FACTS AND CLARITY IN RESPONSE TO JOHN WHITE: From John White: (1) The Louisiana Constitution empowers BESE to “supervise and control” the public schools, pursuant to legal requirements. State law requires the Department of Education to establish content standards and BESE to approve them. It says nothing about regulations or a required Administrative Procedures Act: The state Department of Education shall, with the approval of the State Board of Elementary and Secondary Education, as part of the Louisiana Competency-Based Education Program, develop and establish statewide content standards for required subjects to be taught in the public elementary and secondary schools of this state. Facts and Clarity: Though BESE is created by the state constitution, its authority to act is as provided by law. Pursuant to R.S. 17:24.4, the department, not BESE, has the authority to establish standards. Further, the law requires the department to develop those standards. The Common Core standards were developed by others. Therefore, BESEs action adopting the Common Core standards has no legal effect. From John White: (2) Pursuant to this law, in 2010 BESE and the Department engaged in a lengthy engagement process, culminating in approval of the Common Core State Standards. There was no legal requirement that this be done through the Administrative Procedures Act. In fact, in 2012, the Legislature codified the national standards in law, overriding any past regulations: Beginning with the 2014-2015 school year, standards-based assessments implemented by the State Board of Elementary and Secondary Education in English language arts and mathematics shall be based on nationally recognized content standards. Facts and Clarity: In 2010, the Legislature amended the Administrative Procedures Act (APA). The enactment specifically recognized “that it is essential to the operation of a democratic government that prior to the adoption, amendment, or repeal of any rule… that the provisions of the APA be followed”, except as otherwise specifically exempted. Nowhere in this law is there an exemption for BESE or the Dept. of Education. Example: Bulletin 1965 which contains the Louisiana Content Standards, Benchmarks, and Grade Expectations for English Language Arts as adopted and promulgated by Board in November 2005. Bulletin 1955 which contains the Louisiana Content Standards, Benchmarks, and Grade Expectations for Mathematics also from November 2005. The two Bulletins do not reflect any changes to the standards after 2005. Details are necessary to implement new standards and therefore a “rule” is necessary. If in fact Mr. White is correct and the APA is not required to adopt Common Core, what happens to the existing Rule? Does it just go away? At a minimum there would have been legislation to remove the existing Rule. Otherwise we would have two sets of standards. It is clear there is a process that was not followed and the arrogance of BESE and DOE has convinced them they don’t need to follow the law. From John White: (3) The standards were not enacted by way of the Administrative Procedures Act. There is no requirement that they be adopted in this way. The law obligates the Department to establish academic content standards; this happened. It requires BESE to approve, per its Constitutional role; this happened. And the law specifies that the standards should be nationally recognized; this happened also. Facts and Clarity: R.S. 36:645(A)(3). In addition to the functions, powers, and duties otherwise vested in the state superintendent by law, he shall: . . . in accordance with the Administrative Procedure Act, make, alter, amend, and promulgate rules and regulations necessary for the administration of the functions of the department, except as otherwise provided by this Title. Even in the Race to The Top Legal Process for Adopting Standards it states a requirement to use the APA. Chapter 13 1301 Bulletins Regulatory policies and procedures must be adopted by BESE as Rules through the rulemaking process set forth in the Louisiana Administrative Procedures Act (APA)
Posted on: Tue, 22 Jul 2014 19:35:00 +0000
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