Texas Education Commissioner attempts to skirt the law with new rules on district partnerships with charter schools and nonprofits

A controversial state law passed in 2017—Senate Bill 1882—gave districts the ability to “partner” with charter schools and other nonprofit entities to take over campuses facing sanctions for low accountability ratings. The state also incentivized the practice by offering additional per-pupil funding for students on these campuses.  We’ve written on this issue extensively, particularly regarding the objections to turning over neighborhood public schools to charter operators. Two key provisions of the law offered some protection to ensure that these takeovers were at least subject to input from the community and staff at the affected campuses, as well as legal protections for staff contracts, but now Education Commissioner Mike Morath is trying to dilute those provisions.

The commissioner’s proposed amendment to the Texas Administrative Code would remove the required input of teachers and employees for entities that are not Texas “open-enrollment” charter schools. We also oppose the lack of protection for teachers’ employment contracts with the change. This interpretation of Sec. 11.174 of the Texas Education Code (TEC) reflects neither the legislative intent nor the best interest of public school students. 

In the case of the San Antonio ISD partnership with a charter school, Democracy Prep, teachers had specific concerns about the charter school’s record of regressive discipline practices, specifically high suspension rates for certain groups of students. Other educators had questions about how an unknown entity could appropriately serve English Language Learners and students with special needs. These are the exact types of concerns that the author of SB 1882—Sen. Jose Menendez—wanted educators to be able to express when he authored the bill that included mandates on seeking input on contracts with the partnering entities. However, in reality, these San Antonio educators had no opportunity to voice their serious concerns.

Commissioner Morath, in guidance letters to San Antonio ISD from the Texas Education Agency, told school officials that the input provision only applied to “open enrollment” charter schools, an entity granted a formal charter by the state of Texas. Although Democracy Prep is a charter network, it does not meet that definition of a state-granted charter, so TEA maintains that partnership is not subject to the input provision. Texas AFT disagreed and has sued Morath and the TEA.  Now Morath is trying to put his interpretation into law with his rulemaking authority.

Sen. Menendez has maintained the statute applies to the broader range of entities eligible for a campus charter contract under Sec. 11.174 of the TEC–such as Democracy Prep. He feels so strongly about the matter that he recently filed SB 1343 during the 86th legislative session to clarify that Sec. 11.174 applies to any entity.

Also noteworthy on our lawsuit is the fact that a petition for appeal to the Texas Supreme Court was filed this week to appeal a lower court’s misinterpretation of Sec. 11.174 of the TEC on this issue.

We oppose the interpretation of Sec. 11.174 reflected in these proposed rules. Texas AFT supports the original intent of SB 1882, which requires an educator’s voice to be heard in any proposed partnership under the law.  We urge the commissioner of education to reject this rule. At a minimum, the commissioner should wait for the Texas Supreme Court or the Legislature to have an opportunity to clearly address the issue before putting this interpretation into rule.