The meeting of the Education Assessment and Accountability Review Subcommittee was held on Tuesday, March 27, 2007, at 1:00 PM, in Room 131 of the Capitol Annex. Senator Jack Westwood, Co-Chair, called the meeting to order, and the secretary called the roll.
LRC Staff: Sandy Deaton, Audrey Carr, Jonathan Lowe, and Lisa Moore.
Senator Westwood asked for approval of the minutes from December 5, 2006, and Representative Moberly made the motion to approve, seconded by Representative Rasche. The motion was approved by voice vote. He said the meeting was a continuation of the meeting on March 21, 2007, when no quorum was present. He introduced Mr. Kevin Noland, Interim Commissioner and General Counsel, Kentucky Department of Education (KDE), to provide a brief explanation of administrative regulation 703 KAR 5:020.
Mr. Noland highlighted the changes being implemented from Senate Bill 130 including the ACT, PLAN, and EXPLORER assessments, as well as some changes required by the federal No Child Left Behind Act (NCLB). He also briefed the members on some issues that were discussed in the March 21, 2007, meeting such as not requiring one norm-referenced test (NRT) for all elementary schools and the implementation of PLAN and EXPLORER in middle and high school.
Representative Draud asked if the KDE decided to remove the elementary NRT from the accountability model. Mr. Noland said the Kentucky Board of Education (KBE) decided this was the best approach after receiving input from several different groups such as the School Curriculum Assessment and Accountability Council (SCAAC), the Kentucky Association of School Superintendents (KASS), the National Technical Advisory Panel for Assessment and Accountability (NTAPPA), and the Local Superintendents Advisory Council (LSAC).
Representative Draud said he believes that it should be a part of the accountability model and he believes the education groups overlooked the public's viewpoint of the issue, which was to keep the standardized test in the accountability model. His second question was why the Kentucky Board of Education (KBE) moved away from one standardized test and will allow school districts to choose a NRT.
Mr. Noland said school districts had to use a NRT approved by KDE, but any test they chose, has national normed comparisons at the elementary school level because there are other states and school districts using the same test. Representative Draud asked why Kentucky had to use so many different tests, and Mr. Noland said many school districts are already doing this on their own, but flexibility needs to be kept in place because of sensitivity to the amount of testing that schools are required to do. The federal NCLB has added additional testing in all those grades and it is important not to have third graders taking duplicative tests.
Representative Draud asked how the above changes improve the situation with obtaining accurate test data. Mr. Noland asked if he meant improvement in disseminating information to the schools on how students are doing so intervention strategies could be implemented, and Representative Draud said that was correct. Mr. Noland deferred the question to Dr. Pam Rogers, Associate Commissioner for the Office of Assessment and Accountability, KDE.
Dr. Rogers said schools are testing in reading and mathematics in every grade three through eight. She said schools have consistent information from grade to grade utilizing the Kentucky Core Content Test. She said districts are using tests on their own that they think make sense to their publics, but also interface with the needs of Kentucky's educational system. She said it is very important to the schools to keep the flexibility in place, and if the NRT were to have been kept in the third grade accountability model, third graders would be tested twice and have two reading and two math scores. She said not only does the flexibility allow schools to pick what test to give, but at what grade level, and at what time of the school year.
Representative Draud asked how critical the issue of timing is to test taking. Dr. Rogers said it gives the schools the flexibility on when to use the information, and schools can administer the test in the fall instead of the spring, and the test does not have to be given in the third grade. Representative Draud said that he does not see that it helps much by providing the flexibility of administering different tests versus administering one standardized test to all elementary students.
Senator Westwood said legislative intent derived from the passage of Senate Bill 130 was for one test to be given to each student in all schools for comparison purposes to other students outside Kentucky and among other school districts. He said it seems that KDE is changing not only the intent of Senate Bill 130 but also the intent of House Bill 53, which established the Commonwealth Accountability Testing System (CATS). He asked how the KDE and the KBE is doing this and still maintaining the statutory requirement that says one statewide test will be given to all students.
Mr. Noland said it would be helpful if the statute was more clear, but he feels that even as it is written, he feels that the regulation is in compliance. He will communicate the message to the state board that legislative intent was to have one standardized test, and they can revisit this issue for next year, as testing for this year begins in two weeks.
Dr. Rogers said there is a requirement for reporting the results of the NRT test, and each school must report those results to the public, as well as individually to each parent. She said the regulation clearly states the intention of the KBE is to ensure that the information is disseminated to interested parties.
Senator Westwood said the reports Dr. Rogers is referring to would only compare student results districtwide, and would not compare to other districts. Dr. Rogers said the schools would have the KCCT results that would be statewide, and national comparisons would be available for comparisons to the NRT.
Senator Westwood said the other issue to discuss is whether the NRT should be a part of the accountability system. He said it was the intent that it should be, but feels the subcommittee should seek the Attorney General's opinion and a letter is currently being drafted. He also feels the administrative regulation should be found deficient based on statutory language that says if an administrative regulation is in violation of the spirit of the law then it should be found null and void. He said the spirit of the law was to have one test given to all students in the elementary.
Representative Draud asked what the implications are for the KDE and schools across Kentucky if the administrative regulation is found deficient. Mr. Noland said it would certainly cause a certain amount of confusion in the field about what direction to head in. He also said the KBE would have to reassess the assessment issue for next year. He said this year's testing begins in two weeks and there is not enough time to get through the state procurement requirements to get a vendor and a secure standardized test distributed to school districts.
Representative Draud asked if the regulation is not approved, is it doable to have the testing program in the spring. Dr. Rogers said it will not be feasible to have one standardized test administered this spring for elementary students. Representative Draud said regardless of what the subcommittee decides about the statute in the meeting, it is fruitless because school districts will still use their own standardized tests. Mr. Noland said time wise it is impossible to do anything differently this testing cycle in this school year.
Representative Moberly asked what the effects would be if the administrative regulation was found deficient. Mr. Noland said the next process would include a review of the regulation by the Interim Joint Committee on Education and a letter would be sent to the Governor's office from the EAARS subcommittee asking them if they still want the administration regulation to go into effect with the letter of deficiency. Based upon a 2001 court case when regulations are found deficient during the interim, during the next session the legislature would pass a bill finding the regulation null and void, which makes the regulation go out of affect on the date when bills in that session are enacted.
Representative Moberly asked if it mattered that the General Assembly is in session now and not the interim. Mr. Noland deferred the question to the staff of the Legislative Research Commission's Administrative Regulation Review Subcommittee to answer that question.
Mr. Dave Nicholas, Committee Staff Administrator, Administrative Regulation Review Subcommittee, said it could matter that the General Assembly is in session although it is scheduled to end at midnight. He said when an administrative regulation is found deficient, then there is legislation prepared for the General Assembly to consider, that basically ratifies the decision of this committee or any other committee. He said this was done in 2002 and 2004, which the General Assembly approved in both cases by wide margins, to ratify decisions made that found administrative regulations deficient.
Mr. Nicholas said the first step would be to draft an amendment to KRS 13A.338, which is the statute in place to reflect the previous action of the General Assembly. It is an open question about whether or not this action could occur in today's meeting. He said if the General Assembly saw it within their purview to do that, an amendment could possibly be drafted and put on a piece of legislation, and passed out of session before midnight.
Representative Moberly said assuming an amendment is not drafted, and the administrative regulation is found deficient in today's meeting, it would not expire at the end of this session. Mr. Nicholas said it would not, but actions that could occur include the introduction of a bill in the 2008 session for the General Assembly's consideration or an opportunity upon the finding of deficiency. Other actions could be that the KDE could withdraw the administrative regulation, which would eliminate the finding of deficiency or the Governor could withdraw the administrative regulation, which would eliminate the finding of deficiency.
Representative Moberly asked what the effect would be on testing this year if the administrative regulation were withdrawn. Mr. Noland said it would revert back to what the regulation said before including the different percentages in subject matters, such as the writing portfolio, in accountability and there would not be a five percent score for the NRT in elementary school.
Representative Moberly said in all practicality if the administrative regulation was found deficient it would probably not be withdrawn and testing would proceed this year based upon the new regulation anyway. Mr. Noland said that was correct and there was an earlier emergency regulation filed to this particular administrative regulation which stays in effect for 170 days. Mr. Noland said finding the regulation deficient would not in a practical matter hurt testing this year, but it would have implications in terms of the planning for next year and the KBE would have to revisit the issue.
Representative Moberly said the spirit and clear intent of the Legislature was to have an elementary NRT that would be standard across the state. He said the elementary NRT would be eliminated this testing cycle, but he would like discussions immediately in the interim about whether or not it needs to be brought back in the next cycle. He also feels the Interim Joint Committee on Education needs to have a discussion about the administrative regulation as well.
Senator Winters said he feels most decisions should be made at the local level but wondered if the education groups providing input for this administrative regulation discussed the fact about comparative data being lost in Kentucky by eliminating the NRT at the elementary level. Mr. Noland said there is comparative data with NCLB data and also the National Assessment of Educational Progress (NAEP). He said elementary schools also still have a NRT test that is reported and compared with other schools and districts and states that use that same test.
Senator Winters said he feels enough conversation has been devoted to this subject that shows there are some concerns about this administrative regulation, but approving the regulation today, would put in place an effort on Mr. Noland's part to communicate the message to the KBE prior to the next testing cycle.
Mr. Noland said he will be taking the message back to the Kentucky Board of Education about the concerns expressed in the meeting. These concerns include administering a uniform elementary NRT, and also the issue of inclusion and accountability.
Representative Rasche feels the current regulation is appropriate from a practical standpoint from the field, but he does feel the NRT should be included in the accountability system. He does not feel we should cast shadow or doubt in the field by finding the administrative regulation deficient and sending the administrative regulation with a letter, while it is governing the testing this spring. He said legislation can be drafted in 2008 to clearly address the issue. He said there also needs to be discussion about whether the EXPLORE is appropriate for the eighth grade.
Senator Westwood wants the board to clearly understand the message. He said a forceful message needs to be delivered and he feels the administrative regulation should be found deficient.
Representative Draud suggested the subcommittee members write a letter to the state board members that clearly says the intent of the statute has not been followed and that changes are expected to be in place prior to the next testing cycle. After discussion it was decided that the letter would have every member's signature.
Senator Winters suggested forwarding both sets of minutes to board members instead of finding the regulation deficient. He said if members read the minutes they may see the seriousness of the concerns.
Representative Draud made the motion to send a letter to the KBE with EAARS members' signatures, and Representative Rasche seconded the motion. The motion was approved by voice vote.
Representative Rasche made the motion to adopt the technical amendment to 703 KAR 5:020, and Representative Moberly seconded the motion. The technical amendment was adopted by voice vote.
With no further business before the subcommittee, the meeting adjourned at 1:50 p.m.