Could Oregon's Department of Education let a school district keep using the ACT instead of the state-contracted SAT-family test, given the law required the chosen contractor to be able to provide statewide data?
Subject
Oregon Legislature/Department of Education
Plain-English summary
In 2007 the Oregon legislature required the Department of Education to contract with a vendor to administer a nationally normed test to all tenth-graders. The Department picked the College Board's PSAT. But thirteen districts had been using the ACT's PLAN test for years and wanted to keep doing so. The legislature responded with a 2008 waiver, then in 2009 extended the waiver and tied it to the same selection criteria the Department had to apply to its own contractor under ORS 329.488(2). One of those criteria says the contractor "must be able to provide to the department statewide data containing the results of the assessment."
The question that triggered the AG opinion: if the ACT was being used by only 13 of 197 districts, could it possibly satisfy a "statewide data" requirement? Was the legislature's extension self-defeating?
The AG worked through the text and concluded the requirement was about a contractor's internal capacity, not its actual geographic footprint. Read in 2007's context, when the Department contemplated only one contractor, the criterion meant the contractor had to be able to compile and report whatever results it generated in the state on a composite basis. Even the Department's own contractor would not capture every tenth-grader, because students could opt out and the Department could waive the test for groups. So a contractor in 13 districts could meet the bar by being able to deliver composite statewide results from those 13 districts. And the legislative history of the 2009 extension confirmed legislators understood the ACT-P met the criteria and intended the waiver to keep working.
Currency note
This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Common questions
Why didn't the AG just look at how many students the contractor was reaching?
Because that interpretation would have killed the waiver entirely. By definition, a district using a different vendor is not using the Department's vendor. If "statewide data" meant covering every tenth-grader, only the Department's contractor could ever qualify, and there would be no district-level alternative. Oregon canons of statutory construction (ORS 174.010) require reading provisions in a way that gives effect to all of them where possible. The AG used that rule to avoid the absurd result.
Did the AG also need to interpret what "able to" meant?
Yes. The AG leaned on the dictionary meaning of "able" as inherent capability, not actual achievement. A contractor could be "able to provide statewide data" by having the systems and reporting infrastructure to do so for whatever testing it ran in Oregon, even if its current footprint was small. Combined with the rule that the legislature does not insert what it omitted, the AG found nothing in the text demanding actual coverage of every district.
What did the legislative history add?
The 2009 carrier of the bill, Rep. Chris Harker, told the House the bill extended the existing 2008 waiver "providing districts already using the ACT with the option to continue to do so." Sen. Mark Hass said the districts needed "this waiver to do what they've been doing all along." A non-legislator witness told the committee SB 976A extended the waiver because "the alternative test meets the criteria, and it does." The AG cited that history as confirmation that legislators understood ACT-P qualified.
Could a district that did not have an existing 2007-2008 contract get a waiver?
No. The waiver under chapter 824 had four prerequisites: a 2007-2008 contract with the alternative entity, actual administration of the test that year, the entity having met ORS 329.488(2) criteria for the most recent year it tested, and a plan to meet them going forward. A district shopping for a new vendor in 2009 could not qualify.
What about the cost?
Rep. Harker's floor speech noted ACT tests are cheaper to administer, so the State Board of Education unanimously supported continuation of the waivers. Chapter 824 also directed the Department to reimburse waiver districts for the cost of assessments from a specified funding source.
Background and statutory framework
ORS 329.488(1) (as enacted in 2007) requires the Department to contract with a nonprofit to administer a nationally normed assessment to all tenth-graders enrolled in public school, "to predict the success of students on, and provide practice for students taking, college entrance exams." Selection criteria in ORS 329.488(2) include the statewide-data requirement, identifying students with potential for AP/honors courses, examining math/reading/writing, providing item-by-item analysis, and offering free career assessment and online college exploration.
ORS 329.488(3) lets the Department waive the assessment for "specific groups of students" by State Board rule, and requires districts to waive it on request from any student or parent.
The 2008 special session waiver (Or Laws 2008 (special session), ch 20, § 2) and 2009 extension (Or Laws 2009, ch 824) both required the alternative contractor to meet ORS 329.488(2) criteria for the most recent year it administered the assessment and to plan to meet them going forward. The 2009 extension was set to expire June 30, 2011.
The interpretive method follows the framework from PGE v. BOLI, 317 Or 606 (1993), and State v. Gaines, 346 Or 160 (2009): text and context first, legislative history when useful.
Citations
- ORS 329.488(1)-(3)
- ORS 174.010; ORS 174.020
- Or Laws 2007, ch 858, § 42(1)
- Or Laws 2008 (special session), ch 20, § 2
- Or Laws 2009, ch 824
- PGE v. BOLI, 317 Or 606, 859 P2d 1143 (1993)
- State v. Gaines, 346 Or 160, 206 P3d 1042 (2009)
- Ochoco Const. v. DLCD, 295 Or 422, 667 P2d 499 (1983)
- Thomas Creek Lumber v. Dept. of Rev., 344 Or 131, 178 P3d 217 (2008)
Source
- Landing page: https://www.doj.state.or.us/oregon-department-of-justice/office-of-the-attorney-general/attorney-general-opinions/
- Original PDF: https://www.doj.state.or.us/wp-content/uploads/2010/09/op2010-5.pdf
Original opinion text
JOHN R. KROGER
MARY H. WILLIAMS
Attorney General
Deputy Attorney General
DEPARTMENT OF JUSTICE
GENERAL COUNSEL DIVISION
September 7, 2010
The Honorable Mary Nolan
Representative, District 36
Oregon House of Representatives
P.O. Box 1686
Portland, OR 97207
Ed Dennis, Deputy Superintendent
Office of the Superintendent
Oregon Department of Education
255 Capitol Street NE
Salem, OR 97310
Re: Opinion Request OP-2010-5
Dear Representative Nolan and Mr. Dennis:
This advice concerns the interpretation of ORS 329.488, which requires the Oregon Department of Education (department) to contract with a qualified vendor to administer a nationally normed test to all tenth-grade public school students, and of Oregon Laws 2009, chapter 824, section 1 (chapter 824), which requires the department to grant waivers to eligible school districts to use their own qualified vendors to administer such a test.
FIRST QUESTION PRESENTED
Is the department prohibited from issuing a waiver pursuant to chapter 824 to a school district if the district's contractor does not meet all of the criteria established in ORS 329.488(2)?
SHORT ANSWER
Yes.
SECOND QUESTION PRESENTED
If the contractor being used by a district that seeks a waiver is administering a test pursuant to a district contract in only 13 of 197 school districts statewide, is it possible for that contractor to meet the requirement in ORS 329.488(2)(a) that "the contractor must be able to provide to the department statewide data containing the results of the assessment"?
SHORT ANSWER
Yes.
DISCUSSION
I. Introduction
A. Background
In 2007, the Assembly enacted ORS 329.488, which requires the department to contract with a vendor to administer a nationally-normed test to "all students in grade 10 who are enrolled in a public school." Or Laws 2007, ch 858, § 42(1). We understand that the department subsequently contracted with the College Board to administer the PSAT/NMSQT (PSAT) test.
We also understand that, prior to the enactment of ORS 329.488, some school districts had already been administering nationally-normed tests to their students, using either the PSAT or the ACT's PLAN (ACT-P) tests. Those districts had invested significant resources to implement those assessments.
In 2008, the Assembly enacted a law that required the department to permit certain districts "to use an entity other than the entity selected by the department pursuant to ORS 329.488" during the 2008-2009 school year. Or Laws 2008 (special session), ch 20, § 2(1). Among other conditions for such a "waiver," a district must have "entered into a contract with the entity for the 2007-2008 school year to administer an assessment to students in the district who are in grade 10." Id. at § 2(2)(a).
In 2009, the Assembly enacted a new provision that essentially extended a qualifying district's ability to obtain a waiver from ORS 329.488 until June 30, 2011 and provided funding for those districts that use an alternative testing contractor pursuant to such a waiver. Or Laws 2009, ch 824, §§ 1(1) and (3), 2. Under both the 2008 and the 2009 enactments, the district's testing contractor must have met and plan to meet the selection criteria for the department's contractor established under ORS 329.488(2).
As explained further below, the legislative history of the 2009 legislation clearly indicates that the Assembly intended that legislation to permit qualifying districts to continue to use the ACT-P test under a "waiver" from ORS 329.488. Your questions essentially seek to know whether the Assembly failed to achieve this clear intent, perhaps because the 2009 law did not adequately deal with the requirement in ORS 329.488(2)(a) that the department's contractor "must be able to provide * * * statewide data containing the results of the assessment."
II. Template for statutory interpretation
Your questions require us to construe the laws quoted above. Our goal in interpreting statutes is to determine the legislature's intent. PGE v. Bureau of Labor and Industries, 317 Or 606, 610-611, 859 P2d 1143 (1993); ORS 174.020. We begin by examining the statutory text in context. PGE, 317 Or at 610. In doing so, we apply statutory and judicial rules for reading text and context, such as not to omit what has been inserted or to insert what has been omitted and to give effect to all statutory provisions if possible. Id.; ORS 174.010. We also examine the legislative history when it is useful to our analysis of statutory language. State v. Gaines, 346 Or 160, 171-172, 206 P3d 1042 (2009); ORS 174.020(1)(b), (3).
III. Department's waiver authority
The preconditions for a waiver under chapter 824 include two unambiguous requirements. First, the district's contractor must have met ORS 329.488(2)'s criteria for the department's contractor for the most recent school year in which the contractor administered the assessment. Or Laws 2009, ch 824, § 1(1)(c). Second, the district's contractor must plan to meet those criteria for the school year for which a waiver is sought. Id. at § 1(1)(d).
Like other state agencies, the department "is a creature of statute," and has "only such power and authority as has been conferred upon it by its organic legislation." Ochoco Const., Inc. v. Department of Land Conservation and Development, 295 Or 422, 426-427, 667 P2d 499, 502 (1983). Chapter 824, section 1(1) provides the only statutory authority for the department to grant a waiver under chapter 824 to a school district from the mandates of ORS 329.488. Accordingly, in answer to your first question, we conclude that the department may not grant a waiver under chapter 824 to a district that contracts with a vendor that does not meet all of ORS 329.488(2)'s requirements for the department's contractor.
IV. "Must be able to provide * * * statewide data containing the results of the assessment"
A. Text in context
The purpose of ORS 329.488(2) was to establish the department's criteria for the selection of a nonprofit entity to administer a nationally normed assessment to public school tenth-graders. Prior to the enactment of this statute, there was no department contractor that provided "statewide data" to the department about such an assessment. Accordingly, when enacted, the ORS 329.488(2)(a) requirement ("must be able to provide * * * statewide data" * * * of the assessment") was forward-looking.
In other words, a prospective contractor did not need to have preexisting "statewide data" when it responded to a request for proposals from the department. Instead, it appears that a prospective contractor merely needed to have the internal ability ("must be able") to report the data generated by the test it subsequently administered not only on a per-student basis as essentially required by ORS 329.488(2)(b) ("identifies students") or on a per-school basis as essentially required by ORS 329.488(2)(c) ("to supply schools"), but also on a composite total results basis.
Before proceeding further, we pause to review the plain meanings of the words "able" and "statewide." The most pertinent definitions of "able" are:
1 a : possessed of needed powers (as intelligence or strength) or of needed resources (as means or influence) to accomplish an objective
WEBSTER'S THIRD NEW INT'L DICTIONARY at 4 (2002). These definitions suggest that "able" in this context means the inherent capability or power to accomplish a task or objective. In other words, the "must be able to provide" statewide data criterion suggests that the prospective contractor only must have the internal capacity to provide "statewide data" from the results of the assessment.
The dictionary defines "statewide" as "extending throughout a state : including all parts of a state[.]" WEBSTER'S at 2229 (unabridged 2002). After assembling these definitions, it appears that the ordinary meanings of "statewide" are stretching all the way from one end of the state to the other or including all parts of the state.
We note, however, that the phrase "statewide data" does not stand alone but instead is part of the larger clause "statewide data containing the results of the assessment." In 2007, the Assembly likely contemplated only one contractor and only one assessment test. The department's contractor had to have the inherent ability to compile and provide to the department all of its results, whatever they were, of "the assessment."
Even in 2007, the Assembly understood that the statewide data as to test results would not include data from every public school tenth-grader, even though ORS 329.488(1) directs the department to contract to administer the test to all such students. The reason was that ORS 329.488(3) (2007) permitted two categories of waivers from the assessment of "all students in grade 10." First, the department was authorized to allow the contractor to "waive the assessment for specific groups of students." ORS 329.488(3)(a) (2007). Second, upon request of any student or a student's parent or guardian, "the school district shall waive the assessment of the student." ORS 329.488(3)(b)(2007). Thus, in 2007, ORS 329.488 itself contemplated that the statewide test results ultimately reported by the department's contractor could include significant gaps.
Put another way, the phrase "must be able to provide * * * statewide data * * * of the assessment" in this context suggests that the contractor merely must have the internal capacity to report the results of the tests it administered throughout the state, however comprehensive or narrow that testing actually is, on a composite or "statewide" basis. Thus, so long as the contractor or a prospective contractor has the inherent ability to provide composite results of the tests it actually administers in the state, the contractor appears to satisfy the "must be able to provide * * * statewide data * * * of the assessment" criterion of ORS 329.488(2)(a).
Finally, the difficulty with interpreting ORS 329.488(2)(a) as requiring a district's contractor to actually administer its assessment in every part of the state or to every tenth-grader is that it would render chapter 824 completely ineffective. That interpretation would be contrary to the rule of statutory construction that requires us to avoid a construction that renders one statute ineffective. See, e.g., Thomas Creek Lumber and Log Co. v. Dept. of Rev., 344 Or 131, 137, 178 P3d 217 (2008); ORS 174.010 ("where there are several provisions or particulars such construction is, if possible, to be adopted as will give effect to all").
By definition, a district's contractor is one "other than the contractor selected by the department under ORS 329.488." Or Laws 2009, ch 824, § 1. If the department's contractor is the only vendor that can provide a statewide assessment and statewide data, then it would be impossible for a district to have a different contractor. But the legislature clearly intended to allow some waivers to occur. That also suggests that the meaning of the "must be able to provide * * * statewide data" clause for purposes of ORS 329.488 and chapter 824 is that a district's contractor merely must have the inherent capability to report its results on a composite or statewide basis (whatever those results are) in the most recent year in which it administered the assessment and plan to have that same capacity for the school year for which the district seeks a waiver.
This interpretation also accommodates the department's contractor. Because, to the extent that there are waivers under ORS 329.488(3) or chapter 824 or instances of students not taking the contractor's test for other reasons, that contractor also will not deliver test result data from every district or student in the state. Instead, properly understood, ORS 329.488 only requires that contractor to be able to deliver composite results from all its data sources in the state (the assessment results), whatever they are.
B. Legislative history
While we have been unable to find any helpful 2007 legislative history as to the intended meaning of ORS 329.488(2)(a), our conclusions are consistent with the legislative history of the 2009 waiver legislation.
In 2009, Ozzie Rose testified at the legislature in support of SB 976A (chapter 824). He represented those school districts using the ACT-P that sought a two year extension of the 2008 waiver from ORS 329.488 and funding for their administration of that test. Mr. Rose informed the House Rules Committee that, out of 45,600 2008-2009 tenth-graders in Oregon, the department's contractor administered its test only to 26,900 students. About 8,000 students were tested under a district waiver, and 10,900 students were not tested at all. Mr. Rose also testified in part that SB 976A extended the 2008 waiver for two more years "if the alternative test meets the criteria, and it does."
The carrier of chapter 824 (SB 976A) in the House was Representative Chris Harker. In his floor speech in support of the bill, he stated that under the 2007 statute, the Oregon Department of Education issued a contract to administer a standardized test to grade 10 students; the test selected was part of the SAT family of tests. In the 2008 session, the legislature permitted local districts to receive waivers if they were already using a similar test that met all 2007 testing requirements. At that time there were 13 school districts using such a test (the ACT). Senate Bill 976 extended these waivers, providing districts already using the ACT with the option to continue.
Senator Mark Hass carried chapter 824 (SB 976A) in the Senate. In his brief floor speech, Senator Hass said the districts needed "this waiver to do what they've been doing all along" and that without this bill, "thirteen school districts will have to switch [testing contractors] which will be more expensive and less efficient."
In sum, there is no doubt that the 2009 Assembly intended chapter 824 to permit qualifying districts to continue to administer the ACT-P. It also is fairly clear that the legislators believed that ACT and its ACT-P test met all the criteria for a waiver from ORS 329.488.
CONCLUSION
The department is prohibited from granting a waiver to a school district unless the district's contractor met all of the criteria in ORS 329.488(2) as in effect for the most recent school year that it had administered an assessment and plans to meet all of the criteria for the school year for which a waiver is sought.
The selection criterion in ORS 329.488(2)(a) requires that a contractor must have the inherent capability to provide statewide data containing the results of the assessment that it administers. That criterion requires the contractor to be capable of compiling and providing data as to the results of all its tenth-grader testing in the state pursuant to a contract. Therefore, it is possible for a contractor that administers the test pursuant to district contracts in only 13 of the state's 197 school districts to meet the criterion in ORS 329.488(2)(a).
Sincerely,
David E. Leith
Associate Attorney General and
Chief General Counsel
General Counsel Division
DEL:clr/DM2234852