Standing law could restrict snow-day forgiveness in W.Va.

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Standing law could restrict snow-day forgiveness in W.Va.
By Ryan Quinn, The Charleston Gazette

County school districts in West Virginia might still have to make up all missed snow days this academic year, despite efforts to find them some exemptions.

There’s doubt as to whether there’s any legal way for schools to have fewer than 180 “separate instructional days” — the new requirement this school year. It’s an important question in an academic year when some counties have missed many school days, students must take a new statewide standardized test and school employees, students and parents are wondering if make-up days will interfere with spring break and summer plans.

Legislation introduced this session to break free from the 180-day requirement failed, and some members of the West Virginia Board of Education and the board’s attorney, doubt that a waiver process the state Department of Education suggested — and board members approved last month — can still allow freedom from the mandate.

Districts’ requests for waivers are due Thursday, and the state school board is expected to consider each one at its meeting next week.

Kanawha County Schools Superintendent Ron Duerring said his district will reschedule all six missed days this school year by using make-up days preplanned into the calendar and extending the end of school from late May to June 3. However, many counties are facing far more missed days — Barbour and Calhoun missed a reported 18, while McDowell, Pocahontas, Preston and Raleigh missed 17.

The 180-days requirement was introduced into state law by Senate Bill 359, the wide-ranging and oft-cited roughly 150-page education legislation backed by Gov. Earl Ray Tomblin and passed in 2013. The law requires “an instructional term for students of no less than 180 separate instructional days, which includes an inclement weather and emergencies plan designed to guarantee an instructional term for students of no less than 180 separate instructional days.”

Tomblin spokesman Chris Stadelman said the governor has spoken with state Superintendent Michael Martirano about his insistence that school districts have 180 separate instructional days.

“He’s made that clear from the day that law passed,” Stadelman said. “That is the governor’s bill, and he strongly supports it. Students need to be in the classroom to learn.”

A bill introduced this session (SB537) would have allowed districts to break free from the requirement.

David Mohr, senior policy analyst for the House of Delegates Education Committee, said that after the House amended the bill following the Senate’s passage it would have allowed Martirano to not only excuse days missed during governor-declared states of emergency but let counties use accrued instructional minutes to count as entire days. Those minutes, which schools build up over time by keeping kids in class longer each day than the state-set minimum daily instructional time, can normally only be used to make up delays and early dismissals.

Senate Majority Whip Daniel Hall, R-Wyoming, and lead sponsor of SB537, said the bill in its original form wasn’t limited to make-up days and instead replaced the 180 separate days requirement with an annual minimum number of overall instructional time — allowing longer days to compensate for a shorter overall school year.

“Nobody has ever sold me that 180 days is the magic number for quality education,” Hall said.

Most states require 180 days of instruction, but research casts doubt on whether that number actually matters — often finding that positive effects of more instructional time were small and dependent on specific additional factors. A 2014 study on the differences in instructional time among countries, authored by assistant sociology professor Daniel Long at Wesleyan University, in Connecticut, found “no effect of the length of the school year on academic achievement.”

Long — now quantitative research director for the Philadelphia, Pennsylvania-based nonprofit think tank Research for Action — told the Gazette that Singapore, for instance, has 180 days of instruction and about the same school-day length as U.S. schools, but it far exceeds the United States in student performance.

“It’s sort of the use of time, rather than the total amount of days, that seems to matter more,” Long said.

He said evidence suggests nondistracted students and better-trained teachers are shown to improve outcomes, but overall, education researchers’ knowledge of what does work is “very poor.”

SB537, which passed unanimously in both houses, died on the last night of the Legislative session when the Senate didn’t agree with the House’s changes and no compromise was reached.

Before the legislative session ended, Heather Hutchens, the Department of Education’s general counsel, told the state school board at its March 11 meeting that the waiver process could allow the forgiveness of required make-up days that SB537 proposed. She suggested approving the waiver process in case the bill did not pass.

Hutchens said SB537 would “firm up” the legal authority to drop below the 180 separate instructional days requirement. If it didn’t pass, she argued, there was still enough “wiggle room in the statute” to allow the exemptions anyway.

“So are we ignoring the word ‘separate?’” board member Wade Linger asked Hutchens at the March meeting.

She replied, after a pause, that, “We’re defining it differently.”

Board attorney Mary Catherine Funk didn’t speak on the subject at the March meeting. When asked Tuesday what legal advice she’d give board members, she said she doesn’t think the requirement for 180 separate days can be waived.

“According to the state code, 180 days means 180 days, and students must be in school physically 180 days,” she said.

Linger, who was board president when SB359 passed, was the only board member to vote against developing the waiver process. He said he believes state law exemptions can be used to ensure schools provide the minimum 180 separate days but that he doesn’t believe the board can excuse the 180 separate days requirement itself.

“In no way does it consider that, in any way,” Linger said.

Board member Lloyd Jackson, who voted for creating the waiver process, said Tuesday that it was clearly SB359’s intention to require 180 separate instructional days — a phrase the law repeats several times. He said someone would have to convince him that the state school board could allow districts to drop below that number with the waiver process.

“But that’s what lawyers do — they argue — and I could be convinced,” Jackson noted.

The waiver request sheets sent out to districts let them ask the state school board to allow them to make up missed days on holidays and weekends and to extend the last day of school past the 48-week maximum calendar time frame. However, it also includes a fourth box, allowing districts to request waivers under “Other Code provision that a county board believes will assist in reaching the mandatory 180 separate instructional days.”

Funk said Tuesday that, of the waiver requests from 13 districts she’s seen so far, all of them are seeking exemptions via the fourth option. Jackson said he wants to see what arguments for exemptions counties make in their requests.

Hall said he wants to pass another version of SB537 next year.

“We intend on pushing this thing as hard as we can push it,” he said, “and if the governor vetoes it, we’re going to override it.”

Linger said he expects the 180-day requirement to cause “some pain this year.”

“But the end result for next year and forward will be a better outcome for students,” he said.