Education Week - August 31, 2016 - 16

Reading the Tea Leaves in Advance of ESSA Funding Rules By Andrew Ujifusa As the U.S. Department of Education moves closer to releasing draft spending rules for the Every Student Succeeds Act, what does its most-recent guidance about funding suggest about how it may handle some of the key issues at stake this time around? That guidance-released in July 2015, before the Every Student Succeeds Act passed last December-offers a window into the department's thinking on the controversial subject of how to ensure federal funds, like those for low-income students, supplement state and local education aid. But that guidance does not neatly match subsequent, post-ESSA Education Department proposals about that supplemental requirement for federal funds. And like other facets of this issue, the guidance highlights the big debate over the extent to which federal funds can and should be used as leverage for fostering greater equity between wealthy schools and their disadvantaged counterparts. When ESSA passed in December, Congress tasked the department to work with a team of district, state, and other K-12 representatives to set rules for the requirement that federal education money be used in addition to state and local cash. Those negotiations last spring, however, failed to produce a consensus, leaving it to the department to craft its own draft spending rules. The most controversial department proposal during the negotiations was to require that districts' state and local per-pupil spending in Title I schools (those with relatively large shares of low-income students) be at least the same as the average in non-Title I schools, in order for them to show they're using federal dollars properly under ESSA. Post-ESSA Questions When it comes to ensuring that federal funds are supplemental, neither No Child Left Behind (the previous version of federal K-12 law) nor ESSA explicitly requires that sort of measurement of spending between two different types of schools. Supporters of that idea say it would help close glaring resource gaps between schools. The Leadership Conference on Civil and Human Rights has said, for example, that districts with state and local spending gaps between relatively advantaged and disadvantaged schools are, by deﬁnition, violating the requirement that federal funds not supplant state and local cash. And U.S. Secretary of Education John B. King Jr. has repeatedly argued before Congress and elsewhere that in order for federal dollars to be truly supplemental and help students in need, those sorts of gaps must be closed. But state and district K-12 leaders said the department didn't have the power to require this intradistrict funding change, among other complaints. (More on that below.) But what does the 2015 guidance say-or not say-about resource equity when it comes to making federal funds truly supplemental? The guidance gives two examples for how schools can show they're distributing nonfederal funds in a way that's equitable. The first is a weighted per-student funding formula that assigns a base amount per student, plus additional money for certain types of students. The sample formula used in the guidance assigned a $7,000 basefunding allocation per student from state and local funds. Then the formula would assign an extra $500 for each student classified as an English-language learner, an extra $250 per student from a low-income family, and an extra $1,500 per student who has a disability, among other demographics. (This sample formula doesn't explicitly say that a student could qualify for two or more additional allocations of cash based on demographics.) Those students were then factored into the sample formula to calculate the total nonfederal funds a particular school with certain characteristics should receive. The second example is a funding method based on stafﬁng and supplies. The sample budget based on those two factors uses average teacher salaries and beneﬁts at a school, one principal's salary and beneﬁts, and a cost multiplier for "materials and supplies" to calculate how much a certain school with speciﬁc stafﬁng levels should receive in nonfederal funds. side, citing precedent and arguing that it was proper to defer to the federal interpretation of the law. But the U.S. Supreme Court intervened in the Virginia case. On Aug. 3, the justices voted 5-3 to stay lower-court orders that would have allowed Gavin Grimm, who was born female but now identiﬁes as a male, to use the boys' restroom at his high school in Gloucester County, Va. The high court will decide later whether to take up the merits of that case for full argument and decision. "The department is disappointed in the court's decision, and we are reviewing our options," a Justice Department spokesperson said in a statement in response to last week's Texas injunction. Texas Attorney General Ken Paxton and organizations advocating for transgender students also responded to the Texas order. "This president is attempting to rewrite the laws enacted by the elected representatives of the people, and is threatening to take away federal funding from schools to force them to conform," Paxton said in a statement. "That cannot be allowed to continue, which is why we took action to protect states and school districts, who are charged under state law to establish a safe and disciplined environment conducive to student learning." Kentucky Gov. Matt Bevin, a Re- State Concerns Those two sample approaches for distributing state and local money would have to cover all schools, regardless of whether any particular school received any Title I aid, according to the guidance. So why is it signiﬁcant that the department used those examples in its 2015 guidance on the subject? During last spring's negotiations over how ESSA should regulate the supplemental nature of federal money, local and state ofﬁcials complained that under department's proposal to create greater equalization of spending between Title I and non-Title I schools, districts' staff-based budgeting methods and weighted formulas could not be used, because they might lead to funding distributions that strayed too far from the proposal. The department responded to those concerns by singling out weighted per-student formulas, or budgets based on staffing allocations, as acceptable in its proposal for the last round of negotiated rulemaking. But there was a catch: The methods would only get the green light as long as state and district per-pupil funding in a district's Title I schools was at least equal to the average state and local spending per student in non-Title I schools. Here's a key difference between the department's guidance and its proposals that failed to get approval from negotiators: The guidance does not say that districts must compare and roughly equalize total state and local spending among different types of schools. By Evie Blad & Christina A. Samuels The national debate over transgender rights took yet another turn last week, after a federal judge in Texas temporarily blocked the Obama administration from enforcing new guidelines meant to expand students' access to restrooms and locker rooms in schools. In May, the U.S. departments of Education and Justice said that under Title IX, public schools must allow transgender students to use singlesex restrooms and locker rooms that align with their gender identity, even if it differs from their sex at birth. U.S. District Judge Reed O'Connor, for the Northern District of Texas, Wichita Division, sided with Texas and 12 other state plaintiffs in his Aug. 22 order for a temporary injunction, which bars the federal agencies from enforcing the guidance and from initiating civil rights investigations in schools until he makes ﬁnal judgment on the case. Dispute Over Rulemaking The Texas case centers largely on whether the federal agencies followed the proper process for rulemaking. The state plaintiffs argued that, under the Administrative Procedures Act, the departments were required to provide opportunity for notice and comment before setting a rule. But the federal agencies argued that they were merely interpreting an existing regulation. Jusge O'Connor found "that the plain meaning of the term sex as used in [a regulation relating to sexsegregated school restrooms] when it was enacted by DOE following passage of Title IX meant the biological and anatomical differences between male and female students as determined at their birth" and not the gender students identify with. O'Connor also ruled that a temporary injunction was appropriate in the multistate case, one of two that are currently before federal courts. "The court concludes plaintiffs have established that the failure to grant an injunction will place them in the position of either maintaining their current policies in the face of the federal government's view that they are violating the law, or changing them to comply with the guidelines and cede their authority over this issue," O'Connor wrote. In another case, the 4th U.S. Circuit Court of Appeals in Richmond, Va., took the Obama administration's 16 | EDUCATION WEEK | August 31, 2016 | www.edweek.org Jay Janner/AP Judge Blocks Guidance On Transgender Rights Texas Attorney General Ken Paxton hailed a federal judge's order blocking, for now, Obama administration guidelines aimed at broadening transgender students' access to restrooms and locker rooms in schools. http://www.edweek.org

Table of Contents for the Digital Edition of Education Week - August 31, 2016