Recipient: The Honorable John King
The Honorable John King
U.S. Department of Education
400 Maryland Ave., SW
Washington, DC 20202
RE: Docket ID ED-2016-OESE-0056
Dear Secretary King,
On behalf of The Leadership Conference on Civil and Human Rights, a coalition charged by its diverse membership of more than 200 national organizations to promote and protect the civil and human rights of all persons in the United States, we offer the following comments in response to the Notice of Proposed Rulemaking (NPRM) published in the Federal Register on September 6, 2016 regarding Title I – Improving the Academic Achievement of the Disadvantaged—Supplement Not Supplant. Resource equity and the responsible use of Title I funds, the two issues considered in the “supplement, not supplant” provision, are both longstanding priorities of the civil and human rights community and issues we spoke to in comments submitted jointly with partners. Given that the Department of Education’s authority to advance the policy proposed in this regulation has been called into question, we seek to address that issue separately in this letter.
Throughout the reauthorization of the Elementary and Secondary Education Act (ESEA) and the implementation of the Every Student Succeeds Act (ESSA), we have sought to protect and defend the authority – and responsibility – of the Department of Education to issue clarifying regulations and non-regulatory guidance and to meaningfully oversee and enforce the law. The hard-learned lesson of the civil rights community is that the federal government serves as a vital backstop and protector of marginalized people whose rights and interests have been too long violated and dismissed by officials at the state and local level. While we are hopeful that this practice will soon become a relic of history, we are unwilling to forgo the indispensable tool of federal intervention on behalf of the communities we represent.
With that said, we would never seek to advocate that this Department, or any federal agency, act outside of its authority under law. Critics who disagree with the Department of Education’s objective in advancing the goal of funding equity within the enforcement of the “supplement, not supplant” requirement have contended that the proposal exceeds the statutory authority provided under ESSA. We have always vehemently disagreed with that interpretation of the law and maintain that the Department of Education is rightfully acting within its authority to clarify ambiguities and gaps in statutory language. In the interest of a full examination of these legal issues, we requested outside legal counsel to provide us with a memorandum that evaluates the Department’s proposal in light of the appropriate legal framework. That memo is included here for the official record. While we recognize that the particulars of the proposal have changed from the original concept offered during the negotiated rulemaking process to the NPRM published in September, we seek to demonstrate that the core requirement – that districts show that Title I schools receive at least as much state and local funding per-pupil as do non-Title I schools – is fully consistent with the law and does not exceed the Department’s authority.
We appreciate your consideration of our perspective as the Department moves toward finalizing the regulations for this elemental provision of ESEA. The test of regulations, guidance, technical assistance and other implementation activities must be whether or not they advance educational equity and serve the
interests of all students. Low-income students, students of color, students with disabilities, English learners, and Native students deserve no less than robust and thorough regulation by this Department to close opportunity and achievement gaps. If you have any questions about these comments, please contact Liz King, Leadership Conference Director of Education Policy, at firstname.lastname@example.org.
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