LB 245 (1992)
April 9, 1992
SPEAKER BAACK: LB 573 passes. We'll go to LB 245E.
CLERK: Mr. President, I have a motion on the desk. Senator Withem would move to return the bill for specific amendment.
SPEAKER BAACK: Senator Withem.
SENATOR WITHEM: Yes, Mr. Speaker, members of the body. Give Patrick a little bit of a break here from reading, and let me just talk a little bit about 245. 1 can remember two or three years ago I had a bill dealing with school accountability that we'd heard a lot of criticism from individuals out in districts without a lot of focus, and led a lot of members of the body to have enough questions about the bill that they were not supportive on Final Reading. The bill did pass, but it was ultimately vetoed. So I don't want to make the mistake of not clarifying some points for those of you who may still have concerns. I know I talked to a lot of members of the body, and frankly, I appreciate very much your confidence in this measure, when I'm able to correct some of the misinterpretations that you've heard from some individuals within the state. But I want to make one last record of what the bill does, what the bill does not do, and other items for your consideration. And also, hopefully, hopefully, direction for the commission so, if for some crazy reason the Governor would appoint a group of people to this commission that would want to take it in a direction where the bill does not intend, we would establish this record of what this bill is to do, and what it is not to do. First of all, what it is not, because I know a lot of the phone calls you have received bring up something called the NAEP test, that's the National Assessment of Educational Progress test, it's a...it's a federal project that's been going on for a number of years. Some individuals that have seen the NAEP test have concerns that some of the questions that are asked on this go 'beyond academics and into the realm of values and attitudes. I've read some of the NAEP questions, I don't share that concern, necessarily. But that is really irrelevant because this bill does not establish the NAEP test for Nebraska. The facts are Commissioner of Education, the State Board of Education tomorrow, if they'd want to, without LB 245, could mandate the NAEP test, they have the power to mandate a standardized test within the state, they already have that power, they've chosen not to exercise it. This does not
establish the NAEP test. It establishes a group of citizens in the state who will determine what it is we want kids to learn and a way of assessing what those children learn. Secondly, it is ... has absolutely nothing to do with psychological or psychiatric evaluation. I know that was a concern that has been mentioned to you in some of the phone calls. Has absolutely nothing to do with psychological or psychiatric assessment. Again, there are people in the state that think the schools should not be dealing with students values, attitudes, personalities, should merely be dealing with factual information. Regardless of what your view is on that dichotomy of opinions, this bill has nothing to do with psychological assessment or... or psychiatric assessment. Third, there's no personal information that will be gathered. There's a concern that the state will become a big brother, will create a data base in which they identify each of the 200,000 students in the State of Nebraska and establish a record that will follow them through their lives. This is not to be personalized information, it is to be aggregate information. it's information for state policymakers, for local policymakers. How well do the kids in such and such an area in aggregate do in math? How well do they do in communication skills? How well do they do in history? It is not a values oriented. There was a time in the development, in the midsixties, midseventies when there was a push that the schools ought to be getting in the area of...subject area known as values clarification. And the goal of that was to have young people examine what their values are, bring those into question, lively debates, that was the time when some parents were concerned because kids were coming home with exercises to debate whether or not placing an elderly individual on an ice flow, to die, when they reach a certain age, if that's moral or immoral, and all that kind of' stuff. You know, when I was teaching in the classroom some of that stuff was used and 1, personally, began to question whether that's the appropriate sort of thing for a classroom to be dealing with. This bill has absolutely nothing to do with that. Nor does this bill establish a state curriculum. It's very clear, it's very clear that the intent of this bill is simply to say what skills we want young people to have when they come out of school in academic areas, and to develop methodologies of assessing whether our kids, in the aggregate, have those skills. flow children receive those skills is still in the hands of the local school boards. I could go on with more and more charges about what this bill does, though I think it's important that we establish* I for the record, what it does not do. Second point
I'd like to make is it's been a frustrating experience for me, as it has for many of you, because we receive these phone calls, and all of them purport to be just individual parents who happen to be passing by the Capitol and saw a copy of LB 245 and read it and they're real concerned about it. Obviously, it's an organized effort when as many of you receive the number of phone calls that you have. But unlike other organized efforts, we have not had the opportunity to sit down with people and say, okay, what are your real concerns and what can we do to address them. Earlier this week or last part of last week, I don't know, I did come across a draft of some amendments, they were not brought to me by anybody saying, here, react to these, they were brought in. Arid what they purport to do is to add to the bill certain clarifications of primarily the sort of things that I just got through saying the bill doesn't do. Unfortunately, the drafting of them goes much further than I would like to go in it. Unfortunately, nobody came in and said, what can we do with these amendments. I'm just saying here to the individuals out there that may have a concern, if, after we pass 245, keep in mind this is a lengthy process that's being established, some emissaries from this group want to come in and sit down around the table and say, this is what we'd like to have in the bill to guarantee that our negative concerns won't happen, I'll be happy to visit with them. And if we can reach agreement on the proper language to guarantee these things that we've talked about before don't happen, I'll be happy to introduce a bill next year to deal with those concerns. Third, it is critical, this bill is critical to establish a concept known as accountability in public education. Public education is under attack, some of it justified, some of it not justified, some of it applicable to Nebraska, some of it nonapplicable to Nebraska. Public education, though, needs some changes, needs some improvement. We spent over a billion dollars in Nebraska, in elementary-secondary education, a billion point two dollars. We have precious little information, state policymakers, as to how effective that is. We hear occasionally, we need to do a better job of teaching math. We, as state policymakers, really don't know what math skills our students have, what math skills they don't have. It's critical that we develop that information. This will be developed through a Nebraska citizens panel, that will first say what they want students to do; second, they will determine how ... how we test whether those kids have that. What we do with that information afterwards then will be up to future policymakers. Nothing triggers. We don't establish a state curriculum, none of that sort of thing happens. Final point 1
want to make, and this is one that's been lost because 245 was an early, early bill, I think it might have been the first one on the agenda this year. It's been sitting on Final Reading for months, literally for months. It is... a lot of you have forgotten what went into it. One very important thing that happened in 245, that...that I think is pretty important to do, and I think Senator Wickersham thinks is critical to do, and that is it reenacts a statute we passed last year, LB 511 that we passed last year. That was a bill that made very many needed changes in our affiliation process. Most of you have, within your school ... your legislative district, Class I school districts that are now going through this painful process of affiliating, deciding who they're going to pay their high school taxes to, who they're going to join in with.
SPEAKER BAACK: One minute.
SENATOR WITHEM: We made those changes last year in LB 511 to make that process workable. LB 511 was challenged in court. The Supreme Court did not make a rule... ruled that the provision that was challenged, the Beutler amendment was probably valid and appropriate. But it did raise some issues as to the methodology of passing 511 might have some questions. Senator Wickersham added the contents of 511 to this bill to reenact it. If it doesn't get reenacted, some of your school districts going through affiliation may have some problems, in Senator Wickersham's opinion. I'm sorry I took way too long. Senator Wickersham, if you want to make a comment on that last point I'd yield the previous few seconds I have left to you.
SPEAKER BAACK: Senator Wickersham.
SENATOR WICKERSHAM: Thank you, Senator Withem. I will try to be brief. I think lie has touched on the matter that was of a considerable concern to me and primary reason why the bill was 138 pages long. But the Zyburo %,,-.Education case was decided late last year, the Supreme Court did spend some time, a couple of paragraphs, what I would characterize as chastising us for the process we used last year. LB 719 was a bill, you remember last year, that started out as the education bill. Then as we neared the end of the session we took the provisions out of 719 and amended them into 511. The Supreme Court suggested in what I can . ...
SPEAKER BAACK: Tine. Senator Moore, your light is on.
SENATOR MOORE: Just a quick question for Senator Withem, if he'd yield.
SPEAKER BAACK: Senator Withem, would you respond, please.
SENATOR WITHEM: Certainly would.
SENATOR MOORE: Senator Withem, on the bottom of page 6 and the top of page 7, when it says this commission... the system shall be complete by '96. My concern is, I mean, I guess one...some could argue when they say the system is complete, that means it's operating by '96. 1 guess obviously my concern is, and I've said a number of times this bill doesn't write anything in the statutes, it creates the commission and they come up with ideas, and a report. We have to come back in and reenact anything before it happens. My concern is that language in no way means that that system is going to be complete and going to go without ever coming back to us. Because I mean some would argue...some could argue that means a system is complete means a system is working by '96, regardless of whatever else we do. And this bill is not self-executing, it must come back to us. In the remainder of my time you have to ease my fears.
SENATOR WITHEM: Yeah. Yeah, it is self-executing in the sense that they will complete their work. Their work, though, is to develop the ... the learner outcomes and the assessment methodologies It is my clear understanding of the legislation that to ... to implement their recommendations, their recommendations will go to two places, one, the elected Legislature, which any statutory changes will have to go through this Legislature, at which time there will be plenty of time for citizen outcome; or, two, State Department of Education, State Board of Education is empowered to make some types of assessment requirements. But again that's an elected body that would have to act affirmatively on these recommendations before they would go into effect. Does that answer your question? If not, well your time is back.
SENATOR MOORE: The ... the... I guess the second thing, as far as the Board of Education, I mean could they theoretically... could they ... does this bill give them the power to enact whatever that commission does?
SENATOR WITHEM: 110, they have...they have that power. They
have the power, tomorrow, if they would wish to, to provide whatever assessment methodology they would want.
SENATOR MOORE: They have that existing power. The bill doesn't give them that.
SENATOR WITHEM: That's right. This bill does not grant that to them.
SENATOR MOORE: And is ... is ... I mean, last question, Senator Withem, but if we're going to, and if you don't want to answer that's fine, too. But if this commission comes back with a whole new way of assessing kids, would it be your opinion that it would be wise for the Department of Education to go it alone, so to speak, without some input from the Legislature?
SENATOR WITHEM: Oh, I think probably it would be a good idea. And that's just one of those ideas that if we want to sit down over the interim and build in some safeguards, that would be a perfectly acceptable safeguard, as far as I'm concerned, in terms of some sort of return to the Legislature with reports and some affirmative action by the Legislature, where appropriate, to put this into place. I'm not arguing whether... I was trying to give you a factual answer of what the facts currently are. As far as what should happen, if that's your point, I would agree with you that it would probably be a good idea.
SENATOR MOORE: Thank you, Senator Withem. And you've eased some of my concerns. You almost raised a few more questions, unfortunately. But nevertheless, I think it's clear that this bill, by itself, is not the enemy for many of those people. But the result of this commission may well do that, and we don't know that yet. 1, myself, have, for years, been of the opinion and share concerns of Senator Withem, we must create some sort of assessment measurement to measure our progress in schools. And I want to continue doing that. I want to go down that path. I share the concerns of many of the opponents of LB 245. And if some of the things they're talking about come true, I would be ardently opposed to it. Senator Withem, given your... I would like to work with you over the summer...
SPEAKER BAACK: One minute.
SENATOR MOORE: ... summer to make sure any safeguards, that nothing happens by itself and I'm confident it will not.
SPEAKER BAACK: Thank you, Senator Moore. Senator Wickersham.
SENATOR WICKERSHAM: Thank you, Mr. Speaker. I'll try to be brief because I think maybe we've had almost enough discussion about this. But just to continue, very briefly, if you remember 719 was originally the education bill last year. We took the provisions out of 719 and put them in 511. That process was called into question by the Supreme Court, reasoning that the bill had not been before the body for five days. I was concerned enough about that opinion and the language in the opinion to ask Senator Withem if we could not amend the provisions of 511, from last year, on to 245. I'm grateful that he agreed to do so, because whether or not you like 511 from last year, many people have made decisions based on 511. LB 511 contained many provisions that were good and essential. And, in my opinion, we simply could not risk any potential constitutional challenges to that piece of legislation. So, hopefully, by reenacting it this year we have cleared up all of those problems and, if for no other reason, I believe that 245 deserves your vote.
SPEAKER BAACK: Thank you, Senator Wickersham. Senator Schmit.
SENATOR SCHMIT: Mr. Speaker, I have been interested in the comments that have been made here and my interest has been heightened by those comments. And in order that I not miss anything, and being not as fast as some of you, would you ... I'd like to ask the Clerk to read this bill slowly and distinctly, and loudly and clearly so that I don't miss anything. And I will promise to remain in my seat during the entire time. (Laughter.)
SPEAKER BAACK: Senator Schmit, I think he has been reading as distinctly as he can, up to this point. (Laughter.) So, I think we're out of luck.
SENATOR SCHMIT: (Mike not turned on immediately.) ... can get and I missed a couple words the last bill, so I wanted to make sure.
SPEAKER BAACK: Senator Withem.
SENATOR WITHEM: Thank you, members of the body, for indulging me here. I would...would have hoped, if there would have been
any concerns other than those that Senator Moore expressed, and I appreciate him raising that question, I certainly... if there does need to be, before certain actions take place, affirmative action by the Legislature, that might be a good change to ... to enact for next year, and I'd be certainly happy to talk with him and others over the summer. Appreciate ... I ... I ... I ... I hope what I hear is the silence on this issue indicates that... that there aren't a lot of concerns, or a lot of questions about the bill. I appreciate the body for indulging me here, and I want you to remember one of the things that Senator Wickersham said as you're sitting here, half an hour, forty-five minutes later, being ... wondering when this bill will be over, the length of the bill is Senator Wickersham's responsibility. This was a short bill before he came along. So, thank you all very much. I withdraw the amendment.
SPEAKER BAACK: The motion is withdrawn. Mr. Clerk.
CLERK: (Read LB 245 on Final Reading.)
SPEAKER BAACK: I would like to ask the members to please return to your seats and check in, if you would please, before we take a vote on this. Would you please return to your seats and check in. Members, please check in. Would you please, members, please check in. Members, please check in. All members are now checked in. All provisions of law relative to procedure having been complied with, the question is, shall LB 245, with the emergency clause attached, pass? All those in favor vote aye, opposed vote no. [lave you all voted? Have you all voted? Have you all voted? Record, Mr. Clerk.
CLERK: (Read record vote as found on page 2186 of the Legislative Journal.) 30 ayes, 13 nays, 2 present and not voting, 4 excused and not voting.
SPEAKER BAACK: LB 245 does not pass with the emergency clause.
CLERK: Mr. President, I have a motion on the desk. Senator Bernard-Stevens would move to reconsider the vote of LB 245 with the emergency clause Attached, Mr. President.
SPEAKER BAACK: Senator Bernard-Stevens.
SENATOR BERNARD-STEVENS: Thank you, Mr. President. Mr. Speaker, members of the body, I voted no for the purpose, so
I could reconsider... or make a motion to reconsider. I'm not going to speak very long on it. My thoughts are the following. I think many of the no's, I suspect, were still on the 245. My concerns are not necessarily on 245 right now, because that bill would... will pass, there's no question about that. It only needs 25. LB 245 will become law. My concerns a little bit are on Senator Wickersham's 511, which technically is in the bill. My understanding is it would be much ... it would behoove the body to ... to be able to institute that with the emergency clause. So, I simply would say since the bill is going to become la w, with the 31 technical votes that would have been there, I would ask the body to ... to allow it to pass with the emergency clause, so it can be in ... in place at the time that it should be. And I'd yield whatever time I have to either Senator Withem or Senator Wickersham, otherwise we can move on. Senator Wickersham, do you need some ...
SPEAKER BAACK: Senator Wickersham.
SENATOR WICKERSHAM: I simply want to second what Senator Bernard-Stevens said. It is necessary that the bill have the emergency clause on it due to the reenactment of LB 511. That is due... that is necessary for two reasons. First, LB 511 had some appropriations in it. And, secondly, we need to ratify the acts that school districts have already undertaken pursuant to 511, expecting it to be constitutional. We cannot allow them, in my opinion, to remain in limbo. We need to ratify what they have done. We need to go on and make sure that they have a firm base to continue to make decisions. So the emergency clause is necessary for that purpose. And, yes, I will stop talking, Senator Conway.
SPEAKER BAACK: Senator Withem.
SENATOR WITHEM: Yes, Mr. Speaker, members of the body. I ... I'm looking at the bill. I rise in some ambivalence about the emergency clause. As I'm reading the 245 portion of the bill, which is really the first 7 pages, there's ... there's really nothing in that provision that requires the emergency clause. It appoints a commission that has six years to complete its work. And (laughter). And...and I ... and so you're not really .... I'm Sorry. I sometimes try to be funny. I wasn't really trying to be funny then, but that does make some sense. They will have six years to complete their work, so three months probably won't make that much difference to them. So, I don't
think the emergency clause is here as a result of the ... the Accountability Commission work. But I do agree that it is probably necessary, if you buy Senator Wickersham's argument, which we apparently do, that we do need to reenact 511 to ... which was a bill last year dealing with affiliation of school districts. If we do need to reenact that, we probably should get it back into statute as quickly as we can so that if the school districts that are going through these affiliation processes, up in, you know, Senator Lamb's district and out around Senator Wickersham's district, Senator Schellpeper's district, see If I can' name any other names of people that voted no on this who probably, for the best interest of the people in their district, should try to get the emergency clause into effect. The reversing of a ... a couple people reversing their vote and giving a couple of votes for the E clause would not change anything at all about the Accountability Commission. But it would give us our assurance that the affiliation bill is in place as it should properly be. So, I would urge you to support the reconsideration motion.
SPEAKER BAACK: Thank you, Senator Withem. Senator Schmit. Senator Hall, did you wish to address?
SENATOR HALL: Mr. Speaker, this is, in all seriousness, but just out of curiosity, what is LB 511? I opened the bill book (laughter) and it doesn't... it isn't in the Final Reading book, it isn't in the green copy book. I show 510 and 512, at least in my...and I cannot find it. And I ...
SPEAKER BAACK: Senator Hall, that was last year's bill.
SENATOR HALL: And last year's bills are in these books? Is that correct?
SPEAKER BAACK: Yes, but to find the contents of 511 you have to look at LB 719. (Laughter.)
SENATOR HALL: And, Mr. Speaker, that's where I made my mistake. (Laughter.) I'm sorry.
SPEAKER BAACK: Senator Withem.
SENATOR WITHEM: Yes, yes, Mr. Speaker, who is on first? Can you ... can you ... (laughter). Yeah, let me...I thought we tried to ... to explain that, but I ... and I know people come and go and
the full history of this is several years ago we passed a bill mandating that all Class I school districts had to either consolidate with neighboring districts, or they had to go through a process of affiliation. We passed that bill several years ago. And when we passed it we made some mistakes in the bill. Last year we introduced LB 719, which is a bill we just acted on the other day. Originally, 719 dealt with school affiliation, making necessary corrections in that bill. The last five days of the session, last year, because, I know this is very uncharacteristic of Senator Lamb, but he got nervous as to whether we would get to 719, so he offered the contents of 719 to LB 511. And I know it's uncharacteristic, it never happened again with Senator Lamb getting nervous and trying to leapfrog his priority bill onto another one, but that was the process we went through. And also on LB 511, that was passed last year, Senator Beutler offered an amendment dealing with a teacher dismissal. The school district that was trying to dismiss this- teacher did not like what Senator Beutler put in the bill. They challenged the constitutionality of 511. Went to the Supreme Court. What the Supreme Court said, in laymen's terms, was the teacher that *.s wanting due process already had that on pre-existing law, he really didn't need 511, so they weren't going to run on 511. But if they were going to rule on 511, they might bring into question this whole thing of the ... the...the flip-flopping of the bill and whether it had been before the Legislature the appropriate five days. And Senator Wickersham read that opinion, he has a lot of Class I school districts in his hand. He said, holy cow, or words to that effect that Senator Wickersham might use, this is ... could cause problems if somebody wanted to challenge affiliation, could cause problems, so we probably ought to reenact the contents of 511. He offered those as an amendment to 245. And that's how 719 became 511, is now becoming 245. Perfectly clear, right? Okay. With that, that is ... that is why we need to reenact this bill with the emergency clause.
SPEAKER BAACK: Senator Schmit.
SENATOR SCHMIT: Well, Senator Withem, I believe you probably had 44 or 45 votes before you explained the bill before Final Reading. (Laughter.) You got 30 now. Seems to me like you're trying for 25. I suggest we ought to vote and see what you got left. (Laughter.)
SPEAKER BAACK: Thank you, Senator Schmit. Senator Lamb.
SENATOR LAMB: Yes, Mr. President, members. The explanation has been made, and it's correct that Senator Withem is sort of nervous. You've noticed the last couple of days he's been running around with this railroad bill, trying to hook it onto everybody's bill in the...in the ... on the body. But three months, I don't think, is going to make any difference, because I don't see that the court is going to move that fast. I don't think it's a real problem, and so I ... I don't think the arguments are that valid.
SPEAKER BAACK: Senator Chambers.
SENATOR CHAMBERS: Mr. Speaker, members of the Legislature, since this may be the last time I'll speak during this session, I would just like to say that (applause). I would just like to say, and after I say this you might be extra glad that I won't speak, I'm glad that Senator Withem broke the silence of the Lamb.
SPEAKER BAACK: Senator Rod Johnson.
SENATOR R. JOHNSON: Question.
SPEAKER BAACK: That won't be necessary. Yours is the last light on. Do-you wish to close on your motion to reconsider? Senator Bernard-Stevens, do you wish to close? We will now vote on the motion to reconsider. And I might remind the body, this takes 33 votes to reconsider. All those in favor -vote aye, opposed vote no. Record, Mr. Clerk.
CLERK: 34 ayes, 5 nays, Mr. President, on the motion to reconsider the vote on Final Reading with the emergency clause attached.
SPEAKER BAACK: The motion to reconsider is successful. We will now revote on LB 245 with the emergency clause. All those in favor vote aye, opposed vote no. Have you all voted? Record, Mr. Clerk.
CLERK: (Read record vote as found on page 2187 of the Legislative Journal.) 33 ayes, 10 nays, 2 present and not voting, 4 excused arid not voting, Mr. President.
SPEAKER BAACK: LB 245, with the emergency clause attached,
passes. We'll now go to LB 245A with the emergency clause.
CLERK: (Read LB 245A on Final Reading.)
SPEAKER BAACK: All provisions of law relative to procedure having been complied with, the question is, shall LB 245A, with the emergency clause attached, pass? All those in favor vote aye, opposed vote no. Record, Mr. Clerk.
CLERK: .(Read record vote as found on page 2188 of the Legislative Journal.) 34 ayes, 8 nays, 3 present and not voting, 4 excused and not voting, Mr. President.
SPEAKER BAACK: LB 245A, with the emergency clause attached, passes. Items for the record, Mr. Clerk.