PART 2. TEXAS EDUCATION AGENCY
CHAPTER 100. CHARTERS
SUBCHAPTER A. OPEN-ENROLLMENT CHARTER SCHOOLS
The State Board of Education (SBOE) adopts an amendment to §100.1, concerning the open-enrollment charter school selection process. The amendment is adopted without changes to the proposed text as published in the July 21, 2023 issue of the Texas Register (48 TexReg 3968) and will not be republished. The adopted amendment modifies the no-contact period for open-enrollment charter applicants or any person or entity acting on their behalf.
REASONED JUSTIFICATION: Section 100.1 establishes the process for approval of an open-enrollment charter, including a no-contact period for open-enrollment charter applicants or any person or entity acting on their behalf with the commissioner of education, the commissioner's designee, a member of the SBOE, or a member of an external application review panel.
A petition was received from the Texas Public Charter Schools Association requesting that the no-contact period established in §100.1(d) be eliminated. The SBOE considered the petition at its January-February 2023 meeting and directed Texas Education Agency staff to present an amendment to §100.1 that would end the no-contact period for charter school applicants on the date the applicant passes the external review with a passing score.
The adopted amendment to §100.1(d) removes the no-contact period for open-enrollment charter applicants or any person or entity acting on their behalf with the commissioner, the commissioner's designee, or a member of an external application review panel. The no-contact period with a member of the SBOE has been modified to end on the date the applicant passes through an external review with a qualifying score.
The SBOE approved the amendment for first reading and filing authorization at its June 23, 2023 meeting and for second reading and final adoption at its September 1, 2023 meeting.
In accordance with Texas Education Code, §7.102(f), the SBOE approved the amendment for adoption by a vote of two-thirds of its members to specify an effective date earlier than the beginning of the 2024-2025 school year. The earlier effective date will allow the modified no-contact period to begin as soon as possible. The effective date is 20 days after filing as adopted with the Texas Register.
SUMMARY OF COMMENTS AND RESPONSES: The public comment period began July 21, 2023, and ended at 5:00 p.m. on August 25, 2023. The SBOE also provided an opportunity for registered oral and written comments at its August-September 2023 meeting in accordance with the SBOE board operating policies and procedures. Following is a summary of the public comments received and corresponding responses.
Comment: Texas Public Charter Schools Association (TPCSA) stated that existing §100.1 is unnecessary as the charter application process is not analogous to a traditional procurement process because the charter school applicants are not in competition with each other and the SBOE does not directly negotiate or contract with charter school applicants. TPCSA also stated that existing §100.1 is unfair as it does not apply to all interested parties because parties opposed to applicants are able to contact SBOE members. TPCSA also stated that existing §100.1 is unconstitutional because the Texas Constitution, Article 1, Section 27, parallels the federal constitutional right to petition the government. Finally, TPCSA requested the board approve the proposed amendment to §100.1 with an effective date earlier than August 26, 2024, to ensure the modified rule is effective for Generation 29 charter applicants.
Response: The SBOE agrees with the need for an earlier effective date to allow the amendment to be implemented for Generation 29 charter applicants; therefore, the rule was adopted with an effective date of 20 days after filing as adopted with the Texas Register. The SBOE also provides the following clarification. TPCSA's comments related to the current rule do not address the proposed amendment to §100.1, which modifies the no-contact period for open-enrollment charter applicants or any person or entity acting on their behalf. The SBOE determined that the amended rule was appropriate as proposed and adopted the rule without changes since approved for first reading.
Comment: Texas American Federation of Teachers (Texas AFT) stated that the organization does not see a reason to amend the current charter selection process outlined in §100.1, as SBOE members have the opportunity to engage with charter applicants under the current rule. Texas AFT requested the rule be amended to specify that the no-contact period ends on the date of the commissioner's proposal of charter applicants to the SBOE. Texas AFT also questioned the reason for striking the language in subsection (d) regarding communication with the commissioner or the commissioner's designee.
Response: The SBOE disagrees with the commenter's suggested revisions. The SBOE determined that the modified no-contact period was appropriate as proposed and adopted the rule without changes since approved for first reading. In addition, the SBOE provides the following clarification. Rules regarding contact with the commissioner, the commissioner's designee, and other TEA staff are addressed in commissioner rules in 19 TAC Chapter 100, Subchapter AA.
Comment: An individual opposed the proposed amendment and stated support for transparency and accountability in the charter selection process outlined in §100.1. The individual stated that best practice is for the commissioner to engage later in the process for clarity.
Response: The SBOE agrees that the charter selection process should be transparent and accountable. The SBOE has determined that the modified no-contact period and the commissioner's role in the process are appropriate, and the rule was adopted without changes since approved for first reading.
Comment: Texas Association of School Boards stated that 21 organizations oppose the proposed amendment. TASB commented that the current rule reinforces the integrity of the charter application process by ensuring transparency and that the current process allows for opportunity for contact between SBOE members or TEA staff with charter applicants. TASB requested the SBOE maintain the no-contact rule until the date the commissioner announces recommendations to the SBOE and maintain the no-contact rule with the commissioner, the commissioner's designee, and the external review team. TASB also asked for clarification on how the proposed amendment aligns with commissioner rules regarding contact between applicants and the commissioner, the commissioner's designee, and external reviewers.
Response: The SBOE disagrees with the commenter's suggested revisions. The SBOE determined that the modified no-contact period was appropriate as proposed and adopted the rule without changes since approved for first reading. In addition, the SBOE provides the following clarification. Rules regarding contact with the commissioner, the commissioner's designee, and other TEA staff are addressed in commissioner rules in 19 TAC Chapter 100, Subchapter AA, while rules governing the SBOE will be addressed in SBOE rules.
Comment: A parent commented in opposition to the proposed amendment because the current rule (1) reinforces transparency and integrity in the charter selection process and ensures that discussion and deliberation are made in public forums; (2) allows a charter applicant to contact SBOE members and TEA staff before their application is submitted and partake in various interviews throughout the process; and (3) allows SBOE members to initiate contact at any time. The parent requested the SBOE maintain the no-contact rule until the date the commissioner announces recommendations to the SBOE and maintain the no-contact rule with the commissioner, the commissioner's designee, and the external review team.
Response: The SBOE disagrees with the commenter's suggested revisions. The SBOE determined that the modified no-contact period was appropriate as proposed and adopted the rule without changes since approved for first reading.
STATUTORY AUTHORITY. The amendment is adopted under Texas Education Code, §12.101, which requires the commissioner of education to notify the State Board of Education of each charter the commissioner proposes to grant. It also establishes that unless, before the 90th day after the date on which the board receives the notice from the commissioner, a majority of the members of the board present and voting vote against the grant of that charter, the commissioner's proposal to grant each charter takes effect.
CROSS REFERENCE TO STATUTE. The amendment implements Texas Education Code, §12.101.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on October 11, 2023.
TRD-202303784
Cristina De La Fuente-Valadez
Director, Rulemaking
Texas Education Agency
Effective date: October 31, 2023
Proposal publication date: July 21, 2023
For further information, please call: (512) 475-1497