A legal analysis of the proposed Ed 306 Rules found to be at odds with state law, constitution
The controversial rewrite of the Minimum Standards for Public School Approval approved by the State Board of Education in February tripped over the first hurdle as the process of adopting the new rules got underway.
A legal analysis of the proposed rules undertaken by the Office of Legislative Services (OLS) in the course of the rulemaking process found it at odds with state law, legislative intent and the NH Constitution, as well as littered with ambiguous, confused and unclear language.
The Minimum Standards are embodied in a comprehensive set of rules, known as the Ed 306 Rules, which together bear on every aspect of the education provided by public schools from the curriculum and content of instruction to the administration and operation of schools themselves. Like all rules, the ED 306s, once adopted, have the force of law.
The process of revising the rules began in 2020 when the Department of Education contracted with the National Center for Competency-Based Learning (NCCBL), a nonprofit organization headquartered in Durham, whose founder and president Fred Bramante once chaired the State Board of Education.
NCCBL formed a task force of nine members, most drawn from business and industry sectors, including a few educators, to draft revised rules. The process was undertaken out of the public eye. In 2021, the task force reported to the Department of Education, which reportedly made significant changes to the initial proposal. A year later, a draft document was shared with a handful of educational associations and a draft was released to legislators and the public in March 2023.
The purpose of the ED 306s is ensure that every student, irrespective of where they live or which school they attend, is entitled to the opportunity to acquire a constitutionally adequate public education, for which the state has a duty provide, as the NH Supreme Court held in the Claremont litigation. The OLS attorney found that the revised rules not only fail to serve their intended purpose but also, in significant respects, undermine the statutes the Legislature has enacted to define and deliver an adequate education and hold schools accountable for providing it.
The content of an adequate education is defined in statute RSA 193-E:2-a, which lists the required curriculum for elementary, middle and high schools. However, the revised rules would turn these requirements into options to be determined by local school boards.
The OLS attorney wrote, “Throughout this proposal, substantive requirements have been amended to be options as opposed to requirements. By changing the language of requirements to ‘may,’ it has created ambiguity in these rules.”
Consequently, the attorney wrote, “It is unclear how every educable child in the public schools of the state will get a constitutionally adequate education if each school board may or may not choose the curriculum suggested in this rule.”
State law RSA 193-E:3-b stipulates that schools demonstrate they are providing an adequate education by providing instruction in required program areas and by measuring student performance in accord with the accountability system, both of which are spelt out by statute. Since the revised rules delete both the specifics from the required program areas and the assessment requirements altogether, the OLS attorney concluded “it is unclear how the school accountability will be implemented.”
Likewise, the proposed rules do away with specified teacher-student ratios, which determine class sizes for kindergarten, elementary, middle and high schools, which instead would be set by local school boards. “Without a standard for student-educator ratios, it is unclear what would allow for an adequate education and when a ratio creates an inadequate education environment,” the attorney found.
A number of rules bear costs, but some of these are either not mentioned at all or addressed only perfunctorily by the accompanying Fiscal Impact Statements (FIS). For instance, eliminating specific teacher-student ratios determines the size of classes and with it the number of teachers, but the effect on costs is not addressed in the FIS.
Likewise, rules applied to “alternative courses of study,” which may be pursued outside the school, together with remote learning, require internet connectivity. Originally the rule required the school to provide the necessary equipment without addressing the cost, but subsequently required the school to bear the cost, leaving it unclear whether in order to offer alternative courses of study and remote learning schools must pay for students’ internet service.
The legal analysis echoes criticisms leveled against the proposal by professional educators, advocacy groups, teachers unions — NEA-NH and AFT-NH — and members of the public at meetings held to solicit public comment as the drafting of the rules proceeded.
Reaching Higher NH, a think tank devoted to education policy, has followed the rulemaking process. Their research and commentary — together with copies of the proposed rules, complete with the comments and annotations of the OLS attorney — is posted on their website, reachinghighernh.org.
The rulemaking process is governed by the Administrative Procedures Act, RSA 541-A. It begins with the department or agency responsible for administering the particular rules drafting proposed rules, then undergoes a formal review process, which includes at least one public hearing and a legal analysis by OLS. After much back and forth between OLS and the agency, the final version is presented to the Joint Legislative Committee on Administrative Rules (JLCAR), composed of Representatives and Senators for both parties.
The committee my approve or object to the proposed rules on the grounds they are beyond the authority of agency, contrary to the intent of the Legislature, not in the public interest or deemed to have substantial economic impact not captured by the FIS, which mirror the issues raised by OLS. If the committee objects, a round of negotiations and amendments is pursued until either an agreement is reached, the rule is abandoned or the matter is resolved by the Legislature.
Testifying in Rockingham County Superior Court in the case brought by the ConVal School District, Commissioner of Education Frank Edelblut repeatedly said that the responsibility and authority to define the content and cost of the a constitutionally adequate education was vested in the Legislature. “The Legislature makes that determination, and we implement what the Legislature determines.” Yet the OLS analysis highlighted a number of significant disparities between existing statutes and proposed rules.
The disregard, if not disdain, for the NH Supreme Court’s holding that the Constitution places a duty on the state to ensure every child receives an adequate education and to bear the cost of that education on the part of Edelblut comes as no surprise.
Asked about the state’s duty to provide an adequate education when deposed during the ConVal litigation, Edelblut replied, “It’s an unsettled matter whether or not that decision was rightly decided.”
State law requires schools to demonstrate they are providing an adequate education and are measuring student performance.
