Title of Regulation: 8VAC20-720. Regulations Governing Local School Boards and School Divisions (amending 8VAC20-720-170).

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

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: March 12, 2014.

Effective Date: March 27, 2014.

Agency Contact: Anne Wescott, Assistant Superintendent for Policy and Communication, Department of Education, P.O. Box 2120, Richmond, VA 23218, telephone (804) 225-2403, or email anne.wescott@doe.virginia.gov.

Basis: Article VIII of the Constitution of Virginia authorizes the Board of Education to approve textbooks and instructional aids and materials for use in courses in the public schools of the Commonwealth. Section 22.1-16 of the Code of Virginia authorizes the Board of Education to 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.

Purpose: On September 22, 2011, the Board of Education adopted Guidelines for Local Textbook Approval to assist school divisions as they review and approve textbooks at the local level. The guidelines encourage local school boards that opt to use a textbook that has not been approved by the Board of Education to conduct a local textbook review that includes components similar to the state level review. Revisions to the Regulations Governing Local School Boards and School Divisions include provisions of the Board of Education's Guidelines for Local Textbook Approval, thus changing them from optional guidelines to required regulations. Amending the regulations will impact public welfare in that textbooks not approved by the Board of Education will now undergo a similar review to ensure quality and accurate information. The amendments will have no impact on public health and safety.

Rationale for Using Fast-Track Process: The Board of Education is adding to existing regulations content from guidelines it has already reviewed and approved. Therefore, the department does not expect this addition to be controversial.

Substance: The changes in the regulations would require local school boards that opt to use a textbook that has not been approved by the Board of Education to conduct a local textbook review that includes components similar to the state level review. Such components include a correlation with the Standards of Learning for the particular subject area, if they exist, and a review of strengths and weaknesses in instructional planning and support. Additionally, the publisher of the textbook must certify the accuracy of the content of the textbook and sign an agreement to correct all factual and editing errors found in a textbook, at its expense. Finally, the publisher must certify that the books meet other requirements of the Code of Virginia related to textbooks.

Issues: The Regulations Governing Local School Boards and School Divisions set forth the requirements for local school boards and school divisions to review and approve instructional materials and textbooks. The primary advantage of the review of the regulations to the public, the department, and the Commonwealth is that they address the quality of materials used in Virginia's classrooms and will ensure textbooks not approved by the Board of Education will still undergo a review of their accuracy and correlation to the Standards of Learning. Additionally, local school divisions will receive written agreement from publishers that the publishers will correct errors at no cost to the division. While this is advantageous to school divisions, it may be disadvantageous to publishers. The amendment may limit the choice of textbooks for local school divisions if publishers are unwilling to sign such agreements.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. On September 22, 2011, the Virginia Board of Education (Board) adopted Guidelines for Local Textbook Approval (Guidelines) to assist local school divisions as they review and approve textbooks at the local level. The Guidelines encourage local school boards that opt to use a textbook that has not been approved by the Board to conduct a local textbook review that includes components similar to the state level review. The Board proposes to add provisions of the Guidelines to these regulations, thus changing those provisions from optional guidelines to required regulations.

Result of Analysis. The proposed amendments are beneficial for some entities and moderately costly for others.

Estimated Economic Impact. The new proposed language includes the following concerning local school board selection of textbooks other than those approved by the Board:

"3. The publisher of such textbooks shall:

a. provide to the local school board a certification that the content of the textbook is accurate; and

b. sign an agreement with the local school board to correct all factual and editing errors found in a textbook, at its own expense."

Presumably a publisher seeking to sell textbooks to a local school board that had not been approved by the state Board would be willing to state in writing that the product they are selling is accurate. A written agreement that the publisher would at its own expense correct all factual and editing errors found in a textbook would be to the advantage of the local school board. A small school division would not normally have much negotiating leverage with a publisher. The backing of state law that the publisher must agree to correct errors would likely add negotiating leverage. Thus the proposal to add the new language to these regulations would be beneficial to local school divisions in that respect. The placing of the requirement in state law would commensurately reduce negotiating leverage for the publishers and would be commensurately disadvantageous.

If a local school board wished to use a textbook that has not been approved by the Board and the publisher refused to state in writing that it would at its own expense correct all factual and editing errors, then the local school division would not be able to use that textbook. So in this respect, the proposal to add the new language to these regulations could reduce choice for local school divisions.

Businesses and Entities Affected. The proposed amendments potentially affect the 132 public school divisions in the Commonwealth and textbook publishers. Approximately 20 publishing companies are listed as having one or more books on the list of textbooks approved by the Board of Education. There are numerous other publishing houses that may market their materials directly to local school divisions.

Localities Particularly Affected. The proposed regulations will affect all localities that opt to adopt textbooks that are not on the list of textbooks approved by the Board of Education.

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

Effects on the Use and Value of Private Property. Some publishers may lose some leverage in contracts with local school divisions. This may have a very small impact on their value.

Small Businesses: Costs and Other Effects. Some small textbook publishers may lose some negotiating leverage in contracts with local school divisions.

Small Businesses: Alternative Method that Minimizes Adverse Impact. There is no apparent alternative method that would reduce the potential small negative impact of reduced negotiating leverage for some small publishers, while still accomplishing the intended policy goal.

Real Estate Development Costs. The proposed amendments will not 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 14 (10). 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 Economic Impact Analysis: The agency concurs with the economic impact analysis completed by the Department of Planning and Budget.

Summary:

The amendments require local school boards that opt to use a textbook that has not been approved by the Board of Education to conduct a local textbook review that includes components similar to the state level review.

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 Board of Education 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 Board of Education provided the local school board selects such books in accordance with this chapter.

4. Contracts and purchase orders with publishers of textbooks approved by the board Board of Education for use in grades 6-12 shall allow for the purchase of printed textbooks, printed textbooks with electronic files, or electronic textbooks separate and apart from printed versions of the same textbook. Each local school board shall have the authority to purchase an assortment of textbooks in any of the three forms listed in this subdivision.

B. Selection Procedures for 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 evaluation committees by the local school board to review and evaluate textbooks in each 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.

3. Opportunities for those reviewing such textbooks to present their comments and observations, if any, to the local school board through locally approved procedures.

4. Procedures to ensure appropriate consideration of citizen comments and observations.

5. Selection criteria.

C. Local school board selection of textbooks other than those approved by the Board of Education.

1. The selection process for non-Board of Education approved textbooks is subject to the procedures outlined in subsection B of this section.

2. The selection process for such textbooks pertaining to Virginia Standards of Learning subjects shall include at the local level a correlation of the content to the Virginia Standards of Learning in the content area and an analysis of strengths and weaknesses of the textbook in terms of instructional planning and support.

3. The publisher of such textbooks shall:

a. Provide to the local school board a certification that the content of the textbook is accurate; and

b. Sign an agreement with the local school board to correct all factual and editing errors found in a textbook at its own expense.

D. 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 contracts or purchase orders shall be exempt from the Virginia Public Procurement Act (§ 2.2-4300 et seq. of the Code of Virginia).

D. E. Purchasing non-Board of Education approved textbooks. The purchase of textbooks other than those approved by the board Board of Education is not exempt from the Virginia Public Procurement Act.

E. F. Distribution of textbooks. Each local school board shall provide, free of charge, such textbooks required for courses of instruction for each child attending public schools.

F. G. 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 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.