BILL REQ. #:  H-1250.1 

READ FIRST TIME 02/08/13.   

     AN ACT Relating to state-tribal education compact schools; amending RCW 49.60.400; adding a new section to chapter 28A.642 RCW; adding a new section to chapter 43.215 RCW; adding a new chapter to Title 28A RCW; and providing an expiration date.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   (1) The legislature finds that:
     (a) American Indian and Alaska Native students make up 2.5 percent of the total student population in the state and twenty-five percent or more of the student population in fifty-seven schools across the state.
     (b) American Indian students in Washington have the highest annual drop-out rate at 9.5 percent, compared to 4.6 percent of all students in each of grades nine through twelve. Of the students expected to graduate in 2010 because they entered the ninth grade in 2006, the American Indian on-time graduation rate was only fifty-eight percent, compared to 76.5 percent of all students.
     (c) The teaching of American Indian language, culture, and history are important to American Indian people and critical to the educational attainment and achievement of American Indian children.
     (d) The state-tribal education compacts authorized under this chapter reaffirm the state's important commitment to government-to-government relationships with the tribes that has been recognized by proclamation, and in the centennial accord and the millenium agreement. These state-tribal education compacts build upon the efforts highlighted by the office of the superintendent of public instruction in its 2012 Centennial Accord Agency Highlights, including: The Since Time Immemorial (STI): Tribal Sovereignty in Washington State Curriculum Project that imbeds the history surrounding sovereignty and intergovernmental responsibilities into this state's classrooms; the agency's regular meetings with the superintendents of the seven current tribal schools, as well as the federal bureau of Indian education representatives at the regional and national level on issues relating to student academic achievement, accessing of funding for tribal schools, and connecting tribal schools to the K-20 network; and the recent establishment, in statute, of the office of native education within the office of the superintendent of public instruction.
     (e) School funding should honor tribal sovereignty and reflect the government-to-government relationship between the state and the tribes, however the current structure that requires negotiation of an interlocal agreement between a school district and a tribal school ignores tribal sovereignty and results in a siphoning of funds for administration that could be better used for teaching and learning.
     (2) The legislature further finds that:
     (a) The need for high-quality, culturally competent early learning opportunities continues to grow;
     (b) There is a preparation gap among entering kindergartners with many children, especially those from low-income homes, arriving at kindergarten without the knowledge, skills, and good health necessary to succeed in school;
     (c) Upon entry into the K-12 school system, the educational opportunity gap becomes more evident, with children of color and from low-income homes having lower scores on math, reading, and writing standardized tests, as well as lower graduation rates and higher rates of dropping out of school; and
     (d) Comprehensive, culturally competent early learning and greater collaboration between the early learning and K-12 school systems will ensure appropriate connections and smoother transitions for children, and help eliminate or bridge gaps that might otherwise develop.
     (3) In light of these findings, it is the intent and purpose of the legislature to:
     (a) Authorize the superintendent of public instruction to enter into state-tribal education compacts; and
     (b) Foster the development of a voluntary, high-quality, and culturally competent early learning pilot program to work in conjunction with, and offer a seamless transition to, schools established pursuant to state-tribal education compacts.

NEW SECTION.  Sec. 2   (1) The superintendent of public instruction is authorized to enter into state-tribal education compacts.
     (2) No later than six months after the effective date of this section, the superintendent of public instruction shall establish an application and approval process, procedures, and timelines for the negotiation, approval or disapproval, and execution of state-tribal education compacts.
     (3) The process may be initiated by submission, to the superintendent of public instruction, of a resolution by:
     (a) The governing body of a tribe in the state of Washington; or
     (b) The governing body of any of the schools in Washington that are currently funded by the federal bureau of Indian affairs, whether directly or through a contract or compact with an Indian tribe or a tribal consortium.
     (4) The resolution must be accompanied by an application that indicates the grade or grades from kindergarten through twelve that will be offered and that demonstrates that the school will be operated in compliance with all applicable laws, the rules adopted thereunder, and the terms and conditions set forth in the application.
     (5) Within ninety days of receipt of a resolution and application under this section, the superintendent must convene a government-to-government meeting for the purpose of considering the resolution and application and initiating negotiations.
     (6) State-tribal education compacts must include provisions regarding:
     (a) Compliance;
     (b) Notices of violation;
     (c) Dispute resolution, which may include nonjudicial processes such as mediation;
     (d) Recordkeeping and auditing;
     (e) The delineation of the respective roles and responsibilities;
     (f) The term or length of the contract, and whether or not it is renewable; and
     (g) Provisions for compact termination.
     (7) The superintendent of public instruction shall adopt such rules as are necessary to implement this chapter.

NEW SECTION.  Sec. 3   (1) A school that is the subject of a state-tribal education compact must operate according to the terms of its compact executed in accordance with section 2 of this act.
     (2) Schools that are the subjects of state-tribal education compacts are exempt from all state statutes and rules applicable to school districts and school district boards of directors, except those statutes and rules made applicable under this chapter and in the state-tribal education compact executed under section 2 of this act.
     (3) Each school that is the subject of a state-tribal education compact must:
     (a) Provide a curriculum and conduct an educational program that satisfies the requirements of RCW 28A.150.200 through 28A.150.240 and 28A.230.010 through 28A.230.195;
     (b) Employ certificated instructional staff as required in RCW 28A.410.010, however such schools may hire noncertificated instructional staff of unusual competence and in exceptional cases as specified in RCW 28A.150.203(7);
     (c) Comply with the employee record check requirements in RCW 28A.400.303 and the mandatory termination and notification provisions of RCW 28A.400.320, 28A.400.330, 28A.405.470, and 28A.405.475;
     (d) Comply with nondiscrimination laws; and
     (e) Be subject to and comply with legislation enacted after the effective date of this section governing the operation and management of schools that are the subject of a state-tribal education compact.
     (4) No such school may engage in any sectarian practices in its educational program, admissions or employment policies, or operations.
     (5) Nothing in this chapter may limit or restrict any enrollment or school choice options otherwise available under Title 28A RCW.

NEW SECTION.  Sec. 4   (1) A school that is the subject of a state-tribal education compact may not charge tuition except to the same extent as school districts may be permitted to do so with respect to out-of-state and adult students pursuant to chapter 28A.225 RCW, but may charge fees for participation in optional extracurricular events and activities.
     (2) Such schools may not limit admission on any basis other than age group, grade level, or capacity and must otherwise enroll all students who apply.
     (3) If capacity is insufficient to enroll all students who apply, a school that is the subject of a state-tribal education compact may prioritize the enrollment of tribal members and siblings of already enrolled students.

NEW SECTION.  Sec. 5   (1) A school that is the subject of a state-tribal education compact must report student enrollment. Reporting must be done in the same manner and use the same definitions of enrolled students and annual average full-time equivalent enrollment as is required of school districts. The reporting requirements in this subsection are required for a school to receive state or federal funding that is allocated based on student characteristics.
     (2) Funding for a school that is the subject of a state-tribal education compact shall be allocated by the superintendent of public instruction according to the schedule established under RCW 28A.510.250, including general apportionment, special education, categorical, and other nonbasic education moneys. Allocations must be based on the statewide average staff mix ratio of all public schools from the prior school year and the school's actual full-time equivalent enrollment. A school that is the subject of a state-tribal education compact is not eligible for enhanced small school assistance funding. Such a school is eligible to apply for state grants on the same basis as a school district.
     (3) In the school's first year of operation under a compact executed under section 2 of this act, amounts payable must be based on the projections of first-year student enrollment established in the compact. The office of the superintendent of public instruction must reconcile the amounts paid in the first year of operation to the amounts that would have been paid based on actual student enrollment and make adjustments to the school's allocations over the course of the second year of operation.
     (4) Any moneys received by a school that is the subject of a state-tribal education compact from any source that remain in the school's accounts at the end of any budget year must remain in the school's accounts for use by the school during subsequent budget years.
     (5) Schools that are the subject of state-tribal education compacts are encouraged to conduct early learning pilot programs developed under section 8 of this act in conjunction with their school programs for kindergarten and beyond.

NEW SECTION.  Sec. 6   A new section is added to chapter 28A.642 RCW to read as follows:
     Nothing in this chapter prohibits schools established under chapter 28A.--- RCW (the new chapter created in section 9 of this act) from:
     (1) Implementing a policy of Indian preference in employment; or
     (2) Prioritizing the admission of tribal members where capacity of the school's programs or facilities is not as large as demand.

Sec. 7   RCW 49.60.400 and 1999 c 3 s 1 are each amended to read as follows:
     (1) The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.
     (2) This section applies only to action taken after December 3, 1998.
     (3) This section does not affect any law or governmental action that does not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin.
     (4) This section does not affect any otherwise lawful classification that:
     (a) Is based on sex and is necessary for sexual privacy or medical or psychological treatment; or
     (b) Is necessary for undercover law enforcement or for film, video, audio, or theatrical casting; or
     (c) Provides for separate athletic teams for each sex.
     (5) This section does not invalidate any court order or consent decree that is in force as of December 3, 1998.
     (6) This section does not prohibit action that must be taken to establish or maintain eligibility for any federal program, if ineligibility would result in a loss of federal funds to the state.
     (7) Nothing in this section prohibits schools established under chapter 28A.--- RCW (the new chapter created in section 9 of this act) from:
     (a) Implementing a policy of Indian preference in employment; or
     (b) Prioritizing the admission of tribal members where capacity of the school's programs or facilities is not as large as demand.
     (8) For the purposes of this section, "state" includes, but is not necessarily limited to, the state itself, any city, county, public college or university, community college, school district, special district, or other political subdivision or governmental instrumentality of or within the state.
     (((8))) (9) The remedies available for violations of this section shall be the same, regardless of the injured party's race, sex, color, ethnicity, or national origin, as are otherwise available for violations of Washington antidiscrimination law.
     (((9))) (10) This section shall be self-executing. If any part or parts of this section are found to be in conflict with federal law, the United States Constitution, or the Washington state Constitution, the section shall be implemented to the maximum extent that federal law, the United States Constitution, and the Washington state Constitution permit. Any provision held invalid shall be severable from the remaining portions of this section.

NEW SECTION.  Sec. 8   A new section is added to chapter 43.215 RCW to read as follows:
     (1) The department of early learning shall convene a working group to develop and pilot programs of early learning from birth to kindergarten that work in conjunction with, and offer a seamless transition to, K-12 education programs for kindergarten and beyond in schools that are the subjects of state-tribal education compacts. The director of the department of early learning or a designee shall serve as the chair of the working group.
     (2) The working group shall include:
     (a) Three representatives from tribes; and
     (b) Three representatives selected and appointed by the director of the department of early learning.
     (3) The early learning working group shall develop recommended parameters and minimum standards for the early learning pilot programs.
     (4) The early learning working group shall also examine service delivery models and make recommendations with respect to funding options for enabling schools that are the subjects of state-tribal education compacts to provide, or contract for the provision of, these early learning services to children from birth to kindergarten.
     (5) Recommendations under subsections (3) and (4) of this section are due no later than six months after the effective date of this section.
     (6) The department of early learning, in consultation with the superintendent of public instruction and any participants in a pilot program under section 5(5) of this act, shall submit a preliminary report to the education and early learning committees of the legislature regarding the implementation and progress of the early learning pilot program by December 1, 2017, with a final report due by December 1, 2022. The final report must include:
     (a) An evaluative component that analyzes and compares measurements on tools, tests, and markers such as the Washington kindergarten inventory of developing skills, third grade reading, and high school graduation to determine whether the early learning pilot programs affiliated with schools that are the subject of state-tribal education compacts are effectively closing the educational opportunity gap; and
     (b) Recommendations with respect to whether the pilot program should be made permanent or expanded.
     (7) This section expires August 1, 2023.

NEW SECTION.  Sec. 9   Sections 1 through 5 of this act constitute a new chapter in Title 28A RCW.