HB 256-REPEAL STATE INTERVENTION IN SCHOOLS  8:38:31 AM CHAIR DICK announced that the next order of business would be HOUSE BILL NO. 256, "An Act repealing provisions relating to the power and duties of the Department of Education and Early Development to intervene in a school district to improve instructional practices." 8:39:19 AM NEIL SLOTNICK, Senior Assistant Attorney General, Labor and State Affairs Section, Civil Division, Department of Law, said three legal issues are raised by HB 256. He said first it creates uncertainty regarding EED authority, second it may have unintended consequences, and third it could leave a void for response by the legislature ensuring that children receive their right to an education as guaranteed to them under the education clause in Article VII, Section 1, of the Constitution of the State of Alaska, and upheld by the Alaska Supreme court. He said one element of that right is accountability. The rightful education is administered in Alaska via locally controlled schools in established districts, which must meet accountability standards established under AS 14.07.123 for the state, as well as under federal law. He said an inherent tension existed between state accountability and local control. Prior to 2008, the authority of EED to exercise accountability was implied through federal law, but not absolute. In 2008, the legislature adopted SB 285, which made it explicit and the department understood that it had the authority to intervene in a district and redirect funding, within the limitations set forth in the bill. In order for the department to intervene requirements were specified, which included: to be initiated only for the purposes of improving instruction; an exit strategy to be pre- established; and the existence of a petition process. The bill provided clarity to help the department understand its scope of authority, and, thus, reduce the previously mentioned tension. He pointed out that HB 256 repeals SB 285 and removes the explicit authority of the department and the restrictions of authority, which results in uncertainty. Under HB 256, he interpreted, it will no longer be as clear how the department should react when implementing the accountability system that state law requires. Intervention can be arrived at via federal law, which is the source of the accountability requirement, but this, he counseled, creates problems. Federal law provides a menu to choose from for intervention purposes, but does not give explicit authority for any of the options. When the state legislature takes action, purposeful intent is behind the action, he said. Under SB 285 the department has explicit authority to redirect funds; if the department makes a finding that doing so will improve the instruction that is offered in a district. Federal law allows the option for intervention and the redirection of funds, but not in a decisive manner, and the resulting unknown allows room for legal debate and possible litigation from either side of the argument. Conversely, clarity increases the potential for collaboration and cooperation between school districts and the department. He provided an example of intervention preparations that were being made by EED, following the adoption of SB 285. The school district initiated a course of action that resulted in the adoption of school reform measures that the department had been considering. The collaborative, cooperative model that was followed subsequently became a model that has proven effective in other districts. He said: Since the passage of SB 285, the department has not intervened in one single school district. Since the passage of SB 285 the department has not redirected the funding in any single district - including those that were already under intervention. 8:46:31 AM MR. SLOTNICK referred to a question previously raised by a committee member regarding unintentional consequences of HB 256, and responded that SB 285 provides better direction than what is available under federal law. Federal law is broad and directs that intervention may occur based on low test scores. However, SB 285 provides that the department may take action only when instructional practices are lacking and require improvement via intervention; representing a limited approach and providing concise direction and understanding. He said a third concern, regarding the adoption of HB 256, is that the legislature may fail to comply with the constitutional requirements, as found in Moore, et al. v. State of Alaska, 3AN-04-9756 CI, (2010); to wit: the state must exercise accountability when it has evidence of chronic low performance and take a more direct and assistive role in the district. When Moore was decided, an accountability and intervention system existed, but the judge found that local control was not adequate. The court required a legislative response, which came in the form of SB 285. By repealing SB 285, without taking alternative measures, he advised that the state would risk falling out of compliance with the legal directives under Moore. The obligation of the legislature is to provide an education for the children. He said it would be appropriate for the legislature to hold the department accountable for oversight, but the districts must also be held accountable. Repealing SB 285 would remove appropriate laws and methods that are in place and may create a void. 8:51:44 AM REPRESENTATIVE CISSNA noted that education in Alaska has been dependent for a long period of time on support from the federal government. The state has assumed a large percentage of the task and efforts have been made to acknowledge, cultivate, and preserve a locally based system, but western cultural rules continue to persist. She asked whether federal funding might be at stake if the state does not comply with mandates from the U.S. Department of Education. MR. SLOTNICK said yes, federal funding could be lost, if the state lacks compliance. 8:54:00 AM REPRESENTATIVE SEATON said that the size and diversity of the state creates unique issues, and communities may differ regarding educational goals. He asked whether repealing the High School Graduation Qualifying Examination (HSGQE) would be a means to integrate flexible community standards; effectively removing the uniform requirement, which may not serve every area's needs. Further, he queried whether the HSGQE is an underpinning criterion that is restrictive. MR. SLOTNICK responded no, and added that nothing restricts school districts and communities from embedding local culture into the curriculum. However, it was made clear under Moore that children must be provided the opportunity to be proficient in reading, writing, and mathematic skills; it is the state's obligation to uphold this constitutional right. 8:57:29 AM REPRESENTATIVE FEIGE noted that the measurable attainment of performance benchmarks need to be required of schools and testing appears to be the only method for determining proficiency. However, if the scores are low there may be any number of contributing factors, including: lack of parental involvement, and poor quality/distracting facilities. The legislature can affect and rectify some situations through statutory requirement and funding directives. He noted that intervention may not be working well in the Yupiit district, but it has been successful elsewhere. Instead of eliminating SB 285, he opined, perhaps additional measures should be added to the statute to enhance the ability of the legislature to intervene specifically in other areas outside of curriculum and teaching methods. He asked whether there are there other legal options to consider, under the existing statutes. MR. SLOTNICK agreed that the legislature has that authority; however, he declined to provide specific actions for committee consideration. 9:01:48 AM REPRESENTATIVE P. WILSON said that Moore names the legislature as the ultimate responsible party. Referring to the committee handout titled "Excerpts from Moore v. State regarding the Need for State Authority to Hold Local Districts Accountable," page 7, she said: [In evaluating the State's responses ... this Court returns once again to the language of the Alaska Constitution, which] places the responsibility 'to maintain a system of public schools open to all children of the State' squarely upon the Legislature. ... To date, the State has not demonstrated that the delegation of this responsibility to school districts, through local control, have been identified as chronically underperforming, but do not appear to have been accorded adequate assistance and oversight, will result in compliance with this constitutional responsibility. REPRESENTATIVE P. WILSON opined that the responsibility to establish the best course of action rests with the legislators, and specifically the current members of the House Education Standing Committee. The exit exam results indicate that there is a problem, but she said, administering the exam in high school might be too late to affect a student's outcome. She said the test could be given earlier with better results, and, thus the committee should consider re-evaluating current practices and making necessary changes, rather than repealing SB 285. 9:04:09 AM CHAIR DICK agreed that the onus resides in the legislature. The Yupiit intervention has not had a good outcome, and the education committee is ultimately responsible. He underscored his concern for creating a standalone intervention approach that will not be dependent on administrative changes. 9:06:57 AM REPRESENTATIVE SEATON referred to the committee handout titled "Excerpts from Moore v. State regarding the Need for State Authority to Hold Local Districts Accountable," page 1, paragraph titled "Pages 100-101," and read [original punctuation provided] ... the opportunity to acquire the basic tools they need to succeed in both traditional and global societies. REPRESENTATIVE SEATON pointed out that the current testing regimen is based on the standards of the global society and does not measure whether a student is capable of functioning in a traditional society. He said if the traditional society concerns are a focus, they are being ignored. If the mission exists, as the court has stated, to address both of these areas, he asked if the state is in jeopardy of not fulfilling the court's directive. Additionally, he queried if there is a means for the disparate communities to have any influence on which of the two directions should receive the preponderance of focus. 9:08:29 AM MR. SLOTNICK responded that parameters allow local control of education and the setting of local priorities; many examples exist throughout the state. However, Moore is clear that the students also need to have proficiency in reading, writing, and mathematics, to a specific, accountable standard. 9:09:32 AM JEAN MISCHEL, Attorney, Legislative Legal Counsel, agreed with the assistant attorney general's statements, and added that options, other than federal law, exist for guidance in intervention should SB 285 be repealed. Statutory allowances include: an accountability system; reward provisions that are anticipated by the federal law in the form of grants; general supervisory authority as granted to EED over all aspects of the education system; and, she said, "Under Title 14, the legislature is delegated functions both to the department and to the local school boards." When Moore was handed down, stating that the responsibility rests squarely on the shoulders of the legislature, she opined that the court was primarily concerned with the decentralized system of education. The decentralization may not work for some districts lacking the resources or expertise to improve school performance over a period of time; the subject of the Moore litigation. Until 2008, the school system operated under the existing state laws; NCLB was passed in 2001. She opined that in the past the legislature has given direction on how to improve schools and suggested that what may be lacking is a coordination of provisions. The legislative body cannot do specific hiring and firing of school board members or other immediate actions, but funding can be directed to support the hiring of qualified assistance for necessary leadership/expertise/consultants in identified districts. She referred to a previous question from Representative Feige regarding the delegation of responsibility, and said that in the past the Alaska Supreme Court has found that the status quo is a good idea; one size does not fit all but everyone must be afforded an adequate education - however that is defined. The state is required to intervene when failure occurs. Oversight authority by the State Board of Education and EED, in the form of an accountability system, allows for the withholding of funds, closure or take-over of schools, and hiring of experts and technical assistance to help the districts. All of these measures pre-date SB 285. The school system was directed by the state, at one time, prior to local control; a change which may not be working for some communities as well as it does for others. The legislature could rethink the delegation and division of functions, as well as provide additional targeted grant funds. She recommended that the committee review the Moore consent decree, if restructuring is being considered. The settlement agreement came in part from the local school districts that were asking for the interventions. She said the ideas contained in the decree are on a statewide level. One of the main differences in the function of the consent decree versus the current school district authority is that kindergarten is not mandatory, neither is the funding of pre-schools outside of a few pilot programs. The Moore consent decree also calls for targeted grant funds to help with school improvement and specifically to pay for teacher development and training that includes a four week pre-classroom cultural training course, and an oversight advisory body. The consent decree goes beyond the five intervention districts and the legislature could devise a more specific system in state law. Also, curriculum and standards can be established under state statute. CHAIR DICK asked the committee to hold further questions. [HB 256 was held over.]