At LEP Summit, ED Urges a More Cautious Fiscal Approach

In a sign that bridging the cultures of Title I and Title III may be harder than expected, practitioners reacted skeptically to plans by the U.S. Department of Education to bring stricter interpretation and stronger enforcement to the “supplement not supplant” provisions of the English language acquisition program.

The requirement has been a mainstay of Title I compliance since the 1960s, but was written into Title III law comparatively recently, in 2001.

Two new moves by the Education Department (ED) signal a steep learning curve for the Title III program: In August, the department announced that it was moving responsibility for administering the program to the same office that runs Title I. In October, it released new guidance, based on federal monitoring findings, showing a host of ways in which Title III practitioners are running afoul of the supplanting provision.

ED officials acknowledged the transition would not be easy. “It’s tricky to implement,” said Ron Petracca, a staff attorney in ED’s Office of General Counsel. “It appears as if you’re trying to nail Jell-O to a wall. Title I has 40 years, more or less, dealing with supplement not supplant, and it’s still a tricky issue with regard to Title I. With Title III ... we’ve got a little less experience — five or six years at this point — so we’re still in the growth stage.”

The crux of the problem is that federal law requires state and local agencies to conduct a number of activities related to limited English proficient (LEP) students — activities that would be mandated even if Title III didn’t exist — at the same time that Title III has one of the more restrictive supplanting provisions in education.

It is telling that at the end of one session at the October summit of ED’s LEP Partnership in Washington, D.C., the audience erupted in laughter and applause when a reporter told ED officials, “It would be helpful to me if you could provide some examples of where you envision the Title III money being spent.” Throughout the two-day conference, the typical answer from the department seemed to be, “Not as many places as you thought.” Many in attendance expressed apprehension that they would have to scrap, or at least seriously reconfigure, activities they had previously paid for with Title III funds.

Lau and the Law

Like most formula grant programs under No Child Left Behind, Title III prohibits the use of grant funds to pay for 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 cannot be paid for with Title III funds. The prohibition against supplanting is further underscored by the 1974 Supreme Court decision in Lau v. Nichols, which said that states and school districts must provide core language instructional services to ensure LEP students have equal access to education. Since these services are required regardless of whether states and school districts receive federal funds, any use of federal funds to provide such services would constitute supplanting.

To determine whether or not they are supplanting, Petracca said, officials should ask themselves, “What would I as a school district have to do with regard to English language learners if Title III didn’t exist?” Once that is answered, he said, “If you’ve figured out where that floor is ... you can start to go above it” with Title III funds.

That way of thinking is less expansive than many Title III practitioners are used to. It will force districts and schools to undergo a more sophisticated apportionment of resources to make sure Title III funds are being spent only on activities that are beyond what is already required under state and federal law. The hard part of that equation is that these activities are seldom distinct: Some teachers might provide instruction in math to LEP students — an activity already required under law and hence, not allowed to be paid for with Title III funds — but might provide special resources to those same students that could be paid for out of Title III.

Several audience members suggested that this kind of parsing made it more difficult to fulfill Title III’s mission of providing “high quality instruction” to LEP students. One questioner asked ED officials if districts that use LEP pull-out programs would have to eliminate references to content-based instruction in order to pay for services with Title III funds. Another said it would provide districts with a disincentive to use those funds: “In a district, you are not going to sit down and try to figure out this complicated human resources allocation on the funding, especially if you are going to get dinged later [by federal monitors].”

Monitoring

ED officials won’t begin monitoring compliance on the new guidance until the start of the next cycle, in October 2009, but Zollie Stevenson, director of ED’s office of Student Achievement and School Accountability, told the crowd, “We’re not going to say you don’t have to conform” with the provisions until then.

When that accountability moment arrives, ED officials promised not to use a one-size-fits-all approach. “You really have to get down into the details,” said Petracca. “We’re certainly going to enforce the non-supplanting requirement, but we’re going to take a reasonable approach, looking at the circumstances of each” district.

Judging by the questions at the summit, assessment is a particular source of frustration in the arena of Title III supplanting. According to the October guidance, annual tests of English language proficiency cannot be funded through Title III, since they are required under Title I. However, Title III dollars can be used to better align the test with the state’s English language proficiency standards.

The department also suggested that Section 9210 of the law allows the state to consolidate state administrative funds from various NCLB programs to fund the development of such tests. Section 9210(f) specifically includes development of state standards and assessments as an eligible use for those consolidated funds, so ED said that it “believes” that Title I state administrative funds can be used for this purpose “either alone or consolidated with other [NCLB] administrative funds.”

At the LEP summit, an ED official said the state can give school districts Section 6111 funding to pay for the local administration of ELP tests. Section 6111 provides approximately $400 million annually to support development and, in some cases, administration of NCLB-required state and local tests.

Assessment Confusion

Many in attendance expressed confusion on how to make the distinctions between test development and test administration that are required to track and finance expenditures from Sections 9210 and 6111 funds. One audience member said that many questions on ELP exams are field-tested during the administration of those tests. He explained that one-third to one-half of the questions on those tests are replaced in that fashion each year.

“You probably have to find some way to apportion the cost of developing/field-testing new items versus administrating the annual LEP assessment,” said Kay Rigling, an ED attorney. “I don’t think it has to be incredibly complicated.”

A large number of state and local officials acknowledged they had intuitively accepted that assessments of English language proficiency (ELP) could be paid for with funds from the Title III program geared toward English language proficiency. One audience member sarcastically posed the rhetorical question, “Why would we use Title III funds for ELP assessments? It’s just silly.”

Steven Ross, Nevada’s Title III director and president of the National Association of State Title III directors, said the restriction on the use of Title III funds for testing would hurt states and districts that are already struggling financially. “We cannot supplant what we don’t have,” he said.

“We have not told all our districts that they’re going to have to come up with all this money because they’re not allowed to use Title III money for testing,” he added. “They’re going to be quite upset, especially when they’re laying off people already because funding is short.”

Other Examples

In terms of testing, the general rule of thumb, Rigling said, is to ask “whether the test is being used or improved to meet the Title I requirement [for English language proficiency], or whether it is being enhanced to meet Title III requirements that are over and above the Title I requirement.”

ED officials applied that rule to supplement-not-supplant questions regarding a host of other activities, including:

• School improvement.What about Title I school improvement funds under 103(a) and 103(g)? May they be used for Title III? “The bottom line,” said Susan Wilhelm, an ED program analyst, is that these funds “can only be used for schools that have been identified for improvement under Title I.” She indicated that “it may be possible” to use such funding to help schools and districts make their “annual measurable achievement objectives” under Title III, but that such decisions would be made on a “case-by-case basis.”
• Teacher salaries. According to Petracca, expenditures for Title III teacher salaries “would generally not be an appropriate use of funds.” However, there are exceptions. He used the example of a teacher with expertise in the instruction of LEP students who becomes a resource teacher. “Those duties go above and beyond their regular teaching obligation, and those are things are you not required to do under Lau, and for that reason it’s a supplemental service,” he said.
• Parental involvement. A school might have an outreach activity for all parents paid for with Title I funds, said Wilhelm. But it could use Title III funds “on top of that” to make sure there are specific parts of the activity aimed directly at the parents of LEP students.

The department has just begun joint Title I-Title III monitoring of states, and will have opportunities to answer other questions and clarify its policies before it starts enforcing the new guidance during monitoring visits next October. “What we need to do at the federal level and what you need to probably do at the state level is to make sure that we’re interpreting similar provisions similarly, or make the appropriate distinctions where there are distinctions,” said Rigling.

— By Andrew Brownstein