Every Dollar Counts: In Defense of the Education Department's 'Supplement Not Supplant' Proposal

13 Pages Posted: 22 Jul 2016 Last revised: 27 Jul 2016

James S. Liebman

Columbia University - Law School

Michael Mbikiwa

Columbia University - Law School

Date Written: July 19, 2016

Abstract

Evidence compellingly demonstrates — as Congress famously recognized in Title I of the Elementary and Secondary Education Act of 1965 (ESEA) — that, in order to succeed in school, low-income children require more educational resources than other students. Yet, a half century later, many school districts continue to spend dramatically less on their high-poverty schools than on those more privileged. Districts do this by permitting their most experienced and highly salaried teachers to opt into schools with more privileged students, then failing to count teacher salaries in school funding comparisons, disguising the fact that Title I schools with less experienced, lower salaried teachers spend less on instruction than schools with more advantaged populations.

To remedy this, the Department recently proposed a regulation requiring districts to account for all aspects of local funding in demonstrating compliance with the longstanding requirement that they use Title I funds to supplement and not to supplant local funds. Not surprisingly, the regulation has met stiff resistance from actors with partisan interests in maintaining the status quo. More troubling, the non-partisan Congressional Research Service (“CRS”) has added a seemingly show-stopping legal objection: that the proposed regulation so clearly contravenes the ESEA that it might not deserve Chevron deference.

This paper argues that the CRS Report is clearly wrong. The Education Department has crafted a reasonable regulation that adopts a long-established and well-respected strategy for identifying actions taken pursuant to an unlawful motive. Although partisans may object to making districts choose between using dollars currently spent on more privileged children to more adequately fund low-income schools, or forsaking federal dollars, that is the choice to which the law in existence for decades puts districts.

Keywords: Title I ESEA, educational equity, supplement not supplant, assessing motive, Chevron, comparability, compensatory education

Suggested Citation

Liebman, James S. and Mbikiwa, Michael, Every Dollar Counts: In Defense of the Education Department's 'Supplement Not Supplant' Proposal (July 19, 2016). Columbia Public Law Research Paper No. 14-523. Available at SSRN: https://ssrn.com/abstract=2811950

James S. Liebman (Contact Author)

Columbia University - Law School ( email )

435 West 116th Street
New York, NY 10025
United States

Michael Mbikiwa

Columbia University - Law School ( email )

435 West 116th Street
New York, NY 10025
United States

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