Best and Proper, Notwithstanding

The as yet unspecified legal theory that the DE has the authority to select a new assessment adopt the Smarter Balanced assessments if the Legislature fails to act may be gaining traction behind the scenes if Thursday’s Advocacy Alert from the IASB and withdrawn amendment H-1294 can be taken as indicators.

The person or persons behind the legal theory remain a mystery, but the theory seems to be a relatively new one:

Exhibit A: This statement in the proposed assessment recommendations provided to the State Board of Education by the DE at the February 11, 2015 meeting:

The Board further recommends the Legislature restore authority to select the accountability assessment given to all K-12 students to the Iowa Department of Education with appropriate oversight from the Board.

Exhibit B: Uncontradicted statements at the Assessment Task Force presentation to the Iowa Senate Education Committee in March 2015 that we, the Task Force, understand that this is a recommendation on assessment and not a decision, the Legislature makes the decision on assessment. [Note that this issue came up at Task Force meetings and the DE was not shy about bringing in DE staff attorneys to offer opinions.]

We might also throw in the failure of Governor Branstad and DE Director Buck to sign a new MOU last July (does perceived lack of authority seem a more plausible reason than honoring the work of the Task Force?) and assessment shell bills being filed in both houses of the Iowa Legislature to preserve the issue past the first funnel deadline, but I think Exhibits A and B are pretty good evidence of the DE’s understanding of the state of the law. After all, if they understood that they had the power to act, why wouldn’t they have acted already? [More on this later.]

The Iowa Constitution, adopted in 1857, is an interesting document and is as good a place as any to start. It created an elected Board of Education to manage “[t]he educational interest of the State, including Common Schools and other educational institutions.” It also provided that the Board may be abolished:

SEC. 15. At any time after the year One thousand eight hundred and sixty three, the General Assembly shall have the power to abolish or re-organize said Board of Education, and provide for the educational interest of the State in any other manner that to them shall seem best and proper.” (Emphasis added.)

As it happens, it didn’t take too long for a General Assembly to exercise said power and the elected Board of Education was abolished in 1864.

[Question: What do elections and the education policy debate look like in alternate universe Iowa where the General Assembly has not abolished an elected State Board of Education? Better, worse, or about the same?]

The codified Iowa Constitution directs us to chapter 256 for statutory provisions.

I have heard it suggested that the DE has broad authority to act unless specifically limited and that the requirement to report is not a specific limitation. I think it would be difficult to argue that the Legislature has not limited DE authority in recent years.

In 2011 the relevant portion of Iowa Code Section 256.7(21) read as follows [note: the linked pdf is over ten thousand pages long, see the two relevant pages only here]:

21. Develop and adopt rules incorporating accountability for, and reporting of, student achievement into the standards and accreditation process described in section 256.11. The rules shall provide for all of the following:

b. A set of core academic indicators in mathematics and reading in grades four, eight, and eleven, a set of core academic indicators in science in grades eight and eleven, and another set of core indicators that includes, but is not limited to, graduation rate, postsecondary education, and successful employment in Iowa. Annually, the department shall report state data for each indicator in the condition of education report.

The relevant portion of Iowa Code Section 256.7(21) now reads as follows:

21. Develop and adopt rules incorporating accountability for, and reporting of, student achievement into the standards and accreditation process described in section 256.11. The rules shall provide for all of the following:

b. A set of core academic indicators in mathematics and reading in grades four, eight, and eleven, a set of core academic indicators in science in grades eight and eleven, and another set of core indicators that includes but is not limited to graduation rate, postsecondary education, and successful employment in Iowa.

(1) Annually, the department shall report state data for each indicator in the condition of education report. Rules adopted pursuant to this subsection shall specify that the approved district-wide assessment of student progress administered for purposes of the core academic indicators shall be the assessment utilized by school districts statewide in the school year beginning July 1, 2011, or a successor assessment administered by the same assessment provider.

(2) Notwithstanding subparagraph (1), for the school year beginning July 1, 2016, and each succeeding school year, the rules shall provide that all students enrolled in school districts in grades three through eleven shall be administered an assessment during the last quarter of the school year that at a minimum assesses the core academic indicators identified in this paragraph “b”; is aligned with the Iowa common core standards in both content and rigor; accurately describes student achievement and growth for purposes of the school, the school district, and state accountability systems; and provides valid, reliable, and fair measures of student progress toward college or career readiness.

(3) The director shall establish an assessment task force to review and make recommendations for a statewide assessment of student progress on the core academic indicators identified pursuant to this paragraph “b”. The task force shall recommend a statewide assessment that is aligned to the Iowa common core standards and is, at a minimum, valid, reliable, tested, and piloted in Iowa. In addition, in developing recommendations, the task force shall consider the costs to school districts and the state in providing and administering such an assessment and the technical support necessary to implement the assessment. The task force shall submit its recommendations in a report to the director, the state board, and the general assembly by January 1, 2015. The task force shall assist with the final development and implementation of the assessment administered pursuant to subparagraph (2). The task force members shall include but not be limited to teachers, school administrators, business leaders, representatives of state agencies, and members of the general public. This subparagraph is repealed July 1, 2020.

(4) The state board shall submit to the general assembly recommendations the state board deems appropriate for modifications of assessments of student progress administered for purposes of this paragraph “b”. (Emphasis added.)

The question is what effect does subparagraph (2) have on the express limitation in subparagraph (1)? As I have noted previously, there is no factual conflict between these subparagraphs because the assessment provider referenced in subparagraph (1) is developing an assessment that meets the minimum requirements specified in subparagraph (2). They are additional requirements to be specified in the rules and, without a conflict between subparagraphs to be resolved, the Legislature need not take any further action on assessments for the Iowa Testing Programs to remain the assessment provider for the State of Iowa.

The “notwithstanding” language makes more sense if we understand that an earlier draft of HF215 contained additional language that would have required the rules to specify that the assessment also be “developed by a consortium in which the state of Iowa is a participant” (an oblique reference to SBAC). This would have been in conflict with the rules specified in subparagraph (1) however, this language was stripped out in conference committee and additional language creating the Assessment Task Force was added.

See also subparagraph (4) which directs that the State Board shall submit recommendations for modifications of assessments rather than shall report modifications of assessments.*

All of this suggests intent by the Legislature to retain authority over choice of assessments rather than return it to the DE, which could more easily be accomplished by sunsetting or striking subparagraph (1) and forgoing subparagraphs (3) (the Assessment Task Force) and (4) (the State Board submitting recommendations).**

It makes no sense to read these subparagraphs as creating authority for the DE to act if the Legislature doesn’t, because the authority was either already returned to the DE or it wasn’t.

Maybe the DE is Dorothy, who just wants to get back home to SBAC, and, having followed the yellow brick Assessment Task Force road to the Great and Powerful Iowa Legislature only to find herself disappointed by the legislators behind the curtain, learns, with the help of the (in our story, publicity shy) Glinda the Good Witch, that she had the power to get herself home to SBAC all along.

Maybe we’ve had front row seats to governance theater without knowing it, where the executive branch plays along with the legislative branch as long as they are getting what they want, but if not, they’ll do what they wanted to do anyway.

Maybe the DE thinks that Iowa students (as young as third grade) should just toughen up and learn to get through much longer assessments. Maybe the DE thinks that more expensive computer-based assessments are better for Iowa students than music and art programs. Maybe the DE thinks that longer assessments are a more valuable use of instructional time than instruction. And maybe the DE thinks that these assessments are worth pretending that other states aren’t having problems with statewide computer-based assessments and that pretending that those problems aren’t happening and that Iowa districts need no further planning and spending to prepare for statewide computer-based assessments is enough to avoid those problems here.

And maybe a majority of the Legislature agrees that the DE is right about all of those things and that the best and proper manner for providing for the educational interests of Iowa is to adopt the Smarter Balanced assessments, in which case they need to vote for it.

*Paragraph added after initial publication.

**Paragraph modified after initial publication.

Advertisements

2 thoughts on “Best and Proper, Notwithstanding

  1. Michele

    The arrogance the Education Committee is stunning. Rep. Ron Jorgensen and Rep. Forrigstal both stated if dont have a PhD then you have no right to state what assessment we take, and ONLY the Dept. of Ed is smart enough to make that decision. Well, you aren’t a CPA so how can you write a budget, you aren’t a lawyer so how do you write Law? Give me a break you little uneducated autocrat. Power to the People, not to th supposed elite.

    Reply
  2. Pingback: Iowa State Board of Ed Decides It Can Select New Assessment | Iowa RestorEd

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s