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Regulations on Innovation Schools, 603 CMR 48.00

To:Board of Elementary and Secondary Education
From:Mitchell D. Chester, Ed.D., Commissioner
Date:June 11, 2010

At the Board's April 27, 2010, meeting, the Board voted to solicit public comment on proposed new regulations governing innovation schools, and in particular virtual innovation schools. We received a number of comments, which are included in your briefing book (attachment 1) and are also summarized in the enclosed table (attachment 2). I have also continued to receive advice and comment from the educators who are serving at my request on a virtual schools advisory committee. Based on this feedback, I am proposing a number of revisions to the draft regulations (attachment 3), and recommend that you vote to adopt them at your June 22 meeting.

As you recall, innovation schools were established by the Legislature earlier this year as part of the Act Relative to the Achievement Gap (Chapter 12 of the Acts of 2010). Innovation schools are public schools operating within a school district with increased autonomy and flexibility to improve school performance and student achievement. The innovation schools statute (M.G.L. c.71, s.92; attachment 4) directs the Board to promulgate regulations in particular to guide the creation and operation of virtual innovation schools.

Accordingly, a significant portion of the proposed regulations deals with virtual innovation schools, defined as schools whose students receive 80 percent or more of their academic instruction on-line at a location other than a public school building. Although many Massachusetts high schools offer individual on-line courses to their students as an adjunct to classroom instruction, this represents our first foray into the world of full-time virtual schools. A number of other states have already experimented with virtual schools, and there seems to be a significant interest in and demand for this choice. I am enclosing a summary prepared by Connie Louie, the Department's Director of Instructional Technology, of these efforts in other states (attachment 5). At least one Massachusetts school district (Greenfield) is planning to open a virtual school this fall pursuant to these regulations, and there may be others.

I would like to call your attention to several specific items in the regulations that I am presenting to the Board for adoption this month. The first two are provisions that affect all innovation schools, not just virtual schools.

  • 48.03 (2) - In the non-discrimination section, we have removed the reference to academic performance. It has been suggested that innovation schools could be a potentially useful vehicle for districts to expand programs for gifted and talented students as well as dropout recovery programs, and the regulations should not impede those district initiatives.

  • 48.03 (3) - This section implements the statutory provision that says an innovation school operates in accordance with all laws regulating other public schools, except as the law conflicts with M.G.L. c.71, s.92 or any innovation plans created thereunder. Our original proposal required the Board's approval and indicated that approval would be based on exceptional circumstances. Several commenters suggested that this was unduly restrictive and possibly exceeded the Board's statutory authority. I continue to believe that state oversight in this area is both necessary and appropriate, given the state's constitutional obligation to ensure an adequate education for all students. I am persuaded, however, that we should streamline the process so that it provides accountability without blocking reasonable and innovative proposals that are consistent with the statute and our constitutional obligation. The regulation as revised simplifies the process for an innovation plan committee to obtain such an exemption, by requiring only the Commissioner's approval; it also permits the innovation plan committee to ask the Board to review an adverse decision by the Commissioner and eliminates the language regarding exceptional circumstances.

The following items pertain only to virtual innovation schools:

  • 48.05 (1) - There was considerable comment suggesting that this section, which governs enrollment in virtual schools and requires approval by the superintendent of the student's home district, would be too restrictive and difficult to implement fairly. The trend nationally is for virtual schools to be open to all students, with parental choice being the determining factor. The revised regulations reflect this viewpoint. We do add an important caveat, consistent with the parental choice principle, that a school district cannot compel a student to enroll in a virtual school.

    Broadening the eligibility for enrollment creates the potential for a significant number of students to enroll at virtual schools, including students who are now in private or parochial schools or are home schooled. This is turn creates the potential for a significant fiscal impact on the sending districts and the Commonwealth, since these students are not currently educated at public expense. In the absence of reliable data on the numbers of students who might enroll, it is not clear whether enrollment limits might be necessary or appropriate. (By way of comparison, the statutes governing both the charter school and inter-district school choice programs contain enrollment limits.) We will need to keep a close eye on this, which is one reason that the proposed motion to adopt the regulations directs the Commissioner to report to the Board in 2011 and annually thereafter on the status of Virtual Innovation Schools in the Commonwealth and, based on the report, to recommend any amendments to the innovation schools regulations and statute that he deems appropriate.

  • 48.05 (3) - This section permits a school committee to contract with an educational collaborative or with a for-profit or non-profit corporation (e.g., an educational management organization or EMO) for the provision of all or part of the instructional and technical services, including teachers, provided that the school committee follows the applicable state procurement requirements. One commenter objected to this provision on grounds that the statute does not authorize school committees to contract out teaching services to a private contractor. By the same token, nothing in the statute prohibits such an arrangement and the statute expressly refers to Innovation Schools in which "an external partner is primarily responsible for developing the innovation plan under which the school operates and the external partner is responsible for meeting the terms of the innovation plan" (M.G.L. c.71, s. 92(d)).

    The statute makes clear that an Innovation School, including a Virtual Innovation School, shall be a public school, operating within a school district under an innovation plan authorized by the school committee. Further, the statute requires the sponsoring district and the local teachers' union to "negotiate waivers or modifications to the applicable collective bargaining agreement necessary for the school to implement the innovation plan" (M.G.L. c.71, s.92(l)). It is unclear whether the Legislature intended this provision to apply to EMOs or other external partners that operate virtual schools, and this will need to be resolved in the labor relations arena.

I believe the virtual school concept has significant potential for serving students who, for a variety of reasons, are not well-served in our traditional bricks-and-mortar schools. It is also clear that they are a work in progress, and we will need to carefully monitor and evaluate their performance. The regulations give the Department the authority to require additional reporting from virtual schools, and I propose to report annually to the Board on how this experiment is progressing. Based on our actual experience, I will make recommendations for additional regulatory or statutory controls as needed.

A motion for approval of the proposed regulations is enclosed (attachment 6). Deputy Commissioner Jeffrey Nellhaus, General Counsel Rhoda Schneider, and Associate Commissioner Jeff Wulfson will be available at the Board meeting to answer any questions.


Copies of Public Comments

Download PDF Document  Download Word Document
Summary of Public Comments

Proposed Regulations on Innovation Schools, 603 CMR 48.00
(a clean copy and a copy showing changes from the April 2010 public comment version of the proposed amendments)

View External Link
M.G.L. c.71, s.92 (as added by St. 2010, c. 12, s. 8)

Download PDF Document  Download Word Document
Summary of States with Full-Time, Statewide Online Schools

Motion to Adopt Regulations

Last Updated: June 18, 2010
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