The Title I program contains a provision known as “supplement, not supplant,” which requires that federal funding to support low-income students must be used in addition to, not in place of, state and local funds. As the provision name suggests, the requirement was designed to ensure that federal funding supplemented, rather than supplanted, state and local funds that were used to support the services and activities funded under the program.
History of Supplement, Not Supplant
Prior to the current reauthorization of the Elementary and Secondary Education Act, the supplement, not supplant requirement specified three situations where a violation likely occurred:
A district used federal funds to provide services that the LEA was required to make available under federal, state, or local law.
A district used federal funds to provide services that the LEA provided with non-federal funds in the prior year(s).
A district used federal funds to provide services for children participating in a Title I program that the LEA provided with non-federal funds to children not covered by Title I.
Separate conditions were in place for schools that operated schoolwide programs with Title I funds. Where Title I funding is allowable for schoolwide programs, districts must use federal funds to supplement the amount that would be made available by non-federal funds, especially including legally required funding to support students with disabilities and English language learners.
Supplement, Not Supplant Controversy Under ESSA
Under the Every Student Succeeds Act of 2015, Congress eliminated the three provisions outlined above, instead rewriting the provision with more general guidelines similar to those that were in place for schoolwide programs. The legislative language in ESSA reads:
(1) IN GENERAL.—A State educational agency or local educational agency shall use Federal funds received under this part only to supplement the funds that would, in the absence of such Federal funds, be made available from State and local sources for the education of students participating in programs assisted under this part, and not to supplant such funds.
(2) COMPLIANCE.—To demonstrate compliance with paragraph (1), a local educational agency shall demonstrate that the methodology used to allocate State and local funds to each school receiving assistance under this part ensures that such school receives all of the State and local funds it would otherwise receive if it were not receiving assistance under this part.
Under ESSA, the U.S. Department of Education was required to go through the process of negotiated rulemaking to write regulations around supplement, not supplant. This process, which occurred throughout spring 2016, has been fraught with disagreement. The Department’s draft regulations would allow a district to choose the methodology they use to allocate state and local funds to comply with the supplement not supplant requirement, provided that it “results in the LEA spending an amount of State and local funds per pupil in each Title I school that is equal to or greater than the average amount spent per pupil in non-Title I schools.”
These proposed regulations were met with significant resistance by Senator Lamar Alexander, chairman of the Senate education committee, along with a large group of education organizations—including the National Governors Association, the Council of Chief State School Officers, the American Federation of Teachers, and many others. On the other hand, civil rights organizations as well as a group of Democratic senators have sided with U.S. Secretary of Education John B. King Jr., who has led the Department’s regulation effort.
Amidst this escalating conflict the negotiators failed to reach a consensus, leaving the Department to write the regulations for supplement, not supplant on its own. Congress, however, does have the option to review the regulations, and Senator Alexander has threatened to use the annual appropriations process to overturn them. A recent report by the Congressional Research Service, released on May 5, 2016, concluding that the Department’s proposed regulations appear to be outside what the language of ESSA allows, which may support Senator Alexander’s claims of Department overreach.
It remains an open question what fiscal requirements districts will be held to under ESSA’s supplement, not supplant regulations.