The Rest of the Story: The READ Act and CDE
The Douglas County School District (DCSD) continues to work in the best interest of its students and staff.
DCSD primary teachers have expressed concerns regarding the limitations of the current Colorado READ Act – stating that in some cases they do not feel it is allowing them to do what is best for their early readers – often requiring excessive testing that does not provide the data they need to inform their instruction. Some teachers feel they have to double test their students to get the data they do need and be in compliance with the law because assessments they value are not READ Act approved. After much due diligence, including consultation with legal counsel, DCSD has offered elementary schools, their staff, and communities the opportunity to seek relief from the READ Act via a possible waiver from the Colorado State Board of Education and the Innovation Act of 2008.
DCSD understands that we have a difference of legal opinion/interpretation with the Colorado Department of Education (CDE) regarding the authority and ability of the State Board of Education to provide relief to our students by waiving portions of the READ Act. Our legal interpretations may vary, but we are committed to continuing our collaborative work with CDE in the best interest of our students.
DCSD has a long history of innovation, excellence, and efficiency. We have and always will listen to our teachers, explore avenues that may provide them the support and flexibility they need to meet the needs of unique students, and provide support to schools wishing to work within the law to find the flexibility they need to do what is best. This currently includes seeking alternatives to the requirements of the Colorado READ Act.
Letter submitted to Tony Dyl, Assistant Attorney General
October 7, 2014
Mr. Tony Dyl, Assistant Attorney General
Office of the Attorney General
Ralph L. Carr Colorado Judicial Center
1300 Broadway, 10th Floor
Denver, CO 80203
RE: Innovation Schools Act Waivers and the READ Act
I am writing to thank you for, and to follow up on, our conversation last Friday regarding the legal authority of the State Board to waive certain portions of the READ Act under a proper Innovation Schools Act application. My call was in response to the September 24, 2014 letter from Commissioner Hammond to DCSD Superintendent Dr. Liz Fagen which seemed to indicate that no portion of the READ Act could ever be waived by the State Board.
I wanted to confirm our common understanding from our phone call that there is no such “blanket” prohibition against waivers of the READ Act in its entirety. You were clear with me, and I agree, that there are specific provisions of the READ Act that cannot be waived. These relate specifically to the identification and reporting of students with significant reading deficiencies. This is required by statute to be included as one of the performance indicators for schools, districts and the state. Nonetheless, those specific prohibitions do not extend to the entire Act, and there is any number of other provisions in the Act that the State Board has lawful discretion to waive.
In the spirit of collaboration that we have successfully developed with CDE and your office over the years, I want to provide you with our analysis of this issue, as we intend to continue to explore avenues that may provide our teachers with the support and flexibility they need to meet the needs of unique students, and provide support to schools wishing to work within the law to find the flexibility they need to do what is best. This currently includes seeking alternative means to meet the statutory intentions of the READ Act.
The precise question presented is whether the READ Act (Colo. Rev. Stat. Ann. § 22-7-1201 et seq.) may be waived under Colorado’s Innovation Schools Act of 2008 (Colo. Rev. Stat. Ann. § 22-32.5-101 et seq.). As indicated above, it is our conclusion that the answer is generally in the affirmative, except for those specific portions of the READ Act that are required by law as part of school, district and state performance reporting (Colo. Rev. Stat. Ann. § 22-11-204(3)(b)).
On September 2, 2014, the Douglas County Board of Education passed a resolution directing that the Superintendent and District staff support schools that locally choose to do so, to request waivers of certain requirements of the READ Act under the Innovation Schools Act. These waivers would allow for locally-identified school options in assessing the reading proficiency of students in kindergarten through third grade, and addressing the needs of students with “significant reading deficiencies” as contemplated by the READ Act. There is interest by some schools in obtaining flexibility in the specific reading assessment systems used by schools (as opposed to only those adopted by the State Board) to determine whether a student has a “significant reading deficiency”, and in limiting the repeated and duplicative assessment of students who have already demonstrated reading proficiency at a grade level.
Under the Innovation Schools Act (the “Act”), schools or districts may submit Innovation Plans that include requests for waivers of state laws or rules that will empower “each public school to tailor its services most effectively and efficiently to meet the needs of the population of students it serves.” Colo. Rev. Stat. Ann. § 22-32.5-102(1)(e). The Innovation Plans are then submitted to the commissioner of the Department of Education (the “department”), and the state board, for comment and consideration by a process and timeline described in the Act.
The Act specifically states, as a required element of a school’s Innovation Plan, “the public school’s assessment plan.” Colo. Rev. Stat. Ann. § 22-32.5-104(3)(c)(4). The Act also states that, as local boards consider innovation plans, they are “strongly encouraged to consider innovations in…curriculum and academic standards and assessments” Colo. Rev. Stat. Ann. § 22-32.5-105(1)(a) and the “provision of services…for students at risk of academic failure.” It is clear from the language of the statutes that the area of assessment is one that the Act intended for schools to explore as innovations. In the discussions of proposed Innovation Plans in the schools, and in the resolution of support by the DCSD Board of Education, these are precisely the innovations being contemplated by the schools for which waivers of portions of the READ Act may eventually be sought.
While the Act contemplates waivers of statutes or rules that will “clear the path” for a school’s Innovation Plan, it also contains a list of laws (in Colo. Rev. Stat. Ann. § 22-32.5-108) that the state board, “shall not waive” under an Innovation Act plan. These statutes are:
- “Any statutes specified in section 22-2-117(1)(b).” These are:
- The “Public School Finance Act of 1994”, article 54 of title 22. (The READ Act, in article 7, not part of article 54).
- The “Exceptional Children's Educational Act”, article 20 of title 22. (Again, the READ Act is not part of article 20).
- Any provision of part 5 of article 11 of this title pertaining to the data necessary for performance reports. (Section 5 of Article 11 is the school and district performance reporting under the accreditation law. See further discussion below).
- Any provision of title 22 that relates to fingerprinting and criminal history record checks of educators and school personnel. (These laws are not related to the READ Act)
- The “Children's Internet Protection Act”, article 87 of title 22. (Again, this is not related to the READ Act.)
- “Any provision of article 64 of this title” (This is the PERA statute and is not related to the READ Act).
- “Any statutes that are not included in this title, including but not limited to article 51 of title 24, C.R.S.” (This means that any waivers granted must be part of the Education Code - Title 22. The READ Act is in Article 7 of Title 22).
Expressio unius est exclusio alterius ("the express mention of one thing excludes all others") is an established canon of statutory construction in Colorado. See Farmers Ins. Exchange v. Allstate Ins. Co. 170 P.3d 847 Colo.App. (2007). Under this canon of construction, the fact that the General Assembly created a list of specific laws in the Act which the state board shall not waive under an Innovation Plan - and that list excludes the READ Act - means that the READ Act is, in fact, subject to waiver.
Because the READ Act as a whole is not listed as a statute prohibited from waiver under the Act, the only remaining question is, to what extent, if any, does part 5 of article 11 (Performance Reporting) limit a requested waiver of the READ Act?
Performance Reporting and the READ Act
Colo. Rev. Stat. Ann. § 22-5-503(2)(a) requires that the department prepare a school performance report that includes the indicators listed in Colo. Rev. Stat. Ann. § 22-11-204(3)(b).
Colo. Rev. Stat. Ann. § 22-11-204(3)(b) includes in a school and district’s performance indicators, the “percentages of students enrolled in third and fourth grades of the public school, the school district, all institute charter schools, and the state as a whole who were at one time identified as having a significant reading deficiency pursuant to section 22-7-1205…” (viz., the READ Act). This means that public schools need to identify (and report to the state) those students with “significant reading deficiencies”. Under the READ Act, the definition of a “significant reading deficiency” is a student that does not meet the minimum skill levels for reading competency established by the state board under the READ Act. The READ Act gives the state board the discretion to identify the reading assessments that may be used for this purpose for students in kindergarten through third grade.
Waiver requests being contemplated by DCSD schools include reading assessments that are not currently on the state board’s list, or that may drop off the list in the near future. The authority to approve any number of reading assessments for READ Act purposes is squarely in the purview of the state board by law, so it cannot be said to be outside state board authority to grant a waiver in this regard. The assessments must have the capability, in the judgment of the state board, of identifying students with significant reading deficiencies, which shall then be dutifully reported to the state as a performance indicator for the school and the district for accreditation purposes. We realize that the Department has yet to see an Innovation Plan from any DCSD school, but I will report to you now that the Innovation Plans being contemplated include assessments for students in kindergarten through third grade that will fulfill this requirement, thus providing full compliance with part 5 of article 7.
The remainder of the Innovation Plans and related waivers of READ Act requirements being considered for submission by DCSD schools relate to the school-based methods of addressing the needs of students who are identified as having a reading deficiency (“READ plans”). None of those “READ plan” elements of the READ Act is related to performance reporting under part 5 of article 7. Therefore, none is precluded from being considered for waivers by the state board pursuant to a school’s Innovation Plan.
Provisions of the READ Act may be waived by the state board under an Innovation Plan meeting the remaining criteria for approval under the Innovation Schools Act. Any such plans proposed by a school must include assessments that will serve to identify students with significant reading deficiencies, which students must then be reported to the state as a performance indicator in the school’s, district’s and state’s performance report, as required by law.
Again, we look forward to working collaboratively with you and CDE as we seek ways to support our parents, teachers and schools in meeting the unique learning needs of each student, as well as to ensure that each of our District schools has all of the flexibility, discretion and potential to innovate that the General Assembly clearly intended them to have.
DCSD Legal Counsel
 Under the Act, a school and/or district that has been granted waivers by the state board shall “continue to be subject to all statutes that are not waived by the state board.” Any expansion or modification of waivers must go through the site, district and state board approval process just as an initial request. Colo. Rev. Stat. Ann. § 22-32.5-108 (2).
 It bears mention that the department’s own list of what cannot be waived (on its website) makes no mention of the READ Act. http://www.cde.state.co.us/choice/innovationplanguidance
 There is no interest by any school to use an Innovation Plan to avoid addressing students with reading deficiencies. Aside from the obvious detriment to the student, such deficiencies will reveal themselves in the both the reading assessments chosen by the school, and statewide assessments, and may affect the accreditation status under the state’s performance reporting.