The U.S. Department of Education (the “Department”) yesterday published proposed regulations in the Federal Register concerning the supplement-not-supplant requirement of Title I of the Every Student Succeeds Act (ESSA). This is the first time that the Title I supplement-not-supplant requirement contains an express legislative directive regarding how a local education agency (LEA) must demonstrate compliance. For this reason, the Department proposed the regulations to provide clarity about how LEAs can demonstrate that the distribution of State and local funds satisfies the statutory test. Based on the Department’s Fact Sheet, the proposed regulation would mean up to $2 billion annually in additional funding for the highest need schools and students.

ESSA contains language requiring districts to use federal funds to supplement not supplant state and local education funding. The statute mandates that state and local funds be allocated in such a way that each school receiving Title I funds also receives all the state and local funding that it would receive if the schools were not Title I schools.

The key provisions of the proposed regulations include proposed rules that:

  • Incorporate the requirement that an LEA must demonstrate to its state education agency (SEA) that the methodology used to allocate funds to each Title I school ensures that such school receives all of the funds it would otherwise receive if it were a non-Title I school;
  • Clarify that an LEA may demonstrate compliance with the above requirement based on various tests specifically outlined in the proposed regulations;
  • Provide flexibility in a number of ways designed to ensure that an LEA can implement the requirement in a way that reflects local needs; and
  • Clarify that the timeline for meeting the new statutory compliance test is by December 10, 2017, unless an LEA, in the alternative, provides a plan by that date for ensuring compliance by the 2019-2020 school year.

These proposed regulations are open for public comment until November 17, 2016. To review the full proposed regulations, click on this link.