Online education Attorney General opinion

Online Education – SCHOOLS: Telecommunications; Online Curriculum. Iowa Code § 256.7 (2012).
Dillon’s Rule would not prohibit the use of telecommunications for private companies to
deliver educational courses to studnts open-enrolled from other school districts as long as
all statutory requirements are met. (Miller and Pottorff to Courtney, State Senator,
3-12-12) #12-3-1

March 12, 2012

The Honorable Thomas G. Courtney
State Senator
State Capitol
L-O-C-A-L

Dear Senator Courtney:

Our office is in receipt of your letter dated February 10, 2012, in which you asked
that we issue an opinion on the legality of a program under which two Iowa school
districts have contracted with two different private, for-profit, out-of-state companies to
provide online classes. You have informed us that students are open enrolled in the
school districts for these online programs operated through the Cumberland, Anita,
Massena (CAM) community school district and the Clayton Ridge community school
district in Guttenberg. Further, you state that the school districts will receive full state
funding of $6,000 per pupil rather than $1,800 per pupil through the home school
assistance program (HSAP). You question the legality of the existing contracts with these
companies and ask that we opine on the authority of the school districts to have moved
forward with these programs without first obtaining the express authorization of the
General Assembly. We are limiting our response to your question concerning the
authority of the school districts to provide an online learning curriculum under existing
statutes and we express no opinion on any legislation being proposed by the Department
or by legislators.

In assessing the authority of school districts to enter into contracts for these online
programs we apply Dillon’s Rule. We have observed that “public school districts, as
creatures of statute, are not vested with home rule authority.” Both our opinions and
opinions of the Iowa courts have consistently held that schools are subject to Dillon’s
Rule, i.e., “the only powers which may be exercised by a school board are those expressly
conferred upon them by statute or necessarily implied from those express powers.” Op.
Atty. Gen. #00-2-4(L). See Sioux City Comm. Sch. Dist. v. Bd. of Pub. Instruction, 402
N.W.2d 739, 741 (Iowa 1987); Barnett v. Durant Comm. Sch. Dist, 249 N.W.2d 626, 627
(Iowa 1978); Silver Lake Consol Sch. Dist. v. Parker, 238 Iowa 984, 990, 29 N.W.2d

The Honorable Thomas G. Courtney
State Senator
Page 2

214, 217-18 (1947). With this principle in mind, we look to specific statutes for that
authority.

Statutory Framework

The Iowa General Assembly in 1987 did not directly grant authority to school
districts to use telecommunications to instruct students. Rather, it granted very broad
authority to the State Board of Education to give this authority to Iowa’s school districts.
Two sections of the Iowa Code are the source of this authority:

[T]he state board shall:

* * *

7. Adopt rules under chapter 17A for the use of telecommunications as an
instructional tool for students enrolled in kindergarten through grade twelve
and served by local school districts, accredited or approved nonpublic
schools, area education agencies, community colleges, institutions of higher
education under the state board of regents, and independent colleges and
universities in elementary and secondary school classes and courses. The
rules shall include but need not be limited to rules relating to programs,
educational policy, instructional practices, staff development, use of pilot
projects, curriculum monitoring, and the accessibility of licensed teachers.

a. When curriculum is provided by means of
telecommunications, it shall be taught by an appropriately
licensed teacher. The teacher shall either be present in the
classroom, or be present at the location at which the
curriculum delivered by means of telecommunications
originates.

b. The rules shall provide that when the curriculum is taught
by an appropriately licensed teacher at the location at which
the telecommunications originates, the curriculum received at
a remote site shall be under the supervision of a licensed
teacher. The licensed teacher at the originating site may
provide supervision of students at a remote site or the school
district in which the remote site is located may provide for

The Honorable Thomas G. Courtney-
State Senator
Page 3

supervision at the remote site if the school district deems it
necessary or if requested to do so by the licensed teacher at
the originating site. For the purposes of this subsection,
“supervision” means that the curriculum is monitored by a
licensed teacher and the teacher is accessible to the students
receiving the curriculum by means of telecommunications.

c. The state board shall establish an advisory committee to
make recommendations for rules required under this
subsection on the use of telecommunications as an
instructional tool. The committee shall be composed of
representatives from community colleges, area education
agencies, accredited or approved nonpublic schools, and local
school districts from various enrollment categories. The
representatives shall include board members, school
administrators, teachers, parents, students, and associations
interested in education.

d. For the purpose of the rules adopted by the state board,
telecommunications means narrowcast communications
through systems that are directed toward a narrowly defined
audience and includes interactive live communications.

8. Rules adopted under this section shall provide that telecommunications
shall not be used by school districts as the exclusive means to provide any
course which is required by the minimum educational standards for
accreditation.

Iowa Code § 256.7(7), (8) (2012). The grant of authority under subsection 7 is very broad.
It includes, without limitation, the “use of telecommunications as an instructional tool for
students enrolled in kindergarten through grade twelve.” Iowa Code § 256.7(7)
(emphasis added). The rules shall include rules relating to “programs, educational
policy, institutional practices, staff development, use of pilot projects, curriculum
monitoring, and the accessibility of licensed teachers.” Id.

The current rules are found in chapter 15 of the Department’s rules. See 281 Iowa
Admin. Code ch. 15. There are six rules on the use of telecommunications. The rules,
like the statutory language, are very broad-

The Honorable Thomas G. Courtney
State Senator
Page 4

Telecommunications may be employed as a means to deliver any course,
including a course required for accreditation by the department, provided it
is not the exclusive means of instructional delivery.

281 Iowa Admin. Code 15.4 (emphasis added). They require delivery through a live
interactive system that minimally allows one-way video and two-way audio
communications. 281 Iowa Admin. Code 15.3. Definitions of “exclusive” and
“nonexclusive” instruction turn on whether the instruction is with or without “any other
form of instructional delivery.” 281 Iowa Admin. Code 15.2. A teacher “appropriately
licensed and endorsed for the educational level and content area being taught shall be
present and responsible for the instructional program at the receiving site” if the teacher
presenting the material through telecommunications is not “appropriately licensed and
endorsed for the educational level and content area.” Teachers are required to receive
training regarding effective use of telecommunications prior to being assigned to deliver
instruction through telecommunications. 281 Iowa Admin. Code 15.5. School boards
utilizing telecommunications are required to adopt policies addressing the delivery of
instruction, course descriptions, and information regarding the teachers involved in the
instructional use of telecommunications at both the originating and receiving sites. 281
Iowa Admin. Code 15.6.

It could be argued that internet learning was not envisioned when the legislation
was passed in 1987 and that privatization of public elementary and secondary education is
such a significant step that new legislation is necessary. While these are significant
arguments, in our opinion they are outweighed by the clear and broad language of the
authorization in the statute.

Certain restrictions on the use of telecommunications, but not the scope, are
imposed by statute: first, the curriculum must be taught by an appropriately licensed
teacher; and, second, the curriculum received at the remote site must be under the
supervision of a licensed teacher, although the supervision at the remote site may be
provided by the licensed teacher at the originating site. The term “supervision” is
specifically defined to mean “the curriculum is monitored by a licensed teacher and the
teacher is accessible to the students receiving the curriculum by means of
telecommunications.” Functionally, this definition of “supervision” would require an
interactive program that allows direct communication between the teacher and the online
students.

The Honorable Thomas G. Courtney
State Senator
Page 5

In addition to these requirements, subsection 8 prohibits school districts from using
telecommunication “as the exclusive means to provide any course which is required by
the minimum educational standards for accreditation.” To construe “exclusive means”
for purposes of this prohibition, we give the term its “usual and ordinary meaning” and
“consider the object to be accomplished by the statute as well as the evils to be remedied”
in order to arrive at a “reasonable. . . construction which will best effect its purpose rather
than one which will defeat it . . . considering all parts of the statute together without
giving undue importance to any single or isolated portion.” Naumann v. Iowa Prop.
Assessment Appeal Bd., 791 N.W.2d 258, 262 (iowa 2010). When the term is not
specifically defined by the Legislature, we may look to the dictionary to define a term.
See IBP, Inc. v. Marker, 633 N.W.2d 322, 326 (Iowa 2001). The usual and ordinary
meaning of the term “exclusive” is “only.” Webster’s New World Dictionary 489 (2d ed.
1976). Accordingly, school districts are prohibited from using telecommunication as the
only means of providing any course required for accreditation.

Determining the meaning of the term “exclusive” does not resolve the full meaning
of subsection 8. Alternate constructions of subsection 8 are possible. The language could
mean that a school district could offer a required course through telecommunications as
long as the same course is also provided through a different form of instructional
delivery. Under this construction, a school district offering a required course solely
through telecommunications would be required to offer a second section of the same
course in a more traditional classroom setting. Alternatively, the language could mean
that school districts may use telecommunications as an instructional tool in the delivery of
a required course as long as other forms of instructional delivery are used when providing
that course to students. Under this alternative construction, a school district could satisfy
the statute by employing a mixture of delivery methods when offering required courses,
such as providing some parts of the course curriculum through telecommunications and
other parts in a more traditional classroom setting.

Either construction is plausible from the words used in subsection 8. However, it
is unlikely that the General Assembly intended this language to require school districts to
offer the same course through wholly different delivery methods. A benefit of
telecommunications for school districts is the ability to tap into the expertise of a
qualified teacher from a different district, area education agency, or college. The use of
telecommunications expands the range of course offerings and allows the pooling of
resources, particularly for rural school districts The first construction would severely
restrict the use of telecommunication as an instructional tool.

The Honorable Thomas G. Courtney
State Senator
Page 6

The second construction of subsection 8 also is consistent with the construction
given to this language by the Department. The rules state that “[telecommunications
may be employed as a means to deliver any course, including a course required for
accreditation by the department, provided it is not the exclusive means of instructional
delivery.” 281 Iowa Admin. Code 15.4. The rules define “exclusive instruction” and
“nonexclusive instruction.” 281 Iowa Admin. Code 15.2. “‘Exclusive instruction’ means
without the use of any other form of instructional delivery”; “‘nonexclusive instruction’
provides more than one means for interaction between teacher and student.” Id. These
defined terms are not precisely used in the rest of chapter 15. When combined with rule
15.4, the rules could be construed to mean that a course delivered through
telecommunications retains its eligibility as a course required for accreditation as long as
students have “more than one means” of interacting with teachers. When the rules were
adopted, the primary form of telecommunications delivery was likely an ICN room or the
equivalent, not the widespread Internet delivery available and more common today.

Written materials discussing “Online Schools” recently distributed by the
Department are more specific and explain that subsection 8 “does not mean that there may
be one section of physics (e.g.) offered traditionally and one section offered exclusively
online. The section offered online must have components of all courses offered taught
[sic] ‘on the ground.'” According to the Department, this explanation means that
components taught in the classroom must be included for the online class. For example,
if a physics class includes work in the laboratory facility of a school, the online class must
include a component of work in a laboratory as well. Under this interpretation, the online
class cannot be the “exclusive means” to provide this course “which is required by the
minimum educational standards for accreditation” insofar as additional components
would be necessary to make the online class equivalent to the classroom course.

Ordinarily, the Department’s interpretation of this language in subsection 8 would
be entitled to deference. 1 A court will defer to the agency when it is “firmly convinced”
that “the legislature actually intended … to delegate to the agency interpretive power
with the binding force of law over the elaboration” of the terms. Renda v. Iowa Civil
Rights Comm’n, 784 N.W.2d 8, 14 (Iowa 2010). “This search for legislative intent
focuses on the specific statutory provision or language at issue …. Indications that an

1 The rules were promulgated by the State Board of Education, but the Director of
the Department is delegated authority to “interpret the school laws and rules related to the
school laws.” Iowa Code § 256.9(16).

The Honorable Thomas G. Courtney
State Senator
Page 7

agency has interpretive authority include rule-making authority, decision-making or
enforcement authority that requires the agency to interpret the statutory language, and the
agency’s expertise on the subject or on the term to be interpreted.” The Sherwin-Williams
Co. v. IowaDep’t. of Revenue, 789 N.W.2d 417, 423 (Iowa 2010) (citation omitted and
emphasis added). Given the broad delegation of rule-making authority under Iowa Code
section 256.7(7) to address telecommunications as an instructional tool, including
programs, educational policy, instructional practices, staff development, use of pilot
projects, and curriculum monitoring combined with the Department’s interpretive
authority, we believe the Department has been vested with interpretive power.

However, the Department’s current interpretation of subsection 8 has not been
promulgated into rule form. A “rule” is defined to include “each agency statement of
general applicability that implements, interprets, or prescribes law or policy. . . .” Iowa
Code § 17A.2(11) (2011). Unless this interpretation is promulgated as a rule, courts very
well may not defer to Department’s interpretation of subsection 8. There are public
policy consequences as well to the failure to promulgate an interpretation in rule form.
Because the agency has not gone through rulemaking, the public did not have the
opportunity to comment, Iowa Code § 17A.4 (l)(b), legislators were not provided the
opportunity to file objections or impose delays to implementation of this interpretation,
Iowa Code §§ 17A.4 (6), 17A.8(7), (9), and the Governor did not have an opportunity to
review proposed rules, to file an objection, or to rescind the rules, Iowa Code
§§ 17A.4(6), 17A.4(8). All of this input would be important in the articulation of a policy
sufficiently specific to describe how teaching by telecommunications would actually
function.

We regard the additional components that are required for online classes to be a
substantial factor in delivering an educational curriculum online. The non-exclusive
equivalent requirement requires a robust group of learning activities. The equivalent
requirement should not be trivialized. It should be noted that for open enrollment
students the local school would not be available to assist in activities that would help to
meet this requirement. Failure to meet this requirement may require that all funding
would be lost. Rules should address these components specifically so that requirements
for compliance are fully-vetted in the rule-making process and the obligations of private
companies who provide education to Iowa students online are clear.

The current rules were promulgated before technology had developed to its present
level. The authorizing statute was enacted in 1987. 1987 Iowa Acts, 72 nd G.A., ch. 207,
§ 1. From the bill explanation that courts often look to in determining legislative intent,

The Honorable Thomas G. Courtney
State Senator
Page 8

Tallman v. W.R. Grace & Co.-Conn., 558 N.W.2d 208, 210 (Iowa 1997), the original
legislation related to the “authority of the state board of education and the department of
education over the educational use of telecommunications systems and services” and
directed the agency to “study options for the coordination of school calendars and
schedules in order to facilitate the use of telecommunications systems and services.”
Senate File 333, 72 nd G.A., 1 st Sess. (Iowa 1987). The bill was enacted at a time when
computers were far less pervasive in our society. Statutory language addressing
supervision of education through telecommunications suggests that the legislation
originally envisioned courses taught by telecommunication received in a classroom
setting. See S.F. 333, § 1 (“[F]or curriculum which is not required by the minimum
educational standards, the rules shall not require that a certified teacher must be present in
the classroom when the curriculum is being received by means of telecommunications.”).

In light of the General Assembly’s broad delegation of authority to the Board to
authorize telecommunications learning, we cannot conclude that Dillon’s Rule would
prohibit use of telecommunications to deliver educational courses to students open-
enrolled from other school districts in this manner as long as all statutory requirements
are met, including providing a mixture of instructional methods when necessary under the
curriculum appropriate to grade level and topic. It is evident that the General Assembly
did intend to authorize telecommunications as an “instructional tool” subject to clear
requirements for the use of licensed teachers, adequate supervision and interactive
communications between teachers and students. Although the statutory authorization was
very broad, the General Assembly also clearly intended that rules would shape the
implementation of the statute and address the serious policy issues that relate to teaching
by telecommunications, including “programs, educational policy, instructional practices,
staff development, use of pilot projects, curriculum monitoring, and the accessibility of
licensed teachers.” To develop these rules, the General Assembly authorized a
specialized advisory committee to “make recommendations for rules … on the use of
telecommunications as an instructional tool.” The committee was to be comprised of
“representatives from community colleges, area education agencies, accredited or
approved nonpublic schools, and local school districts from various enrollment
categories” to include “board members, school administrators, teachers, parents, students,
and associations interested in education.” Iowa Code § 256.7(7)(c). In view of the fact
that the current rules have not been updated since 1990, comprise slightly more than one
page, and do not totally reflect the current interpretation of the Department, it would be
wise to reassemble a committee to address teaching through telecommunications in more
specific rules that can be vetted by the public, the General Assembly and the Governor
through the rule-making process.

The Honorable Thomas G. Courtney
State Senator
Page 9

Education Delivered through Private Companies

The novelty of school districts relying on contracts with private, for-profit
companies to deliver education wholly through telecommunications presents some
challenges. A report on online learning has been issued by the U.S. Department of
Education. See U.S. Department of Education Office of Planning, Evaluation, and Policy
Development Policy and Program Studies Service, Evaluation of Evidence-Based
Practices in Online Learning: A Meta-Analysis and Review of Online Learning Studies,
September, 2010. 2 Online curricula in other states have been the subject of public
criticism. See Stephanie Saul, Profits and Questions at Online Charter Schools, N.Y.
Times, December 12, 2011. But we have not located any statutory authority in Iowa that
prohibits these contractual arrangements with private companies. See generally Iowa
Code § 256.1(2) (“The department shall stimulate and encourage educational radio and
television and other educational communications services as necessary to aid in
accomplishing the educational objectives of the state.”).

We have in the past addressed limitations on the use of private companies to carry
out a governmental function. In 1992 we concluded that the Department of Inspections
and Appeals which is charged with statutory responsibility for conducting inspections of
food service establishments could contract with private entities to carry out the
inspections pursuant to sufficiently narrow standards and guidelines, but could not
delegate the agency’s authority to utilize administrative warrants. 1992 Op.Atty.Gen.104;
1992 WL 470340. We do not perceive an impermissible delegation of a governmental
function where the use of telecommunications as an instructional tool is authorized by
statute, the instruction is carried out by licensed teachers, the courses meet the standards
for accreditation in the school districts, and the program is subject to audit by the
Department. There remain serious policy issues in implementing these programs,
including the relationship between the board of directors in these school districts and the
teachers employed by the private companies whom the districts do not employ or
supervise as well as the redirection of state funds from the public school system to private
companies. These policy issues are beyond the scope of our opinion. 3

2 The full text of this report can be accessed online at the Department’s website:
http://www2.ed.gov/rschstat/eval/tech/evidence-based-practices/finalreport.pdf

3 By finding that there is statutory authority for the provision of internet learning
that is the subject of this opinion, we do not in any way express public policy support for

The Honorable Thomas G. Courtney
State Senator
Page 10

Although you state in your opinion request that the two school districts that have
contracted with private, for profit, companies to provide online instruction will receive
“full per pupil state funding for every student enrolled” at the rate of $6,000 per pupil, it
is our understanding that the funding rate has not been established. The rate will turn on
an audit performed by the Department after the telecommunication program is underway
this fall. The Department may conclude that the appropriate rate of funding is the HSAP
rate (home schooling rate) which is substantially lower at approximately $1,800 per
pupil. 4

All school districts are subject to periodic audits by the Department. An audit
generally consists of a comprehensive site visit at the district, it includes, but is not
limited to, confirming compliance with requirements pertaining to professional staff
licensure, accreditation, school year length and instructional contact hours, special
programs, student records, accessibility and other state and federal law provisions. See
281 Iowa Admin. Code ch. 12. The Department anticipates that online programs at the
CAM and Clayton Ridge will be audited during the fall of 2012.

Assuming that all other requirements for funding are met by the participating
school districts, it is our understanding that the determining factor in setting the
appropriate funding level between full funding and HSAP funding may be the role that
parents play in the telecommunication program. If an audit by the Department shows
that parents play the primary role, assisted by the telecommunication program, the
appropriate funding level may very well be determined to be the HSAP level ($1,800).
See generally Iowa Code §§ 256.1(1), 257.6. This factual assessment can only be made
after the program is underway. The possibility that HSAP ultimately will be determined

this concept. The merits of this type of learning are left to the legislative and executive
branches.

4 In 2003 the Department issued a memorandum addressing implementation of a
more limited online program by the Pocahontas Area Community School District. Under
this program K12 Inc. provided a distance learning curriculum for elementary students
enrolled in a virtual attendance center. The program was designed for parents to educate
their children at home. K12Inc. provided “guidance and support,” but the parents
remained the primary teachers of the children. This program was therefore limited to the
HSAP funding level.

The Honorable Thomas G. Courtney
State Senator
Page 11

to be the appropriate funding level introduces considerable uncertainty into the program
under the contracts that have already been executed. This means the ultimate funding
level may turn on the conduct of parents over whom neither the school districts nor the
private companies have control. Of course, the General Assembly may decide to take
action on this matter before the programs are implemented this fall. Any legislative
action that impacts the two contracts that have already been executed should take into
consideration the effect of legislative action on the contract rights and liabilities of the
parties.

In summary, it is our opinion that the broad authorization of telecommunications
learning by the General Assembly in 1987 and subsequent rules permit the use of
telecommunications by private companies to deliver educational courses to students open-
enrolled from other school districts as long as all statutory requirements are met. Rules
promulgated by the Board do not address this program in sufficient detail and have not
been updated since 1990. We strongly encourage the Board to reconvene the statutory
committee to update the rules and allow public comments and political input on the merits
of these programs through the rule-making process. The ultimate funding level for
students open-enrolled in these programs will be determined only after an audit by the
Department when the programs are underway in the fall.

Sincerely,

Attorney General of Iowa

Julie F. Pottorff

Deputy Attorney General

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