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Topeka — The Kansas State Board of Education declined to give its blessing Tuesday to the plans of two school districts that want to exempt themselves from many laws and regulations under the state's new “innovative school districts” law.
But instead of rejecting the applications out of hand, as Department of Education officials had recommended, the board agreed to appoint a subcommittee to work more closely with the districts in hopes of resolving numerous legal and constitutional concerns.
“There are ways of working through these issues, and I think until people sit down and talk about them, you don't have a good sense of how you can move forward,” said board Chairwoman Jana Shaver, R-Independence.
Under a law enacted in 2013, a limited number of school districts can receive waivers from a host of state laws and regulations if they submit an application showing how doing so will help them improve student outcomes.
Under the law, however, the applications are reviewed and approved by a group that is independent of the state board, and the board only has authority to review and determine whether the applications meet technical requirements.
The state board has twice asked for an attorney general's opinion about whether that law is constitutional, but Attorney General Derek Schmidt's office so far has not responded to that request. Meanwhile, the Legislature this year authorized expanding the program even further, allowing up to 20 percent of the districts in the state to qualify for innovative district status.
“Because the act allows innovative districts to make a discretionary exemption from laws, it really is something that, in my professional opinion, usurps the constitutional authority of this board to maintain and supervise the general educational interests of the state,” board attorney Mark Ferguson said.
McPherson is seeking a waiver from state testing requirements so it can administer different kinds of reading and math tests. It also indicated it may seek exemptions later from a host of other regulations such as teacher licensing requirements and Kansas Board of Regents requirements for qualified admission to state universities.
Concordia is seeking a waiver from certain teacher licensing and school accreditation requirements, among other regulations.
But Ferguson argued that the testing requirements are mandated by federal laws and regulations, and that the state board has no authority to waive those rules. He also noted that the innovative schools statute specifically prohibits schools from exempting themselves from state accreditation requirements.
“I do not feel like I can have the authority, or don't want to personally take the authority, to waive federal law,” said board member Kathy Busch, R-Wichita. “I'm just not willing to stick my neck out that far.”
But Busch and other board members said they wanted to encourage innovation and wanted to work with the districts to see if a compromise could be reached.
Sally Cauble, R-Dodge City, said that she has always supported giving districts waivers when it was possible to do so, but she said waiving federal rules could jeopardize all federal education funding for the state, as well as the state's own waiver from requirements of the federal No Child Left Behind law.
“Both of those things, to me, are at risk when we start waiving federal law,” Cauble said.
Education Commissioner Diane DeBacker, who is stepping down from her post this month, said the board may want to ask the Legislature to amend the law next year. “This bill, while well intentioned, is pretty sloppy and needs to be cleaned up, based on discussions we've had here,” she said.
Board member Ken Willard, R-Hutchinson, agreed to naming a subcommittee but said he was concerned the board was dragging its feet and trying to resist something the Kansas Legislature had ordered.
“We say we like innovation, but unless we put it into place and initiated it, we're very, very reluctant to allow anything to take place that we have not already blessed,” Willard said.
Concordia Superintendent Beverly Mortimer and McPherson Superintendent Randy Watson both said afterwards that they understood the state board's concerns and promised to work with them to find a solution.
The subcommittee is expected to meet with those superintendents over the next few weeks and report back to the state board in June with a recommendation.