Senate Bill No. 362

(By Senators Boley, Blair, Karnes and Leonhardt)

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[Introduced January 29, 2015; referred to the Committee on Education; and then to the Committee on the Judiciary.]

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A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §18-1A-1, §18-1A-2, §18-1A-3, §18-1A-4, §18-1A-5, §18-1A-6, §18-1A-7, §18-1A-8 and §18-1A-9, all relating to public school curricular standards and assessments; prohibiting school board from ceding authority over curricular standards or student data to federal government or private entities; prohibiting use of Common Core standards and assessments; implementing temporary curricular standards; limiting use of statewide assessments; prohibiting sharing of student-level data; creating the West Virginia Legislative Education Standards Development Steering Commission and Education Standards Development subcommittees; and prohibiting colleges in the state from denying admission based on participation in Common Core programs or tests.

Be it enacted by the Legislature of West Virginia:

That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §18-1A-1, §18-1A-2, §18-1A-3, §18-1A-4, §18-1A-5, §18-1A-6, §18-1A-7, §18-1A-8 and §18-1A-9, all to read as follows:

ARTICLE 1. DEFINITIONS; LIMITATIONS OF CHAPTER; GOALS FOR EDUCATION.

§18-1A-1. Findings.

The Legislature finds that parents have a right to direct the education of their children and that, in order to exercise this right, parents must maintain the right to opt out of state assessments without penalty to the student, teacher, school, school district or state.

§18-1A-2. Definitions.

For purposes of this section:

(a) "Commission" means the West Virginia Legislative Education Standards Development Steering Commission.

(b) "Common Core" means the Common Core state standards adopted by the West Virginia State Board of Education on May 12, 2010, and also referred to as the West Virginia Next Generation Standards.

(c) "Common Core assessments" means the Smarter Balanced Assessments or any other student assessments intended to measure student achievement in the common core standards.

(d) "Curricular plan" means the set of standards, developed by a standards subcommittee, regarding the essential academic content and skills in a particular subject that students are expected to know and be able to demonstrate at the completion of each grade level, as well as the method for assessing whether students have attained such content and skills in the particular subject.

(e) "Curricular program" means the state's formal policy regarding the essential academic content and skills that students are expected to know and be able to demonstrate at the completion of each grade level, as well as the method for assessing whether students have attained such content and skills.

(f) "Standards development subcommittee" means the English Language Arts Standards Development Subcommittee or the Mathematics Standards Development Subcommittee.

§18-1A-3. Development, establishment, and revision of curricular standards.

(a) Notwithstanding any other provision of law to the contrary, effective July 1, 2015, the State Board of Education may not continue to implement the academic content standards developed by the Common Core State Standards Initiative in mathematics and English language arts or any assessments currently implemented as part of the initiative. Any actions previously taken to adopt or implement the common core state standards are void.

(b) Effective immediately, the West Virginia State Superintendent of Schools shall initiate the procedure, outlined in the Smarter Balanced Assessment Consortium Governance Structure Document (July 1, 2010, amended August 26, 2014), to withdraw the state from such consortium. All statewide K12 tests and assessments shall be solely owned and solely controlled by the State of West Virginia and may not be in any way conditioned on, linked to, or controlled by any government or privately funded assessment consortium.

(c) The State of West Virginia shall retain sole control over the development, establishment, and revision of curriculum standards established pursuant to this article. Neither the State Board of Education nor any other state education entity, nor any state official, may join any consortium or any other organization when participation in that consortium or organization would cede any measure of control over any aspect of West Virginia public education to entities outside the state, nor may any such person or entity condition or delay a decision on standards or curriculum on the decision of any consortium, organization, any other state government, or the federal government. Only curriculum standards that were developed under the sole authority of the State of West Virginia may be adopted or implemented.

§18-1A-4. Temporary curricular standards.

For academic school years beginning after July 1, 2015, and ending before July 1, 2018, the State Board of Education shall adopt the official Massachusetts Curriculum Frameworks implemented by the Massachusetts Department of Elementary and Secondary Education in the year 2004 as the mandatory curriculum frameworks for English language arts, mathematics, science and technology, and history and social science, at all grade levels of the schools in this state, with the exception that West Virginia history studies shall be substituted for Massachusetts History studies.

§18-1A-5. Limitations on use of statewide assessments.

(a) Effective immediately, statewide academic assessments may be administered to students not more than once per year, and no earlier than the final month of the academic year. The results of a statewide assessment may not be used to determine a student's grade, to prevent promotion of a student to the next grade-level or as the sole consideration to determine a student's curricular path.

(b) Effective immediately, statewide academic assessment results of students may not be used for the professional evaluation of a teacher or as a justification to withhold funding to a school district.

§18-1A-6. Education Standards Development Steering Commission; powers and duties; composition.

(a) Steering Commission. --

(1) Beginning on July 1, 2015, the state board shall establish an Education Standards Development Steering Commission to advise the state board in creating and adopting world-class curriculum content standards that will lead to a broad liberal-arts education, resulting in college and career readiness, for all students. The commission will have the following powers and duties:

(A) To establish a statewide curricular program;

(B) To review and approve the selected membership of each subcommittee of the commission;

(2) The commission will be chaired by the chancellor of the West Virginia Higher Education Policy Commission and will have the following additional members:

(A) Two members of the House of Delegates, selected by the Speaker of the House;

(B) Two members of the Senate, selected by the President of the Senate;

(C) An English Language Arts Development Chair, selected by the chair of the committee who meets the following qualifications:

(I) Is employed as a teaching faculty member of the English languages arts department of an undergraduate institution, which does not include the Education department of the institution; and

(ii) Has been nominated by the president of a four-year accredited university or college where the candidate is employed.

(D) A Mathematics Standards Development Chair, selected by the chair of the committee, who meets the following qualifications:

(I) Is employed as a teaching faculty member of the mathematics, science or engineering department of an undergraduate institution, which does not include the Education department of the institution; and

(ii) Has been nominated by the president of a four-year accredited university or college where the candidate is employed.

(3) On or before January 1, 2016, the commission chair shall select and hire an Executive Director, who will report directly to the commission. The Executive Director will have the following duties:

(A) Supervise and provide support for the statewide standards and assessment development processes;

(B) Ensure that complete and accurate reports of the standards and assessment development process are provided to the Legislature, the Governor and the public at large;

(D) Work directly with and supervise document scribes hired by the commission.

(4) The commission chair shall select and hire two document scribes: an English languages arts scribe and a mathematics scribe. Each scribe must have an expertise in his or her assigned subject matter and be adept at using digital technology. Document scribes will have the following duties:

(A) Process nominations of individuals for participation in subcommittees and prepare a database of all such nominations;

(B) Schedule, secure sites and arrange for meeting facilitators for all in-person and virtual meetings of the commission;

(D) Provide on-going updates on the standards-writing process to subcommittees and create public reports;

(E) Create and maintain a commission website;

(F) Compile and respond to any public comments; and

(G) Maintain all drafts and revisions of curricular plans throughout the standards development process.

(b) Curricular Standards Development Subcommittees --

(1) The commission shall establish two curricular standards subcommittees: the English Language Arts Standards Development Subcommittee and the Mathematics Standards Development Subcommittee. The curricular standards subcommittees will be responsible for developing and recommending to the commission a curricular plan for the subject areas within the subcommittee's expertise.

(2) The English Language Arts Standards Development Subcommittee will be comprised of the following members:

(A) The English language arts chair on the commission.

(B) An English language arts vice-chair, selected by the English language arts chair. The vice-chair must be a teaching faculty member of the English language arts department of a four-year undergraduate university or college, which does not include the education department of the institution;

(C) Four teachers, nominated by the local superintendents and approved by the commission, all of whom currently teach a grade in the Pre K to fifth grade range and have the following qualifications:

(I) Completed seven years of experience teaching in the Pre K to fifth grade range; and

(ii) Completed reading methods courses during undergraduate studies.

(D) Four teachers, nominated by the local superintendents and approved by the commission, all of whom currently teach a grade in the sixth grade to eighth grade range and have the following qualifications:

(I) Completed seven years of experience teaching in the sixth grade to eighth grade range;

(ii) Majored or minored in English during undergraduate studies;

(iii) Completed courses in reading methods during undergraduate studies; and

(iv) Completed courses in literature, composition and rhetoric.

(E) Four teachers, nominated by local superintendents and approved by the commission, all of whom currently teach a grade in the ninth grade to twelfth grade range and have the following qualifications:

(I) Completed seven years of experience teaching in the ninth grade to twelfth grade range;

(ii) Majored or minored in English during undergraduate studies; and

(iii) Completed courses in literature, composition or rhetoric.

(F) One librarian, nominated by the West Virginia Library Association;

(2) The Mathematics Standards Development Subcommittee will be comprised of the following members:

(A) The mathematics chair on the commission;

(B) A mathematics vice-chair, selected by the mathematics chair, who is currently a teaching faculty member of the mathematics, science or engineering department of a four-year undergraduate university or college, which does not include the education department of the institution;

(C) Four teachers, nominated by local superintendents and approved by the commission, all of whom currently teach a grade in the Pre K to fifth grade range and have completed seven years of experience teaching in the Pre K to fifth grade range; and

(D) Four teachers, nominated by local superintendents and approved by the commission, all of whom currently teach a grade in the sixth grade to eighth grade range and have the following qualifications:

(I) Completed seven years of experience teaching in the sixth grade to eighth grade range; and

(ii) Majored or minored in mathematics, science or engineering.

(E) Four teachers, currently teaching a grade in the ninth grade to twelfth grade range, including one Algebra I teacher, one Geometry teacher, one Algebra II, Trigonometry or Precalculus teacher, and one integrated mathematics teacher, nominated by local superintendents and approved by the commission, all of whom have the following qualifications:

(I) Completed seven years of experience teaching in the ninth grade to twelfth grade range; and

(ii) Majored or minored in mathematics, science or engineering.

(F) One engineer, nominated by the West Virginia Board of Registration for Professional Engineers.

(1) The commission shall establish two draft review subcommittees, a First Draft Review Subcommittee and a Second Draft Review Subcommittee, responsible for reviewing preliminary drafts of the commission's curricular plan.

(2) The First Draft Review Committee will be comprised of all standards development subcommittee nominees who were not selected to serve on those subcommittees. The First Draft Review Committee has the following responsibilities:

(A) Review all standards in the individual members' educational level expertise and subject-matter expertise for appropriateness.

(B) Review all language in the draft for grammar and accuracy.

(3) The Second Draft Review Committee will be comprised of representatives of educational and professional organizations with expertise in education or the academic subjects included in the curricular plan, selected by the commission chair. The Second Draft Review Committee has the following responsibilities:

(I) Review the curricular plan and advise on classroom application;

(ii) Review the curricular plan and advise on vertical alignment;

(iii) Provide comments on how the standards will affect the population the member represents;

(d) External Evaluation Panel. --

(1) The commission shall establish the External Evaluation Panel, comprised of two members, one of whom is a distinguished expert in English Language Arts and one of whom is a distinguished expert in mathematics or science. The members of the External Evaluation Panel will be selected by the commission based on their qualifications.

(2) The External Evaluation Panel shall review and revise the second draft of the curricular plan. The External Evaluation Panel shall submit the final draft, along with a report on the quality of the academic standards in the final draft, to the commission and to the Legislature.

§18-1A-7. Procedure for development of curricular standards.

(a) Each standards development subcommittee shall select for use a highly-rated set of pre-2009 set of state standards as the foundation blueprint for an academic plan.

(1) The set of state standards used for an English language arts blueprint shall be drawn from: the pre-2010 California standards; the 2006 Indiana standards; the Massachusetts 2001 standards; or "An English Language Arts Curriculum Framework for American Schools: A Model," released by Sandra Stotsky in 2013.

(2) The set of state standards used for mathematics shall be drawn from: the pre-2010 California standards; the 2006 Indiana standards; the Massachusetts 2001 standards; the Washington 2008 standards; or the current Minnesota standards.

(b) The commission shall submit the finalized statewide curricular plan to the Legislative Oversight Commission on Education Accountability.

(c) The commission shall publicly post the final draft of the curricular program for a forty-five day public comment period and shall schedule a public hearing for the proposed plan at the State Capitol.

(d) After reviewing the curricular plan, the Legislative Oversight Commission on Education Accountability may make any changes to the curricular program needed to comply with statutory law.

(e) After the Legislature has approved the curricular plan during a regular legislative session, the curricular plan will be the official curricular plan for the state, beginning on June 1 of that year. The curricular plan may not be revised or altered without legislative approval, but must be reviewed on a timely basis following the same steps used for initial development of the standards.

§18-1A-8. Restrictions on collection and sharing of personally identifiable data.

(a) No person, private or public entity, or governmental agency including, but not limited to, the State Board of Education, the State Department of Education, local Boards of Education, local District Schools, Regional Education Agencies and contractors or vendors who have access to student information may divulge, or in any manner allow access to, student level data or personally identifiable information to anyone, including, but not limited to, persons, private or public entities, and governmental agencies not authorized by this chapter to have access to such information without first obtaining the informed written consent of the parent or guardian of the student: Provided, That a student that has attained the age of majority may provide the written informed consent required by this section. In any other case, only aggregate level data may be divulged.

(b) On and after July 1, 2015, neither the state board, the department, nor any other education entity shall:

(1) Collect personally identifiable information on any student or teacher without receiving prior affirmative written consent, and only after providing the parent or teacher with a written explanation of why the information is being requested, and what it will be used for;

(2) Expend any funds, whether from federal grants, American Recovery and Reinvestment Act Funds, or elsewhere, on construction, enhancement, or expansion of any state-wide longitudinal data system designed to track students beyond their K-12 careers, or to compile their personal, nonacademic information beyond what is necessary either for administrative functions directly related to the student's education, for evaluation of academic programs and student progress, or for compliance with the requirements of the United States Department of Education as outlined in subdivision (6) of this subsection;

(3) Share any personally identifiable information compiled on students or teachers with any entity outside the State of West Virginia, except as provided in this section: Provided, That this does not include hard data storage located in safe locations outside the state, or cloud data storage as long as the cloud computing provider agrees in writing that it will not redisclose such information or use the information for any secondary purposes that benefit the provider or any third party, including, but not limited to, online behavioral advertising, creating or correcting an individual or household profile primarily for the provider's benefit, the sale of data for any commercial purpose, or any other commercial for-profit activity;

(4) Share any personally identifiable information about any student or teacher with any entity that will use that information for development of commercial products or services or that will transfer that data to any other entity for use in development of commercial products or services;

(5) Share any personally identifiable information about any student or teacher with any entity inside the State of West Virginia unless that entity is an education agency or institution that will not:

(A) Use the data to develop commercial products or services;

(B) Transfer the data to any other entity to use in development of commercial products or services; or

(6) Share any personally identifiable information on students and teachers with the United States Department of Education unless:

(A) Such sharing is required by the United States Department of Education as a condition of receiving a federal education grant;

(B) The United States Department of Education agrees in writing to use the data only to evaluate the program or programs funded by the grant;

(C) The United States Department of Education agrees in writing that the data will not be used for any research beyond that related to evaluation of the program or programs funded by the grant, unless the parent or guardian of any student, and any teacher, whose data will be used for such research affirmatively consents in writing to that use;

(D) The United States Department of Education agrees in writing to destroy the data upon completion of the evaluation of the program or programs for which the data were compiled; and

(E) The grant or program in connection with which the data are required is one authorized by federal statute or by federal rule properly promulgated under the federal Administrative Procedure Act, 5 U.S.C. §§500, et seq.

(b) If the United States Department of Education requires, as a condition of making a federal education grant, that the grant recipient shares student level data or personally identifiable information of students or teachers under circumstances that do not comply with subdivision (6) of subsection (b) of this section, the grant recipient shall provide aggregate data only. The grant applicant shall not divulge student level data or personally identifiable information of any student without first obtaining informed written consent as specified in subsection (a). The grant applicant shall not divulge personally identifiable information of any teacher without first obtaining informed written consent of the teacher whose personally identifiable information is to be divulged. The grant recipient shall provide written notification to the parents or guardians of every student whose data will be shared or every teacher whose data will be shared of the following:

(1) That the grant recipient has been required to turn over the student's or teacher's data to the United States Department of Education;

(2) That neither the grant recipient nor any other entity within the State of West Virginia will have control over the use or further sharing of that data; and

(3) The contact information, including telephone number and e-mail address, of the United States Department of Education official who demands the data.

(c) No state or national student assessment may be adopted or administered in this state that collects any type of psychological data, including assessment of noncognitive skills or attributes, psychological resources, mindsets, learning strategies, effortful control, attitudes, dispositions, social skills, or other interpersonal or intra personal resources.

§18-1A-9. College admissions; use of common core standards prohibited.

Notwithstanding any other provision of this code, a higher education institution in this state may not deny admission to any applicant based solely on the student's nonparticipation in a common core educational program or assessment.

NOTE: The purpose of this bill is to develop better West Virginia Educational Standards tailored to West Virginia students, developed by West Virginia education professionals; to promote involvement of local educators and parents; to prohibit the school board from ceding authority over curricular standards or student data to federal government or private entities; to prohibit the use of common core standards and assessments; to implement temporary curricular standards; to limit the use of statewide assessments; to prohibit the sharing of student level data; to create the West Virginia Legislative Education Standards Development Steering Commission and Education Standards Development Subcommittees; and to prohibit colleges in this state from denying admission based on participation in common core programs or tests.

These sections are new; therefore, strike-throughs and underscoring have been omitted.