USED Releases Final Maintenance of Equity Rule

Earlier this week, USED released its final rule for the American Rescue Plan’s (ARP) K12 maintenance of equity provision, part of the Elementary and Secondary Emergency Relief (ESSER) Fund.

Background: AASA opposes the maintenance of equity provision. It is a rinse/wash/repeat of the comparability regulations in the 2016 negotiated rulemaking of the Every Student Succeeds Act. The MoEquity provision was inserted to the ARP ESSER language at the very last minute with zero effort made to solicit feedback from the state and local education leader who would have to implement the provision. AASA engaged in subsequent direct advocacy with CCSSO to get significant changes (including those outlined here) made to the law to make it less problematic; that all said, less bad doesn’t make it good; AASA supports ensuring that this provision—intended for only two years under ESSER—dies after ESSER and is not carried into future legislation.

So what’s in the final rule?  

• The provision includes separate requirements for state and local education agencies. Our advocacy has focused on the requirements for LEAs; one of the important changes is that in addition to the limits established in the statute (the provision only applies to districts enrolling more than 1,000 kids, with more than one building (or building per grade span), USED was forces to further clarify that the provision would only apply to those LEAs facing a net cut in state/local dollars. USED had originally intended the provision to apply to LEAs, regardless of funding level. The final rule clarifies that SEAs need to ensure districts are not making disproportionate budget and staffing cuts at their highest-need schools.
• The rule extends the timeline by which states must publish information on the LEAs in their state that are exempt from the requirement.
• The deadline for FY22 reporting remains unchanged: December 31, 2022. Because states may collect/finalize per-pupil expenditure data on varying timelines, states are able to pursue a reasonable extension beyond Dec 31.
• The timing of this rule and data requirement will burden LEA staff at the end of the school year, who will find themselves facing an additional reporting requirement. 
• Summary of the Final Regulatory Requirements: By July 8 of this year (for FY 2022) and by November 1, 2022 (for FY 2023), each SEA must post on its website:  
• • The identity of each of its LEAs exempt from the LEA-to-school MOEquity requirements, and why the LEA is exempt.
  • For each LEA that is not exempted, a listing of that agency’s high-poverty schools .
  • An explanation of how the SEA will ensure LEAs that have to comply with MoEquity are protecting their high-poverty schools from disproportionate reductions in funding, in a manner that ensures  the LEAs can make necessary funding adjustments in a timely manner.
  • By December 31 of each applicable school year, each SEA must post the following information for each non-exempted LEA:
  • The per-pupil funding for each high-poverty school for that fiscal year
  • The per-pupil funding in the aggregate for all schools in the LEA, on a districtwide basis or by grade span
  • The per-pupil number of full-time equivalent (FTE) staff for each high-poverty school