State Regulatory Enforcement In Public Education
State Board of Education (SBOE) Enforcement-Related Powers
Accountability and Performance Ratings. Although it is the Commissioner's explicit charge in the Texas Education Code Chapter 39 to define the public education accountability system, establish standards and assign ratings, statute has left a rule-making role for the State Board of Education (SBOE) which is very limited in scope. The SBOE adopts the academic excellence indicators and rules that establish the ratings to evaluate the performance of school districts and to assign to each district a performance rating in the categories defined in statute. The rules adopted by the board must be consistent with the Commissioner's rules for accountability standards and ratings.
The Texas Education Code and SBOE rules allow Public Education Information Management System (PEIMS) data reporting to be used as an additional criteria in the accountability standards. 1 Neither the SBOE nor the Commissioner of Education has adopted any AEIS indicator to measure data quality. The SBOE recently adopted an amendment to §97.2 and §97.5 to make a district's compliance with special education rules a factor in a district's accreditation, effective September 2000; 2PEIMS data reporting could likewise be added, if consistent with the Commissioner's explicit statutory authority for establishing rating criteria and standards.
In both the 1999 and 2000 rating cycles, provisions were made to permit both district and campus ratings to be impacted by data reporting errors. In 1999, the Texas Education Agency (TEA) assigned four districts the Unacceptable: Data Quality rating and some of their campuses a rating of Acceptable: Data Issues. In 2000, there was an allowance for suspended ratings pending data quality investigations, but those ratings did not need to be invoked. Criteria for investigation are published in the agency's annual Accountability Manual, a portion of which is adopted by reference as a Commissioner's rule.
Recognition. The SBOE is required to develop a plan for recognizing schools that are rated as exemplary and recognized. 3 A school campus or district that is rated exemplary is exempt from many of the Education Code provisions and rules. 4 The SBOE might consider strengthening the incentives for accurate data reporting by specifically recognizing those districts with excellent data quality.
Probation or Revocation of Charters. The SBOE has the authority to place on probation or revoke a home-rule school district charter. 5 A home-rule school district is a district established under Subchapter B of Chapter 12 of the Education Code that operates under a home-rule charter instead of many state regulations. 6 Under Section 12.027 of the Education Code, the SBOE can place on probation or revoke a home-rule school district charter if the board determines that the district: (1) committed a material violation of the charter; (2) failed to satisfy generally accepted accounting standards of fiscal management; or (3) failed to comply with Education Code, Chapter 12, subchapter B, or "other applicable federal or state law or rule." 7 SBOE rule §100.201 outlines similar grounds for revoking a charter. 8
Section 12.013 of the Education Code requires home-rule school districts to comply with rules relating to PEIMS. But there are no rules adopted for PEIMS. Thus, enforcement via probation or revocation of home-rule charter would be strengthened if the Commissioner adopted rules on PEIMS reporting, as is authorized by Section 42.006 of the Education Code.
The SBOE rule governing probation or revocation of an open-enrollment charter school also is comparable to the Education Code provision. An open-enrollment charter school is a school that is established under Subchapter D of Chapter 12 of the Education Code, that does not have authority to impose taxes, can accept students from other districts, can operate in a facility of a commercial or nonprofit organization, and that is governed by its charter rather than many state regulations. 9 Education Code §12.115 provides that an open-enrollment charter school can be placed on probation or have its charter revoked if the school commits a material violation of its charter, fails to comply with generally accepted accounting standards of fiscal management, or fails to comply with Chapter 12, Subchapter D of the Code "or another applicable law or rule." SBOE rule 100.101 provides that an open-enrollment charter can be revoked for similar reasons. 10
Commissioner of Education Enforcement Powers
On-site Investigations. Section 39.074 of the Education Code authorizes the Commissioner to direct TEA to conduct an on-site investigation of a district to answer any questions concerning a program required by federal law or for which the district receives federal funds. 11 Section 39.074, does not explicitly authorize TEA to conduct on-site investigations to answer questions about academic excellence indicators, accreditation status or PEIMS data reporting. However, Subsection (d) of Section 39.074 implies that on-site investigations can be conducted of the district's accreditation stating that "[t]he agency shall give written notice to the superintendent and the Board of Trustees of any impending investigation of the district's accreditation."
In addition, Sections 39.073 (Determining Accreditation Status) and 39.075 (Special Accreditation Investigations) authorize TEA to conduct investigations concerning the state's accountability program. Section 39.075 also authorizes the Commissioner to perform special accreditation investigations in response to established compliance reviews of the district's financial accounting practices and state and federal program requirements. 12
The Commissioner is required to authorize special accreditation investigations under the following circumstances:
- excessive absences of students eligible to be tested on state assessments;
- excessive exemptions from required state assessments;
- in response to complaints about alleged violations of civil rights, federal law or court orders;
- in response to reviews of a district's financial accounting practices and state and federal program requirements;
- excessive numbers of students placed in alternative education programs; or
- in response to school board conflicts. 13
Corrective Actions. The Commissioner can raise or lower the performance rating of a district based on the on-site investigation performed under Section 39.074. 14 Based on the results of a special accreditation investigation under Section 39.075, the Commissioner can lower a district's accreditation rating or impose sanctions on a district as provided in Section 39.131, or impose both sanctions and lower an accreditation rating. 15 Commissioner rules also provide that school ratings may be revised as a result of investigative activities. 16
If a school district does not satisfy the accreditation criteria, the Commissioner must take one or more of the following actions, at the Commissioner's discretion:
- issue public notice of the deficiency to the local school board;
- order the school board to conduct a public hearing on the deficiency;
- order the school district to prepare a student achievement improvement plan for approval by the Commissioner and implementation by the district;
- order the superintendent and school board president to appear at a TEA hearing;
- arrange an on-site investigation of the district;
- appoint an agency monitor for the district;
- appoint a master to oversee district operations;
- appoint a management team to direct district operations in the low-performing areas or direct the district to contract for such management with another person;
- if the district has been low-performing for one year or more, appoint a board of managers to exercise the powers of the school board; or
- if the district has been low-performing for two years or more, annex the district to an adjoining district or revoke its home rule charter. 17
If a campus is below academic excellence indicator standards, it is considered a low-performing campus, and the Commissioner may take any one of the following actions:
- issue public notice of the deficiency to the local school board;
- order the school board to conduct a public hearing on the deficiency;
- order the preparation of a report on the parental involvement program at the campus and a plan for improving parental involvement;
- order the preparation of a report on the effectiveness of the district and campus-level planning and decision-making committees, and a plan for improving the effectiveness of those committees;
- order the preparation of a student achievement improvement plan for Commissioner approval and implementation by the campus;
- order the superintendent, school board president and campus principal to appear at a hearing before TEA;
- appoint a special campus intervention team to conduct a comprehensive on-site evaluation, recommend actions, assist in the development of an improvement plan and assist the Commissioner in monitoring campus progress;
- if the campus has been low-performing for one year or more, appoint a board of managers to exercise the powers of the school board; or
- if the campus has been low-performing for two years or more, order closure of the school program on the campus. 18
Audits. The Commissioner is authorized to review school district fiscal management and is required to report annually to the SBOE on the status of school district fiscal management as reflected by advisory guidelines and statutory requirements. 19 The Commissioner is also required to review school district audit reports. 20 To fulfill that responsibility, the Commissioner has access to all district fiscal and financial records the Commissioner considers necessary and appropriate. The audit reports are supposed to include an audit of the accuracy of the fiscal information provided by the district through PEIMS. 21
Based upon the Commissioner's review of a district's audit report, the Commissioner is required to notify the school board of any objections, violations of sound accounting practices or law and regulations, or notify the board of any other recommendations concerning the audit reports. If the audit report shows that criminal laws have been violated, the Commissioner is required to notify the appropriate county or district attorney and the attorney general. 22Based upon a review of a district's accounting, enrollment or other records, if TEA's director of school financial audits believes that the records of the district reveal deliberate falsification of records or violations of Chapter 42 of the Education Code (Foundation School Program), resulting in the district's share of funds having been illegally increased, the director is required to report the fact to the SBOE, the state auditor and the appropriate county or district attorney. 23
Awards. Schools that are successful in achieving the education goals of the state, including achieving the highest levels of sustained success or the greatest improvement are eligible to receive awards, including financial awards and proclamations or certificates from the governor. 24 The Texas Successful Schools awards criteria must include consideration of performance on the academic excellence indicators. The Commissioner selects award winners annually to receive the $2.5 million appropriation. 25 There are currently no financial awards given to districts to recognize excellence in data quality.
Administrator Appraisals. The Education Code requires the Commissioner to adopt a recommended appraisal process and criteria on which to appraise school administrators. 26 However, the Commissioner's rules on recommended administrator appraisal criteria do not include compliance with the Education Code or SBOE or Commissioner rules. 27 And there are no separate criteria for evaluating administrators on the accuracy of data submitted to TEA and compliance with data reporting procedures such as for PEIMS. One of the recommended appraisal criteria is "Management of administrative, fiscal and facilities functions." This criteria might be expanded to include regulatory compliance on such issues as TAAS and PEIMS data reporting. For principal appraisals, the Education Code encourages appraisals to be based on the types of information available through PEIMS. 28 The Commissioner's rules do require student performance to be included as an item on appraisals of all principals and superintendents. 29 However, PEIMS data accuracy is not a current appraisal criteria for principals or superintendents in the Commissioner's rules.
State Board for Educator Certification (SBEC) Enforcement Powers
Disciplinary Proceedings. The State Board for Educator Certification is required to propose rules that provide for disciplinary proceedings, including suspension or revocation of an educator's certificate. 30
SBOE rules provide that those who violate the rules governing security or confidentiality of tests may be subject to losing their credentials. 31 Furthermore, persons who fail to report to TEA any violations of security or confidential integrity of tests are also subject to losing their teacher or administrative credentials. 32 SBEC's authority, however, only extends to persons with credentials (for example, certified educators). Many staff members who work with PEIMS data are not certified educators. And charter schools are not required to have certified educators.
The TAAS Administrator Manual describes sanctions for violating test security and confidential integrity of tests. For example, the 1999 manual says that "any person who violates, assists in the violation of, or solicits another to violate or assist in the violation of test security or confidential integrity, and any person who fails to report such a violation are exposed to the following penalties:
- a permanent reprimand affixed to the face of all Texas Teacher Certificates and other education credentials;
- a one-year suspension of all Texas Teacher Certificates and other education credentials;
- a permanent cancellation of all Texas Teacher Certificates and other education credentials."
These sanctions, however, are not expressly listed in SBEC's rules, SBOE rules, or the Education Code. Instead, the SBEC has general rules on credential sanctions at 19 Texas Administrative Code §249.15. Under these rules, SBEC can take disciplinary action for violations of law or for "unworthiness to instruct," but no specific prohibitions are listed for TAAS irregularities or inaccurate data reporting.
Code of Ethics for Educators
Pursuant to the Education Code, the State Board of Educator Certification (SBEC) must develop rules that provide for the adoption, amendment and enforcement of an Educators' Code of Ethics. 33 These rules are adopted at 19 Texas Administrative Code §§249.46 through 249.56. 34 Portions of the Ethics Code are listed below:
- Principle I requires that educators maintain the dignity of the profession by respecting and obeying the law, demonstrating personal integrity and exemplifying honesty. 35
- Principle I, Standard 6, specifies that the educator "shall not falsify records or direct or coerce others to do so." 36
- Principle II, Standard 5, requires the educator to "comply with written local school board policies, state regulations and other applicable state and federal laws." 37
- Principle IV, Standard 5, provides that the educator "shall not deliberately distort facts." 38
SBEC may order disciplinary action against an educator if the educator has conducted school or educational activities in violation of law, or if the educator has violated a provision of the code of ethics. 39
To discipline an educator for violating the Educators' Code of Ethics, the board may take the following disciplinary actions:
- require the withdrawal of a person from an educator preparation program;
- place restrictions on the issuance, renewal or holding of a certificate, either indefinitely or for a set term;
- issue an inscribed or non-inscribed reprimand;
- suspend a certificate for a set term; or
- revoke or cancel a certificate without opportunity for reapplication for a set term or permanently. 40
SBEC rules specify that a complaint against an educator for violating the Code of Ethics must be filed within 90 days after the date of the last act giving rise to the complaint. 41 This 90-day time limit for filing a complaint may be too short to detect any TAAS irregularities, and therefore, could preclude the board from taking any disciplinary action under the ethics code.
School District Enforcement-Related Authority
The Education Code requires the Board of Trustees of each school district to have its school district fiscal accounts audited annually by a certified or public accountant. The Board of Trustees must file the audit report with TEA. 42 The audit is required to include an audit of the accuracy of the fiscal information provided by the district through PEIMS. 43 Thus, a school district should ensure that its independent audit includes an audit of PEIMS data accuracy. School districts also have the power to hire and fire employees. Under the Education Code, a district may discharge or suspend without pay for good cause a teacher who is employed under a probationary, continuing or term contract. 44 A school district could also refer, for prosecution under the criminal laws, any employee suspected of tampering with any public school record.
According to Section 37.10 of the Texas Penal Code, a person commits an offense if he or she knowingly makes a false entry in, or false alteration of, a governmental record. An offense under this section is a felony of the third degree if it is shown at the trial of the offense that the governmental record was a public school record, report or assessment instrument required under Chapter 39, Education Code. 45