The Joint Legislative Committee on Administrative Rules (JLCAR), which oversees the rulemaking process to ensure that all rules align with state and federal laws, has issued a preliminary objection to the Learn Everywhere proposal put forth by the Department of Education.
The preliminary objection puts the proposal on hold until the Department responds to the violations.
On Thursday, July 18, the room and hallways in the Legislative Office Building were packed with protesters and members of the public wishing to comment on the proposed rules.
Many noted that they were repeating the same concerns that they raised to the State Board: the rules reflect an overreach of the Department of Education; the proposal erodes local control that lawmakers and the state have long upheld; and that lawmakers were misled in the legislative discussion about SB 435 in 2018, which authorized the State Board of Education to adopt rules regarding “alternative education” programs, but did not explicitly state that local districts would be forced to accept credits earned in Learn Everywhere programs.
Ultimately, Senator Jay Kahn (D-District 10) made the motion for a preliminary objection, which passed in a 6-4 vote. The objection includes the six potential violations that were identified by JLCAR Committee staff, as well as two that were added based on public testimony.
“The Department can’t assume authority for curriculum approval that, by statute, is provided to school districts,” Kahn wrote in a press statement.
Violations cited in the preliminary objection
Committee Attorney Christina Muñiz told the committee that the potential violations cited by JLCAR staff are largely in reference to the specific rules that require school districts to accept “at least ⅓” of the total number of credits required for graduation.
The Committee found that the Learn Everywhere rules, as proposed, are contrary to legislative intent because they:
- Remove the authority of the local school board in granting academic credit for Learn Everywhere programs; and,
- Mandate that a school grant credit when the school has no say in approving the curriculum of the course or program for which credit is being granted.
When it comes to public education, state law favors local control. The State Board of Education sets minimum academic standards, and local districts determine the academic curriculum aligned to those standards and “thus [have the power to] award credit to students.”
But, according to the Committee, Learn Everywhere as currently proposed violates these laws. By requiring schools to accept “at least ⅓” of the total number of credits required for graduation, districts give up their authority to approve programs and curriculum, which could raise legal questions.
The proposal “violates the statute because it requires districts to accept credit for curriculum that it has not approved,” Senator Kahn told the committee.
This presents another potential violation: lawmakers may not have been informed of the full implications of the original bill, SB 435, when they passed it in 2018.
“It could be inferred that the legislative intent was to allow the State Board [of Education] to adopt rules to approve alternative programs, but that in doing so it would not eliminate the school boards’ authority to approve the program,” wrote Muñiz in her report.
During legislative hearings, Muñiz noted that the Commissioner of Education did not clearly state that school districts would lose their authority to have the final say in granting academic credit for Learn Everywhere programs.
Representative Carol McGuire (R-Merrimack) told the committee that determining the intent of lawmakers might be tricky, since some Representatives testified that they fully understood what would come of SB 435, while others said they were shocked.
House Education Committee member Representative Mary Heath (D-Hillsborough) who served on the committee when SB 435 was brought up, told the JLCAR Committee she was “very surprised” when the Learn Everywhere rules were first presented:
“I spoke with Commissioner Edelblut prior to the hearing in the House Education Committee and then during the hearing, my questions to him in regard to SB 435 were, ‘did this bill attempt to change the authority of the local school districts to grant credit?’”
“I further asked, ‘Would this bill usurp the authority of LEAs in assigning credit?’”
“He said ‘no’ to both questions.”
Questions around SB 140
When considering legislative intent, lawmakers pointed to SB 140, a bill that would have nullified Learn Everywhere and placed the sole credit-granting authority with local school boards. The bill easily passed both the House and Senate, but was vetoed by the Governor on July 10.
One Committee member asked whether JLCAR should consider SB 140 when determining legislative intent.
“As far as the legislative history that is considered, it is only legislation that have reached statute… Those that have been signed by the Governor are considered,” explained Muñiz.
Contrary to Public Interest
The Committee also found that the Learn Everywhere rules, as proposed, are contrary to the public interest. The Committee stated that the rules:
- Create a situation where a school may not know what programs would be considered ELOs, when they would have to approve the credit, or Learn Everywhere programs, when they would have to accept the credit without approving the content and curriculum;
- Do not require Learn Everywhere educators and staff to be credentialed, which is required of all alternative education programs;
- Do not specify how a school district should handle Learn Everywhere credits if a student has already fulfilled a credit area or competency in their school; and,
- Does not require Learn Everywhere programs to have a policy for student safety from bullying, harassment, or abuse, or a grievance policy and an appeals process consistent with existing education rules.
Senator Kahn explained that the rules, in four different instances, are contrary to the public interest because they are unclear and could lead to schools not knowing how to implement them, or different schools implementing them differently. “Public interest” does not consider whether the rules are good or bad policy. (For more on JLCAR’s role and what they consider, click here.)
According to the Committee, there is no clarity around what would constitute an Extended Learning Opportunity and what would be a Learn Everywhere program. They are not mutually exclusive and have overlapping elements. (Read more about ELOs here.)
Both grant credit for learning outside of the classroom. But in an ELO, a student works with an educator to map out how their experience–whether it is an internship, community service, online course, apprenticeship, or something else–meets the specific competencies set by the local school. The educator must approve the ELO before the student begins.
With a Learn Everywhere program, the student gives a certificate of completion to the school after they complete the program or course. The school has no say in whether it meets the district’s competencies.
But, since there are many overlapping elements, it is unclear what the difference between an ELO program is and what a Learn Everywhere program would be.
The Committee also raised concerns with educator credentialing. Education rules define alternative programs, set requirements for them, and require that educators in an alternative program meet the same certification requirements as those in public schools.
However, under the current rules, educators and staff in a Learn Everywhere program do not need to be certified.
“The conflict creates a situation where the school districts would be accepting credit from a program without knowledge of the teacher’s credentials,” Senator Kahn stated.
One of the violations that were included was a result of public testimony: the lack of safety policies for Learn Everywhere programs. Under the current rules, Learn Everywhere program providers are not required to have a policy that protects students from bullying, abuse, or harassment.
Committee members added a violation to Senator Kahn’s proposed preliminary objection regarding special education, stating that the Learn Everywhere rules go beyond legislative intent by including special education courses that do not result in credit towards graduation.
“I think we need to include the rule pointed out by Mr. Zelin [on behalf of the NH Association of Special Education Administrators] that says that it expands the authority by including special education courses that do not have graduation credit, because I think that may well be against the legislative intent,” Representative Carol McGuire continued.
The Committee cited that certain students with IEPs who do not receive graduation credit (rather, they may work towards learning goals) would be excluded from receiving credit under the Learn Everywhere program.
The Committee unanimously agreed to include the violation to the preliminary objection.
A note about preliminary objections
It is the role of JLCAR Committee Attorneys to flag potential violations for the consideration of the Committee. The Commissioner, in his testimony, pointed out that the attorney’s report uses the word “may” when referring to potential objections, and is therefore not definitive. However, Christina Muñiz, the attorney who wrote the report, clarified for the Commissioner and JLCAR that Committee Staff suggest potential conflicts or areas of concern with proposed rules, and therefore, regularly use the term “may” when identifying potential violations.
Muñiz explained that this is a legal requirement, as they are unable to make those types of determinations. That is the role of JLCAR, she stated.
What happens next
The Department of Education must respond to each of the eight identified violations by Tuesday, September 3, 2019. It may change the rules in an attempt to resolve the violations, explain why the rule as written does not violate the law, or withdraw the rules in their entirety.
After the Department responds, JLCAR will review the rules at an upcoming meeting. It can only address the eight violations that were identified in its preliminary objection.
The entire Learn Everywhere proposal is put on hold while JLCAR considers it, even though its objections are for specific, individual rules within the proposal.
If JLCAR determines that the Department did not resolve the violations within the rules, it may take one or both of the following actions:
- Issue a permanent objection, whereupon the specific, individual rule or rules cannot be adopted. All other parts of the proposal may be adopted and go into effect.
- Sponsor a joint resolution, where Committee members draft a bill that resolves any issues, open questions, or action items. This bill goes through the same legislative process as any other bill.