Titles of Regulations: 8VAC20-170. Regulations Governing Instructional Materials -- Selection and Utilization by Local School Boards (repealing 8VAC20-170-10).

8VAC20-220. Regulations Governing Textbook Adoption State Level (repealing 8VAC20-220-10 through 8VAC20-220-70).

8VAC20-230. Regulations Governing Textbook Adoption Local Level (repealing 8VAC20-230-10 through 8VAC20-230-40).

8VAC20-270. Regulations Governing Textbook Fund Management and Handling on Local Level (repealing 8VAC20-270-10 through 8VAC20-270-130).

8VAC20-720. Regulations Governing Local School Boards and School Divisions (adding 8VAC20-720-10 through 8VAC20-720-170).

Statutory Authority: § 22.1-16 of the Code of Virginia.

Public Hearing Information:

June 3, 2010 - 7 p.m. - Marion Senior High School, 848 Stage Street, Marion, VA

June 10, 2010 - 7 p.m. - T. C. Williams High School, 3330 King Street, Alexandria, VA

June 10, 2010 - 7 p.m. - Jolliff Middle School, 1021 Jolliff Road, Chesapeake, VA

June 10, 2010 - 7 p.m. - James River High School, 3700 James River Road, Midlothian, VA

Public Comment Deadline: July 26, 2010.

Agency Contact: Dr. Margaret N. Roberts, Office of Policy and Communications, Department of Education, P.O. Box 2120, 101 North 14th Street, 25th Floor, Richmond, VA 23219, telephone (804) 225-2540, FAX (804) 225-2524, or email margaret.roberts@doe.virginia.gov.

Basis: Section 22.1-16 of the Code of Virginia authorizes the Board of Education to adopt bylaws for its own governance and promulgate such regulations as may be necessary to carry out its powers and duties and the provisions of Title 22.1 of the Code of Virginia. Section 22.1-242 of the Code of Virginia, effective July 1, 2008, requires the Board of Education to adopt regulations governing (i) the purchase of textbooks approved by it for use in the public schools directly from the publishers by school boards and (ii) the distribution of such textbooks for the use by children attending public schools in Virginia. Additionally, § 22.1-38 of the Code of Virginia permits local school boards to use textbooks not approved by the Board of Education so long as the school board selects the books in accordance with regulations promulgated by the board.

Purpose: The purpose of this proposal is to repeal four current regulations and add to the proposed Regulations Governing Local School Boards and School Divisions, 8VAC20-720, by creating sections governing instructional materials and textbooks. The current regulations governing instructional materials and textbooks will be repealed simultaneously with the adoption of the additions in this regulatory action to the proposed Regulations Governing Local School Boards and School Divisions. These proposed new sections will not become effective until after the proposed Regulations Governing Local School Boards and School Divisions become final.

The proposed regulation sections will capture the requirements of Chapters 430, 663, and 615 of the 2008 Acts of Assembly regarding textbook purchasing. These provisions relate to the approval of textbooks, basal textbooks, contacts with textbook publishers, and the selection of instructional materials by local school divisions. In addition, a number of provisions that are unnecessary, outdated, or are no longer required by the Code of Virginia are deleted. The goal of this proposal is to have regulations that comport with the Code of Virginia requirements governing textbooks and other statutes, such as the Virginia Procurement Act, while providing local school divisions and school boards more flexibility in the selection and purchasing of textbooks and instructional materials.

The proposed regulatory action will have no negative impact on the health, safety, or welfare of the public; however, the action will provide an added safeguard for the public by clarifying for parents their role in reviewing the textbooks under consideration for use in their child's classroom. Therefore, the proposed action is deemed necessary for the welfare of the public.

Substance: The proposed sections include provisions related to the approval of textbooks, basal textbooks, contracts with textbook publishers, the distribution of textbooks and consumable materials, and the selection of instructional materials by local school divisions. In addition, a number of provisions in the four sets of current regulations that are unnecessary, outdated, or are no longer required by the Code of Virginia are not included.

Issues: This proposal is beneficial to the public as well as local school divisions in that the provisions will be up-to-date and provide local school divisions with more flexibility without having a negative impact on the provision of educational services. The requirements regarding instructional materials and textbooks will be added to the proposed Regulations Governing Local School Boards and School Divisions once they are final. This will eliminate the need to consult four separate regulations making it easier for school divisions to determine applicable requirements. Additionally, the requirements regarding textbooks have been placed into one section and will provide the requirements for today's educational programs and more directly reflect current business practices.

The Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Education (Board) currently has three sets of regulations governing textbooks and one set of regulations governing instructional materials. The regulations governing textbooks are: Regulations Governing Textbook Adoption State Level (8VAC20-220), Regulations Governing Textbook Adoption Local Level (8VAC20-230), and Regulations Governing Textbook Fund Management and Handling on Local Level (8VAC20-270). The regulations governing instructional materials are: Regulations Governing Instructional Materials – Selection and Utilization by Local School Boards (8VAC20-170). All of these regulations were adopted on or before September 1, 1980, and have not been amended since that time. The Board proposes to repeal all four of these regulations and add provisions concerning textbooks and instructional materials to the proposed Regulations Governing Local School Boards and School Divisions (8VAC20-720).

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. All of the proposed textbook and instructional material rules and requirements for the Regulations Governing Local School Boards and School Divisions are either essentially the same as the current rules and requirements in the existing four regulations mentioned above, reflect current federal law, are directly from the Code of Virginia, or are clarifications. Thus, the proposals will not have significant impact beyond the positive impact of additional clarity.

Businesses and Entities Affected. The proposed amendments affect the 132 school divisions in the Commonwealth as well as the over one million students in Virginia's public schools and their parents or guardians.

Localities Particularly Affected. The proposed amendments affect all localities and do not disproportionately affect particular localities.

Projected Impact on Employment. The proposed amendments are unlikely to significantly affect employment.

Effects on the Use and Value of Private Property. The proposed amendments are unlikely to significantly affect the use and value of private property.

Small Businesses: Costs and Other Effects. The proposed amendments are unlikely to significantly affect small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed amendments are unlikely to significantly affect small businesses.

Real Estate Development Costs. The proposed amendments are unlikely to significantly affect real estate development costs.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 36 (06). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency's Response to the Department of Planning and Budget's Economic Impact Analysis: The agency agrees with the Economic Impact Analysis done by DPB. The agency will continue to examine the economic and administrative impact of the regulations as they progress through the Administrative Process Act process.

Summary:

The Board of Education currently has three sets of regulations governing textbooks and one set of regulations governing instructional materials. The regulations governing textbooks are: Regulations Governing Textbook Adoption State Level (8VAC20-220), Regulations Governing Textbook Adoption Local Level (8VAC20-230), and Regulations Governing Textbook Fund Management and Handling on Local Level (8VAC20-270). The regulations governing instructional materials are: Regulations Governing Instructional Materials – Selection and Utilization by Local School Boards (8VAC20-170). All of these regulations were adopted on or before September 1, 1980, and have not been amended since that time. The board proposes to repeal all four of these regulations and add provisions concerning textbooks and instructional materials to the proposed Regulations Governing Local School Boards and School Divisions (8VAC20-720). The proposed provisions relate to the approval of textbooks, basal textbooks, contracts with textbook publishers, and the selection of instructional materials by local school divisions.

CHAPTER 720
REGULATIONS GOVERNING LOCAL SCHOOL BOARDS AND SCHOOL DIVISIONS

8VAC20-720-10. Definitions.

"Textbooks" means print or electronic media for students use that serve as the primary curriculum basis for grade-level subject or course.

8VAC20-720-20 through 8VAC20-720-150. (Reserved.)

8VAC20-720-160. Instructional materials.

A. Local school boards shall be responsible for the selection, approval, and utilization of instructional materials.

B. Local school boards shall adopt policies and criteria for the selection of instructional materials that shall include, at a minimum:

1. Instituting a policy regarding the rights of parents to inspect, upon request, any instructional materials used as part of the educational curriculum for students, and the procedure for granting a request by a parent for such access, in accordance with the Protection of Pupil Rights Amendment, 20 USC § 123h, and its implementing regulation, 34 CFR Part 98;

2. Establishing procedures for the reconsideration of challenged materials;

3. Placing special emphasis on the thorough evaluation of materials related to controversial or sensitive topics such as sex education, moral education, and religion; and

4. Including in the curriculum and scheduling options for students whose parents choose to withdraw them from class for the duration of the treatment of a sensitive or controversial topic. Parents should be required to justify their requests.

8VAC20-720-170. Textbooks.

A. Textbook approval.

1. The Board of Education shall have the authority to approve textbooks for use in the public schools of Virginia.

2. In approving basal textbooks for reading in kindergarten and first grade, the board shall report to local school boards those textbooks with a minimum decodability standard based on words that students can correctly read by properly attaching speech sounds to each letter to formulate the word at 70% or above for such textbooks, in accordance with § 22.1-239 of the Code of Virginia.

3. Any local school board may use textbooks not approved by the board provided the school board selects such books in accordance with this chapter.

B. Selection of textbooks by local school boards. Local school boards shall adopt procedures for the selection of textbooks. These procedures shall include, at a minimum, the following:

1. Appointment of an evaluation committee by the local school board to review and evaluate textbooks in one or more of the subject areas.

2. Notice to parents that textbooks under consideration for approval will be listed on the school division's website and made available at designated locations for review by any interested citizens. Provisions shall be made for those reviewing such textbooks to present their comments and observations, if any, to the school board through locally approved procedures. Actions that are necessary to assure appropriate consideration of citizen comments and observations shall be taken and adequate time for such consideration shall be allowed.

3. Use of selection criteria that has been approved by the local school board.

C. Purchasing Board of Education approved textbooks.

1. Local school divisions shall purchase textbooks approved by the Board of Education directly from the publishers of the textbooks by either entering into written term contracts or issuing purchase orders on an as-needed basis in accordance with § 22.1-241 of the Code of Virginia.

2. Such written comments or purchase orders shall be exempt from the Virginia Public Procurement Act (§ 2.2-4300 et seq. of the Code of Virginia) and from any local adopted regulations or procedures.

D. Purchasing non-Board of Education approved textbooks.

Local school divisions shall purchase non-Board of Education approved textbooks by either entering into written contracts or issuing purchase orders on an as-needed basis in accordance with locally adopted procurement procedures or regulations that contain requirements for competitive purchasing or the Virginia Public Procurement Act (§ 2.2-4300 et seq. of the Code of Virginia).

E. Certifications.

1. The division superintendent and chairperson of the local school board shall annually certify to the Virginia Department of Education that:

a. All textbooks were selected and purchased in accordance with this chapter; and

b. The price paid for each textbook was not in excess of that charged elsewhere in the United States in accordance with § 22.1-241 of the Code of Virginia.

2. The certification shall include a list of all textbooks adopted by the local school board.