State of Louisiana FOR IMMEDIATE RELEASE
Office of the Governor June 26, 2014 GOVERNOR BOBBY JINDAL Press Office: Mike Reed Contact: 225-342-8006, (c) 225-247-5028 |
Gov. Jindal Executive Counsel Debunks Superintendent Legal Claims on Having to Implement Common Core
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BATON ROUGE - The following is a legal memorandum from Thomas Enright, Executive Counsel to Governor Jindal, debunking recent assertions by the Louisiana Superintendent of Education and the President of the State Board of Elementary and Secondary Education that it is illegal for the state not to follow the Common Core Standards and implement the PARCC assessment.
The conclusions of the memo are summarized below, and presented more fully in the body of this memorandum.
1) The legislature is clear when it adopts a statewide code or set of standards, and it has not done so with Common Core or PARCC.
2) The applicable law requires that 2014-2015 standards-based assessments be based on “nationally recognized content standards”, but does not define that term. Further, the applicable law does not specify any particular provider of standards-based assessments, and there are multiple providers of assessment products other than the one developed by PARCC.
3) The applicable law does not specify any specific content standard for the State of Louisiana and does not prohibit the state from developing its own content standards.
MEMORANDUM
This memorandum is written in the context of recent executive orders and other directives issued to the state Department of Education (LDE) and State Board of Elementary and Secondary Education (BESE) that those two entities undertake a competitive process to obtain standardized assessment products for elementary and secondary level schoolchildren for the 2014-2015 school year.
In response, there have been several assertions made by the superintendent of the LDE and president of BESE that compliance with the executive orders and other directives is impossible because Louisiana law mandates that Common Core State Standards (Common Core) content standards and Partnership for Assessment of Readiness of College and Careers (PARCC) assessment products be utilized. Media reports quote the superintendent of education as asserting that it would be illegal and/or unconstitutional for the state to use a non-Common Core set of standards or a non-PARCC assessment product. The media accounts lack any specific citation to law in support of these assertions; however, the applicable statutory provisions remain the same as discussed throughout this memo – R.S. 17:24.4.
This memorandum addresses provisions of Louisiana law applicable to the development of standards and assessment products for the 2014-2015 school year, and whether these Louisiana laws actually mandate the use of Common Core and PARCC without any mention of them by name.
Summary:
For the reasons herein, we disagree with the assertion that Louisiana law mandates the use of Common Core or PARCC. These conclusions are summarized below, and presented more fully in the body of this memorandum.
1) The legislature is clear when it adopts a statewide code or set of standards, and it has not done so with Common Core or PARCC.
2) The applicable law requires that 2014-2015 standards-based assessments be based on “nationally recognized content standards”, but does not define that term. Further, the applicable law does not specify any particular provider of standards-based assessments, and there are multiple providers of assessment products other than the one developed by PARCC.
3) The applicable law does not specify any specific content standard for the State of Louisiana and does not prohibit the state from developing its own content standards.
Rationale:
1) The legislature is clear when it adopts a statewide code or set of standards, and it has not done so with Common Core or PARCC.
When the legislature intends the adoption of a specific set of standards or specific uniform code, it appropriately refers to such within the legislation. Just this legislative session, House Bill 1048 sought statewide adoption of portions of the International Plumbing Code and International Residential Code (VII-Plumbing). In the Original bill, HB 1048 specifically named those codes to eliminate any confusion what Louisiana law would be, if the bill passed. There is no Louisiana law that mandates the use of Common Core or PARCC. Moreover, those names and/or terms do not appear in Louisiana law.
There are many examples in Louisiana law where the Legislature has enacted national standards or codes, including:
• La. R.S. 9:2601, et. seq. – Louisiana Uniform Electronic Transactions Act
o This Chapter is intended and shall be construed to constitute an enactment or adoption of the Uniform Electronic Transactions Act as approved and recommended for enactment in all states by the National Conference of Commissioners on Uniform State Laws in 1999.
• La. R.S. 9:3831, et. seq. – Uniform Law for Simplification of Fiduciary Security Transfers
o This Chapter shall be so construed as to effectuate its general purpose to make uniform the law of those states which enact it, and it may be cited as the Uniform Law for Simplification of Fiduciary Security Transfers. La. R.S. 9:38:40
• La. R.S. 10 § 1-101, et. seq.- Uniform Commercial Code
o §1-101. Short titles (a) This Title may be cited as the Uniform Commercial Code.
• La. R.S. 37:146.1 – Licensing of Architecture
o Must complete training requirements est. by the National Council of Architectural Registration Boards.
o Must have a certificate record by the National Council of Architectural Registration Board.
• La. R.S. 40:1730.28 – State Uniform Construction Code-
o including International Building Code, International Existing Building Code, International Residence Code – does exempt certain chapters; including: Administrative, Accessibility, Electrical and Plumbing, etc., International Mechanical Code, International Fuel Gas Code.
• La. R.S. 40:1578.7 – State Uniform Fire Prevention Code
o A. It is hereby found and declared by the legislature that the protection of life and property will be enhanced by adoption of the National Fire Prevention Code, as it is published by the National Fire Protection Association.
• La. R.S. 13:1801, et seq- Uniform Child Custody Jurisdiction and Enforcement Act
o This Part may be cited as the Uniform Child Custody Jurisdiction and Enforcement Act.
• La. R.S. 13:3822- Uniform Interstate Depositions and Discovery Act
o (Uniform Foreign Depositions Law)
o R.S. 13:3821 and 13:3822 shall be so interpreted and construed as to effectuate its general purposes to make uniform the law of those states which enact it, and may be cited as the Uniform Foreign Depositions Law.
2) The applicable law requires that 2014-2015 standards-based assessments be based on “nationally recognized content standards”, but does not define that term. Further, the applicable law does not specify any particular provider of standards-based assessments, and there are multiple providers of assessment products other than the one developed by PARCC.
La. R.S. 17:24.4 addresses 2014-2015 standards-based assessments. In 17:24.4(F)(1)(d), it provides:
“(d) Beginning with the 2014-2015 school year, standards-based assessments implemented by the State Board of Elementary and Secondary Education in English language arts and mathematics shall be based on nationally recognized content standards that represent the knowledge and skills needed for students to successfully transition to postsecondary education and the workplace. Rigorous student achievement standards shall be set with reference to test scores of the same grade levels nationally.”
The statute requires that these assessments be “based on nationally recognized content standards” (emphasis added). First, as the phrase “nationally recognized content standards” is undefined, that makes clear there is no reference to either Common Core or PARCC. Additionally, the use of the phrase “based on” clearly establishes a starting point (“nationally recognized content standards”) but then allows for interpretation or divergence from that starting point without becoming so attenuated that the original starting point is lost. This point also reinforces the argument that no particular content standards or assessment product is required by Louisiana law.
3) The applicable law does not specify any specific content standard for the State of Louisiana and does not prohibit the state from developing its own content standards.
The applicable provision of law defines “statewide content standards for required subjects”, establishes a process for recommendations and advice from educational personnel, and requires LDE to implement following BESE approval.
R.S. 17:24.4(A)(4) defines “statewide content standards for required subjects” as:
“statements that define what a student should know or be able to accomplish at the end of a specific time period or grade level or at the completion of a course. Content standards shall represent the knowledge and skills needed for students to successfully transition to postsecondary education and the workplace, as determined by content experts, elementary and secondary educators and school leaders, postsecondary education leaders, and business and industry leaders.”
Act 275 of the 2012 Regular Session updated this definition without expressly naming Common Core, which was plainly in existence at that time. It is also important to note what terms do not appear in this definition. It makes no reference to “national standards” or that the state’s content standards be “based on national standards.” Also, there is no indication that anyone outside this state contribute to our content standards. The definition lists content experts, elementary and secondary educators and school leaders, postsecondary education leaders, and business and industry leaders. It would be very hard to believe that the legislature chose to specifically name this group of people to determine the state’s content standards, but have already dictated in the legislation that Common Core was the only available set of content standards. It is much more plausible that the legislature intended this group of people to be able to develop the standards most suited for our state.
Conclusion:
For the reasons expressed herein, we do not agree with the assertion that Louisiana law mandates the use of Common Core or PARCC, or restricts BESE and LDE from developing Louisiana statewide content standards or standards-based assessments as they are defined and provided in applicable Louisiana law.
R.S. 24.4 (in toto):
§24.4. Louisiana Competency-Based Education Program; statewide standards for required subjects; Louisiana Educational Assessment Program; parish or city school board comprehensive pupil progression plans; waivers
A. As used in this Section, the following words, terms, and phrases shall have the meaning ascribed to them in this Subsection, except when the context clearly indicates a different meaning:
(1) "The Louisiana Competency-Based Education Program" means the coordination of all existing statutory provisions and State Board of Elementary and Secondary Education policies and guidelines to be implemented by the state Department of Education which affect pupil performance with the development and establishment of statewide content standards for required subjects for the public elementary and secondary schools of this state, the complete implementation of the Louisiana Educational Assessment Program, the involvement of all federal instructional programs, vocational programs, special education programs, and teacher education programs in this state, and the pupil progression plans for the public elementary and secondary school systems of this state.
(2) "The Louisiana Educational Assessment Program" means a process of measuring pupil performance in relation to grade appropriate skills, state content standards, and national educational indices.
(3) "Pupil progression plan" means the comprehensive plan developed and adopted by each parish or city school board which shall be based on student performance on the Louisiana Educational Assessment Program with goals and objectives which are compatible with the Louisiana Competency-Based Education Program and which supplements the minimum standards approved by the State Board of Elementary and Secondary Education. A pupil progression plan shall require the student's mastery of grade-appropriate skills before he or she can be recommended for promotion.
(4) "The statewide content standards for required subjects" are statements that define what a student should know or be able to accomplish at the end of a specific time period or grade level or at the completion of a course. Content standards shall represent the knowledge and skills needed for students to successfully transition to postsecondary education and the workplace, as determined by content experts, elementary and secondary educators and school leaders, postsecondary education leaders, and business and industry leaders.
B. The Department of Education, with the approval of the State Board of Elementary and Secondary Education and the Louisiana Legislature, shall begin the Louisiana Competency-Based Education Program, and the recommended effective date shall be January 1, 1980, and said program shall have as its purpose the coordination of all statutory provisions and State Board of Elementary and Secondary Education policies and guidelines to be implemented by the Department of Education which affect student performance.
C. The Louisiana Competency-Based Education Program shall specifically coordinate the following programs in order to emphasize instructional planning and development of the instructional programs and services provided for the students in the public school systems of this state:
(1), (2) Repealed by Acts 1994, 3rd Ex. Sess., No. 1, §3, eff. June 22, 1994.
(3) In-service training programs for all teachers in the public schools as provided by R.S. 17:24.1.
(4) The continuing education program for teachers as provided by R.S. 17:7.3.
(5) The teacher education programs in the colleges and universities in this state through the State Board of Elementary and Secondary Education's authority to approve teacher education programs and certification requirements.
D. The Louisiana Competency-Based Education Program shall also provide for the coordination and involvement of all federal instructional programs such as Chapter I programs, vocational programs, and special education programs; however, the provisions of this Section shall not be construed to supersede the provisions of Act 754 of the 1977 Regular Session with respect to the creation, operation, and administration of special education programs in the state.
E. The state Department of Education shall, with the approval of the State Board of Elementary and Secondary Education, as part of the Louisiana Competency-Based Education Program, develop and establish statewide content standards for required subjects to be taught in the public elementary and secondary schools of this state. The statewide content standards for required subjects shall be implemented by the state Department of Education as approved by the State Board of Elementary and Secondary Education, with recommendations prior to approval and advice from the educational personnel in the public schools and colleges and universities of this state.
F.(1)(a) The Department of Education shall begin implementation of a Louisiana Educational Assessment Program with the approval of the State Board of Elementary and Secondary Education.
(b) Developmental readiness student screening for placement and for planning instruction shall occur upon initial school entry into kindergarten.
(c) Standards-based assessments in English language arts, mathematics, science, and social studies based on state content standards and rigorous student achievement standards set with reference to test scores of students of the same grade level nationally shall be implemented by the State Board of Elementary and Secondary Education. Such tests shall be administered, at a minimum, in grades three through eleven.
(d) Beginning with the 2014-2015 school year, standards-based assessments implemented by the State Board of Elementary and Secondary Education in English language arts and mathematics shall be based on nationally recognized content standards that represent the knowledge and skills needed for students to successfully transition to postsecondary education and the workplace. Rigorous student achievement standards shall be set with reference to test scores of the same grade levels nationally.
(e) The rigor of each standards-based assessment, at a minimum, shall be comparable to national achievement tests, including but not limited to the National Assessment of Education Progress.
(f) The State Board of Elementary and Secondary Education, upon initial implementation of the tests provided for in this Subsection, shall establish by rule adopted in accordance with the Administrative Procedure Act the adequate test score to determine successful performance of the student on each test provided for by this Subsection.
(2) Repealed by Acts 2012, No. 275, §2.
(3)(a) In lieu of the standards-based assessments prescribed in Subparagraphs (1)(c) and (d) of this Subsection, an alternate assessment shall be provided for and administered only to those students with disabilities who meet specific eligibility criteria developed by the state Department of Education and approved by the State Board of Elementary and Secondary Education. A determination of whether any student meets the eligibility criteria established by the state Department of Education shall be made by the student's Individual Education Plan committee and shall be so noted on that student's Individual Education Plan. The alternate assessment developed pursuant to this Paragraph shall be administered on a schedule determined by the state Department of Education and approved by the State Board of Elementary and Secondary Education. The alternate assessment shall be part of the Louisiana Education Assessment Program otherwise provided for in this Subsection and the alternate assessment shall be used for information, accountability, compliance, and planning purposes as provided by the State Board of Elementary and Secondary Education.
(b)(i) In addition to the alternate assessment accommodations adopted to meet the needs of students with significant cognitive disabilities, no later than September 1, 2005, the state Department of Education, with approval of the State Board of Elementary and Secondary Education, shall develop modified achievement standards and use alternative assessments to accommodate those students who are assessed with persistent academic disabilities but who are likely to make significant progress.
(ii) Students with persistent academic disabilities shall be allowed to take academic assessments that are sensitive to measuring progress in their learning and that recognize their individual needs. Academic assessments are to be geared specifically toward accommodating students to enable them to perform on standards-based assessments prescribed in Subparagraphs (1)(c) and (d) of this Subsection. Such accommodations shall include at a minimum verbalized test questions and shall provide for writing assistance of a scribe and any other accommodations deemed appropriate by the student's Individual Education Plan committee. However, any such accommodations shall not breach test security or invalidate the meaning of the test score or the purpose of the test.
(iii) At each IEP meeting a written list of accommodations shall be discussed and provided to the parent of each student with a disability.
(4)(a) In addition to the other requirements of this Subsection, the state Department of Education shall establish, subject to the approval of the State Board of Elementary and Secondary Education, the level of achievement on certain of the tests or on certain portions of the tests given as required in this Subsection in fourth and eighth grades as definitive of the level of the student's proficiency in mathematics, English language arts, science, and social studies. Fourth and eighth grade students shall be required to demonstrate proficiency on such tests in order to advance to grades five and nine, pursuant to rules adopted by the State Board of Elementary and Secondary Education in accordance with the Administrative Procedure Act. Such proficiency levels shall be set with reference to test scores of students of the same grade level nationally. The department shall establish, subject to the approval of the State Board of Elementary and Secondary Education, the nature and application of various intervention options in the case of a failure to demonstrate proficiency, which may include remediation, retention in grade, an alternative placement in succeeding grades, or any other option which will support a student's achieving the required proficiency level.
(b) In meeting the requirements of this Paragraph, the department, subject to the approval of the State Board of Elementary and Secondary Education, shall:
(i) Establish a process for consistently seeking and considering input from teachers, administrators, city and parish school board members, legislators, parents, business leaders, and other persons in the community in developing and establishing the proficiency levels and the intervention options provided for in this Paragraph.
(ii) Develop a time line for: establishing the levels of achievement which shall be indicative and definitive of student proficiency, establishing the intervention options which proceed from failure of a student to achieve the level necessary to demonstrate proficiency, and piloting such levels and interventions no later than the 1998-1999 school year.
(iii) Implement the provisions of this Paragraph fully by the 1999-2000 school year.
G.(1) Each city and parish school board shall appoint a committee which shall be representative of the parents of the school district under the authority of such school board. Each committee shall participate and have input in the development of the pupil progression plans provided for in this Section. Each parish or city school board shall develop and submit to the state Department of Education for approval by the State Board of Elementary and Secondary Education a pupil progression plan which shall be in accordance with the requirements of this Section and be based upon student achievement, performance, and proficiency on tests required by this Section. Beginning with the 1998-1999 school year and thereafter, approval by the State Board of Elementary and Secondary Education shall not be required for a pupil progression plan.
(2) Each parish or city school board plan for pupil progression shall be based upon local goals and objectives which are compatible with the Louisiana Competency-Based Education Program numerated in R.S. 17:24.4(B), which comply with the provisions of R.S. 17:24.4(A)(3), and which supplement the performance standards approved by the State Board of Elementary and Secondary Education.
(3)(a) Each local school board shall establish a policy regarding student promotion or placement which shall comply with the provisions of this Section, including the requirements for pupil progression plans.
(b) Particular emphasis shall be placed upon the student's proficiency in grade appropriate skills which may be considered in promotion and placement; however, each local school board shall establish a policy regarding student promotion or placement.
(4)(a) The governing body of each school with students required by law or a rule of the State Board of Elementary and Secondary Education to participate in the Louisiana Educational Assessment Program shall develop a policy with the participation and input of the committee provided for in this Subsection which shall, at a minimum, conform to any rule adopted by the State Board of Elementary and Secondary Education regarding pupil promotion. Following this policy, each teacher shall, on an individualized basis, determine promotion or placement of each student. Each such governing body may review promotion and placement decisions in order to ensure compliance with its established policy. Review may be initiated by the governing body, the superintendent, or a student's parent or guardian. Those students who fail to meet required achievement levels on the state administered standards-based assessments of the Louisiana Educational Assessment Program shall be offered education programs designed to accelerate progress that comply with regulations adopted by the State Board of Elementary and Secondary Education. Such programs shall include, at a minimum, the offering of a summer school remediation program to all students who do not meet the minimum achievement level necessary to be fully promoted to the fifth or ninth grade as established by the State Board of Elementary and Secondary Education rule.
(b) Summer school remediation programs as required in this Section shall meet minimum requirements as established by rule of the State Board of Elementary and Secondary Education and shall be funded in part with a state appropriation specifically for such purpose and in part with other funds available to each governing body of schools required by this Paragraph to provide summer school remediation programs. The Department of Education may allocate and disburse the money appropriated for summer school remediation programs to such governing bodies at the time the number of students who failed to meet the minimum required achievement level is known, rather than on a cost reimbursement basis once the summer school program is complete.
(c) Local school boards may require students who fail to meet the required achievement level on a test necessary for promotion to the next grade to attend a remediation program, including requiring attending the summer remediation program, but shall exempt from such summer program any student whose parent or guardian signs a form which states, at a minimum, all of the following:
(i) That such parent or guardian understands that the student has failed to meet the required achievement level for promotion to the next grade.
(ii) That a summer school remediation program is being offered by the district to improve the skills of students who have failed to meet the required achievement level.
(iii) That the parent or guardian will take the responsibility of remediation to help the student improve his skills necessary for meeting the required achievement level on the test.
(iv) That the student will not be fully promoted to the next grade level unless a retest is taken and the student obtains the required achievement level.
H. The State Board of Elementary and Secondary Education may establish by rule adopted in accordance with the Administrative Procedure Act a procedure whereby the state superintendent of education may grant a waiver allowing any student with an exceptionality, as defined in R.S. 17:1942(B), who fails to meet the required achievement level necessary for promotion to the next grade on a test administered to students pursuant to this Section or policies adopted by the board upon the request of the local superintendent of the school system in which the student is enrolled in school, provided that the student meets certain criteria established by the board relative to attendance, grades, and conduct.
I. The state superintendent of education shall appoint a twelve-member task force to study and identify the causes of low performance by students, including students who are members of any ethnic minority, on statewide proficiency examinations. The task force shall propose to the superintendent a plan to eliminate the causes of low performance and assist students in improving their overall educational skills.
J.(1) Notwithstanding any provision of this Section or any other law to the contrary, a public high school student with an exceptionality as defined in R.S. 17:1942(B), except a gifted or talented student, and who is not pursuing a high school diploma shall not be administered any examination pursuant to this Section or the Louisiana school and district accountability system, including the American College Test, unless one or both of the following apply:
(a) The student's Individualized Education Plan indicates that the examination is an appropriate assessment instrument for the student.
(b) The student's parent or legal guardian requests in writing that the student be administered the examination.
(2) A student who is not administered an examination pursuant to Paragraph (1) of this Subsection shall not be penalized for failure to take the examination. For purposes of this Paragraph, prohibited penalties include but are not limited to:
(a) Withholding of credits toward graduation or denying a student the ability to graduate.
(b) Denying a student the opportunity to participate in an extracurricular activity.
(c) Denying a student the ability to advance to the subsequent grade level.
(3) The absence of test results due to the implementation of Paragraph (1) of this Subsection shall not be factored into or negatively impact the performance score or letter grade assigned to a school or school system, nor shall a school or school system otherwise be penalized in any manner, provided that such absence does not violate any federal law or requirement including the No Child Left Behind Act of 2001 or the Individuals with Disabilities Education Act.
Added by Acts 1979, No. 750, §1, eff. July 20, 1979. Amended by Acts 1980, No. 499, §1; Acts 1984, No. 886, §1, eff. July 20, 1984; Acts 1986, No. 146, §1, eff. July 2, 1986; Acts 1989, No. 408, §1, eff. June 30, 1989; Acts 1989, No. 567, §1; Acts 1993, No. 868, §1; Acts 1994, 3rd Ex. Sess., No. 1, §3, eff. June 22, 1994; Acts 1996, 1st Ex. Sess., No. 40, §1; Acts 1997, No. 1335, §1, eff. July 15, 1997; Acts 1998, 1st Ex. Sess., No. 41, §1, eff. April 24, 1998; Acts 1999, No. 407, §1; Acts 1999, No. 643, §§1, 2; Acts 2005, No. 303, §1, eff. June 29, 2005; Acts 2008, No. 907, §1, eff. July 11, 2008; Acts 2009, No. 276, §1, eff. July 1, 2009; Acts 2009, No. 438, §2; Acts 2010, No. 116, §1; Acts 2012, No. 275, §§1, 2; Acts 2013, No. 151, §1.
NOTE: SEE ACTS 1986, NO. 146, §4.
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