H.R. 2187 is being considered on the floor on Wednesday, May 13, 2009, likely subject to a structured rule.   This legislation was introduced by Rep. Ben Chandler (D-KY) on April 30, 2009.  The bill was referred to the House Committee on Education and Labor, who held a mark-up of the bill on May 6, 2009, and reported the bill, as amended, by a vote of 31-14.  

EXECUTIVE SUMMARY:  
HR. 2187 requires the Secretary of Education to make grants to States and local educational agencies (LEAs) for the "green" construction, modernization, renovation, or repair of public school facilities.  The bill requires LEAs receiving grants to use a percentage of the funding towards repair and modernization projects that meet Leadership in Energy and Environmental Design (LEED) green building rating standards or any other environmental standards that have jurisdiction over the educational facility.  H.R. 2187 also extends federal Davis-Bacon requirements to all federally financed school construction projects.

House Republican Education and Labor Committee Members have argued that the H.R. 2187 "creates a massive and unproven $40 billion federal school construction program that would nationalize and regulate school construction projects; threaten state, local, and private support for educational infrastructure; jeopardize Congress' ability to reduce federal spending, pushing the country further into debt; dramatically increase the cost of building schools; and siphon resources from longstanding education priorities without improving academic achievement." 

SUMMARY:   
HR. 2187 requires the Secretary of Education to make grants to States and LEAs for the "green" construction, modernization, or repair of public kindergarten, elementary, and secondary educational facilities.

The bill requires that the funds be distributed among the States on the basis of the funds annually provided to LEAs under Title I of the Elementary and Secondary Education Act of 1965 (P.L. 89-10), which is targeted to those areas with high concentrations of children in poverty.  Additionally, the bill reserves one percent of grant funds for assistance to Indian schools.

The bill authorizes $6.4 billion for FY 2010, and such sums for FY 2011-2015, of which, one percent must be used by States to provide technical assistance to LEAs, to develop a plan for a database that includes an inventory of public school facilities in the State and the modernization, renovation, and repair needs of, energy use by, and the "carbon footprint" of such schools, and to create voluntary guidelines for high-performing school buildings.  In order for LEAs to be eligible for the program, they must conduct an independent audit by a third-party entity substantiating the overall condition of the public school facilities in their local area and the need for modernization, renovation, and repair. 

The bill also authorizes $100 million in supplemental funds for each of the Fiscal Years 2011-2015 for public schools in Louisiana, Mississippi, and Alabama damaged by Hurricanes Rita and Katrina.  These supplemental funds will be allocated among the affected States based on the infrastructure damage inflicted on public school facilities in each district impacted by the Gulf Coast hurricanes relative to the total of such infrastructure damage in all districts in those States.

The legislation prohibits LEAs receiving funds under this Act from using funds for maintenance costs or for facilities that are used primarily for events that charge public admission, such as stadiums.  Funds are also not to be used to replace funds otherwise available for school repair and modernization.  The bill does allow the funds to be used for some of the following:

• intensive or semi-intensive green roofs,
• measures designed to reduce or eliminate human exposure to classroom noise and environmental noise pollution;
• modernizations, renovations, or repairs necessary to reduce the consumption of coal, electricity, land, natural gas, oil, or water;
• modernization, renovation, or repair of science and engineering laboratory facilities, libraries, and career and technical education facilities, including those related to energy efficiency and renewable energy, and improvements to building infrastructure to accommodate bicycle and pedestrian access;
• renewable energy generation and heating systems, including solar, photovoltaic, wind, geothermal, or biomass ;
• other modernization, renovation, or repair of public school facilities to:
  • improve teachers' ability to teach and students' ability to learn;
  • ensure the health and safety of students and staff;
  • make them more energy efficient; or
  • reduce class size; and
  • required environmental remediation related to public school modernization, renovation, or repair.

H.R. 2187 extends federal Davis Bacon requirements to all federally financed school construction projects.  Davis Bacon requires all laborers employed by contractors or subcontractors to be paid no less than the localities prevailing wage.  This provision will likely raise the costs of school construction by as much as one-third in some parts of the country, especially in those local communities that have lower costs and are not subject to the prevailing wage structure.

The bill mandates that LEAs receiving grants to use a specific percentage of the funding (increasing from 50 percent in 2010 to 100 percent in 2015) towards repair and modernization projects that meet Leadership in Energy and Environmental Design (LEED) green building rating standards, Energy Star standards, Green Globes, or any other environmental standards that have jurisdiction over the educational facility.  LEED is a national third party certification program that provides environmental design recommendations for the construction of high performance environmentally friendly buildings.  LEED promotes raising energy performance in buildings in the areas of sustainable site development, water savings, energy efficiency, materials selection and indoor environmental quality.

Additionally, the legislation requires annual reports from LEAs to their State detailing their use of grant funds-outlining the projects which received funding, including any expected benefits from any energy savings incurred, improvement in environmental quality, or improved climate teaching and learning-and for the States to then report this information to the Department of Education. The Department of Education must report to Congress on grants made under this Act.

The bill also includes a rule on contracting, whereby each LEA receiving a grant under this Act must ensure that, if the agency carries out modernization, renovation, repair, or construction through a contract, the process for any such contract ensures the maximum number of qualified bidders, including local, small, minority, and women- and veteran-owned businesses, through full and open competition.

The bill contains a "maintenance of effort" provision which requires that States and LEAs spend at least 90 percent of their overall education funding to be eligible for grants under this Act. 

Finally, the bill prohibits funds included in the bill from being used to employ illegal immigrants or distributed to a local educational agency that does not have a policy that requires a criminal background check on all employees of the agency.

In the 110th Congress, the House passed a similar bill, H.R. 3021, on June 4, 2008, by a vote of 250-164.  Member concerns from the 110th Congress remain concerns with H.R. 2187.  

The condition of our nation's local public school facilities is an important issue in States and local communities all across the country.  The federal government has historically had an extremely limited role in directly financing school infrastructure projects and facility improvement programs.   The U.S. Department of Education operates the Impact Aid Construction program, which provides funding to school districts to build and repair schools impacted by the loss of tax revenue because of the presence of military bases, federal lands, and Indian reservations in the area; that is, assistance to children who historically have been a federal responsibility.  The federal government also provides indirect financial support for school construction by providing enhanced credit provisions for construction of charter schools by incentivizing the private sector to make loans to charter schools for facilities.

But, overall, the construction and modernization of public elementary and secondary schools has historically been a State and local responsibility.  For more than 40 years, Congress has deliberately focused its attention and funding on these programs and others that improve student achievement such as fully funding Title I grants to LEAs to help educate low-income and other disadvantaged students and the Individuals with Disabilities Education Act (IDEA), which helps States and school districts provide special education for children with disabilities.

States and local communities enjoy the rights and responsibilities of setting public policy over education, particularly public elementary and secondary education.  The federal government is responsible for only about nine percent of all K-12 spending with States contributing 47 percent of funding to public school systems, followed by local sources at 44 percent.  To this end, according to the School Planning and Management's 2009 School Construction Report, school construction valued at an estimated $19.5 billion was completed in 2008.  Of this amount, $13 billion was spent on the design and construction of new schools (accounting for 66.5 percent of the construction dollars), $3.2 billion (16.6 percent) on additions to existing buildings, and just under $3.3 billion (16.9 percent) on retrofit and modernization of existing structures.  According to the report, the percentage of construction dollars spent on new buildings was the highest since 1979.  During the past seven years, school districts have completed construction projects totaling more than $144 billion.

The CBO estimates that H.R. 2187 would increase discretionary spending by nearly $20 billion over the 2010-2014 period.  CBO further estimates that $32.9 billion will be appropriated over the five year period for the programs established under the bill.

Members have expressed numerous concerns with this legislation, chief among them being the duplicative nature of the funding and the unnecessary mandates for green construction imposed by the bill.  While the recently passed American Recovery and Reinvestment Act did not contain a direct source for school construction, States and LEAs have already been able to access stimulus funding for construction and renovation of their schools.  According to Congressional Budget Office (CBO) estimates, the legislation is projected to cost over $30 billion over the next five years.  Furthermore, the bill undermines current construction efforts at the State and local level, and includes a Davis-Bacon wage requirement.  The bill also authorizes funds to create a database to capture the "carbon footprint" of public schools in the U.S.-a provision with questionable benefits for schoolchildren. 

The creation of a new federal school construction program adds another competing program that will make it increasingly difficult to fulfill funding commitments already in place.

The bill increases project costs through the imposition of Depression-era Davis-Bacon wage mandates.  H.R. 2187 will drive up the cost of school construction projects by requiring compliance with the Davis-Bacon Act, a more than seven decade old law that imposes costly and burdensome wage requirements.  Projects conducted under the requirements of the Davis‐Bacon Act commonly cost between 22-26 percent more when compared to similar projects completed under market conditions.  Moreover, its complicated requirements often prevent small businesses from participating in projects saddled with the law's mandates.

The bill threatens State, local, and private support for educational infrastructure.  Introduction of a new federal program for school construction could have severe unintended consequences, including the possibility that States, local communities, and private sector investors could back away from their responsibility to build and maintain safe and modern schools.  H.R. 2187 represents a massive and unprecedented shift in the education funding roles, with the federal government threatening to usurp responsibility for building schools, arguably one of the most fundamental responsibilities of States and communities.  Furthermore, the bill requires no federal/State match requirement, and includes very little reporting of the specific improvements and why they might be necessary. 

H.R. 2187 would undermine the State and local educational agencies' responsibility for school construction; it would diminish support for programs that serve disadvantaged students; and it would do these things without having a meaningful impact on our educational infrastructure needs.