TSTA Testifies on Education Issues

TESTIMONY ON DATE
December 2007: The Texas State Teachers Association appreciates the opportunity to submit comments regarding the “Text of Proposed New 19 TAC, Chapter 102. Educational Programs, Subchapter FF. Commissioner’s Rules Concerning Educator Award Programs.”  TSTA offers the following comments as follows: 

Comment One 

§ 102.1073(b)(5). District Awards for Teacher Excellence. 

Section 102.1073(b)(5) defines “Meaningful, objective performance measures” as “Quantifiable measures that have a standardized definition and are measured and reported in the same way for every campus/school district and in the same way from year to year.”  TSTA objects to the proposed definition of “Meaningful, objective performance measures” as it fails to allow for any other measure other than the Texas Assessment of Knowledge and Skills (TAKS) test. 

TSTA continues to object to only using the TAKS test as a measure of teacher performance.  This is an arbitrary test that has no meaningful relevance to how a teacher performs in the classroom.  From year to year, an educator in the public school system has no control or knowledge of the grade level a student is able to learn, and will be presented with students from different backgrounds, languages, home environments and learning abilities.  An educator is also not able to control a student’s environment outside of school.  Performance pay in the workplace can only be fair if the employee has total control of the finished product from start to finish.  Thus, performance pay based on a standardized test has no place in the field of education. 

TSTA recommends that the definition include examples that meet the definition of “Meaningful, objective performance measures” other than the TAKS test.   

Comment Two 

§ 102.1073(e)(2)(A).       

Section 102.1073(e)(2)(A) mandates that the local awards plan be developed by the “district-level planning and/or decision-making committee” established under the Texas Education Code.  This section is vague with regard to the level of teacher involvement that is actually required by the rules.  Without such representation on the committee, teachers will not have a significant voice in this process. 

TSTA recommends that the rule require that any committee formed for the purpose of developing a plan under DATE be composed of at least two-thirds classroom teachers. 

Comment Three   

§ 102.1073(e)(2)(B).      

Section 102.1073(e)(2)(B) requires a local awards plan be submitted with evidence of significant teacher involvement demonstrated by providing the campus majority vote count for selected campuses and an assurance of the election from the superintendent of the district. 

It appears that this requirement is limited to only those districts that intend to target campuses for incentive pay.  At a minimum, if a district decides to open the plan district wide, that all teachers within its boundaries vote to approve the plan by a majority vote.  Further, each superintendent should be required to submit a signed affidavit under penalty of perjury for each campus vote rather than simply requiring an assurance. 

TSTA also recommends that there be a requirement in this process for more teacher participation in developing the plan as stated in comment two.  Simply requiring a vote of classroom teachers is insignificant and not a demonstration of support from the potential grantees.      

Comment Four   

§ 102.1073(e)(2)(C).       

TSTA first points out that this subsection is identical to Section 102.1073(e)(2)(G).  Both subsections require local awards plans to define criteria that will be used in determining awards for eligible classroom teachers.  It further specifies that the criteria must be “quantifiable” and “applicable” to the “established meaningful, objective performance measures” which address student academic improvement, growth, and/or achievement. 

As stated in comment one, TSTA objects to any one test such as TAKS be used as the only measure for determining whether a classroom teacher has performed in the classroom to a level meriting incentive pay.  The requirement of subsection 102.1073(e)(2)(C) and (G) only provides one real option and that is student performance on the TAKS test.     

Comment Five   

§ 102.1073(e)(2)(D).        

This subsection requires that at least one measure relate to student academic improvement, growth, and/or achievement as defined by subsection (b)(5).  Again, this allows for only one real option for districts to include as a measure and that is performance on the TAKS test.  TSTA objects and makes recommendations to this limitation as outlined in comment one. 

Comment Six   

§ 102.1073(e)(3).        

This subsection requires the local school board to approve the local awards plan, any changes, and the grant application prior to submission to TEA.  There is nothing in the statute that mandates school board approval of local award plans.  TSTA objects to this provision as it allows for the school board to nullify the majority vote of classroom teachers for a specific plan.  To allow a school board to override the final agreement of the potential eligible grantees under a plan will circumvent the collaborative effort made in creating a system for which most of the teachers agree to one that maybe only a few support. 

TSTA recommends that this requirement be deleted, and the rules merely require a presentation of the plan to the school board upon approval by a majority of the classroom teachers.  If it is determined that school board approval should be required, TSTA recommends there be a provision requiring any changes by the board be submitted back to the campuses for a majority vote to approve.  If the vote fails, the district should be restricted from applying for the grant. 

Comment Seven   

§ 102.1073(e)(4). 

This subsection restricts any appeal of a decision by the school board related to the local awards plan.  The most significant consequence of this provision is if a school board approves a local awards plan that violates the teacher vote or consensus.  TSTA objects to this language as it restricts the process by which an employee can grieve any decision the school board makes in regard to the local awards plan in violation of an educators due process rights.  TSTA recommends this prohibition be deleted from the rules.   

Comment Eight   

§ 102.1073(f)(7)(A) and (C).    

These subsections require a demonstration from the district of a strategic plan for decreasing dependence on state funds to assure long-term sustainability of the program after DATE funds expire, and a demonstration of efforts to identify additional sources of funding to support and sustain the activities of the plan. 

TSTA finds no legislative support or legal authority for the mandate of these additional requirements in order to be eligible for grant funds under DATE.  Moreover, the matching requirement violates the most recent Texas Supreme Court decision on school finance as it diminishes a district’s “meaningful discretion” as it has the effect of prohibiting some districts which cannot budget the required matching funds from even applying for a grant under DATE.[1]  Additional strings of this nature will be cost prohibitive for many districts around the state, leaving a bias toward the more property rich districts.  These provisions create an unfair application process across the board and should be removed as requirements for the grant.  

Comment Nine   

§ 102.1073(g). 

This subsection regards amount of grant awards and requires a school district to provide matching funds in order to receive a grant under DATE.  It also explains that award amounts may vary from one year to the next.   

Again, TSTA finds no legislative support or legal authority for the mandate of requiring matching funds under DATE.  Requiring districts to find money in the budget for this grant is cost prohibitive for many districts around the state leaving a bias toward the more property rich districts.  These provisions create an unfair application process across the board and should be removed as requirements for the grant.  In addition, the fact that award amounts may vary from one year to the next makes it difficult for districts to budget, and may cause future issues with grant award amounts to individuals down the road.  If a district is allowed to maintain the same plan over the course of two or three years, yet the amounts received under the grant vary, there will be no consistency in the distribution of said awards. 

TSTA recommends that the matching requirement be removed from the rules.  TSTA also recommends that when a lesser amount is granted to a district from year to year, that the plan for that district be amended to reflect the change in the grant award amount and require a new vote for the DATE plan as some educators may not feel the varied grant amount justifies the continuation of a plan.  Requiring a new vote for an amended plan will give educators the chance to have additional input in this process and safeguard consistency and fairness in how these awards are distributed.  

Comment Ten   

§ 102.1073(h)(2) and (3). 

Subsection 102.1073(h)(2) allows a district to exclude a teacher who transfers, retires or works part-time on a selected campus.  It further prohibits appeals under these circumstances, and appeals are also prohibited under subsection (h)(3) regarding award amounts.  TSTA first objects to any restriction on the appeal process under DATE.   

Teachers should be assured that there is an avenue for appeal when unjust actions are witnessed in this process.  There are many circumstances where favorites are played in the campus setting, and there is the potential for awards to be distributed in a biased fashion.  The appeal process is available for many occurrences related to employer/employee relations and should not be limited in this context.  In fact, merit pay/performance pay would be a very effective tool for an administrator in awarding some while punishing others. 

Second, TSTA objects to allowing districts to set policy to exclude any otherwise eligible employee under the statute who meet the objectives of the plan.  An educator should be entitled to incentive pay earned once the work is done.  A teacher should not be coerced into staying on a campus the following year in order to receive what has already been earned.  Teachers should be free to retire, work part-time or change jobs without fear of losing what has already been earned through hard work. 

TSTA recommends that these subsections be deleted and that an appeal process be identified for all plans.

WRITTEN TESTIMONY FOR COMMITTEE ON SCHOOL INITIATIVES   SUBMITTED BY: TEXAS STATE TEACHERS ASSOCIATION 

November 15, 2007: ITEM 5:  Proposed Amendment to 19 TAC Chapter 230, Professional Educator Preparation and Certification, Subchapter N, Certificate Issuance Procedures, §230.436, Schedule of Fees for Certification Services and Proposed New 19 TAC Chapter 232, General Certification Provisions, Subchapter C, National Criminal History Record Information Review of Active Certificate Holders

Comment One 

Section 230.436. Schedule of Fees for Certification Services. Section 230.436(10) provides for a fee which will also be paid by current certified educators who are subject to a national criminal history check pursuant to the TEC, Sections 22.082, 22.0831 and 22.0836.  TSTA objects to this fee being applied to current certified educators as it was represented during the 80^th Legislative Session and in HB 1 that the fee would be paid by the state.  It has also been represented by the Governor, Lt. Governor and Speaker of the House that the funds for this fee for current certified educators would be allocated to TEA for use in paying the costs associated with being fingerprinted and the national criminal history check for said educators. 

TSTA recommends that this language be removed from the rule as it is unnecessary due to the funding being provided by the state to pay these fees. 

Comment Two 

Section 232.905. Submission of Required Information. Section 232.905(c)(1) also requires that each certified educator shall pay the required national criminal history review fee which TSTA again opposes for the same reasons set forth in comment one. 

Comment Three 

Section 232.907. Inactive Status. Section 232.907 sets forth the procedure for when TEA has not received a certified educator’s national criminal history record information as required by the subchapter by the date specified in the notice sent pursuant to Section 232.905(b).  At a minimum, 80 days must be provided by TEA in its notice to certified educators for completion of their national criminal history record information or the educator will be placed on inactive status.   

This section only allows for one 10 day extension upon a showing of good cause.  There are a number of factors and third parties that must comply with the proposed rules in implementing this process.  Not only does the school district have certain obligations to notify certified employees of the deadline for fingerprinting, but there is also a significant reliance on the Department of Public Safety and its third party vendor in transmitting data and information to the Texas Education Agency on behalf of the educator who is being fingerprinted.  As a result, there are a number of things that could go wrong that could either cause the delay or loss of the required information by third parties.  

This could lead to punitive action against the educator as their certificate, per the plain language of the proposed rules, must go on inactive status if 90 days passes and TEA has not received the necessary information.  This prevents an educator from teaching in the classroom, and a district will have to replace that teacher. 

There are also a number of situations, such as illness, maternity leave or military service, where an educator might not be able to complete the steps required within the deadline established by TEA and a 10 day extension could also be inadequate to meet the requirements of these rules.   

To place a certified educator on inactive status without some sort of viable procedure to contest it violates due process pursuant to the United States Constitution and Texas laws.

TSTA recommends that extensions of time be allowed at the discretion of TEA certification staff and upon a showing of good cause.  And further recommends that before any certified educator is placed on inactive status that there be a procedure in place which includes a hearing before SOAH and SBEC with proper appeals.  

ITEM 6:  19 TAC, Chapter 249, Disciplinary Proceedings, Sanctions, and Contested Cases 

Comment One 

Sec. 249.12.  Administrative Denial; Appeal. This section has significant changes to the process of an administrative denial and appeal.  It provides that TEA staff may administratively deny an application for certification if it finds satisfactory evidence that the applicant committed certain crimes, lacks good moral character, filed a fraudulent application or is unworthy to supervise the youth of this state.  TEA staff must give notice of the denial and the factual and legal reasons for it, and a person may appeal an administrative denial by filing a petition within 30 days. 

This process of an administrative denial and appeal provides that the burden of proof is on the applicant to prove his or her innocence rather than the burden being placed on TEA.  TSTA recommends that the rule be revised to place the burden of proving the conduct justifying an administrative denial with TEA instead of the applicant as the “satisfactory evidence” relied upon could be in error or wrong.  An applicant should not be shouldered with the burden of proving their innocence; rather the burden should be on TEA to prove justification for the administrative denial.

Thus, the burden of proof in any appeal of an administrative denial should be placed on TEA and not the applicant and the rule should be revised to reflect this burden.  

Comment Two 

Sec. 249.35.  Disposition Prior to Hearing; Default. The proposed rule revision for Section 249.35(d) makes admissible the record of Chapter 21, subchapter d hearings in a SBEC hearing.  Evidence used in another proceeding may not be simply deemed admissible in another proceeding between different parties, which may also have different issues at stake.  Just because evidence was admitted in one proceeding does not necessarily mean the evidence is legally admissible in another proceeding.  For example, what is relevant in a termination hearing may not necessarily be relevant to an SBEC hearing.  Further, the educator may have objected to the admission of evidence which was then improperly allowed.  The educator may even be appealing such a decision to the Commissioner of Education or district court. 

Deeming admissible the record of another proceeding to an SBEC proceeding is fundamentally unfair.   Such a rule will require the educator to essentially prepare for and try any potential SBEC disciplinary case during any Chapter 21 case without regard to relevance and other rules of evidence.   

TSTA recommends that this proposal be deleted. 

Comment Three 

Sec. 249.40.  Motion for Rehearing.The proposed rule revision to Section 249.40(d) regarding the costs of preparing a transcript to be paid by the party appealing will be costly to educators and unfair.  In most administrative appeals, the cost of the appeal falls on the governmental body which should continue to bare the cost.  As proposed, the rule will in effect make the cost always fall on the educator as SBEC will never have to appeal its own decision.  TSTA recommends deleting this subsection.  

Comment Four 

Repeal of Sec. 249.45.  Removal of the Ability to Modify Sanction. The overall proposed rule revision for Chapter 249 repeals Section 249.45 prohibiting an educator from ever being able to remove minor infractions from their certificate.  An educator who has had a relatively minor sanction, such as an inscribed reprimand, should have the opportunity to petition the SBEC for removal of that sanction after a reasonable amount of time has past.  Eliminating section 249.45 makes it impossible for an educator to ever have a sanction removed from the face of his/her certificate even for any minor infractions.   

It would be more equitable to allow educators who have had no further incidences to petition to have the sanction history removed from the face of the cyber-certificate after a reasonable amount of time has past, and TSTA recommends that the process for doing this remain in the rules. 

Comment Five 

Sec. 249.44.  Reapplication Following Denial, Surrender, or Revocation.The proposed rule changes to Section 249.44(b) would mandate that a person whose certificate is denied, surrendered or revoked not be able to reapply for certification again until the fifth anniversary after the action instead of a one year anniversary for which the rules currently provide.

TSTA believes that this five (5) year rule is too severe a penalty in some cases and should remain at the one (1) year threshold as is currently stated.  The rules already provide discretion with the SBEC to issue a longer period of time for a person depending on the case as it deems appropriate.  By lengthening the mandatory threshold to five (5) years, in effect the SBEC would be limiting its authority to make decisions in certain cases and provide relief to certain applicants where it deems appropriate. 

TSTA recommends that the waiting period remain unchanged.  

Testimony Before the Texas State Board for Educator Certification

Paul T. Henley, PhD, November 2, 2007: Good morning.  My name is Paul Henley, and I represent the Texas State Teachers Association.  Today, we once again ask that you repeal Section 232.5. 

As I testified before, all 1034 school districts in Texas are eligible to become certifying agents right now.  Which are good?  Which are bad?  Who makes that determination?  Right now, it’s not the State Board of Educator Certification. 

Districts aren’t using this rule, but it should have never been placed in the Education Code.  That a rule is never used does not justify its continuation.  A bad policy is a bad policy.   There is a reason why these rules come up for review every four years.  Some rules need to be removed.  This is one of those rules.   
I am reminded of a recent work session where the board suspended new alternative certification program licensing because there was too little oversight.  Following this line of thought, it seems necessary to repeal this rule to maintain quality control over teacher preparation programs and continuity of board authority. 

TSTA fought the rule four years ago because it denigrates the teacher workforce.  If it’s allowed to stand, the denigration will continue.  Further, a district can simply make a bad judgment and hire someone unable to educate.  Most likely, they would make this final determination sometime in October, when one third of a child’s education could be lost. 

Everyone calls for increased rigor in Texas classrooms.  TSTA has always advocated for rigor in teacher education.  Though it’s getting easier to become a teacher, it’s still very hard to be a teacher.  Texas children need caring, competent, and qualified teachers.  This rule guarantees none of these. 

Finally, consider this:  you are called the State Board for Educator Certification for a reason.  You have been appointed to ensure the quality of teacher preparation programs.  Your means of doing this is the certification process.  If you allow this rule to renew, you continue to acquiesce control over this process.  In other words, the State Board for Educator Certification currently has no control over this path to certification. 

No control but here.  Now.  Assert your authority and discontinue this policy.  It puts children’s educations in danger, lessens the title of teacher, and diminishes your authority over the certification process. 

As always, TSTA appreciates your work on behalf of Texas public schools.  Thank you for your time and service to the State of Texas and the 4.6 million children that attend public schools here. 

TSTA’s Comments to Proposed Revisions and Rule Amendments to 19 TAC, Chapter 249, Disciplinary Proceedings, Sanctions, and Contested Cases

September 28, 2007: The Texas State Teachers Association appreciates the opportunity to submit comments regarding the proposed rule revisions for 19 TAC, Chapter 249, Disciplinary Proceedings, Sanctions, and Contested Cases.  TSTA would like to offer the following comments and suggestions in order to make the amendments more effective: 

Comment One Sec. 249.12.  Administrative Denial; Appeal. 

This section has significant changes to the process of an administrative denial and appeal.  It provides that TEA staff may administratively deny an application for certification if it finds satisfactory evidence that the applicant committed certain crimes, lacks good moral character, filed a fraudulent application or is unworthy to supervise the youth of this state.  TEA staff must give notice of the denial and the factual and legal reasons for it, and a person may appeal an administrative denial by filing a petition within 30 days. 

This process of an administrative denial and appeal provides that the burden of proof is on the applicant to prove his or her innocence rather than the burden being placed on TEA.  TSTA recommends that the rule be revised to place the burden of proving the conduct justifying an administrative denial with TEA instead of the applicant as the “satisfactory evidence” relied upon could be in error or wrong.  An applicant should not be shouldered with the burden of proving their innocence; rather the burden should be on TEA to prove justification for the administrative denial. 

Thus, the burden of proof in any appeal of an administrative denial should be placed on TEA and not the applicant and the rule should be revised to reflect this burden.  

Comment Two Sec. 249.13.  Cancellation of an Erroneously Issued Certificate. 

The proposed rule stated in Section 249.13 allows TEA staff to cancel a certificate they believe to be erroneously issued.  There is no opportunity for a hearing prior to the cancellation articulated in the proposed rule.  This can be very problematic for an educator whose certificate is mistakenly cancelled which is not an unlikely occurrence.  Unlike an educator who has had an application denied, an educator who has a certificate that is then cancelled is very likely to be employed.  If the educator’s certificate is cancelled, the educator’s teaching contract may also be voided, thus his or her employment may be summarily ended like an at-will employee. 

The new rule does not provide for a show cause opportunity prior to the cancellation of a certificate pursuant to this proposed rule.  However, in a situation in which the educator is accused of conduct sufficient to warrant a flag on their virtual certificate, the educator at least gets a show cause hearing.  TSTA believes the same due process should be provided in a cancellation.  Cancellation is a much more severe action with harsher consequences than placing a flag on the virtual certificate of an educator.  Consequently, before TEA cancels the certificate, an educator should have at least 10 days to show if this proposed cancellation is proper or if a mistake has been made on the recommended cancellation of a certificate. 

Failure to provide such pre-deprivation process could be a violation of due process.  TEA may act to cancel the certificate on erroneous information, such as mistaken identity.  In that case, the educator should at least have minimal process to clarify the situation before his certificate is cancelled and possibly the loss of his job. 

Comment Three 

Sec. 249.35.  Disposition Prior to Hearing; Default. 

The proposed rule revision for Section 249.35(d) makes admissible the record of Chapter 21, subchapter d hearings in a SBEC hearing.  Evidence used in another proceeding may not be simply deemed admissible in another proceeding between different parties, which may also have different issues at stake.  Just because evidence was admitted in one proceeding does not necessarily mean the evidence is legally admissible in another proceeding.  For example, what is relevant in a termination hearing may not necessarily be relevant to an SBEC hearing.  Further, the educator may have objected to the admission of evidence which was then improperly allowed.  The educator may even be appealing such a decision to the Commissioner of Education or district court. 

Deeming admissible the record of another proceeding to an SBEC proceeding is fundamentally unfair.   Such a rule will require the educator to essentially prepare for and try any potential SBEC disciplinary case during any Chapter 21 case without regard to relevance and other rules of evidence.   

TSTA recommends that this proposal be deleted. 

Comment Four Sec. 249.40.  Motion for Rehearing. 

The proposed rule revision to Section 249.40(d) regarding the costs of preparing a transcript to be paid by the party appealing will be costly to educators and unfair.  In most administrative appeals, the cost of the appeal falls on the governmental body which should continue to bare the cost.  As proposed, the rule will in effect make the cost always fall on the educator as SBEC will never have to appeal its own decision.  TSTA recommends deleting this subsection.  

Comment Five Repeal of Sec. 249.45.  Removal of the Ability to Modify Sanction.  

The overall proposed rule revision for Chapter 249 repeals Section 249.45 prohibiting an educator from ever being able to remove minor infractions from their certificate.  An educator who has had a relatively minor sanction, such as an inscribed reprimand, should have the opportunity to petition the SBEC for removal of that sanction after a reasonable amount of time has past.  Eliminating section 249.45 makes it impossible for an educator to ever have a sanction removed from the face of his/her certificate even for any minor infractions.   

It would be more equitable to allow educators who have had no further incidences to petition to have the sanction history removed from the face of the cyber-certificate after a reasonable amount of time has past, and TSTA recommends that the process for doing this remain in the rules. 

Comment Six Sec. 249.36.  Proposal for Decision.  

The proposed revisions to Section 249.36 appears to clean up the language in proposed subsection (e) relating to the ability of SBEC’s general counsel being able to issue procedural directives relating to matters that arise after the submission of the proposal for decision to the SBEC and that are not delegated to the State Office of Administrative Hearings for action or decision.   

There has become a blending of roles for the attorneys assisting the SBEC at TEA, and TSTA raises its concern over the Attorney General not only communicating with TEA attorneys relating to the SBEC business but also advising the SBEC.  The Assistant Attorney General appears to not only counsel the SBEC but to also be in direct communications with TEA certification and other staff and TEA lawyers.  Certainly, there should be a clear distinction between the assistant attorney generals that counsel the SBEC and the assistant attorney generals the counsel with TEA certification and other staff and TEA lawyers. 

It is also unclear as to what is meant by “procedural directives” as used in this rule as it relates to the Attorney General’s position as general counsel.  TSTA suggests that this term be more clearly defined in the rule. 

Comment Seven Sec. 249.44.  Reapplication Following Denial, Surrender, or Revocation.

The proposed rule changes to Section 249.44(b) would mandate that a person whose certificate is denied, surrendered or revoked not be able to reapply for certification again until the fifth anniversary after the action instead of a one year anniversary for which the rules currently provide. 

TSTA believes that this five (5) year rule is too severe a penalty in some cases and should remain at the one (1) year threshold as is currently stated.  The rules already provide discretion with the SBEC to issue a longer period of time for a person depending on the case as it deems appropriate.  By lengthening the mandatory threshold to five (5) years, in effect the SBEC would be limiting its authority to make decisions in certain cases and provide relief to certain applicants where it deems appropriate. 

TSTA recommends that the waiting period remain unchanged.  

Comment Eight Sec. 249.37.  Exceptions and Replies. 

Section 249.37(d)(5) incorrectly states the burden for findings of fact using “substantial evidence” as the standard of review.  An ALJ’s finding of facts must be supported by a “preponderance of the evidence”, not by “substantial evidence”, and TSTA recommends subsection (d)(5) be amended to reflect the “preponderance of the evidence” standard. 

Written Comments to NEA on Reauthorization of No Child Left Behind
August 30, 2007: The Elementary and Secondary Education Act is in need of both reauthorization and improvement.  The discussion document presented by the House Education and Labor Committee presents significant changes to the current statute.  TSTA notes the committee’s consideration and forethought in creating the discussion document. 

Allowing states to use growth models to measure achievement gains indicates a new approach and a new attitude toward student learning.  TSTA supports this change and applauds the action. 

Further, the document expands the opportunity for special education students to take alternative assessments.  It appears the committee has determined that most critical decisions regarding this issue rest with the classroom teachers, where they belong. 

English Language Learners are very common in Texas.  This year, Hispanics will comprise the majority of first grade students.  Also, the Asian community is the fastest growing minority population in Texas.  Because of this, local education agencies and specific schools need more time to teach students English.  The added time to do this is necessary and appreciated.  We look forward to seeing these sections in the final statute. 

TSTA also encourages the committee to keep exploring the differing and various needs of individual schools.  While some schools could benefit from significant interventions, other schools require only minor adjustments.  The committee recommends this, generally, and we appreciate this initial effort.  We also look for more differentiation in the final statute. 

Last month, the Public Education Network produced a report titled, “Open to the Public: How Communities, Parents, and Students Assess the Impact of the No Child Left Behind Act.  The Realities Left Behind.”  The report used focus groups and public forums for three years of anecdotal testimony.  With such a body of testimony, the work became empirical in nature.  Two major messages were consistent: 

1. It is right to hold public education accountable for adequately educating every child to his/her full potential.

2. It is wrong to believe NCLB can achieve its goals unless far deeper and systemic changes are made in resources, capacities, and will.

The discussion document addresses both issues quite well. 

Though generally a strong document, TSTA is presenting some concerns. Please take these concerns in the spirit that they are intended:  adjustments to a strong working document. 

There are a few general concepts that apply throughout the document.  Any proposal that involves sanctions on a school or district is uncomfortable to a teachers union.  Further, we maintain concern regarding any sanctions that require the termination of teachers, and we are suspicious of any non-public entity acquiring public school funds. 

TSTA also has concerns and suggestions that are specific to certain sections of the document.  These are presented below.   

Concern:  Redesigning schools takes place more quickly under these proposed rules than the current law.  Further, there is little conclusive evidence that simply closing a school and reopening it under some other designation enhances learning.  For example, out of 245 California schools that restructured in 2005-06, just 11 percent met AYP targets, said the report, released recently by the Center on Education Policy (CEP).  While SES are required to base themselves in proven research, the rules regarding school reorganization are much less rigorous.  Reorganizing is not enough.  Fully developed, research-based criteria, or at least exemplary models, should be used as a guide for school improvement.  We are wary of teachers and support professionals becoming pawns in a potential for-profit endeavors. 

Proposed Solution:  Use grant-funding for pilot projects throughout the nation, similar to those in Section 1703.  Using these examples, schools can base redesign on ideas and constructs that have a better chance to succeed. 

Concern:  Sanctions on low performing High Priority Schools begin with a very invasive procedure: public school choice.  Students and parents of these schools are initially forced to make a very difficult decision regarding the child’s actual school for the following year. 

Proposed Solution:  TSTA encourages the committee to consider reversing the order of the interventions.  That is, Supplemental Education Services would be a better first step than school choice of any kind.  Such an approach moves from the least dramatic change to more dramatic measures.  Further, SES indicate a positive, helpful strategy, where a choice of abandonment seems punitive. 

As per our general issues stated at the first, TSTA takes issue with the Peer Review Process, outlined on pages 189 – 190.  While the committee makeup insists on strident qualifications for the principals and teachers, it demands nothing of the school improvement specialists or any other designee of the state.  Rigorous requirements should be required of every member of such an important committee.  This rule makes public servants accountable, while those who stand to financially profit are not held accountable.  Similar requirements (and the corresponding lack thereof) can be found throughout the draft. 

The draft document mandates that no student will have an uncertified or inexperienced teacher for two consecutive years.  This is an important and positive part of the draft.  TSTA applauds the attention given to this issue.  A caring, competent, and qualified teacher is the greatest single determinant of student success.  However, there is question as to how this rule will be implemented.  The critical shortage of qualified teachers has only gotten worse in the past five years.  Finding experienced teachers on a short timetable gives local education agencies precious little time to meet this standard. 

For your consideration, we offer the following table for you to consider. 

Teacher Turnover in Texas: 1995-2006 

Ed Fuller, PhD 

Five-Year Teacher Turnover Rate, 2001 to 2006. 

According to Dr. Fuller, the “overall averages…mask the differences in turnover rates.  For example, approximately 20% of middle and high schools had less than a 50% turnover rate while another 20% had a turnover rate of greater than 75%.” 

Proposed Solution:  Phase in this requirement over a period of three or four years.  This allows local education agencies a short time to recruit teachers and give them two full years of experience, thus making it more feasible to meet such an important component of this document.  Further, it allows LEA’s to determine what salary, benefits, and working conditions will be necessary to keep these experienced teachers. 

Related to this matter are before-school and after-school programs.  These are listed as potential interventions throughout the document.  While TSTA encourages the committee to stick by its potential commitment to after school and before school programs, we also encourage the committee to ensure that such programs remain student-centered, teacher-friendly, and research-based.  Education Sector produced a recent report, “On the Clock: Rethinking the Way Schools Use Time.”  The report noted the following:

The logic of time reform is simple: more time in school should result in more learning and better student performance. But this seemingly straightforward calculation is more complex than it appears. Research reveals a complicated relationship between time and learning and suggests that improving the quality of instructional time is at least as important as increasing the quantity of time in school. It also suggests that the addition of high-quality teaching time is of particular benefit to certain groups of students, such as low-income students and others who have little opportunity for learning outside of school.

Because of these potential positives and negatives, it becomes critically important to make sure these programs are also run by caring, competent, qualified teachers.  To convince such teachers to participate, requisite wages must be used.  TSTA asks that the committee set related requirements in statute to ensure these programs’ effectiveness. 

Concern:  College readiness and workforce readiness are often included in the same sentences and at the end of those sentences. [Examples:  Page 24, Lines 1 – 4; Page 117, Lines 12 – 13]  It is TSTA’s position that not all students will go to college.  Nor should they prepare for college.  Workforce requirements are not the same as college entrance requirements.  A consortium consisting of The Conference Board; the Partnership for 21^st Century Skills; Corporate Voices for Working Families; and the Society for Human Resource Management produced a document called, “Are They Really Ready to Work?”  The study surveyed 400 employers and determined that the four top workforce needs were professionalism/work ethic; oral and written communication skills; teamwork/collaboration; and critical thinking/problem solving.  Only one of these skills is adequately tested by college entrance examinations. 

Proposed Solution:  These examples can be found throughout the document.  TSTA asks that the committee acknowledge the difference between college readiness and workforce readiness throughout the document.  Further, we suggest that the committee strike any wording emphasizing college readiness over workforce readiness from this document.  This allows states to determine their own expectations for college readiness and also allows states to set their own criteria as to the numbers or percentages of college-ready graduates that equate to success. 

TSTA is also very wary of a specific corporation (The College Board) being listed as a direct funding recipient in this draft.  The actual statute should not determine one specific corporation or non-profit entity over any other.  To do so presents the appearance of impropriety. 

Section 1118 deals with parental and community involvement.  TSTA agrees that a greater school community is important to the success of any school.  We recently commissioned a poll of Hispanic parents that live on the Texas-Mexico border.  Results of that poll strongly indicate that parents of public school students hold positive regard for the area’s public schools.  These parents also strongly believe in the importance of parental involvement.  Further, we encourage the committee to consider NEA’s work on this subject.  The Family, School, Community Partnership has proven effective in building these relationships. 

As the PEN study suggested, organizing communities as partners can lead to improvement.  Further, PEN suggests such strong ties could create better working conditions for teachers, help parents and students find necessary support services, and build overall trust.  This document approaches the issue at hand, and we thank the committee for this. 

Concern(s):  Community and parent attitudes do not necessarily lead to actions.  That is, while parents may feel a need for involvement, they may not actually get involved.  Although it would be difficult, if not impossible, to require involvement on the part of a child’s parents, TSTA maintains concern that schools may ultimately be held accountable for actions that they cannot control.  On the other hand, there are many parents with children in High Priority Schools that (a) have little or no access to technology; and (b) do not subscribe to local media. 

Proposed Solution(s):  Ease demands on local education agencies that require parental involvement.  For those requirements that do remain, however, encourage LEA’s to use all reasonable means to ensure parental contact.  Once contact is made, the responsibility for further communication should rest with the parent, not the school. 

Section 1124 refers to school and district graduation rates.   

Concern:  TSTA believes the formula for graduation rates is flawed.  The numerator and comparative denominator do not give full regard to the realities of secondary school students. 

Recent reporting by the New York Times (August 21, 2007) indicates that, given enough time, many more students are able to graduate.  Unfortunately, this discussion draft does not account for those students who do graduate but take longer to do so.  The New York City public schools have created “transfer schools” that offer counseling, night classes, and a more adult environment.  Removing the stigma of being behind in coursework and removing the pressure of preset deadlines would inevitably lead to more graduates, the numbers of which we do not know. 

If our collective focus is student learning, then we should be allowing students to learn at individual paces.  We do so with special needs students.  We should do this for all students. 

Proposed Solution: Delay determination of the equation’s numerator for two additional years instead of one, thus allowing cohort students six years to complete coursework.  We also ask that you consider adding a seventh year to any final evaluation procedure.  Any student that graduates is a school and district success, and such successes should be acknowledged in any legislation.  Further, TSTA asks that the committee remove the term, “on-time” from the document and focus solely on the overall graduation rate of the cohort. 

Concern:  School and district graduation rates must eventually reach 90 percent.  The AYP standards demand significant yearly improvement on districts.  The 90 percent figure seems arbitrary.  This figure may not be a realistic benchmark, and it may place schools and local education agencies in an uncomfortable and untenable position.  Currently, schools must win an initial battle against dropout numbers before they can adequately concentrate on graduation rates.  There are very few districts with High Priority Schools that have such a high graduation rate.  Without a critical mass of model examples, schools have little direction in attaining such a stringent requirement.   

Proposed Solution:  A slower, more methodological approach to graduation requirements would be prudent.  Improvement demands should be lessened, allowing schools and districts time to experiment, utilize different research models, to improve graduation rates. 

This issue produces another, related concern.  Generally, there is a significant overlap of the term, dropouts, and the term, graduation.  While the two are greatly interrelated, a student can fail to graduate without dropping out.  This is primarily because student graduation requires the ability to pass exit examinations. 

Concern:  Section 109 makes unreasonable demands on local education agencies regarding dropout reduction.  TSTA maintains that schools and districts should be held accountable for those variables they can directly control. 

Dropout rates are based partly on personal motivation and culture.  Refocusing a student’s personal motivation could take years; changing a dropout culture takes many years.  The California Dropout Research Center recently completed a longitudinal study of the reasons students drop out of school.  Many of these reasons dealt with peer groups and family issues.  In fact, most answers dealt with behaviors that take place outside of school’s control.  One of the top ten reasons for female dropouts was pregnancy.  Schools should never be held accountable for such situations. 

One housekeeping note:  Page 227 ,Line 21 [B] should probably have an, or, at its end.  This, we assume, was the intended pattern. 

Regarding the practical, please note that we recognize the lack of time between public dissemination of the document and initial hearings.  It has been less than two weeks since the document was released.  Such time constraints limit thoughtful consideration of such a large and important piece of potential legislation. 

As the committee chair has acknowledged, this document serves as a point of departure.  It is a very good start, and TSTA appreciates such a thoughtful and comprehensive document.  We hope you will consider our concerns and suggestions as you refine the document.  Your efforts directly impact 50 million children, and we can see that you are taking such impact seriously. 

Testimony to SBEC on Alternative Certification
July 27, 2007: The Texas State Board for Educator Certification met on Friday, July 27, 2007.  The board agenda began with Special Recognition of Past Board Members.  TSTA member Adele Quntana received a commemorative wooden tray recognizing her years of service to SBEC. 

TEA’s Legal Department presented new sanction guidelines for disciplinary cases. 

State Office of Administrative Hearings (SOAH) judges have been conflicting with TEA attorneys.  TEA asked SBEC to grant authority to make certification decisions:  “Staff retains absolute discretion to determine whether the emotional distress is objectively reasonable.”  

Christie Pogue, Vice Chair of SBEC, expressed frustration that TEA was requesting action on rules that were being presented for the first time to the board.  Dr. Susan Hetzler noted several sections of the new rules that made her uncomfortable.  Patti Johnson noted that her own objections to the new rules were completely different than those of other members, suggesting a wide variety of issues. 

Among the issues were questions as to what criteria constituted inappropriate hugging.  Another issue dealt with theft.  At one point, TEA counsel used an example of a teacher walking away with a pen, which would result in a letter of warning about pilfering school supplies.  If the incident were to happen again [two pens, total], the teacher would be subject to stronger sanctions. 

The board voted unanimously to table the proposed rules, instructing TEA to hold stakeholder meetings.  The board members also plan to send emails to TEA staff expressing their views on the proposed rules.  These actions were assured by TEA Legal Counsel, prompting a board member to state that she was looking forward to a, “new and improved version, then.” 

Supplemental Educational Service providers were accredited.  Alternative certification programs were approved, including a new counseling program at Southern Methodist University and a Master Technology Teacher Program at the University of Texas-Brownsville.  Christopher Barbic inquired whether there was any data collected regarding  student achievement and these service programs.  TEA staff replied that privacy laws prevented them from gathering such data.  A bill was introduced in the state legislature to remedy this issue; however, the bill did not become law. 

The board approved certification for languages other than English.  The new certificates will cover Arabic, Chinese, Japanese, Russian, and Vietnamese languages.  Each certificate will cover EC-12.  The certification tests for will come form the American Council on the Teaching of Foreign Language because the small number of applicants makes test development impractical.  TEA did testify that they had developed and field-tested a test in Vietnamese and will offer such a test in the future. 

Every four years, certification rules come up for review.  Among the rules for discussion was a provision that makes it possible for a district to hire a completely uncertified person as a teacher and keep them for three years.  After the three year period, TEA would grant the person full teacher certification upon the district’s recommendation.  School districts are wary of using this rule, and TSTA feels the rule denigrates the profession.  TSTA fought against this rule four years ago and reiterated its position in testimony.  The text of TSTA’s testimony can be found on the TSTA Teaching and Learning website. 

New legal sanctions were also under consideration (19 TAC, Chapter 249).  Unlike the guidelines mentioned before, these changes were to the actual Code of Ethics.  Altogether, the current text and proposed changes covered 49 pages.  These changes come on the heels of similar revisions that were approved two months ago.  They also come shortly before TEA must implement new rules regarding Senate Bill 9.  TSTA testified against adoption of these new rules, noting that SB 9 could make some of these rules obsolete and asking the board to proceed slowly.  Dr. Bonny Cain, Chair, asked the opinion of SBEC’s appointed attorney.  The attorney encouraged SBEC to vote to pass these rules, as they would need another vote to become rule, anyway. 

SBEC then voted unanimously to give first reading to these rules minus one chapter.  TEA asked that this chapter be removed from board approval and planned to seek an Attorney General opinion regarding its legal status.  This move likely resulted from discussion at the Pre-Board Briefing that took place on Tuesday. 

Board members agreed to meet on August 8 and September 7 to prepare for their next full meeting.
 

Testimony to TEA on Rules Concerning Special Education Services
Written Testimony to Texas Education Agency Regarding Proposed Amendments and Repeal to 19 TAC Chapter 89, Adaptations for Special Populations, Subchapter AA, Commissioner's Rules Concerning Special Education Services

June 19, 2007: We appreciate the opportunity to provide feedback on this new policy.  The rules set forth by the United States Department of Education are designed to give the states flexibility in creating rules and standards for special education students.  We encourage the Texas Education Agency to keep the chain of flexibility consistent as rules are written governing the 1256 local education agencies, or LEAs, in Texas. 

The Texas State Teachers Association (TSTA) has three key areas of concern regarding the actual implementation of these policies: 

The first regards the start date of the rules.   These rules could take effect soon after the 2007-2008 school year has begun.  A late September or early October beginning start date will provide myriad problems for school districts in Texas.  Among possible implementation problems are the following: 

1. School districts would put off/delay implementation of individualized education programs (IEPs) until such time as the new rules come into effect.  Admissions, review, and dismissal committees (ARDs) would increase in size, scope, and the time it takes to actually implement the new policies.  This means that a special education student will not have an ARD meeting until the first nine-week period is half complete.  This problem will be especially acute for a student in a district that uses six-week grading cycles.

2. Initiating an IEP or adjusting one through an ARD would mean changing the approach almost immediately after determining the initial approach.  Parents of special needs children will be unwilling to delay services until the new rules go into effect.

3. In some cases, the burden placed on districts, administrators, and teachers will increase significantly.  This will likely create a bottleneck for services:  longer periods of time between ARD meetings per pupil and ARD meetings between pupils.  This will be especially true of the commencement period.

4. A start time during the fall leaves little or no time for teacher and administrator training.  As with the focus on Response to Intervention, significant changes take time to implement.

All of these situations make it difficult to provide each student with a free and appropriate public education, or FAPE. 

Proposed Solution: 

Delay implementation until the beginning of the 2008-2009 academic year, giving districts time to avail themselves of training for those who will be expected to implement any significant policy changes. 

The second TSTA concern regards the significant increase in state direction regarding autism spectrum disorder (ASD), found in 89.1055(e).   

1.        The new policies remove decision-making authority from LEAs.  On-site evaluation is much more child-focused and offers districts the flexibility to improve the education of each child according to his or her needs.  The prescriptive approach forces LEAs to appropriate time and resources to areas that may or may not be effective treatments.  The process becomes more difficult for teachers (especially special education teachers), administrators, and parents. 

2.      The number of children with autism spectrum disorders is growing at an alarming rate.  As these numbers grow, such issues become exacerbated in the schools. 

3.      We believe there may be a typographical error in (5): the word, futures, was likely meant to be, future. 

Leaving the law as it is gives ARDs the flexibility that they need to offer the best FAPE for the children.  All interventions listed in the new language are currently available to ARDs, and the old law allows for local flexibility to execute plans for autistic students. 

Another option would be to phase in the requirements for autism over a period of two or three years.  This would allow time for LEAs to determine the best strategic approach to meet the new rules. 

TSTA’s third concern regards the fiscal note of the ASD regulations.  Whereas the analysis indicates no fiscal impact, we anticipate a significant fiscal impact. 

1.  An increase in time allotments will likely require some sort of pay increase for teacher time outside of the school day.  A district may actually find itself in need of a new administrator specific to autism.   

2.  The requirement of community education and parent education will create a logistic nightmare.  This requirement is exacerbated by the requirement of personnel that are specifically certified in these areas.   

3.  So many new regulations will be difficult to monitor as they will be to implement.  With 1034 school districts and 252 open enrollment charter schools, the Texas Education Agency (TEA) would likely need monitors to ensure these new rules are being followed.  Such positions would focus solely on ASD, ignoring all other special education disorders. 

Because of these circumstances, the fiscal note on these changes will not be zero.  Rather, these rule changes will create a significant financial burden on school districts.  As mentioned earlier, the number of ASD students is rising rapidly.  The fiscal impact of them will no doubt grow each year.  Because of this, TSTA encourages TEA to reconsider the fiscal impact of these rules.  This would best be done before the rules are implemented.  Such action would proactively prevent unintended fiscal consequences for the state and the Local Education Agencies. 

TSTA applauds TEA’s efforts to improve the educational well-being of special needs students; however, we worry that the unforeseen implementation problems will lead to confusion, as well as significant increased burdens on teachers, districts, and administrators.  These will lessen the effectiveness of the new Commissioner rules.