School waiver ruling appealed

The state is asking the Louisiana Supreme Court to reverse a Baton Rouge judge and uphold the legality of a 2010 law that lets school districts seek four-year waivers from some education laws and rules in an effort to improve student achievement.

State District Judge Mike Caldwell agreed in July with the Louisiana Federation of Teachers that the waiver law — known as the Red Tape Reduction and Local Empowerment Act — is an unconstitutional delegation of legislative authority to the state Board of Elementary and Secondary Education.

But Assistant Attorney General Angelique Freel, who represents the state and BESE in the case, argues in documents filed at the Supreme Court that BESE has been constitutionally designated as the entity to oversee Louisiana’s public education system.

“BESE’s powers to supervise and control the public schools come directly from the laws passed by the Legislature. By the passage of Act 749 of the 2010 Regular Session, the Louisiana Legislature simply prescribed additional duties to BESE,’’ Freel writes.

“Here, the Legislature recognized that BESE’s expertise in supervising the school system would lend itself to the issuance of waivers under the Act,’’ she adds in the documents filed Dec. 2 at the high court.

The Louisiana Federation of Teachers had a Monday deadline to file with the Supreme Court its response to the state’s arguments.

The justices are scheduled to hear the case Jan. 23.

LFT attorney Larry Samuel argued to Caldwell in July that the Legislature “shifted’’ its constitutional authority to a state agency by “giving to BESE the authority to determine what the law should be.’’

When Gov. Bobby Jindal signed the act into law, he said the act would trim burdensome rules that hinder academic growth and aid lower-performing schools on the verge of state takeover.

The act gives local officials the option of seeking four-year waivers from various state laws and rules.

The exemptions could apply to classroom size, instruction time, curriculum and teacher tenure. Waivers cannot be sought to suspend federal rules, student safety policies or graduation requirements.

Freel, who notes that the stated purpose of the act is to improve education by improving teacher quality and student performance, points out that in order to obtain a waiver a local governing authority must describe how the proposed waiver will increase the quality of instruction for students, improve academic achievement for its students and improve teacher effectiveness.

The local governing authority also must describe measurable goals and methods to ensure that its schools are progressing in improving the overall quality of instruction and student achievement, she adds.

“The burden falls on the governing authority, not BESE, to seek out and to demonstrate how a waiver will improve the overall quality of its schools,’’ Freel claims.

She also says BESE is also not given “unbridled discretion’’ to issue waivers, noting that BESE’s decisions are subject to — among other things — an annual review by the Legislature.

Critics contend it would be a mistake to let a state board suspend laws, regardless of the worthiness of the goals.

“Act 749 authorizes BESE to ‘not apply’ certain laws in specific situations,’’ Freel argues. “No law is suspended by the Act.’’

The LFT also claims the law unconstitutionally carves out special exemptions for individual schools.

Supporters of the act say it answers years of complaints from public school leaders that they could improve classroom performance if they had less education red tape to overcome.

Another provision in the law requires support for the requested waiver from at least 50 percent of the teachers at the school that is affected.

Freel says one of LFT’s major concerns is that BESE will grant an application requesting a waiver of teacher tenure rights.

If the LFT is against a waiver of tenure rights, she writes, then such a waiver “will likely never get the initial approval needed to even get to BESE for consideration.’’

Freel maintains that LFT’s legal challenge is premature because BESE has not received a waiver application from any school district.