Agency Response. The agency disagrees in part and agrees in part. HB 1, 79th Texas Legislature, Third Called Session, establishes requirements for the closure of campuses that have exhibited patterns of persistent low performance over four or more years. Repurposing of a building occurs within the context of closure, and the agency has allowed a degree of flexibility for the repurposing of a building for which closure has been ordered. Given the purpose of this section, which is to impose mandatory sanctions in accordance with the requirements of HB 1 and TEC, §39.1324, the percentages were established to ensure that repurposing of a building meets the statutory requirements for closure of the campus. However, in response to public comment, the definition for campus closure was modified in paragraph (2)(C)(ii) to change to 50% the percentage of students who must be removed or reassigned to other campuses.

Comment. Concerning proposed §97.1051(3)(C)(ii), a representative of TSA and two school district administrators stated that the restrictions on repurposing would limit the district's ability to repurpose the campus, commented that the criterion for repurposing campuses that have been closed by the commissioner may prohibit the effective and efficient use of facilities, and proposed that the agency should instead examine a number of criterion holistically in order to provide flexibility to the commissioner in repurposing a building.

Agency Response. The agency disagrees. The rule language provides sufficient flexibility to the commissioner while providing direction to school districts for planning repurposing of a campus resulting from a closure determination.

Comment. Concerning proposed §97.1051(3)(C), a representative of TASA stated such prescriptive requirements may lead to the inefficient use of facilities by school districts, recommended less prescriptive and more flexible criteria be developed, and suggested such criteria. The commenter stated many facilities are built to suit the needs of certain student populations and may not be able to meet the needs of a different population without considerable expense. The commenter recommended that the commissioner be granted additional authority to determine how the students will be best served by changes to the campus.

Agency Response. The agency disagrees. The intent of the TEC, §39.1324, is to impose mandatory sanctions on those campuses that exhibit low performance persisting over four or more ratings cycles, and the law gives authority to the commissioner to determine when a campus must be closed. A campus subject to mandatory sanctions under TEC, §39.1324, has exhibited patterns of persistent low performance, and the agency finds that the definition aligns with the intent of HB 1, 79th Texas Legislature, Third Called Session. The governing board of a district has multiple opportunities to make changes to the campus in prior years, based on criteria it sets.

Comment. Concerning proposed §97.1051(3)(C)(ii), a representative of TSA stated concern about the effect of closing a school on the neighborhood, the surrounding community, and the future academic performance of the students. The commenter stated the proposed rule appears to bar the commissioner from considering such factors.

Agency Response. The agency agrees that closing a school has an effect on a neighborhood and community; however, this section of the proposed rule addresses a campus that exhibits a pattern of consistently low performance. Closure of a campus under the requirements of §97.1051(2)(C) occurs after the campus exhibits low performance persisting over four or more ratings cycles. TEC, §39.1324, provides in subsection (e) that the commissioner may order closure or pursue alternative management, and in subsection (f) the statute requires that the commissioner order closure or pursue alternative management. The option of alternative management allows the commissioner to consider the effects of closing a school as factors in the decision.

Comment. Concerning proposed §97.1051(3)(C)(i), a representative of TSTA stated its contention that facilities are configured for specific age groups of students, and suggested this section be deleted. The commenter recommended that management teams be assigned to improve student performance and make decisions regarding reassignment of students and faculty and regarding operations. The commenter also suggested that rotating students at grade levels would allow the district to continue to keep age-appropriate buildings in use until the recommendations of the intervention team are fully implemented.

Agency Response. The agency disagrees. The intent of the TEC, §39.1324, is to impose mandatory sanctions on those campuses that exhibit low performance persisting over four or more ratings cycles, and the law gives limited authority to the commissioner to determine when a campus must be closed. A campus subject to mandatory sanctions under TEC, §39.1324, has exhibited patterns of persistent low performance, and the agency finds that the definition aligns with the intent of HB 1, 79th Texas Legislature, Third Called Session.

Comment. Concerning proposed §97.1051(6)(A), a representative of Association of Texas Professional Educators (ATPE) requested removal of the words "some or all" because this wording limits the discretion of the CIT by effectively requiring the removal of educators from the campus, and in so doing goes beyond the statutory requirements.

Agency Response. The agency disagrees in part and agrees in part. The words "some or all" will remain in the rule in alignment with the intent of HB 1, 79th Texas Legislature, Third Called Session. However, the definition for reconstitution is modified to clarify that the CIT shall take into consideration any proactive measures the school or district has already taken regarding campus personnel. The definition for reconstitution is renumbered as paragraph (4) due to the revision of definitions under this section.

Comment. A legislator, a charter school chief executive officer (CEO) and founder, five administrators, a charter school founder, a representative of ACE, a superintendent of a charter school, and an individual suggested that the agency's proposed rules under TEC, Chapter 39, exceed its statutory authority. A legislator, charter CEO and founder, five administrators, a charter school founder, a representative of ACE, a superintendent of a school, and an individual suggested that the agency's proposed rules under TEC, Chapter 39, implement a bill that failed to pass the Texas Legislature. A legislator, a charter CEO and founder, five administrators, and a charter school founder suggested that the agency's proposed rules under TEC, Chapter 39, violate the procedural due process rights of charter holders.

Agency Response. In response to these comments, references to charter schools in 19 TAC §97.1051, Definitions, and §97.1053, Purpose, have been removed, leaving those matters to be determined by statute.

Comment. A CEO and founder of a charter school asked that the agency carefully consider the negative impact that the proposed rules under TEC, Chapter 39, will have on drop-out recovery charter schools. The commenter stated the best and most experienced minds remind us of the need to overhaul the state accountability system to recognize and reward these special schools, and the proposed rules as a group ignore the promise that adverse action against the charter contract will consider the "best interest of the students" under TEC, §12.115(b). The commenter strongly urged that these errors and oversights be corrected, and that the adoption of the rules be delayed until the next legislative session to permit the Legislature the opportunity to correct accountability to reflect learning growth.

Agency Response. In response to this comment, references to charter schools in 19 TAC §97.1051, Definitions, and §97.1053, Purpose, have been removed, leaving those matters to be determined by statute.

§97.1053, Purpose

Comment. Concerning proposed §97.1053(b)(4), a representative of Texas AFT stated that the proposed language suggests that schools may be penalized to serve as an example to others without strictly focusing on the facts and the best interest of the school's students.

Agency Response. The agency disagrees. Any system of sanctions is intended to change behavior by providing motivation for improvement. A sanction is distinct from an intervention, although both are intended to induce change. A sanction includes the element of deterrence. Closure of a district is inherently harsh, yet this is required by TEC, §§39.071(c), 39.131(a), and 39.1321(c). Similarly, closure of a campus is inherently harsh but is required by TEC, §39.1324 and §39.1327. One benefit to the school children in attendance at the affected campus or district may be that the low-performing school is closed, causing the students to attend a school that is better able to serve them. However, this is not the primary benefit to those students. The primary benefit of providing credibly for district and campus closure is that, because these consequences are the only alternative, the great majority of districts will choose to make improvements needed to effectively address their accreditation weaknesses. Section 97.1053 does not make general deterrence the sole or even the primary purpose of sanctions under these rules. However, it is an essential purpose and should be identified as such.

Comment. Concerning proposed §97.1053(b), a representative of a board of trustees stated that the proposed rule addresses the purposes for accreditation statuses and sanctions, but proposed paragraphs (1) and (5) address only the standards for sanctions. The commenter questioned whether the purposes listed are limited to sanctions, or also cover accreditation statuses.

Agency Response. The agency disagrees. Paragraphs (1) and (5) are both related to the purposes of accreditation statuses and sanctions, as stated in subsection (a).

Comment. Concerning proposed §97.1053(c), a representative of Association of Charter Educators (ACE) stated that the proposed language indicates that accreditation status commences with the 2007 ratings, but that sanctions can be applied based on earlier years' performance. The commenter stated that because the legislature made charter schools subject to TEC, Chapter 39, sanctions in HB 1, 79th Texas Legislature, Third Called Session, the only relevant sanctions for charter schools would be for performance that occurred after the effective date of HB 1.

Agency Response. The agency disagrees. Since the inception of the charter program, charter schools have been subject to accreditation sanctions under TEC, Chapter 39. See TEC, §12.104(b)(2)(L). Since 1995, the legislature has amended Chapter 39 many times. Each time it did so, charter schools were bound by the new law. HB 1 is no different in this regard. However, HB 1 is unique in two respects. In HB 1, the legislature provides the manner in which the changes to Chapter 39 were to be applied to charter schools. See TEC, §39.1321. Also in HB 1 the legislature provides that the commissioner must impose a sanction on a campus on the basis of academic performance ratings earned for academic years prior to the enactment of the changes. See TEC, §39.1326. Charter operators were required by TEC, §12.1071, to repudiate these changes by declining further funding after HB 1 if they did not agree to be bound by it.

§97.1053, Purpose, and §97.1055, Accreditation Status

Comment. Two individuals from the Texas Institute for Education Reform questioned whether proposed §97.1053(c) and §97.1055(b)(1), (c)(1), and (d)(1) mean the initial accreditation assigned a district will exclude any consideration of their performance ratings prior to 2007, and if a district with exemplary ratings since the beginning of the ratings system will receive the same accreditation status as a district that was rated Academically Unacceptable every year until 2007. The commenters contended that there is no reason not to consider prior ratings in making decisions about the initial accreditation status, stated that a district that has received consecutive Academically Unacceptable ratings that would warrant a lowered status should be assigned that status, and asked that this limitation be deleted from the proposed rules.

Agency Response. The agency agrees in part. In response to public comments regarding districts with a history of low performance, §97.1053(b) and §97.1055(b)(1), (c)(1), and (d)(1) were modified to move the initial year of accountability ratings used for determination of accreditation status from 2007 to 2006. This reflects the date of passage of HB 1, 79th Texas Legislature, Third Called Session, in 2006. Although ratings from 2006 forward will generally be considered for purposes of counting the number of years of performance identified in §97.1055, ratings and other performance indicators from earlier years are a relevant consideration. For example, under §97.1055(b)(3), (c)(3), and (d)(3), the commissioner may consider the ratings history of the district in addition to the factors identified by §97.1055(b)(1), (c)(1), and (d)(1). In addition, §97.1055(a) was modified to add new paragraph (6) to establish that when necessary to achieve the purposes of §97.1053, the commissioner may withhold the release of an accreditation status pending investigation. This may be especially important in transitioning to the new system.

§97.1055, Accreditation Status

Comment. Concerning proposed §97.1055, a representative of TASB expressed concern that subsections (b)(3), (c)(3), and (d)(3) exceed the statutory authority given the commissioner and could serve as the legal basis for a challenge for the TEA's accreditation ratings. The commenter suggested elimination of subsections (b)(3), (c)(3), and (d)(3).

Agency Response. The agency disagrees. HB 1 gives the commissioner broad discretion to define the accreditation statuses listed in TEC, §39.071(a), and to determine each accreditation status annually under TEC, §39.071(b). The commissioner is authorized and directed to consider the factors identified by TEC, §39.071(b)(1). Section 97.1055(b)(3), (c)(3), and (d)(3) provides the commissioner the flexibility to take into account the unique circumstances of each case. Strict application of the general standards set forth in §97.1055(b)(1), (c)(1), or (d)(1) could lead to outcomes that are inconsistent with the purposes of the statutory framework or contrary to sound public school administration.

Comment. Concerning proposed §97.1055, an individual stated the proposed rules are acceptable, but may not be sufficient for institutions that have illegally tried to avoid negative accountability ratings. The commenter stated that more stringent rules may be needed for districts that have misrepresented facts and data, or broken laws.

Agency Response. The agency agrees that if a school district has knowingly misrepresented information or broken laws more stringent action may be required. Section 97.1055(b)(2)(B), (c)(2)(B), (d)(2)(B), and (e) provide the possibility that sanctions may be accelerated and accreditation status lowered as the result of an investigation into possible illegality.

Comment. Concerning proposed §97.1055, an individual stated if a district or campus is in noncompliance with state and federal statutes there should be no probationary or warning periods.

Agency Response. The agency agrees that the district and campus must be in compliance with state and federal statute, and has implemented monitoring and accountability systems to ensure compliance. The rules as written address the ability of the agency to accelerate sanctions and to order a change to a district's accreditation status or revoke accreditation. Section 97.1055(b)(2)(B), (c)(2)(B), (d)(2)(B), and (e) provide the possibility that sanctions may be accelerated and accreditation status lowered as the result of an investigation into possible illegality. Section 97.1055(b)(3), (c)(3), and (d)(3) permit the commissioner to take appropriate action without first resorting to action that would be inappropriately lenient under the circumstances.

Comment. An individual recommended immediate revocation of State Board for Educator Certification (SBEC) certification for accountable individuals who have not followed statute.

Agency Response. The agency disagrees. The purpose of this rule is not to address individual educator accountability nor SBEC requirements. In circumstances in which an educator fails to abide by statute there may be a need for sanctions, and §97.1055(b)(2)(B) and (c)(2)(B) provide that additional district sanctions may result from an investigation.

Comment. An individual stated when the law is broken one should pay restitution for infringements.

Agency Response. The agency disagrees. The agency lacks statutory authority to impose restitution as a penal sanction. Similarly, the agency lacks statutory authority to impose restitution in the form of a civil penalty. Accordingly, the agency is without statutory authority to comply with the requested change.

Comment. Concerning proposed §97.1055(a)(1)(A)(ii), a representative of Texas Classroom Teachers Association (TCTA) commented that the proposed language could be interpreted to indicate that a school district that has been Accredited-Warned or Accredited-Probation in the past cannot receive accredited status in the current year.

Agency Response. The agency agrees that the proposed language could be misconstrued to reflect past tense. In response to public comment, §97.1055(a)(1)(A)(i) and (ii) was modified to clarify the timing of status assignment.

Comment. A representative of TASB stated there is a lack of alignment between the state and federal accountability systems and sanctions, and cited the lack of explicit acknowledgement in the proposed rules of the sanctions related to the No Child Left Behind (NCLB) Act. The commenter recommended that the rules include an explanation of federal as well as state sanctions that may apply under the circumstances, citing proposed §97.1055(b), (c), and (d).

Agency Response. The agency disagrees. These rules implement HB 1. The identification procedures for adequate yearly progress under the NCLB are adopted in rule under 19 TAC Chapter 97, Subchapter AA, §97.1004, Adequate Yearly Progress. The State of Texas is in full compliance with the accountability provisions required by federal law. The agency has an independent obligation to implement HB 1. A single set of rules cannot be adopted that fully implements the spirit and intent of both Congress and the Texas Legislature.

Comment. An administrator commented that under provisions of proposed §97.1055(b)(2)(B)(i), determination of accreditation status may be based on the district's performance in the Performance-Based Monitoring Analysis System (PBMAS), expressed concern about the use of comparative data in the structure of the PBMAS, and stated that inclusion of the PBMAS could result in accreditation sanctions based on a measure that may not be a meaningful indicator of a district's effectiveness in serving special populations.