DIVISION OF LEGISLATIVE SERVICES
VIRGINIA LEGISLATIVE ISSUE BRIEF
Number 18                      June 30, 1997

Virginia's Three Sets of Education Standards

Norma E. Szakal, Senior Attorney

The Legal Authority, Status, and Relationships

In Virginia, the primary components of public education are contained in three sets of standards having different legal significance-the standards of quality, the standards of accreditation, and the standards of learning. Each of these sets of standards occupies a unique legal position in Virginia's public education law. These standards might be visualized as a scalene triangle - a triangle having three unequal sides. Legally, the Standards of Quality are the most important of these documents and would be represented by the longest side of the scalene triangle.

The Standards of Quality (SOQ) are the constitutionally mandated, minimum programmatic requirements for the Commonwealth's public school divisions and the driving force behind the basic aid funding for public schools.

The Standards of Quality may be found in Chapter 13.1 of Title 22.1 of the Code of Virginia. The Standards of Quality are the statutory bases for determining the appropriations of public school basic aid funds. The Standards of Quality are enforceable law. In fact, the Board of Education may request the Attorney General's Office to file a writ of mandamus upon identifying any school division as not in compliance with the Standards of Quality (see § 22.1-253.13:8).

Established in Standard 3 (Accreditation, other standards and evaluation) of the Standards of Quality, the Standards of Accreditation are the next in legal weight (see subsection B of § 22.1-253.13:3) and, in the analogy to the scalene triangle, would be represented by the second longest side.

The Standards of Accreditation (SOA) are the Board of Education regulations that establish criteria for approving public schools in Virginia.

The board's criteria for accreditation must include, in accordance with Standard 3, but need not be limited to "student outcome measures, requirements and guidelines for instructional programs, administrative and instructional staffing levels and positions, pupil personnel services, special education program standards, auxiliary education programs such as library and media services, course and credit requirements for graduation from high school, community relations, and the philosophy, goals, and objectives of public education in Virginia."

The Board of Education is required by law "to review annually the accreditation status of all schools in the Commonwealth." At present, pursuant to the board's regulations, this requirement is satisfied through biennial accreditation and interim submission of certification that the accreditation criteria continue to be met. It is important to understand that, since the Standards of Accreditation are regulations, they are enforceable law.

Required by Standard 1 of the Standards of Quality (see subsection B of § 22.1-253.13:1), the Standards of Learning carry the least legal significance and would, thus, be represented by the shortest side of the scalene triangle.

The Standards of Learning (SOL) are the minimum grade level and subject matter educational objectives that students are expected to meet in Virginia public schools.

Standard 1 of the Standards of Quality (§ 22.1-253.13:1 of the Code of Virginia) provides that the Standards of Learning are intended "to implement the development of skills that are necessary for success in school and for preparation for life in the years beyond." The law specifically notes that the Standards of Learning are not regulations; however, the Board of Education is authorized to revise the Standards of Learning after implementing a modified hearing process. Local school boards are required to implement the board's Standards of Learning or to develop local objectives that are equivalent to or exceed the board's Standards of Learning.

The Present Process

In 1995, the Board of Education revised, amidst considerable controversy, the Standards of Learning for English, social studies, mathematics, and science. The relationships between the Standards of Quality, the Standards of Accreditation, and the Standards of Learning suddenly acquired new dimensions.

While the Standards of Quality are stated in broad, general language in the Code of Virginia, the Standards of Accreditation, which are Board of Education regulations, are detailed mandates for assessment, staffing positions, graduation requirements, media and library services, and the like. Any calculation of the costs of the Standards of Quality encompasses, therefore, the costs of implementing the requirements for the Standards of Accreditation.

Traditionally, the Board of Education has prescribed changes in the Standards of Quality simultaneously with the introduction of a new biennial budget. In late 1995, the Board of Education announced that no revisions to the Standards of Quality would be proposed to the 1996 General Assembly. The board stated its intention to develop new student assessment instruments based on its revised Standards of Learning, while simultaneously proposing revisions of the Standards of Accreditation.

The board initiated the revision of the Standards of Accreditation via the Administrative Process Act-the requirements for adopting regulations in Virginia-in March 1997. The board plans to complete the administrative process during the Fall semester of the 1997/1998 school year.

Pursuant to § 9-6.14:7.1 G, the Department of Planning and Budget is required to prepare an economic impact analysis of the proposed regulations. The Board and Department of Education and the Department of Planning and Budget have stated that the new Standards of Accreditation will be budget neutral.

In its required economic impact statement, the Department of Planning and Budget stated: "Although it is conceivable that these changes could cause some short-term misallocation of resources, information provided by DOE, and based on surveys of school district personnel, indicates that it is probable that the proposed amendments can be accomodated with a combination of existing educational resources and already projected enrollment based increases to those resources." [Emphasis added.]

As the board goes forward with its current plans to revise the Standards of Accreditation, the new requirements, particularly the student assessments and increased diploma requirements, may have substantial ramifications for local school divisions in terms of staffing configurations and resource allocation. Although the board has heard much about the potential local fiscal impact, its position continues to be that the proposed SOA will be budget neutral or, given the reduction in nonacademic requirements, even negative.

Projected Effect of Proposed SOA

The Education Article of the Constitution of Virginia recognizes the General Assembly as the body with the final say on the content of the Standards of Quality and grants the General Assembly the constitutional responsibility for funding and revision of the Standards of Quality.

The lack of specificity in the Standards of Quality and the abundance of specificity in the board's accreditation regulations have, over the years, troubled some members of the General Assembly, who have felt that the General Assem- bly's authority over the content of the Standards of Quality has been eroded by the specificity of the accreditation standards.

The General Assembly, the body constitutionally charged with establishing education policy and apportioning the funds for Virginia's public schools, has had no opportunity to consider, as part of the budget process, the costs or other effects of these changes to the Standards of Accreditation and will not have such opportunity until the 1998 Session. Therefore, the board's Standards of Accreditation, which have for at least 10 years significantly influenced public education funding, could determine how some of the Commonwealth's school boards use their basic aid money-the state money appropriated to implement the Standards of Quality. The impact will in all probability be greatest on the less affluent school divisions and those experiencing enrollment losses.

From the earliest stages of the deliberations on the Standards of Accreditation, speculation in the education community was that the board was planning to implement new student assessments through the Standards of Accreditation, which are regulations and, therefore, enforceable law. Since the assessments will be based on the revised Standards of Learning, the net effect will be to make all school divisions implement the board's revised Standards of Learning. Since all schools must comply with the Standards of Quality, and the Standards of Quality require compliance with the board's Standards of Accreditation, once the board's Standards of Learning are incorporated into the Standards of Accreditation through student assessments, the Standards of Learning become de facto regulations and, thereby, enforceable law. Therefore, the shortest leg of the scalene triangle-that with the least legal weight-may exert great influence on Virginia's public education policy and, in the long term, the funding of that policy.

Governor's Action

Section 9-6.14:9.1 A--a part of the Administrative Process Act--grants the Governor the authority to "transmit his comments, if any, on a proposed regulation to the Registrar and the agency no later than fifteen days following the completion of the public comment period." On May 30, the governor released a letter to the president and members of the Virginia State Board of Education stating his recommendations for changes in the proposed regulations. The Governor's proposed revisions are:

Subsequent Board Actions

In an hour-and-a-half meeting held on June 11, the Board of Education presented and approved-on an 8 to 1 vote-significant revisions of its March 17 draft of the proposed Standards of Accreditation. The board's changes accommodate the Governor's recommendations and also include far-reaching revisions of the procedures for school accreditation. In summary, the proposed regulations now include the following requirements:

• The deadline for all schools to implement the new course requirements has been moved to the fall of 1998.
• The use of the SOL tests as diploma credentials (barriers) will be postponed. Beginning with the ninth grade class of 2000-2001 (the graduating class of 2004), in order to obtain a standard diploma, the student must pass at least 6 of the end-of-course SOL tests (2 English tests, 1 mathematics test, 1 laboratory science test, 1 history or social sciences test, and 1 test selected by the student). To obtain an advanced studies diploma, the ninth grade class of 2000-2001 must pass at least 9 of the end-of-course SOL tests (2 English tests, 2 mathematics tests, 2 laboratory science tests, 2 history or social sciences tests and 1 test selected by the student).
• Beginning with the 2003-2004 school year, 70 percent or more of the eligible students must pass the applicable SOL tests for a school to be fully accredited.
• The 70 percent benchmark will apply to all students enrolled in the school "except for those students whose IEP or 504 Plan excludes them [from] participating in the testing program." Schools with large populations of "transient students and/or non-English-speaking recent immigrant students may receive additional accommodations according to tolerances established by the Board of Education."
• In grades 3, 5, and 8, the end-of-course SOL tests must be used as components "of a multiple set of criteria for determining" promotion or retention of students.
• Seventy-five percent of instructional time in elementary schools must be devoted to teaching English, mathematics, science, and history or social science.
• An annual school performance report card will be required which will include, for example, the school's SOL test results, average attendance for students and teachers, and the report of violent or criminal incidents which must be provided to the Department of Education.
• During the implementation period (prior to the 2003-2004 school year), middle schools and high schools can use the SOL tests in determining final grades.
• The International Baccalaureate Diploma (a program developed in the American schools in Europe) is "deemed to" satisfy the requirements for graduation, if passing scores on the SOL tests required for the advanced studies diploma are achieved by the student.
• New school accreditation rating categories will include (i) accredited; (ii) provisionally accredited (a temporary category to be used during the "implementation period"); (iii) conditionally accredited (for all new schools); (iv) accredited with warning, and (v) accreditation denied.
• All schools will be rated as provisionally accredited, according to these revisions, on July 1, 1998. In the years designated as the implementation period (1998 to 2003), the provisionally accredited rating will, apparently, be contingent upon demonstration of annual improvement in student performance; if no improvement occurs or the scores decline, the school's accreditation rating will be downgraded to accredited with warning. Schools may, apparently, obtain full accreditation during the implementation period if their students perform at the 70 percent pass rate on the applicable SOL tests. In the spring of 2003, the provisionally accredited rating will be eliminated.
• Twenty-two credits will be required to obtain a standard diploma, a reduction from the original proposal of one credit in history and social sciences; 24 credits will be required to obtain an advanced studies diploma. Previously, the proposed regulations would have required 23 to 27 credits for this diploma.
• Two kinds of credits are defined: standard and verified units of credit. The standard unit of credit requires successful completion of the specific class; the verified unit of credit will be awarded to students "based on a minimum of 140 clock hours of instruction and the achievement by the student of a passing score on the end-of-course Standards of Learning test for that course."
• The number of hours of instruction required for each unit of credit was reduced from 150 to 140, apparently to provide more options for flexible scheduling. Schools with schedules providing less than the 140 hours of instruction for each class will be allowed to continue this schedule if pass rates on the SOL tests meet expectations.
• Any school that is accredited with warning for 3 years (in other words, does not meet the student performance requirements) will have its accreditation denied.
• A Peer Educator Review Committee will be appointed by the board, consisting of 15 teachers and principals from the "top ten percent of schools." The group will provide technical assistance on corrective action plans prepared by schools that have been accredited with warning (or, perhaps, denied accreditation).
• To satisfy the staffing requirements, local school boards may employ reading specialists or guidance counselors in elementary schools.
• The family life education program will be optional.
• Applications for experimental or innovative program waivers will be submitted to the board (not the Department of Education as presently required) and must have the approval of the local school board. The board may grant waivers for a period of 5 years of any of its regulations except those regulations "mandated by state law or federal law or designed to promote health or safety" or the students' performance requirements.

The Board also approved a motion to republish the proposed regulations in the Register of Regulations and to send the revised proposal out for another 30 days of public comment. Final actions on the proposed regulations are projected to take place in a September meeting.

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