Governor vetoes ACT choice bill, citing law requiring same test for 4 years

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By Ryan Quinn, Charleston Gazette-Mail

Gov. Jim Justice says he vetoed Senate Bill 624, which would have let counties use exams other than the SAT as their 11th-grade standardized test, partly because it “directly conflicts” with existing West Virginia law.

His written veto message, released Thursday, says: “The comprehensive statewide student assessment adopted prior to the testing window of the 2017-2018 school year shall continue to be used for at least a total of four consecutive years.”

That line was added to state law through the 2017 bill that banned West Virginia from using Smarter Balanced, the standardized test at the time. The state repeatedly has changed its tested grade levels, subjects and the tests themselves recently, hampering the ability to see year-to-year trends in educational achievement.


But despite that four-year, same-statewide-test requirement, which expires in the 2021-22 school year, a West Virginia Department of Education official wrote to ACT on Thursday that the department is “confident that there is sufficient time for all federal and state requirements to be satisfied to allow for a 2020 administration of the ACT assessment in those counties electing to take advantage of the locally selected assessment option.”

The department has been working to allow counties to use the ACT, instead of the SAT, whether a bill forces the department to allow this or not.

That letter was from Jan Barth, an assistant state schools superintendent. Additionally, department communications executive director Kristin Anderson wrote in an email that, “while counties will have the option to use the ACT, the SAT will remain the statewide summative assessment in accordance with state law.”

Brian Abraham, Justice’s general counsel, said the Education Department requested the veto, although Anderson did not confirm or deny that statement.

Senate Education Committee Chairwoman Patricia Rucker, R-Jefferson and lead sponsor of the bill, said she pushed the legislation after state schools Superintendent Steve Paine said he would get ACT choice allowed for this school year but didn’t come through. She noted that the bill had specifics that now won’t be mandated.

“Now there’s no clarity,” Rucker said. “Who’s going to pay for it? Who’s going to negotiate?”

Among the bill’s requirements were that any study judging how well an alternative test measures the state’s academic standards must analyze “at least three test forms.”

In his first State of the State address, in 2017, Justice said, “I am going to propose we throw Smarter Balanced in the trash can and we go to an ACT testing.”

But after the law ditching Smarter Balanced passed, and after a bid process following that, the Education Department instead chose The College Board, provider of the SAT, to provide the statewide test for high school juniors. The 2017 law supposedly locked that in as the statewide test for at least four years.

This school year is the second in which West Virginia is using the SAT as the 11th-grade standardized test.

Justice’s veto message says that, “by allowing county boards of education to utilize an alternative assessment option during the period of time implicated in the statute for at least a four-year period of assessment consistency, the WV Board of Education [which oversees the Education Department] would be violating their statutory mandate already in effect.”

The governor wrote that the bill would create a conflict between laws that “could give rise to contractual litigation between the state and the current vendor of the statewide contract, who was chosen by a competitive bid process, and any other vendor able to provide an alternative assessment option.”

Later in his veto message, Justice said the bill is “unnecessary.”

“The West Virginia Department of Education recently received a letter from the United States Department of Education (USDE) advising that the ACT assessment was conditionally approved to be used as a locally selected assessment in lieu of the statewide assessment,” the governor wrote.

“The letter was accompanied by a specific list of items the WV Department of Education is required to submit to receive full USDE approval,” the governor wrote. “Not only does the USDE’s letter render SB 624 unnecessary but given the clear set of instructions provided to the WV Department of Education, there is no need to add unnecessary statutory language that may work to impede on the WV Department of Education’s ability to adhere to those instructions.”

Neither his message, nor his office, clarified whether Justice or his staff believe counties could use the ACT before the four-year, same-statewide-test requirement expires. The first part of his letter suggests Justice does not believe they can.

Rucker said Justice’s veto message doesn’t make sense.

“It seems to be reversing itself,” she said. “He’s saying we can’t do this because it conflicts with our law, but the Department of Education can do this.”

There is legal precedent that the West Virginia school board can ignore state laws that interfere with its power, which comes from a higher source: the state constitution.

“This Court has unequivocally held that legislative action that impedes the general supervisory powers of the [board] is patently unconstitutional,” the West Virginia Supreme Court wrote in the 2017 Nicholas County school consolidation decision.

“ACT is disappointed by the governor’s action, especially because the United States Education Department (USED) affirmed with its letter that the ACT test substantially meets the requirements of peer review,” Ed Colby, ACT’s media and public relations senior director, said in an email.

“The bill would have given greater clarity to districts’ use of the ACT under the federal Elementary and Secondary Education Act (ESSA) and also would have provided resources to support some of the actions still required by USED,” he wrote.