Document Type

Working Paper

Publication Date



Education Law | Law | Law and Society


Center for Public Research and Leadership


Evidence compellingly demonstrates – as Congress famously recognized in Title I of the Elementary and Secondary Education Act of 1965 (ESEA) – that, in order to succeed in school, low-income children require more educational resources than other students. Yet, a half century later, many school districts continue to spend dramatically less on their high-poverty schools than on those more privileged. Districts do this by permitting their most experienced and highly salaried teachers to opt into schools with more privileged students, then failing to count teacher salaries in school funding comparisons, disguising the fact that Title I schools with less experienced, lower salaried teachers spend less on instruction than schools with more advantaged populations.

To remedy this, the Department recently proposed a regulation requiring districts to account for all aspects of local funding in demonstrating compliance with the longstanding requirement that they use Title I funds to supplement and not to supplant local funds. Not surprisingly, the regulation has met stiff resistance from actors with partisan interests in maintaining the status quo. More troubling, the non-partisan Congressional Research Service (“CRS”) has added a seemingly show-stopping legal objection: that the proposed regulation so clearly contravenes the ESEA that it might not deserve Chevron deference.

This paper argues that the CRS Report is clearly wrong. The Education Department has crafted a reasonable regulation that adopts a long-established and well-respected strategy for identifying actions taken pursuant to an unlawful motive. Although partisans may object to making districts choose between using dollars currently spent on more privileged children to more adequately fund low-income schools, or forsaking federal dollars, that is the choice to which the law in existence for decades puts districts.