Education Law - Jerry A. Lumley

• Publication year: 2001

Education Lawby Jerry A. Lumley^*

Georgia experienced many changes in the area of school law during the last survey period, primarily because of the Education Reform Act of 2000. Although fewer changes occurred during this survey period, significant legislation was passed, and several appellate decisions in the area were made. This Article will discuss that legislation and those decisions.

I. Legislation

A. House Bill 656

The Education Reform Act of 2000 brought many changes to Georgia's education system. In 2001, the General Assembly passed, and the Governor signed into law. House Bill 656, which amended the Education Reform Act of 2000 and brought about even more changes. The following is a summary of some of these changes.

1. Early Intervention Programs. Before being amended by House Bill 656, section 20-2-153 of the Official Code of Georgia Annotated ("O.C.G.A.") required the State Board of Education to "create a special instructional assistance program to assist students [enrolled in grades kindergarten through five] with identified developmental deficiencies which are likely to result in problems in maintaining a level of performance consistent with expectations for their respective ages."¹ Even though the State Board of Education was required to create a special instructional assistance program, local school systems were not required to provide such programs to their students.²

The State Board of Education is no longer required to create a special instructional assistance program. Rather, "[t]he State Board of Education shall create and each local board of education shall provide an early intervention program to serve students in kindergarten through grade five."³ The special instructional assistance program required by former O.C.G.A. section 20-2-153 was to "assist" students in grades kindergarten through five.⁴ The early intervention programs now required by O.C.G.A. section 20-2-153 must "serve" students in grades kindergarten through five.⁵ Further, the special instructional assistance programs under former O.C.G.A. section 20-2-153 were only for "students enrolled in grades kindergarten through five with documented developmental levels below expectations for their respective ages that are not attributable to an identified disabling condition and who are not enrolled in either the remedial education program⁶ or any of the special education programs . . . ."⁷ The early intervention programs now required are to be provided to all

students who are at risk of not reaching or maintaining academic grade level, including but not limited to students who are identified through the first grade readiness assessment required by Code Sections 20-2151 and 20-2-281 and students with identified academic performance below grade levels defined by the Office of Education Accountability in Code Section 20-14-31 for any criterion-referenced assessment administered in accordance with Code Section 20-2-281 for grades one through five.⁸

The new legislation requires local school systems to devise a monitoring process using a variety of indicators, such as classroom performance and scores on previous assessments, to identify students who are at risk of not reaching or maintaining academic grade level.⁹ Students are to be assigned to the early intervention program as soon as practicable after they are identified as at risk or after the results of assessments are known.¹⁰ The school is required to provide timely notice and an opportunity for a conference with the students and their parents to discuss the students' academic performance and the role of the early intervention program.¹¹

Students are not to be assigned to early intervention programs on a continuing or permanent basis. "[E]arly intervention program[s] shall be designed with the intent of helping the student to perform at expectations and exit the program in the shortest possible time. Students shall be moved into [the] program, provided assistance, and moved out of [the] program upon reaching grade level performance."¹²

"Funding for the early intervention program shall have a full-time equivalent teacher-student ratio of one teacher to eleven students."¹³

2. Social Promotions. One of the most publicized components of House Bill 656 was its stated intent to end "social promotions."¹⁴ The legislation declared that the policy of the State of Georgia is

that the placement or promotion of a student into a grade, class, or program should be based on an assessment of the academic achievement of the student and a determination of the education setting in which the student is most likely to receive the instruction and other services needed in order to succeed and progress to the next higher level of academic achievement.¹⁵

This policy is to be known as the "Georgia Academic Placement and Promotion Policy."¹⁶

Under O.C.G.A. section 20-2-283(a), the State Board of Education is required to adopt criteria for the development of a placement and promotion policy by each local board of education consistent with the Georgia Academic Placement and Promotion Policy no later than January 1, 2002.¹⁷ The criteria adopted by the State Board of Education must require the following for students in the third, fifth, and eighth grades: (a) no student can be promoted to the fourth grade if that student does not achieve grade level as defined by the Office of Education Accountability on the third grade criterion-referenced reading assessment and meet the promotional standards and criteria established by the State Board of Education and local board of education; (b) no student can be promoted to the sixth grade if that student does not achieve grade level as defined by the Office of Education Accountability on the fifth grade criterion-referenced mathematics and reading assessments and meet the promotional standards criteria established by the State Board of Education and local board of education; and (c) no student can be promoted to the ninth grade if that student does not achieve grade level as defined by the Office of Education Accountability on the eighth grade criterion-referenced mathematics and reading assessments and meet the promotional standards and criteria established by the State Board of Education and the local board of education.¹⁸

When a student does not perform at grade level on any of the criterion-referenced assessments specified in O.C.G.A. section 20-2-283(b)(1), the student is required to be retested with a criterion-referenced assessment or an approved alternative assessment instrument.¹⁹ "The student [must also] be given [the] opportunity for accelerated, differentiated, or additional instruction in the applicable subject."²⁰ The school principal or the principal's designee is also required to provide written notice to the student's parent or guardian by first-class mail of the student's performance on the "assessment instrument, the retest to be given to the student, the accelerated, differentiated, or additional instruction program to which the student is assigned, and the possibility that the student might be retained at the same grade level for the next school year."²¹

When a student does not perform at grade level on any of the criterion-referenced assessments specified in O.C.G.A. section 20-2-283(b)(1) after being given a second opportunity, the school principal or the principal's designee is required to retain the student for the next school year unless a placement committee decides otherwise.²² The school principal or the principal's designee is required to provide written notice of the decision to retain the student to the student's parent or guardian by first-class mail.²³ The notice must advise the parent or guardian of his or her right and the right of the student's teacher to appeal the decision.²⁴ The notice must also "describe the composition and functions of the placement committee, . . . including the requirement that a decision to promote the student must be a unanimous decision of the committee."²⁵

If a parent, guardian, or teacher appeals the decision to retain the student, the school principal or the principal's designee must establish a placement committee to hear the appeal.²⁶ The placement committee is to be "composed of the principal or the principal's designee, the student's parent or guardian, and the teacher of the subject of the assessment instrument on which the student failed."²⁷ The placement committee for special education students is required to be the Individualized Education Plan Committee.²⁸ The principal or the principal's designee shall provide to the parent or guardian by first-class mail written notice of the time and place for convening the placement committee.²⁹

Upon considering an appeal of a decision to retain the student, the placement committee is required to

review the overall academic achievement of the student in light of the performance on the criterion-referenced assessment and the standards and criteria as adopted by the local board of education and make a determination to promote or retain. A decision to promote must be a unanimous decision and must determine that if promoted and given accelerated, differentiated, or additional instruction during the next school year, the student is likely to perform at grade level . . . by the conclusion of the school year.³⁰

Regardless of the decision, the placement committee must prescribe for the student accelerated, differentiated, or additional instruction needed for the student to perform at grade level by the end of the subsequent school year, prescribe assessment that may be needed for the student in addition to assessments that are already to be given, and provide for a plan of continuous assessment during the subsequent school year in order to monitor the progress of the student.³¹ "The decision of the placement committee may be appealed only as provided for by the local board of education."³²

While O.C.G.A. section 20-2-283 provides for the retention...