The Texas Education Agency (TEA) adopts new §§97.1051, 97.1053, 97.1055, 97.1057, 97.1059, 97.1061, 97.1063, 97.1065, 97.1067, 97.1069, 97.1071, and 97.1073, concerning accreditation statuses, standards, and sanctions. New §§97.1051, 97.1053, 97.1055, 97.1057, 97.1061, 97.1063, and 97.1067, are adopted with changes to the proposed text as published in the June 15, 2007, issue of the Texas Register (32 TexReg 3443). New §§97.1059, 97.1065, 97.1069, 97.1071, and 97.1073 are adopted without changes to the proposed text as published in the June 15, 2007, issue and will not be republished.

The adopted new sections define the accreditation statuses of Accredited, Accredited-Warned, Accredited-Probation, and Not Accredited-Revoked and state how accreditation statuses would be determined and assigned to school districts. The adoption also establishes accreditation standards and sanctions, including definitions, purpose, technical assistance teams, campus intervention teams, reconstitution, campus closure, alternative management, intervention stages, and oversight appointments. The adoption reflects changes required by House Bill (HB) 1, 79th Texas Legislature, Third Called Session, 2006.

HB 1, 79th Texas Legislature, Third Called Session, 2006, amended the TEC, Chapter 39, Public School System Accountability, and, as a result of these changes, new rules must be adopted to implement the changes. The new 19 TAC Chapter 97, Planning and Accountability, Subchapter EE, Accreditation Status, Standards, and Sanctions, establishes new rules to ensure compliance with HB 1, as follows.

New 19 TAC §97.1051, Definitions, defines by rule a number of terms, including "campus," "campus closure," and "reconstitution."

In response to public comment, 19 TAC §97.1051 is modified to incorporate a definition of "person" and to revise the definitions of "campus closure" and "reconstitution." Additionally, a previous reference to the application of these definitions to this subchapter has been revised to reference their applicability to Subchapter DD of this chapter as well as Subchapter EE. Also, in response to comments, terms dealing with charter schools have been removed, leaving those matters to be governed by statute.

New 19 TAC §97.1053, Purpose, states the statutory purposes of accreditation statuses and sanctions. The adoption also explains that the accreditation status assigned to a district under this new subchapter reflects performance beginning with the district's 2006 ratings; however, performance for earlier years would be considered for the purposes of accreditation sanctions.

In response to public comment, 19 TAC §97.1053(b) is modified to indicate that the accreditation status assigned to a district under this new subchapter generally reflects performance beginning with the district's 2006, as opposed to 2007, ratings. Subsection (b) is also modified to clarify that both accreditation statuses and sanctions assigned under the subchapter shall take into consideration the performance of districts for earlier years. In response to comments, references to charter schools have been removed, leaving those matters to be determined by statute.

New 19 TAC §97.1055, Accreditation Status, defines the requirements a school district must meet each school year to receive the status of Accredited and states how the accreditation statuses of Accredited-Warned, Accredited-Probation, and Not Accredited-Revoked are determined, in accordance with the TEC, §39.071. The adopted rule also provides the process the commissioner and district must follow when the commissioner determines a district's accreditation status to be Accredited-Warned or Accredited-Probation, including required notification of such status to parents of students enrolled in the district and property owners in the district.

In response to public comment, 19 TAC §97.1055(a)(1)(A) is modified to revise the language describing the meaning of the Accredited status to ensure clarity regarding the timing of status assignment. Additionally, 19 TAC §97.1055(a)(6) is added to address a circumstance in which it may be necessary to leave a district's accreditation status pending during the course of certain investigative activities. Also, 19 TAC §97.1055(b)(1), (c)(1), and (d)(1) are modified to indicate that the accreditation status assigned to a district under this new subchapter reflects performance beginning with the district's 2006, as opposed to 2007, ratings. A technical correction was made to 19 TAC §97.1055(a)(4) to substitute a citation to a new rule for a citation to the TEC to provide additional specificity.

New 19 TAC §97.1057, Accreditation Sanctions, establishes that if a district or campus does not satisfy the accreditation criteria, the commissioner may lower its accreditation status, academic accountability rating, or financial accountability rating or take any other action under the subchapter to the extent the commissioner determines is reasonably required.

In response to public comment, 19 TAC §97.1057(d) is modified to reflect that the sanctions referenced in the subsection may be applied to a district or campus, as applicable. Additionally, the language of 19 TAC §97.1057(e)(3) is modified to revise the language regarding sanction determinations resulting from receipt of a substantial over-allocation of funds.

New 19 TAC §97.1059, Standards for All Accreditation Sanction Determinations, reflects certain standards to be used by the commissioner in determining sanctions. The new rule states that the commissioner shall impose sanctions individually or in combination as determined necessary to achieve the purposes of the sanctions and shall consider the seriousness, number, extent, and duration of deficiencies identified by the TEA in determining sanctions. No changes were made to this section since published as proposed.

New 19 TAC §97.1061, Technical Assistance Team Campuses, references the annual assignment of a technical assistance team to a campus rated Academically Acceptable if that campus would be rated Academically Unacceptable using the accountability standards for the subsequent year. The adopted new rule addresses the waiver of this requirement under standards adopted in the applicable annual accountability manual. The section also defines the composition and discusses the activities of the technical assistance team.

In response to public comment, 19 TAC §97.1061 is modified by the addition of subsection (f) related to circumstances in which a campus that otherwise would be assigned a technical assistance team already has a campus intervention team (CIT) in place.

New 19 TAC §97.1063, Campus Intervention Team; Reconstitution, implements the provisions of HB 1 related to campuses rated Academically Unacceptable under the state academic accountability rating system and the assignment of a CIT to those campuses. Additionally, the section outlines the obligation of certain principals to participate in the school leadership pilot program required under the TEC, §11.203, and the district's responsibility for covering costs associated with the program. The section also defines the timeline under which a campus can and/or will be ordered to undergo reconstitution. In addition, the adopted new rule describes the activities in which the district, campus, and the CIT must engage to facilitate the reconstitution, including timelines and activities related to the retention or removal of campus educators, including the principal. The adopted new rule also discusses circumstances under which the TEA may assign a monitor, conservator, management team, or board of managers to the campus to ensure the implementation of its school improvement/reconstitution plan and when the TEA may order alternative management or closure of the campus.

In response to public comment, 19 TAC §97.1063(a)(2) is modified to clarify the reference to a campus', as opposed to a district's, failure to implement a school improvement plan or the recommendations of a CIT. In addition, a change was made to 19 TAC §97.1063(b) to specify that the school leadership pilot program is statutorily required. The change also references the program generally in the event the program name changes in the future. Additionally, the language of 19 TAC §97.1063(c)(3) and (e) is modified to better describe when the commissioner will order alternative management or campus closure when a campus has failed to implement recommendations of the CIT or terms of the school improvement or school improvement and reconstitution plan.

New 19 TAC §97.1065, Campus Closure or Alternative Management, implements the provisions of HB 1 related to circumstances under which the commissioner orders and/or is required to order alternative management or closure of a campus. The adopted new rule clarifies that the commissioner may take other actions in combination with actions taken under this section. The rule also clarifies that, when the commissioner's order requires the district or campus to select a specific professional service provider, the district is not required to follow competitive bidding procedures. The adopted new rule provides parameters to be considered by the commissioner in determining whether to order alternative management or closure of a campus. No changes were made to this section since published as proposed.

New 19 TAC §97.1067, Alternative Management of Campuses, implements the provisions of HB 1 related to the assignment of alternative management entities to certain campuses. The adopted rule specifies the timelines and requirements for district implementation of an alternative management contract and discusses the roles that will be played by the alternative management entity. The adopted rule also specifies a district's obligation to a campus for which alternative management has been ordered.

In response to public comment, 19 TAC §97.1067(c)(2) is modified to clarify the references to statute and rule regarding ways in which the commissioner may respond to reports received from an alternative management service provider.

New 19 TAC §97.1069, Providers of Alternative Campus Management, provides for a request for qualifications (RFQ) to solicit proposals from qualified non-profit management entities to assume the alternative management of a campus. The rule also specifies that the commissioner may appoint a school district in the same education service center region to provide services as the alternative management of the campus in the same manner as a non-profit entity. No changes were made to this section since published as proposed.

New 19 TAC §97.1071, Special Program Performance; Intervention Stages, codifies intervention and sanction processes in place under the Performance-Based Monitoring (PBM) system. The adopted rule describes intervention activities, notification processes for PBM intervention staging, and possible interventions and/or sanctions that may be implemented under the PBM system. No changes were made to this section since published as proposed.

New 19 TAC §97.1073, Appointment of Monitor, Conservator, or Board of Managers, is added to establish criteria for the appointment of a monitor, conservator, management team, or board of managers by the commissioner. No changes were made to this section since published as proposed.

The public comment period on the proposal began June 15, 2007, and ended July 15, 2007. The comment period was extended through August 20, 2007. Following is a summary of public comments received and corresponding agency responses regarding the proposed new sections.

§97.1051, Definitions

Comment. Concerning proposed §97.1051, a representative of Texas State Teachers Association (TSTA) requested that definitions of campus intervention team (CIT), technical assistance team (TAT), manager conservator, and any other term of art used in the rules be included in the definitions section.

Agency Response. The agency disagrees. These terms are defined in statute under Texas Education Code (TEC), §§39.131, 39.132, 39.1322, and 39.1323, and the agency is using those definitions.

Comment. Concerning proposed §97.1051(3), two school district administrators and a representative of Texas Association of School Administrators (TASA) stated that requiring completely different instructional programs at grade levels not previously served would make the cost of the retrofit of the building and contents quite high.

Agency Response. The agency disagrees. While the agency agrees that the cost of retrofitting a high school to serve elementary students could be quite high in unique circumstances, closure is only ordered when a campus has exhibited persistently low performance over four ratings cycles.

Comment. Concerning proposed §97.1051(3), a school district administrator stated that the elected school board of the district should decide if a school building is to be repurposed, but the commissioner could determine the factors that would govern the repurposing, and suggested possible factors for consideration. The commenter predicted the greatest impact of a closure determination by the agency would be on high schools, and that crowded conditions in other high schools and distance between high schools would result in long commutes. The commenter proposed that the agency set a date for campus closure that is minimally disruptive.

Agency Response. The agency disagrees in part and agrees in part. 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 or charter school has multiple opportunities to make changes to the campus in prior years, based on criteria it sets. The agency agrees that consideration should be given to disruptions, but also recognizes the need to balance this consideration against the educational needs of students served by the campus. At such time that a campus closure would be ordered, the agency will set a date that provides reasonable opportunity for the district to prepare.

Comment. Concerning proposed §97.1051(3), two school district administrators; two individuals from the Texas Institute for Education Reform; and representatives of TASA, TSTA, Texas School Alliance (TSA), and Texas Association of School Boards (TASB) stated that the proposed rule limits the options for use of a repurposed building by requiring that the repurposed campus not serve students at the same grade levels as the closed campus because this would exclude using the repurposed building to serve students of one gender at the same grade levels, or entering into an agreement with charter school operators to operate a campus with the same grade levels. The TASB representative stated that this appears inconsistent with the TEA's high school redesign initiative.

Agency Response. The agency disagrees. A district ordered to close a campus may apply to the commissioner to repurpose the facility. Under the provisions of TEC, §39.1324, closure occurs after the campus has exhibited patterns of persistent low performance. The agency finds that the definition aligns with the intent of HB 1, 79th Texas Legislature, Third Called Session.

Comment. Concerning proposed §97.1051(3), a representative of TASB stated that the proposed rule regarding repurposing a building are overly restrictive and could impose significant hardships on districts that only have one or two schools serving the same grade levels. The representative commented that small districts may not have the facilities to comply. The commenter recommended that the agency require the submission of a plan describing how the facility will be used to promote high achievement.

Agency Response. The agency disagrees. Under the provisions of TEC, §39.1324, closure occurs after the campus has exhibited patterns of persistent low performance. The agency finds that the definition aligns with the intent of HB 1, 79th Texas Legislature, Third Called Session.

Comment. Concerning proposed §97.1051(3), a representative of TASB recommended allowing local school boards to determine how best to use their facilities under circumstances in which closure is ordered.

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 or charter school has multiple opportunities to make changes to the campus in prior years, based on criteria it sets.

Comment. Concerning proposed §97.1051(3)(C), two individuals from the Texas Institute for Education Reform questioned the need to change the name of the school building in order to comply with the definition of closure and commented that this discourages the use of legislative options.

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. Requiring the assignment of a different name for the facility is one of the steps the district must take to assure the agency and the public that the multiple-year Academically Unacceptable facility is closed.

Comment. Concerning proposed §97.1051(3)(C)(ii), two school district administrators, a representative of the Texas Chapter of the American Federation of Teachers (Texas AFT), a representative of TSTA, and a representative of TASA objected to the requirements that at least 75% of the students and 75% of the faculty of a closed campus be removed or reassigned and questioned how the 75% figure was determined.