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Evidence compellingly demonstrates – as Congress famously recognized in Title I of the Elementary and Secondary Education Act of 1965 (ESEA) – that children from economically disadvantaged backgrounds require more educational resources than other students. Yet, a half century later, many school districts still spend less money on high-poverty schools than on more privileged schools. 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. 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.

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. 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; then (2) disguising how much less Title I schools spend on instruction than more advantaged schools by omitting teacher salaries from school-funding comparisons.

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. The civil rights community supported the proposal, but teacher unions and congressional Republicans vehemently opposed it because it disrupts funding patterns favoring non-Title I schools that benefit their constituents.


Civil Rights and Discrimination | Education Law | Law | Law and Society


This article originally appeared in 117 Colum. L. Rev. Online 36 (2017). Reprinted by permission.