The State Board of Education passed REPA 2 with three changes today by a vote of 9-2. The way they did it, however, leaves a string of legal questions which lawyers will no doubt be studying in the days ahead to determine if the action taken today will stand.
It was historically appropriate that the final meeting held in the Riley Room today before the IDOE moves to new offices was an overflow crowd. The first meeting held in the Riley Room in 2001 was also an overflow crowd protesting the first version of PL221 rules, known by some as the “orange sticker protest.” Those were the good old days when a huge show of opposition at a public hearing could actually influence the State Board and the State Superintendent to change direction. On that occasion, PL221 was tabled and completely rewritten. Not so today. A huge show of opposition in public comments led to three changes, but an effort to table REPA 2 today failed and the package of licensing rules which will lower standards for both teacher and administrator licenses passed.
The remarkable turnout and the long list signing up for Public Comments led Dr. Bennett to change the agenda and take Public Comments first rather than last, as the printed agenda showed. Before beginning the Public Comments, Dr. Bennett called on Glenda Ritz to address the board. She explained that she had requested that the action items be tabled so that her administration could determine the fiscal impact of the proposals. She said that when that request was denied, she requested time to address the board in order to ask them directly to table REPA 2. She said, “Preservice training is important. We can’t put unqualified teachers in the classroom.”
Such sentiments opposing REPA were echoed with clarity and passion by 20 speakers during Public Comments, while 4 speakers favored it as is. School of Education leaders from Butler, Indiana University, IUPUI and Indiana Wesleyan asked for specific changes. Individuals came from Indianapolis, Columbus, Bloomington, Warren Township, Winimac and Fort Wayne to speak against lower standards for licensing. Officials representing the Indiana Association for Teacher Education, the Indiana Middle Level Education Association, the Indiana Federation of Teachers, the Indiana PTA and the NAACP spoke out against REPA 2. My testimony, which can be found here, raised the legal question of whether the rule can be revised in the major ways announced last Friday without triggering another round of public hearings.
After an hour and a half of Public Comments, the board considered REPA 2. After an hour of detailed discussion, Mike Pettibone, the only K-12 administrator on the board, after saying, “I’m not against REPA 2, but I don’t have a final draft in front of me and I need a final draft before I buy it,” moved to not adopt it now but to consider it at a future meeting.
His motion failed for lack of a second.
After additional discussion, Neil Pickett moved to approve REPA 2 with two changes. The first change would be to remove ENL (ESL) licensing from the list of areas that could be added to a teacher’s license by passing a test. The second change was to add a pedagogy requirement to the “Adjunct Teacher Permit”, referring to the provision allowing any person with a Bachelors Degree to get a five year license if they have a 3.0 GPA in a content area and pass the content area test.
A dizzying round of comments then began which left observers who honor parliamentary procedure scratching their heads. Sarah O’Brien asked if “High Ability” could be added to “ENL” on the list of programs that could not be substituted with a single test. Neil Pickett initially objected to the addition, but eventually changed his mind and, apparently, simply added “High Ability” into his motion. An idea to have “Adjunct” teachers take a pedagogy test after their 5th year was rejected by Mr. Pickett, saying that the initial “Adjunct” license should require some pedagogy. Dr. Bennett then offered the concept of the “Workplace Specialist” in which vocational area specialists, such as welders, are hired as teachers but take pedagogical courses as they are teaching during their first year on the job. That sounded fine to Mr. Pickett, and without clearly restating the wording of the motion, he summarized his position that ENL and High Ability should be excluded from the list of “test only” areas and that Adjunct permits should be tied to Workplace Specialist requirements. Dr. Bennett quickly called for second to the motion and then called for a voice vote.
The motion passed 9 – 2. Jo Blacketor, James Edwards, Dan Elsener, Neil Pickett, Sarah O’Brien, David Shane, Tony Walker, B. J. Watts and Tony Bennett voted yes. Mike Pettibone and Cari Whicker voted no. Mike Pettibone was concerned that board members did not receive a final version of the rule before voting and expressed the thought that the current method of giving emergency licenses takes adequate care of shortage areas. Cari Whicker expressed concern as a classroom teacher that she thought principals who evaluate teachers should be required to have more than 2 years of classroom teaching experience. The last version of REPA 2 cut the requirement from 5 years to 2, and also in a new controversial provision allowed experience in higher education teaching to count toward these 2 years.
What are the Potential Legal Problems Hanging over this Action?
Some have speculated that the shaky parliamentary procedure and imprecise motions might put the action in legal limbo. The deeper problem, however, relates to the law governing the passage of rules. Indiana Code 4-22-2-29 says:
IC 4-22-2-29It would be easy to argue that the final REPA rule “substantially differs from the version” printed in the official record. It changes the authority to approve teacher education programs from the IDOE to the State Board. It cuts the years needed for an administrative license from 5 down to 2 and allows higher education teaching to count for this purpose without defining how much higher education teaching constitutes a year. It changes authority for content area tests for licensure from the IDOE to the State Board. Finally, in the revision made today, the “workplace specialist” pedagogy was required for Adjunct teachers.
Adoption of rules; adoption of revised version of proposed rule
Sec. 29. (b) An agency may not adopt a rule that substantially differs from the version or versions of the proposed rule or rules published in the Indiana Register under section 24 of this chapter, unless it is a logical outgrowth of any proposed rule as supported by any written comments submitted:
(1) during the public comment period; or
(2) by the Indiana economic development corporation under IC 4-22-2.1-6(a), if applicable.
It seems clear that “workplace specialist” pedagogy was not “supported by any written comments submitted during the public comment period” as the law requires. This idea wasn’t introduced until the last ten minutes of the discussion.
Any reasonable person watching today would think that a board considering an issue such as this should table it for further study to clarify final language before the vote. This board, no doubt for political reasons, did not want to wait. A motion was quickly patched together and passed that lawyers will now be reviewing to see if the final rule “substantially differs” from the version printed in the Indiana Register. If opponents are resolute, a lawsuit is possible citing failure to follow procedures in the law quoted above. A successful lawsuit could result in additional public hearings at a later time, during the Ritz administration.
Will a lawsuit actually be filed? Only time will tell. The ways things were handled on the crucially important issue of teacher licensing since last Friday when revisions were first revealed has left the door open to a potential legal challenge. If no legal challenge materializes, the whole episode has left a huge number of educators, parents and community leaders incensed that standards for teachers and administrators in Indiana are being lowered.
“Vic’s Election Notes on Education” is not linked to any organization and is not being distributed by me to any organization. It is only being distributed to those who have previously sent personal requests for my commentaries. If you want to pass it along to others, you do not need to ask my permission. If you want to be taken off the distribution list, just let me know. If you know of others who want to be added to the list, just send me an email.
Some readers have asked about my background in Indiana public schools. Thanks for asking! Here is a brief bio:
I am a lifelong Hoosier and began teaching in 1969. I served as a social studies teacher, curriculum developer, state research and evaluation consultant, state social studies consultant, district social studies supervisor, assistant principal, principal, educational association staff member, and adjunct university professor. I worked for Garrett-Keyser-Butler Schools, the Indiana University Social Studies Development Center, the Indiana Department of Education, the Indianapolis Public Schools, IUPUI, and the Indiana Urban Schools Association, from which I retired as Associate Director in 2009. I hold three degrees: B.A. in Ed., Ball State University, 1969; M.S. in Ed., Indiana University, 1972; and Ed.D., Indiana University, 1977, along with a Teacher’s Life License and a Superintendent’s License, 1998.