Opinion Number ( 2010 )

Dear Senator Kostelka and Representative Fannin:

You seek the legal opinion of this office regarding the following matter: Is the recent policy approved by the Louisiana State Board of Elementary and Secondary Education ("BESE"), which makes the successful completion of End-of-Course Tests applicable to the issuance of the newly created Career diploma, in compliance with the letter and intent of the legislation creating the Career diploma?

BACKGROUND

In general terms, the issuance of a high school diploma in Louisiana is based upon a student's successful completion of defined Carnegie units, and the student's successful completion of designated assessment tests. In Acts 246 and 298 of the 2009 Louisiana Regular Legislative Session, amending and reenacting La.R.S. 17:183.1, et seq., the Legislature created the new and separate "Career diploma" and established course requirements for its issuance. As a result, a high school student has the option to pursue either the "College and Career diploma"¹ or the "Career diploma."

Acts 246 and 298 amended La.R.S. 17:183.1(B) to require BESE to "develop and adopt course and curriculum requirements" for the issuance of the Career diploma. In furtherance of this statutory directive, LDOE developed and BESE approved policy establishing the course and curriculum requirements and identifying the assessment tests applicable to the Career diploma. This policy, which will be implemented through revisions made to Bulletin 741, the La. Handbook for School Administrators, ² was approved by BESE at it Board meeting held January 28, 2010.³ For students enrolling as freshman in the 2010-2011 school year and beyond, BESE has designated the End-of-Course Tests as the assessment tests applicable to both the College and Career diploma, and the Career diploma. Because some of the course and curriculum requirements for the new Career diploma are less onerous than those applicable to the College and Career diploma, the suggestion has been made that less onerous assessment tests should apply to the Career diploma. At issue here is BESE's decision to designate the End-of-Course Tests already applicable to the College and Career diploma as the assessment tests for the Career diploma; a policy decision which you assert is contradictory to the letter and intent of the legislation creating the Career diploma.

As will be discussed below, it is the opinion of this office that BESE's policy requiring students pursuing the Career diploma to pass the same assessment tests required of students pursuing the College and Career diploma is within BESE's statutory authority and is in compliance with the letter and intent of Acts 246 and 298.

We begin our analysis with a review of the curriculum and course requirements for the College and Career diploma and the curriculum and course requirements for the Career diploma.

THE COLLEGE AND CAREER DIPLOMA

BESE Bulletin 741 (January 2010), § 2319(E) sets out the requirements needed to earn a College and Career diploma, one of which is completing a specific number of Carnegie units. Students may earn a College and Career diploma through one of two existing curricula, the Basic Core curriculum and the Core 4 curriculum: For incoming freshmen in 2008-2009 and beyond, the Carnegie units required for graduation in each curriculum are as follows: Students in the Core 4 curriculum must earn 24 Carnegie units, 16 of which are required units and 8 are elective units. Students in the Core 4 curriculum must earn 24 Carnegie units, 21 of which are required units and 3 are elective units. The minimum course requirements for the Basic Core and Core 4 curricula may be found in Bulletin 741, § 2319(E).

THE CAREER DIPLOMA

La.R.S. 17:183.3(B) provides that a student pursuing a Career diploma must earn 23 Carnegie units, 16 of which are required units, as defined below, and 7 are units in career and technical education courses. The 16 course requirements for the Career diploma are as follows:

English: Four Carnegie units in English, including English I and English II and two additional English courses comparable or equal to English courses offered by the Louisiana Technical College, as approved by BESE.

Math: Four Carnegie units in math, including Algebra I or Applied Algebra I or Algebra I, Part 1 and Algebra I, Part 2, and additional applied or hybrid math courses needed to fulfill remaining math course requirements, in courses comparable or identical to math courses offered by the Louisiana Technical College, as approved by BESE.

Science: Three Carnegie units in science, including biology and two additional science courses from a list of science courses related to the student's chosen career major, as approved by BESE.

Social Studies: Three Carnegie units in social studies, including one unit of American History, one-half unit of Free Enterprise, one-half unit of civics and one additional social studies course from a list of social studies courses approved by BESE.

Health and Physical Education: Two Carnegie units.

Career and Technical Education: Seven Carnegie units in career and technical education courses, including at least one-half unit in a career readiness course and one unit in a computer applications course, and any additional electives or career and technical education courses required by a local school board, as approved by BESE.

BESE'S ADMINISTRATIVE AUTHORITY

BESE is the administrative agency entrusted with developing and adopting policies regarding course and curriculum requirements and assessment requirements for the elementary and secondary schools in Louisiana. Pursuant to its constitutional and statutory authorizations, BESE prepares and adopts policies governing high school graduation requirements.⁴ BESE develops and promulgates these policies as administrative rules and regulations in accordance with the Administrative Procedure Act and publishes them as BESE Bulletins.

Administrative rules are intended to further the legislative will set forth in a statute. The legislature "declare[s] its will and, after fixing a primary standard, devolve[s] upon administrative officers the power to ``fill up the details' by prescribing administrative rules and regulations."⁵ An agency granted rule-making authority has the power to adopt, amend or repeal rules in compliance with the procedures set forth in the Administrative Procedure Act. Rules adopted by an agency pursuant to its statutory authority have the force and effect of law. An administrative rule may be declared invalid or inapplicable if it a) violates constitutional provisions; b) exceeds the statutory authority of the agency; or c) was adopted without substantial compliance with required rulemaking procedures.⁶

Our courts have recognized the principle of deference to administrative interpretations and have consistently found that "considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer and."⁷ In Chevron v. Natural Resources DefenseCouncil, 104 S.Ct. 2778, 467 U.S. 837, 844, 81 L.Ed 694 (1984), the U.S. Supreme Court provided that it is only necessary to determine that the administrative policy is one of the possible interpretations of the statute in order to find the interpretation valid.

As already noted, the Legislature directed BESE to develop and adopt course and curriculum requirements for the Career major program.⁸ Thus, in reviewing BESE's policy adopted under this legislative mandate, considerable weight must be given to BESE's interpretation of the statutory scheme creating the Career diploma, as BESE is the administrative agency responsible for implementing it.

END-OF-COURSE TESTS

As previously stated, in order to graduate from high school in Louisiana, in addition to earning specified Carnegie units, students must satisfactorily complete designated assessment tests. BESE has existing policy, which has already been promulgated as an administrative rule, which requires satisfactory completion of End-of-Course Tests for student seeking a College and Career diploma.⁹ BESE's newly approved policy requires satisfactory completion of the same End-of-Course Tests for students seeking a Career diploma. The language designating the End-of-Course Tests for the Career diploma is identical to the that designating the End-of-Course Tests for the College and Career diploma, and provides, in pertinent part, as follows:

For incoming freshman prior to 2010-2011, students must pass the English language arts and mathematics components of the GEE or LEAP Alternate Assessment, Level 2 (LAA2) and either the science or social studies portion of the GEE or LAA2.

* * * For incoming freshman in 2010-2011 and beyond, students must pass three End-of-Course Tests in the following three categories:

i. English II or English III;

ii. Algebra I or Geometry;

iii. Biology or American History

You have expressed concern that the application of the End-of-Course Tests to students pursuing the Career diploma could mean that these students will unfairly be tested on content they are not required to take to satisfy the established Career diploma course and curriculum requirements. You cite as an example a student who takes Applied Algebra I in ninth grade and is required to pass the Algebra I End-of-Course Test. Your concern is that the Algebra I End-of-Course Test will include content or material that was not required to be taught in Applied Algebra I.

A closer examination of the applicable law indicates that your stated concern is unfounded. In order to address your concern, we first refer you to La.R.S. 17:24.4, the Louisiana Competency-Based Education Program. Statewide curriculum standards and assessment tests are coordinated through this Program, which requires in part that the Louisiana Department of Education ("LDOE") "develop and establish statewide curriculum standards for required subjects to be taught in public elementary and secondary schools of this state" and that the LDOE develop "high school level . . . [assessment] tests based on state content standards."¹⁰ The LDOE developed these content standards, as well as the assessment tests based on them, for the required core content areas, i.e. English, math, science and social studies.

The statewide content standards, benchmarks and grade-level expectations developed by the LDOE and adopted by BESE may be found in the individual BESE bulletins identified by subject area as provided in Bulletin 741. Bulletin 741, § 2301 requires all local education agencies to adopt and implement local curricula aligned with state content standards, benchmarks and grade-level expectations (GLEs). This means courses that are required to be taught in public schools must provide instruction for all content required by the statewide standards. GLEs are the most specific and detailed descriptions of the required content and identify the knowledge and skills which teachers are required to teach in each course and grade level.

Bulletin 741, § 2301 provides, in pertinent part:

§ 2301. Standards and Curriculum

A. Each LEA shall adopt and implement local curricula aligned with state content standards, benchmarks, and grade-level expectations. The state documents are:

1. English Language Arts Standards, Bulletin 1965;

2. Mathematics Framework, Bulletin 1955;

3. Science Framework, Bulletin 1962;

4. Social Studies Content Standards, Bulletin 1964;

* * * B. Each teacher of required subjects shall provide instruction that includes those skills and competencies designated by local curricula that are based upon the state's content standards, benchmarks, grade-level expectations, and Career and Technical Education Model Course Guidelines.

C. The Louisiana content standards shall be subject to regular review and revision to maintain rigor and high expectations for teaching and learning. Such review of each content area shall occur at least once every seven years.

Requiring local curricula to include, at a minimum, all GLEs designated in the BESE content bulletin for a given subject area and grade level, ensures that all public school students receive instruction in the skills and competencies identified for each required course. For example, a student taking a required biology course must, at a minimum, receive instruction on all GLEs required for biology, ¹¹ regardless of whether the course is called Biology I, Marine Biology, Applied Biology or any other similar name.

Instruction on all GLEs for biology must be provided in the course. The same holds true for a required social studies course, such as American History. At a minimum, instruction must be provided on all GLEs designated for American History in BESE Bulletin 1964, the Social Studies Content Standards.¹²

In the English Language Arts and mathematics subject areas, the GLEs are designated by grade level rather than by course. Although the ninth grade GLEs are not identified as Algebra, most of the content is Algebra and ninth grade math courses are typically called Algebra I or some version of Algebra I. Any course called Algebra 1, or designated as equivalent to Algebra I, must include instruction in all ninth grade GLEs for math, regardless of whether the course(s) is called Algebra I, Applied Algebra I, or Algebra I, Part 1 and Algebra I, Part 2.

As previously stated, the LDOE was required to develop statewide curriculum and content standards for all required courses and to develop statewide assessment tests based on those content standards. This means that the Algebra I End-of-Course Test may cover any or all of the GLEs required for ninth grade math, but it may NOT include anything other than or in addition to the GLEs required for ninth grade math. Therefore, any student who takes either the Algebra I, Applied Algebra I or Algebra I, Part 1 and Algebra 1, Part 2, must be provided instruction on all GLEs required for ninth grade math and may only be tested on those same GLEs.

CONCLUSION

Based on the laws and regulations discussed above, it is the opinion of this office that BESE's policy designating the End-of-Course Tests as the required assessment tests for students pursuing the Career diploma is within the administrative authority granted to BESE by Acts 246 and 298, and is in compliance with the letter and intent of Acts 246 and 298 of 2009.

It is further our opinion that the provisions of La.R.S. 17:24.4, the Louisiana Competency-Based Education Program, require that all assessment tests, including the End-of-Course Tests, developed by the LDOE and approved by BESE, must be aligned with state content standards. This means that the End-of-Course Tests may only measure the minimum required course content, or the content for which instruction must be provided to both the College and Career diploma students, and the Career diploma students. In other words, all required End-of-Course Tests must be limited to, and may only measure, the content and material required to be taught to all students who may take that course, and no more. We further note that La.R.S. 17:183.3(B)(2)(f) requires BESE, as necessary, to develop End-of-Course Tests in career and technical education courses.

We trust this adequately addresses your concerns. If you have additional questions, please do not hesitate to contact our office.

Very truly yours,

JAMES D. "BUDDY" CALDWELL

ATTORNEY GENERAL

BY:

Denise Brou Fitzgerald

Assistant Attorney General

JDC/DBF/lbw

¹ Referred to as the "standard" diploma prior to the creation of the Career diploma, and the need to distinguish between the two.

² See LAC Title 28, Part CXV.

³ BESE approved the policy for publication as a Notice of Intent, thereby beginning the process of promulgating the policy as a rule pursuant to the Louisiana Administrative Procedure Act, La.R.S. 49:950, et seq.

⁴ See La.Const. art. VIII, § 3(A), La.R.S. 17:7 and La.R.S. 17:24.4.

⁵ State v. Union Tank Car Co., 439 So.2d 377 (La. 1983), (citing United States v. Shreveport Grain and Elevator Co.287 U.S. 77, 53 S.Ct. 42, 77 L.Ed. 175 (1932).

⁶ See La.R.S.49:963(C) and Attorney General Opinion No. 02-0283.

⁷ J. Ray McDermott, Inc. v. Morrison, 96-2337 (La. App. 1 Cir. 11/7/97), 705 So.2d 195, citingChevron v. Natural Resources Defense Council,104 S.Ct. 2778, 467 U.S. 837, 844, 81 L.Ed 694 (1984).

⁸ See La.R.S. 17:183.1(B).

⁹ See BESE Bulletin 741 (January 2010),§ 2319(B)(1) and (2).

¹⁰ See La.R.S. 17:24.4(E) and (F).

¹¹ See BESE Bulletin 1962, LAC Title 28, Part CXXIII.

¹² See LAC Title 28, Part CXXI.