Last week, Nora Gordon focused on one of the more technical aspects of the pending Senate bill to reauthorize the Elementary and Secondary Education Act: the supplement not supplant standard. The standard requires that Title I funds for low income students only be used to supplement the resources that state and local entities were already providing those students, not supplant them. Gordon summarized the new revisions and her sense of their importance:

The larger legacy of the Every Child Achieves Act may well be how it cleans up supplement not supplant, a little discussed and often misunderstood fiscal rule with a big impact on how schools actually spend the $14 billion of NCLB Title I funds. The proposed legislation makes two important changes: (1) it requires districts to show they are distributing their state and local funds across schools without regard to the federal funds that each school receives; and (2) it increases local autonomy over how to spend Title I funds.

The problem she says is that:

Under current law, those Title I schools that do not operate school-wide programs must demonstrate that every single thing they buy with Title I funds helps only the neediest students, and would not be purchased with other funds absent the federal aid. In my research, I’ve found this rule often has the unintended consequence of preventing districts from spending money on the things that might help those students most, pushing schools to work around the edges of their central instructional mission. They buy “interventionists” instead of teachers, or “supplemental” curricular materials rather than “core” ones, and are discouraged from investing Title I funds in technology.

Gordon is correct that the supplement not supplant has been a disaster.  As I wrote in The Congressional Failure to Enforce Equal Protection Through the Elementary and Secondary Education Act, 90 B.U. L. Rev. 313 (2010),

Although well meaning, the prohibition on supplanting has not met its goal. In fact, in a recent report, the GAO recommended eliminating the supplement-not-supplant standard altogether. The GAO concluded that the standard has become almost impossible to enforce. Enforcing the standard requires too much speculation about what a school district would have spent on education and also requires extremely detailed tracking of spending in thousands of school districts. In short, the prohibition on supplanting funds relies on unreliable projections and unusually labor-intensive work. Possibly for these reasons, the Department of Education has effectively stopped attempting to enforce the standard, treating it as a non-priority. The standard, however, remains the law and a measure that well-intentioned schools may expend effort attempting to meet.

But at this point, the question is not whether we should discard the current supplement not supplant rule.  The question is what we should replace it with.  It is far from clear that moving toward more district autonomy (so long as they provide data) fixes the funding inequities and inept state and local funding effort that Congress needed to tackle with supplement not supplant and other related standards.

The new fix in the pending bill is a compromise that dodges that fundamental problems, and has the potential to incentivize backsliding by state and local districts unless other new protections are added.  Yes, the new bill would provide more information on funding inequality from states so that we can see what they are doing.  But that data is generally available anyway.  The challenge is that data’s complexity, not its unavailability.  So the new freedom for states looks like a give away that runs the risk that states will engage in the very behavior it formerly sought to prohibit (even if Congress and the Department of Education never did a good job of prohibiting it).  Under the proposed new approach, federal money could even more easily become part of districts’ general operating budget, which would allow the money to be seriously diluted or state and local dollars to decrease when federal dollars are available to fill the gap.

So what should we do in reauthorizing the Elementary and Secondary Education Act?  I laid out the solutions in painstaking detail in the article noted above.  But in short, the Elementary and Secondary Act should 1) demand comparability of resources both within and between districts and 2) distribute federal funds to incentivize states to meet student need (get states to progressively fund high poverty schools), and 3) incentivize integration and punish segregation.  The first two proposal are intuitive, but the third is also necessary because the existence of segregation provides the platform for inequality and drives up the cost of delivering an equitable education in high poverty schools.  Unfortunately, there are longstanding headwinds against these solutions, which explains why the Senate’s proposed supplement not supplant approach does so little.

Get my full explanation of how to fix ESEA here.

This post originally appeared on the Law Professor Blogs Network and has been republished with permission.