Nick Krieger (@nckrieger):
It has been a long time since I took federal administrative law, so I might be a little rusty. But as I was reading some unrelated administrative law decisions yesterday, two questions popped into my head: What happens to federal agency guidance when the statute on which it’s based is repealed? And what if a state legislature has incorporated that federal agency guidance by reference into a state statute? Then I started typing.
“RACE TO THE TOP” & THE SCHOOL INTERVENTION MODELS
The Race to the Top (“RTTT”) grant program was established pursuant to §§ 14005 and 14006 of Title XIV of the American Recovery and Reinvestment Act of 2009 (“ARRA”), Public Law 111-5 (February 17, 2009), 123 Stat. 282-284.
To compete for RTTT grant funding, states were required to submit detailed applications. Each state’s application was then scored on the basis of several factors. For example, points were awarded for adopting common state standards, implementing teacher evaluation methods, permitting the expansion of charter schools, and taking certain steps to improve the lowest-performing schools in the state.
Among other things, the ARRA required any state that wished to apply for RTTT grant funding to “ensure compliance with the requirements” of §§ 1116(b)(7)(C)(iv) and 1116(b)(8)(B) of the Elementary and Secondary Education Act (“ESEA”).
Sections 1116(b)(7)(C)(iv) and 1116(b)(8)(B) of the ESEA, originally enacted in 2001 as part of the No Child Left Behind Act (“NCLBA”), Public Law 107-110 (January 8, 2002), 115 Stat. 1425 et seq., prescribed various methods of intervention for low-performing schools that failed to make “adequate yearly progress” as defined by § 1111(b). In turn, the School Improvement Grant (“SIG”) program was established under § 1003 of the NCLBA to assist state and local education agencies in satisfying the requirements of § 1116.
Section 1116(b)(7)(C)(iv) required a local education agency to take one of several “corrective actions” with respect to any subject school that did not make adequate yearly progress for two consecutive years. If the school still failed to make adequate yearly progress after one additional year, the local education agency was required under § 1116(b)(8)(B) to implement one of five “restructuring” strategies: (1) restarting the school as a charter school, (2) firing and replacing all or most of the school’s staff, (3) entering into a contract with a private management company to operate the school, (4) turning the operation of the school over to the state, or (5) significantly restructuring the school’s governance to make “fundamental reforms” aimed at achieving adequate yearly progress.
As noted, when enacting the ARRA in 2009, Congress determined that state applicants for RTTT funding should be required to prove that they were complying with §§ 1116(b)(7)(C)(iv) and 1116(b)(8)(B). Therefore, these sections were specifically incorporated into the ARRA and made part of the RTTT grant application process. See ARRA § 14005(d)(5).
The U.S. Department of Education had already developed four school intervention models, evidently on the basis of the statutory language in § 1116(b)(8)(B), for use with regard to the SIG program: the restart model, the turnaround model, the transformation model, and the school closure model. See 74 Fed. Reg. 43101, 43104-43109; see also Garnett, Disparate Impact, School Closures, and Parental Choice, 2014 U. Chi. Leg. Forum 289, 301-302 (2014). These models closely paralleled the statutory requirements of § 1116(b)(8)(B).
Following passage of the ARRA, the U.S. Department of Education issued additional guidance, extending its four school intervention models to the RTTT grant application process. See 74 Fed. Reg. 65618, 65619 (stating that “[w]e have fully aligned the school intervention models and related definitions across the Race to the Top, the State Fiscal Stabilization Fund Phase II, and the School Improvement Grants programs to make it easier for States to develop and implement consistent and coherent plans for turning around their persistently lowest-achieving schools”).
THE SRRO & SECTION 1280c
Like many states, Michigan changed its laws and adopted new policies in late 2009 to improve its chances in the competition for RTTT grant funding. See Gross and Hill, The State Role in K-12 Education: From Issuing Mandates to Experimentation, 10 Harvard Law & Policy Rev. 299, 310-311 (2016).
On January 4, 2010, Governor Jennifer Granholm signed 2009 PA 204, which established the State School Reform/Redesign Office (“SRRO”), created the state school reform district, and incorporated by reference the U.S. Department of Education’s four school intervention models. The relevant provisions of 2009 PA 204 are codified at MCL 380.1280c.
MCL 380.1280c(2) lists the four school intervention models (restart, turnaround, transformation, and school closure) but does not define them. Instead, it merely states that the four models are those “that are provided for the lowest achieving schools” under the RTTT provisions of the ARRA.
MCL 380.1280c(6) and (7) specify two ways in which the SRRO may take over a school that has been identified as among the lowest-achieving 5% of public schools in the state: (1) placement in the state school reform district, or (2) appointment of a CEO for the school. The statute provides that if the SRRO takes over a school in either of these two ways, it must “impose . . . implementation” of one of the four U.S. Department of Education school intervention models.
THE EVERY STUDENT SUCCEEDS ACT
Last December, President Obama signed the Every Student Succeeds Act (“ESSA”), Public Law 114-95 (December 10, 2015), 129 Stat. 1802 et seq. The ESSA replaced the NCLBA, altering or repealing many of its provisions.
The ESSA does away with the concept of “adequate yearly progress.” Under the ESSA, each state must adopt “challenging academic content standards and aligned academic achievement standards” and implement “a set of high-quality student academic assessments in mathematics, reading or language arts, and science.” In addition, states must continue to report the results of these academic assessments as under the previous law. However, the focus on mandatory school restructuring has been greatly softened. Of note, § 1000(1) of the ESSA repealed § 1116 of the ESEA in its entirety. Recall that § 1116 was the section that provided the statutory basis for the U.S. Department of Education’s four school intervention models in the first instance.
WHAT DOES IT MEAN?
So here’s the big question: Since Congress has repealed § 1116, do the four school intervention models remain viable? Or are they dead?
Most commentators agree that § 1116 provided the statutory authority for the U.S. Department of Education’s guidance creating the four school intervention models. If the statute is no longer operative, however, what effect does that have on the agency guidance that was promulgated to interpret it? It seems that the repeal of § 1116 should invalidate any agency rules or policy statements that were based on the statute’s provisions.
If there are no U.S. Department of Education school intervention models left, can MCL 380.1280c still incorporate them by reference? And can the SRRO still “impose . . . implementation” of one of them under § 1280c(6) or (7)?
In Michigan, it is axiomatic that a statute must contain adequate standards to guide those who are charged with its enforcement. See, e.g., West Bloomfield Charter Twp v Karchon, 209 Mich App 43, 54; 530 NW2d 99 (1995). If the federal agency guidance that created the school intervention models is no longer valid, can the four models be defined and understood by reference to it? And how could the SRRO go about “impos[ing] . . . implementation” of one of the intervention models if the models are not independently defined by state law? I suggest that it could not, as there would be insufficient standards to guide its actions.
What do you think? I certainly don’t have all the answers, and I might be way off base. But it is something to ponder as we continue to debate whether the SRRO can impose the “school closure” intervention model for schools on its priority list.