Will it be harder for Texas to take over troubled school districts?
An attempt to make it easier for the state to take over troubled Texas schools ended making such interventions harder after a surprising late-in-session about-face by legislators. A new law makes it more challenging for the Texas Education Agency to remove elected trustees from power. This could potentially impact districts such as the Dallas-area Kemp ISD, which is fighting state intervention by challenging an uncompleted TEA investigation in court. Attorney Kevin OHanlon, who has represented Houston and other school districts in their fights to stave off state interventions, said the move could be positive since takeovers would mean the disenfranchisement of local voters. Board of managers are fundamentally more intrusive, so it should be harder to appoint them, he said. Rep. Harold Dutton, D-Houston, introduced the bill in March to help the state complete a takeover in his own school district. Duttons proposal sought to address points raised in an appeals court decision that has temporarily stopped the state from taking over the Houston ISD. The bill effectively removed districts ability to appeal TEA-imposed sanctions in court. But after opposition from school leaders statewide  and members of Duttons own party  the legislation changed dramatically. Rep. Dan Huberty, R-Kingwood, took the proposal in a different direction. Now the bill includes pausing the states academic accountability grades for the 2021-22 school year and adding elements of due process to the investigative process. Failing the accountability system several years in a row can trigger TEA intervention. If this bill passes, wont it be harder for TEA to assign a conservator to an individual campus? a lawmaker asked Huberty when an altered version of the bill came to the House floor. Yes, Huberty responded. To assign a board of managers?  Absolutely, Huberty agreed. For example, the agency would have to give the district evidence used and disclose the identity of witnesses whose statements were relied upon to draft investigative findings. The TEAs use of anonymous sources and withholding evidence has been a frequent sticking point in several ongoing cases, including in Kemp where attorney Stephen Dubner questioned whether the agency turned over all the material used in initial reports that described a toxic climate at the district. A lot of the stuff thats in this bill is exactly the stuff that we were asking for in our case, Dubner said. We wanted all the evidence. We wanted the videos [of interviews].  The agency opened an investigation into the 1,600-student school district 45 miles southeast of Dallas in 2019 after complaints about trustee interference and board members physical threats against the superintendent at the time. The states investigation found that the dysfunctional board misused its position to assert control and power, creating chaos and conflict that hindered the district. Investigators concluded state Education Commissioner Mike Morath should lower the districts accreditation status and replace the elected trustees with an appointed board of managers. Few school systems have received such a sanction, which is considered by many to be the harshest penalty the state can impose for district misbehavior. Under Hubertys proposal, a district facing a board of managers would have the ability to request a hearing by an administrative judge who is independent from the education agency. Based on that judges conclusion and the school districts arguments, the commissioner could reconsider final sanctions. A district would maintain the power to appeal that decision in court. The bill stipulates that a court cannot stop a state investigation prior to its conclusion and that a school system has to exhaust all administrative appeals before seeking court relief. Kemp, for example, tried to halt the TEAs efforts before its investigation was final. The state issued its preliminary report in December and Kemp responded to the findings in January. The next step would have been an in-person review of the TEAs findings, either by the commissioner or someone he appointed, followed by the agency issuing a final report. But a Travis County judge stopped the process. During the hearing, attorneys for the state argued that an injunction would prevent the state from completing its investigation. The TEA has appealed the judges decision. The opinion revealed how other districts hoping to evade a state takeover could replicate Kemps arguments for a similar result. Lawmakers pointed to a series of stalled interventions as a reason they needed clarity in TEA investigations. While Huberty assured his fellow lawmakers that the legislation doesnt impact any current lawsuits going on specifically on accountability issues, Kemps attorney suggested the TEA will have to address the new provisions in the bill before moving forward with his school districts case. I think TEA is going to have to figure out how they are going to handle the cases, like where we are, where those preliminary reports were done, Dubner said. Are they going to go back and do another preliminary report so we get a chance to respond with the evidence that we now have that we didnt have before?  For now, there is no clear answer. The agency cannot comment on pending litigation, TEA spokesman Frank Ward said when asked if the new legislation would impact proceedings in the Kemp or Houston school districts. Stay connected to the latest in education by signing up for our weekly newsletter. The DMN Education Lab deepens the coverage and conversation about urgent education issues critical to the future of North Texas. The DMN Education Lab is a community-funded journalism initiative, with support from The Beck Group, Bobby and Lottye Lyle, Communities Foundation of Texas, The Dallas Foundation, Dallas Regional Chamber, Deedie Rose, The Meadows Foundation, Solutions Journalism Network, Southern Methodist University and Todd A. Williams Family Foundation. The Dallas Morning News retains full editorial control of the Education Labs journalism.