Certified Final Objection No. 150 of the
At its meeting on July 18, 2019, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:13, IV, to enter a preliminary objection to Final Proposal 2019-5 containing rules Ed 1400 of the Board of Education (Board) relating to the Learn Everywhere Program for high school graduation credit. The objection was based on the annotations to the Final Proposal by Committee staff and public testimony. The Board responded in a letter and rules dated August 8, 2019 containing various amendments to the Final Proposal.
At its meeting on October 17, 2019, the Committee voted, pursuant to RSA 541-A:13, V(f), to enter a final objection to Final Proposal 2019-5 as amended in the Objection Response. The final objection has been filed with the Director of the Office of Legislative Services for publication in the New Hampshire Rulemaking Register. The effect of a final objection is stated in RSA 541-A:13, VI:
After a final objection by the committee to a provision of a rule is filed with the director under subparagraph V(f), the burden of proof thereafter shall be on the agency in any action for judicial review or for enforcement of the provision to establish that the part objected to is within the authority delegated to the agency, is consistent with the intent of the legislature, is in the public interest, or does not have a substantial economic impact not recognized in the fiscal impact statement. If the agency fails to meet its burden of proof, the court shall declare the whole or portion of the rule objected to invalid. The failure of the committee to object to a rule shall not be an implied legislative authorization of its substantive or procedural lawfulness.
The following summarizes the bases for the Committee’s final objection. Further documentation, including the Board’s written response to the preliminary objection, Committee staff’s comments to the rules, and a transcript of the Committee meeting on October 17, 2019, is available from the Office of Legislative Services:
The Committee objected that Ed 1407.02(a) was, pursuant to Committee Rules 402.02(a) and 402.01(b), contrary to legislative intent, respectively, by violating the specific statute RSA 193-E:2-a, V(a) and the more general statutory purpose clause RSA 193-E:1, II.
A “Learn Everywhere Program” pursuant to Ed 1400 is a Board-approved alternative program for granting credit leading to high school graduation. Ed 1407.02 addresses the issuing of credit by school districts. Ed 1407.02(a) states that, “Notwithstanding Ed 306, schools shall accept at least 1/3, and may accept as much as 100 percent if approved by the superintendent, of the total number of credits required for high school graduation, if requested by a student pursuant to (c) below.” Ed 1407.02(c) requires the student who completed a program to submit a completion certificate to the high school where he or she wishes to be granted credit.
Certified Final Objection No. 150 of the
RSA 193-E:1, II on policy and purpose of RSA 193-E states:
“II. Respecting New Hampshire's long tradition of community involvement, it is the purpose of this chapter to ensure that appropriate means are established to provide an adequate education through an integrated system of shared responsibility between state and local government. In this system, the state establishes minimum standards for public school approval and academic standards for inclusion and delivery of education services at the local level. School districts have the responsibility and flexibility in implementing diverse educational approaches to instruction and curriculum tailored to meet student needs.” [emphasis added]
RSA 193-E:2-a, V(a) on substantive educational content of an adequate education states:
“(a) The general court requires the state board of education and the department of education to institute procedures for maintaining, updating, improving, and refining the minimum standards for public school approval for each area of education identified in paragraph I. Each school district shall be responsible for maintaining, updating, improving, and refining curriculum. The curriculum shall present educational goals, broad pedagogical approaches and strategies for assisting students in the development of the skills, competencies, and knowledge called for by the minimum standards for public school approval for each area of education identified in paragraph I. It is the responsibility of local teachers, administrators, and school boards to identify and implement approaches best suited for the students in their communities to acquire the skills and knowledge included in the curriculum, to determine the scope, organization, and sequence of course offerings, and to choose the methods of instruction, the activities, and the materials to be used.” [emphasis added]
The minimum school approval standards in the Board’s rules Ed 306 define various terms and describe how much credit a student must have in each subject area to graduate from a school in the state of New Hampshire. The Committee’s understanding from RSA 193-E and the rules in Ed 306 was that curriculum is what is completed to earn credit that would lead to graduation. The “curriculum” is what the schools use to facilitate the learning that leads to competency in an area and thus to the granting of credit. Thus, it appeared to the Committee that proposed rule Ed 1407.02(a) is contrary to legislative intent because it is the Board that is authorized by statute to dictate what minimum amount of credit must be earned by a student to allow him or her to graduate, but it is the school or school district that is authorized by statute to determine what curriculum is appropriate for the students in that community to use to earn the credit.
The Committee determined that, under the provisions of RSA 193-E, that to accept credit is to accept curriculum because curriculum is what leads to competency and thus credit.
The Board’s Objection Response letter disagreed with the Committee’s understanding of RSA 193-E and how credit is awarded. The Board also amended Ed 1402.02 by amending the definition of “competency” and adding a definition of “state competency.” As noted above, the
Certified Final Objection No. 150 of the
Committee found curriculum and credit in the context of RSA 193-E to be connected. The Board did not, for various reasons, which are addressed more fully in its Objection Response cover letter, including reliance on other RSAs which the Committee found were not applicable to the legislative intent of RSA 193-E:1, II and RSA 193-E:2, V(a). Under RSA 193-E it did not appear to the Committee that competencies, curriculum, and credit can be separated from each other in the way the Board asserted.
The Committee concluded that the statutory intent of both RSA 193-E:1, II and RSA 193-E:2-a, V(a) was to create a system of separate authority where the Board mandates the minimum standards for graduation, and the local school districts maintain the specific curriculum which dictates the credit needed for those minimum standards for graduation. The proposed rule Ed 1407.02(a), in requiring a school district to accept completion certificates for up to 1/3 of graduation credits from a Learn Everywhere Program, violates the statutes because it requires the school district to grant credit for curriculum it has not approved.
The Committee objected that Ed 1400 as a whole, pursuant to Committee Rule 402.01(c), was contrary to legislative intent to the extent that Ed 1400 violates the overall purpose of RSA 193-E because the statute delegates to school districts the responsibility for the specific curriculum for which credit is granted.
It appeared to the Committee that the overall purpose of RSA 193-E was to create a system where the Board establishes the minimum academic standards and then the local school districts or schools establish the curriculum based on those minimum standards. It was understood by Committee that curriculum is what is completed to earn credit that would lead to graduation. The minimum standards describe how much credit a student must have in each subject area to graduate from a school in New Hampshire. The curriculum is what the schools use to facilitate the learning that leads to competency in an area and thus to the granting of credit. Therefore, the Committee determined that the purpose of RSA 193-E was to authorize the Board to create a system where the Board dictates what minimum amount of credit must be earned by a student to allow him or her to graduate, but the school or school district must determine what curriculum is appropriate for the students in that community to use to earn the credit.
The Board’s Objection Response letter disagreed with the Committee’s conclusions in a similar manner as with the objection to Ed 1407.02(a) but also asserted that the Committee’s objection to Ed 1400 in its entirety was “overly broad” and therefore “prevents the Board from effectively and substantively responding to concerns of the Committee.”
The Committee objected that Ed 1407.02(a) was, pursuant to Committee Rule 401.01(c), beyond the Board’s authority because RSA 193-E:2-a, V(b) does not give the Board authority to require a school district to grant credit for programs or courses when the school district did not itself approve the curriculum.
Certified Final Objection No. 150 of the
The rulemaking authority for the Board for Ed 1400 is in RSA 193-E:2-a, V(b), which states:
“(b) The state board of education shall adopt rules, pursuant to RSA 541-A, relative to the approval of alternative programs for granting credit leading to graduation.”
Based on the definitions in the Board’s rules Ed 306 governing minimum school approval standards, the Committee understood that competencies are what a student must demonstrate to show that he or she has the required understanding of a subject. Curriculum is what a school, course, or program uses to facilitate the student's learning to ensure he or she can achieve competency. Credit is the record keeping mechanism the school uses to show others that the student has completed the curriculum satisfactorily enough to meet the required competencies.
In the Committee’s view the essence of the Board’s argument that Ed 1407.02(a) is not beyond the Board’s authority is the following assertion in the Board’s Objection Response letter:
“The Board does not concede that RSA 193-E:2-a, V(b) delegates solely to school districts responsibility for specific curriculum, as JLCAR asserts. The plain language of RSA 193-E:2-a, V(b) gives the State Board power for 'approval of alternative programs for granting credit leading to graduation.' This is a mandate to require that the credits be accepted, otherwise they would not lead to graduation.”
The Committee determined that nowhere in RSA 193-E:2-a, V(b) is there a “mandate to require that the credits be accepted.” The statute only says that the Board shall adopt rules “relative to the approval of alternative programs for granting credit leading to graduation.” In the view of the Committee, the Board could create a system of approval for programs that would lead to credit for graduation that the schools could opt into using. The Board could also create rules that would set criteria for the schools to use to approve the alternative programs on their own that would grant credit leading to graduation.
The Committee determined that RSA 193-E:2-a, V(b), given the context of RSA 193-E as a whole, does not give the Board the authority it would like. In the view of the Committee, RSA 193-E:2-a, V(b) only allows the Board to approve alternative programs that would grant credit if the school district accepted it. It did not appear to the Committee to allow the Board to force the school district to accept the credit if it chose not to, and the Committee determined that the Board’s response did not explain adequately how the statute does give the Board this authority.