6-1304-12486-1

 

 

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

 

FOR THE DEPARTMENT OF CHILDREN, FAMILIES AND LEARNING

 

In The Matter of the Proposed Amendment

To Rules Relating to Passing Scores for                                       REPORT OF THE

State Basic Skills Tests, Minnesota Rules,                       ADMINISTRATIVE LAW JUDGE

3501.0180, subp. 2 and 3

 

            The above-entitled matter came on for hearing before Administrative Law Judge Allan W. Klein on November 8, 1999, in Little Canada.

 

            This Report is part of a rulemaking proceeding held pursuant to Minn. Stat. §§ 14.31 to 14.20 (1996), to hear public comment, to determine whether the Minnesota Board of Education (hereinafter “the Board”) has fulfilled all relevant substantive and procedural requirements of law and whether the proposed rules are needed and reasonable.

 

            Beverly Bryant, Assistant Attorney General, Assistant Counsel for the Agency, 445 Minnesota Street, St. Paul, Minnesota 55101-2127, appeared on behalf of the Board. 

 

            Approximately 18 members of the public attended the hearing in Little Canada and of those approximately 16 signed the register.  The hearing continued until all interested persons, groups or associations had an opportunity to be heard concerning the proposed rules.

 

            The record remained open until January 3, 2000, for the submission of written comments.[1] Pursuant to Minn. Stat. § 14.15, subd. 1, time was then allowed for the filing of responsive comments.  The agency did not file any additional responsive comments, nor did it elect to make any changes to the proposed rules.  The record of this rulemaking closed for all purposes on January 7, 2000. 

 

 

 

 

 

NOTICE

 

            The Commissioner of Department of Children, Families and Learning[2] must wait at least five working days before taking any final action on the rule; during that period, this Report must be made available to all interested persons upon request.  The agency may then adopt a final rule or modify or withdraw its proposed rule.  If the Commissioner of Department of Children, Families and Learning makes changes in the rule other than those recommended in this report, the Commissioner, must submit the rule with the complete hearing record to the Chief Administrative Law Judge for a review of the changes prior to final adoption.  Upon adoption of a final rule, the agency must submit it to the Revisor of Statutes for a review of the form of the rule.  The agency must also give notice to all persons who requested to be informed when the rule is adopted and filed with the Secretary of State.

 

            Based upon all the testimony, exhibits, and written comments, the Administrative Law judge makes the following:

 

FINDINGS OF FACT

 

Procedural Requirements

 

1.                  On August 25, 1999, the Board filed the following documents with the Chief Administrative Law Judge:

 

(a)               the proposed rules certified by the Revisor of Statutes (Ex. 8);

(b)               a draft of the Statement of Need and Reasonableness (SONAR); and

(c)               the Dual Notice proposed to be issued.

 

2.                  On August 25, 1999, the Board filed a request for approval of its additional notice plan with the Office of Administrative Hearings.  The additional notice plan was approved on September 1, 1999 (Ex. 15).

 

3.                  The Board mailed a copy of the SONAR (Ex. 9) to the Legislative Reference Library on September 16, 1999 (Ex. 10).  On September 22, 1999, the Board mailed the Dual Notice to all persons and associations who had registered their name with the agency for the purpose of receiving such notice (Ex. 14).

 

4.                  On September 27, 1999, a copy of the Dual Notice and the proposed rules  were published at 24 State Register 424 - 425. (Ex. 12)

 

5.                  At the Hearing on November 8, 1999, the Board placed the following additional documents into the record:

 

(a)       Request for Comments as published on May 24, 1999, at 23 State Register 2201 (Ex. 1), and as mailed (Ex. 2);

(b)               Affidavit  of Mailing the Request for Comments to person on the Board’s mailing list (Ex. 3), and Certificate showing the accuracy of the Board’s mailing list as of May 18, 1999 (Ex. 4);

(c)               Three Affidavits of Discretionary Mailing of the Board’s Request for Comments (Exs. 5, 6, and 7);

(d)               Dual Notice as mailed (Ex. 11);

(e)               Certificate showing the accuracy of the Board’s mailing list as of September 1, 1999 (Ex. 13);

(f)                 Certificate of Additional Notice (Ex. 16);

(g)               Written comments and requests for a public hearing on the proposed rules received by the Board (Exs. 17(a) – (z));

(h)               Certificate of Sending Notice to Legislators (Ex. 18);

(i)                 Certificate of the State Board of Education; Authorizing Resolution (Ex. 19);

(j)                  Authorizing Resolution (Ex. 20); and

(k)               Letter to ALJ from the Board, dated November 1, 1999, requesting a five-day comment period following the hearing (Ex. 21).

 

6.                  The documents were available for inspection at the Office of Administrative Hearings from the date of filing.

 

7.                  Upon determining that “Exhibit A” to the Statement of Need and Reasonableness as filed was not the intended one, the agency filed the correct Exhibit on December 20.  On that date, the Administrative Law Judge mailed the correct one to all persons who had shown interest in the proceeding.[3]

 

8.         The period for submission of written comment and statements remained open through January 3, 2000, the period having been extended by the Administrative Law Judge.  The record closed on January 7, 2000.

Standards of Review

 

            9.         In a rulemaking proceeding, an administrative law judge must determine whether the agency has established the need for and reasonableness of the proposed rule by an affirmative presentation of facts.[4]  An agency need not always support a rule with adjudicative or trial-type facts.  It may rely on what are called “legislative facts” — that is, general facts concerning questions of law, policy, and discretion.  The agency may also rely on interpretations of statues and on stated policy preferences.[5]  Here, the Board prepared a SONAR setting out a number of facts, and policy preferences to support the proposed rules.  It also supplemented information in the SONAR with information presented at the rule hearing.

 

10.       Inquiry into whether a rule is reasonable focuses on whether the agency has demonstrated that it has a rational basis, as opposed to being arbitrary.  Minnesota law equates an unreasonable rule with an arbitrary rule.[6]  Agency action is arbitrary or unreasonable when it takes place without considering surrounding facts and circumstances or disregards them.[7]  On the other hand, a rule is generally considered reasonable if it is rationally related to the end that the governing statute seeks to achieve.[8]

 

            11.       The Minnesota Supreme Court has defined an agency’s burden in adopting rules as having to “explain on what evidence it is relying and how the evidence connects rationally with the agency’s choice of action to be taken.”[9] An agency is entitled to make choices between different approaches as long as its choice is rational.  Generally, it is not proper for an administrative law judge to determine which policy alternative might present the “best” approach, since making a judgment like that invades the policy-making discretion of the agency.  Similarly, where an agency has engaged in a balancing process, such as weighing competing demands for limited resources, the Administrative Law Judge will not substitute his own balancing for that chosen by the Agency.  Rather, the question for an administrative law judge is whether the agency’s balancing is one that a rational person could have made.[10] 

 

            12.       In addition to ascertaining whether proposed rules are necessary and reasonable, an administrative law judge must make other decisions — namely, whether the agency complied with the rule adoption procedure; whether the rule grants undue discretion to the agency; whether the agency has statutory authority to adopt the rule; whether the rule is unconstitutional or illegal; whether the proposed language is not a rule.[11]

 

            13.       When an agency makes changes to proposed rules after it publishes them in the State Register, an administrative law judge must determine if the new language is substantially different from what the agency originally proposed.[12]  The legislature has established standards for determining if the new language is substantially different.[13]  In this case, there was no change in the Board’s proposal, so that issue need not be addressed.

 

 

Nature of the Proposed Rules

 

14.       This rulemaking proceeding involves amendments to the Board’s existing rules relating to passing scores for state basic skills tests, Minnesota Rules, 3501.0180, subp. 2 and 3.

 

15.       In order to be eligible for a Minnesota high school diploma, all students, must pass the Basic Requirements of the Graduation Rule.  One part of satisfying the rule requires that each student achieve at least the minimum passing score or “cut” score on both the reading test and the mathematics test.  The existing rule increases the cut score from 70 percent for students entering grade 9 in 1996 to 75 percent for those entering grade 9 in 1997 and to 80 percent for students entering grade 9 in 1998 and thereafter.[14]

 

16.       The passing score represents an indicator, or a means of objectively identifying those test takers who must have remedial education.  Those who fail to pass the test are evaluated in order to determine the remedial education that is appropriate for them.  The goal for those individuals is that they achieve a passing score on a future test.[15] 

 

Statutory Authority

 

17.       Minnesota Session Laws, 1997, Ch. 138, Sec. 2 (b), provides the necessary statutory authority to adopt the proposed rule.  It explicitly authorizes the Board to amend part 3501.0180, subparts 2 and 3.  The Board does have statutory authority to adopt its proposals.     

 

Cost and Alternative Assessments in SONAR

 

18.       Minn. Stat. § 14.131 provides that state agencies proposing rules must identify classes of persons affected by the rule, including those incurring costs and those reaping benefits; the probable effect upon state agencies and state revenues; whether less costly or intrusive means exist for achieving the rule’s goals; what alternatives were considered and the reasons why any such alternatives were not chosen; the cost that will be incurred complying with the rule; and differences between the proposed rules and existing federal regulations.

 

In the SONAR, the Board addressed each of these requirements.  The Administrative Law Judge finds that the Department has complied with the requirements of the statute.

 

 

 

 

Performance Based Regulation

 

19.       Minn. Stat. § 14.002 directs all agencies, whenever feasible, to develop rules that emphasize superior achievement in meeting the agencies’ regulatory objectives and a maximum flexibility for the regulated public in meeting those goals.  The Agency claims that it sought to describe desired outcomes (passing scores) while leaving it up to the local school district as to how to accomplish that goal (curriculum, remediation, etc.).  The Administrative Law Judge believes the statutory scheme intends that there be these tests, and that the tests have objective passing scores.  In such a case, there is no feasible way to avoid setting exact scores.  Therefore, the Administrative Law Judge concludes that the Board has complied with the statute.

 

Analysis of the Proposed Amendment

 

History

 

20.       In March of 1996, the Graduation Standards Rules, Minn. R. parts 3501.0010 to 3501.0180, were first adopted.  They established the basic requirements in reading and mathematics, which students must demonstrate in order to be awarded diplomas in Minnesota public schools.  These rules were based upon the legislative authority in Minn. Stat. § 121.11, subd. 7(c), (renumbered 120B.02).

 

            Minn. Rule pt. 3501.0180, subps. 2 and 3, established passing scores on the state basic skills tests in both reading and mathematics.  When first adopted in 1996, subparts 2 and 3 provided as follows:

 

      Subp. 2.  Mathematics.  The passing score for the state test of mathematics is 70 percent for students entering grade 9 in 1996; is 75 percent for students entering grade 9 in 1997; and is 80 percent for students entering grade 9 in 1998 and thereafter.

Subp. 3.  Reading.  The passing score for the state test of reading is 70 percent for students entering grade 9 in 1996; is 75 percent for students entering grade 9 in 1997; and is 80 percent for students entering grade 9 in 1998 and thereafter.

 

21.       In 1997, these two subparts were amended pursuant to Laws of Minnesota 1997, Ch. 138, Sec. 2.  Under this legislation, the Minnesota State Board of Education was directed to amend the two subparts to adjust the passing scores for the state mathematics and reading tests for students entering ninth grade in 1998 and thereafter.  The Board amended the existing rule (indented above) to set a passing score of 75 percent for all students on both the reading and math tests.

 

22.       The 1997 legislation allowed the Board to make that amendment pursuant to Minn. Stat. § 14.386, paragraph (a), an exempt rulemaking process.  A rule adopted under Minn. Stat. §14.386 is only effective for two years from the date of publication of the rule in the State Register.  The 1997 amendments were published in the State Register on July 14, 1997, and thus expired on July 14, 1999.  The effect of this expiration was to return the rule to its staggered version (indented above) which means that the passing score is now 80 percent.

 

            23.       At this time, the Board is proposing to permanently adopt the 1997 amendments through the full rulemaking process under Chapter 14.  The proposed rule will return the passing score for reading and math to 75 percent.[16]  If the proposed rule is not adopted, the passing score would be 80 percent.

 

Discussion

 

24.       The Board, with the help of the Department of Children, Families and Learning and contractors at the University of Minnesota, engaged in an extensive process to design the tests.  The content which the tests were supposed to measure was (and still is) set forth in a rule, Minn. Rule pt. 3501.0060, subpts. 2 and 3.  Therefore, the “target” that the Board was aiming at in designing the tests was a reasonably specific and known one.

 

25.       The persons who actually designed the tests initially recommended a pass score of 70 percent correct for both the reading and math assessments.[17] 

 

26.       Upon receipt of this recommendation, the Graduation Standards Executive Committee reviewed it and determined to adopt a different passing score, which would allow for a phasing in from 70 percent the first year, 75 percent the second year, and 80 percent the third year.  This Executive Committee decision was ratified by the full State Board of Education and became the rule initially adopted in 1996.

 

27.       One of the factors which must be considered when looking at any sort of a test such as this one is its accuracy.  As explained in the University report just cited, an educational test is not equally precise throughout its range.  It is possible to measure the precision of a test to determine the “conditional standard error of measurement”.  The study found that as the passing score was increased from 70 percent to 75 percent to 80 percent, the error of measurement also increased.  What that means is that the likelihood of making an error in passing or failing a student is higher if the passing score is set at 80 percent than it is if the passing score is set at 75 percent.

 

28.       The State Board places a high value on having an accurate test.  It wants a situation where the same child, taking the same test (not actually the same questions, but different questions measuring the same content) would get the same score each time they took it.  That would minimize the erroneous decisions that could occur if the test were not accurate.[18]

 

29.       Members of the public who commented, either in writing or orally, almost universally opposed the proposed rule because they saw it as lowering standards.  For example, one commentator wrote:

 

I am writing to express my disagreement on lowering the passing requirement of the Minnesota basic requirements test from 80 percent to 75 percent.

 

The test includes math and reading which are really the basic skills an average high school student should have.  The 80 percent passing score must have been made under careful studies of what an average junior high school student should know when he/she gets to the G8 level.  If the student cannot pass the test, it shows he/she needs help on these basic skills.  I know help is given in most schools during the school year and in the summertime because my two sons experienced the process.  * * *  I do believe with encouragement and help from teachers and parents, and with an eagerness to work hard and reach the set goal, many students can pass the 80 percent percentile like my two sons.

 

Therefore, my belief is the percentage should not be lowered.  Every high school student should possess that basic skill for his/her benefit.  Lowering the percentage is lowering the academic standard of Minnesota schools. . . . .[19]

 

30.       In response to this, and many other similar statements, the Board responded that its proposed lowering of the passing score was not lowering standards.  Again, they relied on the University study, which recommended that if the Board wanted to raise standards, they should change the content of the tests:

 

Instead of simply raising the cut score [passing score] with the existing versions of the MTBS math and reading tests, it would be more desirable to alter the tests such that the difficulty of the items is increased.  This can be achieved by replacing some easy items with difficult ones.[20]

 

At the hearing, Marsha Gronseth of the Board compared the two ideas to a high jump.  She said you can either leave the bar at one level and see how often a contestant can jump over it, or you can raise the bar so that it is harder to jump over.  She stated that the Board was just proposing to leave the bar at the same level, but only require a student to jump over it 7.5 times out of ten, rather than eight times out of ten.  She stated that those who wanted “higher standards” should be urging that the bar be raised.[21]  This “raising the bar” is what the University study was referring to when it said that the appropriate way to raise standards was to increase the difficulty of the test questions.

 

31.       Opponents also argued that the real motivation of the Board in proposing to lower the passing score was to increase the number of students who would pass so that (a) schools would not look bad, and (b) less money would have to be spent on remediation.  The Board denied these motivations, but even Professor Davison, one of the authors of the University report, made the following points:

 

Having analyzed the reliability of both the state basic skills tests in reading and mathematics, I will address this letter primarily to the issue of measurement accuracy.  Before turning to that issue, however, I would also like to express my view that raising the passing score to 80 percent may lead to an over-emphasis on basic skills.  And it would place an additional burden of remediation on the schools.  In my opinion, there are more reasons for maintaining a passing score at 75 percent than just measurement accuracy.

 

* * *

 

I urge you to approve the proposed amendment so as to retain the cut-score at a level where the test scores are more precise, so as to maintain a proper focus on basic skills, and so as to limit the burden of remediation on schools.[22]

 

32.       The Administrative Law Judge cannot know all of the motivations behind the Board’s proposal, but the focus of the inquiry is not upon their motivation – it is upon whether they have presented a rational basis for their proposal.  The Administrative Law Judge concludes that the concern over test accuracy is one which could lead a rational person to make the change proposed by the Board.  As explained more fully in Finding 11, the Administrative Law Judge’s role is a limited one, and second-guessing an agency’s policy judgments or its balancing of competing interests, is beyond the role which the legislature and courts have assigned to the Administrative Law Judge.  Even though the Board may have had additional motivations beyond test accuracy, so long as that one is a valid one, the Board is free to place great weight upon it and rely upon it to justify proposed change.

 

 

Based upon all of the files, records and proceedings herein, the Administrative Law Judge makes the following:

 

CONCLUSIONS

 

1.                  That the Board gave proper notice of the hearing in this matter.

 

2.                  That the Board has fulfilled the procedural requirements of Minn. Stat. §§ 14.14, and all other procedural requirements of law or rule.

 

3.                  That the Board has documented its statutory authority to adopt the proposed rules, and has fulfilled all other substantive requirements of law or rule within the meaning of Minn. Stat. §§ 14.05, subd. 1, 14.15, subd. 3 and 14.50(i) and (ii).

 

4.                  That the Board has demonstrated the need for and the reasonableness of the proposed rules by an affirmative presentation of the facts in the record within the meaning of Minn. Stat. §§ 14.14, subd. 4 and 14.50(iii).

 

5.                  That a finding or conclusion of need and reasonableness in regard to any particular rule subsection does not preclude and should not discourage the Department from further modification of the rules based upon an examination of the public comments, provided that the rule finally adopted is based upon facts in this rule hearing record.

 

Based upon the foregoing Conclusions, the Administrative Law Judge makes the following:

 

RECOMMENDATION

 

 

IT IS HEREBY RESPECTFULLY RECOMMENDED that the proposed rules be adopted consistent with the Findings and Conclusions made above.

 

 

Dated this 10^th day of January, 2000.

________________________________

ALLAN W. KLEIN

Administrative Law Judge

 

 Reported:  Court reported by

        Mary B. Wunderlich of

        Kirby A. Kennedy & Associates

 

 

 

MEMORANDUM

 

A public hearing on this proposal was held on November 8, 1999.  During that hearing, there was discussion of the Board’s rationale for the proposed change, and reference was made to an “Exhibit A” to the Statement of Need and Reasonableness.  After that hearing, a number of people came to my office and copied documents from my file, including Exhibit A.  Persons were allowed to comment on the proposed rule change through November 22, and then there was a reply period which ended on December 1.

On December 16, I discovered that the Exhibit A in my file was not the correct one.  Due to a clerical error, I had been sent the wrong document.  Thus, persons who copied Exhibit A from my file did not receive the correct document.  This may have affected their comments to me.

In order to correct this error, I sent a copy of the correct Exhibit A to all persons who attended the hearing, to all persons who had requested a hearing, and to all persons who had submitted comments either to me or to the Board on the proposed amendment.  This was sent out on December 20 to a total of 52 persons.  An additional seven persons were mailed to on December 21.  Along with the correct exhibit was a memorandum announcing a reopened comment period.  The initial comment period remained open until the close of business on Monday, January 3, 2000.  Then, the reply comment period remained open until the close of business on Friday, January 7.

The procedure described above was modeled on the procedure set out in Minn. Rule, pt. 1400.2210, subp. 3.  It was designed to balance the competing considerations of (a) allowing the public to understand and comment upon the evidence relied upon by the agency to justify its proposal, and (b) the need for a decision on the agency’s proposed rule in light of the early-February schedule for the next set of basic skills tests.

 

A.W.K.