Many consider Arizona an example of localized control over public education – government schooling – with much of the authority over your children’s education vested in your district’s elected governing board members. It is on those boards that so many parents in Arizona have focused their attention, questions and concerns lately, while apparently being unaware and unconcerned of the antics of the unelected State Board of Education (SBE).
However, your local school board only has the authority vested in it by the legislature AND the policies and rules contrived by the State Board of Education. The State Board of Education over the past few years has been completely derailed but no one with “authority” over the SBE seems to care; not Governor Ducey, not the Legislature.
As a matter of fact, the Legislature has been granting ever-increasing authority over your children’s education to this unelected board. Despite the fact that for over a year, a majority of the SBE members’ terms have been expired, the board’s impact and authority over your children’s education is ever growing. All while acting out of compliance with statute.
Arizona law, ARS 38-211(B), is very explicit about the process for replacing members whose terms expire during a legislative session, which is the case with all eight expired terms.
“…the governor shall during such session nominate a person who meets the requirements of law for such office and shall promptly transmit the nomination to the president of the senate.” [Emphasis mine.] This was not the case in six of the eight expired seats. Ducey ignored 2 seats for over 2 years: 4 seats for over a year before nominating replacements.
Finally on March 21st Ducey announced the names of replacements for 7 of the 8 expired board seats.
On March 28th the seven new members took their seats; one member whose term is expired remained on the board.
These unconfirmed members considered action at that meeting including but not limited to disciplinary actions against, suspending or revoking teachers’ certifications and denying parents eligibility to Empowerment Scholarship Accounts.
But ARS 38-211(B) likewise is very clear about who should be “discharging” the duties of the SBE under such circumstances. “If the incumbent is capable of continuing to serve until his successor has qualified, a nominee to that position shall not assume and discharge the duties of the office, pending senate confirmation.” 38-211 continues that only “If the incumbent is unable to continue to discharge the duties of office, the nominee shall assume and discharge the duties of the office pending senate confirmation.”
And yet every single unconfirmed member assumed the duties without Senate confirmation. Are we to believe that none of the seven members whose terms have expired were “capable” of continuing to serve, as required by law, until their replacements were legally confirmed.
While the posted “highlights” of the March 28th meeting indicate that “the board welcomes seven new board members” (which they are not but I digress) and “wishes the departing members well” there is absolutely no indication of the new members taking their seats due to any inability on the part of “departing members” to serve until the nominees are lawfully confirmed.
And while it is outrageous that Ducey has ignored this situation for so long and board members whose terms are long expired should continue to make decisions, policies, rules (the SBE has over 160 double column pages of column administrative rules but again I digress) and enter into contractual agreements that appears to be the only legal option.
On March 29th the nominations were finally read on the Senate floor and Senate President Fann assigned it to the Senate Education committee. Interesting given the fact that virtually all committee meetings have ended; the Senate Ed committee has no pending agendas. We are left to wonder if the nominations were “promptly” transmitted for consideration during the March 22nd meeting of Senate Ed. Or will the confirmations be ignored until after session when Ducey can appoint them until the next session?
By administrative rule R-7-2-101-6 board VP Dr. Daniel Corr (whose term serving as in the Community College President member expired 1/18/2021 has been extended apparently without Senate confirmation, until 1/20/25 according the SBE website) becomes president. But this raises the question if, in fact, board members can serve more than a single 4-year term. ARS 15-201 is concise “The governor shall appoint each member… pursuant to section 38-211 for a term of four years …” Statute is silent on members serving multiple terms – except for the SPI (allowed with term in office) and state university president (not allowed).
Finally, this brings us to the lay member positions on the State Board of Ed. By definition a “lay member” should be someone without specialized knowledge or employment in the profession a board oversees – i.e., John or Jane Q. Public. Dare I suggest parents??? But that has not been the case, and the lay members have become political favors paid off by the governor.
In recent years the Legislature has been turning an ever-increasing amount of authority over education policy to the unelected, unaccountable State Board of Ed. This unelected board can and has easily undermined and thwarted the intent of the voters who elect the state superintendent and their local governing board members.
It is imperative, in light of the ever-increasing authority of the SBE over education without accountability, and the flagrant disregard of statute with regards to nominations, confirmations and term expirations, that voters amend the constitution to remake the SBE into an elected board answerable to the people over whom they are currently reigning.
But considering the egregious disregard of statute on the part of the governor, the legislature; the lack of concern on the part of the superintendent, the unions, the numerous education professional associations, the legions of education not-for-profits, the administrators and teachers, school board members and the deafening silence and inattention on the part of parents and taxpayers, I can’t help but borrow the words of John Adam’s (William Daniels) song from 1776 The Musical: Is anybody there? Does anybody care?