Can the Tennessee Commissioner of Education waive the rule requiring TCAP test scores to count as 15 to 25 percent of students' final grades?

Subject

Opinion No. 14-68, Authority to Waive Requirements of Tenn. Code Ann. § 49-1-617, July 2, 2014

Plain-English summary

Senator Mae Beavers asked three questions about Tennessee Comprehensive Assessment Program (TCAP) testing. The AG answered:

1. The Commissioner of Education can waive § 49-1-617 (which requires TCAP scores to count as 15-25% of grades 3-8 students' final grades) because that requirement is not "federal and state student assessment and accountability" under § 49-1-201(d)(1)(J), the carve-out from the Commissioner's waiver authority.

2. Delaying release of TCAP scores does not violate state or federal law as long as scores are provided "as soon as practicable" and no later than June 30 (§ 49-1-606(b)) and before the next school year begins (34 C.F.R. § 200.5(c); 20 U.S.C. § 6316(a)(2)).

3. The Department's "post-equating" process (comparing current-year test results to prior-year repeated questions to ensure validity) does not "compromis[e] the integrity of the testing process" under § 49-1-607; the equating process protects validity rather than undermines it.

The waiver analysis is the heart of the opinion. § 49-1-201(d)(1) (as amended by 2014 Tenn. Pub. Acts ch. 672, paralleling the charter-school waiver in § 49-13-105(b)) lets the Commissioner waive state board rules or statutes that hinder an LEA's goals, with thirteen exceptions including (J) "[f]ederal and state student assessment and accountability." The question was whether § 49-1-617's TCAP-in-grade rule fell within that exception.

The AG used the technical-meaning rule of construction (Barber v. Gonzales; Bilski v. Kappos): when a statute uses field-specific terms of art, courts adopt the specialized meaning. "Student assessment" and "accountability" are terms of art in education, anchored in the No Child Left Behind Act (20 U.S.C. §§ 6301 to 6578). Assessment is the process of measuring student performance via tests; accountability is the evaluation of school and LEA performance based on those measurements. Federal law (20 U.S.C. § 6311(b)(2), (3); 34 C.F.R. §§ 200.2, 200.3, 200.7, 200.12) sets the framework.

Tennessee's TCAP examinations themselves cannot be waived because the State's assessment-and-accountability programs rest on them. But students' final course grades do not feed Tennessee's assessment-and-accountability calculus. The Tennessee Report Card (§ 49-1-602) measures accountability based on student achievement on TCAP, not on final grades. So § 49-1-617's grade-weighting requirement is not "related to" student assessment and accountability in the federal-law sense. It is a separate Tennessee policy choice that the Commissioner can waive. No penalty would follow from a waiver because federal law does not require the grade-weighting rule.

The delay question turned on the statutory deadlines. § 49-1-606(b) requires raw test-score data "as soon as practicable after receipt of the data, but in no case later than June 30." Federal law requires release before the next school year (20 U.S.C. § 6316(a)(2); 34 C.F.R. § 200.5(c)). A delay within those bounds is not unlawful, even though the legislative intent was for earlier release.

The post-equating question turned on the meaning of "compromising the integrity of the testing process." § 49-1-607 is directed at cheating: unauthorized copies, altered grade sheets, distributed answers. The post-equating process is the opposite of cheating; it is a psychometric quality-control step ensuring that current-year scores can be compared to prior-year scores. Joseph Ryan & Frank Brockmann's practitioner introduction to equating is cited as the technical authority.

Currency note

This opinion was issued in 2014. 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

What was the TCAP-in-final-grade rule?

§ 49-1-617 required local boards of education to develop a policy by which TCAP scores in grades 3-8 would comprise between 15% and 25% of students' final grades for the spring semester in math, reading/language arts, science, and social studies.

Why did the Commissioner want to waive it?

The opinion does not address the policy motivation. Common rationales for waiver included concerns about late TCAP score arrivals making grade calculation impossible, parent objections, and a broader recalibration of how TCAP fit into student assessment.

Are TCAP exams themselves waivable?

No. The AG said the State's assessment and accountability programs "rest primarily upon the results of those tests," so they fit squarely within § 49-1-201(d)(1)(J) and cannot be waived.

What is "post-equating"?

A psychometric process by which the Department compares current-year test results to prior-year results for questions held over from previous tests. It ensures comparability across years. If a question was easy last year and hard this year, equating adjusts so that scores are interpretable on the same scale.

Could a school district unilaterally not apply § 49-1-617?

No. § 49-1-617 directly required local boards to develop the policy. The Commissioner's waiver under § 49-1-201(d)(1) is granted on application by the LEA. Without a waiver, the LEA must comply.

What does this opinion say about No Child Left Behind?

It treats NCLB's assessment-and-accountability terminology as the controlling source for understanding § 49-1-201(d)(1)(J)'s carve-out. Tennessee's accountability framework operates under a 2012 NCLB waiver.

Background and statutory framework

Tennessee's education-statute framework is layered: federal NCLB at the top, the Tennessee Comprehensive Assessment Program structure at § 49-1-602 and following, and local-board policies executing the state requirements. § 49-1-201 gives the Commissioner of Education broad waiver authority designed to enable local innovation, while reserving core federal-and-state accountability requirements as non-waivable.

The AG's careful work in this opinion is the terms-of-art analysis. "Student assessment" and "accountability" sound like they could include anything related to student performance, but in the education-statute field they mean specific things tied to federal law. The AG's distinction (TCAP tests are assessment-and-accountability; TCAP-in-grade rules are not) preserves the policy logic of the carve-out without expanding it.

Citations

• Tenn. Code Ann. § 49-1-201(d)(1) (Commissioner of Education waiver authority)
• Tenn. Code Ann. § 49-1-201(d)(1)(J) (federal and state student assessment and accountability carve-out)
• Tenn. Code Ann. § 49-1-602 (accountability measures based on student achievement)
• Tenn. Code Ann. § 49-1-605 (TCAP data used for educational-progress estimates)
• Tenn. Code Ann. § 49-1-606(b) (TCAP raw scores to LEAs by June 30)
• Tenn. Code Ann. § 49-1-607 (test-security guidelines; integrity of testing process)
• Tenn. Code Ann. § 49-1-617 (TCAP scores 15-25% of grades 3-8 final grades)
• Tenn. Code Ann. § 49-13-105(b) (charter school waiver provision)
• 20 U.S.C. §§ 6301 to 6578 (No Child Left Behind Act)
• 20 U.S.C. § 6311(b)(2), (3) (state accountability and assessment plan)
• 20 U.S.C. § 6316(a)(2) (TCAP results available before next school year)
• 34 C.F.R. § 200.5(c) (timing of state assessment results)
• 34 C.F.R. §§ 200.7, 200.12 (school and LEA accountability)
• 2014 Tenn. Pub. Acts, ch. 672 (amendment to § 49-1-201(d)(1))
• In re Adoption of A.M.H., 215 S.W.3d 793 (Tenn. 2007) (Tennessee Supreme Court; statutory construction)
• Brown v. Erachem Comilog, Inc., 231 S.W.3d 918 (Tenn. 2007) (Tennessee Supreme Court; plain meaning)
• Barber v. Gonzales, 347 U.S. 637 (1954) (U.S. Supreme Court; terms of art interpretation)
• Bilski v. Kappos, 561 U.S. 593 (2010) (U.S. Supreme Court; terms of art interpretation)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2014/op14-068.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
July 2, 2014

Opinion No. 14-68

Authority to Waive Requirements of Tenn. Code Ann. § 49-1-617

QUESTIONS

1. Does the Commissioner of Education have authority to waive the requirements of Tenn. Code Ann. § 49-1-617, under which Tennessee school districts must include Tennessee Comprehensive Academic Progress (TCAP) test scores as a percentage of a student's final grade?

2. If the TCAP test scores required to be used by school districts are withheld by the Department of Education, would that constitute a violation of the law?

3. Would "recalibrating" TCAP test scores by the Department of Education constitute "compromising the integrity of the testing process" in violation of Tenn. Code Ann. § 49-1-607?

OPINIONS

1. The Commissioner of Education has authority under Tenn. Code Ann. § 49-1-201(d)(1) to waive the requirements of Tenn. Code Ann. § 49-1-617, which do not relate to "[f]ederal and state student assessment and accountability" under § 49-1-201(d)(1)(J).

2. No federal or state law would be violated by a delay in releasing TCAP test scores so long as the results were provided as soon as practicable and no later than June 30.

3. The "post-equating" process conducted by the Department of Education for every TCAP examination would not "compromis[e] the integrity of the testing process" and thus would not violate Tenn. Code Ann. § 49-1-607.

ANALYSIS

1. Tenn. Code Ann. § 49-1-201(d)(1), as amended by 2014 Tenn. Pub. Acts, ch. 672,1 provides as follows:

(1) Upon application by the LEA for one (1) or more of its schools, the commissioner of education may waive any state board rule or statute that inhibits or hinders the LEA's ability to meet its goals or comply with its mission. However, the commissioner may not waive regulatory or statutory requirements related to:

(A) Federal and state civil rights;
(B) Federal, state and local health and safety;
(C) Federal and state public records;
(D) Immunizations;
(E) Possession of weapons on school grounds;
(F) Background checks and fingerprinting of personnel;
(G) Federal and state special education services;
(H) Student due process;
(I) Parental rights;
(J) Federal and state student assessment and accountability;
(K) Open meetings;
(L) Educators' due process rights; and
(M) Reductions in teachers' salaries.
(N) Employee rights, salaries and benefits; and
(O) Licensure of employees.

The Commissioner of Education thus has authority to waive certain statutory requirements, but the authority is limited, and under subdivision (d)(1)(J), the Commissioner may not waive requirements related to "[f]ederal and state student assessment and accountability."

Tenn. Code Ann. § 49-1-617 requires TCAP test scores to be included, in grades three through eight, as a percentage of a student's final grade.

Each local board of education shall develop a policy by which student scores on the Tennessee comprehensive assessment program's grades three through eight (3-8) achievement tests shall comprise a percentage of the student's final grade for the spring semester in the subject areas of mathematics, reading/language arts, science and social studies. The percentage shall be determined by the local board from a range of no less than fifteen percent (15%) and no more than twenty-five percent (25%). The policy shall utilize performance levels determined by the state board of education and be developed and implemented for the spring semester of 2011.

The answer to the question whether the Commissioner has authority under § 49-1-201 to waive the requirements of § 49-1-617 thus depends on whether the latter statute's requirements are related to "[f]ederal and state student assessment and accountability."

The primary rule of statutory construction is to ascertain and give effect to the intent of the legislature. In re Adoption of A.M.H., 215 S.W.3d 793, 808 (Tenn. 2007). If the statutory language is plain and unambiguous, courts will apply its plain meaning. Brown v. Erachem Comilog, Inc., 231 S.W.3d 918 (Tenn. 2007). Where, however, a statute employs terminology that has a specific technical meaning within the field that the statute addresses, a court would be likely to adopt and employ that specialized use. See Barber v. Gonzales, 347 U.S. 637, 641 (1954) (quoted with approval in Bilski v. Kappos, 561 U.S. 593, 130 S.Ct. 3218, 3247 (2010) ("While it is true that statutory language should be interpreted whenever possible according to common usage, some terms acquire a special technical meaning by a process of judicial construction.")

Within the educational arena, "student assessment and accountability" are terms of art that serve as a primary focus of the federal "No Child Left Behind Act," 20 U.S.C. §§ 6301 to 6578. See, e.g., 20 U.S.C. § 6301(1) (identifying the role that "academic assessments" and "accountability systems" play in accomplishing the purpose of the law); id. § 6311(b)(2), (3) (imposing state-plan requirements for a "single, statewide State accountability system" and "high-quality, yearly student academic assessments"). "Assessment" refers to the process of assessing student (both individual and group) performance and progress. See 20.U.S.C. § 6311(b)(3); 34 C.F.R. §§ 200.2, .3. "Accountability" refers to the evaluation of the performance of schools and school districts (LEAs) over time. See 20 U.S.C. § 6311(b)(2); 34 C.F.R. §§ 200.7, 200.12. Both student assessment and school accountability rely upon the annual TCAP examinations, which measure both student performance and the performance of schools and LEAs. State educational assessment and accountability programs are central to the mandate of federal educational statutes and cannot be waived. The TCAP examinations themselves, in turn, cannot be waived because the State's assessment and accountability programs rest primarily upon the results of those tests.

Students' final course grades, on the other hand, do not play a role in the State's student-assessment or school-accountability efforts. The inclusion of TCAP scores as part of a student's final grade, which is required by Tenn. Code Ann. § 49-1-617, is not required by federal education law, nor does federal law require the use of students' final grades as an "assessment" or "accountability" tool. And this Office can find no indication that the State uses student grades for student-assessment or school-district/school-accountability purposes.2 The Tennessee Department of Education's website indicates that "[s]tudents' skills and academic progress are measured by a set of statewide assessments called the Tennessee Comprehensive Assessment Program, or TCAP" and that students in grades three to eight take the TCAP Achievement Test. http://www.state.tn.us/education/assessment/index.shtml (last visited June 22, 2014). Accountability measures for schools and school districts are based on student achievement, see Tenn. Code Ann. § 49-1-602, which is based, at least for grades three through eight, on TCAP test results. See Tenn. Dep't of Educ., District Accountability: Frequently Asked Questions, Q5 (Summer 2013).3 While final course grades certainly determine a student's academic performance within his or her school, they appear not to determine student or school performance at the State level.4 The requirements of Tenn. Code Ann. § 49-1-617, therefore, can be waived; they are not statutory requirements related to "[f]ederal and state student assessment and accountability" under Tenn. Code Ann. § 49-1-201(d)(1)(J).5

2. No state or federal law mandates the immediate release of TCAP scores to LEAs. A federal regulation, 34 C.F.R. § 200.5(c), states:

Timing of results. Beginning with the 2002-2003 school year, a State must promptly provide the results of its assessments no later than before the beginning of the next school year to LEAs, schools, and teachers in a manner that is clear and easy to understand.

(Emphasis added.) See also 20 U.S.C. § 6316(a)(2) ("The State educational agency shall ensure that the results of State academic assessments administered in that school year are available to the local educational agency before the beginning of the next school year."). Tenn. Code Ann. § 49-1-606(b) provides that the Department "shall provide raw test score data" from the TCAP examinations to LEAs "as soon as practicable after receipt of the data, but in no case later than June 30."6 Section 2 of 2001 Tenn. Pub. Acts, ch. 243, which added this requirement, stated that "[i]t is the intent of the legislature for the Department of Education to provide such score data to local education agencies before the end of the school year." But any delay by the Department in releasing test results to LEAs would not violate this statute so long as the results were provided as soon as practicable and no later than June 30.

3. This Office understands that after every year's TCAP test, the Department conducts a "post-equating" process that compares student performance on that year's test with results from previous years. Every TCAP examination contains questions held over from previous years' tests. Examining the results for these questions that are repeated provides an insight into whether student performance was higher or lower than in previous years. The process is devoted to ensuring that the TCAP tests, and the results of those tests, are valid indicators of student achievement and can properly be compared to a previous year's test results. See Joseph Ryan & Frank Brockmann, A Practitioner's Introduction to Equating 1 (Revised 1st Ed. 2011)7 ("[Equating] is an important aspect of establishing and maintaining the technical quality of a testing program by directly impacting the validity of assessments, the degree to which evidence and theory support the interpretations of test scores.") (emphasis in original).

Tenn. Code Ann. § 49-1-607 states:

Any person found to have not followed security guidelines for administration of the Tennessee comprehensive assessment program (TCAP) test, or a successor test, including making or distributing unauthorized copies of the test, altering a grade or answer sheet, providing copies of answers or test questions or otherwise compromising the integrity of the testing process shall be placed on immediate suspension, and such actions will be grounds for dismissal, including dismissal of tenured employees. Such actions shall be grounds for revocation of state license.

(Emphasis added.) This statute is directed at the administration of TCAP tests and essentially protects against cheating. In any event, the post-equating process described above would not violate this statute because it would not "compromis[e] the integrity of the testing process"; indeed, it seems calculated to protect it. See Ryan & Brockmann, supra, at 1 ("Equating is an essential tool in educational assessment due [to] the critical role it plays in several key areas: establishing validity across forms and years; fairness; test security; and, increasingly, continuity in programs that release items or require ongoing development.").

ROBERT E. COOPER, JR.
Attorney General and Reporter

JOSEPH F. WHALEN
Acting Solicitor General

KEVIN STEILING
Deputy Attorney General

Requested by:
The Honorable Mae Beavers
State Senator
6 Legislative Plaza
Nashville, Tennessee 37243

Footnotes:

1 The 2014 amendment brought this subdivision substantially in line with the waiver provision for charter schools in Tenn. Code Ann. § 49-13-105(b).

2 Pursuant to a 2012 waiver of the federal No-Child-Left-Behind requirements, Tennessee's accountability system places primary focus on school districts rather than individual schools. See Tenn. Dep't of Educ., Statewide Accountability System 1, available at http://www.state.tn.us/education/data/accountability/docs/acct_info_sheet.pdf. (Tennessee waiver documents can be found here: http://www2.ed.gov/policy/elsec/guid/esea-flexibility/map/tn.html (last visited June 25, 2014)).

3 Available at http://www.state.tn.us/education/data/accountability/docs/acct_faq_2013.pdf.

4 By way of illustration, the "2013 Report Card" provides assessment and accountability data for the 2012-13 school year. http://www.state.tn.us/education/data/report_card/2013.shtml (last visited June 21, 2014).

5 No penalty or similar consequence would flow from the Commissioner's granting such a waiver, since federal law does not impose similar requirements.

6 Tenn. Code Ann. § 49-1-605 also requires that TCAP test data be used to provide certain educational-progress estimates by July 1 of each year.

7 Available at http://www.ccsso.org/Documents/Equating%20Handbook-CoverANDinterior.pdf.