SBOE delays vote again; AG feedback alleges constitutional issues
Now well behind its initial statutory deadline of December 31, 2025, the Indiana State Board of Education on Wednesday again delayed voting on the proposed school A-F accountability framework . . . after we had been led to believe that same morning that Governor Mike Braun (R) was prepared to mention its return in his Wednesday evening State of the State address – which was ultimately devoid of any such talk.
While initially on the board’s agenda posted for its regular January meeting a week ago, the accountability rule abruptly disappeared from it this week – unnoticed by most stakeholders until the morning of the meeting. Secretary of Education Katie Jenner revealed the board would hold off on a vote as it continues to incorporate feedback from the third public comment period that ended on January 5.
But there appears to be more to that statement bubbling over behind the scenes in terms of specific feedback by a certain state office . . . and the Indiana Department of Education is quickly trying to correct to ensure the passage of the accountability rule, which it has been working on for the past year.
Part of the rulemaking process requires the new rule, once passed by the board, to be delivered to the Office of the Attorney General for review and approval. The Attorney General has to sign the rule within 45 days, and then the measure goes to the Governor for final signature before becoming law.
Turns out, Attorney General Todd Rokita (R), key to the accountability framework becoming law, has several concerns with the proposed rule . . . causing a potential large bump in the road in its final passage. In pages of comments sent to the state board during all three public comment periods in August and November 2025 and January 2026, General Rokita finds what he calls potential constitutional issues with the proposed A-F framework.
In his final letter, dated January 5, 2026, Rokita alleges that most of his concerns have been largely ignored and brushed off by the board and IDOE during all of the comment periods.
“Thus far, the Board has made no changes to its proposal in response to OAG’s
concerns and instead has offered rationales for why OAG’s concerns have no bases that do not fully address or engage with those concerns,” General Rokita writes in his January 5 letter.
The Attorney General then concludes his letter, though not explicitly stating it, by implying he might not sign the rule, as he does not believe the current form passes legal muster.
Rokita explains, “OAG will scrutinize any final rule submitted for form and legality review closely with these concerns in mind and, at present, is not convinced that the proposal, if submitted without any further changes or explanation, will pass legal muster.”
Rokita, in his comments, emphasizes that his office reviews all agency rules for legality and can disapprove a rule if it violates the constitution, exceeds statutory authority, or fails to comply with procedural requirements. While acknowledging in his final letter that the board addressed some procedural issues raised earlier, he believes significant legal concerns remain unresolved.
“Simply put, the rule appears to prioritize nonacademic, subjective metrics – particularly through the prioritization of diploma seals – at the expense of the academic proficiency that the authorizing statute requires to be key to the accountability system and civic knowledge central to the Education Clause’s mandate that public education prepare students to participate meaningfully in a free and self-governing republic,” Rokita writes.
The new accountability framework before the state board has been described as a “student-centered” approach, while still implementing standardized test scores and the traditional school letter grades that the state had used for years to evaluate schools.
The difference in the new model, state education leaders describe, is that it focuses on students and their growth, reflected in a new points system. The proposed framework would evaluate schools using IDOE’s Graduates Prepared to Succeed (GPS) characteristics: academic mastery, communication and collaboration, work ethic, civic and financial literacy, and career or postsecondary readiness. See our October 24, 2025 issue for the full breakdown on the latest rule draft.
A central concern outlined in the OAG comments is the concept of the new framework diluting, in Rokita’s eyes, student assessments and grades. He is also critical of the board’s emphasis on the new high school diploma seals and workforce-oriented measures, which AG Rokita argues could improperly overshadow academic instruction. He asserts the proposed framework allows “subjective metrics of students’ performance that are not tied to tests of students’ proficiency in academic subjects” to serve as the primary measure of academic mastery for high school students.
According to Rokita, under the proposal, SAT proficiency is not required as part of the Academic Mastery Metric for grade 12 and instead is treated as an optional Student Success Indicator. He writes that approach “does not seem to be consistent with the statute’s directive that the Board must include proficiency as part of its accountability model.”
The Attorney General also raises concerns about how the proposal treats elementary and middle school accountability. He argues the rule allows student growth measures to fully replace proficiency on statewide assessments, arguing that “a metric that can be fully displaced by non-proficiency measures, such as student growth, cannot, as a matter of ordinary statutory meaning, be described as ‘primary.’”
Rokita alleges the board’s reliance on the presumption that the authorizing statute is constitutional is insufficient on its own. “A statute may be facially constitutional but implemented by regulation in an unconstitutional fashion,” he writes, adding that the board must independently assess whether its exercise of discretion complies with the Indiana Constitution.
He also faulted the board for failing to consider how the accountability rule interacts with other regulations, particularly the state’s new high school diploma rule. Rokita warns that, taken together, the rules could result in students being “trained according to a workforce-development model that fails to provide a broad-based, knowledge-rich liberal arts education that prepares them for a lifetime of meaningful citizenship and which is absolutely necessary to run and maintain a free republic.”
General Rokita makes a point to note he shared these trepidations about the diploma with IDOE and the Governor’s Office a year ago when he reviewed the new high school diploma rule. At the time, he warned that the diploma “while facially lawful, could become unlawful in its operation.”
The above statement from the Attorney General is intriguing, as work-based learning expansion over the last few years has been key on Republicans’ agenda to “reinvent high school.” Critics, often not Republicans, have warned that the state’s focus on work-based learning deemphasizes liberal arts and higher education.
Beyond substantive concerns, Rokita, in his January 5 letter, identifies additional procedural issues.
He asserts the board’s notices and regulatory analyses also do not adequately disclose the factual assumptions or policy judgments underlying Indiana’s request for a federal waiver from accountability requirements under Every Student Succeeds Act (ESSA). The AG also shows concern the board has not indicated whether it conducted modeling to test how the proposed system would operate in practice. IDOE, in the waiver, is asking to use its own accountability model to evaluate schools moving forward for federal funding, rather than the federal government’s model.
“The omission from the Board’s notices of any discussion of the federal requirements and the sought-after waiver is significant,” Rokita writes, adding that the public lacks sufficient information to evaluate how the rule would function if the waiver is denied or delayed. He further suggests the board reconsider how it conducted public comment on the waiver as well.
Worth noting, the tone of General Rokita’s letters does shift through each public comment period, as he continued to note his increasing frustration with SBOE apparently not taking his suggestions and concerns seriously in its responses.
He also generally criticizes the board’s public comment structure and responses, mainly in his second comment submitted in November. Rokita points out that the responses the board posted online to feedback may not meet statutory requirements, as he alleges the board did not adequately address the concerns presented in several comments, including his own.
Outside of his own comments, he notes that he did not believe the board addressed other stakeholder concerns on attendance metrics, or ninth grade rigor. Rokita points out the board acknowledged that commenters were split on whether attendance should be included as a performance metric, but its second round notice did not explain how it evaluated those comments or why it kept attendance in the model despite objections that it is outside schools’ control and does not measure achievement.
General Rokita remarks as well that the board also received concerns about ninth grade metrics being either too rigorous or not rigorous enough, objections to using a college-entrance exam when new diplomas emphasize other pathways, and questions about how the model handles transient or low-income students. He alleges the board “completely failed to respond” to any of those issues.
By not addressing these comments or explaining why it accepted or rejected them, Rokita concludes the board failed to provide the required “satisfactory explanation for its actions” and deprived the public of a meaningful chance to comment. He warned that the procedural defects, mirroring problems from the first comment period, would make any final rule invalid unless the board issues a corrected third notice.
A third public comment period did open in December, when the board was originally supposed to vote on a final draft of the rule.
In responses to all feedback posted to the Indiana Register (though it does not name whose specific feedback it is responding to), SBOE pushed back on the Attorney General’s constitutional and statutory critiques, arguing that the proposed accountability rule falls squarely within its legal authority and constitutional obligations. Note, these responses are only from the first two comment periods.
“The board is aware that the Education Clause consists of two duties of the General Assembly, first being that the General Assembly must encourage, by all suitable means, moral, intellectual, scientific, and agricultural improvement, and the second being to create a uniform statewide system of tuition-free public schools,” the board writes. “While the board maintains discretion in formulating educational policy, it also understands its limitations when policy runs afoul of Indiana’s constitutional mandate.”
The board views the accountability statute as presumptively constitutional and argued its methodology aligns with both legislative direction and the Education Clause.
“At the core of any board policy is an understanding of its obligations and limitations, whether in consideration of its duty to promote the diffusion of knowledge to promote free government, or in creating a uniform statewide system of public schools,” the board further describes.
The board believes it meets those requirements by grounding the accountability framework in statute. “The board accomplishes this by considering the factors emphasized in IC 20-31-8-1 in its methodology, being highly focused on achieving uniform educational outcomes, work-based opportunities, academic mastery, and emphasizing performance on the statewide assessment as the primary means of assessing school improvement throughout the state,” the response states. “All this is consistent with its constitutional responsibilities and the framework authorized.”
Responding to concerns that the model treats different types of instruction or knowledge as equivalent, the board rejects that characterization. “The board does not believe that the rule suggests that different types of instruction/knowledge were equal to one another,” it argues. “Rather, the board is of the opinion that the rule is complex and looks at the combination of different indicators.”
“There is no determination of ‘equal to one another’ as much as there is a longitudinal analysis that suggests each success indicator included in the model has an impact on a student’s likelihood for postsecondary success,” the board missive continues. “The board believes that the more success indicators a student has, the more likely they are to be successful.”
The board also defends its emphasis on work-based learning as constitutionally appropriate. “The board is of the opinion that participating in work-based learning encourages moral and intellectual improvement via real-world exposure, and depending on the field, scientific and/or agricultural improvement as well,” it writes. “The board is of the opinion that the rule provides for uniformity by establishing an expectation that all students are postsecondary ready by graduation.”
On testing and diploma seals, the board argues the proposal satisfies statutory requirements. “The board is of the opinion that the model includes individual student proficiency rates for all statewide summative assessments, as both the SAT and ILEARN are included in the proposed model,” the response states. “The board is of the opinion that the decision to make the diploma seals a key outcome clearly ‘prioritizes’ that indicator as required. Additionally, keeping the SAT in the model fulfills the requirement to ‘include’ proficiency rates from the statewide summative assessment.”
Addressing comments that it exceeded its statutory authority, particularly around assessments, the board asserts it “took seriously the statute’s charges in developing this rule, and grappled with its directives.” The response points to Indiana Code language stating the methodology must “prioritize (emphasis added) the attainment of a diploma seal,” arguing that “the plain language of the statute indicates that the intent of the legislature was for the board to ‘prioritize’ the attainment of diploma seals in the methodology used to assess high schools in Indiana.”
The instruction for the board to adopt a new accountability rule is within the test of HEA 1498-2025, which lists five requirements in the framework, including the new diploma seals, assessment proficiency rates, and the GPS dashboard. The last bullet stands as open-ended for the board to “consider other factors state board considers relevant.”
The board also rejects AG Rokita’s claims that it improperly deemphasized testing, noting that “the proposed accountability rule does not make summative testing proficiency the sole factor in a school’s accountability structure.” Instead, it said the rule reflects “the education policy shift to a more student focused model, which is supported by the statute, and clearly seen in Indiana’s new high school diploma system.”
For elementary schools, the board emphasizes that assessments still dominate the model, rather than the AG’s comments that it dilutes standardized test scores in favor of growth metrics. “The legislature chose to use the word ‘primary’ instead of ‘only’ in IC 20-31-8-11(b),” the response states. “In grades K-8, the model considers 14 different measures of student success across the academic mastery metric and student success indicators. Of those, 11 of the metrics are objective, test-based indicators of achievement.”
“This represents nearly 80% of all indicators in the model,” the board clarifies. “As such, the model meets the requirement that the performance of a school’s students on the statewide assessment program test, and other criterion referenced benchmark assessments recommended by the department and approved by the state board, are the primary means of assessing an elementary school’s improvement.”
The board also defends its public comment process against allegations that it limited meaningful participation.
While acknowledging criticism of its use of Jotform with character limits, the board argues the approach complied with state law and still allowed broad input. “Agencies can receive public comments in various ways,” the board defends. “Unlike email and standard mail, Jotform allows the agency to quickly view, organize, and sort through public comments in real time, while still providing the public with a meaningful avenue to submit their comments.”
JotForm allowed 1,250 characters in comments, and multiple could be submitted, the board added, noting that comments submitted by email and hand-delivered to department staff were also “accepted and considered by the board.”
Not long after the last public comment period ended on January 5 (also when the General Assembly returned to resume the legislative session), the OAG’s concerns about the accountability rule circulated to some solons on the Third Floor, including the House Committee on Education and Senate Committee on Education and Career Development chairs. The communication may not have necessarily been sent to legislators directly by the office . . . but we’re told roughly a couple of dozen solons were made aware of his concerns.
House Committee on Education Chair Bob Behning (R) of Indianapolis did not comment on the exact issues the OAG has, though he confirmed he had seen the messages from General Rokita . . . and he implied he did not necessarily agree with all the concerns outlined.
We’re also picking up that education stakeholders were perplexed by the abrupt removal of the accountability rule from the SBOE agenda on Wednesday. Throughout the months of the rulemaking process, associations representing groups from school administrators to school boards have largely been favorable of the proposed A-F framework, and praised IDOE and Dr. Jenner for collaborating with stakeholders throughout.
“That process has, over these multiple months, been very good,” stated Todd Bess, executive director of the Indiana Association of School Principals, at the Wednesday board meeting. “What we like about this model is it uses the ‘n of one’ … it means each student is valued for what they bring how they progress through this K-12 system.” Bess continues that principals do value academic mastery, with the main emphasis on ILEARN, but other metrics as well, such as the IREAD-3, the SAT, and the diploma seals.
IDOE and the board’s official statement on the reason for the delay in the vote is to spend more time working with stakeholders on the model. When asked, a department spokesperson did not acknowledge whether the Attorney General’s comments will be a part of this process more than others, and stated that “more than 800 stakeholders participated through this process, and each of these comments are important to ensuring we have the best possible model for Indiana.”
Dr. Jenner was also not available following Wednesday’s board meeting to answer further questions from us on the rule or the OAG commentary. We did observe the secretary taking meetings in the leadership offices in the House and Senate chambers that same afternoon in advance of the Governor’s State of the State address.
A spokesperson for OAG further tells us Rokita has not officially taken a position on the rule before its final passage:
IDOE has not yet submitted a final rule to the Attorney General’s Office for review. Once IDOE does so, the Office of the Attorney General will evaluate the rule for form and legality, as it does with all rules. The Office of the Attorney General does not prejudge the results of its form and legality reviews and has not sent any message to lawmakers about whether it would reject any rule IDOE submits. IDOE’s rulemaking process is ongoing, and no rule has been finalized, meaning the Office of the Attorney General is not currently able to take a position on the legality of any final rule.
Still, it is worth recognizing that the Attorney General has the power to effectively kill the accountability rule and stop it from becoming law, should he choose not to sign off on it when the board sends it over to his office. No other stakeholders submitting comments have such power.
We’ve heard IDOE is working now to address his office’s concerns, perhaps realizing the potential gravity of the situation, per his final comment submitted last week.
As of now, there is no timeline in place for when the accountability rule will come back before the board. The board will meet next on March 4, but it’s not clear if it will take action then. An IDOE spokesperson informs us they will have a better sense of a timeline once they’ve completed additional collaboration with stakeholders.
The new A-F grades are supposed to begin next school year, so ideally, the board would need to have the new framework in law before July. As always, stay tuned.