Proposed Department of Education rule runs counter to ESSA’s restrictions

Last year, Congress passed the Every Student Succeeds Act, dubbed the “largest devolution of federal control to the states in a quarter-century,” by the Wall Street Journal. Both parties had grown tired of the Department of Education’s overreach into state policy, and ESSA contained an unprecedented number of explicit prohibitions on the Secretary of Education, “trying to guess what they might do to violate the law,” according to Sen. Lamar Alexander.

Yet shortly after ESSA passed, former Secretary of Education Arne Duncan mocked Congress, “We have every ability to implement, to regulate the law … our lawyers are much smarter than many of the folks who were working on this bill.” Sure enough, Secretary of Education John King is now claiming the prerogative, explicitly denied to him by statute, to regulate state and local education spending. If his proposed rule takes effect, it stands to cause an earthquake in American education.

{mosads}Here’s the policy backstory: Title I of ESSA earmarks $16 billion for schools that serve low-income students, and stipulates that the money be spent in addition to, not instead of, state and local dollars. Though sensible in principle, this stipulation has placed a heavy administrative burden on school districts, even as it often fails to achieve its purpose. Title I schools tend to be staffed by less-experienced, lower-paid teachers. So, when more state and local money flows to the salaries of teachers at non-Title I schools, federal funds often merely make up the difference rather than provide any extra support to schools in need.

This is a problem both parties recognized in the debate around ESSA, but couldn’t reach a consensus on how to solve. Congress compromised by requiring districts to make school-level spending transparent in the hope that public awareness would build the political capital necessary for a future legislative solution. In the meantime, Congress explicitly prohibited the education secretary from prescribing any specific methodology for equalizing local spending.

Forbidden from prescribing a specific methodology, Secretary King proposes to prescribe several. King’s supporters may cheer on this assumption of authority, and wonder how anyone of good conscience could oppose fudging the law just a tad to promote more spending on low-income students. However, problem with this new regulation isn’t merely that it’s in clear violation of the statute. The real problem is that it’s it’s likely to do more harm than good by disrupting school district operations, paralyzing state education policy, and rupturing national education politics.

There’s no doubt that money matters in schooling, but how much money is spent matters less than how well its spent. According to Chris Minnich, the executive director of the Council of Chief State School Officers, “schools would be forced to move resources around at the last minute each year to try to meet a federal mandate, rather than doing what is in the best interest of students.”

While it’s unlikely that more spending on Title I schools under annual regulatory hurdles will drive meaningful improvement, it’s quite likely that non-Title I schools will be materially harmed. At a Senate hearing earlier this spring, Georgetown University Professor Nora Gordon testified that districts could react by force-transferring teachers between schools, eliminating specialized schools and programming, or cutting back on efforts to increase teacher diversity, just for starters.

Faced with these unpleasant prospects, states are likely to mount a challenge in court. Asked to evaluate an earlier version of this regulation, the Congressional Research Service noted that most court challenges to executive interpretation are prohibitively difficult due to the Chevron doctrine of judicial deference. But, in this case, the statute is so clear that “it seems that a legal argument could be raised that [the Education Department] exceeded its statutory authority.” Whatever the courts may decide, the pending litigation and its concomitant lack of fiscal certainty would inhibit the innovative planning and decision-making that ESSA was intended to promote.

Politically, Secretary King is playing with fire. ESSA may have been an historic, bipartisan achievement, but it masked deep partisan divisions. A majority of Congressional Republicans voted for ESSA in the hope that the federal government could play a more limited, principled role in the years ahead. But 195 House Republicans also voted for an amendment to gut federal involvement entirely. If the Secretary of Education insists on using a law written to limit his authority as a pretext to extend it to a new sphere, he risks shattering the bipartisan education consensus for years to come, and doing great damage to American schooling in his effort to help.

Max Eden is a Senior Fellow at the Manhattan Institute, and co-editor of The Every Student Succeeds Act: What It Means for Schools, Systems, and States (forthcoming Harvard Education Press, spring 2017).