Law & Courts

Groups Challenge Makeup Of Rulemaking Panel

By Erik W. Robelen — March 20, 2002 7 min read
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The Department of Education failed to adequately represent parents and students on a negotiating panel named to help craft new federal rules on standards and testing, advocacy groups for civil rights and disadvantaged children charged this month.

They say the agency disregarded explicit language in the “No Child Left Behind” Act of 2001 about the composition of the “negotiated rulemaking” panel. That congressional direction, in the groups’ view, was intended to ensure that key beneficiaries of the new law—students and parents—had ample say on regulations for carrying it out.

But department officials and several panelists defended the committee’s composition. Shortly after the committee convened last week, the panelists voted against adding more participants.

The panel proceeded over three days, March 11-13, to discuss and debate a first draft of the regulations written by the Education Department. To the chagrin of some of those same advocates seeking a seat at the table, the panel tentatively agreed to give states considerable latitude in designing their testing systems.

Meanwhile, the last word on the negotiating panel’s composition may not have been heard. The Center for Law and Education, a Washington-based advocacy group, and three other groups have sued the Education Department in a bid to compel changes in the panel before the regulations move forward.

A ruling in the federal lawsuit, filed here, is not expected until well after the panel finishes its work this week. If the plaintiffs prevail, that work could be null and void.

“There is enormous disproportion around this table,” Paul Weckstein, a co-director of the Center for Law and Education, told the panelists as they prepared to begin the negotiations.

The new federal law, a reauthorization of the Elementary and Secondary Education Act, says the department must select participants in the negotiations “in such numbers as will provide an equitable balance between representatives of parents and students and representatives of educators and education officials.”

Mr. Weckstein noted that there were 19 educators and education officials at the table. By contrast, “there are two parents, one from public schools, and one from private schools,” he said. “It is hard to perceive any rationale under which that represents equitable representation between those two bodies.”

Jude McCartin, a spokeswoman for Sen. Jeff Bingaman, D-N.M., who helped write the bipartisan law, signed by President Bush in January, also expressed disappointment at the panel’s makeup.

“This is not the balance that Senator Bingaman was hoping for,” she said, though she added that the decision was out of Congress’ hands.

Susan B. Neuman, the Education Department’s assistant secretary for elementary and secondary education, said the agency’s actions were appropriate.

“We stand by our process,” she said, arguing that it was “fair” and “just,” and that it followed the letter of the law. She also suggested that many panelists at the table wear multiple hats.

“A lot of these people ... cross lines,” she said. “A lot of these people are both parents and teachers, parents and state [officials].”

The department is currently working on regulations and guidance to help flesh out the revised ESEA, the main federal law on K-12 education. The new law requires the department to establish a negotiated-rulemaking process for the regulations on standards and testing. Although the panel’s efforts are expected to help shape the rules, the department is not legally bound by them.

The panel met on Monday through Wednesday of last week at a hotel near Washington, and is scheduled to complete its work this week. It has 24 members, including two Education Department officials. The protocol for the negotiating committee lists seven participants as representing parents and students, including three state education officials, an elementary school teacher, and a private school administrator.

Dianne M. Piché, the executive director of the Citizens’ Commission on Civil Rights, said that while all participants may consider themselves children’s advocates, there is a crucial distinction between those who must comply with the law and those who represent its intended beneficiaries.

Ms. Piché's group unsuccessfully sought a seat at the table, but is not a party to the lawsuit. The two participants exclusively representing the viewpoint of parents were also upset.

“I think it was a shutout and biased, and I’m angry,” Minnie Pearce, a parent representative from Detroit, said shortly after the vote on the matter March 11.

Test Questions

Despite the rocky start, the panel proceeded last week to wade through the draft regulations, and reached tentative agreement on most provisions.

One crucial matter concerned what kinds of assessments would be permissible to meet the requirement for annual testing in reading and mathematics in grades 3-8, and once in high school. Consistent with the agency’s initial draft, the tentative agreement by the panelists would allow a mix of state and local assessments. Department officials stressed, however, that there would be a heavy burden on states to demonstrate that such a mix would meet the law’s intent. (“Testing Rules Would Grant States Leeway,” March 6, 2002.)

Panelists also tentatively agreed to allow a combination of criterion-referenced and norm-referenced tests, if the latter are modified to reflect the depth and breadth of the state’s academic-content standards.

Norm-referenced tests are designed primarily to measure how students perform compared with a nationally representative sample of peers. Criterion-referenced tests are designed specifically to measure achievement based on a state’s own academic standards.

Although several members of the committee, including Ms. Pearce, the Detroit parent, questioned whether the draft rules should permit states to use norm-referenced tests at all, the option of excluding such tests was never really considered.

Some negotiators pressed the department to provide even more flexibility. Rodney Watson, an assistant state superintendent of education for Louisiana, suggested that a state be permitted to use off-the-shelf, norm-referenced tests without adding any additional test items, if the state could produce evidence that the tests were aligned with its standards.

But Ms. Neuman made clear that the department would not negotiate on that point.

The one exception, department officials agreed, is if a state gives both types of tests in the same grade. In that case, the state would not have to add items to the norm-referenced exam, since the criterion-referenced test is already designed to reflect the state’s content standards.

Mr. Weckstein of the Center for Law and Education argued that the outcome might have been different if more parent representatives were on the committee.

For one thing, he said, “the discussion started from and maintained the basic assumption that there was, indeed, a role and a central one for norm-referenced tests.”

Beyond the advocacy groups, the testing industry also petitioned to have a seat at the table, but was denied. However, the commercial test-makers did not pursue legal action, and some of the companies’ concerns were addressed in the tentative agreements.

‘Elbow Adviser’

The groups pursuing legal recourse filed suit against the Education Department in the U.S. District Court for the District of Columbia on March 8. A federal judge that day rejected their request for a temporary restraining order that would have halted the negotiations until the composition of the panel was changed.

But a later decision by the court on the merits of the case, if favorable to the plaintiffs, could upend the negotiations. A ruling is expected no sooner than April, Mr. Weckstein said.

One argument the department is expected to make is that the Administrative Procedure Act, which governs negotiated rulemaking, does not permit judicial review.

Daniel Langan, a spokesman for Secretary of Education Rod Paige, said the lawsuit could delay implementation of the ESEA, to the detriment of students.

Christopher T. Cross, a veteran of Washington education policy who is the facilitator of the negotiations, said he was puzzled by the strong response to the panel’s makeup. He noted that Mr. Weckstein last week became an “elbow adviser” to one of the parent representatives. Mr. Cross, who was an assistant education secretary under the first President Bush, also said there had been repeated opportunities for public comment.

What’s more, he said, each panelist retains veto power. “Any one person can keep consensus from being achieved and, therefore, whether there’s one person representing a class of stakeholders, it doesn’t matter,” he argued. “It’s the same power.”

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A version of this article appeared in the March 20, 2002 edition of Education Week as Groups Challenge Makeup Of Rulemaking Panel


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