Today the Texas Education Agency proposes a rule that would tell a high school student who has met the required passing scores on state approved nationally recognized assessment instruments that they are not entitled to a Texas High School Diploma unless they also submit to take a state created assessment for which they have no required performance standard. It is the ultimate bureaucratic creation of data for the sake of data, and it is an unnecessary, punitive measure intended to threaten and intimidate parents into abandoning control of the education of their children. More importantly, it is an illegal attempt by the commissioner to substitute his judgment for the judgment of the legislature. Any Texan who believes in the separation of powers and the rights of parents to direct the education of their children must oppose this rule. TPERN will be asking its supporters to voice their opinion through the public comment process.
The TEA proposed rule is an unnecessary and improper incursion into the constitutional powers of the legislature. The substitute assessment statute allows the commissioner to define a method for the use of substitute assessments, but it does not permit him to add impediments to their use not contained in the statute. The law is clear that the legislature intends that “a student’s satisfactory performance [on a substitute] assessment instrument shall be used to satisfy the requirements concerning an end-of-course assessment instrument.”
The commissioner errs by adding an EOC attempt requirement where none exists and where the existing statute in fact contemplates the opposite.
“A student who fails to perform satisfactorily on a test or other assessment instrument authorized under this subsection, other than the PSAT or the ACT-Plan, may retake that test or other assessment instrument for purposes of this subsection or may take the appropriate end-of-course assessment instrument. A student who fails to perform satisfactorily on the PSAT or the ACT-Plan must take the appropriate end-of-course assessment instrument.”
As set forth above, for instruments other than the PSAT and the ACT-Plan, the legislature clearly gives the student the choice of attempting another substitute OR taking the EOC. The commissioners rule deprives the student of this choice. Likewise, consider the clear statutory imperative of initial attempts in allowing the use of the TSI as a substitute assessment. In that case the legislature wrote:
A student who, after retaking an end-of-course assessment instrument for Algebra I or English II, has failed to perform satisfactorily as required by Subsection (a), but who receives a score of proficient on the Texas Success Initiative (TSI) diagnostic assessment for the corresponding subject for which the student failed to perform satisfactorily on the end-of-course assessment instrument satisfies the requirement concerning the Algebra I or English II end-of-course assessment, as applicable.
Here the legislature has clearly required two attempts as a condition to using TSI scores as a substitute for Algebra I or English II EOCs. The substitute assessment statutes are notably silent on any other pre-requisite attempts as a condition for the use of substitute assessments.
Where the legislature has expressed its will in one area relating to substitute assessments, but withheld any such requirements from other areas, the commissioner may not impose additional restrictions by rule. The commissioner’s efforts to amend the statute by rulemaking exceed his authority and must be rejected.
Moreover, the restriction on graduation is wholly unnecessary. What the commissioner wants is higher participation in the EOCs for accountability purposes. This is accomplished simply with his amendment of Rule 101.4002 (e). This amendment alone would require a student to take each EOC one time, but it would not prevent a qualified student from graduating if they failed to take the EOC.
By attempting to condition the use of substitute assessments on an initial failure of the state EOCs, the Commissioner markedly changes the law. This is not a permissible use of rulemaking. Moreover, it is wholly unnecessary. The commissioner’s decision threatens to keep good students from graduating by rule when all statutory requirements have been met. It cannot stand.
Finally, TPERN condemns the TEA’s willful avoidance of the legislature as the proper venue to address this issue. In the proposed rule, the TEA admits that it was aware of the accountability issue since December 2018. An entire legislative session passed without ANY ATTEMPT to adjust the substitute assessment statute. Once the legislature had safely adjourned, the commissioner then undertook to change the law in the darkness of agency rulemaking, rather than in the sunshine of the Capitol dome. This cynical approach to the rule of law demeans the vote of every Texan and should be repudiated by every sitting legislator.
 The proposed rule can be viewed at https://docdro.id/khK93zB