Legislature(2003 - 2004)
03/31/2004 01:38 PM Senate HES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 372-SECONDARY SCHOOL ASSESSMENTS
CHAIR FRED DYSON announced SB 372 to be the first order of
business. He stated he intended to have both SB 372 and SB 248
presented and hear responses from the Departments of Education
and Law, but no action would be taken on either bill that day.
He noted that a lawsuit was filed on the issue and he wanted to
make sure that the committee deliberations didn't interfere with
the suit.
SENATOR LYDA GREEN, sponsor of SB 372, said one of her primary
concerns with regard to the exit exam has been the testing of
learning-disabled students that are on IAP [individualized
assessment program]. During an earlier conference she thought
they had reached a point in existing statute, which was SB 133,
to resolve the issue and make the intention clear. Originally,
they took exception to some action the board took, but have
since learned that they did work within the framework of what
they were given. She continued to say:
One of the things that we also discovered in the
course of talking about this is there is an alternate
assessment, an alternative assessment and there is
similar language in NCLB that brings about a great
deal of confusion so we have changed, in our
legislation, the title of the test for the learning
disabled child on IAP with Individualized Assessment.
This legislation makes clear that with regard to
students with disabilities, assessment opportunities
must expand beyond modified versions of the secondary
school competency exam. It creates a new term -
individualized assessment. It resolves ambiguity in
statute regarding availability of assessment options
available for our disabled students - especially with
regard to students with severe cognitive disabilities
and the ambiguities that result in a manor that
incorporates state standards as required by federal
law, and allows students with a severe cognitive
disability to receive a diploma without having to take
the exit exam.
If the student is eligible, under board regulations,
to participate - as you recall, the board adopted a
three year window for severely disabled students
because there was a posting on the web site that led
to some misunderstanding and assurance that in
actuality was questionable, but the error it was felt
by the department justified a waiver so that those who
were in high school would be waived from the exam and
hence there is a three year time limit on that. We
extend that deadline into the future.
The other issue is that it is for those students who
have a disability and are under an IEP. There would be
a one year extension of the effective date of the exit
exam on their behalf and that would allow the [Alaska]
State Board of Education an additional year to put
into play, what we consider to be, the correct exit
exam for this population.
CHAIR DYSON noted that under current practice children with
disabilities that are severe enough that they are not part of a
standard academic program could obtain a diploma and he
questioned whether this legislation would allow that practice to
continue.
SENATOR GREEN replied, "I stand to be corrected if someone from
the department wants to respond to that."
CHAIR DYSON asked Senator Green whether she had seen the fiscal
note on her bill and whether it seemed reasonable.
SENATOR GREEN said of course it seems reasonable because the
state would be involved in the review at some point, just as
they do now when questions arise. SB 372 wouldn't change that,
but there would probably be greater responsibility at the local
level. She added,
I've always been somewhat perplexed - before the exit
exam special educators worked with students on IAP in
a way that they tested regularly and used whatever
standards were in place in their district or that the
State required and of course they were testing anyway
and this would be another of those assessments so it
would not be an exceptional test that has to be
created by contract that the State would go into - as
we previously experienced with the original exit exam
for the general population. I think it would just be a
continuation of the work that a teacher and faculty
staff does now.
CHAIR DYSON asked for verification that the bill doesn't require
the department to approve a number of additional testing systems
for students.
SENATOR GREEN said that is her understanding.
CHAIR DYSON asked Commissioner Sampson to come forward.
ROGER SAMPSON, Commissioner of the Department of Education and
Early Development (DEED), introduced himself and remarked that
the fiscal note probably needed some explanation. He opined that
Senator Green did a very good job of articulating the key
difference between this bill and what they have addressed in the
past.
CHAIR DYSON asked if he meant existing law.
COMMISSIONER SAMPSON said yes and added that SB 372 asks that
the individualized assessment or the alternate assessment for
those children that are severely impaired cognitively be based
on the goals of their IEP instead of alignment with the exit
exam. That oversight would be at the local level and is
something that the IEP teams, particularly special education
teachers, are used to working with and under federal statute are
required to review annually at a minimum and sometimes a number
of times per year to measure progress toward the standards that
are on the IEP. To the maximum possible, those standards must be
based on the state standards. That's why the fiscal note isn't
large and actually there's potential for a reduction because
there isn't the level of state oversight on approval. There's
still oversight, but it deals with accommodation and
modification on the first time students may take the exam for
full participation.
CHAIR DYSON asked if the department takes the position that
students should receive a diploma if they are able to meet the
goals of their IEP even though they can't meet the standards of
the high stakes exit exam.
COMMISSIONER SAMPSON said the department hasn't taken a position
on that. "It has been difficult as both the Legislature and the
Board [of Education] and the public as a whole has tried to work
through this. There isn't a magic wand that will be a fix for
every student when we're trying to apply a single measure to
it." They're trying to develop a system that would protect the
majority of the student population without punishing those with
special needs.
SENATOR GREEN said she interpreted page 2, lines 5 through 9 to
mean that it would be the same standards as the scope of the
curriculum, it's just the method of testing that would be
different.
CHAIR DYSON acknowledged that he saw the words. Addressing his
comments to the commissioner, he said he recalls that of the
6,000 to 7,000 students that graduate every year about 600
hadn't passed the exit exam and at least half of those hadn't
taken any part of the test. This led to the projection that
between 200 and 300 students couldn't pass the test. He asked
the commissioner if his memory served him correctly.
COMMISSIONER SAMPSON said that could be, but they have yet to
establish a baseline, so they're still dealing with estimates.
They do know that approximately 600 students haven't passed the
exit exam, but they don't know how many are students with
disabilities and IEPs and how many aren't scheduled to graduate
because parents haven't put them on a graduation track or
because they haven't met other local requirements.
CHAIR DYSON commented that regardless of the reason, this is an
effort to accommodate about five percent of the senior
population.
COMMISSIONER SAMPSON said the assessment director was probably
available on line to answer the question, but the other way to
look at the numbers is that the majority of the students that
aren't passing the exit exam are students with disabilities.
LES MORSE, director of assessment and accountability for DEED,
explained that as of last fall about 1,400 seniors hadn't passed
all three parts of the exam and they know that slightly more
than 600 of those were special education students. They don't
know whether those 600 students would have met local graduation
requirements or were on track to meet the local requirements,
but since they are seniors, they must have met some of the local
requirements. They don't know how many of the 600 might qualify
for a waiver and they don't know how many might receive a
diploma under an alternate assessment, but they speculate it
would be less than 2 percent.
CHAIR DYSON asked how many of the 1,400 hadn't taken any part of
the exam.
MR. MORSE apologized that he didn't have the data, but he
recalled that they were looking at data from students who had
attempted one or more parts of the exam.
SENATOR GARY WILKEN asked for an explanation of the difference
between an alternative assessment and an individual assessment.
SENATOR GREEN replied,
The individualized assessment is the name. We came up
with this legislation because of the confusion,
previously, between alternative and alternate on the
state level and another one called an alternate exam
on the federal level. Each of which meant something
slightly different from the other, but were very
confused. So we switched for that population of
learning disabled children who were probably, in many
ways, high functioning, but test out on psycho-
education testing two grade levels below their ability
level. It's an individualized assessment.
For the cognitively disabled child who is on a very
different course of study and generally would be very
easily recognized and would have a very different
career path throughout their school years - that is
the alternate assessment.
SENATOR WILKEN asked if alternate would be the severely disabled
child that's federally recognized as such; it's the student
that's identified in the formula as five times the student
dollar. He concluded that an autistic child would provide an
example.
SENATOR GREEN told him that's not the case; autism is a
cognitive disability whereas the learning disabled child
wouldn't be recognized as such unless you followed them in the
classroom or by examining their test results.
CHAIR DYSON asked whether students that fall into the category
of individualized assessment would likely have an IEP.
SENATOR GREEN replied absolutely.
CHAIR DYSON questioned whether anyone would be in the
individualized assessment category and not have an IEP.
SENATOR GREEN thought that was correct.
SENATOR WILKEN asked whether individualized used to be called
something else.
SENATOR GREEN told him they were alternative.
SENATOR WILKEN noted that must be why alternative is changed to
individualized on page 4, line 4.
SENATOR GREEN agreed.
SENATOR WILKEN focused on "student's individualized education
program" from page 2, line 8 and then turned to page 3, lines 1
and 2 and asked if it means that the department will be
responsible for establishing regulations for over a thousand
different programs.
COMMISSIONER SAMPSON explained that the individualized program
referenced on line 8 would drive the assessment and the
assessment would be designed to determine whether or not the
student is meeting the goals that are identified on their IEP.
At the top of page 3 it says, "The department shall by
regulation establish uniform standards for the individualized
assessment program..." and they are discussing the development
of a process by which that could occur. He asked Mr. Slotnick to
expand on that explanation.
NEIL SLOTNICK, assistant attorney general representing DEED,
agreed with Commissioner Sampson's interpretation of how the
department would implement the regulation requirement. The
regulations would be procedural rather than substantive. They
would establish timelines for when the individualized assessment
must be completed, how it must be processed and how the state
would be notified. The IEP teams would be charged with
determining the content of each individualized assessment
program. The department certainly would have no way of doing
that for over 1,000 students per year.
SENATOR WILKEN asked whether the regulations would address the
appeal process if a student were denied an IEP.
MR. SLOTNICK said that would be a typical procedural regulation
that the state board would consider putting into regulations.
SENATOR WILKEN asked for verification that an appeal process
would be part of Section 3(f).
MR. SLOTNICK said he would anticipate that an appeal process
would be a local process because the IEP and the individualized
assessment are local issues, but the state board might put
something like that into regulation.
SENATOR WILKEN asked if the local school board would be the
arbiter in the appeal process.
MR. SLOTNICK said yes.
SENATOR WILKEN then asked if each school district would have a
different standard for acceptance or denial of IEPs.
MR. SLOTNICK clarified that the IEP is a federal law and there
would be a special education due process hearing
SENATOR WILKEN interrupted to say he meant to say IAP.
MR. SLOTNICK continued to say that some of the same issues might
come up with the IAP as well and they might be resolved through
the current framework for resolving that type of issue. There
are already trained hearing officers for special education
adjudications as well as many procedural safeguards to ensure
that special education students receive a free and appropriate
education.
SENATOR WILKEN admitted that he got his letters confused then
restated his question. "Would we have 53 different standards for
individualized assessment program, each determined by 53
different school boards?"
MR. SLOTNICK told him there would probably be a body of
regulation on the issue, but each IAP will be individualized and
tailored to determine whether or not a student met their IEP
requirements. That would have to be an individual process but
right now he didn't know whether there would be an appeal
process for a child who failed the IAP. There might not be any
more opportunity for an appeal than for the student who doesn't
meet all the graduation requirements that are in regulation.
That is a local matter that is determined by the local
principal, the superintendent and the school board.
SENATOR WILKEN said that's what concerns him and asked
Commissioner Sampson whether the regulations that are referenced
on page 3, lines 1 and 2 would be specific enough so that there
wouldn't be 53 different interpretations of who gets an IAP.
COMMISSIONER SAMPSON countered that he expects that there would
be more than 53 different interpretations. Because IAPs are
developed from IEPs, he believes there would be an IAP for every
student that has an IEP. He did, however, think it was likely
that the state board would establish just one procedural process
for developing IAPs. "It would be those individual IEP teams
that would establish what is appropriate for that student, based
on the disability and what has been in that IEP for as long as
the student has had that designation."
SENATOR WILKEN asked whether IEP standards approach or meet the
standards of the exit exam.
COMMISSIONER SAMPSON said IEP standards run the gamut. There
will be IEPs that clearly don't meet the standards of the exit
exam and there will be IEP standards that exceed the exit exam.
They would hope that there would be close alignment in many
cases, but there is no assurance that the two would be
equivalently rigorous.
SENATOR WILKEN said, "I'm not very trusting of our school
districts. In my short eight years, they've taken advantage of
loose rules and I suspect this may be another loose rule." He
questioned how you would know that school districts were
granting IAPs as a matter of convenience rather than as a matter
of necessity.
COMMISSIONER SAMPSON acknowledged that when addressing children
with disabilities he has heard that some people fear that the
number of students that are moving into special education is
ballooning. "I personally don't share that fear," he said,
because there are rigid federal guidelines that determine
whether or not a child is eligible to be certified as disabled
and then the process for establishing an IEP is very extensive.
In conclusion he said, "Even though I may share a feeling that
we can't monitor those consistently as a state or an agency or
even as a school, the federal guidelines are very clear that
they indeed have special rights as disabled children and that's
why they have special programs."
SENATOR WILKEN expressed concern that there wouldn't be any
effort to correct or help a disability; an IAP might simply
provide an alternative path to circumvent the exit exam. He said
there should be some way to monitor that.
SENATOR GREEN emphasized:
It's one thing to have a first or second grader who
qualifies for special services, but after age 10
there's some resistance in every fiber of the being of
the average child to not ever be tested or qualify for
a special education program. This is not something you
opt into so you can't don't have to take a test.
SENATOR GREEN reminded members of the provision that requires
students to qualify for any kind of exam exemption before
February of their junior year. This certainly won't be used as
an opt-out provision because vying for an IEP is certainly not
something that anyone would voluntarily try to qualify for. She
continued to say:
This is not out of the realm of what special educators
do every day they work with a student with special
needs. To me this is the conclusion of the work they
have done with that child. This isn't new ground. she
said.
We need a continuation. If we can figure out the
continuation of what we trust every special education
teacher and require them to do every time they do the
IEP process, which is highly regulated. If we're going
to allow that process to have any credibility, we have
to let that same process continue and to evolve into a
final assessment program, which is what they've done
for eternity since special education courses were
offered and required. They'd be doing something
similar to this, regardless of the form and certainly
the department can structure it to be consistent with
all other test giving.
CHAIR DYSON asked who has the responsibility of ensuring that
IEPs are only given to students with demonstrated special needs.
COMMISSIONER SAMPSON explained that the state sends teams out
periodically to ensure that both state and federal dollars are
used according to statute and federal requirements. In addition
to that, the federal government monitors the state oversight. He
cautioned that although there is substantial oversight, it
wouldn't be accurate to say that every child's IEP is checked
for due process every year.
CHAIR DYSON asked whether the student is actually tested in this
oversight process or do the teams simply review pieces of paper.
COMMISSIONER SAMPSON said the state team doesn't actually test
the students and he didn't believe the federal government does
either. But there are advocacy and oversight groups in the state
that operate independently from DEED that become involved in a
number of the issues to advocate for children with disabilities
to make sure they are receiving appropriate services.
CHAIR DYSON asked who ensures that the classification isn't
given to students that don't need it.
COMMISSIONER SAMPSON said he didn't believe anyone did that, but
as Senator Green alluded, it's not a status symbol to be in that
classification. The school districts that are administering the
programs say they aren't receiving adequate resources so they
would only be interested in following state and federal
regulations to meet the requirements for students in such
programs. There is tremendous expense and responsibility
associated with children that are in the disability category, he
said.
CHAIR DYSON remarked that under the foundation formula, special
education students qualify the district for more money to take
care of their special needs.
COMMISSIONER SAMPSON disagreed saying that would only be correct
for the children that are in the most cognitively severe
category. They qualify as intensive students, but all others are
a .20 factor.
SENATOR GREEN told Chair Dyson it used to be that way when she
was first in the Legislature but it isn't any longer.
Drawing on personal experience, she made it clear that there is
mandatory and extensive testing and review for children with
disabilities to determine whether or not they are meeting their
goals.
COMMISSIONER SAMPSON agreed adding that there are two thresholds
for children with disabilities. There is an annual review to
ensure that the student's goals are appropriate and that the
instructional procedures are meeting the needs for growth. Then
there are federal regulations that require that the student be
reevaluated at least once every three years to make sure that
they still meet the federal requirements to remain in that
category of disability and that the process is being utilized as
outlined by regulation.
CHAIR DYSON asked if there might be a lack of consistency
between schools or districts, which could lead to lawsuits.
MR. SLOTNICK agreed that any time you treat people differently
you have to ask that question, but there is a large body of
federal law that creates a special status for disabled children
that are on IEPs and the state must adhere to that federal law
and provide those students with special protections. It's a
policy call for the Legislature to decide how much protection to
provide children on IEPs. Once that call is made, the courts
aren't going to second guess the Legislature unless there is
evidence of discrimination.
CHAIR DYSON noted that some people feel that the state has
significant exposure to lawsuits under existing law and the
regulations that the state school board has promulgated. He
questioned whether the state is vulnerable.
MR. SLOTNICK replied there are several areas where there are
legal challenges to the existing system. The current system is
being implemented by regulation, which must follow existing
statute and the intent of the regulation must implement the
intent of the Legislature. He continued to say:
One of the issues out there is, does the existing
system, where we require all kids with disabilities to
take a high school exit exam - a modified version of
it but it's still the standardized version where you
bubble in your answers...
TAPE 04-18, SIDE B
2:23 pm
Is that consistent with the intent of the Legislature
when it adopted SB 133? That is a question that is out
there. If this Legislature acts to adopt this bill
some other bill or to affirm the current system, that
question goes away. That gives policy guidance from
the ultimate policy maker in this state, which is this
body - to the state board and to the department and we
know how it is implemented this alternative or
individualized assessment to the disabled kids. So
that's a very good thing that we have an opportunity
to do here because I will tell you right now, the
intent of the Legislature, in adopting SB 133 isn't
clear based on the record - based on the language of
the actual statute and so if we bring clarity to that
that's helpful. That's one area that we need to
address.
A second area is the issue of time. Federal law
requires that we give all students sufficient time to
prepare for a requirement that impacts their ability
to achieve a diploma. That's the due process clause;
you have to have fairness, you have to have notice. So
there's a real question out there. Did we give kids
enough notice as to what the requirements for passing
this exam would be? Now that's an open question out
there. There's lots of case law that says that kids
with disabilities need yet more time. And here we've
got a situation where - SB 133 was passed just three
years ago - it's taken the state board some time to
implement it and we've got some confusion and some
changes on how it's being implemented. That's another
question that's out there. Does the whole time and
fairness give people time - especially children that
are disabled - the time to prepare for this change in
law?
Now there's a third question that is out there
regarding the current system. Remember I said that the
current system is a modified high school exit exam.
There is an argument to be made that that doesn't give
disabled children an opportunity to demonstrate their
competence. In my opinion, that is a policy question
for the Legislature. Now, others may see it
differently. Others may see that as a legal question -
that the courts could step in and say that exam is not
sufficient. But I will tell you that in my opinion, if
that's the policy choice of this Legislature, then I
think that is consistent with the requirements of
federal law.
CHAIR DYSON said that was helpful and he understands there is
vulnerability in terms of court challenges if there is a
disparity between the regulations that have been promulgated and
the law. If there is a need to bring clarity to the existing
law, he asked whether one or both could help the committee to
understand where the existing law lacks clarity.
COMMISSIONER SAMPSON said two state school boards have made
three attempts to move regulation forward to meet the intent of
the statute. It's because when the statute speaks about the
flexibility - the need to address children with disabilities -
providing them options to display that they are proficient at
the skills that are on the exit exam, there are at least two
ways to get there. One path is narrow and one path is wide.
Furthermore:
I believe it is very emotional. There's not a right or
wrong answer, but there are two paths to address
meeting the needs as it pertains to the exit exam for
children with disabilities. There could be SB 372's
approach, which is a wider path. There could be our
current regulation and statute interpretation that is
a narrower approach. It has not been clear with the
Legislature. That is why there have been many meetings
and a great deal of emotion on both approaches and the
same thing has occurred with the general public as
they testify before you and the state board. And in
fact the state board has been split on that.
We know we need to address the differences for
children with disabilities, but how wide of breadth
that they're given is very different on how we get
there. That is the part of the statute that we need a
policy call on or clarity on from the Legislature to
make it very clear how we deal with children with
disabilities as it pertains to the exit exam.
CHAIR DYSON asked if it's fair to say that a broad way would be
Senator Green's bill that allows an individual assessment
process for every child that has an individual education plan.
COMMISSIONER SAMPSON agreed that would be a broad approach.
CHAIR DYSON asked if there were other areas where the existing
law isn't clear.
SENATOR GREEN questioned whether the issue of the cognitively
disabled needed a legislative fix or whether it could be left to
the state board.
MR SLOTNICK opined that the state board probably couldn't
continue to provide diplomas to the severely disabled child
without a change in statute. If that was the intent of the
Legislature in SB 133 then it was lost in translation because he
could find nothing in statute that would give the state board
that authority. It was done for three years under the waiver
process because there was a mistake that occurred where children
were given notice that they would be on a diploma track. As a
consequence, they felt that was enough of a rare and unusual
circumstance to justify a waiver for those kids who were
currently in high school and might have relied on that posting
on the department web site. But, if that was the intent it's not
reflected in the statute.
COMMISSIONER SAMPSON added that he didn't want to mix things,
but there may be other issues that should be addressed through
statute as a result of the litigation.
CHAIR DYSON commented that that is an interesting observation.
Turning to Mr. Slotnick, he asked if he just said that the
existing statute might not allow enough time for children with
IEPs or the disability community to transition to kind of a new
regime that is dictated by SB 133.
MR SLOTNICK agreed that he said that.
CHAIR DYSON asked if that comment is based on his interpretation
of the federal law.
MR SLOTNICK said yes, there is a body of case law that speaks to
that issue and cases that say that disabled students must be
given more time to prepare for this high stakes requirement.
CHAIR DYSON asked if it's logical to infer that his
understanding of current statute is that it doesn't give enough
time and if that's true, how much time is reasonable.
MR SLOTNICK replied they are considering that because it is an
issue in the current litigation and they've discussed the issue
with the plaintiffs and they've indicated they're likely to file
for an injunction on the issue of delay unless there's
agreement. Furthermore:
I don't believe there's time for this body to act in
time for the commissioner to get the word out to the
districts so they can prepare kids for graduation this
spring. It might be an issue that is better left for
resolution in the court in something that - and I know
the attorney general is considering agreeing to a
request for a one year delay through the court system.
That is an issue that is out there. I wouldn't
necessarily fault the statutory time line; it's one of
those issues that the commissioner was describing as
the problem with implementing the statute more than
the timeline that you initially adopted in SB 133. But
because we've had some confusion in interpreting and
implementing the statute it seems to me there is a
good argument that being very fair and giving lots of
time to disabled kids is something that should be
carefully considered by the state.
CHAIR DYSON said he appreciates that then asked what timeline SB
133 set for implementation for students with disabilities.
MR SLOTNICK replied it is the same as for all students, spring
2004.
CHAIR DYSON asked if three years were allotted.
MR SLOTNICK said it was three calendar years from when the exit
exam became high stakes, but for the first time, under SB 133
they could offer an alternative assessment program to kids with
disabilities - something that hadn't been out there. It took
over a year to get that program started and more time to work
out the bugs. This was a promise made to disabled students by
the Legislature. The time it has taken to fine tune creates the
basic fairness argument that should be given careful
consideration, he said.
CHAIR DYSON recapped saying SB 133 anticipated three years
preparation time because of difficulties and a regime shift that
didn't happen until January or February of 2004 when regulations
were in place.
MR SLOTNICK said the original set of regulations did go into
place in the spring of 2002 in time to allow for an alternate
assessment program. Since then it's undergone some changes and
even the spring of 2002 isn't too many administrations of the
alternative assessment program before getting to the high
stakes.
CHAIR DYSON repeated that the first regulations providing for an
alternative assessment were in 2002 after which there were
additional alternations to the regulations.
MR SLOTNICK agreed.
CHAIR DYSON asked when the alterations were finished.
MR SLOTNICK replied the last evolution was in December 2003 when
they made the decision to broaden the modifications that would
be available to disabled students as they sit for the optional
exam.
CHAIR DYSON questioned if it was December 2003 when people in
the disabled community and their representatives knew what was
required then under federal law, what is the reasonable time for
the preparation and transition.
MR SLOTNICK said he would argue that the following year is
sufficient time to make it high stakes because the change that
was made in December 2003 was to broaden rather than to
restrict.
CHAIR DYSON said if the date that the community, the students
and the IAP teams could plan on was spring 2002, then under
federal guidelines or case law what is a defensible amount of
time for that preparation transition?
MR SLOTNICK replied because they are broadening there is no case
law that speaks directly to that. There are cases that say that
three years notice to children with disabilities are sufficient
while others have different times. He repeated that he feels
that one year is defensible, but it's a policy choice if the
Legislature wants to give more time. "When I say give one year,
I feel it's very defensible, but if this body wants to give more
time, that again is a policy choice that I certainly would defer
to you. You can give more time than what we would say is
minimally required by federal law and I'm not even conceding
that we need an additional year from the December day but I know
there are good arguments and I know my client, the State Board
of Education, is very interested in being very fair to disabled
students."
CHAIR DYSON remarked that he heard that "with regard to the
spring 2002 and when we should have started, you said maybe not
because that broadened in terms of providing more alternatives
for the assessment. Did I miss-hear or did we miss-communicate?"
MR SLOTNICK said no; he thought he was asking about a
hypothetical question about getting off the mark in 2002 with
being able to deliver a finished product that everyone agreed
comported with the legislation. Then it became a high stakes
exam in spring 2004. That seems to be sufficient time, he said.
CHAIR DYSON said then whatever action happened in December 2003
isn't really limiting because it was an even broader path and
shouldn't be seen as a starting date for the new regulations.
MR SLOTNICK said that's correct, "but the argument on the other
side would be that they should have had that accommodation
earlier and is giving it to them at that late date really giving
them notice that they can take in the graphing calculator into
that exam and is it giving them every advantage and every
possible benefit of the doubt."
SENATOR GREEN said she wanted it clarified that when speaking
about federal and/or case law that federal law does not pertain
to the exit exam.
MR SLOTNICK replied:
It is true that special education laws do not address
the diploma requirements and there have been
challenges to high stakes exams under the IDEA and
they have always failed because the IDEA doesn't
guarantee the special education student a diploma or
interfere with state policy on what the state
requirements are for a diploma. However, when talking
about federal cases, I was talking about cases that
interpret the due process laws of the U.S.
Constitution that say you have to give students due
process before you deprive them of property interests.
And students who have been working toward a diploma
have a property interest in that diploma and so there
are procedural requirements, which have to do with
notice and adequate time to prepare and that's what
those cases speak to. So there are two different lines
of cases here.
CHAIR DYSON said he's always astonished that it all seems to
revolve around a student receiving a piece of paper as opposed
to getting skills and knowledge. He asked, "Have there been law
suits brought based upon a student not getting what he could
argue, his parents contracted for?"
MR SLOTNICK replied some of the high stakes exit exam cases have
brought up the opportunity to learn about arguments some of
which are in Alaska. There are also the school funding cases in
other states where there is disparity between districts. It's an
area of education law that courts are reluctant to enter.
CHAIR DYSON remarked he'd like to hear further discussion but he
wanted to give Senator Guess time to introduce her bill so
barring any objection, he would set the bill aside.
SENATOR BETTE DAVIS asked whether he would take public testimony
on SB 372 the next time it was heard and when that might be.
CHAIR DYSON replied he would take public testimony at the next
hearing, but he didn't know when that would be.
SENATOR DAVIS said she was pleased to hear Senator Green's
introduction and thought it sounded like a good bill. She had
looked forward to hearing from the department so she could clear
up some questions she had, but she heard the department say that
they weren't taking any stand on the bill. They're simply
accepting that it is coming forward.
COMMISSIONER SAMPSON replied they are simply trying to describe
the advantages or disadvantages to the committee and give an
example of a wider approach. What they really need is
clarification of the intent of the statute. If a wide approach
is desired to address what they believe the intent of SB 133
was, then SB 372 is one approach.
SENATOR DAVIS said she preferred to talk about the bill that was
before the committee and asked if there was anything in SB 372
that needed further clarification so they wouldn't have to
return and say the same thing about it as they're saying about
SB 133.
COMMISSIONER SAMPSON said, "Not that I'm aware of, but I do want
to state that as we move through this litigation, we could be
forced to make changes based on decisions of the judges."
CHAIR DYSON stated that part of his indecision relates to the
choice the attorney general makes and what he negotiates in the
current lawsuit. "It may be that that agreement may buy some
time and it may be that we'll have to put wheels under one or
more of these bills and move them rapidly."
CHAIR DYSON held SB 372 in committee.
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