The Texas Education Agency (TEA) adopts amendments to §§97.1051, 97.1053, 97.1057, 97.1059, 97.1065, and 97.1073, concerning accreditation status, standards, and sanctions. The amendments to §97.1051 and §97.1065 are adopted with changes to the proposed text as published in the September 29, 2017 issue of the Texas Register (42 TexReg 5201). The amendments to §§97.1053, 97.1057, 97.1059, and 97.1073 are adopted without changes to the proposed text as published in the September 29, 2017 issue of the Texas Register (42 TexReg 5201) and will not be republished. The adopted amendments provide additional clarity regarding who may qualify as a professional service provider; outline the standards used by the commissioner to determine the imposition of sanctions and add clarity regarding when conservators, management teams, and boards of managers will be appointed; and update the process for transitioning from a board of managers to the board of trustees. The adopted amendments also update references to the Texas Education Code (TEC) based on recodification legislation from the 85th Texas Legislature, Regular Session, 2017.

REASONED JUSTIFICATION.

§97.1051, Definitions

TEC, §39A.902, authorizes the commissioner to require a campus or district to acquire professional services to address certain deficiencies. The statute does not define what type of entity may provide the professional services. The proposed amendment to §97.1051 as proposed would have expanded the current definition of professional service provider to include any partner, not just educators.

In response to public comments, the definition was modified at adoption to include any approved service provider, rather than simply educators or partners. The intention of the change is to ensure that high quality applicants, who meet specific qualifications or requirements and satisfy the agency vetting process provide the services, thereby increasing the quality and availability of professional services providers.

§97.1057, Interventions and Sanctions; Lowered Rating or Accreditation Status, and §97.1059, Standards for All Accreditation Sanction Determinations

TEC, Chapter 39A, authorizes the commissioner to impose sanctions and interventions on districts and campuses that do not satisfy applicable standards.

The adopted amendment to §97.1057(d) places into rule the statutory authorization to appoint a board of managers found in TEC, §39A.006, when, for two consecutive school years, including the current school year, the district has had a conservator or management team assigned. The adopted amendment defines a school year as starting on the first day of instruction and including any portion of the school year. Since school years can vary between districts, the adopted language uses the first day of instruction as a common starting point between districts. By defining school year as any portion of the school year, the language clarifies that the current school year need not be the entire school year. If the current school year were required to be the full school year, one could never satisfy the standard because once the current school year was completed, it would no longer be the current school year. The adopted amendment implements past practice by the agency.

The adopted amendments to §97.1057(f) and §97.1059 establish an additional standard that the commissioner may consider when making determinations to impose sanctions and interventions. Section 97.1057 establishes the primary consideration to be the best interest of the district's students. The adopted amendment to §97.1057(f) makes clear that an inability to implement effective change to improve student performance at the district or campus is contrary to the best interest of the district's students. Additionally, §97.1059 establishes what constitutes a material deficiency for which sanctions shall be imposed. The adopted amendment to §97.1059 makes explicit that an inability to implement effective change to improve student performance at the district or campus is considered a material deficiency for which sanctions on a district or campus shall be imposed. The statutory framework establishes a system to ensure that public schools improve student performance. The adopted amendments make clear that an inability to initiate change focused on improving student performance acts against students' best interest and will initiate intervention processes.

§97.1065, Commissioner Determinations for Decisions Preceding Alternative Management, Campus Closure, or Board of Managers

TEC, §39A.001, requires the commissioner to take actions for districts under TEC, Chapter 39A, Subchapter A, Accountability Interventions and Sanctions, to the extent the commissioner determines necessary. TEC, §39A.002, allows the commissioner to take several actions if a district does not satisfy one of several standards, including the appointment of monitors, conservators, and management teams. TEC, §39A.102, allows the commissioner to appoint a monitor, conservator, management team, or board of managers to the school district to ensure support of low-performing campuses and implementation of the targeted improvement plan.

Adopted new §97.1065(b) makes explicit that actions taken against campuses under TEC, §39A.107, are subject to commissioner rules adopted in 19 TAC Chapter 157, Hearings and Appeals, for challenging interventions. The rules in 19 TAC Chapter 157 comply with the statutory requirements established under TEC, §39A.301. Clarification of the challenge process ensures uniformity in applying interventions and recourse to interventions.

TEC, §39A.112, authorizes the commissioner to establish the time and manner for a parent petition to direct the sanction imposed based on five consecutive years of unacceptable campus performance. The adopted amendment to §97.1065(d) updates the requirements for a parent petition, making it clear that the superintendent is responsible for certifying a valid petition and that parent signatures collected after the issuance of preliminary ratings for the fourth consecutive year of unacceptable performance are part of the petition. The adopted amendment should facilitate the processing and delivery of a valid petition. The adopted amendment also makes clear that the sanction will be implemented for the current year or, if necessary, for the subsequent school year regardless of performance rating. This change recognizes the difference in timing between the appointment of a board of managers, which can be done relatively quickly, or the closure of the campus, which would displace students if done immediately. The change ensures that a campus would not be required to close in the middle of a school year.

In response to public comments, §97.1065(d)(2)(B) was modified at adoption to clarify that a parent petition could only request a sanction pursuant to §97.1065(a)(2). This change aligns with statute as education code allows a petition for appointment of a board of managers or closure of the campus but does not allow a petition for alternative management.

§97.1073, Appointment of Monitor, Conservator, or Board of Managers

The adopted amendment to §97.1073(b) makes explicit that a monitor may be appointed when a district is assigned an accreditation status of warned or probated. This will ensure that the commissioner may be kept apprised of actions of the district to enact change. The adopted amendment implements TEC, §39A.102, which authorizes the assignment of a monitor to ensure support of low-performing campuses and implementation of a targeted improvement plan.

The adopted amendment to §97.1073(c) makes explicit that a conservator or management team may be appointed when a district is assigned an accreditation status of probation. The adopted amendment also implements TEC, §39A.102, which authorizes the assignment of a conservator or management team when necessary to ensure district-level support of low-performing campuses or implementation of a targeted improvement plan. This change will ensure that actions may be required of the district to initiate necessary changes to improve performance.

The adopted amendment to §97.1073(d) makes clear that the appointment of additional conservators to establish or add to a management team is not an additional sanction subject to additional review. The imposition of a conservator or management team is driven by performance, and the district has a review opportunity at that time. The use of multiple conservators or a single conservator is a decision of efficiency and efficacy of the intervention tool, not a question of whether the district is subject to the intervention.

TEC, §39A.111, requires the commissioner to either close a campus or appoint a board of managers if a campus reaches five consecutive years of unacceptable performance. TEC, §39A.115, authorizes the commissioner to adopt rules to implement TEC, Chapter 39A, Subchapter C, Campus Turnaround Plan. The adopted amendment to §97.1073(e) makes clear that the commissioner may appoint a board of managers to ensure and oversee district-level support to low-performing campuses and the implementation of the targeted improvement plan, when closure of a campus is not ordered and a campus meets the standards under TEC, §39A.111, when deficiencies identified in a special accreditation investigation warrant the appointment of a board of managers, or a failure in governance results in the inability to carry out the powers and duties of the board of trustees. The adopted amendment implements TEC, §39A.102, which authorizes the assignment of a board of managers when necessary to ensure district-level support of low-performing campuses or implementation of a targeted improvement plan. The adopted amendment makes clear that a board of managers may be placed based on deficiencies identified in a special accreditation investigation. The adopted changes incorporate the explicit statutory authorizations.

TEC, §39A.208, requires that a board of managers transition back to a board of trustees over the last three years of the board of managers appointment, as close to one-third of the members at a time as possible. The statute also requires the board of managers to continue to call for elections of board of trustees although the board of trustees's authority is suspended. The statute further requires that a board of trustees may only be restored if the members were elected under an election called by the board of managers. The adopted amendment to §97.1073(g) clarifies that the commissioner may determine the order of the trustee positions restored to authority during a board of managers transition. The adopted amendment also states that in the absence of a designation, the default transition established in §97.1073 will be maintained. As districts have multiple configurations of trustee positions, providing for commissioner determination of transition will allow the commissioner to adjust for unique circumstances and ensure the transition occurs in an orderly fashion.

Several sections of the TEC authorize the commissioner to appoint a board of managers. TEC, Chapter 39A, Subchapter E, establishes parameters and requirements of a board of managers. Decisions of number of the board of managers and terms of the board of managers are not statutorily defined. TEC, §39A.207, provides explicit authorization of the commissioner to replace members of the board of managers when placed due to campus-based interventions. The adopted amendment to §97.1073(g) makes clear that the commissioner may expand or reduce the number of members on a board of managers and may remove a member as needed. This change will ensure that as circumstances change, the board of managers will remain an effective intervention to improve performance of the district.

§§97.1051, 97.1053, 97.1057, 97.1065, and 97.1073

SB 1488, 85th Texas Legislature, Regular Session, 2017, recodified TEC, Chapter 39, Subchapter E, into TEC, Chapter 39A. Sections 97.1051, 97.1053, 97.1057, 97.1065, and 97.1073 were amended to update cross references affected by the recodification.

Additionally, the subchapter was reorganized at adoption to implement the division structure. Sections 97.1051, 97.1053, 97.1057, 97.1065, and 97.1073 will be organized under Subchapter EE, Accreditation, Division 1, Status, Standards, and Sanctions, along with §§97.1055, 97.1059, 97.1061, 97.1063, 97.1064, 97.1066, 97.1067, 97.1069, 97.1071, and 97.1072, which were not amended as part this adoption.

SUMMARY OF COMMENTS AND AGENCY RESPONSES. The public comment period on the proposal began September 29, 2017, and ended October 30, 2017. Following is a summary of public comments received and corresponding agency responses regarding the proposal.

Comment. The Texas Association of School Administrators (TASA) and the Texas Association of School Boards (TASB), the Texas School Alliance (TSA), and Houston Independent School District (ISD) stated that using the term, "partner" in 19 TAC §97.1051(10) is without clarity.

TSA and Houston ISD proposed that the educator credentials be mandatory for a professional service provider; TASA/TASB proposed the term "an educator or a non-profit entity" be used. Houston ISD supported the use of the term "institution of higher education or an educator who has been vetted." The Texas State Teachers Association (TSTA) urged the commissioner to maintain the current language (educator).

Agency Response. The agency agrees that more specificity is needed regarding PSP credentials. The agency took action in response to these comments to amend at adoption §97.1051(10) to read "(10) Professional service provider (PSP)--An approved service provider who has been vetted through an application or a request for qualifications (RFQ) process to provide on-site technical assistance for underperforming schools and districts either by the Texas Education Agency (TEA) or the TEA's technical assistance provider."

Comment. Houston ISD noted that proposed changes to §97.1051(10) would expand state government regulation and should be reflected in the Government Growth Impact Statement.

Agency Response. The agency disagrees. The proposed change would allow districts more flexibility and would therefore contract, rather than expand, government regulation.

Comment. TSA suggested that, pursuant to §97.1053(b), if the state assessment programs and accountability system rules are sufficiently changed for the state to not calculate year-over-year improvements, then the earlier ratings cannot be considered material to current results or ratings.

Agency Response. This comment is outside the scope of the current rule proposal.

Comment. TASA/TASB stated that in §97.1057(d), the definition of "school year" as meaning "any portion of the school year" is very subjective.

Agency Response. The agency disagrees that the proposed definition of "school year" is subjective. The definition provides specificity and clarity regarding what constitutes a "school year" for the purposes of this subsection.

Comment. TASA/TASB stated that in §97.1057(d), the definition of "school year" as meaning "even for a single day" appears to exceed the intent of statute; TSA asked, is this change within the commissioner's rulemaking authority. TASA/TASB recommended that the definition of "school year" include a longer, more reasonable period, such as six months, which would better meet the intent of statute and not exceed the commissioner's authority.

Agency Response. The agency disagrees that this amendment to §97.1057(d) is unreasonable or outside of the commissioner's rulemaking authority. The definition provides specificity and clarity regarding what constitutes a "school year" for the purposes of this subsection, and is therefore within the commissioner's authority. Additionally, there is no statutory definition of "school year" as utilized in this subsection. No additional changes were made as a result of this comment.

Comment. TSA asked the reasoning behind §97.1057(d), and what circumstances might trigger appointment of a board of managers after a district has demonstrated acceptable performance.

Agency Response. The agency provides the following clarification. The agency proposed new §97.1057(d) to allow for the elevation of sanctions in cases where a school district is not adequately addressing issues, outside of accreditation issues, with the assistance of a conservator or management team. The appointment of a board of managers in a district that has demonstrated acceptable performance could be triggered if a conservator or management team has been assigned to the district for two consecutive school years. This will allow the commissioner flexibility to help improve a district's performance.

Comment. TASA/TASB argued that §97.1057(d) exceeds statute by stating that the commissioner may appoint a board of managers, "a majority of whom must be residents of the district." TASA/TASB further recommended that language in the proposed rules be changed to require all appointees be district residents unless the agency can show that there are no qualified individuals within the district.

Agency Response. The agency disagrees. This rule aligns with Texas Education Code, §39A.006(c) (formerly §39.102(b)), which states, "the majority of a board of managers appointed under this section must be residents of the school district."

Comment. TSA proposed that rather than a "majority" of the board, as referenced in §97.1057(d), "all members (if possible)" of an appointed board of managers reside in the district.

Agency Response. The agency disagrees. This rule aligns with Texas Education Code, §39A.006(c) (formerly §39.102(b)), which states, "the majority of a board of managers appointed under this section must be residents of the school district."

Comment. Houston ISD expressed concern with the provision of §97.1057(d), as it appears Houston ISD could get a board of managers soon because of the conservator in place at Kashmere High School. Houston ISD also stated that the conservator's role has expanded over the last two school years to include more districtwide responsibilities.

Agency Response. The agency disagrees with this comment. The statute allows the commissioner to appoint a board of managers when the district has needed agency intervention for two consecutive school years.

Comment. Houston ISD and TSTA recognized that the provision in §97.1057(d) that a majority of the board of managers should live in the school district of their appointment, is based on education code, but expressed their disagreement with someone outside of the community supplanting elected board members.