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RAC RULES CHALLENGED ON FUNDING, STATUTORY AUTHORITY

February 28, 2013

Advocates are raising multiple concerns about the NJ Department of Education’s recently proposed – and long delayed – regulations for the newly created Regional Achievement Centers (RAC).

Education Law Center, the NJ Principals and Supervisors Association, and the Department’s own NCLB School Improvement Committee have submitted comments raising questions about the authority, scope and funding of the RACs.

The RACs were set up as part of New Jersey’s NCLB waiver application to intervene in 75 “priority” schools with low test scores and 153 “focus" schools with low graduation rates and/or large test score gaps. These schools overwhelmingly serve high need communities of color in 87 districts around the state.

Although the RACs began operations last summer, the Department did not issue regulations governing their activity, as required by the state’s Administrative Procedures Act (APA), until ELC raised the issue with the Attorney General’s office. After the Department finally proposed regulations in December, advocates submitted comments detailing numerous concerns.

ELC challenged the Department’s characterization of the economic impact of the proposed “turnaround plans” as “negligible.” Under the proposed rules, districts and schools must set aside up to 30% of their Title I funds to support RAC interventions. The rules also allow the Commissioner of Education to enter into contracts that districts must pay for with “Qualified Turnaround Providers” (QTP) assigned by the RACs to intervene in targeted schools.

The economic impact, ELC noted, “is potentially more significant than the impact statement suggests.” In addition, “The criteria for designation as a QTP are not adequately specified in the proposal and the scope and limits of the authority of a QTP are not clearly spelled out in the proposed rules.” 

NJPSA raised similar concerns that the QTP plans “confer broad authority to a third-party, at the expense of the district…Further, even where authority has been granted to authorize a third-party entity to operate a school, such as in a charter school context or under the recently enacted ’Urban Hope Act,’ this authority has not extended to for-profit entities. The proposed code does not contain such a proscription.”

The NCLB School Improvement Committee noted that when a comparable proposal was made by the Department several years ago, “similar questions were raised and it was determined at that point that in fact, additional statutory authority would be required to effectuate change.” According to NJPSA, “the activities required by the affected entities and the Department under the proposal appear to be unaligned from current statutory and regulatory requirements under QSAC and may therefore lack express statutory and regulatory authority.”

Another issue is a provision exempting charter schools from the turnaround rules under the NCLB waiver, even though several charter schools are on the Department’s “priority” list.

The larger issue behind many of the concerns is the Department’s use of the NCLB waiver process to create a new statewide accountability system without substantial review by the Legislature or the public. Over the past year, the Department of Education has made significant changes in its accountability and oversight requirements for districts, schools and educators. These involve proposals to repeal or revise hundreds of existing regulations and to modify or replace dozens of state statutes, following up on recommendations issued by the Governor's Education Transformation Task Force report last September. They also involve substantial changes in Department operations, staffing and budgetary decisions, including the solicitation of substantial grant funding from private foundations in support of specific policy goals.

Many of the Department’s plans have by-passed the legislature and been advanced through Department memos, directives, grant proposals and other channels. The RACs advanced even though the Legislature explicitly rejected the Department’s request for RAC funding in the FY13 State Budget. 

Moreover, in reports, press releases, presentations to districts, grant proposals and other documents, the Department has proposed actions for which it does not have clear statutory authority, including State-ordered school closures, the creation of a State “takeover” district under the Commissioner’s control for schools deemed to be making insufficient progress, the conversion of district schools into charters, and the turnover of district schools to private management firms.

In its comments, ELC asks the Department to “confirm that none of these proposals, as described above, will be implemented because the Department lacks the statutory authority to take such actions and because they have not been the subject of appropriate rulemaking under the APA.”

 

Related Stories:

RAC ACTIVITIES RAISE MAJOR QUESTIONS

STATE ORDERS PUBLIC SCHOOLS TO FOLLOW NEW ACCOUNTABILITY POLICY WITHOUT PUTTING RULES IN PLACE

 

Press Contact:

Sharon Krengel
Policy and Outreach Director
skrengel@edlawcenter.org
973-624-1815, x 24