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In the wake of the General Assembly leaving town, it is hard for analysis of legislation not to fall into a scorecard of the parties or between the House and the Senate. In this world of wins and losses, it is a bit hard to score this one: the House and the Senate, Democrats and Republicans chose to repeal the requirement that has been in place since 2001 for schools to provide a personal education plan for each child determined to be at risk of academic failure.

And the winners are?

First some background. In 2001, as a part of the budget bill, legislators enacted G.S. § 115C-105.41. While the language has changed some over time, the law required schools to (1) identify students at risk of academic failure, (2) provide a personal education plan with focused intervention and performance benchmarks, such as coaching, mentoring, and summer school; and (3) involve parents in the implementation and ongoing review of the plan.1

This requirement was part of a larger section of the 2001 Appropriations Act captioned as the “Fairness in Testing Program.”2 This section included various concerns of the General Assembly in the State Board’s use of test scores for promotion/retention requirements. For example, the principal’s duty to grade and classify students was modified to provide that “[i]f a principal’s decision to retain a child in the same grade is partially based on the pupil’s scores on standardized tests, those test scores shall be verified as accurate.”3. Section 28.17(b)] It also added additional requirements to local boards to adopt policies for parents to discuss retention decisions.3 In addition, there were numerous provisions that reflected the General Assembly’s concern about the State testing program.

While ultimately included in the Appropriations Act, these issues originally were raised in bills that did not pass as separate legislation.4 The concern also was evident in two other companion bills that session that included the requirement for a personal education plan along with expectations to address closing the achievement gap.5

In House Bill 237 passed this session, the General Assembly kept the requirement to identify students at risk of academic failure while eliminating any requirement for specific action at the level of the individual student. And now with promotion standards in the law for the third grade, those provisions are modified to remove the personal education plan from consideration in whether a student should be retained, leaving student test scores and a possible portfolio.

Why would there be consensus of House and Senate members, Democrats and Republicans to change the approach? Is the General Assembly no longer concerned about testing? That is hardly the case. Has the achievement gap been closed? Clearly not. So why not provide a personal education plan for a student at risk of academic failure?

Here might be some of the arguments in favor of elimination:

Since 2001, schools have implemented a number of diagnostic approaches that allow them to address the needs of individual students on an on-going basis, including as it relates to third grade reading. Further, there are many schools with large numbers of at-risk students and it is more practical and effective to take a consistent approach to addressing their needs. In addition, given the interest in reducing time teachers spend on paperwork, eliminating the individualized process provides more time for teachers to teach. And possibly, proponents would argue that the plans did not work. They were filled out and filed away. These arguments – or others – convinced legislators to repeal the requirement.

What would be reasons for requiring a personal education plan?

First, it gives parents a role in the plan developed for their child. Second, it creates an opportunity to explore all the reasons that the child may not be doing well. Is the child not doing well in Math because she needs more time or tutoring or has a possible learning disability that needs evaluation? Or are there factors in the home life that are affecting the child’s academic performance like the ability to get to school, get a good night’s sleep, or have a good meal? And finally, the personal education plan is a means for judging whether a child is receiving his or her constitutionally protected right to an equal opportunity to a sound basic education. An Amici Curiae brief submitted in 2006 in Leandro v. State by a coalition group of advocates notes:

There is no better model for the Court’s own task of ensuring that our schools are constitutionally adequate than the PEP statute’s three-tiered model of diagnosis, intervention, and monitoring.

* * *

For example, if the specialized reading classes planned by Ben L. Smith High School for students who have not passed eighth-grade reading competency are effective, the Court will know it at once because PEP monitoring will show that the reading skills of the students enrolled in those classes have improved. Conversely, if the revised school tutoring plan contemplated by Hertford County High School does not meet its students’ academic needs, the Court will know that at once, too, as it will be able to see that the students are failing to improve their performance.

The Amici Curiae brief makes another point: that the personal education plans help identify the availability of needed resources.

When a school cannot engage in a meaningful PEP process with its students — i.e., when it cannot provide the kinds of intervention strategies that it has identified as necessary or when it is providing strategies that fail — regular reporting under the PEP statute will provide the schools (and the Court) with a point from which to ask why. Which resources are lacking? What barriers prevent success? What will fix the problem?

School districts can of course continue to provide personal education plans — they simply are not required to do so. School districts can have multiple means of engaging parents. And they can have varied approaches to addressing the needs of students who are at risk of academic failure. At each school, school improvement teams can be creative and resourceful in developing plans to address the needs of these students.

For students, instead of adults, to be the winners of the repeal of the personal education plan, effective strategies with sufficient resources need to be available to all at-risk students. With the General Assembly out of town, this next step is left to the schools.

Ann McColl

Ann McColl is an attorney practicing in the field of education law since 1991. She currently serves as co-founder and president of the Innovation Project.