Education policymakers in Texas are often in the position of balancing a desire for local control against the need for state regulation. School district administrators and board members typically favor deregulation at the state level, using the argument that local officials can best make decisions based on the needs of the community. But deregulation can result in losses of legal rights and protections for teachers, students and parents. State laws such as the state minimum salary schedule, duty-free lunch, planning periods, teacher disciplinary rights, and more are essential components of teacher working conditions and the learning environment.
In recent years, rather than repealing state regulations, lawmakers have chosen to provide more opportunities for bypassing them. Generally, waivers and exemptions are limited to the same laws that do not apply to charter schools. Certain laws, including those pertaining to graduation requirements, testing and accountability, health and safety, special education and bilingual programs (also protected under federal law), and extracurricular activities, cannot be waived or exempted.
The following are the major ways districts can bypass state laws. Employees should pay close attention to school board meetings at which these options are discussed, and should be aware of the exemptions from law that their district has taken.
Districts have long had the ability to request waivers from the commissioner of education for certain laws. Districts must continue to apply for waivers if needed (the longest period for a waiver, only applicable to certain types, is three years) and must follow specific procedures outlined in state law and administrative rule. Common waivers include those regarding staff development, timelines for accelerated instruction, modified days due to state testing, teacher and superintendent certification, student attendance, and class sizes.
Authorized by the Texas Legislature in 2015 under the premise that deregulating districts would lead to innovations in education, District of Innovation plans have instead focused on administrative conveniences such as hiring uncertified educators and increasing class sizes. Plans do not have to be approved by the commissioner, but must be developed and approved by a local committee and voted on by the school board.
A district can initiate the process to become a District of Innovation by either a resolution adopted by the board of trustees or a petition signed by the majority of the members of the district-level site-based decision making committee. If a district chooses to proceed, the plan describing the education program and the laws from which the district seeks exemption must be approved by a majority of the district committee before a vote by the school board. Because a District of Innovation can exempt itself from many laws, including those protecting teacher rights and benefits, the district committee’s role is crucial (read more).
As of Sept. 7, 2022, 871 Texas districts have converted to DOIs. The vast majority of DOI plans (846) include an exemption from the law governing the school start date. Other very common exemptions include teacher certification (803), probationary contract limits (524), and class sizes (400+). These numbers change as districts extend and amend their plans.
More than 100 education laws on the books ranging from bidding/purchasing requirements to the entirety of Chapter 21 (employee rights and benefits) have been excluded by at least one DOI plan.
The 2015 DOI legislation included another deregulation option, suggesting district charters as a “turnaround” option for campuses identified as unacceptable for two consecutive school years. District charter campuses are only subject to certain laws, similar to those that apply to an open-enrollment charter. Charter schools are not required to follow much of the Texas Education Code, and certain teacher rights and benefits (including contract provisions, duty-free lunch, planning time, or the ability to remove disruptive students from classrooms) could be taken away.
Under legislation passed in 2019, the law was expanded to allow the designation of a campus as an “ACE” (accelerated campus excellence) school. The ACE plan must be prepared by the school district in consultation with the campus intervention team and allow parents, the community and stakeholders an opportunity to review the plan before it is submitted for approval to the board of trustees. The plan must include written comments from the campus-level site-based decision-making committee, if applicable; parents; and teachers. However, unlike other campus turnaround plans, an ACE plan must include a detailed description of employment and compensation structures for the principal and teachers, and the principal assigned to the campus has final authority over personnel decisions. Additionally, the commissioner is authorized to determine whether the plan meets the applicable statutory provisions in deciding whether to approve the plan.
At least 60% of the teachers assigned to the campus must be teachers who have demonstrated instructional effectiveness during the previous year. For a teacher who was in the district the previous year, effectiveness is based on the teacher’s impact on student growth as determined through a locally developed value-added model that measures student performance on at least one assessment selected by the district, and an evaluation based on classroom observation. For a teacher who was not in the district the previous year, effectiveness is determined through data and other evidence indicating that the teacher would have performed in the top half of teachers in the district.
The significant amount of authority given to the commissioner to deem a campus ACE plan’s employment and compensation structures acceptable is cause for concern. The commissioner’s decision regarding approval of an ACE plan is final and not appealable. The final authority given to the principal of an ACE campus over personnel decisions is also cause for concern. It will be important for teachers and support personnel at struggling campuses to pay close attention to school district attempts to create ACE turnaround plans and to review and comment on such plans. Since any campus turnaround plan must include written comments from the campus site-based decision-making committee, this serves as yet another example of the need for teachers and instructional personnel to participate on their campus SBDM committees.
Senate Bill 1882, a law passed in 2017, allows a school board to partner with an open-enrollment charter school or other eligible entity (such as a university or nonprofit) to operate a district campus, including as an alternative to state intervention under accountability statutes. Districts can receive additional funding for taking advantage of this program. On paper, SB 1882 offers districts flexibility in the partners they approach and the type of campus they decide to operate. It also allows districts with one or more failing schools a chance to turn them around without accountability sanctions. But districts that choose this process give up control of their campuses to an outside entity, which could spell trouble for teachers, students and parents.
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