Agency Response. The agency disagrees. TEC, §39.1322(b), states that the commissioner shall appoint a CIT when a campus is rated Academically Unacceptable. Section 97.1063 allows the district to recommend CIT members, but states that the commissioner shall assign a CIT should the district fail to make recommendations or recommend persons that are not approved. The rule provides guidance as to the necessary qualifications of CIT members and permits the district to propose members with the necessary qualifications. Agency practice is to allow a campus to make a second proposal should a proposed member not be approved. Regarding the recommendation that a minimum timeline be established defining how long the school has to develop and implement a school improvement plan before the commissioner can call for reconstitution, the agency takes into account the progress of the campus in implementing the improvement plan and recommendations over the course of the year. Regarding clarification of the two-year period that governs the removal of a principal from an Academically Unacceptable school, the amended language at TEC, §39.116, from the 80th legislature requires the district to make the decision regarding retention of the principal.

Comment. Concerning proposed §97.1063(d) and (e), two individuals from the Texas Institute Education Reform referenced TEC, §39.1324(b), regarding the retention of a principal on a campus that has been rated Academically Unacceptable for two consecutive years. The commenters stated this is in reference to campus closure and indicated the legislature intended campus closure to begin under HB 1 with the 2006-2007 school year. The commenters requested the rule be changed to ensure campus closure be effective immediately upon rule adoption.

Agency Response. The agency agrees in part and disagrees in part. The language of TEC, §39.1324(b), is in reference to campus reconstitution, not campus closure. The agency has been implementing sanctions related to campus performance issues since before the passage of HB 1. While the intent of the legislation may have been to begin closure in 2006-2007, there were no eligible campuses that were not also eligible for other sanctions or interventions required under HB 1.

Comment. Concerning proposed §97.1063, a representative of TCTA commented there may have been an error in proposed §97.1063(a)(2), in that it refers to districts implementing the school improvement plan or the recommendation of the CIT, instead of campuses. The commenter stated the language goes beyond what is required by law making it mandatory for the commissioner to order reconstitution of the campus under TEC, §39.1322(b), if the commissioner determines that CIT recommendations or a school improvement plan is not fully implemented. The commenter recommended tracking statutory language and leaving it within the commissioner's discretion whether to order reconstitution by changing "shall" to "may."

Agency Response. The agency agrees that the reference in §97.1063(a)(2) should be changed to campuses. In response to public comment, §97.1063(a)(2) has been modified to change "district" to "campus." In regard to campus reconstitution the agency agrees that the commissioner has discretion as to whether to order the reconstitution of the campus; however, the adopted rule puts districts on notice that the commissioner will exercise the authority to order the reconstitution of the campus under the circumstances described.

Comment. Concerning proposed §97.1063(a), a representative of TASB stated the requirements of proposed §97.1063(a)(1) allow the district to recommend CIT members; however, the rule does not specify any procedure if the commissioner refuses the district's recommendation. The commenter stated the rule does not specify that any district personnel must serve on the CIT, but NCLB requires the district to provide technical assistance to a campus that has been identified for school improvement. The commenter recommended if the commissioner refuses the district's recommendation of CIT members, the rule should be amended to state the district's recommendation of CIT members must include district personnel in accordance with federal law.

Agency Response. The agency disagrees. The rule addresses the requirements of HB 1, 79th Texas Legislature, Third Called Session. The accountability system and interventions associated with NCLB are a federal mandate and not the subject of these adopted rules.

Comment. Concerning proposed §97.1063(a)(2), a representative of TASB expressed their concern that the term "recommendation" is used throughout the rules, but the consequence for not accepting the recommendation is a stiffer penalty, citing examples in proposed §97.1063(a)(2) and (e) and proposed §97.1067(c)(1). The commenter recommended replacing "recommendation" with "mandate" or "order."

Agency Response. The agency disagrees. The adopted rules track the language of the applicable statute, TEC, §39.1324.

Comment. Concerning proposed §97.1063(a), a representative of ATPE stated the qualifications, training, and expectations for CIT members is absent from the proposed rules. The commenter stated the proposed rules fail to deal directly with all of the uncertainties surrounding qualifications and accountability for the CIT. The commenter stated guidance materials provided by TEA for the CIT are helpful yet insufficient and recommended current guidelines be more detailed regarding expectations and accountability and that those guidelines be provided through administrative rule.

Agency Response. The agency appreciates the comments regarding the guidance materials but disagrees that administrative rules are needed. The agency will continue to expand its guidance materials as the rule is implemented and this will allow for further development as the agency learns from those experiences.

Comment. Concerning proposed §97.1063(c)(1)(A) and (D), a representative of TCTA requested language be added to clarify that the CIT does not have the authority to decide whether an educator is retained as an employee of the district, nor the authority to decide the new assignment of any educator not retained at the reconstituted campus. The commenter cited relevant sections of the TEC assigning employment decisions to the board of trustees and requested proposed §97.1063(c)(1) be revised by rearranging it so the provision in subparagraph (D) immediately follows subparagraph (A), which would clarify that reassignment within the district is an option if the CIT does not recommend retention of an educator.

Agency Response. The agency disagrees. The adopted rule mirrors the language of the statute, TEC, §39.1324. Section 97.1063(c)(1)(A), (C), and (D) track the law.

Comment. Concerning proposed §97.1063, a representative of TASB stated proposed §97.1063(c)(3) and (e) authorize the commissioner to impose stiffer sanctions if a campus fails to implement the school improvement and reconstitution plan. The commenter stated the proposed rule provides no timeline and fails to reference any timeline in the plan. The commenter recommended the rule should require a school improvement and reconstitution plan to specify a timeline for full implementation and should state "within the timeline specified in the plan."

Agency Response. The agency disagrees in part and agrees in part. The language mirrors the statute at TEC, §39.1323(f) and §39.1324(d), which authorize the sanctions described in the rule; however, in response to public comment, §97.1063(e) was modified to clarify that the commissioner will order alternative management when such order is needed to achieve the purposes listed in §97.1053.

Comment. Concerning proposed §97.1063(c)(1)(B), a representative of ATPE stated the rule does little to clarify how language such as a "pattern of significant academic improvement" will be determined by the CIT, which may likely result in inconsistent or unfair application of the reconstitution. The commenter stated the proposed §97.1063(c)(1)(B) is a mere recitation of TEC, §39.1324(b), and asked for additional guidance to ensure equitable implementation. The commenter recommended the proposed rule and accompanying guidance materials be modified to include at minimum standards for determination of removal or reassignment.

Agency Response. The agency disagrees. Section 97.1063(c)(1)(B) requires the district to make the determination as to whether to retain the principal, in accordance with the requirements of TEC, §39.116.

§97.1063, Campus Intervention Team; Reconstitution, and §97.1065, Campus Closure or Alternative Management

Comment. Concerning proposed §97.1063(e) and §97.1065(a)(2), a representative of TCTA stated the proposed language goes beyond what is required by law by making it mandatory for the commissioner to order alternative management or campus closure when the campus has failed to implement recommendations of the CIT or terms of the school improvement and reconstitution plan. The commenter stated the law only requires the commissioner to order the closure of a campus or pursue alternative management if the campus is considered Academically Unacceptable for two consecutive school years after the campus is reconstituted under TEC, §39.1324(f). The commenter stated both alternative management and closure are drastic measures and recommended tracking statutory language and leaving these decisions within the commissioner's discretion by changing "shall" to "may" and deleting proposed §97.1065(a)(2).

Agency Response. The agency agrees in part. The adopted rules provide notice that the commissioner has exercised the authority to order closure or pursue alternative management when a campus fails to implement the improvement plan or recommendations of the CIT. However, in response to public comment, §97.1063(e) was modified to clarify that the commissioner shall issue such order only if it is needed to achieve the purposes listed in §97.1053.

Comment. Concerning proposed §97.1063 and §97.1065, two individuals from the Texas Institute for Education Reform stated that proposed §97.1063 requires the first campus to be reconstituted after the second consecutive Academically Unacceptable rating following the August 2007 ratings, or January 2010 after a ratings appeal. Proposed §97.1063(c)(1) permits the district to plan its campus reconstitution that year, so reconstitution actually occurs in fall 2010. The commenters concluded that proposed §97.1065(a)(1) requires the first order of alternative management only after the campus receives two consecutive Academically Unacceptable ratings after reconstitution, or fall 2010. Such order can be imposed only after an appeal of the second Academically Unacceptable rating, which would be issued in August 2012. This means that, at the earliest, the commissioner can order alternative management in January 2012. The commenters ask whether it is reasonable, at that late date, for the commissioner to wait another three years, as referenced in proposed §97.1065(c)(1), until 2015 for a reasonable expectation that the campus will achieve acceptable ratings performance.

Agency Response. The agency disagrees. Campuses may be assigned alternative management in the first year of the new rules. Ratings and accreditation sanctions from years prior to 2006 are to be considered under §97.1053(b). A campus that was reconstituted by commissioner action in 2005 or 2006, and that has subsequently received two consecutive Academically Unacceptable ratings, must be alternatively managed or closed. The commissioner may waive this requirement under §97.1065(d), but is bound by TEC, §39.1324(f), with respect to such campus.

Rating and sanction appeals are provided by TEC, §39.301 and §39.302, but the rules require all decisions to be final and effective well before the start of the following school year. The district is required to negotiate a contract with its alternative management service provider while the sanction is on substantial evidence review at SOAH. This enables the sanction to be implemented in a timely fashion.

The agency has carefully considered the criteria for selecting between the statutorily imposed options of closure and alternative management. A campus in need of intervention under §97.1065 has a history of intractable performance deficiencies. In TEC, §39.1327(h), the legislature set the expectation that an alternative management service provider demonstrate progress in each of its first two years of service. The contractor must demonstrate improvement "as negotiated under the contract" in the first year. The performance measures negotiated in the contract "must be consistent with the priorities of" TEC, Chapter 39. By the second anniversary the contractor is required to demonstrate "significant improvement, as determined by the commissioner." In both the first and second year of contract performance, TEC, §39.1327(h), requires improvement but expressly contemplates improved performance that might still fall below state standards. In most instances, the standards applied by the commissioner under TEC, §39.1327(h), should be those in the applicable Accountability Manual. However, within three rating cycles of assignment, the alternative management service provide must meet all standards in the Manual. If the commissioner does not have a reasonable expectation that ordering alternative management will produce this result, the commissioner must order the campus closed.

§97.1065, Campus Closure or Alternative Management

Comment. Concerning proposed §97.1065(b), a representative of a school district expressed concern that the proposed rules may impose financial hardships on school districts due to their limited ability to raise additional funds to pay for professional services and recommended a "cap" be set on the cost of professional services ordered by the commissioner.

Agency Response. The agency disagrees. TEC, §39.1331, does not authorize the proposed cap. Rather, TEC, §39.134, provides that the cost of professional services shall be paid by the district. As indicated by §97.1057(e), the commissioner will consider the costs and logistical concerns of the district when ordering professional services under §97.1065(b), but shall give primary consideration to the best interest of the district's students.

Comment. Concerning proposed §97.1065, two individuals from the Texas Institute for Education Reform stated the rule implementation should be underway. The timing of Academically Unacceptable district and campus statuses should be implemented in the "current year" as the law requires.

Agency Response. The agency agrees. Even while it has been working on formal rules, the agency has already implemented many of the provisions enacted in HB 1. An accreditation status will be issued to each school district for the first time in 2007, but in other respects the implementation of the statute began shortly after passage of the bill.

Comment. Concerning proposed §97.1065(c)(1), a member of a board of trustees stated the proposed rule fails to state how the commissioner will determine whether to close a campus or order alternative management. The commenter requested the rule be changed to define the factors the commissioner will use to determine whether alternative management has a "reasonable expectation" of producing an Academically Acceptable rating. The commenter also requested the rule spell out the factors that will lead to the closure of the campus and the factors that will permit a second chance.

Agency Response. The agency disagrees. The adopted rule provides a framework for consideration of the commissioner in making determinations regarding campus closure or alternative management, in accordance with the requirements of TEC, §39.1324.

Comment. Concerning proposed §97.1065(e), a member of a board of trustees stated that proposed §97.1065(e)(1) is not clear and asked for an explanation.

Agency Response. The agency disagrees and finds that the language is sufficiently clear if §97.1065(e)(1) is read in the context of §97.1065 as a whole. If the commissioner is required to act under §97.1065(a), but may not choose alternative management under §97.1065(c) (and thus may not waive alternative management under §97.1065(d)), then the commissioner must close the campus under §97.1065(e)(1).

Comment. Concerning proposed §97.1065(e), five charter school administrators expressed concern that the proposed rules do not provide fair opportunity nor constitutionally adequate due process to charter holders when the action under consideration is the closing of a campus or school due to the rating or financial status.

Agency Response. The agency disagrees. TEC, §39.302, provides both a fair opportunity and procedural due process to charter holders when the action under consideration is the closing of a campus or school due to its ratings or financial performance history. The requirements of procedural due process with respect to legislative enactments are quite different from those that apply to case-by-case application of the law to individual circumstances. A charter holder that did not agree to be bound by the change to its contract made by the 79th Texas Legislature was required to repudiate that contract by refusing to accept additional funding under the new law. See TEC, §12.1071(a). The agency must implement the statute enacted by the Texas Legislature.

Comment. Concerning proposed §97.1065(f), a representative of TCTA questioned statutory authority for this provision requiring the commissioner to order closure of a campus when alternative management of the campus was ordered, the district resumed operation of the campus, and the campus is rated Academically Unacceptable in the subsequent year. The commenter requested that the provision be deleted in subsection (f), or, if statutory authority exists, that the "shall" be changed to "may."

Agency Response. The agency disagrees. TEC, §39.1327(h), requires an alternative management service provider to demonstrate improvement in the performance of the campus it manages and directs the commissioner to evaluate the service provider's performance. This evaluation does not replace the commissioner's evaluation of the district and campus. It is in addition to that evaluation. If the commissioner's evaluation of the service provider's performance fails to show the improvement promised by the service provider contract, TEC, §39.1327(h), specifies consequences for the service provider. After the first year, the district has the option to terminate the contract with the commissioner's consent. After the second year, the district must terminate the contract. In that event, the district may resume operation of the campus with the approval of the commissioner.