Authority to Formulate and Approve State Education Standards (Working Document) January 26, 2011

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1 Authority to Formulate and Approve State Education Standards (Working Document) January 26, 2011 It is a primary role of every legislature to write state statutes through legislation. Ultimately, the legislature makes the laws. Legislatures can modify or nullify standards/curriculum/graduation requirements/etc. if there is something that they don t agree with (exception Hawaii) for example, many legislatures have specified in law the courses required for high school graduation. In the case of oversight of state education standards, ultimately legislatures have the power to pass legislation changing statutes; except in cases where authority for education state standards is established by the state constitution (for instance Hawaii) there, the legislature could propose a constitutional amendment to modify that authority. In most states, the state board of education is responsible for formulating and approving state education standards. There are a handful of states where legislative action is necessary, including: Minnesota - Commissioner of Education formulates the standards (no Board of Ed) - The standards are outlined in state statute therefore it is the legislature that determines the standards. Then, the commissioner must adopt rules for implementing the statewide standards. The commissioner must not amend or repeal these rules without specific legislative authorization. In order for the Dept. of Ed to set new standards, or rules of any kind, it must first receive legislative direction. Nevada - The Council to Establish Academic Standards in Education addresses the establishment and revision of the State s academic standards. The Council consists of 8 members; members are appointed by the Governor (4 members) and Legislative Leadership (4 members). The State Board of Education reviews and adopts the standards as submitted by the Council. After adopting a regulation concerning the state standards, the Department of Education must submit a copy of the regulation to the Legislative Counsel for review by the Legislative Commission to determine whether the regulation conforms to the statutory authority pursuant to which it was adopted and whether the regulation carries out the intent of the Legislature in granting that authority. New Hampshire - the. The SBE submits standards to legislature for final approval - there are hearings and legislative action to adopt. Texas - the Legislature grants the board the exclusive authority to adopt the standards. But, the legislature can take away or limit the board's authority over the standards through statute. The Legislature could adopt standards into statute, which could override board action. Vermont - the standards are adopted through the rule-making process and must be approved by a legislative committee on rule-review. All powers of the State BOE are statutory and can be changed. Therefore, the legislature has ultimate control, although there is no express veto provision. Washington - The statute provides that the legislature must be provided time to review and respond prior to the adoption of any changes in state learning standards. To underscore the point, last session SB 6696 (Race to the Top bill) granted State Superintendent authority to provisionally adopt the common core standards, but the legislature retained final authority. However, if the legislature does not act on the CCS during the 2011 session (starts second Monday in January and runs for 105 days) then OPSI can fully adopt common core. LESN responses to ListServ question, September 15, 2010 State (bold if Authority cited by CCSSO / NGA What entity in your state is Does your state require legislative Does your legislature have

2 they have adopted common core) website Green text is from other sources responsible for formulating and approving your state education standards? (In many states, it s the state board of education and in some states, it s the legislature) action before state standards can be fully adopted? oversight and/or veto power over rules/regulations adopted by your state board of education or other standards-authorizing entity? Purple text from Leg Man contacts Red text is from NCSL Legislative Review of Administrative Rules publication, 1990 In some states, review of rules and regulations is a statutory power and in others a constitutional power; within those, legislatures have different structures and authorities for rule review and oversight. Alabama i Alaska ii Arizona (Elected) by resolution ml#a2 Elected (Governor also serves as a member) Pursuant to the Alabama Administrative Procedure Act, rules and regulations adopted by the are subject to oversight and/or veto power by Alabama s Legislative Council, which consists of a portion (32 members) of the Legislature. Resolutions adopted by the SBE, however, are not subject to the oversight and/or veto of the Council. t officially. Legislative staff analyzes all proposed regulations and reports findings to legislators. The staff attempts to complete analysis prior to the end of the public comment period to give legislators a chance to take legislative action before rules go into effect. legislative review of cfm?action=group&contentid=56 Arkansas Oversight only to the extent of

3 California reviewing the rules. veto power. We have an Administrative Rules Section within the bureau now (about 2 yrs old) that tracks all agency rules for review by the Legislative Council. legislative review of Only if they pass legislation to change statutes on the procedure of how standards are adopted Colorado (Elected) The is responsible for adopting the state model content standards - which they did last December (and then adopted Common Core in August!) - the standard don't come back for review by the General Assembly. () - The General Assembly has instructed the Office of Legislative Legal Services to review all of the state board's rules (as well as all of the rules adopted by other executive branch agencies) and to notify the General Assembly of rules that conflict with the statute or are outside the State Board's authority. The General Assembly then takes action to ensure those rules automatically repeal. But, the state model content standards are not adopted as rules under the state's Administrative Procedure Act, so they are not subject to the rule review process. Connecticut Delaware legislative action is required There is no formal process by which the legislative reviews Board decisions on standards. The Board s authority to adopt standards is defined in statute. The legislature could always change the statute by passing legislation. legislative review of legislative regulatory review in Delaware. However, the legislature is free to enact

4 Florida legislation after the fact, if they so desire. Florida has both substantive committee and Joint Administrative Procedures Committee oversight and review of all standards and rules of the state board of education and all other education standardsauthorizing entities. legislative veto. Georgia The Legislature does not have "veto" power over State Board rules, but they can pass new laws or amend existing laws that could require changes to our rules in order to be in compliance with state law. Hawaii (Elected) State board of Ed has constitutional authority over state standards legislative review of (Indirect maybe) Idaho Illinois BOE will vote in vember to submit final version of standards for legislative approval dia_center/current_releases_docs /Common%20Core%20Regional %20Public%20Meetings%20Sept ember%2010% pdf The State Department of Education formulates the standards and the State Board of Education approves the standards. The standards are then formulated into administrative rules that go through an extensive review and are lastly reviewed and voted on by legislative germane committees and then the full Legislature. (Yes). However, the Standards were put out to public comment and went through our Rules adoption process, which culminates in a hearing and approval by the Joint Committee on Administrative Rules (which is comprised of legislators).

5 Indiana Iowa and the Education Roundtable (Co-Chaired by Governor and the elected Superintendent of Public Instruction). On July 29, the State Board adopted the national standards (Common Core) for math and English in place of the Iowa Core Curriculum. According to the Iowa Department of Education, "(T)he Common Core State Standards does not replace our state mandated content standards for Child Left Behind accountability, but becomes part of the Iowa Core, which all schools must implement by 2014." The Administrative Rules Oversight Commission, which is a study committee made up of legislators from both houses may decide to review a rule and suggest legislation for introduction in the General Assembly. The legislature can adopt, and the governor must sign, legislation to repeal a rule The Iowa Code establishes that oversight of state agency rules shall be provided by the Administrative Rules Review Committee, but the State Board did not actually adopt the content standards in rule. If the board had adopted the standards by rule, the bipartisan committee, which is comprised of five senators and five representatives, would have reviewed the rule and would have had various options provided for in Iowa Code Chapter 17A Kansas (Elected) The legislature cannot veto rules and regulations, although it does have a committee that reviews all rules and regulations, and if the committee does not like some items in proposed regulations, it can voice that opinion, which is most often taken into account by the regulatory bodies. Or if not heard, legislators can, of course, develop laws which can have the effect of changing such regulations or take money from agencies. Kentucky Kentucky Board of Education (Appt., Council on Postsecondary Education, Education Professional Standards Kentucky Board of Education Yes, Kentucky statutes include a process that creates the option for legislative committee review and recommendations. The legislative committees may make nonbinding determinations. The Kentucky Board of Education must either accept suggestions or recommendations regarding an

6 Board The three Chairs of these bodies signed a formal resolution directing their agencies to implement the Core Standards. This action made the standards final. The Kentucky Board of Education must submit a proposed regulation dealing with the assessment and accountability system to the Education Assessment and Accountability Regulation Review Subcommittee for review and subsequently depending upon the date of promulgation, review by the Interim Joint Committee on Education, or the standing Senate and House Committees on Education. administrative regulation or issue a concise statement setting forth the reasons for not accepting suggestions or recommendations regarding an administrative regulation. A proposed regulation that either was approved by the appropriate committee or which was not reviewed by the appropriate committee within the timeframe required by statute subsequently becomes law within an established statutory schedule. A regulation found deficient may be implemented but must either be approved by the next session of the General Assembly or cease to be law. Louisiana State Board of Elementary and Secondary Education The State Board of Elementary and Secondary Education (BESE) is responsible for developing and implementing K-12 state education standards. However, once standards are approved by BESE, the rules to implement the standards must be promulgated in accordance with the state s Administrative Procedure Act. (Yes) - All proposed rules must be submitted to the appropriate legislative committee (In this case, the Senate and House committees on education.) before final rules can be promulgated and implemented. The legislative committees with oversight responsibility for a specific agency have the option of holding a hearing on a rule (meeting either separately or jointly), or to allow the rule(s) to become final without a committee hearing. If either the Senate or the House committee disapproves a rule, the rule is then sent to the governor who can override the committee action, thus allowing final adoption and implementation of the rule. Maine The Maine Department of Education, in consultation with Yes, the Maine State Legislature has approval authority over the Yes

7 the Maine State Board of Education, is responsible for formulating state education standards. State standards are promulgated by rule of the Maine Department of Education. rules that are provisionallyadopted by the department. Maryland The BOE adopted the standards marking the beginning of the process of formulating the curriculum. The finalized curriculum based on the standards will require future approval from the BOE. The Joint Committee on Administrative, Executive, and Legislative Review (AELR). functions as the watchdog of the General Assembly in overseeing the activities of State agencies as they relate to regulations. The committee s primary function is to review any regulations that are proposed for adoption by a unit of the Executive Branch of State government to determine whether the regulations conform both with the statutory authority of the unit and the legislative intent of the statute under which the regulations are proposed. Massachusetts Michigan Board of Elementary and Secondary Education (Appt. by Governor) (Elected) Board of Elementary and Secondary Education Michigan's "model" standards are developed by the state board of education. Schools must adopt them (or have similar standards approved) if they want to be accredited., the legislature does not have to approve the standards adopted by the state board.. However, they can pass legislation that changes standards, the legislature does a limited amount of oversight over the rules adopted by the state board. There is a process whereby rules are run through a legislative committee, but they are rarely changed in this process. Minnesota Commissioner of Education. There is no Board of Ed. hrd/pubs/ss/ssk12stan.htm Commissioner of Education. There is no Board of Ed. The standards are outlined in state statute therefore it is the legislature that determines the standards. Then, the commissioner must adopt rules Yes. In order for the Dept. of Ed to set new standards, or rules of any kind, it must first receive legislative direction. The commissioner of education, through a revision cycle, has the authority to set direct oversight once DOE has adopted new standards. The legislature can, and has frequently, passed legislation that modifies academic standards. However, there is no formal legislative review process of standards approved by the Commissioner of Education.

8 for implementing the statewide standards. The commissioner must not amend or repeal these rules without specific legislative authorization. Mississippi by Governor, Lt. Governor, and Speaker of the House Missouri the benchmarks that align to the standards. These benchmarks do not need legislative approval in order to be adopted. The statute ( ) says by rule and regulation the original 1993 law resulted in standards adopted by administrative rule in 1995, effective in Because the revision cycle occurs over a couple years, there are legislative sessions that begin and end during the revision process. In this way, the legislature has oversight and has the opportunity to direct the revision rulemaking process. legislative review of The general assembly has a role to play in the final adoption of administrative rules through its joint committee on administrative rules. Montana Nebraska State Board of Public Education (Appt. Will be voting on adoption in the coming months 1_7 (Elected) Half the board members have expressed concern over adopting the standards State Board of Public Education. But, the legislature passed a law in 2005 that says any rule from the board that will have a significant fiscal impact cannot be implemented until after the next legislative session. This gives the legislature time to initiative a change in rules through legislation. legislative review of Nevada /NEWS01/ (Elected) The Council to Establish Academic Standards first adopted the standards. The BOE The Council to Establish Academic Standards in Education addresses the establishment and revision of the State s academic standards. The Council consists of 8 members; members are Yes. After adopting a regulation concerning the state standards, the Department of Education must submit the a copy of the regulation to the Legislative Counsel for review by the Yes. The Legislative Commission may object to the regulation if it is determined the regulation is: 1) not required; 2) does not conform to statutory authority; or 3) does not carry out legislative intent. In

9 formalized the adoption with their approval appointed by the Governor (4 members) and Legislative Leadership (4 members). The reviews and adopts the standards as submitted by the Council. The State Board may object to the standards and return those standards to the Council with an explanation. The State Board must adopt the standards as resubmitted, with or without revisions. Legislative Commission to determine whether the regulation conforms to the statutory authority pursuant to which it was adopted and whether the regulation carries out the intent of the Legislature in granting that authority. this case, the regulation is not approved and is returned to the agency. New Hampshire New Jersey The Professional Standards Board advises the State Board of Education. The SBE submits standards to legislature for final approval Yes, there are hearings and legislative action to adopt. although the Legislature can pass laws mandating the inclusion of certain items. Yes legislative review of New Mexico Secretary of Public Education (Appt I/dl10/OverviewNativeInputForNM CCSS2010%2008%2018.pdf The Public Education Department under the cabinet Secretary of Public Education The Legislature has no oversight or veto power over agency rule under the separation of powers except by later nullification through statute. legislative review of New York rth Carolina State Board of Regents (Appt. by Legislature) The State Board is responsible for formulating and approving state education standards (though the General Assembly certainly has the power step in and modify or limit standards, if they so choose). Generally, most NC agencies' rules are subject to review and repeal by the General Assembly before those rules can take effect. However, lawyers for the State Board of Education argue that those laws do not apply to the State Board's rulemaking

10 rth Dakota Superintendent of Public Instruction Ohio 11 of 19 members are elected. The rest are appointed by governor Oklahoma by Governor Although Chair of Board is the elected chief state school officer) that is responsible for formulating and approving state curriculum standards, with some direction from the legislature., but the legislature has specified in law the courses required for high school graduation (70 O S ), the scope of social studies curriculum (70 O. S a), AIDS prevention education (70 O.S ), approval of sex education curriculum (70 O.S ), the Passport to Financial Literacy instruction (70 O.S g h), and physical education programs (70 O.S ). because it has constitutional authority to adopt rules. Ultimately, the GA makes the laws in rth Carolina. So the GA could certainly step in and modify standards/curriculum/graduation requirements/etc. if there was something that the GA didn't agree with. Legislative action may be required before some standards are approved if they would conflict with something that is in existing statutes. Yes. The legislative assembly only meets every two years. When not in session, the legislative Administrative Rules Committee can void any rule set by the Superintendent of Public Instruction. Standards are not considered rules and thus are not under the authority of the Joint Administrative Rule Review legislative committee that reviews proposed rules and regulations., the Legislature does not have direct veto power. However, the State Board does have to adopt the standards through the rule making process and under the state s Administrative Procedures Act and the Legislature can in effect have veto power over the administrative rule when it comes through for approval. Under the APA the Legislature can approve, disapprove, or modify the rules when they come through the process for review and approval.

11 Oregon Pennsylvania Rhode Island Board of Regents (Appt. by Governor) The Oversight. Rules are sent to specific legislators and legislative offices for review. legislative review of South Carolina State legislators within each judicial circuit meet to elect the state board member that will represent the judicial district. South Dakota Tennessee SD Board of Education Yes (Appt by Gov.) direct veto authority. The legislature would have to change statute to override any standards. There is a process available to the legislature where it can suspend a rule through legislative enactment. However, curriculum standards are not considered a rule, but instead as a responsibility of the State Board of Ed. Texas State board of education. The Legislature grants the board the exclusive authority to adopt the standards. But, the legislature can take away or limit the board's authority over the standards through statute. The Legislature could adopt standards into statute, which could override board action. Utah Vermont Virginia (Elected) by Governor with advice of the Senate) (Appt by Governor) Yes. The Administrative Rules Committee may review any rule and may recommend proposed legislation to sunset a rule. (Appointed The standards are adopted through the rule-making process and must be approved by a legislative committee on rulereview. action from the full legislature is required All powers of the State BOE are statutory and can be changed. Therefore, the legislature has ultimate control, although there is no express veto provision. veto power. Joint Commission on Administrative Rules, or

12 Washington dex.shtml Superintendent of Public Instruction (Elected) He has provisionally accepted the standards, although the state legislature must review the standards in the 2011 session before formal adoption can occur. Under statute, the Superintendent of Public Instruction (CSSO) has authority to formulate and approve state education standards The basic statute requires that the SPI, on request, provide opportunities for the Education Committees of the legislature to review any proposed modifications to the state learning standards before the modifications are adopted. There is no specificity as to what form this request or opportunity for review actually takes. related legislative committees can object to a proposed rule, and with concurrence of the Governor, suspend the effective date until the end of the next legislative session. (Yes) - The statute provides that the legislature must be provided time to review and respond prior to the adoption of any changes in state learning standards. To underscore the point, last session SB 6696 (our Race to the Top bill) granted our State Superintendent authority to provisionally adopt the common core standards, but the legislature retained final authority. However, if the legislature does not act on the CCS during the 2011 session (starts second Monday in January and runs for 105 days) then OPSI can fully adopt common core. West Virginia Wisconsin State Superintendent (Elected) The old set of standards were developed by an ad hoc committee and issued as an executive order by the Governor. For common core, the State Superintendent (an elected, independent constitutional officer who leads DPI and is charged by the constitution with supervision of public instruction in this state) issued a proclamation adopting Legislative Oversight Commission on Education Accountability can review rules of the State Board but cannot amend or void them. They can make recommendations to the State Board. The legislature is free to pass legislation that is contrary to a rule to override it. State law does prescribe some standards for school districts and weighs in on certain curricular subjects, but it does not address model academic standards. ()

13 Wyoming Washington, D.C. The Standards Review Committees will review and recommend revisions to the common core standards through Dec The BOE will have to vote after the review process to adopt the final standards. Board of Education the new standards.

14 Useful Resources State Board Governance Chart 2010 (double-click image): NASBE Adoption Map: CoreStandards.org Adoption Map: Education Commission of the States (ECS) 2011 Summary: State Boards of Education Appointed by Governor (33 states) Alaska, Arkansas, Arizona, California, Connecticut, Delaware, Florida, Hawaii, Georgia, Idaho, Illinois, Indiana, Iowa, Kentucky, Maine, Maryland, Massachusetts, Missouri, Montana, New Hampshire, New Jersey, rth Carolina, rth Dakota, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Vermont, Virginia, West Virginia and Wyoming Elected (8 states) Alabama, Colorado, Kansas, Michigan, Nebraska, Nevada, Texas and Utah Appointed and Elected (2 states and D.C.) Louisiana and Ohio; District of Columbia (advisory only) Appointed by Legislature (2 states) New York and South Carolina Appointed by Multiple Authorities (2 states) Mississippi and Washington State Board or Advisory Only (3 states and D.C.) Minnesota and Wisconsin (no board); New Mexico and District of Columbia (advisory only) tes i In a memo to Sec. Arne Duncan, the Alabama State Superintendent of Education suggested that some states may be reluctant to pass Common Core because they were included in the RTTT application implying some sort of federal takeover of education. ii In Alaska (32 states total), the Gov. appoints the members of the school board with legislative confirmation. The result appears to be that the Governor has great influence in the Board s decision-making. In 2009, then-gov. Sarah Palin decided Alaska would not participate in Common Core.