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Legislating student achievement

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Charles McElwee Charles McElwee

Charles McElwee is a Charleston lawyer.  The views expressed are solely his own.

If hundreds of pages of public-school legislation educated a young mind, West Virginia would long ago have surpassed Shanghai in student achievement.

To the contrary, legislative enactments every year for the past 23 years have not improved student performance in the state. It remains among the lowest in the United States on national and international assessments.

Yet, policy makers and some of the public continue to put faith in the legislative process: that in the 24th consecutive year of trying, the public-school legislation is different and will this time increase student achievement.

"Insanity: Doing the same things over and over again and expecting different results."  Albert Einstein, said.

We should discard the notion based on over two decades of experience that annually adding "bits and pieces" of legislation  to an already cluttered education code will bring about the desired result, when, in fact, the yearly routine  does little  more than create a false impression of accomplishing something.

 The state has a "repairing/patching" mentality about its public school system, the same thought process that would lead us to take the easier path of fixing an old house with a crumbling foundation instead of building a new one on a more solid foundation.

The currently effective public-school legislation, enacted over the past several decades, is found in Chapters 18 and 18A of the West Virginia Code and consists of hundreds of pages of irrationally located, and in many instances outdated, minute and incomprehensible content.

These pages  contain numerous  archaic provisions that called for actions to be completed many years ago, such as in 1990, 1993,  1995, and 1996, or that set education goals based on a series of town meetings held 23 years ago, in the summer of 1990.

The Legislature has imposed some 70 mandates and restrictions upon the West Virginia Board of Education, which may account, at least in significant part, for the large volume of state board policies and the size of the Department of Education, which have been criticized.

The Legislature has established or directed the establishment of dozens of departments, boards, processes, councils, etc. to administer or to assist in the administration of the state's public school system.

Among them are the Department of Education with a K-12 staff in excess of 300; a second Department of Education, known as the Department of Education and the Arts (as though one Department is not enough), with a staff of fourteen persons, and its claimed agency, the Center for Professional Development, with a staff of sixteen; and eight regional education service agencies (RESAs) with a staff of 480, ranging from 17 in RESA 2 to 131 in RESA 8. 

The Education Audit reported that   "one universal comment concerning [the eight] RESAs is that they must work to ‘follow the money' to pursue grants for their survival rather than base services on an assessment of the most critical needs of districts in the region."  

 The audit lists "a plethora of entities and organizations [created or authorized by the Legislature] in (professional development) policymaking, planning and delivery in the state." 

As a consequence, education officials reported that they "do not know who is in charge of professional development in West Virginia[,]" and teachers often admitted "having little confidence in the professional development opportunities that are available." 

While the audit recommends that student growth constitute as least 51 percent of a teacher's evaluation, H.B. 4236 enacted by the Legislature in its 2012 regular session allows only 15 percent.

For purposes of the 15 percent evaluation, a teacher sets two goals for one class only and specifies what evidence will be provided to document progress on both goals. 

In contrast, 80 percent of a teacher's evaluation is to be based on his/her ability to perform the critical elements of the professional teaching standards, among them the teacher's knowledge of students' gender and the organization of space and materials in a safe, highly efficient and well-designed learning environment.

The Legislature is fascinated with visions, the setting of goals and objectives, and the laying out of strategies. 

Thus, as part of its vision for the year 2020, the Legislature, in a moment of fantasy, made it the first exclusive goal for the public school system that students' academic achievements will exceed national and international averages. 

The Legislature also established performance-oriented objectives for high school graduation rates by 2020 (90 percent of ninth graders) and college-going rates by the end of 2012 (gap between the county with the lowest college-going rate and the state average will decrease by 50 percent from what it was in mid-2008).

(The Legislative Oversight Commission on Education Accountability would perform a valuable service in informing the public whether the state met in 2012, and is on track to meet in 2020, these legislative visions and objectives, and, If not, why not. Perhaps, from its perspective, even more legislation is needed.)  

The respective authorities of the Legislature and the State Board of Education are set forth in Article I, §§ 1 and 2 of the State Constitution.  

The Legislature has undertaken to contrast its and the state board's distinctive authorities thus:  The State Board has the authority to establish the knowledge and skills that students should know and be able to do in preparation for the 21st century. The Legislature has the same authority (WV Code18-2E-5(a)(2)(3)). Try sorting that one out. Indeed, try understanding that entire Code section.

Before any more public school legislative proposals are made and acted upon, the existing clutter in the hundreds of pages of existing legislation should be swept into the trash bin.

A review is long overdue to determine (1) how much of that legislation, if any, usurps the constitutional authority of the West Virginia Board of Education; and (2) how much of it should be repealed, amended or kept.  In the end, what remains should be rationally organized.