EVERY DOLLAR COUNTS: IN DEFENSE OF THE OBAMA DEPARTMENT OF EDUCATION’S “SUPPLEMENT NOT SUPPLANT” PROPOSAL

Introduction

Evidence compellingly demonstrates—as Congress famously recog­nized in Title I of the Elementary and Secondary Education Act of 1965 (ESEA) 1 1 See Every Student Succeeds Act, Pub. L. No. 114-95, 129 Stat. 1802 (2015) (codified as amended in scattered sections of 20 U.S.C. (Supp. III)) (reauthorizing and amending the ESEA). ... Close —that children from economically disadvantaged backgrounds require more educational resources than other students. 2 2 See infra notes 15–24 and accompanying text (introducing Title I’s goal of compensatory education). ... Close Yet, a half century later, many school districts still spend less money on high-poverty schools than on more privileged schools. 3 3 Ruth Heuer & Stephanie Stullich, U.S. Dep’t of Educ., Comparability of State and Local Expenditures Among Schools Within Districts 29 (2011), http://www2.ed.gov/rschstat/eval/title-i/school-level-expenditures/school-level-expenditures.pdf [http://perma.cc/Y3Q3-2ZHY]. ... Close In 2011, a study by the U.S. Department of Education discovered that nationwide, more than forty percent of schools eligible for Title I funding based on their high-poverty status receive less state and local funding for instructional and other personnel costs than non–Title I schools in the same districts at the same grade level. 4 4 Id. ... Close A more recent study confirmed that more than 4.5 million low-income students attend Title I schools that on average receive about $1,200 less per student than non–Title I schools in the same district. 5 5 Robert Hanna et al., Ctr. for Am. Progress, Comparable but Unequal: School Funding Disparities 1 (2015), http://cdn.americanprogress.org/wp-content/uploads/2015/03/ESEAComparability-brief2.pdf [http://perma.cc/TGY5-36N8]. ... Close

In 1970, in an effort to prevent the availability of federal funding for high-poverty schools from diminishing state and local funding for those schools, Congress amended the ESEA to forbid districts to use Title I funds to “supplant,” rather than to “supplement,” the local funds they would otherwise have spent on Title I schools. 6 6 Elementary and Secondary Education Act Amendments of 1970, Pub. L. No. 91-230, § 109 (a), 84 Stat. 121 (codified as amended in scattered sections of 20 U.S.C. (2012)). ... Close Notwithstanding this “supplement not supplant” requirement, districts often take two steps that result in the spending disparities described above: (1) letting their most experienced and highly salaried teachers opt into schools with more privileged students, leaving Title I schools with less experienced, lower-salaried teachers; 7 7 See Hanna et al., supra note 5, at 6 (noting that high-poverty schools “typically employ teachers with fewer years of experience and lower salaries”). ... Close then (2) disguising how much less Title I schools spend on instruction than more advantaged schools by omitting teacher salaries from school-funding comparisons. 8 8 See id. at 1 (“[D]istricts can compute comparability using average teacher salaries or teacher-to-student ratios instead of actual expenditures on teacher salaries.”). ... Close

To remedy this situation, President Barack Obama’s Department of Education in 2016 proposed a regulation (hereinafter “the 2016 proposed regulation”) that would have explicitly required districts to account for all aspects of local funding of schools in the course of demonstrating their compliance with the “supplement not supplant” requirement. 9 9 U.S. Dep’t of Educ., Issue Paper: Supplement Not Supplant (Apr. 14, 2016), (on file with the Columbia Law Review) [hereinafter Dep’t of Educ., Issue Paper]. ... Close The civil rights community supported the proposal, 10 10 See Andrew Ujifusa, Civil Rights Groups to Feds: Your ESSA Rules Must Push Equity, Disruptive or Not, Education Week (Apr. 28, 2016), http://blogs.edweek.org/
edweek/campaign-k-12/2016/04/civil_rights_groups_essa_must_push_equity.html [http://perma.cc/P8LS-YE2H] (“30 civil rights groups . . . appear to see a lot to like in the administration’s proposed regulations . . . .”). ... Close but teacher unions and congressional Republicans vehemently opposed it because it disrupts funding patterns favoring non–Title I schools that benefit their constituents. 11 11 See, e.g., Jonathan Chait, Obama Wants to Give Poor Schools More Money. Guess Who’s Blocking Him., N.Y. Mag. (May 19, 2016, 7:00 am), http://nymag.com/daily/intelligencer/2016/05/whos-blocking-obama-from-helping-poor-schools.html [http://
perma.cc/8VXF-GZBD] (discussing a “surprising . . . alliance between teachers unions and Republicans” opposing the regulation). ... Close

Soon after the Obama Administration announced the proposal, the nonpartisan Congressional Research Service (CRS) added its own seemingly show-stopping legal objection—that the proposed regulation is so clearly contrary to the ESEA that it may not deserve Chevron deference. 12 12 Memorandum from Jody Feder & Rebecca Skinner, Cong. Research Serv., on the Proposed Regulations on the Supplement, Not Supplant Provision that Applies to the Title I-A Program Authorized by the Elementary and Secondary Education Act 6–9 (May 5, 2016) [hereinafter Feder & Skinner, Proposed Regulations Memo], http://edworkforce.house.gov/uploadedfiles/sns_and_negotiated_rulemaking_5-5-16.pdf [http://perma.cc/G9NC-F5KQ]; see infra note 87 and accompanying text (discussing the deference courts must give to reasonable administrative regulations under Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984)). ... Close Indeed, the CRS contended that the proposed regulation contravened two ESEA provisions: one prohibiting the Department from forcing districts to equalize per-pupil spending across all schools and another exempting teacher salaries from a provision of the Act, separate from its “supplement not supplant” requirement, that requires comparability of services between schools receiving and those not receiving Title I funds. 13 13 Feder & Skinner, Proposed Regulations Memo, supra note 12, at 8–9. ... Close The day before the Obama Administration turned over the reins to President Donald Trump, the Department of Education announced that it was dropping its proposed “supplement not supplant” regulation. 14 14 See Nicole Gorman, Education Department Drops ‘Supplement Not Supplant’ Regulation, Educ. World (Jan. 19, 2017), http://www.educationworld.com/a_news/education-department-drops-controversial-‘supplement-not-supplant’-regulation-1979012106 [http://perma.cc/KJK8-WRAP]; see also Title I—Improving the Academic Achievement of the Disadvantaged—Academic Assessments, 81 Fed. Reg. 88,886 (Dec. 8, 2016) (to be codified at 34 C.F.R. pt. 200) (finalizing new Title IA regulations and omitting previously proposed regulation on “supplement not supplant”). ... Close Although the Department of Education offered no explanation for doing so, legal objections by the respected CRS likely played a role in the decision.

The CRS’s legal analysis is wrong. Far from being unworthy of Chevron deference, the interpretation of the ESEA underlying the Department’s 2016 proposed regulation is dictated by well-established canons of statutory interpretation and relies on the same objective approach to assessing the motives of local officials as a wealth of other federal laws and regulations. More broadly, that interpretation is appropriate—indeed imperative—to ensure high-poverty schools the funds to which the ESEA legally entitles them.

In support of reconsideration of the issue by the incoming Administration, this Piece is structured as follows. Part I discusses the compensatory purpose of Title I of the ESEA, explains the importance of the “supplement not supplant” requirement in preserving the com­pensatory ideal, acknowledges the difficulty the Department faces in ascertaining whether a school district intends to spend less local money on Title I schools in recognition of the federal dollars those schools can count on receiving, and concludes that the Department’s 2016 proposed regulation provided a sensible and well-trod solution to that problem. Part II describes the two important objections leveled against the proposal by the CRS. Part III responds to those objections, concluding that both are unpersuasive.

I. Title I’s Goal of Compensatory Education

In 1965, President Lyndon B. Johnson signed the ESEA into law as a key part of his War on Poverty. 15 15 See Lyndon B. Johnson, President of the U.S., Remarks at the Dedication of the Gary Job Corps Center, San Marcos, Texas (Apr. 10, 1965), http://www.presidency.ucsb.edu/ws/index.php?pid=26884 [http://perma.cc/5XAH-8HTS] (praising the passage of “a comprehensive national education bill” as a central contribution to President Johnson’s War on Poverty). ... Close The ESEA was the “most far-reaching and significant education legislation in the history of this country.” 16 16 Wash. Research Project & NAACP Legal Def. & Educ. Fund, Title I of ESEA: Is it Helping Poor Children?, at i (1969). ... Close Title I of the ESEA—the statute’s “crown jewel”—gives school districts federal dollars to spend on large numbers of low-income students. 17 17 See John F. (Jack) Jennings, Title I: Its Legislative History and Its Promise, 81 Phi Delta Kappan 516, 517 (2000) (describing funding structure of Title I and its central role in the ESEA). ... Close Congress based Title I on two insights: (1) schools with high concen­trations of children in poverty need substantially more funding than other schools to compensate for the negative effects of economic deprivation on student learning and (2) the federal government has a key role to play in providing funds to even the playing field for those children. 18 18 See Wash. Research Project & NAACP Legal Def. & Educ. Fund, supra note 16, at iv. ... Close For these reasons, the statute forbids districts to use Title I funds to improve schools generally and requires that they use the money as direct assistance to schools serving high concentrations of poor children. 19 19 See id. ... Close

Subsequent research conclusively validates Title I’s premise that low-income children concentrated in particular schools require more resources to achieve the same educational outcomes as their more privileged counterparts. The famous Coleman Report, published the year following the ESEA’s adoption, persuasively linked family poverty and poor educational outcomes, particularly in the context of schools with concentrations of impoverished children, 20 20 See James S. Coleman et al., Nat’l Ctr. for Educ. Statistics, OE-38001, Equality of Educational Opportunity 21, 99, 502–04, 523 (1966) (examining and comparing differ­ences in the educational outcomes of students in the United Sates as correlates of socioeconomic status and race). ... Close and decades of subsequent research has confirmed the link. 21 21 See, e.g., Richard D. Kahlenberg, All Together Now: Creating Middle-Class Schools Through Public School Choice 25 (2003) (citing “fifty years of sociological data” to conclude that “being born into a poor family places students at risk, but to be assigned then to a school with a high concentration of poverty poses a second, independent disadvantage that poor children attending middle-class schools do not face”); George Farkas & L. Shane Hall, Can Title I Attain Its Goal?, Brookings Papers on Educ. Pol’y, 2000, at 59, 63 (estimating that American low-income children begin first grade a full instructional year behind middle-class children and finish twelfth grade with skills that, on average, are at an eighth-grade level); Sean F. Reardon, The Widening Academic Achievement Gap Between the Rich and the Poor: New Evidence and Possible Explanations, in Whither Opportunity? Rising Inequality, Schools, and Children’s Life Chances 91, 94–95 (Greg J. Duncan & Richard J. Murnane eds., 2011). ... Close Today, nearly all researchers and policymakers agree that the provision of additional resources to high-poverty schools and students is necessary, if insufficient, to bring their outcomes up to either the average or an objectively desirable level of educational attainment. 22 22 See, e.g., Saba Bireda, Ctr. for Am. Progress, Funding Education Equitably 1 (2011), http://cdn.americanprogress.org/wp-content/uploads/issues/2011/03/pdf/school_budget.pdf [http://perma.cc/K6Z9-HDMX] (“[S]tudents attending high-poverty schools actually need more funding to achieve at the level of their wealthier counterparts.”); see also John Charles Boger, Education’s “Perfect Storm”? Racial Resegregation, High Stakes Testing, and School Inequities: The Case of North Carolina, 81 N.C. L. Rev. 1375, 1440–41 (2003) (linking the resource needs and educational challenges of North Carolina students both to their individual economic status and to “the severe effects of poverty concentration” in particular schools). ... Close Indeed, the weighted funding mechanisms used in nearly all modern state and local formulas for distributing money to schools, which multiply a base per-student funding amount by a need-based weighting factor, recognize that to provide adequate funding to all, more needs to be spent on children living in poverty. 23 23 See, e.g., Bruce D. Baker et al., Is School Funding Fair? A National Report Card 6 (4th ed. 2015) (“Student and school poverty correlates with, and is a proxy for, a multitude of factors that increase the costs of providing equal educational opportunity  . . . .”); see also Kevin Carey, Ctr. on Budget & Pol’y Priorities, State Poverty-Based Education Funding: A Survey of Current Programs and Options for Improvement 2 (2002) (referring to recent studies suggesting “the actual additional cost of educating low-income children is between two and two-and-a-half times the cost of educating non-poor students”). ... Close Title I’s own formulae for determining the nature and size of federal grants and the schools eligible to receive them are aimed at precisely these same poverty-related obstacles. 24 24 The Department of Education uses four formulae, based on census poverty data and the estimated cost of education in each state, to allocate federal funds to districts under Title I. See Elementary and Secondary Education Act of 1965, Pub. L. No. 107-110, §§ 1122–1125A, 115 Stat. 1425, 1515–1524 (2002) (codified as amended at 20 U.S.C. §§ 6332–6337 (2012)). ... Close

A. The Requirement to Supplement, Not Supplant

Soon after Congress adopted the ESEA, researchers discovered that Title I was not achieving its compensatory ambition because districts were using Title I funds in place of, and not in addition to, state and local funds. 25 25 See Wash. Research Project & NAACP LegalDef. & Educ. Fund, supra note 16, at 5. ... Close Instead of providing resources for low-income students beyond those available to other students, districts were using the money to buy baseline books and supplies and pay everyday operating costs and salaries at Title I schools. 26 26 Id. ... Close This enabled districts to divert the dollars previously spent on Title I schools’ basic needs to more privileged schools. 27 27 Id. ... Close In response to these findings, Congress amended the ESEA in 1970 to require districts to use Title I funds to “supplement and, to the extent practical, increase the level of funds that would, in the absence of such Federal funds, be made available [to low-income schools] from non-Federal sources . . . and . . . in no case, to supplant such funds from non-Federal sources.” 28 28 Elementary and Secondary Education Act Amendments of 1970, Pub. L. No. 91-230, § 109(a), 84 Stat. 121, 124 (codified as amended in scattered sections of 20 U.S.C.) (emphasis added). ... Close

When Congress adopted these amendments, administrators had available a simple indicator of the amount of local dollars districts would have spent on Title I schools “in the absence of Federal funds”: the amount of local funds spent on those schools as of 1964, just before the ESEA was passed. A sudden decrease in local dollars for Title I schools after federal funds became available would have strongly suggested that the district was unlawfully intending to supplant local with federal dollars.

Today, however, using historical baselines to estimate the amount of local funding that districts would provide to low-income schools absent federal funds is a bad idea. First, historical baselines tend to entrench the underfunding of public schools and especially high-poverty schools. 29 29 Cf. Michael Heise, State Constitutions, School Finance Litigation, and the “Third Wave”: From Equity to Adequacy, 68 Temp. L. Rev. 1151, 1163–66 (1995) (citing state court decisions finding historical funding levels insufficient to support an adequate education, especially for poor children). ... Close Second, historical baselines are no longer workable. For fifty years since the ESEA’s adoption, states and districts have supported Title I schools with combinations of local, state, and federal dollars, to the point that it is impossible to look backward one, five, or any other number of years to decide what the pre–Title I historical baseline for local funding might be.

Not surprisingly, therefore, when Congress reauthorized the ESEA last year in the Every Student Succeeds Act (ESSA), it told the Department to stop using prior funding levels in deciding whether districts were “supplanting.” 30 30 Every Student Succeeds Act, Pub. L. No. 114-95, § 1118(b)(3), 129 Stat. 1802, 1875 (2015) (codified as amended in scattered sections of 20 U.S.C. (Supp. III)) (rejecting U.S. Dep’t of Educ., Non-Regulatory Guidance, Title I Fiscal Issues 38–39 (rev. ed. Feb. 2008), http://www2.ed.gov/programs/titleiparta/fiscalguid.doc [http://perma.cc/P6EE-XD92]). ... Close It also forbade the Department to assume that sup­planting was taking place if districts used Title I funds to provide services for which local funds were used in other schools. 31 31 Id. ... Close Doing so, Congress found, counterproductively encouraged districts to spend Title I funds on “pull-out” services provided exclusively and separately to disadvan­taged children, depriving them of the benefits of “mainstreaming” with other children. 32 32 See, e.g., Michael J. Gaffney & Daniel M. Schember, U.S. Dep’t of Educ., The Effects of The Title I Supplement-Not-Supplant and Excess Costs Provisions on Program Design Decisions, at xi (1982) (showing that ninety-two percent of districts surveyed used pull-out mechanisms in their Title I programs); Farkas et al., supra note 20, at 76–77 (noting persistence of pull-out designs triggered by Title I rules). ... Close More generally, Congress rejected the various indirect tests the Department had long used to assess supplanting because they shed little light on whether districts were allocating funds in keeping with a forbidden motivation to supplant.

Although the ESSA bans the Department’s prior method of deter­mining whether a district’s funding of Title I schools aims to supplant local with federal funding, the law retains and actually strengthens the “supplement not supplant” requirement. For the first time, the law explicitly requires districts themselves to “dem­onstrate compliance” with the nonsupplanting requirement. 33 33 § 1012(b)(2), 129 Stat. at 1875 (requiring districts to “demonstrate that the methodology used to allocate State and local funds to each [Title I] school . . . ensures that such school receives all of the State and local funds it would otherwise receive if it were not receiving assistance under this part”). ... Close The ESSA, how­ever, does not say how districts must make that demonstration—leaving the Department to figure out anew how a district can “demonstrate” that its funding of Title I schools is not designed to use federal dollars to supplant local spending.

Whether Title I funds are used to supplant local funds is a motivational question; answering it requires an inquiry into why a particular school district has spent its local and federal funds as it has. As we explain below, in the absence of an express congressional stipulation as to how that question ought to be answered, the Department of Education’s 2016 proposed regulation quite sensibly embraced the same objective approach as Congress and other agencies have used for decades to assess motivational questions in similar contexts.

B. Established Ways to Assess Motivation

One way to assess an actor’s motivation, such as a motivation to supplant local funding, is to inquire directly into the actor’s subjective thoughts and beliefs—as often happens in criminal cases in court. 34 34 See Joel Samaha, Criminal Law 127–29 (11th ed. 2013) (describing fault in criminal law as generally requiring proof of a subjectively evil or “bad mind”); see also State v. Mitchell, 485 N.W.2d 807, 817 (Wis. 1992), rev’d on other grounds, 508 U.S. 47 (1993) (distinguishing a Wisconsin criminal statute requiring proof of the “subjective mental process of selecting a victim because of his protected status” from antidiscrimination laws, which prohibit “objective acts of discrimination”). ... Close When, however, the task of assessing motive is assigned to a federal agency of limited jurisdiction, and the “actors” in question are local public servants, this “prosecutorial” sort of inquiry creates a serious risk of federal overreaching. Additionally, the Department of Education has over 13,000 school districts to oversee, so the cost of using the prosecutorial approach would be enormous. 35 35 See Fast Facts, Nat’l Ctr. for Educ. Statistics, http://nces.ed.gov/fastfacts/display.asp?id=372 [http://perma.cc/UDK5-U756] (last visited Oct. 22, 2016) (“In 2012–13, there were about 13,500 [U.S.] public school districts . . . .”). ... Close

For similar reasons, Congress and federal agencies often take a different, more objective, approach to assessing motivation. That approach begins by asking what the result would be—what the relevant “actor” would do; what the objective facts would look like—if the actor were proceeding according to the unlawful motivation. If the actor acts in a way or achieves a result that is consistent with the forbidden motivation, the next step is to require the actor to come forward with a different, legitimate explanation for the steps it took and the results it caused. If it can do so, it avoids liability. 36 36 See infra notes 37–47 and accompanying text (discussing the passage of three motivation-dependent federal laws). ... Close

Three motivation-dependent federal laws adopted contemporane­ously with the 1965 ESEA are administered in exactly this way: Title VII of the Civil Rights Act of 1964, 37 37 Under Title VII, section 703(a)(1), it is an “unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual” because of his or her “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a) (2012). In administering this law, the U.S. Supreme Court and the federal Equal Employment Opportunity Commission (EEOC) have adopted the objective approach described in the text for assessing motivation. See Griggs v. Duke Power Co., 401 U.S. 424, 432 (1970); 29 C.F.R. § 1625.7(d) (2004). ... Close the Age Discrimination in Employment Act of 1967, 38 38 The Age Discrimination in Employment Act of 1967 makes it “unlawful for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” Age Discrimination in Employment Act of 1967 § 4(a), 29 U.S.C. § 623(a) (2012). Deferring to an EEOC regulation, the Supreme Court adopted the objective approach for assessing motivation under this statute in Smith v. City of Jackson, 544 U.S. 228, 235 (2005) (plurality opinion); id. at 243–47 (Scalia, J., concurring in part and concurring in the judgment). ... Close and the Fair Housing Act of 1968. 39 39 The Fair Housing Act of 1968 makes it unlawful to “refuse to sell or rent . . . a dwelling to any person because of race, color, religion, sex, familial status, or national origin.” Fair Housing Act of 1968 § 804(a), 42 U.S.C. § 3604(a). In Texas Department of Housing & Community Affairs v. Inclusive Communities Project, Inc., the Supreme Court—following a Department of Housing and Urban Development regulation, see Implementation of the Fair Housing Act’s Discriminatory Effects Standard, 78 Fed. Reg. 11,460 (Feb. 15, 2013) (codified at 24 C.F.R. pt. 100)—approved the objective approach to adjudicating this motivational standard. 135 S. Ct. 2507, 2516–22 (2015). ... Close Under these laws, if employers or housing officials take actions that result in fewer African Americans or elderly individuals being hired or promoted or result in the segregation of Latinos in housing projects different from where Anglo Americans live, the burden falls on those employers or officials to give a legitimate reason for their actions that overcomes the implication of racial, ethnic, or age-biased motivation. 40 40 See supra notes 37–39 (quoting statutory provisions requiring actors responsible for disparities suggesting the possibility of a forbidden discriminatory motive to provide a nondiscriminatory explanation for their action and its results). ... Close

Consider, for example, a claim alleging that an unlawful motive to discriminate based on race led to the denial of an African American’s job application. Recognizing that employers rarely expose direct evidence of bias, the U.S. Supreme Court and Equal Employment Opportunity Commission (EEOC) take the more objective approach. They allow the minority job applicant to show, for example, that she was qualified for the job but was rejected, after which the position remained open. 41 41 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) (requiring applicants showing a prima facie case of discrimination to establish they (i) belong to a racial minority, (ii) applied and were qualified for a job for which the employer was seeking applicants, (iii) were rejected despite being qualified, and (iv) the employer thereafter continued seeking applicants). ... Close Although this result is not decisive, it is consistent with what would happen if discrimination had occurred. As such, the Court and the EEOC treat that behavior as establishing a sufficient reason to ask the employer to give a “legitimate, non-discriminatory reason” for what happened. 42 42 See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981) (quoting McDonnell Douglas Corp., 411 U.S. at 802). ... Close If the employer does so, the plaintiff loses unless she can show that the reason given was a “pretext” for racial bias. 43 43 Id. at 253. ... Close Federal agencies and courts use similar approaches to adjudicate age and housing discrimination. 44 44 See Inclusive Cmtys. Project, Inc., 135 S. Ct at 2516–22 (describing the objective approach the Court uses to adjudicate discrimination under various statutes). ... Close

Importantly, Congress did not itself articulate these objective frameworks in the underlying laws. Rather, the relevant statutes simply prohibit actions taken “because of” a prohibited motivation. They say nothing about how to determine when the relevant motive is present. 45 45 See, e.g., 29 U.S.C. § 623(a) (2012) (prohibiting conduct “because of such individual’s age” (emphasis added)); 42 U.S.C. § 3604(a) (2012) (making it unlawful to refuse to sell or rent “because of race, color, religion, sex, familial status, or national origin” (emphasis added)). ... Close Congress thus left courts and administrative officials to decide how to answer precisely the kind of motivational question the Department of Education would face in adjudicating the “supplement not supplant” requirement. 46 46 See, e.g., Inclusive Cmtys. Project, Inc., 135 S. Ct. at 2516–22 (acknowledging uncertainty about the appropriate application of the Fair Housing Act’s provision barring discriminatory actions and following its precedent on parallel provisions in the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 in rejecting a subjective test and adopting an objective inquiry); Griggs v. Duke Power Co., 401 U.S. 424, 428–34 (1970) (addressing as a “question of first impression” whether Title VII of the Civil Rights Act of 1964 imposed “a subjective test of the employer’s intent” and concluding, based in part on the interpretation of the EEOC, that a more objective test should apply). ... Close And to do so, the courts and administrators in each of these cases crafted an objective framework for requiring the actor in question to provide a legitimate explanation for actions and results mirroring those the forbidden motive is likely to generate.

Suppose the Department wanted to apply this same objective approach in deciding whether local officials were allocating funds with the unlawful intention of supplanting local funding for Title I schools with federal dollars. To use that approach, the Department would first ask what school districts would do—what objective results they would trigger—if they intended to spend less money on Title I schools than otherwise because they knew federal Title I dollars would make up the difference.

The answer is that the district would probably spend less local money on one or more Title I schools than it spends, on average, on its more privileged, non–Title I schools. 47 47 As indeed many school districts do currently. See Heuer & Stullich, supra note 3. ... Close Doing so would enable it to divert local money from Title I schools to non–Title I schools and use federal dollars to make up the difference. The fact that one or more Title I schools receive less in total local funding than do the run of all non–Title I schools would suggest—not conclusively, but enough to warrant further inquiry—that the district gives Title I schools fewer local funds because they are Title I schools. Under the objective approach, the district would then have to demonstrate a legitimate reason for directing fewer local dollars, all told, to Title I than to other schools.

C. The Reasonableness of the Department’s 2016 Proposed Regulation

In fact, the Department’s 2016 proposed regulation would have operated in exactly this way. Instead of subjecting public officials to a searching prosecutorial examination of their innermost thoughts, the proposal asked whether a district was behaving consistently with a forbidden motive to supplant: whether it provided one or more Title I schools with less in the way of local funding, all told, than it provided on average to non–Title I schools. 48 48 Dep’t of Educ., Issue Paper, supra note 9, at 5. ... Close If the district were acting in this manner, the proposed regulation recognized three common situations in which it would assume that the district nonetheless had a legitimate, nonsupplanting reason for giving more local funds to non–Title I schools than to Title I schools: when they had only one elementary, middle, or high school; when spending disparities between Title I and non–Title I schools disappeared if funding was considered by grade and not by school (because some grades cost more than others); or when disparities disappeared if spending on very small schools (less than 100 students) was omitted from the calculation. 49 49 Id. ... Close

If none of these exceptions applied, the 2016 proposal would have required districts that spent fewer local dollars on Title I than on non–Title I schools to provide a nonsupplanting explanation for the disparity. 50 50 Id. at 6. ... Close The Department’s 2016 proposal, that is, invited districts to identify any “special circumstances related to a particular [non–Title I] school’s population of disadvantaged students” that justified the district in spending heavily on that school. 51 51 Id. ... Close Any such school would then be removed from the calculation of the district’s overall funding on its non–Title I schools. 52 52 Id. ... Close If doing so erased the funding disadvantage for Title I schools, the “supplement not supplant” requirement would be satisfied. 53 53 Id. ... Close

The Department thus proposed an entirely familiar and sensible approach to resolving the difficult motivational question posed by the “supplement not supplant” requirement—an approach that federal courts and agencies have used for decades in similar situations.

In fact, the ESSA—Congress’s 2015 reauthorization of the ESEA—rather clearly invites the Department to use this objective approach. First, the ESSA for the first time requires districts to collect and publicly report on exactly how many local, state, and federal dollars—including, explicitly, dollars devoted to teacher salaries—they spend on each of their schools. 54 54 Every Student Succeeds Act, Pub. L. No. 114-95, § 1111(h)(1)(C)(x), 129 Stat. 1802, 1849 (2015) (codified as amended in scattered sections of 20 U.S.C. (Supp. III) (requiring districts to report “per-pupil expenditures of Federal, State, and local funds, including actual personnel expenditures and actual nonpersonnel expenditures of Federal, State, and local funds, disaggregated by source of funds, for . . . each school . . . for the preceding fiscal year” (emphasis added)). ... Close In addition, as mentioned earlier, the ESSA for the first time requires districts to “demonstrate” that their way of allocating local funds is not designed to use Title I funds to supplant local dollars. 55 55 Id. §§ 1012, 1118(b)(1), 129 Stat. at 1875. ... Close The ESSA’s first addition gives the Department everything it needs to take the initial step in the objective approach: comparing all of the local funding of Title I and non–Title I schools to see whether the former schools receive fewer local dollars than the latter ones. The second addition invites the Department to do exactly what the 2016 regulation proposed: require districts that act consistently with a motive to supplant by spending less on Title I schools than on other schools, to “demonstrate” a legitimate, educa­tionally sound reason for spending local funds as they do.

To be sure, it is possible to improve upon the Department’s 2016 proposal. First, exceptions should be added for other common, educa­tionally sound reasons for directing fewer local dollars to Title I than to other schools—e.g., unpredictable emergencies associated with floods, fire, and the like. Additionally, the Department should broaden the definition of acceptable reasons for funding non–Title I schools more richly than Title I schools. The definition in the 2016 proposal encom­passed any policy that serves the needs of disadvantaged students in non–Title I schools. 56 56 Dep’t of Educ., Issue Paper, supra note 9, at 6. ... Close The Department might additionally have credited policies that equally serve important educational or learning needs of all of the district’s school children in ways that cannot be accomplished as well or better without spending more money on non–Title I than on Title I schools. 57 57 This “less restrictive means” approach mirrors established Title VII doctrine, under which an explanation proffered by a defendant for using an employment test with a disparate negative effect on racial minorities may be rejected if “other tests or selection devices, without a similarly undesirable racial effect, would also serve the employer’s legitimate interest.” Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975). ... Close If, for example, a non–Title I school is shown to be the least expensive location for equipment needed to expand internet access to all of a district’s schools, that would legitimately explain the dispropor­tionate funding to the district’s non–Title I schools. On the other hand, a policy of retaining effective teachers by paying them extra or letting them opt to work in non–Title I rather than Title I schools should not suffice. The benefits of that policy would not be equally available to all students in the district, and the objective could as easily be accomplished by giving effective teachers extra compensation for working in schools that currently have no or few experienced or effective teachers.

There thus are three good reasons for the approach taken in the Department’s 2016 proposed regulation: (1) application of a compar­atively nonintrusive objective test that avoids the many problems with a prosecutorial inquiry into the subjective motivations of officials respon­sible for allocating funds in thousands of districts nationwide, 58 58 See supra notes 34–35 and accompanying text (explaining why a subjective test for assessing the motivation for government action is undesirable). ... Close (2) the clear precedents for the objective approach in federal courts’ and agencies’ implementation of laws adopted at the same time as the ESEA, 59 59 See supra notes 36–46 and accompanying text (discussing the objective approach to assessing motivation adopted by analogous federal statutory schemes). ... Close and (3) the ESSA’s invitation to adopt the objective approach. 60 60 See supra notes 54–55 and accompanying text (arguing the ESSA invites an objective approach to assessing motivation). ... Close Certainly, the contrary, prosecutorial approach is not obviously more reasonable or unambiguously required by the statute’s plain meaning. Under these circumstances, there would be every reason to defer to the interpretation offered by the Department in 2016 of a statute the Department has been responsible for interpreting and administering for decades. 61 61 Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984) (describing the circumstances in which Congress should defer to an agency’s interpret­ation of an ambiguous statute). ... Close

II. CRS Objections to the Proposed Regulation

Without mentioning the longstanding precedents and statutory invi­tation for the Department’s objective approach, a CRS Report offered two objections to the proposed 2016 regulation. 62 62 See Feder & Skinner, Proposed Regulations Memo, supra note 12, at 8–9. ... Close These objections deserve close consideration given the non­partisan CRS’s reputation for high-quality analysis and the objections’ likely impact on the Obama Administration’s decision not to finalize its proposed regulation.

The CRS, an arm of the Library of Congress, provides research and analysis on request by members of Congress in aid of the legislative process. 63 63 See About CRS, Library Cong., http://www.loc.gov/crsinfo/about/ [http://perma.cc/ZZR7-VURF] (last updated Feb. 19, 2016). ... Close Bound by “requirements for confidentiality, timeliness, accu­racy, objectivity, balance, and nonpartisanship,” 64 64 Ida A. Brudnick, Cong. Research Serv., RL33471, The Congressional Research Service and the American Legislative Process 2 (Apr. 12, 2011), http://fas.org/sgp/crs/misc/RL33471.pdf [http://perma.cc/29NU-AE2C] (describing the CRS’s functions). ... Close the CRS is respected on both sides of the aisle in both houses of Congress for providing members with rigorous analysis across the full spectrum of public policy questions. 65 65 See 160 Cong. Rec. E1192 (daily ed. July 17, 2014) (extension of remarks of Hon. Larson) (honoring the CRS on its hundredth anniversary). But cf. Matthew R. Auer & Michael Cox, Appraising Climate Change Information Reported to Congress, 2 Int’l J. Climate Change Strategies & Mgmt. 118, 118 (2010) (noting the CRS “cites its own past publications more often than it cites peer-reviewed scholarship”). ... Close On issues like the one under consideration here, on which most of the available policy analysis is generated by partisan interests, 66 66 See, e.g., Ujifusa, supra note 10 (describing research recently presented by civil rights advocacy groups on the “supplement not supplant” issue). ... Close the CRS often provides the only objective analysis of the issue at hand.

In addressing the Department’s proposed “supplement not supplant” regulation, the CRS raised two objections—both matters of law as well as policy. First, the CRS suggested that the proposal ran afoul of a provision in the ESEA forbidding the Department to force districts to equalize per-pupil spending (the “equalization objection”). 67 67 See 20 U.S.C. § 6576 (2012) (“Nothing in this subchapter shall be construed to mandate equalized spending per pupil for a State, [district], or school.”). ... Close According to the CRS, a reviewing court would likely hold that the proposed regulation, which would “require Title I-A per-pupil expenditures to meet or exceed those of non–Title-I-A schools,” exceeds the Department of Education’s rulemaking authority. 68 68 Feder & Skinner, Proposed Regulations Memo, supra note 12, at 8. ... Close

The CRS also contended that the proposal violated a caveat in the ESEA’s longstanding “comparability of services” rule. 69 69 See id. at 4–5. ... Close At the same time as Congress adopted the “supplement not supplant” rule governing the “level of [local] funds” districts provide to Title I schools, it also required school districts accepting federal support to provide comparable “services” to Title I and non–Title I schools. 70 70 Elementary and Secondary Education Act Amendments of 1970, Pub. L. No. 91-230, § 109(a), 84 Stat. 121, 124 (codified as amended in scattered sections of 20 U.S.C.)(emphasis added). ... Close To comply with this requirement, districts must show that they have a district-wide salary schedule and that their policies ensure equivalent per-pupil numbers of teachers, administrators, and supplies across schools. 71 71 Elementary and Secondary Education Act § 1118(c)(2)(A), 20 U.S.C. § 6321(c)(2)(A). ... Close The law then adds an important caveat: The fact that some teachers make more than others based on seniority may not be considered in deciding whether there is per-pupil equivalence of services across schools. 72 72 Id. § 6321(c)(2)(B). ... Close In other words, if one school has ten rookie teachers and 300 students, and another school has ten much higher-paid long-term veterans for 300 students, the two schools are deemed to have “comparable” instructional services. The CRS concluded that, because Congress intended to retain the experience-based staff salary exception from the comparability of services, omitting the same exception from the proposed regulation constituted an unlaw­ful attempt to require districts to include actual teacher salaries in their “supplement not supplant” calculations. 73 73 Feder & Skinner, Proposed Regulations Memo, supra note 12, at 9. ... Close

As we develop below, the CRS’s analysis in regard to both objections is faulty as a matter of both law and policy. Neither objection engages effectively with the express requirements and purposes of Title I and its “supplement not supplant” and “comparability of services” provisions, with well-established approaches to the problem of assessing the motivations of state and local public officials, or with accepted rules of statutory construction.

III. Responses to the Objections

The CRS’s equalization objection is particularly puzzling because the proposed regulation plainly does not require equalized funding. Consistent with Title I’s fundamental premise, the regulation assumes that Title I schools typically should receive more local, state, and federal funding per pupil than the average received by non–Title I schools 74 74 Dep’t of Educ., Issue Paper, supra note 9, at 5. ... Close —the opposite of requiring equal per-pupil expenditures for each school considered separately. Additionally, through its three exceptions and its catch-all invitation, the proposed regulation recognizes many educa­tionally sound reasons why non–Title I schools may receive more funding per student than Title I schools—and why individual Title I and non–Title I schools will receive different amounts of per-pupil funding than other schools in their own category. 75 75 Id. at 5–6. ... Close The proposed regulation thus is no more a requirement of “equalization” than the Civil Rights Act of 1964 or the Age Discrimination Act is a requirement that all employers have a race- or age-balanced workforce. 76 76 See supra notes 37–39 and accompanying text. ... Close Like those precedents, the proposed regulation allows unequal outcomes whenever there is a legitimate reason for them.

The “comparability of services” objection is more serious but also fails. As the CRS acknowledged, 77 77 See Feder & Skinner, Proposed Regulations Memo, supra note 12, at 5 (noting “disparities in personnel expenditures between Title I-A schools and non–Title I-A schools” that are obscured when teacher salaries are omitted from calculations of local spending on schools). ... Close if the caveat excluding teacher salaries and seniority is applied not only to the distribution of “services” (the sole focus of the comparability rule), but also to the distribution of “funds” (the subject of the distinct, “supplement not supplant” rule), districts could systematically assign their most experienced, most expensive teachers to non–Title I Schools and thus spend far less on instruction at Title I than at non–Title I schools. Doing so would directly contradict Title I’s recognition that low-income schools need more funds for instruction. Even so, the CRS suggested that, without ever saying so, Congress intended the treatment of teacher salaries it wrote into the “comparability” rule to apply as well to the “supplement not supplant” rule. 78 78 Id. at 9 (arguing “a reviewing court could view [the] legislative history” with respect to the comparability of services “as relevant evidence of congressional intent to maintain current statutory requirements related to comparability determinations,” including “via other methods”). ... Close

This interpretation is flawed. The “comparability” and “supplement not supplant” provisions are distinct, and they must be interpreted as distinct. As their words plainly signify, comparability applies only to the distribution of “services”; 79 79 The Elementary and Secondary Education Act of 1965 provides:
[A] local educational agency may receive funds under this part only if State and local funds will be used in schools served under this part to provide services that, taken as a whole, are at least comparable to services in schools that are not receiving funds under this part . . . .
. . . .
. . . [I]n the determination of expenditures per pupil from State and local funds, or instructional salaries per pupil from State and local funds, staff salary differentials for years of employment shall not be included in such determinations.
1118(c), 20 U.S.C. § 6321(c) (2012) (emphasis added). ... Close “supplement not supplant” applies only to the expenditure of “funds.” 80 80 The Elementary and Secondary Education Act of 1965 provides:
A State educational agency or local educational agency shall use Federal funds received under this part only to supplement the funds that would, in the absence of such Federal funds, be made available from State and local sources for the education of students participating in programs assisted under this part, and not to supplant such funds.
Id. § 1118(b)(1), 20 U.S.C. § 6321(b)(1) (emphasis added). ... Close That distinction must be given operative significance, or each provision would render the other superfluous—violating a well-established rule against interpreting statutes to contain redundancies or superfluous provisions. 81 81 E.g., Hibbs v. Winn, 542 U.S. 88, 101 (2004) (requiring statutes to be construed “so that effect is given to all its provisions [and] no part will be inoperative or superfluous” (internal quotation marks omitted) (quoting 2A N. Singer, Statutes and Statutory Construction § 46.06, at 181–86 (rev. 6th ed. 2000))); see also Caleb Nelson, What Is Textualism?, 91 Va. L. Rev. 347, 355 (2005) (discussing the “presumption against surplusage”). ... Close

Congress itself has always treated the two rules distinctly. It limits the comparability rule to service differentials other than those tied to differences in teacher seniority but has never applied a parallel caveat to the “supplement not supplant” rule. 82 82 See the differences in the wording of the rules as emphasized in supra notes 79–80 and accompanying text. ... Close By reading into the statute a requirement Congress added in one place but left out of another, the CRS violated another established rule of statutory interpretation: that Congress is assumed to have intended “the exclusion of language from one statutory provision that is included in other provisions of the same statute.” 83 83 E.g., Hamdan v. Rumsfeld, 548 U.S. 557, 578 (2006); see Russello v. United States, 464 U.S. 16, 23 (1983) (reasoning Congress must be assumed to have acted “intentionally and purposely in the disparate inclusion or exclusion” (internal quotation marks omitted) (quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972))). ... Close

Congress has perfectly sensible—indeed, compelling—reasons for treating the distribution of services and funds differently in regard to teacher seniority and salaries. Absent the “teacher seniority” caveat, the requirement of comparable teacher services might be thought to depend on the quality of each individual teacher providing services. If that were so, the comparability provision would require districts to rate each teacher to identify how much “value added” each provides and then use the aggregate of all teachers’ “value added” to see if different schools get less or more. Under these circumstances, Congress had three good reasons not to use teacher seniority or salary as a proxy for teacher quality: Doing so is: inaccurate; 84 84 See, e.g., Donald Boyd et al., The Narrowing Gap in New York City Teacher Qualifications and Its Implications for Student Achievement in High-Poverty Schools, 27 J. Pol’y Analysis Mgmt. 793, 808–10 (2008) (finding teacher experience levels are not well correlated with teacher effectiveness as measured by student learning); Steven G. Rivkin et al., Teachers, Schools, and Academic Achievement, 73 Econometrica 417, 419, 449 (2005) (noting “there is little evidence that improvements [in teacher effectiveness] continue after the first three years” and concluding “experience is not significantly related to achievement following the initial years in the profession”). ... Close administratively burdensome, given the many millions of teachers nationwide whom districts would have to rate individually; and demoralizing to teachers, some of whom districts would have to declare less worthy than others. The simple solution is the one the ESEA’s comparability provision has long used: Treat each teacher as equal to all others by defining comparability of services in terms of pupil–teacher ratios and district-wide salary schedules.

The “supplement not supplant” rule is very different. It applies to something classically and inherently fungible: money. Because each dollar actually spent is no different from or more administratively burdensome to track than any other dollar, no matter what the dollar pays for, there is no reason for districts not to count every dollar spent on each of its schools, including dollars spent on teachers—which is exactly what the new Act requires districts to do and to report publicly. 85 85 See 20 U.S.C. § 6311(h)(1)(C)(x) (Supp. III 2015). ... Close Indeed, it is the CRS proposal to treat money spent on teachers differently from money spent on everything else that resurrects all the problems Congress aimed to avoid through the “comparability of services” caveat: Its proposal is inaccurate (treating schools that spend vastly different amounts as if they spend the same), administratively burdensome (requiring the Department to segregate and track different types of dollars), and demeaning (to disadvantaged children on whom the CRS interpretation lets districts spend less).

It is thus entirely consistent for Congress to treat each teacher the same when talking about services and each dollar the same when talking about spending. And it makes perfect sense for the Department to use the spending data that Congress now requires districts to make public—in reports that must treat dollars spent on teachers the same as dollars spent on everything else—when applying the “supplement not supplant” rule.

The most distressing aspect of the CRS’s position is that it leaves the Department with no viable way to determine whether districts intend to supplant local with federal dollars. According to the CRS, the reauthor­ization law neither “establish[es]”—nor, in its analysis, does it allow—“any type of standard or requirement regarding how to demonstrate that a Title I-A school receives all of the state and local funds it would have received in the absence of Title I-A funds.” 86 86 Feder & Skinner, Proposed Regulations Memo, supra note 12, at 4. The CRS Report does not defend the only alternative to the Department’s objective test, under which the Department would inquire into the subjective beliefs and bona fides of thousands of local officials. ... Close In other words, the CRS’s untenable conclusion is that the law forbidding districts to supplant local funds with federal dollars is unenforceable—even though the reauthor­ization law both retains and strengthens the “supplement not supplant” rule.

The CRS’s analysis falls short because it mistakes the statute’s silence on the Department’s proposed test for the test’s prohibition. But as the Supr­eme Court has held in regard to the Education Secretary’s rulemaking authority, “if Congress left a ‘gap’ for the agency to fill—then we must uphold the Secretary’s interpretation as long as it is reasonable.” 87 87 Zuni Pub. Sch. Dist. No. 89 v. Dep’t of Educ., 550 U.S. 81, 89 (2007); see Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 844 (1984) (“[A] court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.”). ... Close And as this Piece has shown, faced at once with congres­sional silence on the applicable “supplanting” standard and with the crippling intractability of possible alternatives, the objective approach taken by the Department’s 2016 proposed regulation is both reasonable and consistent with respected judicial and administrative precedents. 88 88 Tellingly, the CRS Report omitted a third objection to the Department’s proposed regulation: that the regulation violated the ESSA’s prohibition on any prescription of a specific methodology for allocating funds among Title I and non–Title I schools. See Press Release, Senator Lamar Alexander, Administration’s ‘Supplement Not Supplant’ Regulation “Raises Grave Questions About What to Expect from Future Regulations” (May 18, 2016), http://www.alexander.senate.gov/public/index.cfm/pressreleases?ID=44D1CEFF-06D9-40A6-8124-07275D8B319F [http://perma.cc/VAM5-HJD2]. As the CRS evidently con­cluded, steps by the Department to forbid a particular allocative methodology—one that uses federal dollars to supplant local funding—are precisely what the statute’s “supplement not supplant” provision requires and are not the same thing as prescribing any other particular methodology. ... Close

Conclusion

It is well established that children from low-income families need more funds to succeed in schools than their more privileged counter­parts. 89 89 See supra note 22 and accompanying text. ... Close Working from this premise, Congress designed Title I to provide compensatory funds to poor children. Since then, in the face of various attempts to undermine this goal, amendments to Title I have stood by this core principle, including by insisting that districts use Title I funds to supplement, not supplant, local funds for disadvantaged children.

Today, poor children face yet another threat to Title I’s compen­satory purpose: efforts to read the caveat barring the counting of teacher salaries for purposes of “comparability of services” into the rule requiring districts to supplement not supplant local with federal funds”—even though Congress has omitted that caveat from the “supplement not supplant” requirement for fifty years. Relying on this unpersuasive inter­pretation, and exploiting the difficulty of proving a subjective motivation to underspend on Title I schools, some districts seek to exclude from “supplement not supplant” consideration the many millions of dollars they spend on the salaries of their most effective and experienced teachers, who are disproportionately deployed to economically privileged non–Title I schools. If allowed to persist, this stratagem will continue providing many fewer local dollars to Title I schools than to other schools, in direct violation of Title I’s compensatory purpose.

To preserve Title I’s compensatory purpose, the Department of Education in 2016 crafted a reasonable proposed regulation, which used a long-established and well-respected method of identifying actions taken pursuant to an unlawful motivation—in this case, a motivation to supplant local with federal funds. It is unsurprising that the regulation came under fire from partisan constituencies aiming to preserve the local funds districts have been diverting to economically advantaged schools by concentrating their most experienced and effective teachers there and not counting the extra dollars they spend on those teachers. It is surprising, however—and regrettable—that the nonpartisan CRS lent consequential aid and comfort to this effort through poor legal reasoning—reasoning the Obama administration likely considered when abandoning this important proposal.