The Devil is in the Details

Rulemaking: The Devil is in the Details (Part II – State Devils)


Once a bill becomes law, agencies begin the rulemaking process that details how the law will be implemented. This essay is the second of two that looks at how the rule-making process can be manipulated. The first detailed the rulemaking process used by the US Department of Education.

The phrase, “The devil is in the details,” applies to both the federal and the state rule-making process. When “Every Child Succeeds Act” or ESSA was signed into law in 2015, it set off a series of events. One was the federal rulemaking process described in Part I of this series.

Let’s take a look at how the series of events plays out at the state level and how citizens can get involved. Citizens can get involved at three different points. The first is when legislation is being proposed. Once the law is passed, the rule-making step allows for input. This is the next step and it is where things get dicey as the agency may make it difficult to submit input OR may ignore input.

Although state law requires notification of proposed rulemaking through a Legal Notice that is published in local newspapers, I have found this method is not effective at keeping citizens informed as print readership is declining. For that reason I encouraged interested citizens to check for updates to the Administrative bulletin on a regular basis and to spread that information to their respective groups. After the public comment period closes, the agency considers the information received regarding the proposed rule.

As Representative Heath Scott advises in her explanation of the rule-making process “If you do not like the rule, you can send in a comment or pick up the phone and call the agency to discuss. Another option is to attend a public hearing on the proposed change. Many rules will have the times and locations of public hearings listed. If you do not see a location close to your home to attend, you can petition the agency to visit your town or county for a public hearing.”

At this time the deadlines to comment on proposed rules have passed. The latest date to comment was June 15, 2016. Idaho’s State Board of Education has already proposed rules for bills passed during the 2016 session. Now what? Suppose you’ve missed the window of opportunity to comment OR the agency has ignored your input and that of many others.

This is where the third step comes in. Idaho requires that rules proposed by an agency be approved. These will come up for approval in the 2017 session. Know that in Idaho only one body needs to approve the proposed rules. I stress that because many Idaho education activists have learned the hard and painful lesson that this is how we lose local control. In fact, it’s how Idaho came to have Common Core. It happened late one January afternoon when Senator Winder made a motion and Senator Mortimer seconded to approve Docket 08-0203-1003. On January 24, 2011 the Senate Education Committee unanimously approved the Common Core Standards.

What’s on the docket for 2017?

We will be seeing Docket No. 08-0203-1608 which will address how Idaho’s assessment program will meet ESSA. The State Board of Education’s Accountability Oversight Committee and its members have been working since early 2016 to formulate a plan

Will Idahoans see the same behavior from our SBOE as we’ve seen from the US DoE? That is will we have to demand the draft regulations be scrapped or tell our legislators they must act to rein in SBOE? Will Idaho’s response also violate the letter and spirit of ESSA?

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