students and our smallest under 100. Moreover a quarter of our school districts have 

less than 500 students. 

As a result, we feel the need to strike a balance between valid and reliable accountability measures, which nod toward higher cell sizes, and including as many 

students in the accountability system as possible. I think we have made significant 

progress in crafting an accountability system that is reliable and valid. To that end, 

I’ve provided below a description of how Wisconsin has approached cell sizes. 

• When we applied for a waiver in ESEA, we changed our cell size from 40 to 

20. My staff ran analyses to identify a new smaller cell size and the impact of the 

change. 

• At the time, 35.3 percent more students with disabilities were included with 

a cell size of 20 instead of 40. 

• 18.2 percent more English learners were included. 

• 412 or 19.5 percent more schools were included. 

• The cell size change admittedly decreased initial reliability of some measures, 

so we’ve looked to address those challenges by using multiple years of data and, in 

some cases, pooling small groups of students together in order to include them in 

the system. 

• Almost every measure of our accountability report card uses at least 2 years 

of data in the calculation, in order to buffer the group size and stabilize the measure. Trend calculations are weighted so that the current year has the highest weight 

in order to ensure that using more years doesn’t obscure progress or challenges. 

• We use a supplemental supergroup in cases in which economically disadvantaged students, English learners, and students with disabilities groups do not meet 

cell size on their own. This includes more students in the accountability system. We 

consider this a supplemental group because it does not replace any existing subgroups; we only use this group if the individual subgroups do not alone meet minimum cell size. 

• At the time of initial implementation (for 2011–12 reports), we were able to 

provide gap closure scores for over 100 more schools than without supergroups. 

• Even with all this, we still have students not included in school-level accountability. One way we’ve made some progress on this is by creating district accountability report cards. In some cases, a student group at a school level may not be 

large enough to meet a school-level cell size of 20, but when students in that group 

are pooled together across a district, there is a greater chance they will be included 

in that level of reporting. 

SENATOR WHITEHOUSE

Question 1. ESSA is a relief to many, especially in Rhode Island. Everyone who 

I’ve talked to is very excited about this bipartisan bill and the opportunities it presents. 

I am concerned about the supplement, not supplant issue. Many of you have said 

that ED’s proposed regulations on ‘‘supplement, not supplant’’ are an overreach. But 

I am also aware of many inequities that exist in local and State funding for education. 

Absolutely no one wants to see Federal money come in and provide an excuse to 

send other funding into wealthier, well-connected school districts and have title I 

fill the gap. 

I’ve heard from many about the problems with ED’s draft proposal. My question 

is not what are the problems, but what should ED do instead? That is, what would 

you affirmatively propose to ensure that title I funds are supplemental and not supplanting State and local funds? 

Answer 1. I’m not sure I have a silver bullet solution, but there are options that 

may be considered. For instance, the simplest thing would be to require an assurance that Federal funds will supplement State and local funds. That is very similar 

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to what we’re doing now, and we could keep it as an assurance for which we are 

responsible and on which our Federal funds are contingent. 

If there is a need for a methodology to prove what districts are doing, one could 

consider linking supplement, not supplant with comparability provisions. Could current comparability provisions be used to satisfy ESSA supplement, not supplant requirements? A benefit to this approach is that schools may use full-time equivalency 

instead of actual salaries. The current comparability rules work from our perspective and we think could be an option to meet the requirements in ESSA by allowing 

it in the regulations. 

Yet another option could involve keeping existing supplement, not supplant requirements and, additionally, requiring States to assure they will establish a method to compare spending on low-income students at the building and district level 

to statewide averages. Any discrepancy outside of a certain range would have to be 

explained to ED. 

Question 2. Under NCLB and the Obama administration’s waivers, I consistently 

heard from Rhode Island teachers and principals that they could achieve better results if not for the layers of bureaucracy stifling innovation at multiple levels. 

I am very pleased that ESSA is a step away from that one-size-fits-all, overly prescriptive posture. You have all heard me talk about the provisions I fought for in 

ESSA—requiring States to describe how they will encourage opportunities for increased autonomy and flexibility. 

I am concerned because I do not want to see ED use the regulatory process to 

grab back the control that ESSA intended to push down to the State and local level. 

What could ED do on the supplement, not supplant issue that would support greater 

innovation at the local level? 

Answer 2. I’m going to refer to my answer in your first question regarding supplement, not supplant. I don’t know if supplement, not supplant can engender innovation, but, related to your first question, if we want to eliminate bureaucracy the Department of Education could make changes to simplify the supplement, not supplant 

proposed rules to recognize how complex compliance would be under the system 

they put forward in negotiated rulemaking. 

Separately, under the many flexibilities granted under ESSA, one that I believe 

will result in significant innovation is the new provision to allow State education 

agencies to waive the poverty requirement for a school to become schoolwide program. This, I believe, will result in significant and more innovative programming 

in schools and districts. 

RESPONSE BY THOMAS AHART, ED.D., TO QUESTIONS OF CHAIRMAN ALEXANDER, 

SENATOR COLLINS, SENATOR SANDERS, AND SENATOR WHITEHOUSE

CHAIRMAN ALEXANDER

Question. We’ve heard through testimony that this proposed rule could require 

forced teacher transfers, require costly overhauls of district finance systems, and 

promote practices that serve to further segregate poor students in the poorest 

schools. 

You mention the rule ‘‘provides regulatory barriers to effective instructional services for students, interference in school autonomy in staff recruitment and selection, 

intrusion in the deployment of effective school leaders, unworkable criteria and unnecessary requirements, additional costs, and unrealistic administratively created 

obligations.’’ 

As a district leader, what specific actions in the Des Moines Public School system 

or other systems in which you’ve worked would you need to take in order to comply 

with this proposed rule on supplement, not supplant? What problems would those 

actions pose that run counter to efforts to improve schools in your district? 

Answer. What often seems to be lost on the Department is that our ability to best 

serve schools with concentrated poverty that do not benefit from title I funds will 

be jeopardized under the proposed supplement, not supplant regulations if districts 

are forced to spend additional State and local funds to cover the salary differentials 

between higher paid and lower paid teachers. Many high poverty schools are not 

served with title I because, frankly, there is not enough to go around. While a 40 

percent free/reduced rate can qualify a school for title I services, there are currently 

14 Des Moines schools with a poverty rate between 73 percent and 40 percent that 

we are not able to provide with title I services. The very children the legislation is 

designed to support will be negatively impacted under the proposed regulations. 

Operationally, this proposed regulation would effectively require salary equivalency between title and non-title schools or require school districts to make up the 

difference with State and local funds. Since the Nation’s teacher salary system is 

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primarily based on increasing salary increments for years of experience (as well as 

for advanced educational attainment), schools with older, higher paid staff compared 

to younger, less highly paid staff would necessarily trigger noncompliance on an unprecedented scale. 

To comply, districts would have to spend additional State and local funds to cover 

the salary differentials between higher paid and lower paid teachers. Or, in an alternative compliance scenario, districts potentially could shift their higher-paid 

teachers to title I schools and their lower-paid teachers to non-title I schools. The 

Center of American Progress (CAP) reported in 2012 that the cost of compliance 

with this type of per-pupil comparability requirement would be $6.8 billion based 

on national data at the time, and in 2015 CAP estimated the compliance cost at $8.5 

billion nationally using the most recent OCR expenditure data. The Council of the 

Great City Schools estimated the compliance cost for their 69 member school districts could reach $3.9 billion, ranging from millions to hundreds of millions of dollars in individual districts. (C) 

Unfortunately, neither of these options correlate with improving student academic 

performance because, to state it simply: there is no relationship between salary level 

and teacher effectiveness. This would result in unwarranted disruptions in instructional continuity and communities of practice in our schools. 

Higher paid teachers teach for the same 6 hours daily and 180 school days annually as teachers with lower pay and less time in the profession; students receive an 

equivalent level of service from their teachers regardless of pay or years of service. 

Lower pay can be attributed to a variety of factors including individuals entering 

the profession later in life as a second career, the difference between taking single 

or family coverage for insurance benefits, or advanced educational attainment— 

which may or may not be in an area related to the individual’s teaching assignment. 

None of these factors translate to the quality instruction provided by the teacher. 

The issue is complicated and cannot be narrowed to the simplistic issues identified 

in the draft regulations. 

Moreover, current Federal requirements already ensure that at least the same 

number of full-time equivalent teachers are deployed in title I as in non-title I 

schools. 

School districts clearly do not have the State and local funds to cover the salary 

differential costs of compliance, nor should districts disrupt instructional continuity 

and communities of practice in our schools by summarily transferring teachers. 

Moreover, the teacher transfer option would violate most collective bargaining 

agreements. Many districts literally would be faced with an impossibility of performance under these regulations—which have no reasonable basis in the Act and appear to violate at least three separate statutory prohibitions in ESSA. I hasten to 

add that neither of these solutions, even if possible, reflect best education practice. 

These operational concerns relate to regulatory barriers to effective instructional 

services for students, interference in school autonomy in staff recruitment, selection, 

and placement, unworkable criteria, unnecessary requirements, additional costs, 

and unrealistic administratively created obligations. 

SENATOR COLLINS

Question. During Secretary King’s confirmation hearing, I asked for his assurance 

that the Department would engage rural communities in its ESSA implementation 

processes. For example, I was alarmed that the Department held its initial public 

listening sessions in DC and Los Angeles. Rural districts also seem to have been 

underrepresented on the committee of negotiators selected for the negotiated rulemaking. 

It’s vital that rural communities and rural educators have a seat at the table. 

What should the Department be doing to ensure rural communities are represented 

in its rulemaking? 

In your States, what are you doing, as stakeholders, to ensure rural voices are 

heard in your State and local planning efforts? 

Answer. The Iowa Department of Education has organized internal teams to begin 

work on Iowa’s State plan to implement the provisions included in ESSA. The Director of the Iowa Department of Education, Ryan Wise, has assured superintendents 

in our 333 districts they will have regular opportunities for timely and meaningful 

consultation with relevant stakeholders, including parents, local educational agencies, teachers, and principals, when developing the transition plan. 

Even in Iowa, the broad range of individual district characteristics and the students and families they serve vary widely. It has been a long-standing practice of 

the Iowa Department of Education to ensure representation of the diversity of our 

State and its school districts when seeking input on important issues—rural, urban, 

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large and small districts, as well as the geographic distribution of individuals providing input and the demographics of the districts they represent. 

I look forward to the development of a more thoughtful State accountability system under ESSA, and we are working closely with our State department of education on a statewide implementation process. 

SENATOR SANDERS

Question 1. We must do everything that we can to ensure that every child—regardless of her or his circumstances—has access to a high-quality education. We 

know that a high-quality education is a resource-intensive endeavor. We also know 

that disadvantaged children need additional resources to combat the ravages of poverty and discrimination. The Elementary and Secondary Education Act (ESEA) of 

1965 marked the beginning of a strong role for the Federal Government in combating inequities on both fronts. Clearly, there is much more work that must be 

done. 

A key component of the Federal Government’s role in education is ensuring that 

our schools have the additional resources needed to ensure that every child can 

reach her or his full potential. Today, over half of all public school children come 

from low-income families. Examining the most recent data available, there is clearly 

an increased need, as well as a lack of sufficient Federal resources to meet this need 

(figure 1). Between school year 2004–5 and school year 2013–14 we have seen a 32 

percent increase in children eligible for free or reduced lunch—an increase of over 

6 million children. 

Yet the main source of Federal funding for public schools serving low-income children—Title I-A of ESEA—has not only not failed to keep pace with the reality that 

our public schools are serving more low-income children than a decade ago, funding 

has not even kept up with inflation. Real title I-A funding is down 6 percent since 

fiscal year 2005 while the percentage of low-income kids in public schools has increased by 32 percent over the same time period. If at a bare minimum title-I-A 

funding had kept pace with inflation since fiscal year 2005, appropriations for titleI-A would have been $15.2 billion in fiscal year 2014 instead of $14.4 billion—a difference of nearly a billion dollars. Furthermore, if title I-A funding had kept pace 

with both inflation and the growing number of children coming from low-income 

families since fiscal year 2005, title-I-A funding would have hit $20.2 billion in fiscal 

year 2014, a gap of over $5.5 billion when considering reality versus actual funding 

(figure 2). 

Dr. Ahart, can you please speak to the importance of Federal education funding 

meeting the increased needs of our public schools? Beyond a dramatic increase to 

title-I-A funding, what other funding streams within ESEA and in other Federal 

programs require an increase to meet the realities of today’s public schools? 

Answer 2. The changing demographics of Des Moines Public Schools reflects the 

myriad of needs and potential barriers we face without adequate funds in meeting 

the needs of all of our students and supporting them in reaching high academic 

standards. 

DMPS is a majority minority urban district, serving over 33,000 students, 58 percent of whom are minorities. Two ongoing challenges faced by the district are poverty and the high number of students who are English Language Learners. 

The majority of families in the district are low-income, and this rate has steadily 

increased over the past two decades. In 1993, only 33 percent of district students 

qualified for the Free and Reduced Lunch (FRPL) program. This has increased to 

over 73 percent of students qualifying today. Most schools provide free breakfast 

and lunch to students. And the poverty levels continue to grow, as evidenced by increased numbers of kindergarten students qualifying for FRPL in the context of an 

increasing enrollment for the district. The poverty levels in Des Moines’ poorest zip 

codes, known as the Urban Core, resemble other high poverty cities, such as Detroit 

or Philadelphia. 

Figure 1 highlights the changes in K–12 enrollment with regard to eligibility for 

free/reduced priced lunch, English language learner programming, and special education services. DMPS mirrors the State’s upward trend of children eligible for free/ 

reduced priced lunch through 2014–15. However, Iowa’s rate of eligibility is lower 

than DMPS’s, with 38.8 percent (2015–16 data not yet available) of students in Iowa 

(excluding DMPS) eligible in 2014–15 and 74.8 percent of DMPS students eligible 

in 2015–16. 

The number of English language learner (ELL) students has steadily increased in 

DMPS and Iowa. In the past 10 years, the ELL population at DMPS has grown by 

over 70 percent. Currently, ELL students represent 20.6 percent of DMPS students. 

DMPS is ranked 11th in the State with regard to percentage of ELL students. 

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DMPS educates approximately 6,500 ELL students in grades K–12. The number of 

ELL students at DMPS is more than the total number students enrolled at 96 percent of Iowa districts. The percentage of students requiring special education services has held steady in DMPS. In 2014–15, 12.6 percent (2015–16 data not yet available) of students statewide required services, while 15.1 percent of DMPS students 

required services in 2015–16. 

Since the early 1970s, Iowa has chosen to serve as a resettlement State for refugees from around the world. As a result, the number of English Language Learners 

(ELL) at DMPS has greatly increased from 300 students who speak five native languages in the mid–1970’s, to the current level of 6,580 students (20.6 percent of students) speaking over 100 different languages and dialects. The language barriers for 

both students and their families create significant obstacles to learning. Further 

complicating their learning is that many ELL’s are illiterate in their native languages. Parent communication with school staff and their ability to assist their children with school work is limited. As ELL students learn English, they often become 

one of the only links between their linguistically isolated families and the world 

within which they are trying to survive. 

Additionally, student disengagement increases during the transition from elementary to middle school. The percentage of DMPS students proficient in reading 

dropped from 72 percent in 5th grade (2010–11) to 49 percent in 6th grade (2011– 

12). Furthermore, the Iowa Youth Survey gauged the number of DMPS students 

who felt committed to school and learning. Results show that the percentage significantly decreased between elementary school (86 percent) to middle school (67 percent) and stayed the same from middle school to high school (67 percent). Students 

who drop out of school face significant consequences. They earn lower wages, are 

eight times more likely to commit crimes, are twice as likely to live in poverty, and 

earn $1,000,000 less than their graduating peers over their lifetimes (Alliance for 

Excellent Education, 2011). 

The changing demographics of our district and the needs of our students associated with these demographics demonstrate the need for increased funding in the following title Programs: 

• Title I—Improving Basic Programs Offered by State and Local Educational 

Agencies 

• Title II—Preparing, training, and recruiting high quality teachers, principals, or 

other school leaders 

• Title II—Language Instruction for English Language Learners and Immigrant 

Students 

• Title IV—21st Century Schools 

• Title V—State Innovation and Local Flexibility 

• Title VI—Indian, Native Hawaiian, and Alaska Native Education 

• Title VII—Impact Aid 

• Title IX—Education for the Homeless and Other Laws 

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20264-7.eps
88 

Figure One: 

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20264-8.eps

Real Title I Education Funding Has Not Kept Up With A Growing Vulnerable Student Population 

Cumulative percent change since 2005 of population and inflation-adjusted funding 

35% 

30% 

25% 

20% 

15% 

10% 

5% 

0% 

·5% 

·10% 

FY 

-Low-income children in 

public schools 

32% 

·6% 

Note: Title I Education funding has been inflated using the OMB composite non-defense outlay deflator. 2009 value 

excludes additional ARRA funding. Population reflects the number of students approved for free or reduced school 

lunches. 
89 

Figure Two: 

Question 2. Yesterday, on the 62d anniversary of the Brown v. Board decision, the 

Government Accountability Office (GAO) released a report confirming what educators, families, students, and community stakeholders have been telling us 

anecdotally for some time—our public schools are becoming more segregated by both 

race and family income. 

The number of schools that are doubly segregated by both race and income— 

where 75 percent or more of the kids at these schools come from low-income families 

and are black or Hispanic—has increased from 9 percent of all public schools in 

school year 2000–2001 to 16 percent of all public schools in school year 2013–14. 

Additionally, today, nearly one in five public students attend these doubly segregated public schools—more than double the amount of kids who attended these 

schools almost 15 years ago. Furthermore, Hispanic children are often triply segregated by race, family income, and native language. Shamefully, nearly twoHELPN-003 with DISTILLER


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90 

thirds—61 percent—of all high-poverty schools are schools where over 75 percent or 

more of the children are black and Hispanic. 

Segregation and isolation by race and income in our public school is an alarming 

phenomenon on its own. Even more troubling is that the fact that these doubly segregated schools are not offering students a comparable education to non-segregated 

schools and schools at the other end of the spectrum that are wealthy and predominately white. The GAO report uncovers that these doubly segregated schools have 

fewer resources, do not offer the full range of core courses like math and science, 

offer less advanced coursework, and have disproportionately more disciplinary actions than other public schools. 

I’d like to ask this entire panel—what can the Federal Government do to reverse 

this troubling trend of segregation by race and income, and ensure an equal and 

adequate education for all children? Please feel free to expound on reforms within 

education and greater system wide changes including housing, transportation, jobs, 

and more. Additionally, through the implementation of the Every Student Succeeds 

Act (ESSA) what can the Department of Education do to make States and school 

districts aware of opportunities within this new law to increase racial and socioeconomic diversity in our schools? 

Answer 2. Best and promising practices regarding counteracting the re-segregation of schools include: 

1. Additional incentives, training, and support for teachers to work in diverse/ 

urban environments. 

a. Urban districts can often compete for new highly qualified teachers in terms 

of salary and benefits, but struggle with adequate housing, appropriate training. 

b. Programs in DMPS like the Alternative teacher Contract which offer specific 

training, with longer commitment and a Master degree fit these needs and show increasing promise. 

2. Equitable facilities funding. 

a. Many families are drawn to districts that have competitive advantages, from 

state-of-the-art Libraries, modern gymnasiums, innovated laboratories, and athletic 

fields, families with means are determining where they would like to settle based 

on the amenities the school offers. 

b. New buildings in DMPS has improved moral, provided enhanced opportunity/ 

Suburban districts continue to see benefit from facilities upgrades in all areas as 

well. 

3. Redraw school attendance boundaries in a way that captures a more diverse 

student population, including the consideration for specific program opportunities 

unique to a geographical location. 

a. State like Iowa would benefit from school districts that are struggling to maintain capacity. 

b. Internal boundary changes have created more equitable opportunities for students, District is working on tackling greater access to gifted and talented programing. DMPS has already seen impact in AP programming. 

4. Additional competitive grants to encourage diversity and will work with other 

agencies to encourage more integrated schools and communities. Such as the new 

I3 grant. 

a. Resources are an indicator of priority. Current grant funding has been highly 

effective in increasing the capacity, accountability, and fidelity of implementation 

for other initiatives. Additional grant funding would allow innovative practices to 

prove effectiveness and establishing scalability. 

5. Reinforcement of school segregation policies to consider income. 

a. School re-segregation largely intersects race with income as an effect on the 

impact. 

SENATOR WHITEHOUSE

Question 1. ESSA is a relief to many, especially in Rhode Island. Everyone who 

I’ve talked to is very excited about this bipartisan bill and the opportunities it presents. 

I am concerned about the supplement, not supplant issue. Many of you have said 

that ED’s proposed regulations on ‘‘supplement, not supplant’’ are an overreach. But 

I am also aware of many inequities that exist in local and State funding for education. 

Absolutely no one wants to see Federal money come in and provide an excuse to 

send other funding into wealthier, well-connected school districts and have title I 

fill the gap. 

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I’ve heard from many about the problems with ED’s draft proposal. My question 

is not what are the problems, but what should ED do instead? That is, what would 

you affirmatively propose to ensure that title I funds are supplemental and not supplanting State and local funds? 

Answer 1. The Title I Statement of Purpose declares: 

The purpose of this title is to provide all children significant opportunity to 

receive a fair, equitable, and high-quality education, and to close educational 

achievement gaps. 

Further, section 1111 delineates the obligation of States to file a State plan that 

is: 

. . . developed by the State educational agency with timely and meaningful 

consultation with the Governor, members of the State legislature and State 

board of education (if the State has a State board of education), local education 

agencies (including those located in rural areas), representatives of Indian 

tribes located in the State, teachers, principals, other school leaders, charter 

school leaders (if the State has charter schools), specialized instructional support personnel, paraprofessionals, administrations, other staff, and parents . . . 

States and local school districts have widely diverse characteristics related to 

their size, local funding, demographics of the students they serve, and State laws 

that govern public schools. 

Let those closest to the local school districts and the students and families we 

serve determine what the qualities of a fair, equitable, and high-quality education 

are that will close educational achievement gaps. 

Use the processes put into place by ESSA, along with the knowledge and skills 

of these on the ESSA planning committees, to develop a State plan to ensure title 

I funds are supplemental and not supplanting State and local funds. 

And most importantly, allow these planning committees to put together a plan 

that ensures an equitable education for all children—remembering that equitable 

does not mean equal. The only hope for successful results from ESSA rests in the 

State agencies’ ability to craft guidance that is meaningful to individual State and 

district contexts. 

Question 2. Under NCLB and the Obama administration’s waivers, I consistently 

heard from Rhode Island teachers and principals that they could achieve better results if not for the layers of bureaucracy stifling innovation at multiple levels. 

I am very pleased that ESSA is a step away from that one-size-fits-all, overly prescriptive posture. You have all heard me talk about the provisions I fought for in 

ESSA—requiring States to describe how they will encourage opportunities for increased autonomy and flexibility. 

I am concerned because I do not want to see ED use the regulatory process to 

grab back the control that ESSA intended to push down to the State and local level. 

What could ED do on the supplement, not supplant issue that would support greater 

innovation at the local level? 

Answer 2. While regulations are intended to clarify provisions of the statute and 

facilitate effective implementation, many of the regulatory provisions appear to restrict, condition, redefine, and even expand ESSA. 

These operational concerns relate to regulatory barriers to effective instructional 

services for students, interference in school autonomy in staff recruitment, selection, 

and placement, unworkable criteria, unnecessary requirements, additional costs, 

and unrealistic administratively created obligations. 

The Education Department could be helpful in issuing non-regulatory guidance 

that provides a non-exclusive range of examples of implementation options for various provisions of ESSA. There is no such thing as one-size-fits-all. Even in Iowa, 

the broad range of individual district characteristics vary widely. 

In addition, use the processes put into place by ESSA, along with the knowledge 

and skills of those charged with developing a State plan to ensure title I funds are 

supplemental and not supplanting State and local funds. 

And most importantly, allow these planning committees ESSA charged with putting together a State plan to do their jobs. These are the people best able to put 

together an innovative plan that provides for equity, understanding that does not 

mean equal. 

The only hope for successful results from ESSA rests in the State agencies’ ability 

to craft guidance that is meaningful to individual State and district contexts. 

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RESPONSE BY NORA GORDON, PH.D. TO QUESTIONS OF CHAIRMAN ALEXANDER, SENATOR SANDERS, AND SENATOR WHITEHOUSE

CHAIRMAN ALEXANDER

Question. In your testimony, you discuss how prior to the new law, compliance 

with Supplement, not Supplant was typically determined by districts detailing individual costs and proving that everything paid for by title I money was extra for students. 

You note that this was a burdensome practice that often led to inefficient spending. 

However, the changes Congress made to ‘‘Supplement, not Supplant’’ actually 

serve to encourage more effective spending with title I money and decrease compliance burden for school districts, and the proposed rule actually runs counter to congressional intent. 

How does the proposed rule run counter to congressional intent by actually increasing the burden and discouraging better, flexible spending decisions by local 

school districts and schools? 

Answer. The proposed rule would not simply ‘‘undo’’ the congressional intent in 

ESSA to encourage effective spending. Rather, it would require school districts to 

change how they allocate State and local resources across schools. Many districts 

would not comply with the rule, even if they allocate more teachers to high—poverty 

schools. In the CRDC data, I have identified districts that weight additionally for 

student poverty, using student-based budgeting/weighted student formulas (which 

are largely viewed as one of the most equitable approaches to funding schools) that 

would fail to comply with the rule. The reasons for non-compliance likely vary—but 

one reason could be that high-poverty students who generate more funds—may not 

all be concentrated only in title I schools. 

Many non-title I schools have high poverty levels. I analyzed the 2011–12 Common Core of Data Public School Universe and found (of those schools reporting freelunch eligibility data) 9,015 schools that do not participate in title I and have at 

least 40 percent of their students eligible for free lunch; of these non-title I schools, 

2,826 had at least 60 percent of their students eligible for free lunch. 

To comply with the proposed rule, districts would be forced to make annual afterthe-fact adjustments to their staffing and other distributions of funds. The adjustments needed to comply with the proposed rule would in fact make it quite difficult 

to comply with statutory language itself (requiring a methodology that demonstrates 

title I schools do not get less State and local funds because of their participation 

in title I), because consistently applied methodologies would likely fail to deliver the 

result required by the draft rule. 

Rather than encouraging innovation and transparency, the proposed rule would 

push districts away from consistent resource allocation methods that permit leaders 

to plan coherently and effectively for the future. 

SENATOR SANDERS

Question. Yesterday, on the 62d anniversary of the Brown v. Board decision, the 

Government Accountability Office (GAO) released a report confirming what educators, families, students, and community stakeholders have been telling us 

anecdotally for some time—our public schools are becoming more segregated by both 

race and family income. 

The number of schools that are doubly segregated by both race and income— 

where 75 percent or more of the kids at these schools come from low-income families 

and are black or Hispanic—has increased from 9 percent of all public schools in 

school year 2000–2001 to 16 percent of all public schools in school year 2013–14. 

Additionally, today, nearly one in five public students attend these doubly segregated public schools—more than double the amount of kids who attended these 

schools almost 15 years ago. Furthermore, Hispanic children are often triply segregated by race, family income, and native language. Shamefully, nearly twothirds—61 percent—of all high-poverty schools are schools where over 75 percent or 

more of the children are black and Hispanic. 

Segregation and isolation by race and income in our public school is an alarming 

phenomenon on its own. Even more troubling is that the fact that these doubly segregated schools are not offering students a comparable education to non-segregated 

schools and schools at the other end of the spectrum that are wealthy and predominately white. The GAO report uncovers that these doubly segregated schools have 

fewer resources, do not offer the full range of core courses like math and science, 

offer less advanced coursework, and have disproportionately more disciplinary actions than other public schools. 

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93 

I’d like to ask this entire panel—what can the Federal Government do to reverse 

this troubling trend of segregation by race and income, and ensure an equal and 

adequate education for all children? Please feel free to expound on reforms within 

education and greater system wide changes including housing, transportation, jobs, 

and more. Additionally, through the implementation of the Every Student Succeeds 

Act (ESSA) what can the Department of Education do to make States and school 

districts aware of opportunities within this new law to increase racial and socioeconomic diversity in our schools? 

Answer. Local approaches to school desegregation often involve extra costs. For 

example, voluntary integration plans, whether magnets or more general intradistrict 

choice options, may offer special programming to all students in order to draw students from a wealthier attendance area to a low-income attendance area. Alternatively, a district may provide additional funds or services to low-income disadvantaged students in economic integration programs in order to provide additional supports to these students in more rigorous school settings (which can be in higher 

wealth attendance areas.) These expensive programs may take place outside of title 

I schools, and outside of high poverty schools within diverse districts. In addition 

to actions such as those now being pursued to encourage cross-agency efforts tackling segregation in education and housing, and the role of transportation, ED should 

be sure its interpretation of SNS does not rule out such racial and economic integration efforts. 

SENATOR WHITEHOUSE

Question 1. ESSA is a relief to many, especially in Rhode Island. Everyone who 

I’ve talked to is very excited about this bipartisan bill and the opportunities it presents. 

I am concerned about the supplement, not supplant issue. Many of you have said 

that ED’s proposed regulations on ‘‘supplement, not supplant’’ are an overreach. But 

I am also aware of many inequities that exist in local and State funding for education. 

Absolutely no one wants to see Federal money come in and provide an excuse to 

send other funding into wealthier, well-connected school districts and have title I 

fill the gap. 

I’ve heard from many about the problems with ED’s draft proposal. My question 

is not what are the problems, but what should ED do instead? That is, what would 

you affirmatively propose to ensure that title I funds are supplemental and not supplanting State and local funds? 

Answer 1. In ESSA, Congress set forth an actual test of whether title I funds are 

supplemental and not supplanting State and local funds in a title I school. Under 

the test, each LEA must describe how it allocates funds across schools, and demonstrate that this methodology does not result in title I schools receiving fewer State 

and local dollars than they would were they not participating in the title I program. 

In the discussion surrounding ED’s draft proposal, it has somehow been assumed 

that absent this proposal, ED would not be doing anything to ensure the integrity 

of program funds via this new, clear, easily tested SNS standard. To the contrary, 

ED and SEAs, must enforce the law, and the law sets a new high bar for SNS. 

For more details on how districts could be sure they are meeting the new standard—which under NCLB was optional for schoolwide programs under NCLB—ED’s 

July 2015 schoolwide program guidance is a useful tool. The same test that was optional (and rarely used) under NCLB for SWP schools, is now required rather than 

optional under ESSA. The explanation in ED’s July 2015 schoolwide guidance, 

which is consistent with the ESSA language, should be the basis for compliance 

with SNS. 

• July, 2015—ESEA Title I Schoolwide Guidance, Non-Regulatory Guidance PDF 

(3.30MB). 

Congress and ED should also ensure that ESSA’s new reporting requirements are 

used to produce high-quality data that can inform future Federal decisionmaking. 

Though there have been past efforts at collecting school-level finance data based on 

actual, not average, teacher salaries, given existing data infrastructure in districts, 

the reliability of these data is unclear. ED can help promote the integrity of future 

data by: (1) seeking extensive feedback from State and local agencies about how 

their accounting systems are currently structured, because any Federal reporting requirements will pull from these frameworks and aligning Federal reporting with existing data elements will both lessen local burden and improve Federal data quality; 

and (2) cross-validate data for randomly selected districts with any available local 

administrative sources. 

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1Gordon, Nora and Sarah Reber. 2015. ‘‘The Quest for a Targeted and Effective Title I: Challenges in Designing and Implementing Fiscal Compliance Rules.’’ RSF: The Russell Sage Foundation Journal of the Social Sciences, 1(3), 129–147. 

Question 2. Under NCLB and the Obama administration’s waivers, I consistently 

heard from Rhode Island teachers and principals that they could achieve better results if not for the layers of bureaucracy stifling innovation at multiple levels. 

I am very pleased that ESSA is a step away from that one-size-fits-all, overly prescriptive posture. You have all heard me talk about the provisions I fought for in 

ESSA—requiring States to describe how they will encourage opportunities for increased autonomy and flexibility. 

I am concerned because I do not want to see ED use the regulatory process to 

grab back the control that ESSA intended to push down to the State and local level. 

What could ED do on the supplement, not supplant issue that would support greater 

innovation at the local level? 

Answer 2. Congress’ approach to SNS opens title I to innovative uses of funds. 

As I have documented in my research with Sarah Reber, confusion over the SNS 

requirement led to significant bureaucratic requirements, and perhaps more importantly, title I being ‘‘locked out’’ for innovative programs that are good for students.1

The most important thing ED can do to encourage innovation with title I funds is 

to make sure SEAs and LEAs understand their spending options. 

At this point, ED has built up a sizable body of nonregulatory policy guidance that 

in some way relates to the pre-ESSA version of supplement, not supplant. Whether 

ED clarifies SNS under ESSA through regulations, through non-regulatory guidance, or lets the statutory language speak for itself, it is imperative to strike old 

guidance that relates to the pre-ESSA definition of SNS. These documents should 

be removed from ED’s Web site. ED should actively engage with SEAs to be sure 

that they also remove the documents which they post on their own State Web sites 

as well, and encourage States to communicate the new requirements clearly to their 

LEAs. In each of these cases, ED should communicate the new rule as described 

in the July 2015 schoolwide guidance. 

This is not a straightforward process, because in many cases, SNS is just one 

small part of a larger guidance document. ED should not leave them intact (including outdated text) even if noting in another document that it supersedes the previous guidance. Rather it should create a new version of the old one, that either removes all reference to SNS or replaces the old language with new language. 

This would be an excellent opportunity to modernize the user-interface on ED’s 

guidance, so that users can search across what are now multiple documents from a 

web browser (if they do not know which documents will be relevant to their question), rather than downloading numerous PDF documents and searching one by one. 

Even the July 2015 schoolwide guidance, which was the clearest communication 

yet of the rule, noted that the guidance should be used with other pre-existing guidance. ED should facilitate understanding of the rule by putting everything in one 

place, so administrators do not need to seek out the SNS portion of multiple documents. 

Here is a (likely not exhaustive) list of now-outdated guidance documents: 

• November 2010—When to Treat Expenditures of Education Jobs Funds as State 

or Local Funds for Purposes of the Fiscal Requirements under Title I, Part A of the 

Elementary and Secondary Education Act of 1965 WORD (471K) / PDF (271K). 

• September 3, 2009—Title I, Part A Recovery Funds for Grants to Local Educational Agencies Uses of Funds Guidance. 

• March 2010—Title I, Part A Guidance on Funds Made Available under the 

American Recovery and Reinvestment Act of 2009 (ARRA): http://www2.ed.gov/policy/gen/leg/recovery/guidance/title-i-rev–201003.doc. 

• February, 2008—Fiscal Issues: Title I, Part A, Non-Regulatory Guidance MS 

WORD (995K) / PDF (254K). 

Note: I am including schoolwide guidance documents below despite their previous 

allowed use of the new SNS test because one could get the mistaken impression 

from these that the new SNS test is optional for schoolwide programs, and that it 

is prohibited for targeted assistance schools. 

• October 13, 2015—ESEA Title I Schoolwide Guidance Webinar (PPT) PDF 

(3.63MB). 

• July, 2015—ESEA Title I Schoolwide Guidance, Non-Regulatory Guidance PDF 

(3.30MB). 

• March, 2006—Designing Schoolwide Programs, Non-Regulatory Guidance MS 

WORD (452K). 

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• Guidance on Targeted Assistance Schools: http://www2.ed. 

gov/legislation/ESEA/TitlelI/target.html. 

Finally, ED should devote a section of its Web site to showcasing innovative uses 

of title I funds. SEAs and LEAs could submit ideas and ED could write up very 

short descriptions of the programs. ED might seek to encourage submission of cases 

in which LEAs have partnered with other local not for profit or governmental agencies to provide services, or when LEAs have fiscally consolidated funds. Local administrators could comment briefly on hurdles they overcame and what they were 

newly able to accomplish. 

RESPONSE BY DENISE MARSHALL TO QUESTIONS OF SENATOR COLLINS, SENATOR

SANDERS, AND SENATOR WHITEHOUSE

SENATOR COLLINS

Question. During Secretary King’s confirmation hearing, I asked for his assurance 

that the Department would engage rural communities in its ESSA implementation 

processes. For example, I was alarmed that the Department held its initial public 

listening sessions in DC and Los Angeles. Rural districts also seem to have been 

underrepresented on the committee of negotiators selected for the negotiated rulemaking. 

It’s vital that rural communities and rural educators have a seat at the table. 

What should the Department be doing to ensure rural communities are represented 

in its rulemaking? 

In your States, what are you doing, as stakeholders, to ensure rural voices are 

heard in your State and local planning efforts? 

Answer. COPAA is actively engaged with the business, civil rights and disability 

communities in developing resources for broad distribution and training to help 

stakeholders know how to work within their State to influence title I plan development. There is an effort to assure that issues such as those facing rural communities will be given attention so that parents and advocates in those communities 

will know how to engage and connect in their State planning process. 

SENATOR SANDERS

Question 1. We must do everything that we can to ensure that every child—regardless of her or his circumstances—has access to a high-quality education. We 

know that a high-quality education is a resource-intensive endeavor. We also know 

that disadvantaged children need additional resources to combat the ravages of poverty and discrimination. The Elementary and Secondary Education Act (ESEA) of 

1965 marked the beginning of a strong role for the Federal Government in combating inequities on both fronts. Clearly, there is much more work that must be 

done. 

A key component of the Federal Government’s role in education is ensuring that 

our schools have the additional resources needed to ensure that every child can 

reach her or his full potential. Today, over half of all public school children come 

from low-income families. Examining the most recent data available, there is clearly 

an increased need, as well as a lack of sufficient Federal resources to meet this need 

(figure 1). Between school year 2004–5 and school year 2013–14 we have seen a 32 

percent increase in children eligible for free or reduced lunch—an increase of over 

6 million children. 

Yet the main source of Federal funding for public schools serving low-income children—Title I-A of ESEA—has not only not failed to keep pace with the reality that 

our public schools are serving more low-income children than a decade ago, funding 

has not even kept up with inflation. Real title I-A funding is down 6 percent since 

fiscal year 2005 while the percentage of low-income kids in public schools has increased by 32 percent over the same time period. If at a bare minimum title-I-A 

funding had kept pace with inflation since fiscal year 2005, appropriations for titleI-A would have been $15.2 billion in fiscal year 2014 instead of $14.4 billion—a difference of nearly a billion dollars. Furthermore, if title I-A funding had kept pace 

with both inflation and the growing number of children coming from low-income 

families since fiscal year 2005, title-I-A funding would have hit $20.2 billion in fiscal 

year 2014, a gap of over $5.5 billion when considering reality versus actual funding 

(figure 2). 

Ms. Marshall, can you please speak to the importance of Federal education funding meeting the increased needs of our public schools? Beyond a dramatic increase 

to title-I-A funding, what other funding streams within ESEA and in other Federal 

programs require an increase to meet the realities of today’s public schools? 

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Answer 1. Schools and districts continue to struggle to meet the educational needs 

of all students and especially those of students with disabilities. COPAA has long 

advocated for increases to all Titles of ESEA and in addition to title I-A, increased 

funding for titles II-IV are imperative so that ESEA—now the Every Student Succeeds Act (ESSA) can be implemented effectively by providing the professional development, English Learner funds and important grants to States. In addition, for 

over 40 years, Congress has failed to meet its obligation to States as promised in 

1975 when P.L. 94–142 was passed which is now the Individuals with Disabilities 

Education Act (IDEA). To date, States don’t receive even half of the funds promised 

under Part B of the IDEA—with just 16 percent of the per pupil expenditure currently covered when 40 percent of such funds were part of the original agreement. 

COPAA urges the Senate to fully fund the IDEA. 

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Figure Two: 

Question 2. It is abundantly clear that low-income and disadvantaged children 

need additional support in order to succeed. That is why, title-I-A education funding 

is supposed to be in addition to and not in-lieu of local and State education funding. 

Since 1970, Congress has included supplement, not supplant (SNS) provisions in 

ESEA to codify this fundamental principle. 

The Negotiated Rulemaking Committee for Title I, Part A of ESEA as amended 

by the Every Student Succeeds Act was unable to meet consensus on SNS regulations. It is now up to the U.S. Department of Education to draft regulations on SNS 

that ensure that Federal funding is on top of State and local funding and not used 

as backfill to compensate for unfair State and local spending practices on education. 

Ms. Marshall, can you speak to the importance of the Department of Education 

crafting strong regulations for SNS? Ms. Marshall, what would a strong SNS regulation mean for the 6.4 million children with disabilities in our public schools? Ms. 

Murguı ́a, what would a strong SNS regulation mean for children of color including 

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Latino girls and boys who represent a majority of the children in our public schools, 

and what would it mean for English Language Learners? Finally, what progress can 

be made for all students if title-I-A funding is truly supplemental? 

Answer 2. COPAA is in agreement with the Leadership Conference on Human 

and Civil Rights on this. We have signed a letter that says to the Congress and to 

the U.S. Department of Education: 

A strong SNS regulation would mean that the U.S. Department of Education 

would measure compliance by examining actual school level expenditures, which 

builds upon the ESSA’s new reporting requirements. In order for Federal funds 

to be considered supplemental, each title I school must receive from State and 

local sources at least as much per-pupil funding as the average of non-title I 

schools in the district. Unless title I schools are receiving an equitable base of 

funds from non-Federal sources to ensure that the Federal funds are truly supplemental, then title I funds are being used to supplant by filling in gaps of 

funds the schools should be receiving. This is a violation of the law. A comparison of spending between each title I and the average of non-title I schools allows for considerable variability among both title I and non-title I schools in 

State and local expenditures, therefore not running afoul of the law’s prohibition against requiring the equalization of spending. 

Compliance with an ‘‘actual expenditures test’’ also recognizes the reality that 

equitable means fair, not equal—underscoring the law’s aim to ensure that students impacted by concentrated poverty have the unique supports and services 

that will address their needs. This also preserves flexibility for districts to use 

weighted student funding, formulas for staffing and materials, or any other 

methodology for allocating State and local funds to schools. The integrity of title 

I funds must be preserved to fully realize the aim of ensuring equity and equal 

access to quality educational opportunities. 

COPAA believes the progress we could expect to see from such regulation would 

result in equities that research and effective/best practice show result in healthy, 

safe and outcomes-driven school environments where school leaders, teachers, support personnel and students have a stronger shot at having what they need. Access 

to AP classes, up-to-date technology, expanded learning time, experienced educators, 

basic clean and safe facilities, at a minimum will contribute to assuring student 

achievement will rise and learning gaps will close. 

Question 3. I am very concerned that our schools and communities are dealing 

with a surge of students exposed to multiple adverse experiences and are not 

equipped with the resources, training, and support to accommodate this crisis. 

According to the national Adverse Childhood Experience Study, over half of those 

surveyed reported at least one form of childhood adversity. Shockingly, two in three 

children in our Nation—46 million children—are exposed to violence, crime, abuse, 

or psychological trauma a year. In Vermont, over 20 percent of children have had 

two or more adverse experiences, which include traumatic events like living in 

chronic poverty, living with someone with a substance abuse problem, experiencing 

community or family violence, and more. Even more alarming is the fact that our 

youngest citizens and their parents are at the forefront of this crisis. Since 2014, 

the Department for Children and Families in Vermont has seen a 33 percent increase of children in State custody with children under the age of six making up 

more than two-thirds of this increase. Further, similar to nationwide trends, over 

40 percent of children come from low-income families in my home State, with young 

children the most likely of any age group to be poor. 

Ms. Marshall, what can the Department of Education do to help schools, educators, and communities be prepared to deliver trauma-informed approaches to education when implementing the Every Student Succeeds Act (ESSA)? Additionally, 

what can the Department of Education do to ensure that educators teaching in environments where a large percentage of students have had adverse childhood experiences (ACEs) have the support and the self-care they need to succeed? Furthermore, 

what policies should Congress enact to help communities combat these challenges 

and attack the root causes—like poverty, exposure to violence and substance 

abuse—driving these adverse experiences? How would increased Federal investments in child care, preschool, maternal and child home visiting, before-school, 

afterschool, and summer programming, nutritional supports, wrap-around services 

for schools and more help to fight this crisis? Likewise, how would raising the Federal minimum wage, addressing under-employment and unemployment, implementing paid family leave, and enacting universal health care coverage help attack 

the root causes of these adverse experiences? 

As national education leaders, what plans are your organizations making to work 

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1 Haimowitz, S., Urff, J., & Huckshorn, K.A. (2006, September). Restraint and seclusion: A risk 

management guide. Retrieved from http://www.power2u.org/downloads/R-S%20Risk%20 

Manag%20Guide%20Oct%2006.pdf. 2 American Nurses Association. (2012, March 2). Reduction of patient restraint and seclusion 

in health care settings. Retrieved from http://www.nursingworld.org/MainMenuCategories/ 

EthicsStandards/Ethics-Position-Statements/Reduction-of-Patient-Restraint-and-Seclusion-inHealth-Care-Settings.pdf. 3 Alliance to Prevent Restraint, Aversive Interventions, and Seclusion. (2008). In the name of 

treatment: A parent’s guide to protecting your child from the use of restraint, aversive interventions, and seclusion (2d ed.). Retrieved from http://stophurtingkids.com/wp-content/uploads/ 

2013/05/In-the-Name-of-TreatmentlSecond-Edition.pdf. 4Westling et al. (2010). Use of Restraints, Seclusion and Aversives on Students with Disabilities, Research & Practice for Persons with Severe Disabilities. Vol. 35, No. 3Y4, 116–127. 5 Alameda County Behavioral Healthcare Services. (2013). Trauma informed care vs. trauma 

specific treatment. Retrieved from http://alamedacountytraumainformedcare.org/trauma-informed-care/trauma-informed-care-vs-trauma-specific-treatment-2/. 6 Cole, Susan. (2009). http://traumasensitiveschools.org/tlpi-publications/. 

proached to education? How will you make States and school districts aware of opportunities under ESSA to create trauma-informed environments? 

Answer 3. COPAA has actively engaged with the disability and civil rights community to promote the use of best practices to provide trauma-informed care—in 

both our policy and advocacy work. We know that traumatizing experiences, which 

include the use of aversives such as seclusion and restraint, can affect children’s 

brain development and behavior. In fact, children with intellectual and/or developmental disabilities (IDDs) are at greater risk than the general population for experiencing abuse, neglect, and the associated trauma. Behaviors resulting from trauma 

can create challenging and sometimes dangerous situations for the child, providers, 

and educators. 

Historically, seclusion and restraint have been used to control the behavior challenges of children with mental health conditions in psychiatric hospitals, treatment 

facilities, and schools.1 For decades, it was frequently thought that, without effective 

seclusion and restraint practices, children, youth, and adults were in danger of injuring themselves and others.2 Children continue to be subjected to seclusion and 

restraint interventions at high rates and are at risk of injury from these practices.3

The controversial practice of secluding or restraining children when they are agitated continues to be used in public schools. Yet, research confirms that seclusion 

and restraint practices re-traumatize children, increase rather than decrease challenging behaviors, and do not calm the child. Even if no physical injury is sustained, 

children, especially those with an IDD, are at risk of traumatization and re-traumatization during and after use of seclusion and restraint. A child does not learn 

meaningful lessons on alternative ways to communicate or interact when a teacher 

or treatment staff member responds to the child’s challenging behavior with seclusion and restraint. For decades, policymakers, clinicians, teachers, school principals, 

and direct care providers in child-serving systems have been challenged with not 

just reducing but eliminating seclusion and restraint as control and safety interventions. Teachers must know how to replace these practices with effective, non-traumatizing practices. 

Trends in public policy have also reflected a discontent in the use of seclusion, 

restraint, and aversive procedures. A consensus has emerged within children’s mental health settings, hospitals, nursing homes, and psychiatric facilities over the last 

two decades that restraint and seclusion should not be included in treatment plans, 

and that restraint should be used only for emergencies and targeted for elimination. 

Instead, practices should be based on ‘‘trauma informed care’’ requiring an awareness of the psychological effects of aversive actions on children. Elements of trauma 

informed care mirror the standards of positive behavior support to address students 

who exhibit extremely challenging behaviors.4

Eliminating seclusion and restraint is a trauma-informed practice. Being trauma 

informed requires a paradigm shift for educators and other child-serving providers 

in addressing behavioral challenges. A trauma-informed approach requires providers 

to change the question from ‘‘What is wrong with you?’’ to ‘‘What happened to 

you?’’ 5 Trauma-informed practices help children, teachers, and providers feel safe, 

protected, and valued. Trauma sensitive schools are schools where teachers and administrators comprehend the prevalence of childhood trauma, a place where students have the opportunity to build trusting relationships with nurturing adults, a 

place where instructional strategies are based on an understanding of the 

neurobiology of trauma, and a place where behaviors present a learning opportunity.6

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7Losen et al. (2015). Are We Closing the School Discipline Gap? UCLA Center for Civil Rights 

Remedies. https://www.civilrightsproject.ucla.edu/resources/projects/center-for-civil-rightsremedies/school-to-prison-folder/federal-reports/are-we-closing-the-school-discipline-gap/AreWe 

ClosingTheSchoolDisciplineGaplFINAL221.pdf. 

partment of Education Civil Rights Data Collection. While students receiving special 

education services represent just 12 percent of students nationally, they represent 

25 percent of students receiving multiple out of school suspensions. We know from 

research that children who are suspended more than once by ninth grade are more 

likely to drop out of school or be retained in a grade. Schools with exclusionary practices have poor attendance rates, high drop-out rates, low graduation rates, and 

higher incidences of bullying. In addition, they have been shown to have lower 

achievement scores on State standardized tests. Children who are suspended more 

than once in high school are much more likely to be involved in the court system 

in early adulthood, thus creating a phenomenon known as the school to prison pipeline.7

COPAA is committed to working with stakeholders across the country to reinforce 

ESSA’s new title I requirement [for which we helped advocate] that States show districts how they support their efforts to ‘‘reduce bullying, harassment, use of disciplinary practices and use of aversives.’’ Regulations must make clear that ESSA provides the professional development resources for district and school staff to receive 

training, strategies, and guidance on interventions which create inclusive, trauma 

informed and culturally responsive environments for students and educators which 

take into account input from the parents and communities they serve. Regulations 

must also clarify that States must articulate in title I plans how they will provide 

resources and guidance, professional development, and technical assistance to reduce or remove the use of techniques, strategies, interventions, and policies that 

compromise the health and safety of students, such as seclusion and restraint. 

Question 4. Yesterday, on the 62d anniversary of the Brown v. Board decision, the 

Government Accountability Office (GAO) released a report confirming what educators, families, students, and community stakeholders have been telling us 

anecdotally for some time—our public schools are becoming more segregated by both 

race and family income. 

The number of schools that are doubly segregated by both race and income— 

where 75 percent or more of the kids at these schools come from low-income families 

and are black or Hispanic—has increased from 9 percent of all public schools in 

school year 2000–2001 to 16 percent of all public schools in school year 2013–14. 

Additionally, today, nearly one in five public students attend these doubly segregated public schools—more than double the amount of kids who attended these 

schools almost 15 years ago. Furthermore, Hispanic children are often triply segregated by race, family income, and native language. Shamefully, nearly twothirds—61 percent—of all high-poverty schools are schools where over 75 percent or 

more of the children are black and Hispanic. 

Segregation and isolation by race and income in our public school is an alarming 

phenomenon on its own. Even more troubling is that the fact that these doubly segregated schools are not offering students a comparable education to non-segregated 

schools and schools at the other end of the spectrum that are wealthy and predominately white. The GAO report uncovers that these doubly segregated schools have 

fewer resources, do not offer the full range of core courses like math and science, 

offer less advanced coursework, and have disproportionately more disciplinary actions than other public schools. 

I’d like to ask this entire panel—what can the Federal Government do to reverse 

this troubling trend of segregation by race and income, and ensure an equal and 

adequate education for all children? Please feel free to expound on reforms within 

education and greater system wide changes including housing, transportation, jobs, 

and more. Additionally, through the implementation of the Every Student Succeeds 

Act (ESSA) what can the Department of Education do to make States and school 

districts aware of opportunities within this new law to increase racial and socioeconomic diversity in our schools? 

Answer 4. The ESEA is a civil rights law and implementation of ESSA should 

preserve that legacy. The law’s purpose is in fact: ‘‘To provide all children significant opportunity to receive a fair, equitable, and high-quality education, and to close 

educational achievement gaps.’’ COPAA and the entire civil rights community has 

long recognized equal educational opportunity as central to our struggle to achieve 

equality for all Americans. Without a robust and thoughtful implementation of 

ESSA over the next decade, we will have missed a crucial opportunity and the students we collectively represent will continue to be denied the full protections they 

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8Zimring, et al. (2013). The IDEA/EHA in Congress and the Supreme Court 1970–2012 What 

Lessons Can We Learn and What Can We Do Planning Litigation Strategies for the 21st Century. file:///C:/Users/lkalo/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ 

77YHW6NP/2013Pres.pdf. 

need and are entitled to under Federal law. For today’s students—whether a student with a disability, from a low-income family, a student who speaks English as 

a second language, Native American or a student of color—both the expectations 

and the stakes couldn’t be higher. Their future is hugely dependent on the quality 

of the education they receive—there is no arguing this point. 

The roots of ESSA are born out of Brown v. Board as it extends the Fourteenth 

Amendment to effectively impact the exclusion and limitations of instruction based 

on impermissible classifications. Further, it serves as a foundation for the disability 

rights movement in the 1970s, once de jure segregation based on race was resolved 

as a legal matter by legislation and court orders in 1970–71. COPAA has written 

extensively on the historical preeminence of Brown and other landmark cases to 

both preserve the legacy of the path carved toward equal access and the civil rights 

of children and their families,8 but to also document how each case can be used to 

support and reinforce what we know is true and that is education, regardless of 

race, income, disability, gender, religion or other is a civil right. 

Question 5. Relatedly, Ms. Eskelsen Garcı ́a, Ms. Marshall, Ms. Murguı ́a, and Ms. 

Weingarten, ESSA provides States and local school districts more autonomy to make 

key educational decisions. What are your organizations’ plans to make States and 

local school districts aware of opportunities to increase diversity under this new 

law? Additionally, what other tools or resources do States and communities need to 

tackle the difficult task of diversifying our schools and providing equal and adequate 

education for all students? 

Answer 5. COPAA is at the forefront of advocacy for students with disabilities and 

their families. COPAA works to increase the quality and quantity of representation 

available to students and their families and to ensure the rights of children with 

disabilities and their parents/guardians are protected. As an organization committed 

to civil rights, COPAA recognizes the relationship between discrimination and bias 

against people with disabilities and other forms or systems of oppression, domination, or discrimination based on race, national origin, ethnic and/or religious identity, sex/gender/gender identity/sexual orientation, and socioeconomic status. 

COPAA is committed to considering fully, in all activities and programs, the 

intersectionality of race, national origin, ethnic, cultural and/or religious identity, 

sexual/gender identity/ sexual orientation, socioeconomic status, in our efforts to 

protect and enforce the legal and civil rights of students with disabilities and their 

families. 

It is critical that specific title I regulations assure States implement 

plans that fully support all students. 

COPAA takes seriously the impact title I implementation has on the outcomes of 

students with disabilities and other disadvantaged students. As stated, we understand States will have more discretion in carrying out ESSA, however, COPAA, 

along with our partners in the business, civil rights and disability community have 

and will continue to work to prevent efforts to water down expectations, avoid full 

transparency, diminish the importance of honest measures of the academic progress 

of all children in school accountability systems, or delay interventions when any 

group of students is struggling academically. 

Unfortunately, past history shows that States often set expectations for schools 

far too low which leads directly to low student achievement impacting our most disadvantaged students. States have set graduation goals as low as 60 percent, allowed 

as little as .1 percent of annual growth to count as progress against State goals and 

set reading and math proficiency standards so low that high school graduates, 

deemed eligible for the State’s regular diploma required remediation upon entering 

college. Recently, we’ve also seen how easily States can allow the focus of accountability to shift away from student learning. This is unacceptable. 

We advocate for ED to exercise its full legal authority to promulgate regulations 

that assure State title I plans must, in summary, provide: 

a. rigorous and consistent standards inclusive of all student groups; 

b. school differentiation or ratings that primarily reflect how all students are 

doing with prohibition on the use of aggregated subgroup data (e.g. super subgroups); 

c. strict State limit of 1 percent of all students, by subject, in the use of alternate 

assessments on alternate academic achievement standards for students with the 

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most significant cognitive disabilities, with flexibility only at the district level and 

the application of strict criteria for any State waiver; 

d. valid and reliable assessment of English language proficiency and the inclusion 

of English learners in content assessments, with appropriate accommodations; 

e. clear requirements for identification, intervention and exit criteria for schools 

in each of the three categories identified in the law—the bottom 5 percent, schools 

with grad rates below 67 percent and schools with consistently low performing 

groups of students and assure State and district-led evidence-based intervention 

systems focused on raising achievement are initiated whenever any school is underperforming for all students or for any student group so that students don’t languish 

year after year without help; 

f. definitions and/or parameters set for new statutory terms—specifically for new 

terms: ‘‘meaningful differentiation,’’ ‘‘substantial weight’’ and ‘‘much greater weight’’; 

g. specifications that the 95 percent participation requirement is included in the 

accountability system so the performance of students matters, provide Federal guidance on options for doing so and define consequences for failure to meet the requirement; 

h. recommendations for an acceptable range for statistically significant N sizes to 

measure subgroup performance so that as many students are included in school, district and State accountability metrics as possible; 

i. assurances for support to districts to reduce bullying, harassment, use of disciplinary practices (e.g. suspension and expulsion) and use of aversives (e.g. seclusion and restraint), all of which disproportionately impact students with disabilities 

and students of color; 

j. universal access in all data reporting; cross-tabulate data and expand on the 

availability of data disaggregated by Asian American and Pacific Islander categories; and, 

k. clarity that supplement, not supplant provisions presume and ensure an equal 

base of actual per-pupil funding before any Federal funds are considered supplemental. 

The test of regulations, guidance, technical assistance and other implementation 

activities must be whether or not they advance educational equity and serve the interests of all students. Low-income students, students of color, students with disabilities, English learners, and Native students deserve no less than robust and thorough regulation by this Department to close opportunity and achievement gaps. 

Throughout regulations, the Department should reinforce the non-discrimination responsibility of schools, districts and States under Title VI of the Civil Rights Act 

of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, the Individuals with Disabilities Education Act and Title II of 

the Americans with Disabilities Act of 1990. 

As noted, the ESEA is our Nation’s most important civil rights law for promoting 

educational achievement and protecting the rights and interests of students disadvantaged by discrimination, poverty, disability, race, language and other conditions that may limit their educational opportunity. With its reauthorization, the responsibility continues to rest with the U.S. Department of Education to provide comprehensive, detailed and clarifying rules to ensure that States and school districts 

implement the new law in a way that not only honors the purpose of the law but 

also holds States accountable for access over $15 Billion in Federal funds. Despite 

claims to the contrary, Federal funds are still conditional thorough compliance with 

the law. ESSA is a new law that includes new flexibility as well as requirements— 

the bright-line provisions the civil rights community helped support—and the Secretary has the authority to define, monitor, and enforce the law. 

SENATOR WHITEHOUSE

Question 1. ESSA is a relief to many, especially in Rhode Island. Everyone who 

I’ve talked to is very excited about this bipartisan bill and the opportunities it presents. 

I am concerned about the supplement, not supplant issue. Many of you have said 

that ED’s proposed regulations on ‘‘supplement, not supplant’’ are an overreach. But 

I am also aware of many inequities that exist in local and State funding for education. 

Absolutely no one wants to see Federal money come in and provide an excuse to 

send other funding into wealthier, well-connected school districts and have title I 

fill the gap. 

I’ve heard from many about the problems with ED’s draft proposal. My question 

is not what are the problems, but what should ED do instead? That is, what would 

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you affirmatively propose to ensure that title I funds are supplemental and not supplanting State and local funds? 

Answer 1. Regulations are the first step. And, as you acknowledge, unless title 

I schools are receiving an equitable base of funds from non-Federal sources to ensure that the Federal funds are truly supplemental, then title I funds are being 

used to supplant by filling in gaps of funds the schools should be receiving. This 

is a violation of the law. 

COPAA supports the Leadership Conference on Civil and Human Rights position 

and has advocated that: 

‘‘. . . a comparison of spending between each title I and the average of nontitle I schools allows for considerable variability among both title I and non-title 

I schools in State and local expenditures, therefore not running afoul of the 

law’s prohibition against requiring the equalization of spending.’’ 

Compliance with an ‘‘actual expenditures test’’ also recognizes the reality that 

equitable means fair, not equal—underscoring the law’s aim to ensure that students impacted by concentrated poverty have the unique supports and services 

that will address their needs. This also preserves flexibility for districts to use 

weighted student funding, formulas for staffing and materials, or any other 

methodology for allocating State and local funds to schools. The integrity of title 

I funds must be preserved to fully realize the aim of ensuring equity and equal 

access to quality educational opportunities. 

Question 2. Under NCLB and the Obama administration’s waivers, I consistently 

heard from Rhode Island teachers and principals that they could achieve better results if not for the layers of bureaucracy stifling innovation at multiple levels. 

I am very pleased that ESSA is a step away from that one-size-fits-all, overly prescriptive posture. You have all heard me talk about the provisions I fought for in 

ESSA—requiring States to describe how they will encourage opportunities for increased autonomy and flexibility. 

I am concerned because I do not want to see ED use the regulatory process to 

grab back the control that ESSA intended to push down to the State and local level. 

What could ED do on the supplement, not supplant issue that would support greater 

innovation at the local level? 

Answer 2. Regulations should require an ‘‘actual expenditures test’’ because it also 

recognizes the reality that equitable means fair, not equal—underscoring the law’s 

aim to ensure that students impacted by concentrated poverty have the unique supports and services that will address their needs. This also preserves flexibility for 

districts to use weighted student funding, formulas for staffing and materials, or 

any other methodology for allocating State and local funds to schools. The integrity 

of title I funds must be preserved to fully realize the aim of ensuring equity and 

equal access to quality educational opportunities. 

RESPONSE BY JANET MURGUI ́A, J.D., TO QUESTIONS OF SENATOR COLLINS, SENATOR

SANDERS, AND SENATOR WHITEHOUSE

SENATOR COLLINS

Question. During Secretary King’s confirmation hearing, I asked for his assurance 

that the Department would engage rural communities in its ESSA implementation 

processes. For example, I was alarmed that the Department held its initial public 

listening sessions in DC and Los Angeles. Rural districts also seem to have been 

underrepresented on the committee of negotiators selected for the negotiated rulemaking. 

It’s vital that rural communities and rural educators have a seat at the table. 

What should the Department be doing to ensure rural communities are represented 

in its rulemaking? 

In your States, what are you doing, as stakeholders, to ensure rural voices are 

heard in your State and local planning efforts? 

Answer. As I stated in my testimony, ESEA was enacted in 1965 to ensure all 

children, regardless of where they grow up, receive a high-quality education. NCLR 

relies on our diverse Affiliate network—serving urban and rural communities—to 

create a multi-stakeholder strategy to ensure the implementation of this law addresses the broad and diverse concerns of the students in our schools, including 

those of native students. We also recognize that this task is not always easy, particularly in remote and hard-to-reach areas. We have seen as Latino communities 

have expanded in the Southeastern United States, that service providers must be 

on hand to help these communities advocate at all levels of government. 

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1 Natasha Ushomirsky and David Williams, ‘‘Funding Gaps 2015: Too Many States Still Spend 

Less on Educating Students Who Need the Most,’’ The Education Trust, 2015, http:// 

edtrust.org/wpcontent/uploads/2014/09/FundingGaps2015lTheEducationTrust1.pdf. 2 Ibid. 

3 NCLR calculation using U.S. Department of Education, ‘‘Digest of Education Statistics 2014,’’ 

Table 204.20, https://nces.ed.gov/programs/digest/d15/tables/dt15l204.20.asp?current=yes 

(accessed June 9, 2016) and U.S. Department of Education, ‘‘Fiscal Year 2015 Budget Summary 

and Background Information,’’ www2.ed.gov/about/overview/budget/budget15/summary/ 

15summary.pdf. 4 Ibid. 

SENATOR SANDERS

Question 1. We must do everything that we can to ensure that every child—regardless of her or his circumstances—has access to a high-quality education. We 

know that a high-quality education is a resource-intensive endeavor. We also know 

that disadvantaged children need additional resources to combat the ravages of poverty and discrimination. The Elementary and Secondary Education Act (ESEA) of 

1965 marked the beginning of a strong role for the Federal Government in combating inequities on both fronts. Clearly, there is much more work that must be 

done. 

A key component of the Federal Government’s role in education is ensuring that 

our schools have the additional resources needed to ensure that every child can 

reach her or his full potential. Today, over half of all public school children come 

from low-income families. Examining the most recent data available, there is clearly 

an increased need, as well as a lack of sufficient Federal resources to meet this need 

(figure 1). Between school year 2004–5 and school year 2013–14 we have seen a 32 

percent increase in children eligible for free or reduced lunch—an increase of over 

6 million children. 

Yet the main source of Federal funding for public schools serving low-income children—Title I-A of ESEA—has not only not failed to keep pace with the reality that 

our public schools are serving more low-income children than a decade ago, funding 

has not even kept up with inflation. Real title I-A funding is down 6 percent since 

fiscal year 2005 while the percentage of low-income kids in public schools has increased by 32 percent over the same time period. If at a bare minimum title-I-A 

funding had kept pace with inflation since fiscal year 2005, appropriations for titleI-A would have been $15.2 billion in fiscal year 2014 instead of $14.4 billion—a difference of nearly a billion dollars. Furthermore, if title I-A funding had kept pace 

with both inflation and the growing number of children coming from low-income 

families since fiscal year 2005, title-I-A funding would have hit $20.2 billion in fiscal 

year 2014, a gap of over $5.5 billion when considering reality versus actual funding 

(figure 2). 

Ms. Murguı ́a, can you please speak to the importance of Federal education funding meeting the increased needs of our public schools? Beyond a dramatic increase 

to title-I-A funding, what other funding streams within ESEA and in other Federal 

programs require an increase to meet the realities of today’s public schools? 

Answer 1. At its core, ESEA was enacted in 1965 as a civil rights law to correct 

resource inequities in low-income communities and communities of color. ESEA’s 

original intent recognized that a high-quality education was fundamentally linked 

to adequate resources. Yet, 50 years later, resource inequities and gaps in student 

achievement remain. As a result, the Every Student Succeeds Act (ESSA) must increase funding and other support for low-income children and students of color to 

ensure the law’s promise for all students. In particular, lawmakers should increase 

funding for title I-A, title III, and title IV. 

In addition to increased appropriations, the Department of Education must move 

forward with a robust rulemaking on resource-related regulations on supplementing 

funds. As highlighted in my written testimony, a recent analysis by the Education 

Trust showed that across the Nation, the highest-poverty districts receive nearly 

$1,200 (10 percent) less in State and local funds per student than the lowest-poverty 

districts.1 The differences are even larger—nearly $2,000 (15 percent)—when comparing districts with the highest and lowest populations of students of color.2

It is also clear that resources are closely correlated with educational attainment. 

Title III funding for English learners averaged roughly $162 3 in per-pupil expenditures in 2014 and $164 4 in 2015. The recent 2013–2014 Civil Rights Data Collection 

showed that while English learners are 11 percent of students in schools offering 

gifted and talented education programs (GATE), only 3 percent of GATE students 

are English learners. These students are more likely to be retained in high school, 

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5 U.S. Department of Education Office of Civil Rights. ‘‘2013–2014 Civil Right Data Collection,’’ U.S. Department of Education, 2016 (accessed June 8, 2016). 

along with students of color and students with disabilities.5 Unequal and inadequate educational resources for students of color and English learners undermine 

the goals of our foundational civil rights and K–12 law. It is imperative that Federal 

education funding equitably serve students regardless of race, ZIP code, income, or 

national origin. 

Question 2. It is abundantly clear that low-income and disadvantaged children 

need additional support in order to succeed. That is why, title-I-A education funding 

is supposed to be in addition to and not in-lieu of local and State education funding. 

Since 1970, Congress has included supplement, not supplant (SNS) provisions in 

ESEA to codify this fundamental principle. 

As you know, the Negotiated Rulemaking Committee for Title I, Part A of ESEA 

as amended by the Every Student Succeeds Act was unable to meet consensus on 

SNS regulations. It is now up to the U.S. Department of Education to draft regulations on SNS that ensure that Federal funding is on top of State and local funding 

and not used as backfill to compensate for unfair State and local spending practices 

on education. 

Ms. Murguı ́a, can you speak to the importance of the Department of Education 

crafting strong regulations for SNS? Ms. Murguı ́a, what would a strong SNS regulation mean for children of color including Latino girls and boys who represent a majority of the children in our public schools, and what would it mean for English Language Learners? Finally, what progress can be made for all students if title-I-A 

funding is truly supplemental? 

Answer 2. As I highlighted in my testimony, our Federal education system works 

best when policies are designed to be responsive to the communities they serve. Our 

school funding system is simply not adequate to support low-income students and 

students of color; they are not afforded the same resources as their wealthier counterparts—a paradox given ESEA’s original intent. The SNS provision is designed to 

ensure that Federal funds are supplemental to local and State funding rather than 

in lieu of this funding. My testimony points to research from the Education Trust 

that shows low-income students are being short-changed and this has real academic 

consequences. A strong SNS regulation will promote greater resource equity by requiring that title I schools receive just as much funding for students as non-title 

I schools. If title I funding were to be truly supplemental, students in high-poverty 

schools would receive the additional support they need to succeed in a competitive 

21st-century workplace. 

Question 3. I am very concerned that our schools and communities are dealing 

with a surge of students exposed to multiple adverse experiences and are not 

equipped with the resources, training, and support to accommodate this crisis. 

According to the national Adverse Childhood Experience Study, over half of those 

surveyed reported at least one form of childhood adversity. Shockingly, two in three 

children in our Nation—46 million children—are exposed to violence, crime, abuse, 

or psychological trauma a year. In Vermont, over 20 percent of children have had 

two or more adverse experiences, which include traumatic events like living in 

chronic poverty, living with someone with a substance abuse problem, experiencing 

community or family violence, and more. Even more alarming is the fact that our 

youngest citizens and their parents are at the forefront of this crisis. Since 2014, 

the Department for Children and Families in Vermont has seen a 33 percent increase of children in State custody with children under the age of six making up 

more than two-thirds of this increase. Further, similar to nationwide trends, over 

40 percent of children come from low-income families in my home State, with young 

children the most likely of any age group to be poor. 

Ms. Murguı ́a, what can the Department of Education do to help schools, educators, and communities be prepared to deliver trauma-informed approaches to education when implementing the Every Student Succeeds Act (ESSA)? Additionally, 

what can the Department of Education do to ensure that educators teaching in environments where a large percentage of students have had adverse childhood experiences (ACEs) have the support and the self-care they need to succeed? Furthermore, 

what policies should Congress enact to help communities combat these challenges 

and attack the root causes—like poverty, exposure to violence and substance 

abuse—driving these adverse experiences? How would increased Federal investments in child care, preschool, maternal and child home visiting, before-school, 

afterschool, and summer programming, nutritional supports, wrap-around services 

for schools and more help to fight this crisis? Likewise, how would raising the FedHELPN-003 with DISTILLER

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6 Vanessa Sacks, David Murphey, and Kristin Moore. ‘‘Adverse Childhood Experiences: National and State-Level Prevalence,’’ July 2014, http://www.childtrends.org/wp-content/ 

uploads/2014/07/Brief-adverse-childhood-experienceslFINAL.pdf. 

eral minimum wage, addressing under-employment and unemployment, implementing paid family leave, and enacting universal health care coverage help attack 

the root causes of these adverse experiences? 

As national education leaders, what plans are your organizations making to work 

with States to ensure that their schools and practitioners have trauma-informed approaches to education? How will you make States and school districts aware of opportunities under ESSA to create trauma-informed environments? 

Answer 3. As the Department of Education moves forward with the implementation of ESSA, it must consider ACEs through trauma-informed practices. NCLR has 

over 250 Affiliates across the country on the forefront of providing services that assure safe, stable, nurturing relationships and environments for children with adverse childhood experiences. This is all too common in immigrant communities: family separation caused by immigration enforcement and experiences with violence in 

Central America leave long-term impressions on young people. Research supports 

what our Affiliates see frequently; a recent study by Child Trends found ACEs have 

negative lasting effects on health and well-being for students. The same study found 

that economic hardship is the most common ACE nationally, a troubling finding for 

low-income students nationwide.6 In response, States and districts should learn 

from community-based organizations and examine ways to incorporate wraparound 

services to support low-income and other vulnerable students. In addition, Federal 

policymakers should examine solutions to the root causes of ACEs, such as addressing poverty by raising the minimum wage, enhancing the social safety net, creating 

opportunities for economic mobility, and fixing our immigration system. 

Question 4. Yesterday, on the 62d anniversary of the Brown v. Board decision, the 

Government Accountability Office (GAO) released a report confirming what educators, families, students, and community stakeholders have been telling us 

anecdotally for some time—our public schools are becoming more segregated by both 

race and family income. 

The number of schools that are doubly segregated by both race and income— 

where 75 percent or more of the kids at these schools come from low-income families 

and are black or Hispanic—has increased from 9 percent of all public schools in 

school year 2000–2001 to 16 percent of all public schools in school year 2013–14. 

Additionally, today, nearly one in five public students attend these doubly segregated public schools—more than double the amount of kids who attended these 

schools almost 15 years ago. Furthermore, Hispanic children are often triply segregated by race, family income, and native language. Shamefully, nearly twothirds—61 percent—of all high-poverty schools are schools where over 75 percent or 

more of the children are black and Hispanic. 

Segregation and isolation by race and income in our public school is an alarming 

phenomenon on its own. Even more troubling is that the fact that these doubly segregated schools are not offering students a comparable education to non-segregated 

schools and schools at the other end of the spectrum that are wealthy and predominately white. The GAO report uncovers that these doubly segregated schools have 

fewer resources, do not offer the full range of core courses like math and science, 

offer less advanced coursework, and have disproportionately more disciplinary actions than other public schools. 

I’d like to ask this entire panel—what can the Federal Government do to reverse 

this troubling trend of segregation by race and income, and ensure an equal and 

adequate education for all children? Please feel free to expound on reforms within 

education and greater system wide changes including housing, transportation, jobs, 

and more. Additionally, through the implementation of the Every Student Succeeds 

Act (ESSA) what can the Department of Education do to make States and school 

districts aware of opportunities within this new law to increase racial and socioeconomic diversity in our schools? 

Relatedly, Ms. Eskelsen Garcı ́a, Ms. Marshall, Ms. Murguı ́a, and Ms. Weingarten, 

ESSA provides States and local school districts more autonomy to make key educational decisions. What are your organizations’ plans to make States and local 

school districts aware of opportunities to increase diversity under this new law? Additionally, what other tools or resources do States and communities need to tackle 

the difficult task of diversify our schools are providing equal and adequate education 

for all students? 

Answer 4. Thank you for your excellent question and remarks on the multiple levels of segregation facing low-income students and students of color in our schools 

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7 Natasha Ushomirsky and David Williams, ‘‘Funding Gaps 2015: Too Many States Still Spend 

Less on Educating Students Who Need the Most,’’ The Education Trust, 2015, http:// 

edtrust.org/wpcontent/uploads/2014/09/FundingGaps2015lTheEducationTrust1.pdf. 

today. Currently, one in every four children in schools across the country is Latino. 

The recent report by GAO you mentioned makes clear that segregation has increased over the past decade for low-income students in high-poverty schools. Addressing this issue will necessarily require a multi-stakeholder, cross-agency strategy to examine systemic inequities our students face every day. Through this type 

of collaboration, stakeholders can identify barriers to socioeconomic mobility and integration, and work to provide tools and best practices to communities to promote 

equal access to opportunities. 

Furthermore, it is critical to use the new requirements under ESSA to make sure 

community voices are involved in the implementation of the law. NCLR has over 

250 Affiliates across the country, including a network of charter schools, after-school 

services, and early education providers who are ready and eager to provide guidance 

and technical assistance to States and districts on ESSA’s implementation. Through 

partnerships with local nonprofit organizations, NCLR at the national level can 

share best practices and help communities understand their power in increasing diversity in schools and their communities. All understand that Latino success in 

schools is paramount for their communities and the Nation, and as such must strive 

to end segregation once and for all. 

SENATOR WHITEHOUSE

Question 1. ESSA is a relief to many, especially in Rhode Island. Everyone who 

I’ve talked to is very excited about this bipartisan bill and the opportunities it presents. 

I am concerned about the supplement, not supplant issue. Many of you have said 

that ED’s proposed regulations on ‘‘supplement, not supplant’’ are an overreach. But 

I am also aware of many inequities that exist in local and State funding for education. 

Absolutely no one wants to see Federal money come in and provide an excuse to 

send other funding into wealthier, well-connected school districts and have title I 

fill the gap. 

I’ve heard from many about the problems with ED’s draft proposal. My question 

is not what are the problems, but what should ED do instead? That is, what would 

you affirmatively propose to ensure that title I funds are supplemental and not supplanting State and local funds? 

Answer 1. As I stated in my testimony, ESSA grants the Department of Education 

the authority to promulgate strong regulations on fiscal equity, including the supplement, not supplant provision. The Department must use this authority. Districts 

need to demonstrate that they spend just as much in title I schools as they spend 

in non-title I schools. Based on a recent analysis by the Education Trust, we know 

that funding is not equitable and this has consequences for low-income students and 

students of color. High-poverty schools receive nearly $1,000 less in local funds than 

schools in wealthier districts. Furthermore, districts that serve students of color receive nearly $2,000 less in local funds than their less diverse counterparts.7 It is 

paramount that the Department ensures each title I school is receiving comparable 

services as a non-title I school. ESSA strikes an important balance, however, with 

its update to supplement, not supplant: allowing States and districts flexibility to 

innovate within parameters set by the Federal Government. While the States have 

been given some latitude to innovate, the Federal Government must still play a role 

in setting guardrails to make sure all students are meeting challenging academic 

goals. 

Question 2. Under NCLB and the Obama administration’s waivers, I consistently 

heard from Rhode Island teachers and principals that they could achieve better results if not for the layers of bureaucracy stifling innovation at multiple levels. 

I am very pleased that ESSA is a step away from that one-size-fits-all, overly prescriptive posture. You have all heard me talk about the provisions I fought for in 

ESSA—requiring States to describe how they will encourage opportunities for increased autonomy and flexibility. 

I am concerned because I do not want to see ED use the regulatory process to 

grab back the control that ESSA intended to push down to the State and local level. 

What could ED do on the supplement, not supplant issue that would support greater 

innovation at the local level? 

Answer 2. Education has been lauded as a pathway to the American Dream, particularly for low-income students and students of color. As I noted previously, we 

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8 U.S. Department of Education Office of Civil Rights. 2013–2014 Civil Right Data Collection. 

Washington: U.S. Department of Education. 2016. Accessed June 8, 2016. 9 Ibid. 

10 Ibid. 

are not seeing these results in the data. Furthermore, the Civil Rights Data Collection’s latest report shows a pattern of unequal access to educational resources for 

students of color and English learners: 

• English learners represent 5 percent of high school students, but only 2 percent 

of Advanced Placement course enrollment.8

• Latino students represent 21 percent of high school enrollments, but only 12 

percent of students enrolled in calculus.9

• Black and Latino students are 1.5 times more likely to be taught by novice 

teachers compared to schools with lower Black and Latino enrollments.10

The supplement, not supplant regulation grants States adequate flexibility to pilot 

new and innovative programs or scale effective programs. It also provides guardrails 

to ensure low-income students, students of color, and English learners have the resources they need for academic success. Opportunities should not be defined by race, 

ethnicity, national origin, or ZIP code. We can and must do more for these students. 

[Whereupon, at 12:07 p.m., the hearing was adjourned.] 

Æ 

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