JOHN F. BRADY AND JOHN G. BRADY, )
vs. ) CASE NO. 78-653RX
Respondent. )
Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on May 15 and 16, 1978, in the Collins Building, Tallahassee, Florida.
Florida Legal Services, Inc.
For Respondent: Judith A. Brechner
Deputy General Counsel State Board of Education Knott Building Tallahassee, Florida 32304
Pursuant to the provisions of Section 120.56, Florida Statutes, petitioners herein challenge the validity of respondent's Rule 6A-1.941, Florida Administrative Code, and the validity of the scoring criterion utilized by the Department of Education in grading the statewide testing conducted pursuant to Rule 6A-1.941. In support of their contentions of invalidity, petitioners assert that the published rule, Rule 6A-1.941, is defective in that it does not contain a specific mastery criterion or cutoff score with which to measure the performance of students in attaining the standards approved by the State Board of Education. As to the actual criterion developed and utilized by the Department of Education, petitioners urge that the same is a "rule" within the meaning of F.S. Section 120.52(14) of the Administrative Procedure Act, and is therefore invalid because it was not promulgated in accordance with F.S. 120.54. In reply, respondent urges that the State Board of Education was under no duty to adopt a scoring criterion, that the criterion utilized is not a "rule" within the meaning of the A.P.A., and that petitioners have no standing to challenge either Rule 6A-1.941 or the scoring criterion.
In implementation of F.S. Section 229.565(1) and 229.57(2)(a), the State Board of Education approved minimum student performance standards in
reading, writing and mathematics for grades 3, 5, 8 and 11 and for programs for exceptional students for three consecutive school years, beginning with the 1977-78 school year. This was done via the adoption of a rule, published as Rule 6A-1.941 in the Florida Administrative Code. This rule incorporates by reference three publications which set forth the minimum student performance
standards and the basic skills necessary to show mastery of those standards. In these publications, mastery of each standard or competency is defined as answering correctly "a designated percentage of the assessment items that measure it." Also, for eleventh graders, functional literacy is defined as "the satisfactory application of basic skills in reading, writing and mathematics to problems and tasks of a practical nature as encountered in everyday life." Functional literacy is demonstrated when a student answers correctly "a designated percentage" of the assessment items on each of the communications and mathematics components of the eleventh grade functional literacy test.
Florida Statutes Section 229.57(2)(b) requires the Commissioner of Education to
"develop and administer in the public schools a uniform, statewide program of assessment to determine, periodically, educational status and progress and the degree of achievement of approved minimum performance standards." (Emphasis supplied)
By memorandum dated April 4, 1977, the Administrator of the Performance Standards Section of the Department of Education recommended to Commissioner Turlington a criterion for denoting mastery of basic skills and functional literacy standards. This criterion was that mastery would be demonstrated when a student answers correctly at least 70 percent of the assessment (test) items that measure each standard or component. It was recommended in this memorandum that said criterion be established on an annual basis by the Commissioner rather than making it a part of the published rule. This "at least 70 percent" mastery criterion was approved by Commissioner Turlington. It was not adopted by the Governor and Cabinet sitting as the State Board of Education nor was it promulgated as a rule under the Administrative Procedure Act.
In June of 1977, a modification of the scoring rule was adopted by the Department of Education. This modification changed the criterion from "at least
70 percent" of the items that measure each standard to "a standard will be mastered if at least half of the skills are mastered and if 70 percent of the items for the standard are correctly answered." The document containing this modification of the criterion further states that
"A skill will be mastered | according to the |
following guidelines: |
|
No. of Items | Criterion |
1, 2, 3 | 1, 2, 3 |
4 | 3/4 |
5 | 4/5 |
6 | 5/6 |
7 | 5/7 |
8 | 6/8 |
9 | 7/9 |
10 | 7/10 |
etc. | (70 percent rounded upward)" |
This modification in the scoring criterion or level of mastery expected to be attained by all students was not presented to or approved by the State Board of Education. Nor was it promulgated as a rule under the A.P.A.
It was the testimony of Dr. Tom Fisher, the Program Director for Student Assessment, that the above modified criterion was uniformly applied to all students tested under the assessment program. He noted that the guideline for the number of questions which must be answered correctly was to be the central focus of the scoring procedure. Once this was generated, according to Dr. Fisher, it became apparent that it was difficult to communicate it to others and thus the "70 percent" language was used for ease of communication. This was true even though the criterion of answering correctly 1 out of 1, 2 out of 2 or
3 out of 3 test items amounted to 100 percent; 3 out of 4 amounted to 75 percent; 4 out of 5 amounted to 80 percent; etc. This modified criteria -- 70 percent of the items measuring the standard and mastery of at least one-half of the skills which comprise that standard -- was explained in a publication, entitled "A Guide to 1977-78 Statewide Assessment Results." In November of 1977, this publication was distributed by the Department of Education to local district educators along with the October test results. The statewide assessment tests were administered to all third, fifth, eighth and eleventh grade students in October of 1977.
At all times pertinent to this proceeding, petitioner John G. Brady was an eleventh grade student at Boca Ciega High School in St. Petersburg, Florida. Petitioner John F. Brady is his father. As an eleventh grade student, John G. Brady was required to take both the basic skills test and the functional literacy test. He passed the functional literacy test which was graded according to the modified criteria discussed above. He did not pass two standards - the use of the apostrophe and capitalization of proper nouns - on the basic skills test. Because of this, the District was required to provide some form of remediation for him in these two standards. Student Brady was initially withdrawn from an English composition class and placed into a remedial. writing course. He was then allowed to take the remediation by an
18-week independent study course at home. His report cards reflect that he is taking functional writing without credit. This is reflected on his school record.
Section 120.56, F.S. provides that any person "substantially affected" by a rule may seek an administrative determination of the invalidity of the rule. Respondent contends that petitioners have failed to show that they are substantially affected either by the published Rule 6A-1.941 or by the scoring criteria developed to grade the tests. The undersigned Hearing Officer does not agree with this contention. As an eleventh grade student in the public school system, John G. Brady was required by Rule 6A-1.941 to attain mastery of specific minimum statewide standards. Failure to attain these standards affects his progression through school and becomes a part of his school record which accompanies him throughout life. He thus has more than the "illusory" interest found to be insufficient in the case of Fla. Dept. of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. App. 1st 1978). Unlike Jerry, the petitioner student Brady has demonstrated that there will be "injury which is accompanied by . . . continuing, present adverse effects" if the rule and/or scoring criteria are invalid. Certainly, if this were a Section 120.57 proceeding whereby a student was contesting Department of Education action on the grounds that his tests were improperly graded or posted, he would be "substantially affected" by such state action. A challenge to a rule which sets up standards, a statewide assessment program and the grading criteria should be available to
those who are subject to the testing and the results therefrom. It is concluded that John G. Brady, as an eleventh grade student subject to the basic skills and functional literacy tests, is substantially affected by both Rule 6A-1.941 and the scoring criteria, and therefore has appropriate standing to contest those administrative pronouncements. Having found standing on the part of the student Brady, it is unnecessary to determine whether the father Brady would have standing, by himself, to challenge such pronouncements.
Respondent next contends that the scoring criteria which determines mastery of the minimum student performance standards and demonstration of functional literacy is not a rule within the meaning of F.S. Section 120.52(14). A "rule" is defined in said section as follows:
"(14) 'Rule' means each agency statement of general applicability that implements, inter- prets, or prescribes law or policy or describes the organization, procedure, or practice requirements of an agency and includes any form which imposes any require- ment or solicits any information not specifically required by statute or by an existing rule. The term also includes the amendment or repeal of a rule. The term does not include:
Internal management memoranda which do not affect either the private interests of any person or any plan or procedure important to the public and which have no application outside the agency issuing the memorandum.
Legal memoranda or opinions issued to an agency by the Attorney General or agency
legal opinions prior to their use in connection with an agency action.
The preparation or modification of:
Agency budgets
Contractual provisions reached as a result of collective bargaining.
Agricultural marketing orders under chapter 573 or chapter 601.
Curricula by an educational unit.
It is urged that the test score, standing by itself, does not operate of its own effect. According to respondent, the basic skills test score, if below the mastery level, simply triggers a remediation program, mastery of which is determined by the local school teacher. From this reasoning, respondent contends that the student's achievement of mastery is thus subject to modification by adjudication, and therefore is not an administrative pronouncement requiring promulgation under Chapter 120. In support of this reasoning, respondent cites Pacific Gas and Electric Company v. Federal Power Commission, 506 F. 2d 33 (D.C. Cir. 1974). Respondent further contends that the scoring criterion is "curricula by an educational unit" which is exempt from the definition of a rule in Section 120.52(14)(c)4. The undersigned reject both of these arguments. The test score does operate of its own effect. It becomes a part of the student's school records. It determines whether or not a student will be required to enroll in a remediation program in the case of the basic skills test. In the case of the functional literacy test, it determines whether he will retake the test and whether he will ultimately be certified for
graduation. While it may be true that the remedial programs developed and implemented on the district school level are "curricula by an educational unit," it cannot be concluded that the statewide scoring criteria are "curricula." Nor is the scoring criterion developed "by an educational unit," which is defined in Section 120.52(6) as "a local school district, a community college district, the Florida School for the Deaf and Blind, or a unit of the State University System other than the Board of Regents." The scoring criterion is developed and implemented by the Department of Education and is then, by itself, the basis for further action by the local school districts.
It is concluded that the scoring criterion is an "agency statement of general applicability that implements, interprets or prescribes law or policy." The criterion applies to all public school students in the third, fifth, eighth and eleventh grades and is therefore of general applicability. It implements the statutes and regulations which set up the testing system, for without a grading criterion or means of assessment, the test itself would be meaningless. It interprets the language "a designated percentage" used in the rule and the "degree of achievement" used in the statute. And, it represents or prescribes the law and policy of the state requirement for mastery of certain basic skills and satisfactory performance in functional literacy. The scoring criterion do not constitute "internal management memoranda" which does not affect "either the private interests of any person or any plan or procedure important to the public and which [have] no application outside the agency issuing the memorandum."
F.S. Section 120.52(14)(a). The private interest of each student is affected by the test results. The assessment program and its results are important to the public in maintaining credibility in and respect for the public school system. The criterion certainly has application outside the Department of Education.
Respondent makes two further arguments in support of its contention that the scoring criterion does not constitute a "rule" within the meaning of the A.P.A.
First, it is argued that the criterion for assessing student performance in the basic skills and standards does not create any rights in the student and that the student has no right to be free from testing. The test results simply reflect the knowledge attained by the student. This argument goes more to the substance or propriety of the criterion and testing methodology than to the issue of whether the same are rules requiring proper promulgation under Chapter 120. True, no student has a right to be free from testing. However, the student does have a right to insist that statewide policy which directly affects him is promulgated and implemented in accordance with the law. As pointed out in McDonald v. Dept. of Banking and Finance, 346 So.2d. 569 (Fla. App. 1st, 1977), the intent of the legislature in broadly defining the term "rule" and in requiring proper promulgation was to close the gap between what the agency and its staff know about the agency's laws and what an outsider can know. Rulemaking procedures are imposed on policy statements of general applicability, i.e., those statements which are intended by their own effect to create rights, or to require compliance, or otherwise to have the direct and consistent effect of law. State Dept. of Administration v. Stevens, 344 So.2d.
290 (Fla. App. 1st, 1977); McDonald, supra. Students, parents, educators and others associated with the public school system have a right to know the state's requirements for progression through the school system, and they have the right to expect that said requirements are developed and implemented in accordance with the law. It should be noted that each district school board's program for pupil progression is to be based upon an evaluation of each pupil's performance, including how well he masters the minimum performance standards approved by the State Board of Education. F.S. Section 232.245(1).
As pointed out in the Florida Supreme Court case of Straughn v. O'Riordan, 338 So.2d 832 (Fla. 1976), (footnote 3) one of the principal goals of the new APA is the abolition of "unwritten rules" by which agency employees can act with unrestrained discretion to adopt, change and enforce governmental policy. The "invisible policy-making" condemned in the O'Riordan case is readily apparent in the instant case. First, the scoring criterion was stated to be "at least 70 percent." Then, it was changed to "at least 70 percent of the test items that measure it, plus demonstrates mastery of at least one-half of the skills for the standard." It was explained at the hearing that the Department only utilized the 70 percent language for ease of communication, and that the real criterion was the guideline set forth on page 3 of this Order plus one-half of the skills. Yet, Rule 6A-1.941 defines mastery of competencies and demonstration of functional literacy as "a designated percentage of the assessment items." This confusion between the published rule and the designated criterion points to the desirability and necessity for the utilization of proper rule-making procedures.
Finally, respondent contends that even if the scoring criterion meets the statutory definition of a rule, it was specifically omitted from the necessity to be so promulgated because the legislature delegated this duty to the Commissioner of Education who has no rule-making authority. It is true that the State Board of Education is the agency head of the Department of Education and is thereby empowered to adopt and promulgate rules. F.S. Sections 20.15 and
20.05. The Board may also delegate its general powers to the Commissioner or the directors of the divisions of the Department of Education. F.S. Section
229.053. Here, the Legislature mandated that the minimum student performance standards be approved by the State Board of Education. F.S. Sections 229.565(1) and 229.57(2)(a). The Legislature further directed the Commissioner to develop and administer the program of assessment and the degree of achievement of approved standards. As concluded above, the scoring criterion which specifies the degree of achievement is a rule within the meaning of the APA. The Commissioner, as the chief educational officer of the State, is bound by the APA absent an express exemption therefrom by the Legislature. That exemption is not created by the legislative mandate expressed in Section 229.57(2)(b). If he is charged with the duty to develop and administer policy which falls within the definition of a "rule," he must do it properly.
Among the powers of the Commissioner is to recommend to the State Board of Education actions and policies as, in his opinion, should be acted upon or adopted. F.S. Section 229.512(2). Since the scoring criterion is a rule within the meaning of the APA, it was incumbent upon the Commissioner to ensure its proper promulgation and follow the rule-making procedures set forth in F.S. Section 120.54. Respondent admits that the scoring criterion was not promulgated or adopted in accordance with the APA. It therefore constitutes an invalid exercise of delegated legislative authority and is of no force or effect.
Petitioners' attack on Rule 6A-1.941 is grounded solely upon the failure of that rule to specifically designate a percentage for mastery of the minimum student performance standards or for satisfactory performance in functional literacy. A rule cannot be classified as an invalid exercise of delegated legislative authority solely because of an omission to include every item envisioned by the statutory scheme. The respondent has the option of including it all in one rule or promulgating separate rules as the policies are developed and implemented. Absent any further demonstration or allegation of
invalidity, the undersigned finds Rule 6A-1.941 to be a valid exercise of delegated legislative authority.
At the conclusion of the hearing, respondent moved to dismiss this action for failure of the petitioners to join an indispensable party; to wit: the Pinellas County School Board. Respondent contends that remediation of the skills not mastered by the students is a function of the district school boards and since petitioners are complaining about the remediation by the district, the district is an indispensable party. Even were the respondent's motion timely made, it would fail. The instant proceeding is a rule challenge to the validity of Rule 6A-1.941 and the unpromulgated scoring criteria. It does not seek to challenge as an invalid rule the remediation program provided by the district.
DONE and ORDERED this 15th day of June, 1978, in Tallahassee, Florida.
DIANE D. TREMOR
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
Florida Legal Services, Inc.
Judith A. Brechner Deputy General Counsel State Board of Education Knott Building
Ms. Liz Cloud Department of State Room 1802, The Capitol
