Re: COSF Statement on Proposed Changes to Rule 2445.40 (Instructional Materials)

To: Robert Joey Wiseman, Jr., Director, Middle and Secondary Learning Services, West Virginia Department of Education

The Campaign for Our Shared Future (COSF) is writing to comment on the revision of Policy 2445.40 (Instructional Resources), issued by the West Virginia Department of Education on July 14, 2022. As a campaign dedicated to ensuring every child has access to an excellent K-12 education, inclusive of and accessible to all, we are committed to stopping harmful policy that threatens our children’s freedom to learn.

The legislation underlying the proposed rule was unnecessary and will cause untold harm to West Virginia’s students. Federal law, via the Protection of Pupil Rights Amendment (PPRA), already ensures that all parents have access to the materials used in their child's classroom—all they have to do is ask (1). The West Virginia General legislature’s ill-conceived decision to amend W. Va. Code § 18-5-27 was based on a fictional narrative that educators are teaching inappropriate concepts behind parents’ backs. The lack of clarity around implementation in the proposed rules, including the lack of safeguards for teachers in the complaint process, further exacerbates the level of potential harm to our children.

We believe the proposed rules fall short of providing sufficient guidance and clarity to educators and school staff—a harmful oversight that has already resulted in needless inventories of classroom libraries and will undoubtedly continue to sow confusion, chaos, and censorship (2). As this comment will explain, the Department must propose detailed language that institutes fair and transparent complaint processes; safeguards educators from political witch hunts; and prevents the politicization of the state’s public schools. The Department must continue to function as a much-needed non-partisan policy-making body, especially amid the Legislature’s continued effort to chip away at its autonomy (3). Yet the proposed changes to Policy 2445.40 only double down on the legislature’s fictional narrative.

It is our sincere hope that the Department will prioritize clarity, transparency, and stakeholder engagement in its revision and implementation of Policy 2445. To this end, in addition to the changes outlined below, a public hearing is necessary to ensure parents, young people, and educators have an opportunity to give input on the proposed rules and any additional guidance the Department develops on the matter. COSF is disappointed in the proposed language and will continue to monitor the development, implementation, and impact of this policy on the availability of high-quality education for all children.

The proposed rule has no time limits on when a complaint can be dredged up. Under the current proposal, an individual can file a complaint months, if not years, after an alleged violation occurs. At a minimum, the Department ought to establish a reasonable window for accusations to be made. We recommend that complaints be filed within 10 business days of the alleged violation. This window will ensure details of an alleged violation are not forgotten and that the potential influence by outside parties is limited.

Further, the proposed rules are unclear on whether a teacher is required to meet with eligible individuals within 10 business days. One reading of the rules is that teachers have 10 business days to “schedule”—that is, set a date—for the inspection, but such an inspection can take place after the 10-day window. We recommend this reading, which requires that teachers, within 10 business days, set a date for a meeting that can occur at a later time, including during regularly scheduled parent-teacher conferences.

The proposed rule does nothing to protect a teacher from harassment by bad-faith actors. As written, an individual could submit dozens of complaints about a teacher⁠ over the same facts if they choose. We strongly recommend that the Department include language that expressly prohibits a complainant from filing multiple complaints based on the same facts and allegations. It is also common sense to place a limit on the number of complaints eligible individuals can submit to ensure this policy is not abused by a few bad-faith actors.

Nothing in the proposed rule prevents illegitimate complaints from being submitted and reported to the legislature. The proposed rules require yearly reports to the state legislature on the number of parent complaints filed—but not the nature or resolution of complaints. Reporting only the number of complaints filed would provide an unclear picture of the problem in local schools, considering that individuals could file illegitimate allegations both knowingly and unknowingly.

To alleviate this problem, the Department should propose language in the yearly report section requiring county superintendents to report on the nature and resolution of complaints filed. We also recommend that the Department require county superintendents to distinguish in their reports between substantiated and unsubstantiated complaints, with the former characterizing instances where a teacher was found to have affirmatively and intentionally broached provisions of Policy 2445.40.

Additionally, we recommend the Department expressly clarify that legitimate complaints under Policy 2445.40 include failing to schedule an appointment, failing to furnish a list of required books, or failing to explain how materials align with state standards if prompted. General complaints about the age-appropriateness or content of materials are not covered under proposed changes to Policy 2445.40.  In Tennessee, where a similar complaint system was instituted in 2021, rules expressly clarify that general complaints about the subject matter or age-appropriateness of materials are to be filed with the local school pursuant to the school’s locally adopted policy for addressing such complaints (4). We recommend that the Department heed this example.

Finally, educators deserve assurances that the legislature will not use the yearly report to target particular schools or teachers for political reasons. We cannot allow this to happen in West Virginia. To prevent the potential for personal or dangerous attacks on our schools or educators, the Department must add a provision to Policy 2445.40 that ensures all data reported by county superintendents are anonymized to protect students, teachers, and schools.

The proposed rules undermine fair investigations into complaints. Not only does the 7-day window for resolving complaints make fair investigations difficult, but it is also far from the norm. In Tennessee, superintendents are given sixty (60) calendar days after receiving a complaint to investigate and determine whether the allegation can be substantiated. At a minimum, the Department should enshrine minimum requirements for investigating complaints that call for documenting evidence and ensuring due process for teachers, including allowing teachers to appeal a resolution.

The lack of exceptions could result in teachers being reprimanded for exceptional circumstances. Currently, the proposed rules do not offer exceptions to the 10-day window for teachers who are sick, who have a family emergency, or who otherwise cannot find a common time to meet with families within the 10-day allotted period. The Department should allow the timeline to be extended upon approval from the school principal if exceptional circumstances can be appropriately documented.

The proposed rule does not prevent varying standards for teacher behavior county to county and school to school. The proposed rule does not articulate what constitutes a resolution of a complaint, ensuring no uniformity in the implementation of remedial actions across the state. Without guardrails, a teacher in one county could get a warning, while a teacher in the next county could get fired over similar facts. To address this, we recommend that the Department codify appropriate resolutions for substantiated complaints.

We appreciate the opportunity to submit this comment. If you have any questions, please contact us at info@campaignsharedfuture.org.

Sources

United States Department of Education, Student Privacy Office, Protection of Pupil Rights Amendment (PPRA), https://www.google.com/url?q=https://studentprivacy.ed.gov/sites/default/files/resource_document/file/20-0379.PPRA_508_0.pdf&sa=D&source=docs&ust=1658417837679302&usg=AOvVaw2oP6i74ToP2entZ9BeJ6YT

The Dominion Post, “Classroom libraries must be inventoried because of new law,”

https://www.dominionpost.com/2022/05/26/classroom-libraries-must-be-inventoried-because-of-new-law/

House Joint Resolution 102, https://www.wvlegislature.gov/Bill_Status/bills_text.cfm?billdoc=hjr102%20ENR.htm&yr=2022&sesstype=RS&i=102&houseorig=h&billtype=jr

Tennessee, Rules of the Department of Education, Chapter 0520-12-04, Prohibited Concepts in Instruction, https://publications.tnsosfiles.com/rules/0520/0520-12/0520-12-04.20211108.pdf