HB 156-SCHOOL ACCOUNTABILITY MEASURES; FED. LAW  8:02:55 AM CHAIR KELLER announced that the first order of business would be HOUSE BILL NO. 156, "An Act relating to compliance with federal education laws; relating to public school accountability; and providing for an effective date." [Having been adopted without objection at the meeting of 3/30/15, Version I was before the committee.] CHAIR KELLER asked the Department of Education and Early Development to provide a zero fiscal note or a clear record as to the department's reasoning. He pointed to the previous indeterminate fiscal note which was based upon the requirement of providing a designation to the public system as a whole, and not upon the potential loss of federal funds which, he opined, is appropriate. 8:05:11 AM CHAIR KELLER advised that the first issue is with regard to the requirements within Version I, [AS 14.03.123(c), Section 1, page 2, lines [7]-9, which read: (5) the methodology used to assign the state  public school system a performance designation that  compares the state public school system to public  school systems in other states and countries. CHAIR KELLER conveyed that he has an amendment to delete "and countries." He opined that the fiscal note analysis, page 2, Section 1, implies there is a new requirement. He then referred to AS 14.03.123(a), School and district accountability, which read: (a) By September 1 of each year, the department shall assign a performance designation to each public school and school district and to the state public school system in accordance with (f) of this section. CHAIR KELLER pointed out that the issue in question is the state public school system defined in subsection (g), which read: (g) In this section, (1) "district" has the meaning given in AS 14.17.990; (2) "state public school system" means the combination of all public schools, public school districts, and state-operated schools. 8:07:22 AM CHAIR KELLER said that currently subsection (f) does not specifically refer to that designation or the standards for that designation for a public school system. He put forth that CSHB 156 asks the basis of the designation given to the public system as a whole, which the department has not been doing. He stated he did not want to list the National Assessment of Educational Progress (NAEP) in the bill as the department may desire a broader or different metric for giving a designation to the public school system. He opined that deleting "and countries," and put on the record that the appropriate intent is for the Department of Education and Early Development (EED) to use NAEP in the public school designation, which will address the indeterminate fiscal note discussion on that section. He advised the analysis does not indicate that the indeterminate fiscal note is based upon the fact that Alaska may lose federal money. He opined that the discussion is a fundamental rights issue that he does not want to get into with HB 156 unless it is absolutely necessary. In the event the federal government had authority under the United States Constitution to tell parents and children that they have to take tests, it would have done so. He reminded the committee that this bill deleted this (indicated an amount of paper) which is the federal law out of state law, and unwittingly there is one particular regulation which states that Alaska cannot systemically allow students to opt out of tests. He added he would like the committee to consider the discussion as fundamental rights and the school system is in a good position if it can entice parents and students to take tests based upon the benefits. He remarked that he is calling it into question because the requirements that say Alaska cannot systemically exclude any students from these tests is above and beyond the input that the legislature has had, and he is insisting that the legislature has a voice. He added that the people in EED and the United States Department of Education are sincere and have the best interests of children at heart, but this is a fundamental individual and state's rights issue to be addressed. 8:11:45 AM MIKE HANLEY, Commissioner, Department of Education and Early Development (EED), agreed that the challenge regarding the indeterminate fiscal note falls largely around the component on page 2, Section 1. He advised the department is not attempting to deter this bill based upon the fiscal note, but the challenge is that there are currently district school, district, and state methodologies and use Annual Measureable Objectives (AMOs) derived from No Child Left Behind (NCLB). He noted that states have their own sets of standards and now states have applied for waivers from NCLB, and there is a divergence from a common adequate early progress model in NCLB which, in effect, makes it more difficult to compare states. With regard to how the systems are compared, he noted, there are different sets of standards and different accountability measures. He pointed out that it has been a challenge, particularly with the removal of the compliance to federal law, which potentially removes the responsibility to take NAEP. It is a federal test and he opined he was not certain how to adequately compare Alaska to other states. He offered that NAEP is the one tool that is available, given on bi-annual basis, to fourth and eighth graders, which is a sample that cannot be broken down into schools as it is at state level only, but it does a decent job of comparing states to states. He said, "If that is adequate, we are doing that ... I just am not sure ... I wasn't sure in regards to this, it seems that there is more that truly allows us to compare our systems ... NAEP really doesn't compare systems ... I want to make sure that we match up with what the sponsor's intent is and if there more than a comparison such as NAEP on a bi-annual basis, we might have to develop something that will allow us to compare." 8:14:41 AM CHAIR KELLER related that NAEP is sufficient for him and reiterated that the option is open for the department. He offered that his ultimate comparison is an academic comparison which is what NAEP performs, which is limited but also has good credibility. He said that should the department prefer the bill specifies NAEP, the committee will work on an amendment. 8:15:25 AM COMMISSIONER HANLEY asked whether the removal of the responsibility to comply with federal law makes this silent with regard to compliance with federal law, and not prohibitive. CHAIR KELLER replied "absolutely," as the United States Department of Education, in 2005 or 2006, explicitly said federal law was not required to be incorporated into state law. Also, EED has stated, and the fiscal note reads, that Alaska is in compliance with federal law. Thereby, by taking it away leaves Alaska in compliance with the federal law, and it does not go beyond that and suggest that the legislature defy the law in any sense unless it gets into the area of threatening individual rights, he said. He pointed to Sec. 6, requiring the department to reevaluate, with the school districts, where the state is on the standards based assessment process. The bill asks that the legislature is involved in the process and offer suggested action in the event laws should be updated. He said, "And if failing our legislative action, everything that is in law stays in place. That is very explicitly said in this bill in Sec. 6." 8:17:43 AM LES MORSE, Deputy Commissioner, Office of the Commissioner, Department of Education and Early Development, recalled testifying in 2005 on the bill establishing the accountability system. CHAIR KELLER pointed out that several members on the committee also watched the process. MR. MORSE advised that in 2005 it became clear what Alaska's accountability system had to be under the Elementary and Secondary Education Act (ESEA). At that time, in state law was a system called the Alaska Designator System for School Accountability and there were conflicts between the two systems, he explained. It didn't make sense at the time, he related, to have an accountability system that said one thing, and potentially another accountability system that said something else about the schools. The department proposed that one single accountability system be built to meet both state and federal law. Since that time, he said, an accountability system was built that is more in favor of the state's interest over the last two years. He referred to the Alaska School Performance Index which is more on the lines of the state's interest discovered through the department's regulatory process versus the Adequate Yearly Progress (AYP) system. He noted that it is important to understand that within Section 1, it is understood the latitude given to the department to make a decision around accountability. Currently, he remarked, the department performs a statewide accountability system based upon annual measurable objectives. However, he pointed out, it does not compare Alaska to other states, but the department's interest is that NAEP could be utilized. He noted he was uncertain whether that language should be included within the bill as it may cause the department or the legislature to be in a box it may not prefer in the future. He conveyed that NAEP is the only tool that would assist Alaska in a comparison to other states in the most statistically sound manner. 8:21:26 AM MR. MORSE advised that NAEP is proctored every two years, in specific grades, and covers English language arts and mathematics. Due to Alaska's population, approximately 50 percent of the student body takes the assessment statewide, he explained. He reiterated another concern of the department is if the federal compliance was removed, and if the state became non-compliant with federal law, the money used to build Alaska's accountability system primarily is federal dollars. Therefore, the cost to the state would be whatever costs it would be to build an accountability system that is separate aside from the federal system. He advised the last time the state went down this path was building the designator system just prior to the NCLB amendments to ESEA. The costs involved were costs for technical design of the system, stakeholder input, and whatever it costs to run the analytics to put that in place. Federal compliance allows utilization of the funds for continuing the system, and does not prohibit Alaska being compliant with federal law, he explained. An unknown cost could be approval of the standards-based and teacher performance system because if anything there causes the state to go in a completely different direction than now, there could be costs to switching those processes at that time, he stated. He said he was uncertain whether that process would require new legislation as fiscal costs would be attached. He said, "The fiscal note would then be attached to anything that occurred at that time because there were costs that we anticipated in some of those other sections if we had to build a state system and if we had to give up the federal money. And that's why we put the amount of federal money that comes in." 8:26:52 AM CHAIR KELLER asked whether Mr. Morse had comments to other sections as he has responses and questions, he asked the committee to join him. MR. MORSE said he previously pointed out the department's issues with Section 1, and there are no issues with Sec. 2-3. He said issues with Sec. 4, were put on the record as it is receiving clarity around compliance with the federal law. He referred to Sec. 6, approval of standards-based assessments and teacher performance he previously cover as there are issues to be dealt with as it is different from the way the department runs its regulatory process, which is to put things out for a regulatory review and seek input. He noted the department will have to work through how this particular piece works for the department in addressing soliciting regulation response. He pointed to Sec. 5, and advised that the information obtained within the assessments is good information as it tells how Alaska's schools are doing. In the event a large number opts out, it is harder for those schools to advocate for their good solid programs if they are missing a large number of students participating in the assessment, he explained. He said, "That's the argument to have all students assessed, but I also hear the argument that you are making, that ... in this case you want people to have a choice around them and so it is a decision that you have to work through, I guess." 8:29:53 AM COMMISSIONER HANLEY added that he agrees with Deputy Commissioner Morse. He referred to AS 14.03.123(h)(2), Sec. 5, page 3, lines 14-18, which read: (2) ensure that individually identifiable data pertaining to a student collected under this section is stored securely and is only accessible to the student, the student's parents or guardian, the student's teacher, and other individuals in the state with a legitimate need for the information to perform the duties described under this section. COMMISSIONER HANLEY continued that ensuring the individually identifiable data is the key issue and is a concern he hears around assessments. He explained that assessments are not being taught to the students, but are lessons taking place throughout the year as a measurement on the student's progress. He said if the department can ensure that data is protected, he looks forward to making informed decisions. He expressed his fear that the department has come to a point where it is able to obtain decent data around Alaska, and not just for majority students or Caucasian students, but for all aggregated students. He explained that currently that data goes to students and families, and to the schools. He remarked that the aggregated not identifiable by students goes to the schools as a school report card, which goes to the public. He related his concern that in some of Alaska's small schools in rural Alaska it wouldn't take much for many students to opt out to invalidate data and the state has masked under-performance in the ability to help address those needs. He clarified that he is not advocating against more tests, or against parental rights. He then brought forth the approval of the standards by the legislature, and knowing what it takes to develop standards and "for the legislature to approve." He said he has confidence in legislators, but the legislature and the infrastructure in which it operates appears to be a difficult place to "adequately review the standards that we teach our children." Offering a third grade example, he said there was a standard that says, "a student can identify the meaning of a word based on the context of the sentence and the paragraph." He pointed out that the legislature would question whether that standard was developmentally appropriate, is that measureable, are there scaffolding skills in second grade, first grade, and kindergarten that lead up to that, and whether that builds on the skill needed in fourth grade so ultimately when they are in fifth grade and graduate they have the skills necessary based upon the skills required at universities and career training centers. He cautioned that together with that example, there are many standards and due to the legislature's time frame of 90 days it appears to be a large challenge and responsibility. 8:33:57 AM CHAIR KELLER requested the amount of NAEP's cost to the state. MR. MORSE responded that the cost for NAEP administration comes under federal funding, and the costs to individual schools are a small amount of time. He explained that the principal reviews the list of students required to take the tests and determines whether there is a student with a significant cognitive disability, someone sets up the room, and teachers have to deal with some students being pulled from their classroom. The proctors are not active class teachers, but often are retired teachers contracted by NAEP, he remarked. CHAIR KELLER noted that Mr. Morse pointed out several times that if Alaska is not in compliance there is a financial impact, and reiterated that CSHB 156 does not take the state out of compliance with federal law. Rather, he explained, it burdens EED with further responsibility. He pointed out that education in Alaska is a state constitutional requirement and absolutely not a federal mandate. Education in Alaska is a state driven assessment system and the legislature wants to be convinced in order to convince parents as to what is appropriate and beneficial. In effect, he opined, this goes back to Judge Moore's decision that the legislature was not doing its job in overseeing education, a federally mandated program. Further, he stated, it is written in such a manner that the State Board of Education and Early Development determines regulations for the opt out provision and he is open to passing that responsibility to the school districts and they make it a matter of policy for their districts. He opined it is appropriate that the policy comes from the State Board of Education and Early Development as the board has the responsibility of setting policy for Alaska's statewide system. 8:38:59 AM REPRESENTATIVE COLVER referred to AS 14.03.124(b), Sec. 6, page 4, lines 4-9, which read: (b) If the legislature fails to take action on the standards-based assessments or teacher performance standards before the end of the legislative session in which the standards-based assessments or teacher performance standards are submitted to the legislature, or, if submitted during the interim, the standards-based assessments or teacher performance standards on which the legislature failed to act are approved. REPRESENTATIVE COLVER noted the concern of obtaining legislative approval, and pointed out that they are approved if the legislature doesn't act. He asked whether that addresses the concerns of the department. COMMISSIONER HANLEY agreed it does help him as there could simply not be enough time and consequently Alaska's schools would be in limbo. He reiterated that with the relatively short amount of time, the challenge becomes committee members determining whether, within a kindergarten standard, the students should be able to count to 100, or 85. He opined the committee may not want to go there but the challenge becomes huge for the legislature. 8:40:50 AM REPRESENTATIVE SEATON said he is unclear how the department will establish regulations, how it submits something to the legislature, what the procedure is should the legislature fail to act, and asked for clarification. CHAIR KELLER suggested Representative Seaton offer an amendment clarifying that section as the intent of the sponsor "is legislative and ... beyond that dialogue and vetting and interaction ... you know, and so approval would ... as I understand it the only thing we can do is ... the legislature approve something is to pass a bill. So that's where I'm viewing it right now." REPRESENTATIVE SEATON questioned what would happen if the legislature took action and the governor vetoes it, is it the passage of a law, or the passage of a bill through one or both houses. CHAIR KELLER advised he sees it as law. 8:42:27 AM MR. MORSE spoke to the language regarding "if the legislature doesn't act then they are approved," and opined that it mirrors language in the school accreditation standards adopted by the State Board of Education and Early Development. He advised those standards were changed once because school districts asked for a change, and the accreditation process is run by school districts and the department has minimal involvement. He said, "They came to the state board, well ... the way that process works is, we then submit, and I think we submit a letter to the standing committees over our department at the beginning of that session, after that regulation has been put in place. And then, if the legislature doesn't take an action, which I make the assumption that that action would be by passing a law countering what was done, then those standards stay in place." CHAIR KELLER opined that is consistent with case law. 8:44:37 AM REPRESENTATIVE SEATON directed attention to subsection (5), page 2, lines 7-9, and referred to "the methodology used to assign the state public school system a performance designation ..." He surmised Alaska had a performance designation standard based upon the annual measurable objective which is not comparable with other states. He said, "I don't see how, unless we change and make NAEP our public school system performance designation ... and give that somehow throughout classes, we can say that we would fulfill this criteria by using NAEP and only comparing two grades and high school doesn't matter basically about comparing our self to other states." COMMISSIONER HANLEY deferred to the sponsor, and said that was a concern he had expressed in that it appears NAEP will not do everything the department needs it to, and it looks like it is asking for more than the NAEP. But, he noted, the sponsor clarified that NAEP does allow the department to compare in a manner that appears appropriate and meets the needs of the sponsor. 8:46:20 AM CHAIR KELLER referred Representative Seaton to a document he previously passed out depicting AS 14.03.123(a), School and district accountability, which read: (a) By September 1 of each year, the department shall assign a performance designation to each public school and school district and to the state public school system in accordance with (f) of this section. CHAIR KELLER advised it gives the state public school system a designator and specifically refers to subsection (f), which read: (f) In the accountability system for schools and districts required by this section, the department shall ... CHAIR KELLER continued that it is difficult to determine the criteria used to give a state public school system designation in (f) but it does reference academic proficiency. The language in Section 1 discusses a performance designation that compares state public school systems, but it could be amended to include academic performance, he said. He remarked that it doesn't change things in subsection (e) or Sec. 5, because it is not directly related to the requirement. He reiterated that the added Sec. 5, page 2, lines 7-9, was intended for the process used to give the public school system of the State of Alaska a designator which has not been defined in the past, but assumed it was being done but evidentially not. In offering a designator to the state system, he could not imagine who else would be compared to except other states or countries. He reiterated that "or countries" will be deleted. He opined that the interest from policy makers is "how are we doing," which is a valid question so the self-designator which is done by the department for the public school system is valuable. 8:48:52 AM REPRESENTATIVE SEATON questioned whether the students are allowed to opt out of the randomized student selection across the state for NAEP, can it still be utilized to compare nationally. He said, "We have a mechanism for actually schools to take all their lower performing students and not have them participate in NAEP, or in the test, and then change the comparison." COMMISSIONER HANLEY pointed out that the opportunity to opt out creates the risk of altering the sample size which could jeopardize the outcome and national comparability. He advised that NAEP has a methodology of choosing schools and districts around the state. 8:50:20 AM REPRESENTATIVE DRUMMOND referred to the statement that the principal of the school reviews the list of the students chosen to take the NAEP test and perhaps remove a child with cognitive disabilities, and asked for an explanation in how it is a randomized test if the principal can remove students from the list. MR. MORSE responded that students with a severe cognitive disability take an alternate assessment and never take a standardized assessment in any testing condition as it would provide an invalid score. Also, he pointed out, a principal may be able to remove a student, for example, an enrolled student is in the hospital on medical leave but performing studies through the district in a correspondence set up. In the event a student is removed in that manner, the sample pulls another student that fits the demographic makeup of the student removed, he explained. 8:52:34 AM CHAIR KELLER read 4 AAC 06.820(b), "A school or district may not systemically exclude students from assessment." He opined that is a red flag which includes the motivation of HB 156, as to say Alaska cannot systemically exclude students from assessment if that is a constitutional issue and a fundamental right of the parents, if systemically means that Alaska cannot pass laws to allow for an opt out, that's what motivates him. 8:53:24 AM REPRESENTATIVE VAZQUEZ opined that NAEP is administered on a random sampling basis and asked whether there is a nationally recognized standardized test that is provided or given to each student. She noted that NAEP may have a useful purpose but for the individual parents who may want to know how their child is doing compared to the rest of the students in the state, or the nation, whether there is a mechanism for that type of testing. COMMISSIONER HANLEY offered there is not a national assessment to compare students, but statewide there is the standards-based assessment (AMP) that measures students on their proficiency which does allow for a statewide comparison. REPRESENTATIVE VAZQUEZ questioned whether he is saying there is nothing out there that other states may be using comparing students across state lines. COMMISSIONER HANLEY responded "No, I'm not because what that would require is that all states participate." He offered there are international tests but those are by state choice. 8:55:36 AM REPRESENTATIVE DRUMMOND asked what the department considers the SAT and ACT in that respect as they are self-selected tests any child can take at the end of their K-12 education, but it provides a comparison to other students. MR. MORSE responded it is a national test in that all students across the nation have a choice to take it, but it isn't a comparative test as not all students participate. He added that there are other "norm referenced" assessments, but are norm referenced to a group of students drawn across the country who took it when the norms were set, but not all states offer any single tests. He pointed out that for ongoing comparisons in how Alaska's students perform over the years relative to other states at the individual student level, no tool has been used in that manner in the state's educational history. COMMISSIONER HANLEY added that Alaska's students perform well, nationwide, on the SAT and ACT. He opined that is due to larger groups of students taking the tests in other states, whereas, Alaska has always been a voluntary system based upon parent's payments until last year. Therefore, the sampling is small compared to other states, skewing the statistics. 8:57:57 AM REPRESENTATIVE SEATON referred to AS 14.03.123(d), Sec. 2, page 2, line 17-20, which read: (d) ... The improvement plan must give preference  to measures that increase local control of education  and parental choice and that do not require a direct  increase in state or federal funding for the school or  district. REPRESENTATIVE SEATON advised that subsection (d) is with regard to a public school or district that received a low performing designation in that it must submit an improvement plan to the department. He referred to the new language, in that it includes "must" for the improvement plan and questioned how it works in a local district. He noted that a portion of the problem is that a local district, charged with the education, has been low performing and according to the new language more local control must be given to the low performing district. COMMISSIONER HANLEY advised that the department always gives preference to finding ways to empower local communities. Interestingly, he noted, Judge Sharon Gleason in Moore v. State, Dept. of Natural Resources, 992 P.2d 576 (Alaska 1999), found the state deficient when local districts were not performing well and local control had failed to make changes to that and the state had failed to step in and provide additional oversight and support, it was negligent in its duty. For example, he explained, a trustee was in the state's lowest performing school district and that strategy was met with great resistance as he represented the state. He opined this as being problematic and the department works to engage local districts to the greatest extent possible. 9:01:24 AM REPRESENTATIVE SEATON stated he does not understand how, with a low performing designation school district, they must give preference to greater local control when it had complete local control of the curriculum previously, and questioned whether the legislature fulfills its obligation to be responsible for education. COMMISSIONER HANLEY stated the requirements for schools that receive low performance designations, in this section, determine the school improvement plans. With regard to the 12 lowest [designator] schools, the state provides coaches and additional support. He advised the state's preference is to advise the school of its weaknesses and work with the teachers, principals, and superintendents, as to where they believe the state could be of the most assistance. He said he understands the concern of a mandate on local control, but does not see it as problematic. 9:03:40 AM CHAIR KELLER opined that he is gratified this is EED's policy, which is the purpose of the section, as ultimately the answer to a quality education is engagement of the parents, communities, and local school districts. 9:04:38 AM CHAIR KELLER announced CSHB 156 is held in committee.