STATE OF IDAHO

OFFICE OF THE ATTORNEY GENERAL

LAWRENCE G. WASDEN

February 3, 2022

TRANSMITTED VIA EMAIL

The Honorable Sally Toone

Idaho House of Representatives
Idaho State Capitol
P.O. Box 83720
Boise, ID 83720-0081
stoone@house.idaho.gov

RE: Request for AG analysis

Dear Representative Toone:

This letter is in response to your email dated January 26, 2022 inquiring about the “draft
Idaho content standards for English language arts and literacy, mathematics, and science prepared
by the 2020-2021 standards review committees and dated July 13, 2021” (“Draft Content
Standards”) referenced in House Bill 437 (2022) (“HB 437”). HB 437 would adopt the Draft
Content Standards in statute. Proposed House Concurrent Resolution 27 (2022) (“HCR 27”)
would repeal the existing content standards for English language arts and literacy, mathematics,
and science adopted in IDAPA 08.02.03.004.

I have summarized and restated your questions below:

1. What is the authority of the Board of Education?

2. Were the Draft Content Standards promulgated in accordance with the
Administrative Procedure Act (“APA”)?
3. If House Concurrent Resolution 27 is adopted by both the House and Senate, would
federal funds be jeopardized?

P.O. Box 83720, Boise, Idaho 83720-0010

Telephone: (208) 334-2400, FAX: (208) 854-8071
Located at 700 W. Jefferson Street, Suite 210
Representative Sally Toone
February 3, 2022
Page 2

1. Board of Education

The Board of Education (“Board”) is vested through the Idaho Constitution and various
statutes with the general supervision of public education in Idaho. Article IX, section 2 of the
Idaho Constitution provides: “The general supervision of the state educational institutions and
public school system of the state of Idaho, shall be vested in a state board of education, the
membership, powers and duties of which shall be prescribed by law.” Idaho Code section 33-101
charges the Board with, among other things, the “general supervision, governance and control of
the public school systems.” Idaho Code section 33-107(3) provides that the Board has “general
supervision, through its executive departments and offices, of all entities of public education
supported in whole or in part by state funds[.]” Idaho Code section 33-110 designates the Board
as the state educational agency and authorizes the Board to negotiate with the federal government,
and to accept financial or other assistance to further the cause of education.

The Board is responsible for establishing Idaho content standards for grades K-12. See
Idaho Code § 33-118(4). The Board is also responsible for prescribing “the minimum courses to
be taught in all public elementary and secondary schools….” Idaho Code § 33-118(1). If a school
district chooses to adopt its own curricular materials, those materials “must be consistent with
Idaho content standards as established by the state board of education.” Idaho Code § 33-118(4).
The Board is required to adopt rules “to establish a thorough system of public schools with
uniformity as required by the constitution....” Idaho Code § 33-1612(3). To be eligible to graduate
from a public high school, students are required to satisfy the Idaho content standards. IDAPA
08.02.03.105.02.

Board Governing Policy and Procedures Section IV.B.9 details the Board’s policy
applicable to the Idaho State Department of Education for adoption of the Idaho content standards.
Prior to the standards being brought forward for consideration by the Board, the standards must go
through a process which affords stakeholders and the public the opportunity to provide feedback.
The policy states:

Standards Approval
While maintaining a balance between the local control of school districts and the
Idaho constitutional requirement for a uniform and thorough system of public
education, the State Board of Education sets minimum standards to provide the
framework through which our public school [sic] then provide educational
opportunities to Idaho students. Prior to any standards being brought forward to the
Board the applicable stakeholders and the public shall be provided with an
opportunity to provide feedback. All standards being brought to the Board for
consideration shall include the standards themselves, a description of how feedback
was solicited, and a summary of the feedback that was received. Amendments to
existing standards shall also include a redlined version of the standards showing all
amendments.
Representative Sally Toone
February 3, 2022
Page 3

a. Content Standards
The Idaho Content Standards articulate the minimum knowledge a student is
expected to know and be able to use within a content (subject) area at specific
grade levels. Content standards are reviewed and updated on a rotating basis in
relation to the curricular materials adoption schedule, but may be updated more
frequently if an area is identified as needing to be updated in advance of that
schedule. Content standards review will be scheduled such that the content
standard is reviewed in the year prior to the scheduled curricular materials
review. At a minimum all content areas, including those without corresponding
curricular materials, will be reviewed every six (6) years and notification will
be made to the Office of the State Board of Education of the review and if the
review will result in amendments to the standard or if it was determined that no
amendments are necessary for the review cycle. Career Technical Education
(CTE) content standard reviews will be facilitated by the Division of Career
Technical Education and must meet the same review requirements as academic
content standards.

The content standards review process will include at a minimum:

i. A review committee consisting of Idaho educators with experience in the
applicable content area. The committee shall be made up of elementary
and secondary instructional staff and at least one postsecondary faculty
member from a four-year institution and at least one from a two-year
institution, at least one public school administrator, and at least one parent
of school aged children or representative of an organization representing
parents with school aged children. Instructional staff and postsecondary
faculty members must have experience providing instruction in the
applicable content area. Additional members may be included at the
discretion of the Department. To the extent possible, representatives shall
be chosen from a combination of large and small schools or districts and
provide for regional representation.
ii. The review committee will make an initial determination regarding the
need to update the standards.
iii. Based on the review, the committee shall meet to develop initial
recommendations for the creation of new content standards or
amendments to the existing content standards. The Department will
provide multiple opportunities for public input on the draft
recommendations including but not limited to the Department website and
processes that allow for individuals in each region of the state to
participate.
iv. Drafts of the recommended amendments will be made available to the
public for comment for a period of not less than 20 days. At the close of
the comment period the committee will finalize recommendations for
Board consideration.
Representative Sally Toone
February 3, 2022
Page 4

Idaho State Board of Education, Governing Policies & Procedures Section IV, Organization
Specific Policies & Procedures, Subsection B, State Department of Education (06-2016), at 3-4,
https://boardofed.idaho.gov/board-policies-rules/board-policies/organization-specific-policies-
and-procedures-section-iv/state-deparment-of-education/.

2. The Draft Content Standards do not appear to have been adopted in

accordance with the APA

The Idaho Administrative Procedure Act, at Idaho Code title 67, chapter 52 (“APA”), sets
forth the process for state agencies to follow in their adoption of rules and includes a number of
technical steps involving publication of notice by the administrative rules coordinator in the
administrative bulletin. 1 The first step in the process is publication of a notice of rule
promulgation. See Idaho Code § 67-5203. See also Idaho Code §§ 67-5220(1) (“If the agency
determines that negotiated rulemaking is feasible, it shall publish in the bulletin a notice of intent
to promulgate a rule.”), 67-5221(1) (“Prior to the adoption, amendment, or repeal of a rule, the
agency shall publish notice of proposed rulemaking in the bulletin.”), 67-5224(2) (“the agency
shall publish the text of a pending rule and a notice of adoption of the pending rule in the bulletin”),
67-5291(1) (“The standing committees of the legislature may review temporary, pending and final
rules which have been published in the bulletin or in the administrative code.”).

After publication of the required notice, the APA requires that the public be afforded an
opportunity to comment on a proposed rule. See Idaho Code § 67-5222(1). The public comment
period commences after the required notice is published in the administrative rule bulletin. See id.
Agencies are required to receive comments for a minimum of 21 days. Id.

There does not appear to be a record showing that any notice regarding the Draft Content
Standards was published in the administrative bulletin. Since there is no record showing that notice
was posted in the bulletin, the required public comment period was not triggered. The Department
of Education did provide an opportunity for public comment on the Draft Content Standards on its
own website. However, that public comment opportunity did not comply with the notice and
public comment requirements of the APA.

Lastly, Idaho Code section 67-5225(1) requires that an agency, prior to adoption,
amendment or repeal of a rule, prepare a rulemaking record and maintain it in the office of the
agency. The record must contain copies of the publication in the bulletin, as well as all written
materials and comments received. Idaho Code § 67-5225(2). It does not appear that a record
exists for the Draft Content Standards.

1
The Board has followed this process in the adoption of the existing Idaho content standards, which are found at
IDAPA 08.02.03.004.
Representative Sally Toone
February 3, 2022
Page 5

3. Federal funding could potentially be withheld if proposed House Concurrent

Resolution 27 (2022) is adopted

The Elementary Secondary Education Act of 1965 was reauthorized by the Every Student
Succeeds Act of 2015. See Every Student Succeeds Act (“ESSA”), Pub. L. No. 114-95, 129 Stat.
1802 (2015) (codified as amended at 20 U.S.C. §§ 6301-7981). If a State is seeking grant funds
under Title I, Part A of ESSA, the State is required to develop a plan that satisfies the conditions
and requirements contained in Section 1111 2 and submit the plan to the United States Secretary of
Education for review. See 20 U.S.C. § 6311(a). As part of its plan, the State is required to provide
assurance that it has developed and adopted challenging academic content standards and aligned
academic achievement standards. 20 U.S.C. § 6311(b)(1). At a minimum, the State is required to
have academic standards for language arts or reading, math, and science. 20 U.S.C. §
6311(b)(1)(C). Additionally, the State’s plan is required to demonstrate that it has implemented a
set of high-quality student academic assessments in language arts or reading, math, and science.
20 U.S.C. § 6311(b)(2)(A). Such assessments must “be aligned with the challenging State
academic standards[.]” 20 U.S.C. § 6311(b)(2)(B)(ii). The State’s plan is required to “remain in
effect for the duration of the State’s participation” in Title I, Part A, and must “be periodically
reviewed and revised as necessary….” 20 U.S.C. § 6311(a)(6)(A)(ii). Pursuant to section
6311(a)(6)(B)(i), “[i]f a State makes significant changes to its plan at any time, such as the adoption
of new challenging State academic standards or new academic assessments…such information
shall be submitted to the Secretary in the form of revisions or amendments to the State plan.”
Pursuant to section 6311(a)(7), the Secretary has the authority to withhold grant funds if a State
fails to satisfy any of the requirements of section 6311. Those funds may be withheld until the
Secretary determines that the State has satisfied the requirement(s) at issue. 20 U.S.C. §
6311(a)(7).

HCR 27 repeals the existing Idaho content standards for English language arts (“ELA”),
math, and science found in IDAPA 08.02.03.004. If the existing Idaho content standards are
repealed and not replaced with other academic content standards that meet the requirements of
section 6311(b)(1), Idaho’s plan under ESSA would no longer satisfy each of the requirements of
section 6311. The United States Secretary of Education could then choose to exercise his authority
to withhold funding. If the Idaho Legislature were to enact HB 437, adopting new academic
content standards through statute, at the same time that it repealed the existing Idaho content
standards through proposed HCR 27, and subsequently followed the amendment process outlined
in 20 U.S.C. § 6311(a)(6)(B)(i), federal funding may not be impacted.

One issue not raised, but potentially of concern, is that it does not appear from the fiscal
note attached to proposed HB 437 that an analysis has been prepared of whether the Draft Content
Standards align to the existing Idaho standards achievement test or whether the Draft Content
Standards would require that school districts adopt new curricular materials. IDAPA
08.02.03.111.06 sets forth the State’s comprehensive assessment program and states, in part,
“[e]ach assessment will be comprehensive of and aligned to the Idaho State Content Standards it

2
Section 1111 of the ESSA is codified at 20 U.S.C. § 6311.
Representative Sally Toone
February 3, 2022
Page 6

is intended to assess.” If the existing assessments do not align to the Draft Content Standards, the
assessments may need revised or replaced. The fiscal note attached to HB 437 estimates that the
cost of a review of the Draft Content Standards for alignment with the Idaho State Assessment
Tests will be $375,000. No estimate is provided for the cost of revising or replacing the existing
Idaho state assessment tests. No estimate is provided regarding the possible cost to school districts
for additional or new curricular materials.

I hope you find this analysis helpful. Please let me know if you have any additional
questions.

Sincerely,

BRIAN KANE
Chief Deputy