Bulletin 741 is the administrative code written by the Louisiana Board of Elementary and Secondary Education (BESE) titled, "Louisiana Handbook for Nonpublic School Administrators."
In the course of our research of BESE Bulletin 741, The People, LLC found it to be outrageous that any government entity had the authority to order the private board of a non-profit entity to "pass a resolution" as is stated in the bulletin under Subsection 101 titled "General Authority". Consequently, we decided to see from where BESE says their authority is granted.
We set forth to look up the Revised Statutes that are listed in the bulletin as the "Authority Note." Specific to subsection 101, the "Authority Note" states:
"Promulgated in accordance with R.S. 17:6 (A)(10), (11), (15), R.S. 17:7(6), R.S. 17:10, R.S. 17:22(6), R.S. 17:391.1-391.10, R.S. 17:411."
The funny thing is, we have read each of those statutes and cannot find a single grant of authority to BESE for regulation of any nonpublic school. In fact, the very Revised Statutes cited in the Authority Note explicitly grant authority to BESE over only the public elementary and secondary schools under its jurisdiction, which is exactly the authority granted to BESE under the constitution.
In looking further we found that at least two of the statutes (R.S. 17.391.1 and 17.391.5) were repealed in 1994 - several years before 2003, which according to the "Historical Note" is when Subsection 101 was written:
"HISTORICAL NOTE: Promulgated by the Board of Elementary and Secondary Education, LR 29:2342 (November 2003), amended LR 31:3072 (December 2005)"
The Administrative Procedure Act requires that the public agency (BESE) promulgating (creating) rules shall "(g)ive notice of its intended action and a copy of the proposed rules at least ninety days prior to taking action on the rule." and that the notice shall include "(a) statement that the intended action complies with the statutory law administered by the agency, including a citation of the enabling legislation."
So, now we have to ask: Did BESE just make up random Revised Statutes in claiming authority where it has none? Where is the legislative oversight?
Here is Sub-Section 101 from the bulletin:
"§101. General Authority
A. The nonpublic school board or governing body shall pass a resolution establishing the nonpublic school and setting forth its goals and objectives.
B. Nonpublic schools are designed to meet the needs of a specific group of students. Each nonpublic school will evaluate itself on the basis of its stated goals and objectives."
Here are the Revised Statutes cited:
R.S. 17:6 (A)(10), (11), (15)
"§6. General powers of board
A. In the exercise of its supervision and control over the public elementary and secondary schools and special schools under its jurisdiction, and in the exercise of its budgetary responsibility for all funds appropriated or allocated by the state for public elementary and secondary schools and special schools placed under its jurisdiction, the board shall have authority to:
(10) Adopt, amend, or repeal rules, regulations, and policies necessary or proper for the conduct of the business of the board.
11) Award certificates and issue diplomas for successful completion of programs of study. All certificates and diplomas shall be prepared by the State Department of Education and shall bear the signature of the president of the board and of the state superintendent of education for public elementary and secondary education.
(15) Perform such other functions as are necessary to the supervision and control of those phases of education under its supervision and control."
R.S. 17:7(6)
"§7. Duties, functions, and responsibilities of board
In addition to the authorities granted by R.S. 17:6 and any powers, duties, and responsibilities vested by any other applicable laws, the board shall:
(6)(a)(i) Prescribe the qualifications and provide for the certification of teachers in accordance with applicable law, which qualifications and requirements shall ensure that certification shall be a reliable indicator of the minimum current ability and proficiency of the teacher to educate at the grade level and in the subjects to which the teacher is assigned."
R.S. 17:10
"§10. Approval of public schools; standards; enforcement of standards; effect of failure of a public school to meet and maintain standards"
R.S. 17:22(6)
"§22. Superintendent; functions and duties
The superintendent shall:
(6) Pursuant to rules, regulations, and policies adopted by the board, offer assistance to local public school officials and the elementary and secondary schools of the state in their efforts to adopt procedures by which (a) courses of study prescribed by the board will be followed, (b) teachers will meet the standards prescribed by the board, and (c) schools will meet the standards for approval which are prescribed by law or by the board. He shall assist the parish and city school boards and teachers in securing the best possible results from their efforts, and in this connection, the public school officials in the various parishes and cities, insofar as practicable in the professional administration of the schools, shall consider the suggestions and directions of the superintendent."
R.S. 17:391.1-391.10
"PART VI. PUBLIC SCHOOL ACCOUNTABILITY
AND ASSESSMENT
§391.1. Repealed by Acts 1994, 3rd Ex. Sess., No. 1, §3, eff. June 22, 1994.
§391.2. Definitions
As used in this Part, the following words, terms, and phrases shall have the meaning ascribed to them in this Section, except when the context clearly indicates a different meaning:
(1) "Communication skills" means the arts of reading, writing, and speaking the English language.
(2) "Basic computational skills" means skill in basic arithmetic and mathematics.
(3) "School board" means a parish or city school board.
(4) "Public education" means the elementary and secondary level educational programs funded by the state and local government in the public schools and other institutions providing educational programs.
(5) "Public schools" means the public elementary and secondary schools governed by the parish and city school boards.
(6) "School district" means the area of each parish or municipality under the jurisdiction of a school board.
(7) "School personnel" means the teachers, librarians, counselors, administrators, and other professional personnel of the public schools of the state including members of the professional staff of the state Department of Education.
(8) "Educational accountability" means the respective responsibilities and duties, under the provisions of this Part, of local school boards, administrators, principals, teachers, and other personnel; the state Department of Education and its personnel; parents, students, and any other governing
§391.3. Program for educational accountability
A. The superintendent of education shall develop a guide for educational accountability for the public schools of the state no later than May 1, 1977. Such guide shall be the basis for a comprehensive plan for an education accountability program which shall be developed by the superintendent no later than July 1, 1980. The educational accountability program and the guide therefor developed as provided herein shall apply to all parish and city school systems in the state. The initial guide and the annual revisions thereof as developed shall be approved by the Joint Legislative Committee on Education no later than January 1, 1978, and each year thereafter.
B. Specifically, but without limitation, the program shall:
(1) Establish and provide for implementation of a procedure for the continuous identification, examination, and improvement of the goals of education in the state.
(2) Establish basic uniform statewide skills and concepts for each grade level and subject area, including but not limited to, reading, writing, and mathematics.
(3) Identify performance objectives which will lead directly to the achievement of pupil proficiencies.
(4) Develop evaluation instruments including, but not limited to, tests to provide the evaluation required.
(5) Develop and implement an overall evaluation design to provide for continuous and comprehensive review of the progress of school pupils toward the established goals and objectives, the evaluation to be conducted by teaching staff members of the school district under the direction of the chief school administrator of the district, and
(6) Provide for an annual report by the chief school administrator of each school district to the superintendent of education of the results of the evaluation of the progress of pupils accomplished as provided in Paragraph (4) above.
In order to provide for the orderly implementation of the accountability program, identification and establishment of statewide skills and concepts for each grade level and subject area, and evaluation of the achievement of these skills shall be accomplished for the school year 1977-1978, for the subject area of reading; for the school year 1978-1979, for the additional subject area of mathematics; and for the school year 1979-1980, for the additional subject area of writing; and thereafter other subject areas should be added.
C. Pursuant to this Part, the state Department of Education and local school boards, teachers, and administrators shall develop goals, objectives, and programs of educational accountability for the school districts which are in accordance with those of the program of educational accountability, and the goals and objectives thereof, established by the superintendent. Any parish or city system which has implemented or begun implementing an educational accountability and assessment program may continue such program to the extent that the program, and its goals and objectives, conform to the provisions of this Part. Any such program, and the goals and objectives thereof, shall be modified by the local school system to comply with the provisions of this Part.
D. The superintendent of education shall prescribe guidelines for reporting to the parents the progress of each pupil, including but not limited to parent-teachers' conferences, report cards, and pupil progress charts.
E. In carrying out the accountability program, the local school boards and the state Department of Education shall identify and define educational variables which may affect learning. These variables shall include, but not be limited to, the physical, intellectual, social, and emotional development of pupils. Educational variables surveys or studies shall be conducted by the state Department of Education to assess their relationship to learning. Results of these surveys or studies will be used to assist teachers, administrators, and other school personnel in the teaching-learning process.
§391.4. Pupil proficiency
A. The superintendent of education shall, by January 1, 1978, establish reasonable minimum levels of pupil proficiency in the basic communication and computational skills which shall be integrated into instructional programs. The superintendent of education shall, by January 1, 1979, develop and administer a uniform system of assessment based in part on criterion referenced tests to determine pupil status, pupil progress, and the degree to which such minimum proficiency standards have been met. The grade levels involved in such assessment shall be chosen by the superintendent. The local school governing bodies shall cooperate with the superintendent and the state Department of Education in the administration of this Section.
B. The school board of each district shall for the 1978-1979 school year and annually thereafter prepare a report of the aforementioned assessment results which shall include pupil assessment by grade and subject area for each school in the district, including those grade levels as established by the superintendent; and the board shall file such report with the superintendent of education.
C. The state superintendent of education shall make an annual report of the aforementioned assessment results. Such report shall include, but not be limited to, a report of the assessment results by grade and subject area for each school district of the state. The superintendent, by January 1, 1980, shall also include in such report an analysis and recommendations concerning the costs and differential effectiveness of instructional programs.
D. In addition, the state Department of Education shall prepare and submit an annual report to each school district in the state, and to the education committees of both houses of the legislature, containing an analysis, on a district-by-district basis, of the results and test scores of the testing program in the basic skills courses. The report shall include, but shall not be limited to, an analysis of the following operational factors having a substantive relationship to or bearing on such results:
(1) Average class size in grades one to three, inclusive.
(2) Pupil-teacher ratio in grades one to eight, inclusive.
(3) Average transitory factors as derived from dividing the average daily attendance of the district or selected schools by the total annual enrollment of the district.
(4) Analysis of compensatory educational needs in each parish and city school system, and
(5) Provide for an explanation of factors affecting the assessment results.
(6) Analysis of curriculum, textbooks and/or other teaching material as related to the grade or subject areas tested.
E. All test scores of individual students, average scores for individual classes or schools, and average scores for individual school systems shall be exempt from the public records act (L.R.S. 44:1-7). School boards may choose to release test data if it does not identify individual students, classes, or teachers. All test scores or test averages released to the public, however, must be accompanied by a complete analysis of socioeconomic factors beyond the control of the school or school system which have an effect on student scores.
§391.5. Repealed by Acts 1994, 3rd Ex. Sess., No. 1, §3, eff. June 22, 1994.
§391.6. Content course evaluation
A. From time to time, as the superintendent of education may determine, the state Department of Education shall conduct studies of the effectiveness of various courses, in addition to the basic communication and computation skills courses, offered by the public schools of this state. Such studies shall include details of the specific objectives of the courses and the level of achievement attained by students enrolled in such courses and, for this purpose, the department may use the results of any test administered under the provisions of this Part.
B. Upon the completion of such a study by the state Department of Education pursuant to this Section, the department shall report its findings, and recommendations, if any, to the legislature not later than January 1 of the year succeeding completion of the study.
C. The department shall maintain the anonymity of all students involved and local school board personnel. The department may make analyses involving other factors, including but not limited to general categories of pedagogies in use, type of district organization, geographic area, socioeconomic data, size of school district, or other analytical items which may prove useful.
D. The governing board of any school district shall cooperate fully with the superintendent of education in making its schools available for such studies; provided, that the state Department of Education shall provide all necessary materials. Such evaluation materials may include texts, books, references, tests, library print and nonprint materials, equipment, and other materials necessary for the orderly conduct of a study.
§391.7. Testing
A. Each school board shall report to the superintendent of education, pursuant to rules and regulations established by and pursuant to this Part, the results of all achievement and scholastic aptitude tests administered pursuant to this Part or any other standardized tests administered pursuant to this Part.
B. The districtwide results of such tests, but not the score or relative position of individual pupils, shall be reported by the school board at least once a year at a regularly scheduled meeting.
C. At the request of the superintendent of education, and in accordance with rules and regulations which the superintendent of education may adopt, each parish superintendent of schools shall cooperate with and give assistance to individual local schools under his jurisdiction in carrying out the testing programs of such districts and other duties imposed on school boards and school districts by this Part.
D. No city or parish superintendent of schools, nor any principal or teacher of any elementary or secondary school under his charge shall carry on any program of specific preparation of the pupils within the district for the testing program using the particular test used therein. The tests shall reflect the objectives and goals adopted for each subject and/or grade level as established pursuant to R.S. 17:391.4.
E. Repealed by Acts 1979, No. 750, §4, eff. July 20, 1979.
F. Prior to administration, descriptions of tests and other evaluation instruments, either prescribed by or developed pursuant to this Part, shall be submitted to all school personnel and the parents of all pupils subject to such tests.
G. No provision of this Part shall be construed to mean, require, or direct any city or parish school system to develop any tests or test programs under this Part or the guidelines established pursuant to this Part. The Department of Education shall develop and provide for the administration of all tests and test programs pursuant to this Part, and the guidelines established pursuant thereto; provided, however, that the superintendent of education may require city and parish school systems to administer tests and test programs under this Part and said guidelines if funds are made available specifically for this purpose. No provision of this Part shall be construed in any manner so as to prohibit any city or parish school system from developing and administering any tests or test programs for local use.
§391.8. Reports
The superintendent of education shall make such reports to the legislature in addition to those specifically required in this Part as he shall deem appropriate and shall be required to make such recommendations to the legislature as he deems appropriate concerning appropriate or necessary legislation with respect to the results of the accountability and assessment programs established by and pursuant to this Part.
§391.9. Public school accreditation
Not later than the 1979-1980 school year, the superintendent of education shall develop and institute accreditation standards for public schools based upon the attainment of educational objectives and goals established by this Part; provided, however, that such accreditation standards shall take into account the educational advantages and disadvantages imposed upon pupils by the home and out-of-school environment. The superintendent of education shall implement a system of public school accreditation in such school year based on such standards. Attainment of educational objectives and goals established by this part shall be one factor to be considered in the accreditation of public schools along with other factors now being considered.
§391.10. Monitoring of programs by Department of Education
A. The state Department of Education shall periodically monitor all programs of educational accountability established pursuant to the provisions of this Part. The methodology to be used in monitoring such programs shall be established by the state Department of Education with the approval of its governing authority and shall be sufficient to determine whether such programs have been implemented, to what extent they have been implemented, and whether such programs comply with the provisions of this Part. Copies of the accountability evaluation procedure, evaluation forms, and program as established by the local school board and approved by the state Department of Education shall be distributed through the local school systems to all employees affected by the educational accountability program.
B. If, in conducting such monitoring, the state Department of Education determines that a school system has failed to implement its programs of educational accountability properly or that a school system has failed to comply with the provisions of this Part, the state Department of Education shall notify such system of such failure, and the school system shall correct such failure within sixty calendar days after receiving such notification. The state Department of Education shall also notify the State Board of Elementary and Secondary Education of such failure by the school system.
If the failures are not corrected within the prescribed sixty calendar days, the state Department of Education shall notify the State Board of Elementary and Secondary Education of such continued failure and shall recommend to the board whatever sanctions against such school system the department deems appropriate. The State Board of Elementary and Secondary Education shall act upon such recommendation within sixty calendar days after its receipt."
R.S. 17:411
"§411. Teacher aides; qualifications
A. For purposes of this Section, "teacher aide" means any person employed by a city or parish school board on a full-time basis to assist a teacher in a public elementary or secondary classroom with the routine tasks inherent in conducting such class including but not limited to record keeping, preparation of classwork, the preparation of displays, assistance in student discipline matters, and grading student work, who has all of the following qualifications:
(1) Is at least twenty years of age.
(2) Possesses a high school diploma or its equivalent.
(3) Has taken a nationally validated achievement test and scored such as to demonstrate a level of achievement equivalent to the normal achievement level of a tenth grade student.
B. Notwithstanding any provision of law to the contrary, commencing with the beginning of the 1985-1986 school year every person employed on a full-time basis to assist the teacher in any public school classroom in this state, kindergarten through twelfth grade, regardless of the source of such employment and regardless of the source of revenue to fund the salary of such person, shall meet the requirements to be a teacher aide as provided in Subsection A of this Section.
C.(1) Notwithstanding any provision of this Section, no teacher aide employed prior to the effective date of this Section by any city or parish school board which provides tenure for its teacher aides shall be subject to the requirements of this Section.
(2) Notwithstanding any provision of this Section, the superintendent of any city or parish school system may, in his discretion, exempt from the provisions of this Section any teacher aide who was employed in this system prior to the effective date of this Section and who is not exempt under the provisions of Paragraph (1) of this Subsection."