“We’re seeing disturbing evidence that the Department of Education is ignoring the law,” he said in his opening remarks Tuesday.
Alexander read from a December Politico interview with King’s predecessor, Arne Duncan, in which Duncan said that the department’s lawyers “are much smarter than many of the folks” on Capitol Hill.
“I’m not sure how smart we are, but we’re smart enough to write a law in plain English,” Alexander said. “And we’re also smart enough to anticipate that your lawyers would attempt to ignore what we wrote and try to move around it.”
Congress passed the Every Student Succeeds Act in a rare bipartisan compromise meant to shift authority over the nation’s public schools from the federal government to states and local school districts.
At issue now are the regulations that the Obama administration is writing to implement the law, and particularly the parts of the law related to the expenditure of Title I dollars, meant to improve education for poor children.
Alexander said that the executive branch is using semantic tricks to try to accomplish its policy goals, even if the policies it favors are expressly prohibited by the new law.
The law requires that districts use state and local dollars to provide comparable services to children who attend high-poverty schools and those who attend more affluent schools. But this “comparability” provision prohibits teacher compensation from being taken into account when determining whether districts are apportioning resources equitably.
That’s a loophole that allows for a big and hidden inequity, according to the Obama administration and many of its allies in the civil rights community. High-poverty schools tend to employ less-experienced teachers who earn lower salaries, so they often spend less on teachers than more affluent schools. But under the law, that gap goes undetected and unaddressed.
An amendment to close that loophole failed in the Senate during debate over the new education law.
The Education Department has not proposed changing the comparability provision directly. But it has proposed rules for a different section of the law — the “supplement not supplant” provision — which requires school districts to show that the federal dollars they receive for poor children are being used in addition to, and not instead of, state and local dollars.
Under the department’s proposal, school districts would have to show that state and local per-pupil funding in Title I schools is at least equal to the average per-pupil spending in non-Title I schools.
Alexander called it a backdoor way to force districts to include teacher salaries in their calculations of equitable spending — a policy that would not only directly contradict congressional intent, but also would force some teachers to transfer to different schools to equalize spending.
“I’m not interested in debating today whether it’s a good idea or a bad idea to include teacher salaries when computing comparability,” Alexander said. “The plain fact is that the law specifically says you cannot do it.”
King objected to Alexander’s characterization and said that the department was not violating any provisions in the law, but instead was trying to answer calls to clarify the “supplement, not supplant” provision.
“We’re not addressing comparability here, we’re addressing supplement not supplant,” King said.
“You’d have the same effect as if you were to change the comparability law, which has not been changed since 1970,” Alexander shot back.
“That would depend on the circumstances in a given district, but the key in the district is the Title I dollars would be genuinely supplemental, not used to backfill,” King said.
Alexander said he would use every tool at his disposal to ensure that the law is implemented as Congress intended, including by overturning the administration’s final rules, if they are objectionable, and by urging states to sue the federal government.
He urged King to reflect on the hearing and reconsider the department’s proposed rules, saying that Congress did not intend for the department to “come up with some clever way” to use one provision to rewrite another.
“Your responsibility is to faithfully execute the law and abide by the law,” Alexander said.
King seemed to anticipate questions about the federal role in the nation’s public schools. “Education is, and should remain, primarily a state and local responsibility,” he wrote in his prepared testimony for the hearing. “What we do at the federal level is support states and districts to improve opportunity for all students, invest in local innovation, research and scale what works, ensure transparency, and protect our students’ civil rights, providing guardrails to ensure educational opportunity for all children.”