The Texas Education Agency adopts an amendment to §101.4002, concerning substitute assessments for graduation. The amendment is adopted with changes to the proposed text as published in the October 19, 2018 issue of the Texas Register (43 TexReg 6926). The adopted amendment clarifies and updates the language and satisfactory scores used for substitute assessments to satisfy the state's end-of-course (EOC) graduation requirements.

REASONED JUSTIFICATION. Section 101.4002, State of Texas Assessments of Academic Readiness End-of-Course Substitute Assessments, specifies the assessments the commissioner of education recommends as substitute assessments that a student may use in place of a corresponding EOC assessment and establishes the cut scores needed for a student to use a substitute assessment for graduation purposes. The adopted amendment clarifies and updates the language and satisfactory scores in this section as follows.

The adopted amendment clarifies the language in subsection (b) to allow a student to use qualifying scores on separate sections of a substitute assessment in place of specific EOC assessments. For example, a student can use a qualifying score on SAT mathematics as a substitute for Algebra I and a qualifying score on SAT evidence-based reading and writing as a substitute for English I.

The adopted amendment also amends the figure in subsection (b) by adding and adjusting passing scores for the Texas Success Initiative (TSI) assessment to align with performance standards adopted in 19 TAC §4.57(a), College Ready Standards. All other approved substitute assessments and their corresponding cut scores are unchanged. The footnotes in the figure are modified to specify that satisfactory scores must be achieved on substitute assessments and clarify which EOC requirements the TSI English language arts assessment may fulfill.

The adopted amendment clarifies the language in subsection (c) to allow a student at any grade level to use a substitute assessment when he or she is enrolled in the corresponding course.

The adopted amendment clarifies the language in subsection (d) to allow a student to use the TSI assessment as a substitute assessment if he or she meets the requirements under paragraph (1) or (2) of the subsection. It also explains that the requirements under paragraph (1)(A) indicate that a student must meet the qualifying scores on all three sections of the TSI English language arts assessment. Additionally, the adopted language in paragraph (2) clarifies that a student would have to have taken an EOC assessment and failed two times before he or she could qualify to use the TSI assessment as a substitute under the paragraph. Finally, paragraph (2)(B) is amended to implement the requirements of Senate Bill 463, 85th Texas Legislature, Regular Session, 2017, by extending the expiration date for paragraph (2) from 2017 to 2019.

The adopted amendment adds language in subsection (e) to prohibit a district from discounting a student's responses to an EOC assessment in lieu of a substitute assessment.

The proposed amendment clarified the language in subsection (f) to allow a student to use qualifying scores on pre-SAT or pre-ACT tests if he or she has taken a corresponding pre-SAT or pre-ACT test and a corresponding EOC assessment and failed both. However, based on public comment, subsection (f) was modified at adoption to remove references to "pre-SAT" and replace them with "PSAT-related assessment." No other changes were made to the text of subsection (f) since published as proposed.

SUMMARY OF COMMENTS AND AGENCY RESPONSES. The public comment period on the proposal began October 19, 2018, and ended November 19, 2018. Following is a summary of the public comments received and responses.

Comment: The Texas Association of School Administrators (TASA) requested that the rule not raise the TSI assessment score requirements to be used as a substitute assessment.

Agency Response: The agency disagrees since the rule has not raised the TSI score requirements for use as a substitute assessment. The TSI score requirement listed in the figure in subsection (b) for Objective Writing and Sentence Skills was lowered from 350 to 340, and the score for Writing was lowered from 5 to 4. The TSI score requirements for Mathematics (350) and Reading (351) were added to the figure in subsection (b). These adjustments were made to align with the college readiness benchmarks adopted in 19 TAC §4.57(a), College Ready Standards, as required by Texas Education Code (TEC), §39.025(a-1).

Comment: A school district employee requested that the TSI assessment be allowed as a substitute assessment regardless of course enrollment.

Agency Response: The agency disagrees that the TSI assessment should be allowable regardless of course enrollment because TEC, §39.025(a-1), specifies that the student must be enrolled in a college preparatory course. To clarify, the requirement regarding the use of the TSI assessment as a substitute assessment has not changed.

Comment: TASA requested that the rule not include "three" TSI English language arts score requirements to be used as a substitute assessment.

Agency Response: The agency disagrees. The TSI English language arts assessment includes three sections (Reading, Objective Writing/Sentence Skills, and Writing). The inclusion of the three scores was used to clarify that a student must meet the qualifying scores on all three sections of the TSI English language arts assessment to use it as a substitute assessment. To clarify, the requirement regarding the use of the TSI English language arts assessment as a substitute assessment has not changed.

Comment: TASA requested that the rule not include the "two" retests for students to use the TSI assessment as a substitute assessment. Also, a school district employee requested that the TSI assessment be allowed as a substitute assessment regardless of the number of attempts on an EOC assessment.

Agency Response: The agency disagrees. The inclusion of the two retests was used to clarify that a student would have to take an EOC assessment and fail at least two times (i.e., retest) before he or she could qualify to use the TSI assessment as a substitute as specified in TEC, §39.025(a-3). To clarify, the requirement regarding the use of the TSI assessment as a substitute assessment has not changed.

Comment: TASA requested that the rule not include the language in subsection (e) regarding submitting a student's EOC assessment for scoring instead of a substitute assessment. An employee from a school district asked about the language in subsection (e) and whether a student's EOC assessment could be invalidated for a substitute assessment.

Agency Response: The agency disagrees. TEC, §39.025, requires students to take and pass EOC assessments as part of their high school graduation requirements. The law also allows students to use substitute assessments to satisfy graduation requirements. Nevertheless, if a student has spent time and effort taking an EOC assessment, the district may not override that effort with a substitute assessment during the same administration and discount the student's attempt. If the student passes the EOC assessment, the student has satisfied that part of the graduation requirement. If the student fails, then he or she may elect to use a substitute assessment for the next testing opportunity.

Comment: Employees from two school districts asked for clarification regarding the language in subsection (e). Specifically, they were concerned about the word "discounting".

Agency Response: To clarify, the word "discounting" is used in the agency's narrative summary of the rule proposal, not in subsection (e) of the rule text. If a student has spent time and effort taking an EOC assessment, the district may not override that effort by marking the substitute assessment bubble. If the student passes the EOC assessment, the student has satisfied that part of the graduation requirement. If the student fails, then he or she may elect to use a substitute assessment for the next testing opportunity.

Comment: The College Board requested an adjustment to the name of the assessments referenced in subsection (f) since the College Board does not refer to any test as "pre-SAT". The College Board suggested using "PSAT-Related Assessments."

Agency Response: The agency agrees. The language in subsection (f) has been modified at adoption to remove the reference to "pre-SAT" and replace it with "PSAT-related assessment."

Comment: A district employee asked for clarification regarding "retakes" in subsection (f). Specifically, the employee interpreted this subsection such that a student who fails the EOC assessment would also have to take the PSAT more than once even if the first score would meet the requirements.

Agency Response: To clarify, subsection (c) allows a student to use a qualifying score on his or her first attempt of a PSAT-related assessment or pre-ACT test as a substitute for a corresponding EOC assessment. However, if the student does not meet the qualifying score on a PSAT-related assessment or pre-ACT test and does not pass the corresponding EOC assessment, subsection (f) allows a student to use a qualifying score on a retake of a PSAT-related assessment or pre-ACT test as a substitute assessment.

Comments: The College Board and a school district employee asked about assigning "masters" level performance on substitute assessments.

Agency Response: To clarify, the purpose of a substitute assessment is for students to satisfy graduation requirements. Setting multiple levels of achievement to count toward district accountability is outside the scope of the proposed rulemaking.

STATUTORY AUTHORITY. The amendment is adopted under Texas Education Code (TEC), §39.025, which establishes the secondary-level performance required to receive a Texas high school diploma; TEC, §39.025(a), which requires the commissioner of education to adopt rules requiring students to achieve satisfactory performance on each end-of-course (EOC) assessment listed under TEC, §39.023(c), in order to receive a Texas high school diploma; TEC, §39.025(a-1) and (a-3), which allow for the Texas Success Initiative assessment to be used to satisfy the EOC assessment graduation requirements under certain conditions; and TEC, §39.025(a-2), which requires the commissioner to determine a method by which a student's score on certain national assessments may be used to satisfy the EOC assessment graduation requirements.

CROSS REFERENCE TO STATUTE. The amendment implements Texas Education Code, §39.025.