Chairman Alexander: Already “Disturbing Evidence” that Education Department Is Ignoring the New Law

“I’ll use every power of Congress to make sure the law is implemented the way we wrote it, including our ability to use the appropriations process and to overturn such regulations once they are final.”

WASHINGTON, D.C., April 12 – Chairman Lamar Alexander (R-Tenn.) today said there is already “disturbing evidence” that the Education Department is ignoring the law that Congress passed in December and told the Education Secretary he would use “every power of Congress to make sure the law is implemented the way we wrote it.”

Alexander said that in a negotiated rulemaking session, “your department proposed a rule that would do exactly what the law says it shall not do …. Not only is what you’re doing against the law, the way you’re trying to do it is against another provision in the law.”

Alexander was chairing the second of six planned oversight hearings on the law passed last year to fix No Child Left Behind. Education Secretary John King was today’s witness.

“As Secretary, you have sworn to discharge your duties faithfully, and in your confirmation hearing, you said you would ‘abide by the letter of the law.’ The importance of the hearing today is to make sure that you and your employees are doing just that,” Alexander said.

In writing the law last year, Congress debated and ultimately chose to leave unchanged a provision in the law often referred to as “comparability,” first put in there in 1970, that says school districts have to provide at least comparable services with state and local funding to Title I schools and non-Title I schools. 

The law specifically says that school districts shall not include teacher pay when they measure spending for purposes of comparability.

At today’s hearing, Alexander said: “To accomplish your goals on comparability, you are using the so-called ‘supplement not supplant’ provision that is supposed to keep local school districts from using federal Title I dollars as a replacement for state and local dollars in low-income schools.

“The department is forcing school districts to include teacher salaries in how they measure their state and local spending and require that state and local spending in Title I schools be at least equal to the average spent in non-Title I schools.” 

The chairman’s prepared remarks are below:

Mr. Secretary, I urged the president to nominate an Education Secretary because I thought it was important to have a confirmed Secretary when the department was implementing the new law fixing No Child Left Behind.

As Secretary, you have sworn to discharge your duties faithfully, and in your confirmation hearing, you said you would “abide by the letter of the law.”

The importance of the hearing today is to make sure that you and your employees are doing just that.

Last year this committee worked to pass a bill that fixed No Child Left Behind. The legislation signed by the president passed the House 359 – 64. It passed the Senate 85-12. The president called it a Christmas miracle.

The reason we were able to achieve such unusual unanimity and consensus is that people had gotten tired of the Department of Education telling them so much of what they ought to be doing.

It wasn’t just Republicans or governors who were fed up, it was school superintendents, teachers, principals, parents, state legislatures, school boards, and chief state school officers.

There hasn’t been a broader coalition that’s helped to pass a law in a long time.

The Department of Education had become a national school board, telling Washington state how to evaluate teachers, telling Kansas what their standards must be, and telling Tennessee how to fix failing schools.

The legislation we passed got rid of all that. And then—it went further—to the extraordinary length of putting in statute explicit prohibitions on the department in anticipation of another effort at regulatory overreach.

It’s a dramatic change in direction for federal education policy—the Wall Street Journal read it and said it’s the “largest devolution of federal control to the states in a quarter-century.”

But it isn’t worth the paper it’s printed on if not implemented properly.

Today, we’re holding our second hearing of at least six to oversee the implementation of this law and already we are seeing disturbing evidence of an Education Department that is ignoring the law that each of this committee’s 22 members worked so hard to craft.

It wasn’t easy to pass a law that most of us could agree to. As I said last year, there were crocodiles at every turn.

One of them was an issue people call “comparability.” They’re talking about a provision in the Elementary and Secondary Education Act, first put in there in 1970, that says school districts have to provide at least comparable services with state and local funding to Title I schools and non-Title I schools. 

The law specifically says that school districts shall not include teacher pay when they measure spending for purposes of comparability.

This committee has debated several times whether or not teacher pay should be excluded. Senator Bennet felt very strongly about his proposal to address this, and I felt strongly about mine.

Ultimately the United States Congress made two decisions about this issue, as reflected in the law we passed:

First, we chose not to change the comparability language in law, so the law still says teacher pay shall not be included:

Second, we added a requirement that school districts report publicly the amount they 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 with it, rather than the federal government mandating it be used in comparability calculations.

The law that the president signed in December didn’t do one thing to change the law that teacher salaries not be included.

But here’s what your department did on April 1 – you tried to do what Congress wouldn’t do in Comparability by regulating another separate provision in the law.

In a negotiated rulemaking session, your department proposed a rule that would do exactly what the law says it shall not do—that is, force districts to include teacher salaries in how they measure their state and local spending and require that state and local spending in Title I schools be at least equal to the average spent in non-Title I schools. 

If your proposed rule were adopted, it would:

1.       Require a complete, costly overhaul of almost all the State and local finance systems in the country
2.       Require forcing teachers to transfer to new schools
3.       Require states and 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 under this law.
4.       According to the Council of Great City Schools, it would cost $3.9 billion just for their 69 urban school systems to eliminate the differences in spending between schools .

But I’m not interested in debating today whether what you’ve proposed is a good idea or a bad one – the plain fact of the matter is that the law specifically says you cannot do it.

Not only is what you’re doing against the law, the way you’re trying to do it is against another provision in the law.

To accomplish your goals on comparability, you are using the so-called “supplement not supplant” provision that is supposed to keep local school districts from using federal Title I dollars as a replacement for state and local dollars in low-income schools.

According to a Politico story published on December 18, the former Secretary of Education said: “Candidly, our lawyers are much smarter than many of the folks who were working on this bill.”

We in Congress were smart enough to anticipate your lawyers’ attempts to rewrite the law.

So we included specific prohibitions in the “supplement not supplant” provision that would prohibit you from doing the very thing you have proposed.

Section 1118(b)(4), says “Nothing in this section shall be construed to authorize or permit the Secretary to prescribe the specific methodology a local educational agency uses to allocate State and local funds to each school receiving assistance under this part.”; and

Section 1605, says “Nothing in this title shall be construed to mandate equalized spending per pupil for a State, local educational agency, or school.”

I’ll use every power of Congress to make sure the law is implemented the way we wrote it, including our ability to use the appropriations process and to overturn such regulations once they are final.

In addition, if you try to force states to follow these regulations that ignore the laws we wrote, I’ll encourage them to request a hearing with the department. And if they lose, I’ll tell them to take you to court.

Second, I’m not the only one who can read the law. You’re going to come right up against the broad coalition of groups who helped pass this law – the governors, school superintendents, teachers, principals, parents, state legislatures, and school boards.

They’ve already sent you a letter saying that “Regulations and accompanying guidance should clarify how supplement, not supplant is separate and distinct from maintenance of effort and comparability, and steer clear of anything that would change or modify any of those provisions beyond the statutory changes already signed into law.”

Wisconsin Superintendent Tony Evers, a member of the rulemaking committee, said last week that "Congressional intent isn't necessarily being followed here.”

Noelle Ellerson of the school superintendents association, says that the prohibitions in the law, “in tandem with Congress' deliberate act of leaving comparability unchanged, makes a seemingly tight case against expanding supplement not supplant.”

You’ve testified here and in the House of Representatives that you will “abide by the letter of the law.”

It’s not abiding by the letter of the law to require local school districts to use teacher salaries and equalize spending between Title I and non-Title I schools when the law prohibits you from doing that. 

It’s not abiding by the letter of the law to use the supplement not supplant provision to achieve your goals for Comparability when Congress debated this issue and chose to not make any changes in the law.

I’m making a point of this today because we’re at the beginning of the implementation of a law that affects 3.4 million teachers and 50 million students in 100,000 public schools.

I’m determined to see that the law is implemented the way Congress wrote it.

I think it’s important at the beginning of this implementation to make sure that you and those who work at the department understand that.

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