The Texas Education Agency (TEA) adopts an amendment to §101.4002, concerning end-of-course (EOC) substitute assessments for graduation. The amendment is adopted with changes to the proposed text as published in the October 11, 2019 issue of the Texas Register (44 TexReg 5857) and will be republished. The adopted amendment reflects changes in statute made by Senate Bill (SB) 213, 86th Texas Legislature, 2019. The adopted amendment modifies the rule to align Texas assessment and accountability policies with federal requirements.

REASONED JUSTIFICATION: Section 101.4002 specifies the assessments the commissioner of education recommends as substitute assessments that a student may use to meet EOC assessment graduation requirements and establishes the cut scores needed for graduation purposes. The adopted amendment updates the language to be in alignment with state and federal laws. There are no changes to the substitute assessments allowed or the required scores indicated in the figure in subsection (b).

In December 2018, the U.S. Department of Education (USDE) issued an action item following a federal monitoring visit requiring Texas to cease the use of substitute assessments for accountability purposes. In March 2019, the TEA responded to the USDE asking for additional time to determine options for continuing this policy while remaining compliant with federal law. TEA has extensively explored options and determined that our state policy on substitute assessments cannot be successfully reconciled with federal accountability statute. As a result, beginning with the 2020 accountability cycle, substitute assessments will not be included in state or federal accountability calculations. Under the Elementary and Secondary Education Act of 1965 (ESEA), a state is required to adopt and administer the same academic assessments to measure the achievement of all public-school students in the state. Furthermore, states are required to include these assessment results in the accountability system.

As proposed, the amendment would have added subsection (c)(1) to require students to take an EOC assessment at least once for federal accountability purposes prior to being eligible to use a substitute assessment to meet graduation purposes. However, based on public comment, it was determined that the addition of subsection (c)(1) was not needed as the modified language in subsection (e) would be sufficient to fulfill federal testing and accountability requirements. Therefore, proposed new subsection (c)(1) has been removed at adoption and the existing subsection numbering has been reinstated.

SB 213, 86th Texas Legislature, 2019, amended the Texas Education Code (TEC), §39.025(a-3), to extend the expiration date of the provision that allows eligible students to qualify to use the Texas Success Initiative assessment as a substitute assessment to September 1, 2023. To implement SB 213, the adopted amendment modifies subsection (d)(2)(B) by extending the expiration date to September 1, 2023.

The adopted amendment modifies the language in subsection (e) to require students to take an EOC assessment at least once for the purpose of federal accountability based on ESEA requirements. The adopted amendment also modifies the language in subsection (e) to remove the reference to "the substitute assessment bubble" as that bubble is no longer included on answer documents for EOC assessments.

The adopted amendment clarifies the names of the assessments in subsection (f) to allow a student to use qualifying scores on PSAT, PLAN, or Aspire tests if he or she has taken that test and a corresponding EOC assessment and failed both. "PSAT" replaces "PSAT-related assessment," which includes all forms of the PSAT and PSAT/NMSQT. "PLAN or Aspire" replaces "pre-ACT" to be more specific.

At proposal, the government growth assessment stated that the proposed rulemaking would decrease the overall number of individuals subject to the rule's applicability since more students would meet assessment graduation requirements with EOC assessments, which they would have had to take first under the proposed rule, instead of substitute assessments. However, since the provision requiring a student to take an EOC assessment at least once before being eligible to use a substitute assessment was removed from the rule at adoption, this government growth impact is no longer applicable.

SUMMARY OF COMMENTS AND AGENCY RESPONSES: The public comment period on the proposal began October 11, 2019, and ended November 12, 2019. A public hearing was held on December 10, 2019. Following is a summary of public comments received and corresponding agency responses.

Comment: The Texas School Alliance (TSA), Texans Advocating for Meaningful Student Assessment (TAMSA), and four individuals expressed support for retaining substitute assessments as an option to fulfill graduation requirements and the extension of the expiration date in the rule.

Response: The agency agrees.

Comment: TSA, TAMSA, and thirteen individuals commented that proposed new subsection (c)(1) is not needed as the proposed amendment to subsection (e) addresses federal accountability requirements.

Response: The agency agrees. The proposed inclusion of new subsection (c)(1) is not needed as the modified language in subsection (e) is sufficient to fulfill federal testing and accountability requirements. Therefore, the agency has modified subsection (c) at adoption to remove the proposed new paragraph (1) and reinstate the numbering for the existing paragraphs.

Comment: Mineral Wells Independent School District (ISD), TAMSA, and more than 50 individuals commented that the proposed amendment to this rule exceeds the authority of the commissioner of education and overrules the intent of the legislature in establishing the option of substitute assessments.

Response: The agency disagrees. TEC, §39.023(i), states that each assessment adopted must meet applicable federal requirements. Therefore, the change in federal requirements necessitated a change to administrative rule to align with federal requirements. TEC, §39.025(a), indicates that the commissioner must establish rules requiring a student to be administered an EOC assessment for a course in which the student is enrolled. The amendment to the rule clarifies the state and federal testing requirements for all students; however, it does not change the option of using substitute assessments to fulfill graduation requirements.

Comment: Mineral Wells ISD and sixteen individuals commented that the proposed amendment to this rule is evidence of undue influence of federal law and the agency on graduation requirements and could negatively impact the academic achievement of students.

Response: The agency disagrees. The amendment to this rule does not change state requirements for graduation and does not remove the option of using substitute assessments to fulfill graduation requirements for any students. The amendment only clarifies the state and federal testing requirements for all students.

Comment: Eleven individuals commented on their disapproval of the State of Texas Assessments of Academic Readiness (STAAR®) and the practice of standardized testing in general.

Response: The agency disagrees. STAAR® assessments are an important aspect of the state's educational accountability system as established by TEC, §39.023. STAAR® measures the extent to which a student has learned and is able to apply the knowledge and skills required to be taught.

Comment: An assessment provider commented that one of their assessment tools has been updated and that cut scores listed in the chart in subsection (b) may need to be adjusted in the near future.

Response: The agency agrees. The agency will make the necessary adjustments to the rule after the updates to the provider's assessment tool have been finalized.

STATUTORY AUTHORITY. The amendment is adopted under Texas Education Code (TEC), §39.023(c), which requires the agency to adopt end-of-course (EOC) assessment instruments for secondary-level courses in Algebra I, biology, English I, English II, and United States history; 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 EOC assessment listed under TEC, §39.023(c), in order to receive a Texas high school diploma; TEC, §39.025(a-1), (a-2), and (a-3), which allow for the use of specific substitute assessments to satisfy the EOC assessment graduation requirements under certain conditions; TEC, §39.025(a-3), as amended by Senate Bill 213, 86th Texas Legislature, 2019, which extends the expiration date to allow a student who has failed to perform satisfactorily on EOC assessment instruments to use the Texas Success Initiative assessment as a substitute assessment to meet graduation requirements. The expiration date changed from September 1, 2019, to September 1, 2023; and the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act, §1111(b)(2)(B)(i) and (vii), which requires the same academic assessments to be used to measure the achievement of all public-school students in the state and all students must participate in the assessments with few exceptions (e.g., students with significant cognitive disabilities).

CROSS REFERENCE TO STATUTE. The amendment implements Texas Education Code (TEC), §39.023; TEC, §39.025, as amended by Senate Bill 213, 86th Texas Legislature, 2019; and the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act, §1111(b)(2)(B).