Washington, Oct. 7 — Findings from federal monitoring visits to states and local school districts have prompted the U.S. Department of Education to issue nonregulatory guidance on the "supplement not supplant" provisions of the Title III English language acquisition program.

In addition, the new guidance answers some questions received by the department about allowable expenditures of both Title III and Title I funds "on the development and administration of English language proficiency (ELP) assessments."

Title III of No Child Left Behind (NCLB) is the largest federal grant program targeted solely to limited English proficient (LEP) children, but Title I also serves many LEP children and establishes the basic testing framework for such children. In recognition of the programs' overlap, the Education Department (ED) recently moved responsibility for administering Title III to the same office that administers Title I.

The guidance was issued Oct. 2 to state Title I and Title III directors as a joint document by the Office of Elementary and Secondary Education and the Office of English Language Acquisition.

Supplement Not Supplant

The need for the guidance arises from the unusually broad supplement-not-supplant provisions governing Title III. Like most formula grant programs under NCLB, Title III prohibits the use of grant funds to fund activities that ordinarily would have to be provided through state and local funds. But Title III goes one step farther and forbids supplanting of other federal funds, such as dollars granted under Title I. This means that services for LEP students that are mandated by Title I may not be paid for with Title III funds.

The prohibition against supplanting state and local funds extends to services for English language learners that are mandated by law. The U.S. Supreme Court concluded in Lau v. Nichols, 414 U.S. 563 (1974), that the Civil Rights Act of 1964 charges state and local educational agencies (SEAs and LEAs) with providing core language instructional services to ensure LEP students have equal access to education. Since the law requires that SEAs and LEAs provide these services regardless of whether they receive federal funds, any use of federal funds to provide these already mandated services would be supplanting.

The department's guidance puts forth interpretations governing a host of specific situations:

* State-Level Title III Activities — According to ED, some states may have considered Title III state-level set-asides for training, planning and evaluation, technical assistance and recognition activities as exempt from the Title III supplement-not-supplant provision. This interpretation is wrong, however; like all other Title III funds, these are subject to the supplement-not-supplant requirement.

* Supplanting and Provision of Language Instruction Educational Programs — Use of Title III funds to provide the core language instructional programs required under civil rights laws is supplanting. The guidance also addresses the special situation of Title I schoolwide programs, in which all state, local and federal funds are blended and the source of funds for any specific activity is, by definition, untraceable. In this case, the normal schoolwide supplanting provision applies — that is, the schoolwide program must receive the same amount of state and local funds it would other need to operate in the absence of federal funds.

* Reducing State and Local Funding to LEAs Based on the Amount of Title III Funds They Are Eligible to Receive — This not only constitutes supplanting, it also violates a separate provision of NCLB that prohibits states from offsetting state aid based on the amount of federal aid a district receives.

Likewise, any district or school that reduces the level of state or local funding for core language instruction based on its receipt of Title III funds violates the supplanting requirement.

Evidently, ED believes this latter violation is widespread. "[T]he Department has encountered numerous Title III subgrantees that, for budgetary reasons, use Title III funds to pay the salaries of their English-as-a-second language teachers," according to the guidance. "Typically, ESL teachers provide the core language instruction educational program services and their salaries are the responsibility of States and LEAs, not the Federal Government."

* Developing and Administering ELP Assessments — Title I requires SEAs and LEAs to develop and administer annual assessments of English language proficiency. Therefore, Title III funds cannot be used for these purposes, except to the extent that the funds are used to meet unique provisions of Title III law. An allowable activity in this instance would be using Title III dollars to better align the Title I-required ELP test with state's ELP standards.

The department offers a novel interpretation of some NCLB provisions that arguably allow use of Title I funds to fund ELP assessments. Specifically, Section 9210 allows the state to consolidate state administrative funds from various NCLB programs to administer those programs, and it also allows the consolidated funds to be used for a broader array of state leadership activities designed to support the programs. Section 9210(f) specifically includes development of state standards and assessments as an eligible use for those consolidated funds, so ED says that it "believes" that Title I state administrative funds can be used for this purpose "either alone or consolidated with other [NCLB] administrative funds."

More conventionally, the department points out that NCLB Section 6111 provides additional grants to states — $408 million in school year 2008-09 — to, among other things, develop additional state assessments required by NCLB, "which includes annual ELP assessments." After all required assessments are developed, a state's grant may be used to help administer the assessments.

Finally, ED notes that it has awarded competitive enhanced assessment grants under Section 6112 to state consortia to develop ELP assessments in compliance with Title III. This program was funded at $8.7 million in school year 2008-09.

* Screening and Placement Assessments for LEP Students — Because civil rights laws require SEAs and LEAs to identify students who may need language education services, tests designed to screen and place LEP students may not be funded with either Title III or Title I funds.

Non-Binding — In Theory

At its name implies, nonregulatory guidance is, strictly speaking, nonbinding, but grantees are generally well-advised to follow it. The department makes this crystal-clear in the new Title III guidance. According to the new document, "the department strongly urges each state to ensure that both its use of Title III state activity funds and its subgrantees' use of Title III funds at the local level are consistent with this guidance."

Backing up this strong language is a promise that the guidance will be incorporated into the department's Title III monitoring protocols and its guidance for Single Audit Act auditors, for Title III grants that will be awarded in July 2009.

The new guidance may be accessed at http://www.thompson.com/images/thompson/nclb/titleiii/title-iii-sns-oct-2-2008.pdf

For other Title III guidance, visit www.NCLBonline.com and click on "Laws, Regulations and Guidance."