M I N U T E S

Joint Education Interim Committee

Wyoming Oil & Gas Conservation Commission                                                                August 28 & 29, 2003

777 West First Street    Casper, Wyoming

PRESENT:      Senator Henry H.R. "Hank" Coe and Representative Jeff Wasserburger, Cochairmen;

Senators Jim Anderson, Larry Caller, Robert Peck and Kathryn Sessions;

Representatives Kurt Bucholz, Liz Gentile, Becket Hinckley, Tom Lockhart, Del McOmie, Ann Robinson, Mark Semlek and Jane Wostenberg.

Other Legislators in Attendance: Senators Rae Lynn Job, April Brimmer-Kunz and John Schiffer and Representative Mary Gilmore.

Legislative Service Office: Dave Nelson and Mary Byrnes.

Others Present:  See attached Appendix A.

AGENDA:       See attached Appendix B.

*  *  *  *  *

Thursday, August 28 2003

Representative Jeff Wasserburger, Committee CoChair, called the meeting to order at 8:30 a.m. by announcing that Wyoming is one of eleven states receiving federal approval of its NCLB Accountability Plan.

Staff Briefing.

Dave Nelson, LSO, provided Committee members an update of the various studies and activities involved in Committee interim work.  A copy of the status report provided to Committee members is attached at Appendix C.

Student Assessment/Accountability Task Force.

Arthur Coleman and Scott Palmer, Nixon Peabody LLC, consultants to the Task Force, identified Task Force members appointed pursuant to law.  (2003 Laws, Chapter 208, Section 201).  Other Task Force resource persons joining Mr. Coleman and Mr. Palmer in the discussion included Rebecca Kopriva, University of Maryland and Annette Bohling and Jason Nicholas, State Department of Education.  Mr. Coleman commented the Task Force members provided diversity and multiple thoughts necessary for the development of Task Force recommendations, which was charged with developing recommendations on necessary changes to the statewide assessment system to comply with the federal No Child Left Behind Act of 2001 (NCLB) and the development of necessary accountability system components as required by the NCLB.

Initiating discussion, Mr. Coleman explained several key points; i.e., a number of assessments comprise the state assessment system and Adequate Yearly Progress (AYP) is one of many items comprising a statewide accountability system.  Task Force activities to date have involved five meetings occurring over a three and one-half month period to review resource information, receive briefings on testing and accountability systems and on legal, educational policy and test measurement principles, and to receive input from stakeholder groups and the general public.  To put the matter in perspective, Mr. Coleman commented with respect to assessment/accountability nationwide, we are somewhere between the second and third inning of NCLB law and implementation.  However, Mr. Coleman pointed out state law is where the action is regarding NCLB implementation.

Mr. Palmer provided an overview of key NCLB provisions that serve as a framework for processing accountability and assessment requirements.  Federal funds at stake with respect to NCLB implementation totaled $24 billion nationally in FY03, of which $70 million was targeted to Wyoming.  NCLB is broad in scope and shifts control to the federal government in terms of more involvement with state assessment and accountability.  Mr. Palmer did point out there appears to be room to work with the federal government in the context of implementing NCLB requirements in Wyoming.  Data transparency and the proper utilization of data is a big issue with federal requirements, a point frequently made by Task Force resource persons.

With respect to student assessment, states must establish challenging standards and assessments aligned with standards in reading/language arts and math as foundations for accountability decisions.  In addition, states, districts and schools must assess 95% of students annually in grades 3 through 8 and once in grades 10 through 12, including NAEP (national comparator assessment) in grades 4 and 8 every other year.

On the accountability side of the equation, states must establish a single statewide accountability system that includes annual AYP determinations for all schools and districts.  States, district and schools must demonstrate AYP in raising achievement for students overall and for each subgroup, disaggregated by race, national origin, poverty, English language proficiency and disability status.  AYP is demonstrated by meeting the 95% participation requirement, by meeting proficiency goals on assessments and by meeting other goals developed for academic indicators.  In addition, states, districts and schools are required to collect, report and use assessment and other data to achieve AYP, including publicly reported data comparing school and district student performance to statewide student performance and annual report cards with disaggregated data reporting student achievement.  States must establish a system of rewards and sanctions for all schools, subjecting those Title I schools failing to meet AYP for two consecutive years to required school improvements and escalating consequences for failure.  Schools are removed from school improvement status after meeting AYP for two consecutive years.

Responding to Committee inquiries, Mr. Palmer advised district supplemental services specified in NCLB sanctions include remedial services provided through an approved list of providers supplied by the district.  Parents are provided the option of selecting a provider from the district's list as necessary to increase the child's performance to levels required to make AYP.  Districts may spend up to 20% of federal Title I funding per child for supplemental services.  Wyoming is developing its list of supplemental service providers within the state.  In response to Committee concern that parents may opt out of required supplemental services, Mr. Palmer stated pressure points for school achievement will in most cases prevent parents from opting out of choosing optimal supplemental services.  Mr. Coleman added that nothing prohibits states from requiring the composition of supplemental remediation, but did indicate the Task Force may need to consider "parental fit" in responding to NCLB accountability requirements.

Mr. Palmer advised that under the federal law all states, districts and schools are required to achieve 100% proficiency by SY13-14, an expectation that has real impact on states and schools to meet AYP and an expectation which permeates all levels; i.e., state, districts, schools, students and subgroups of students.  In response to Committee inquiry, Mr. Palmer explained the loss of federal funding is not contemplated as part of immediate NCLB sanctions.  However, loss of federal funds can occur over time if NCLB is not adhered to in the long run.  Federal funding sanctions are tied to the administration of NCLB, not to student performance.

Although severely disabled special education students are under alternative assessment standards, Ms. Kopriva responded to Committee questioning by stating the real issue is defining which students fall into which special education category.  Mr. Palmer responded to a separate Committee inquiry by stating the state will need to monitor student graduation and drop-out rates at the state level, which will be a necessary part of developing an individual student data system.  Finally, Mr. Coleman pointed out that home schools are not subject to NCLB due to exclusion from NAEP, but a state may include them if it wishes to do so by state law.

State Superintendent Blankenship introduced State Department resource persons Annette Bohling and Jason Nicholas, and expressed his support for Task Force recommendations.  Dr. Bohling and Mr. Nicholas spoke to the Committee on Wyoming's status under NCLB.  Wyoming has received federal approval of its accountability plan, although the statewide accountability system will not be complete until recommendations of the Task Force have been adopted.  A copy of the Wyoming plan is attached at Appendix D.

Mr. Nicholas expanded on AYP and the components of the accountability plan for Wyoming, school districts and schools.  Decisions regarding AYP have been made for SY02-03, which were released in July.  With regard to the AYP calculation, Mr. Nicholas explained mathematics and language arts are measured separately in determining AYP, with reading and writing combined in providing a performance level for language arts.  AYP determinations are made using the percentage of students scoring proficient and above and are currently computed on annual data obtained from WyCAS, the current statewide assessment instrument, to be expanded to all grade levels in the future.  Confidence intervals constructed around each school's percent of proficient and advanced students are used to provide a more reliable assessment of school performance.  Identical status target levels are set for all schools and subgroups within a grade level.

Mr. Nicholas cautioned assessment results reported in WyCAS summary reports will not match AYP results due to the flexibility allowed states under AYP, which the state deems provides an improved report of student performance.  AYP considers only students attending school for the entire academic year, removes non-exempt students who did not submit to assessment and includes students participating in the special education alternative assessment.  Every school and district is examined on five student performance indicators and on four subgroup student performance indicators comprised of achievement and participation rate indicators for math and language arts (four indicators), with an additional indicator applied to all students but not to student subgroups.  Math and language arts achievement is determined by the percent proficient and advanced subject to the confidence intervals computed to compare achievement to status target levels.  AYP for schools with less than six students is based upon aggregated data from previous school years until data equivalent to six students is reached.  Target levels are set at the federal level.  Computed confidence intervals are unique to each school, are based upon group size and variability of student populations and are particularly applicable and meaningful to small schools by allowing Wyoming a means to deal with the impact of low population schools.

The additional student performance indicator for elementary and middle schools is the reduction in the percentage of students scoring in the novice achievement category in reading.  For high schools, it is the graduation rate, with 80% used as the baseline from which to project required growth.  AYP subgroups include white, Hispanic, Native American, black, Asian, special education, limited English proficient and free and reduced lunch participants.  Schools will only be held accountable for subgroups if they have sufficient numbers of students, as specified by NCLB.  The rational is that you cannot hide subgroups when dealing with small numbers of student enrollment.  The process for determining elementary/middle school and high school AYP is depicted in the chart attached at Appendix E.

Expanding on the use of confidence intervals for student participation in Wyoming's accountability plan, Mr. Palmer reported a more reliable and valid basis for decision-making is provided particularly when decisions must be made with a 95% level of accuracy.  Federal law requires AYP for every school for every year.  The AYP decision must be valid and reliable, which for Wyoming is a real challenge.  Wyoming's plan addresses this by developing a system integrated with core AYP determinants and the use of additional data.  Until additional data is made available, the plan uses confidence intervals to raise the degree of decision validity.  The tragedy of this is that a school can for any one year get a bad draw of students for that year and smallness exacerbates this problem.

Mr. Palmer continued by adding that the system builds in a default with respect to subgroup performance.  With small school populations it is not likely subgroups will get lost.  However, Ms. Kopriva stated the plan must not allow subgroups within larger small schools to become lost as the state will be held accountable for respective performance.  Any subgroup with more than 6 is reported and is reviewed for its impact on overall school performance.  The question becomes one of how far you go with accounting for the impact of a subgroup on overall school performance.  Mr. Palmer suggested the Task Force may have to assess this matter more thoroughly.

Mr. Coleman added that the law contemplates a more robust determination of graduation rates and student drop-out rates, which is predicated upon an expanded data collection and reporting effort by the state.  This requirement ties into the state education data systems currently under development in response to 2003 legislation.

TASK FORCE RECOMMENDATIONS.  Mr. Coleman stated federal NCLB requirements provide a floor for state assessment and accountability, but nothing in federal law precludes the state from enhancing this floor.  Assessment (testing) is an inherently imperfect science.  NCLB places much emphasis on assessments through accountability requirements, which is inherently imperfect.  Mr. Coleman suggested Committee members put perspective on subgroup requirements in that subgroup reporting represents one of many accountability determinations which go into defining school, district or state improvement.

The Task Force recommends the following with respect to a statewide assessment system:

1. The assessment system should be comprised of multiple assessments that, when taken together, provide reliable measures of school, district and state performance with regard to individual student achievement. The Task Force recognized no single assessment could do all things for each student, thus a multiple set of assessments is recommended.

2. The assessment system should provide data that will be used as a measure of AYP and broader accountability.

3. Summative assessments should be used in addition to formative and NAEP assessments and should be used to measure student performance and progress and be aligned with state content and performance standards in grades 3 through 8 and at least once in grades 10 through 12, in the subjects of reading/language arts and math, and at least once in grades 3 through 5, 6 through 9 and 10 through 12 in the subject of science.

4. The statewide assessment system should include multiple measures and item types, including age appropriate multiple choice and open-ended questions such as constructed-response, extended-response and performance-based tasks.

5. The assessment system should be scaled across grades to ensure that individual student performance and progress can be meaningfully evaluated as the same students move from grade to grade and to ensure that scores in the same grades from year to year can be meaningfully compared.

6. The assessment system should include assessments that are valid for their particular purposes and uses, be fair and free from bias including with regard to race, ethnicity, limited English proficiency and socio-economic status and specifically with regard to Native American students.

7. The assessment system should be designed for full inclusion of students with disabilities and English language learners to be provided with all appropriate accommodations or alternate assessments that will ensure fairness while maintaining the validity of the assessments.

8. The summative statewide assessments should be administered as late in the school year as possible.

9. Data from statewide assessments should be reported to students, parents, teachers, schools, districts and the public in a manner that is complete, accurate, accessible, contextual and timely.

10. In determining vendors to be responsible for the design, development and implementation of the statewide assessment system, the state of Wyoming should ensure that policy objectives are evaluated in the context of capacity and costs.

11. The Task Force statewide assessment system recommendations need to become effective during SY05-06.  Prior to that time, the Task Force should authorize or continue a statewide task force to assist in the design and implementation of the summative and formative assessments that will comprise the statewide assessment system.

In response to Committee inquiry, Mr. Coleman added the design of summative and formative assessments must not be undertaken independently.  NCLB requires statewide assessments be subject to statewide standards and specifies the degree of required multiple assessment measures provided on a statewide basis and the subjects to be assessed.  The administration of both the summative and the formative test must be such that a level of consistency is ensured.  How this level of consistency is accomplished with the formative test may require additional discussion by the Task Force.  In sum, the entire system will be viewed as a whole, including summative, formative and a national comparator assessment.

Mr. Coleman attempted to clarify summative and formative assessments by stating the summative is envisioned as the sum of what a student knows at the end of the school year against state standards.  A formative assessment is to consist of periodic assessments administered throughout the school year to help form judgments about a student as he progresses to help form his performance.

Mr. Palmer presented Task Force recommendations on the establishment of single statewide accountability system for all public schools and districts.  The accountability system is recommended to be a blended system that includes both AYP determinations and additional state criteria that reflect student performance.  The system should include consequences and rewards for every school and district based on their performance on AYP and other state accountability criteria.  Specific recommendations are as follows:

1. Wyoming’s single statewide accountability system should value both absolute school performance, as defined by NCLB and its AYP requirements, and school progress in improving student achievement for the same students over time.  School progress based upon statewide consideration of such information is permissible under NCLB and will enhance validity and reliability of state accountability determinations.

2. The statewide system should focus on continuous improvement in raising student achievement at all Wyoming schools and on appropriate educational interventions that can promote such improvement, rather than on punitive sanctions.

3. Adopted consequences should afford discretion to local districts in determining appropriate consequences, with more intense interventions and more rigidly defined requirements tied to repeated low performance over consecutive years.

4. The statewide accountability system should promote similar, escalating consequences for similarly situated schools, including Title I and non-Title I schools to the extent appropriate.  A summary of Task Force recommendations on consequences by option, by year was provided and discussed, a copy of which is attached at Appendix F.

5. The statewide accountability system should be integrated with other state systems and educational interventions to the full extent appropriate, and Wyoming should provide sufficient resources to promote technical assistance for schools in need of improvement.  This is one area where the Task Force felt sufficient state support for interventions and development is necessary for state compliance with NCLB.

6. The state should focus on teacher and administrator quality as a primary component of consequences for schools that do not make AYP or satisfy other state accountability criteria.

7. Additionally, the state should focus on student remediation as a core component of consequences for schools that do not make AYP or satisfy other state accountability criteria.

8. The statewide accountability system should include a range of rewards for schools that make AYP and satisfy other state accountability criteria.

Mr. Coleman and Mr. Palmer concluded by indicating the Task Force is scheduled to meet in mid-September, and would present final recommendations to the Committee at its October 9 meeting.  A copy of the draft report and talking points is attached at Appendix G.

NCLB:  Highly Qualified Teachers.

Linda Stowers, Wyoming Professional Teaching Standards Board, addressed Committee members on NCLB requirements with respect to teachers and how the state measures up to NCLB teacher qualification requirements.  In brief and overall, Wyoming is in fairly good shape in terms of complying with NCLB requirements for highly qualified teachers.  In fact, Ms. Stowers reported Wyoming leads the nation in highly qualified teachers.

Specifically, the NCLB requires states to test elementary teachers and any teacher without a Bachelors degree at the secondary level.  In Wyoming and due to Board requirements, the latter applies primarily to middle school teachers.  The Board has selected a provider (ETS) for the package of tests to be administered to elementary teachers, with the first tests scheduled for administration during September 2004.  Selection of tests for middle school teachers is to be completed by spring 2004, with the first administration of selected tests scheduled for September 2005.

Additionally, the Board is revising rules and regulations applicable to middle school teacher certification, scheduled for completion by September 2004.  Over the last four years, the Board has used federal funds to review teacher standards and to ensure that all teacher academic and professional education standards are in alignment with the Wyoming education standards against which student performance is measured.  This alignment is a requirement of NCLB.

The Board has also been working on determining the composition of a highly qualified teacher in Wyoming.  Elements have included academic background, years of experience, course work in subject areas taught, work and participation in statewide professional committees, and participation in statewide and national board certified activities.  The Board has assigned points per element and established thresholds for qualification as highly qualified elementary teachers.  The Board is now establishing components for highly qualified middle school teachers.  Current Board records indicate 95% of Wyoming teachers are highly qualified under these parameters.

In regard to professional development, the Board has determined the number of teachers receiving professional development, and from this information, has developed improvement goals.  Currently, 79% of Wyoming teachers are receiving "highly qualified" professional development, and the Board has set 82% as the goal for SY04-05.  The Board is also reviewing renewal requirements for teacher certification and may impose additional training in certain subject areas prior to granting renewal.

Wyoming is currently working with a consortium of states to develop a transition to teaching program, allowing classroom instruction as an individual continues teaching education programs.  The Board has also issued permits to 28 individuals during SY02-03 that allows non-teaching graduates to teach if enrolled in an education program or if working on a professional portfolio.  Under this program, participants have three years to become certified.  During this same period, 154 individuals were working on collaborations, which allow an individual to work out of their content area for three years.  Following this period, participants have to complete a program or professional portfolio to continue working in that assignment.  The Board is uncertain if this program can continue under current NCLB requirements.

Concluding, Ms. Stowers suggested the state faces challenges to continue leading the nation and bringing highly qualified teachers to the classroom.  The major problem is recruiting, especially in certain subject areas.  One suggestion by Ms. Stowers is to require teachers to inform districts earlier in the school year as to employment plans.  However, Ms. Stowers did not recommend an earlier statutorily-imposed contract renewal date.  Talking points are summarized in attached Appendix H.

Recess.

At 4:30 p.m., CoChair Wasserburger recessed the Committee until 8:30 a.m., August 29.

Friday, August 29, 2003.

CoChair Coe reconvened the Committee at 8:35 a.m.

Vocational Education.

State Superintendent Trent Blankenship introduced state department vocational education staff Teri Wigert and Tom Martin.  The staff updated Committee members on the vocational education adjustment and the vocational education grant program.

Following a summary of the historical basis upon which the vocational education adjustment and grant program were established, Ms. Wigert and Mr. Martin reported on activities conducted in administering the vocational education grant program.  Sixteen grant applications were filed by districts with the department, of which five were awarded funding.  A team of grant readers from within Wyoming but outside of K-12 education were coached on the law.  Using a 4-point scoring rubric, the team evaluated each grant.  Decisions were completed and grants were awarded on July 30, 2003.  Official notification to districts was submitted on August 15.  Grants included a single award to implement a new program in the amount of $99,438, and four awards to expand existing programs ranging from $6,295 to $49,949.

With respect to the vocational education adjustment, the department established a data collection instrument to acquire key data on district vocational education programs and courses and submitted the request to districts.  The instrument was aimed at providing a snapshot of student enrollment as of April 15, 2003.  Districts were required to return program, course and enrollment data to the department by the end of May.

A review panel comprised of nine individuals representative of department and district vocational program areas was convened to evaluate district data against statutory requirements.  The US Department of Education's sixteen vocational education career clusters guided the program and course approval process.  The review panel analyzed the data and made recommendations to the department.  Based upon the review process, the department worked with districts in clarifying determinations and communicating course and program approval criteria.  To date, a list of approved programs and courses have been developed.  District funds will be calculated based on the data instrument.  District claims were cross-referenced with approved lists of programs and courses.

The department is also establishing a waiver process applicable to the vocational education cost-based adjustment and criteria for vocational education program and course requirements.  The department is working with the School Audit Section of the Department of Audit in ensuring the accuracy of information used in the model and district reporting of student and teacher FTE data.  A packet of information pertaining to the discussion was submitted to Committee members, a copy of which is attached at Appendix I.

Mark Higdon, Campbell County School District No. 1, expressed concern with the vocational education adjustment and requested the Committee to revisit the MPR findings upon which the current law is based.

Special Education.

State Superintendent Blankenship introduced Tami Cox and Peg Brown Clark, state department special education staff.  Ms. Cox in turn introduced members of a stakeholders group assembled by the department to assist with the development of statewide guidelines for special education staffing levels.  The department has also contracted with Mr. Wayne Ball of Mountain Plains Regional Resource Center, Denver, to assist the department with the Regional Special Education Services Study.

Following a brief review of legislative history on special education funding, Ms. Cox reported the department is required to provide special education monitoring activities and to establish statewide guidelines for special education staffing levels.  Additionally, the department is to measure and track district special education programs based upon student performance and to develop recommendations for provision of regionalized special education services.

Department activities in the area of district special education staffing levels have included the hiring of four monitors to conduct a review of district special education staffing practices based upon on-site data review and staff interviews.  Guidelines contained within the 2002 AIR Special Education Study will serve as baseline staffing levels.  These monitors will also gather data regarding numbers of students with disabilities and consider variances in district identification practices.  The established stakeholders group will assist the department with reviewing monitoring data, establishing statewide guidelines for special education staffing levels, assessing district variations and assisting districts in meeting guidelines and service delivery standards.

With respect to regionalization of special education services, the department is initiating a study to implement a regionalized approach capable of identifying a feasible structure to ensure the provision of adequate services to special needs student populations as required by the statewide uniform education program standards and will give special emphasis to the unique circumstances faced by school districts in locating, acquiring and retaining special education service providers.  The study will involve collaboration between the department and the Mountain Plains Regional Resource Center, review information gathered by monitors and the establishment of a regional study task force.  A summary of the study framework was distributed to Committee members, a copy of which is attached at Appendix J.  The regional study task force is tasked with establishing current baseline information, defining current regional services, identifying three to four key areas of focus for regionalization, establishing a cost-effective model for providing services for all students with disabilities, and developing accompanying rules and regulations.  A copy of talking points provided to Committee members is attached at Appendix K.

In response to Committee inquiry as to background on department special education program monitors, Ms. Cox reported of the four monitors, two have a background in special education and the remaining two have state agency auditing experience.  The Mountain Plains Regional Resource Center will assist the department with monitor training.  Also in response to Committee questioning, Ms. Clark reported although a shortage exists for enrollment in programs for children under waivers, services are provided to these children by districts.  Programs are provided in high schools for job-ready training, directing children into communities and on job sites.

Concluding, Ms. Cox reported monitoring activities, guidelines and regionalization will work together in improving special education.  In response to a Committee request to investigate the use of Medicaid funds in providing educational programs for court ordered placements, Ms. Cox indicated staff is currently reviewing this matter.

School Education Data System.

Steve King, State Department, reported on departmental progress with education data systems funded by 2003 legislation.

STATEWIDE EDUCATION DATA SYSTEM  The statewide data system is required to provide a statewide capability to share and access educational information between school districts and the state, through common labeling and storage of data, both internally for school district use and externally for state and federal data collections.  The data system is to the extent possible required to use existing data bases of districts and the state, and to focus on acquiring necessary system components to enable uniform, statewide reporting of educational information.

The school interoperability framework (SIF), a capability the department is using to establish statutorily required system operation, provides the ability to enable applications to share data quickly, dynamically and securely, and allows for joint building of definitions and rules governing system usage.  It allows districts to use existing software and data to improve accuracy, timeliness of service and immediate flow of information, and uses existing connectivity, software selection driven by district needs and reduced reporting variety.  In sum, SIF allows more detailed data and less burden, improved timeliness and better data quality.

The data design team, established by law to analyze district systems, study infrastructure necessary to support a statewide system including training requirements and a thorough review of system feasibility, has met on several occasions and is developing a report for presentation to the Committee in December.  The law requires system implementation during SY04-05, necessitating legislation for consideration during the 2004 legislative session.

In response to Committee inquiry as to tracking students moving throughout the state, Mr. King responded the issue is one of properly identifying the student to track the student through graduation.  Privacy and confidentiality issues must be addressed and consideration must be given to the method in which the data system accesses and shares data.  A link to share this information must be developed to tie data together.

STUDENT PERFORMANCE TRACKING SYSTEM (Standards/Body of Evidence) 

Statutory directives require development of a system providing districts with the ability to track student performance in all nine content areas, that is SIF compatible and that the department develops in consultation with the SBET (Standards-Body of Evidence) Advisory Group.  The department is basing system development on current WyCAS redesign, the state NCLB Accountability Workbook and SIF instructional services workgroup activities, with the next departmental activity slated to reconvene the SBET Advisory Group sometime in November, to issue an RFP in December and to award a contract by February.  Talking points and relevant legislation were provided Committee members, a copy of which is attached as Appendix L.

Jeff Carrier, Crook County School District #1 and member of the 2002 data facilitation effort, expressed support for data system development and the need to provide education information on a coordinated, statewide basis.  Kim Ferguson, District BOE Programs, expressed the urgency of developing student performance tracking capability to comply with State Board of Education graduation requirements.  Mark Mathern, SBET Advisory Group member, added statewide assessment compliance presents a major issue for student performance tracking system development.  Such a system must have the ability to generate data on nine content areas in addition to various other pieces of information.  It is critical to get the system operable by 2006 to meet State Board imposed timelines.  He emphasized the need to work on development of both the student performance data system and the statewide assessment system together, as one does not need to be completed prior to beginning the other.  Senator Job added the Student Assessment/Accountability Task Force is responding to NCLB.  The performance tracking system focuses on a separate issue, that of addressing the ability of districts to get relevant information on meeting graduation requirements for 2006, including body of evidence information.

CoChair Coe questioned funding needs.  Superintendent Blankenship did not know funding requirements at this time.  Senator Shiffer suggested the department move up the February date scheduled for contract awarding to January.  This change would enable legislative consideration of the data development funding needs.  Steve King indicated the ability of the department to comply with a January timeline is questionable, although it is anticipated a plan would be provided to the legislature by the beginning of the 2004 session.  CoChair Coe requested the department to assemble the SBET Advisory Group as soon as possible to begin development of student performance tracking system information and requested the department to report to the Committee at its October 9 and 10 meeting addressing timing concerns.

University of Wyoming-WICHE and WWAMI Programs.

UW President Phil Dubois, together with Robert Kelly, Dean of UW College of Health Sciences and Wyoming's WICHE certifying officer, and Rick Miller, UW Legal Affairs, presented UW thoughts on the WICHE and WWAMI programs.

WICHE provides educational opportunities to Wyoming students through two major programs, the Western Undergraduate Exchange Program (WUE), and the Professional Student Exchange Program (PSEP).  Under WUE, nonresident undergraduate tuition at participating WICHE institutions for Wyoming students is capped at 150% of resident tuition fees.  The program has saved Wyoming families approximately $6 million.  PSEP allows Wyoming students to enroll at reduced tuition rates in out-of-state institutions offering professional programs UW does not offer.  Wyoming requires PSEP participants to be a resident for three continuous years prior to matriculation, but the student need not be a graduate from a Wyoming institution of higher education.  Wyoming participation in PSEP programs is predominately in the health science professions.

Wyoming residents must be certified by the UW WICHE office and concurrently apply to the participating professional school.  If accepted into the professional school, and WICHE funds are available, the student is allowed to attend at a reduced tuition rate.  Nearly all students who are certified and accepted into the professional school receive WICHE funds.  For SY03-04, 90% of new students were funded, compared to 79% for SY02-03 and 100% for SY01-02.  WICHE students participating in WICHE programs have no obligation to pay back the cost of their education to the state or to return to the state to practice their professions.  Wyoming's philosophy in participating and funding WICHE programs has been based upon "access to education," although some participating Western states are imposing an obligation upon participating students.  UW WICHE issues identified by President Dubois included the continued ability to distribute students across available PSEP programs, the need to consider the imposition of incentives to return students to the state in certain professions, the need to consider the imposition of payback requirements as escalating tuition costs decrease the number of potential program participants, and the interaction between the WICHE program and WWAMI.  For the 03-04 biennium, Wyoming has funded $236,000 for WICHE program administration and dues, together with $3.78 million for support fees involved with PSEP.

WICHE, WWAMI and residency training at Cheyenne and Casper provide medical education opportunities for Wyoming students in a state that does not have a medical school.  Through programs that encourage the return of future physicians to Wyoming, Wyoming medical education opportunities have improved rural health care and family and primary care medicine.  Under the WWAMI program, (Washington, Wyoming, Alaska, Montana and Idaho), Wyoming students attend UW for the first year of medical school, attend Washington the second year and attend a school in any of the participating states for the third and fourth years.  Ten Wyoming students are admitted to the WWAMI program each year.

UW issues pertaining to the WWAMI program include the high percentage rate attached to student repayment (8%), inconsistencies with program requirements of WWAMI and WICHE, escalating costs of student program participation, estimated to increase at $90,000 per year for the next four years, the low numbers of WWAMI graduates located within the state and the lack of linkage between WWAMI and the UW residency program.  WWAMI costs per year per student total $67,800, compared to $21,768 per student per year for WICHE medical education programs.  President Dubois presented options for consideration in continuing Wyoming medical education support, including increasing WWAMI tuition costs to levels consistent with other states, imposing a payback provision for WICHE medical education students, providing for loan forgiveness during time spent in Wyoming, reviewing the size of WWAMI/WICHE programs and developing a connection between WICHE and WWAMI to Wyoming residency rotations.  Talking points distributed by UW are attached at Appendix M.

In response to Committee questions, President Dubois suggested it may be time for Wyoming to revisit WICHE philosophy for educational access, and contemplate additional program criteria.  The main issue involves the determination of WICHE participants based upon available openings, which is currently based primarily upon student demand.  An additional point in response to Committee concerns was that the UW WICHE certification office has generally been available to students and has provided assistance to students in accessing WICHE programs.  President Dubois indicated UW is not asking for action, but is simply informing the Committee.

School Finance Constitutional Issues.

Mike O’Donnell, Attorney General's Office, addressed the Committee on several constitutional issues discussed by the legislature during the 2003 session focusing on school finance litigation.  One involved the burden of proof imposed upon the state and the other, local control.

Mr. O'Donnell indicated the Supreme Court in Washakie declared public education to be a fundamental right.  The Wyoming Constitution is fundamental law and the Court construes the Constitution.  Under the Constitution, the legislature is to provide for the public schools.  The legislature is also required by the Constitution to create and maintain a thorough and efficient system of public schools, adequate for the proper instruction of all youth of the state.

The Court has interpreted education to be a fundamental right.  If a right is fundamental, the state must establish any interference with that right to be forced by some compelling state interest and such interference must be the least onerous means of accomplishing that objective.  This is the strict scrutiny standard which is a very high standard.  As such, the state is placed in an almost indefensible situation.  The strict scrutiny standard is usually imposed in an area where the legislature is not normally passing laws, such as free speech.  However, Mr. O'Donnell suggested it is a very complicated and awkward approach to school finance.

Mr. O'Donnell explained the 2003 proposed constitutional amendment (03HJ0010) changed the strict scrutiny standard to "rational relationship."  Under this standard, the state is almost always going to win in that whatever the legislature does is presumed valid.  Mr. O'Donnell suggested a compromise by imposing a standard of intermediate scrutiny.  Under this standard, a court must find the interest served by governmental action to be important and the means adopted to achieve the state’s goals reasonable, not arbitrary, and it must have a fair relation to those goals.  He suggested such a standard requires state action to serve important governmental objectives and that any discriminatory means employed by the state must be substantially related to the achievement of those objectives.  Mr. O'Donnell suggest this approach may have potential to level the playing field.

Mr. O'Donnell indicated the legislature could commence action to adopt a constitutional amendment for intermediate scrutiny or such standard could be accomplished through court action.  Mr. O'Donnell pointed out the Court has never established when strict scrutiny is to be applied.  In commencing litigation, the state could request the Court provide the state some measure as to when the state knows it has assembled an acceptable school finance system.

The second school finance constitutional issue centered on local control.  The Court in Campbell III has stated local control continues to exists.  Mr. O'Donnell suggested if a local control amendment is passed, it could create a series of questions as to how the amendment fits with the remaining relevant constitutional provisions.  03HJ0009 proposed such an amendment to the 2003 Legislature.  A copy of talking points submitted by Mr. O'Donnell to Committee members is attached at Appendix N.

Pat Hacker, WEA, agreed with Mr. O'Donnell on the local control matter, but disagreed with the burden of proof discussion.  Mr. Hacker contended the burden of proof argument fails to consider the equal protection clause, which is infused any time you deal with fundamental rights issues.  Mr. Hacker also disagreed that school finance cannot be resolved under a strict scrutiny standard and suggested no US court has adopted an intermediate standard.  He requested the legislature to not propose suggested constitutional amendments, which in his opinion, would increase the likelihood of continued litigation.

Mr. O'Donnell responded by suggesting some ability needs to be available to limit litigation.  The state's ability to resolve litigation is currently limited, and his frustration is that almost any course of action the legislature takes with respect to school finance will not stop litigation.

Gary McDowell, WEA, suggested the education community has not been allowed to participate in legislative school finance efforts, to which CoChair Coe took exception.  CoChair Coe then requested Mr. O'Donnell proceed with a draft of a constitutional amendment proposing an intermediate standard of review for consideration at the October Committee meeting.

Future Committee Meetings.

The next meeting of the Committee is scheduled for Thursday and Friday, October 9 and 10, 2003, in Gillette.  Meeting particulars will be forthcoming, with Thursday scheduled as a joint meeting of the Committee and the Management Council  CoChair Wasserburger announced a dinner will be provided for Committee members on the evening of October 8, with LSO providing details at a later time.

Adjournment.

There being no further business before the Committee, CoChair Coe adjourned the meeting at 3:30 p.m.

Respectfully submitted,

____________________________          _________________________________

Senator Henry H.R. "Hank" Coe,                 Representative Jeff Wasserburger,

Committee CoChair                                     Committee CoChair