President of the Louisiana State Board of Elementary and Secondary Education (BESE) Holly Boffy has withdrawn an emergency rule implemented Nov. 29 that would have created a graduation appeals process for a portion of students that are unable to meet the standardized test requirements needed to receive a high school diploma.

The announcement of the withdrawal was made Monday at a news conference hosted BESE. The decision to withdraw follows a notice sent to BESE by the Pelican Center for Justice, which called the emergency rule unlawful.

In a release, the Pelican Institute stated that the action would violate the Louisiana Constitution and the Louisiana Administrative Procedure Act –an act that determines conditions for state agencies to adopt an emergency rule without prior notice or public hearing –and that they would file a complaint against Boffy for “exceeding her authority under state law if she did not withdraw the proposed rule.”

“State officials cannot fabricate an emergency to circumvent the rulemaking process just because they don’t like the outcome. How the government makes rules matters, and the Pelican Center for Justice will continue to hold government officials accountable when they violate the law and abuse the rulemaking process,” said Sarah Harbison, General Counsel of the Pelican Institute, in the release.

Boffy said at the press conference that the emergency rule that she issued was made in good faith.

“My intention was to give the Louisiana Department of Education more time to implement the new appeals process. However, the emergency rule has become a distraction.”

At an oversight committee meeting on Oct. 26, The Louisiana House Committee on Education issued an unfavorable review of the appeal process policy with a vote of 8 to 3, with many citing concerns over “lowering the bar” for Louisiana students.

State Superintendent Cade Brumley has also expressed opposition to the appeals process. At the oversight committee meeting, he stated that the Louisiana Department of Education (LDOE) is “consistently opposed” to policy.  “Not the right public policy for the state of Louisiana.”

He said that high school diplomas signal “some level of minimum competency” to employers and higher education institutions. With the academic improvement that the state has seen over the past couple of years, he believes the appeals process will be a step backwards.

“Now is not the time, in my opinion, for us to think about lowering that particular bar. Now is the time for us to think about additional solutions.”

On Nov. 1, Gov. John Bel Edwards disapproved the committee’s unfavorable review to allow BESE to submit the policy to the Louisiana Register for final adoption as rule. The appeals process now won’t go into effect until Dec. 20 – the original date of implementation – and will be instituted indefinitely unless revised or overturned in the future.

The policy for the appeals process was first approved by BESE as a Notice of Intent in June of this year as the Expanded Criteria for Every Learner in Louisiana (EXCELL) appeals process policy. This is an appeal option for high school seniors that have exhibited enough proficiency to graduate, but have difficulty passing the Louisiana Educational Assessment Program (LEAP) tests. Included in this student population are English learners and those with learning challenges.

Boffy said that the most important aspect of EXCELL is that it is “intended to make opportunities” for proficient students that are unable to pass the LEAP.

Belinda Davis, member at-large, BESE, said at the press conference that Louisiana has been “out of step” with the rest of the country. In the United State, only eight states require passing scores on standardized tests to graduate. Out of those eight states, Louisiana is the only that does not have an appeals process in place.

Students can file an appeal their senior year and must meet multiple requirements. They must complete all Carnegie unit requirements for TOPS University or TOPS Tech Career Diploma, demonstrate content proficiency meeting standard assessment requirement and/or creating a portfolio of “work aligned to the standards for both subjects in the LEAP 2025 pair unfulfilled by the end-of-course score” and demonstrated evidence of employability by earning a Silver or higher rating on ACT Workkeys, a TOPS Tech award or a Louisiana JumpStart-approved Industry Based Credential.

The appeals are administered at the local school level, and schools are required to participate in an audit process.