As reported yesterday, the Joint Legislative Committee on Administrative Rules (JLCAR) voted to preliminarily object to the so called Learn Everywhere rules submitted by Education Commissioner Edelblut and narrowly approved by the State Board of Education. The committee cited 8 reasons for their objection in a letter to the State Board of Education.
Sen. Jay Kahn, a member of the Joint Legislative Committee on Administrative Rules (JLCAR) stated that “the Committee is required to determine if proposed rules are consistent with legislative intent and can be implemented without conflict with other state laws or rules. Specifically, a Department or Board of Education can’t use rules to change statutes and there can’t be conflicting rules. The Department needs to reconcile these concerns. The Department can’t assume authority for curriculum approval that by statute is provided to school districts. State statutes says that the Department and Board of Education set standards; school districts are responsible for curriculum approval for their students. State law and education rules are currently aligned on this. Current wording of proposed Education Rules on Learn Everywhere gives authority to the State Board that doesn’t exist in state law. I look forward to the Department and Board of Education’s response to these preliminary objections.”
Summarized below, the Committee’s preliminary objection was based on their determination that:
- The statutory intent of current education laws in New Hampshire was to create a bifurcated system where the Board of Education 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, 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;
- Learn Everywhere rules are contrary to legislative intent to the extent that the rules violate the overall purpose of the current statute that delegates to school districts responsibility for the specific curriculum for which credit is granted;
- Learn Everywhere rules are beyond the State Board of Educations’s authority because current law does not give the Board the authority to require a school district to grant credit for programs or courses when the school district did not itself approve the curriculum;
- Learn Everywhere rules are contrary to the public interest because they conflict with other existing rules creating a situation where the Learn Everywhere cannot be uniformly applied because a school district must at the same time approve a curriculum before granting credit and yet grant credit for that same curriculum without approving it first;
- Learn Everywhere rules are contrary to the public interest because they conflict with other existing rules regarding the requirement that staff assigned to alternative programs meet the same certification requirements as staff assigned to standard schools. The conflict creates a situation where school districts would be accepting credit from a program without knowledge of the teacher’s credentials;
- Learn Everywhere rules are contrary to the public interest because they do not account for how a school district is to apply credit that it is required to grant if a student has already fulfilled that credit area;
- Learn Everywhere rules are contrary to the public interest because they allow for complaints to be submitted to the Department of Education but exclude complaints that might be made regarding student safety from bullying, harassment, or abuse, because the program is not required to have the grievance policy required by Ed 403.0l(a)(2)o.; and
- Learn Everywhere rules are contrary to the public interest because students under IEPs who do not receive graduation credit would be excluded from receiving credit under the Learn Everywhere Program.
The Department of Education now has three options open to it: 1) amend the rules based on the objections, 2) explain why it has not amended the rules, or 3) withdraw the rules entirely. The Department can submit a revised version of the rules, and the Committee will take a second look. During this process, the entire proposal is put on hold. The DOE has up to 45 days to follow one of these courses of action.
After the department submits a response or amended proposal, the Committee will review the changes, and can issue a “final objection” if there are unresolved issues with the amended proposal.
A final objection does not kill the entire proposal, but only the element(s) that receive a final objection: the department may still adopt the part(s) of the rules that receive approval.
The department only gets one chance to revise the proposed rule. They may, however, restart the rulemaking process with the same rule.