“Supplement, Not Supplant” Requirement Leaves States in a Bind

Unintended consequences, they always exist with well-meaning, but poorly thought out plans.  The NCLB waivers and the Race to the Top funds are no different.  It’s something we have warned about.  These new policies that states put in place in order to satisfy the requirements to apply for either the waiver or the funds will place an additional fiscal burden upon the states.  In essence, a brand spanking new unfunded Federal mandate!  Isn’t that exciting taxpayer?!?!

Rick Hess points out the problem is with the “supplement, not supplant” requirement that accompanies federal money:

One of the most pervasive of these is the “supplement not supplant” requirement, which has generally been interpreted as requiring that federal dollars be spent “on top of” whatever states, districts, and schools were already going to spend when serving the kids in question. It’s generally been presumed that, if states have committed to doing something as a matter of policy or statute, then it’d be a violation to use federal funds to pay for it (since they’ve already committed to doing it, even in the absence of federal money. Get it?)….

…This created huge consternation over the past few weeks, as “waiver” states realized that they were not going to be allowed to use Title I funds to provide the supports and interventions they had promised to provide in their waiver applications (as part of the price for getting out from under SES and public choice requirements). Last week, ED managed to stamp out that fire, by announcing that a state law or policy enacted in order to implement ESEA Flex is presumed to be supplemental. The administration explained, “Because the State legal requirement is tied to the State’s flexibility request, we would not consider the use of Title I funds to meet the requirement as presumptively violating the supplement not supplant requirement.”

However, this doesn’t resolve the main problem. It’s only a stopgap. The much bigger and more interesting challenge, to which few states have yet given any thought, is how all this will play out with efforts to implement teacher evaluation and the Common Core. Why? Because ED’s announcement also cautioned that its decision only applied to remedies for Title I schools and students–not to policies with more general implications. ED specifically explained that principles 1 and 3 of ESEA flex (Common Core and teacher evaluation) “raise issues regarding the allowable use of Title I, Part A funds because they pertain, respectively, to all students or all teachers and principals.” Therefore, because those activities benefit all students in the state, Title I generally cannot be used to implement those systems.

Of course, most states have been planning to rely heavily on federal aid for both Common Core and teacher evaluation, but RTT and “waiver” states that have adopted these policies now face legal jeopardy if they use those funds in that fashion. Savvy education consultant Krvaric, who works with a slew of states and districts, explains, “They’re putting themselves at risk. But no one is really focused on this yet. But they will be soon.”

Oops.