Leg. Session 2003 - Act 1467 Rules And Regs.

.Transcript of Ray Simon’s Explanation

of Act 1467 (The Omnibus Bill)

To The State Board, June 9, 03 

         Chairman, I am going to summarize Action Items 2, 3 & 5.because 2, 3 & 5 represent rules and regulations that implement the Omnibus Quality Education Act of  2003.  We have talked about that in some work sessions in the past.  This is the bill, as you know, that passed just this last session that restored to the Board  much of the authority it once had, but not longer had, to step into failing schools more quickly – both academically and fiscally failing schools, or  schools that while they may not be failing would  be exhibiting signs of eventual  failure if intervention were not approved.  So it is a very sweeping act .  In order to implement that, we felt we needed  to get rules and regulations to you as quickly as possible. I think this morning you received maybe a  revised  set of rules and regs. There was not much revision, but I will point out the areas that were revised that are different from the original packet. [My note:  When did the Board have this authority  in the past power and under what law?]

I will not spend a lot of time, but I do want to point out some of the major points in each of the rules and regs. as we go through.  So in Action Item 2, page 1, I think it is important to talk about why we have this particular set of rules -  two of the major   reasonsNumber 1, it develops a single  comprehensive testing, assessment,  and accountability assessment  - a single system -to replace a multiple system which we had in the past.  On page 2, section 2, 103, I think this is really important - to insure that all  students in the public schools of  Arkansas have equal opportunity to demonstrate grade level - academic proficiency.  I don’t think we can guarantee, we can’t guarantee  that every student will be proficient, but we can guarantee that they have the opportunity; that’s our job.  These rules and regulations will  take a large step toward  making that happen. 

            I will just go through a couple of points here.  If  you  will turn to page 7, Section 5. 05.2 and 5.05.3   Those are two areas that were added  to the ones you received earlier.  There were two provisions of the most recent session that we were not able to get in. 5.05.3 should say Act 603 of  2003 not 2002.  Each of these deal with required professional development dealing with parental involvement.  We failed to get those in the original version.

            On the next page, page 8,  this summarizes, begins to summarize  the student  testing system that we are recommending with these rules and regs.  It is a very comprehensive testing – assessment system.  I am now on page 8.  Section 6.  I want to just call to mind 6.01  which talks about kindergarten beginning in 2004-5 requiring all school districts to administer a uniform school readiness-screening instrument to each kindergarten student.  This is work that was already ongoing from the  2001 session, and we put it in here specifically to say this is now going to be a standard.  All districts will be required to use it.

            The next session 6.02 just below it.  For grades 1 & 2 we shall select an developmentally appropriate assessment to be administered to students in 1 & 2 in Reading and Math .  We have  to be cautious with early grades. Children's development is a little different so the type of  instrument we select must be a little different.  We have not selected these instruments at this time, but we will be returning back to you at a later time to be more specific – the specific instrument that we would ask that you adopt.  In these rules and regs. we simply say we will provide a developmentally appropriate assessment.

            6.03 Here is where we begin to implement requirements of No Child Left Behind.  That is, we will have a criterion referenced test in all grades 3 through 8 and in high school end-of-course. 

            The last two sections on page 10.  Again,  No Child Left Behind requires that all students enrolled in state testing grades shall be accounted for.  All students must be accounted for in this testing system . NCLB mandates that 95% of  the students will be tested in the testing systemWe  understand why there may a child here or there  that might not be able to complete the test, but the  ability of  the school to purposely  not test students and finding convenient reasons why students in large numbers  aren't tested will no longer be acceptable.

            Also in the next section there in the next  paragraph,  the Technical Advisory Committee which we already have in place will  advise the Department in all technical aspects of  the assessment system.  It is very vital that we support our teachers and our students with tests that are defensible, both legally  and statistically.    To help us do that we have this Technical Advisory  Committee that constantly looks at these tests,  looks at feedback from the field when we give tests,  and teachers and administrators tell us things they believe need to be changed; and we always make those changes before we recommend them to you.     As a result of  this committee, we have made a number of  adjustments to make them more practical,  more user friendly, if  you will,  and  more acceptable to teachers and students.   [Simon  did not mention here that “the Director of Education shall select the Technical Advisory Committee composed of nationally-recognized testing experts and psychometricians” according to the written regulations  page 11 of  ACTAAP attachment,  Looks like this would rule out the legislature’s ability to bring in testing experts to evaluate the tests]

            6.04 next page 11,  we recommended here a norm referenced test to continue to be administered in grade 5 & 9 in mathematics and reading. [My note:  Why such minimal testing by a nationally normed test, 5 & 9 and only in mathematics and reading, and it does not name the nationally normed test.]  The law read under Section 10 (on my copy of the law, page 8, line 34)  “The department shall test public school students in a manner and with a nationally norm-referenced test to be selected by the State Board of Education at the middle level and high school grades.”  Shouldn’t testing be done at the very minimum with a basic battery test in a grade in elementary, middle and high school in the same grades as the benchmark  as a comparison for the benchmark, as back up to the validity or lack of validity of these tests?  What does “in a manner” mean?  It was underlined in the bill.] 

            Section 6.05.  mentions the National Assessment of Educational Progress     It has been a law in our state for a number of years that our school participate in NAEP.  It is now a requirement under  No Child Left Behind  that in schools that receive Title I funds that if they do not participate in NAEP their funds can  be stopped.  This basically put in a new reg. that  any  school selected by the NAEP sample must participate. 

  On Page 14 there is one paragraph that has been added since you received your packets earlier - 7.05.  It is the requirement that has been in law a number of  years that we are not sure a number of  schools realize it is there, and we felt it important to get it in here and that is that the results of end-of-course assessments shall become a part of each student’s transcript or permanent record.

Refer you to page 17 Section. There is a section in your original bill that we removed.  On that same page I  want  to point out the new definition of academically Distressed district. It is in Section 10.01  A school district for  which   75% or more of  the  students completing state’s  assessments perform at the below basic level.  That is our new definition of academically distressed district. 

Now on next page, page 18, Section 11,  this is extremely important.  This is part of  the Boards' reestablishment of  your  authority to  move more quickly on districts in academic distress.  Each of those three sections under 11, I think it is important to point out , that a district identified in academic distress shall have no more than two consecutive school years beginning on July 1 following the date of notice of identification to be removed from academic distress status.

The second statement is really important for you.  The Board MAY [Simon stressed the word May] AT ANY TIME  take enforcement action on any  district in academic distress.

Then 11.03  If a public school district fails to be removed from distress with two (2) year time period, the Board SHALL [Simon stressed Shall] annex, consolidate or reconstitute the district.  MAY  the first year,  and  you SHALL the second.  Now reconstitution takes a number specified in here so it doesn’t mean consolidation or annexation, but it means reconstitution; and there is this,  and there is a disclaimer that at your discretion - unless the Board, at its discretion, issues a written finding supported by a majority of the board, explaining in detail that the school district could not remove itself from academic distress during the relevant time period due to impossibility caused by external forces beyond the school district’s control.  This is new territory, and we wanted to leave some option for the Board in certain circumstances that you might not want to act that quickly.  Barring an extreme situation, you are required how to act within two years.

Page 19 talks about what you can do - what you MAY  do the first year and what you SHALL  do after two years.  These are your options.  

Require the superintendents to relinquish authority, suspend or remove some or all of the current board of directors – operate without a local school board,  (See actual Rules & Regs. for this, p. 19 last paragraph) waive Arkansas law with exception of Teacher Fair Dismissal and Public school Employee Fair Hearing Act;  require the annexation, consolidation, or reconstitution or take any other necessary and proper action so you still have a range of options.  [Note:  What does Waive the application of  Arkansas law mean here?]

I basically tried to highlight for you the major portions of  this bill.

In addition this particular set of rules and regs . No. 3 & No 5 on your agenda, when we allude to it, we don’t specifically say,  but we are asking you also to repeal five Rules and Regulations.  We are asking  you to repeal the existing the rules;  we have completely rewritten them.  With that Madam Chairman, I will stop and see if you have any questions. 

          Chairman of theBoard:  Do we have some questions?

Board Member Luke Gordy:  Madam Chairman and Mr. Simon, several months ago we agreed as a Board to require all the administrators of the state of Arkansas required professional development in data disaggregation and statistical analysis as it relates to ACTAAP and instructional leadership, educational instructional leadership.   I want to make sure that is part of Section 5 in these rules and regs. before they are approved as final 

Simon:  We failed to get that in here, and the Board did ask us to do that and the staff looked over that; and we will get that in here before these go out for public comment.

Board Member Calvin King:   Two questions.  One, back on 19 where the Board has authority and the Board shall have the possible authority .  Now, it has the authority; but does that mean the Board shall necessarily take those actions?  I am assuming that is based on recommendations of the administration.

Simon:  The law is very specific.  It says you MAY  take this action the first year that a school is in fiscal or academic distress.  You SHALL  take one of these actions after two years unless there is some extraordinary circumstances.  I will refer you back to page 15, Section 11.03. There you re required to annex consolidate, or reconstitute the district unless there is an impossibility caused by external forces beyond the district’s control.  Now annex, consolidate, or reconstitute brings you back over to Section 14  and those are some of your options, primarily what reconstitution is,  remove the superintendent , remove the Board and then there is a CATCH ALL.  TAKE ANY OTHER ACTION. (Emphasis added) 

I think there has been some misunderstanding that the Board must consolidate or annex a school after two years and that is not trueYou don’t have to do that, but you must do one of these things after two years.

Board Member Calvin King – We have the authority on one hand and must act on the other hand?

Simon:  Yes

Board Member Calvin King:  What are the new rules and regulations.  How does it affect those who are presently  on the distress list.  Is it a grandfather situation where automatically if  they are on the distress list for two years or so that then the board shall or would have the immediate responsibility regarding those schools?

Simon: I think that the best answer again is that we are in unchartered territory here because we are in transition from a system where the definition of distress was one thing and the new system, the best we understand it now, nobody gets off the hook, but the two years starts when you must act – this coming year would be year one based on new information of the new system.  However, they have been placed here under a previous set of conditions; they are under distress; the Board MAY act in Year One.  But you are required to act, the clock wouldn’t start ticking on the required to act until next year, next year being year one based on new criteria.  In a way the clock starts ticking all over again for them in terms of the Board’s mandatory actions, but you don’t get relieved for your optional actions.

Simon : (Refers to his staff and says, “help me make sure I don’t mess up here”) The Adequate Yearly Progress Chart [AYP} on page 15 where are we starting on that.  It is calculated on Year 01-02.  The starting points have already been calculated because we had to submit to the federal government where the starting points were.  That is consistent all over the state.  If  you hve a K-5 school, you have a certain starting points.  And if you have a 6-8, you have a certain starting point.   Now the starting point for the individual  school districts, for individual schools will be calculated based on three years worth of test data, 9-200; 2000, 2000-2001; and 2001- 2002, their  average.  That becomes the individual school’s starting point.  Then based upon this past year’s test that have just been completed, the Spring of  2003 benchmark tests – when those scores get back this summer, that becomes the first AYP so -  is that right, isn’t it - he refers to someone else on the staff and lets them finish this section.  Before they begin, he says with laughter following , “It is in progress now; that is the short answer.”  [If  Simon can’t understand it, then who is supposed to be able to?].

Someone from ADE Staff that Simon called on for help:  The chart you have before you follows the federal guidelines as to how to calculate your starting point.  When you look at starting point 01-02 that is information that is currently being calculated.  Any school not meeting the starting point will be considered not technically making AYP, but that is Year One in the process.  Then those schools which will need to reach the Year One target for their second year.  If  they do not meet this Year One target, then they will be considered to be in Year One of  School Improvement – two consecutive years.

Board Member:   In other words  we are not starting, lets look at K-5 Literacy, we are not starting at 43.16; we are starting back at 38.8.  That was my concern because that was quite a gap of several points.

Simon   What gets confusing about this is you have to be two years to get in Year One so I didn’t do a very good job explaining it. 

Chairman:  Are there other questions?  Any comments.

Action 9.3 is another set of  Rules and Regs page A 3, Section 4 the law has expanded considerably the definition of criteria that may be used to place a district in fiscal distress.  I would just point out to you: a declining balance determined to jeopardize the fiscal integrity of a school district; or an act or violation determined to jeopardize the fiscal integrity of a school district.  A list of those is given: [My note A-L – an extensive list]  This is not meant to be exhaustive but you get an idea;  We are talking about material failures.  This comes from the law so again there can be something going on in the district that any prudent person recognizes is a real problem in terms of fiscal integrity; this gives the Board more latitude to step in there more quickly.  It doesn’t have to be as narrowly defined as it was earlier.

Then 4.01.3  Any other fiscal condition of a school district deemed to have  detrimental negative impact.  Then it goes on, page 6, similar to the academic distress.  No district shall be allowed to remain in fiscal distress for more than two (2) consecutive years and then on section 9, same page 6, it talks about the Department’s Actions: Require the superintendent to relinquish authority, appoint an individual in place of the superintendent; call for temporary suspension of the local school board, operate without a local board; place the administration of the school over to the former board or to a newly elected board, or take any other action. 

On page 7, 10.03 The State Board shall again consolidate, annex, or reconstitute within two years so you MAY THE FIRST YEAR,  and you SHALL  after two years but then you are given a number of  actions for your options.  That is pretty much that.

Chairman:  What is the desire of  the Board?

Board Member Peggy Jeffries:  I understand the reasoning behind all this, but I just wonder if there is any other precedent where an elected board can be removed or overridden in any other area of  the state.  Is this the first?  Will this be challenged legally?

Simon referred to Smith the attorney on this:

Smith:  There is a cause of action  by which the attorney general can challenge board members based on improper conduct and criminal activity.  No doubt someone will challenge some of these issues. [He said a couple more things but not distinct enough to understand from tape.]

Action 5 – back to Simon

Action 5  - New sets of rules and regs dealing with standards for accreditation.  These standards have been around  since mid 80’s and were revised by this board in 2000. What we have done is to incorporate these provisions within the Omnibus bill – to bring these up to date.  Let me try to do this like the last two and point out some highlights.  First page section 2 Purposes  - three purposes here. One is to set forth  the standards,  second is to describe the process of  how public schools or districts will be cited and passed into probationary status for failure to meet the standards, and the third to set forth the enforcement actions that may be applied to schools or districts.  I also want to point out that much of what you see here, in fact a lot of what you see here, is current policy, current practice.. One commitment we made to the legislature and the school districts back in the session was that we would not radically  change; we would not change the standards dealing with number of course requirements required for graduation or for the students to take to graduate to be offered – for the school to offer for the students to take.  We have not done that.  We have remained at 38 units to be offered and 21 units to be taken.  What we have done though is try to explain a little further which of these particular standards are  probationary standards and which are cited standards. I just want to make sure we understand the difference. This is not a new concept;  we are just trying to get it consistent.

The definitions are on the page there.   Definition 3.04 the term “probationary “ refers to a standard at the school or school district level where a school or school district fails to meet any standard defined as probationary violation or fails to correct by the specified deadline a violation for which it acquired cited status

A cite is failure to meet the standard but it less significant in nature. While the standards that have cites in them are important, we have given two categories of cite and probation - probation being a  more rigorous standard and more important standard in terms of  immediate correction.  And then we will talk a little about that later. 

On next page under cited status, Section 4.    Again a school or school district can receive a citation.   No school or school district shall maintain a cited status for any particular standard for a time period greater than two consecutive years.  There is an otherwise section later on.  Any school or school district that fails to remedy itself from cited status for a violation for a particular standard after two years shall be cited for probation. In other words, if a district has a cited standard, and they keep that cite for two years, it becomes a probation.  If they remove it, then it goes away, and they start over.

 Under Section 5, under Probation 5.01  and 5.02 . ((5.01) has to do with school disttrict and ; 5.02 has to do with school, and 5.01 and 5.02 read the same way. If a school district. fails to meet any standard  defined as  or is in cited status for the same violation for two years it is referenced as being probationary. 

Section 5.04   Any school or school district that fails to remedy itself from probationary status after the two (2) year time period will be subject to mandates of Act 1467 of 2003. 

What we are saying there, and again it is explained later, that if a district has probation in any area for two consecutive years, then that is when the clock starts ticking.  It is not going to be possible for a district to be in probation for example in Standard 1 this year, remove it, and have probation Standard 2 next year, remove it and go to Standard 3 – Any probation anywhere for two consecutive years, we ask the Board to step in.

Over on page 7.   I just want to point out again that we will not change anything for grades 9 through 12.  The courses marked with an asterisk may be offered every other year and a total offering required of  38 units. That is not a change.  It is current practice.

Page 12 – Just to point out  under graduation requirements at least a total of 21 units  in grades 9-12 is required for graduation.  It is not changed.

Page 17.  – Section 23 Accreditation.  Section 23.04  Accreditation  A school district shall be notified of a school’s or school district’s probationary  status and advised that the school will be classified as probationary for no more than two (2) school years, after which time they SHALL be classified as not accredited.  Schools classified as not accredited are subject to enforcement actions that will be described a little later on..

They are similar to your actions back in fiscal and academic distress. You SHALL act after a period time.  There are more options given to you under the standards than there were under distress.  Remember also that only a district can be in academic or fiscal distress. The schools or school districts can be cited for violation of standards.  

As we go through these, you will see over in the left hand column some letters, S, T, D, C.  Those are explained on the bottom.  Essentially, the first letter before the slash represents whether that is a school level  standard or a district level standard - the school level standard it is  S;  if it is a districtlevel standard it is a D.  Some of these are both district and schools.  You  will see a D and S.  Following the slash, you will see a P or C That means either a probationary standartd or cited standard.  If the word Policy is there, it is neither probationary nor cited; it is simply a statement of policy.[There is a list of 14 probationary violations and a list of 4 citations 

  On page 19,  starting back on page 18, these are on one of  the earlier comments talked about school having a two year period to correct things unless stated otherwise.  These are the stated otherwise.  There are some standards we can’t wait two years for the school to make before something is done.   This is not a change over current practice.  I don’t think in any case.  They re jut restated in here. [Note:  I don’t know what he means by the otherwise.] 

Still on page 19,Section 25,  I want to call your attention to Enforcement Provisions and again this is similar, The Board  MAY address a school or school district which has failed to meet all standards any time after a school or  district has been given a probation but you SHALL take at least one of the following actions when any school or district which has failed to meet all the standards for two consecutive years and those options for you are listed in 25.03: Reorganize , reassign the administrative, instructional, or support staff, requie a district or school to institute and fully implement a curriculum that is based on State academic content and achievement standards, including professional development; remove a particular school from the jurisdiction of the district and establish alternative public governance and supervision of school; require a  district to close down or dissolve a particular school annex or consolidate the school district; reconstitute the leadership of the school.  [Regs  actually says any particular board member of a school district.  Can they come in and fire a particular teacher, too, who speaks out or disagrees.  What’s the difference?]  Call for the election of a new board or take any other appropriate action required.

I want to emphasize.    The idea is not to go in heavy handed and consolidate a school because it has a probation. That is not the intent.  Again that was misinformation that was put out about this bill.  You have many options here short of that,  and I would expect a prudent Board would exercise those other options.  [Note:  Does Simon think that taking over the locally elected school board, removing the superintendent, or any  particluar school board (which the regs. allow) are not as dictatorial or as appalling to the people as consolidation]  It sends a message that is is no longer possible for district to languish for years playing the game of meeting this standard and not meeting this one, meeting this other one and not meeting this one.  Children deserve better.  We hope to give them an equal opportunity to learn in our state.

With that, that will conclude my remarks on this section.

Chairman of the Board: It is good to have these things clarified for us .  I think when our legislature me this year one thing that was made plain to us is that we were not to let these schools continue on when we do have these options, to take care of them and it is good to reiterate the fact that we don’t have to  wait when there is a real problem and these children are not getting the education  that they should get.

Simon:  I would like to say also keep in mind that what you are doing here is putting these out for public comment. We will not even ask you to act on these until the  August Board meeting so you will have plenty of opportunity to read the Rules and Regs first and then to comment and let you suggest the changes.  I would also say these rules, the previous 3, the previous2, Actions2 & 3, and this one combined has nothing to do with size of school districts, there are no numbers here.  It strictly enforces the law that was cried for by many districts during the session - that is, let us meet standards. These are standards based rules and regulations.  You meet the standards, and you are okay.  If you don’t, you are in trouble. That is what the districts want, so I hope they realize this is what they wanted in that respect and to enter into any discussion of these rules and regulations with that framework in mindIt is a standards based set of  rules and regulations.   

Gordy:  We discussed – received quite a bit of discussion afterwards about our minimum requirements as for as 38units.   Everything we read; everything  we researched, everything the Blue Ribbon Committee looked at, the Board’s Advisory Committee working with this project said 38 units was insufficient as far as an enriched curriculum.  Why now, would we say 38 units is what we have as the minimum standards.  When we first started the discussion, this Board went on record saying w thought that was not sufficient for the minimum curriculum.

Simon:  Subsequent to that action of  the Board to put out for  public comment the 601/2 units the legislature was in Session and there was extreme anguish on the part of many of the districts and legislators about the aggressiveness of that language. This Board subsequently passed a resolution that said the Board would not pursue that until after the Adequacy Study was completed.  So we need to honor that commitment.  The  Adequacy Study is on plan now.  The professional judgment panels of  Arkansas educators and citizens have been selected, and they are going to meet Wednesday and Thursday of  this week to continue to work with that Adequacy Committee.  That report will be due September 1.  Once that report is in,  I think, Mr. Gordy, that would be an appropriate time for this Board to revisit its desire to do what it wanted to do initially or to take some other more moderate stance, but right now I think we should honor our resolution until after the Adequacy Study.

Gordy:  Thank you Mr. Simon. I did want to make that clear that at least personally this Board’s intention was not to continue with , hopefully, with  sub standard curriculum requirement.  We wanted to make it an enriched curriculum, and that Adequacy Study, from a time standpoint, we may be coming back and addressing this hopefully very quickly.

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