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HISD students walk out in protest of TEA takeover

Apr 8th, 2023
by Charles Kuffner.
1 comment

Good for them.

Five minutes into her second-period class, Elizabeth Rodriguez and her classmates at Northside High School stood up and walked out to protest the Texas Education Agency’s planned intervention in Houston’s sprawling, diverse public school district.

The 18-year-old senior joined more than 100 students flooding the hallways, walking out of the large brick building and pouring into the gated courtyard by the school entrance on Quitman Street. Teenagers sporting jeans, hoodies and backpacks held handmade posters with various slogans: “My school matters,” “I am NOT just a number,” and “Estudiantes unidos! Jamas seran vencidos!”

Rodriguez, a member of a student club that helped organize the protest, stepped up on a purple platform and grabbed the microphone.

“You need to let your voices be heard,” she said to a crowd that occasionally broke out into chants. “We don’t want more STAAR. What does STAAR do? It stresses us out and gives us more anxiety.”

The walkout coincided with other demonstrations on Thursday at dozens of schools across HISD organized by Community Voices for Public Education and campus student groups. They were marching to express their displeasure with TEA’s March 15 decision to oust the board and superintendent because of one school’s repeated failure to earn an acceptable academic rating and allegations of misconduct by board members.

At elementary schools, some parents gathered with doughnuts and protest signs before sending their children into school. High school students took charge by stepping out during the school day to voice their opposition.

Thursday also marked the last day to apply for the board of managers, a governing body appointed by TEA Commissioner Mike Morath that will replace elected trustees to oversee the district.

At the Northside High School, students rallied for about 15 minutes before heading back to class.

“I was afraid that a lot of people weren’t going to care, they were just doing it to get out of class,” Rodriguez said. “But seeing them now, holding up the signs, doing the chants, I loved it. It makes me feel good about my school.”

Later in the day, as gray skies started dumping rain, roughly 50 students at Carnegie Vanguard High School walked out and took a lap around the block during their lunch break. They held wet paper signs while chanting: “T-E-A, go away!” and “Hey-hey-ho-ho, TEA has got to go!”

Some students stayed outside to listen as their peers spoke into a bullhorn about the value of diversity and an education hard-earned by immigrant parents. One student questioned the motives of the state agency intervening in a school district serving nearly 190,000 students, largely Hispanic and Black children.

“They don’t like abortion, they don’t like gay people, they don’t like minorities,” he said about the Texas GOP. “Why do we want them taking over one of the most diverse school districts in all of Texas?”

Good question. Look, this protest isn’t going to accomplish anything at this time. Mike Morath isn’t going to suddenly change his mind about the takeover – he would argue that it doesn’t matter what he thinks, he’s compelled by the law – because some number of students chanted at him. But bringing about change starts with caring enough to do something, and enduring a bunch of getting nowhere before you can get yourself into a position of influence. It’s not linear, it’s often frustrating, and there are usually a bunch of other things that have to happen before what you want to do is even possible. It still starts with caring enough to take action. Good on these kids for doing that.

Note the bit about the deadline for the Board of Managers. Barring some action from the feds in response to the complaints that have been filed, the next milestone in this saga is going to be the naming of the Board of Managers. I’m going to guess that will happen in early to mid May, to give them some time to get their feet on the ground before the official takeover in June. We’ll get some idea of where this is going when we see who the Board is.

Looking ahead to the inevitable litigation over a trans sports ban

Apr 8th, 2023
by Charles Kuffner.
Comments are off for this post

The feds have weighed in.

The Department of Education on Thursday formally proposed a rule change to Title IX, the federal civil rights law prohibiting sex discrimination in schools, that would be at odds with anti-trans bills being signed into law and introduced in statehouses across the country.

The rule change would establish that categorical bans against transgender students joining sports teams that align with their gender identity violates Title IX. However, the proposed rule allows for competitive high school and college sports to restrict trans students’ participation if those schools follow guidelines laid out by the agency — particularly, to minimize harm for excluded students.

Currently, 20 states have passed legislation to ban trans students, especially transgender girls, from participating in sports that are consistent with their gender identity, according to the Movement Advancement Project, which tracks LGBTQ+ policy. Enforcement of multiple bans has been blocked in court through temporary injunctions.

The Education Department said in a news release that it expects that limiting transgender students’ participation in school sports at the high school and college level may be permitted in some cases, “when they enable the school to achieve an important educational objective, such as fairness in competition” and meet other agency requirements.

When schools create policies on trans’ students participation, they must follow certain requirements laid out by the agency: recognizing the importance of minimizing harm to excluded trans students, as well as acknowledging that sport-governing bodies have different participation criteria. School policies restricting trans’ students sports access must also take into account whether the sport is high or low competition, such as whether the team is open to students regardless of athletic ability. Students’ grade level should also be considered, since those in younger grades are often more focused on teamwork and fitness than competitive success.

The public will be able to comment on the proposed rule, which would apply to public K-12 schools and colleges that receive federal funding, for 30 days from the date of the rule’s publication in the Federal Register. A senior department official, who spoke to reporters on condition of anonymity ahead of the release of the rule, told reporters Thursday that she expects that publication to happen within the next few weeks.

The agency has a variety of tools to enforce and investigate Title IX violations, the official said — including evaluating records and interviewing school community members. Typically, schools choose to come into compliance when they violate Title IX, she said. But, in the unlikely scenario that a school declines to come into compliance with the law, the agency is willing and able to withhold federal funds.

As a reminder, the Texas Senate has already passed a bill to ban trans athletes from participating in collegiate sports – a restriction for high school and below is already in place – with the House likely to follow. Hold that thought for a minute. Also on Thursday, this happened.

The Supreme Court on Thursday allowed a 12-year-old transgender girl in West Virginia to continue competing on her middle school’s girls sports teams while a lawsuit over a state ban continues.

The justices refused to disturb an appeals court order that made it possible for the girl, Becky Pepper-Jackson, to continue playing on her school’s track and cross-country teams, where she regularly finishes near the back of the pack.

Justices Samuel Alito and Clarence Thomas would have allowed West Virginia to enforce its law against Pepper-Jackson.

Pepper-Jackson is in the middle of the outdoor track season. She had filed a lawsuit challenging the law, the Save Women’s Sports Act, which West Virginia lawmakers adopted in 2021. A federal appeals court had allowed her to compete while she appealed a lower court ruling that upheld the West Virginia law.

There are some legal technicalities about this, which I won’t get into. This particular ruling is unlikely to mean anything for SCOTUS when the case comes to them, but for now at least that law is on hold. Plenty of other states have been passing similar bans, with Texas on its way to doing so as well.

It should be noted that this new policy is seen as a step back from the Biden administration’s initial position of full support for transgender rights. Slate’s Mark Joseph Stern explains what’s going on.

Thursday’s proposal marks the Biden administration’s first effort to “compromise” on the rights of student-athletes. It is clearly designed to survive a legal challenge by locating a middle ground that grants protections to transgender students that are strong but not absolute. The rule is certainly a huge improvement from the Department of Education’s bigoted position under former President Donald Trump. But LGBTQ advocates expect much more of Biden, and any apprehension about the rule’s less-than-complete support for equality is understandable.

The proposed rule itself is just a few sentences long. It states that, when a school restricts trans students’ participation in athletics, it triggers Title IX’s ban on discrimination “because of sex.” Thus, the policy must “be substantially related to the achievement of an important educational objective” and “minimize harm” to trans students. Mere hostility toward transgender people, the agency clarified, does not qualify as “an important educational objective.” But “fairness in competition” and “prevention of sports-related injury” do. The policy must also be tailored “for each sport, level of competition, and grade”—meaning the across-the-board bans passed in 20 states are impermissible. (To be clear, it still lets schools to enact more expansive protections for trans athletes, so blue jurisdictions can continue to guarantee 100 percent equal access to school sports.)

As the Department of Education acknowledges, the new standard is drawn from the Supreme Court’s equal protection jurisprudence, which applies “intermediate scrutiny” to sex-based classifications. The agency’s new rule would apply a form of intermediate scrutiny to school policies that discriminate against transgender athletes, on the grounds that anti-transgender discrimination is a form of sex discrimination. (Many courts, including the Supreme Court, have agreed with this logic.) The proposed test would, in effect, balance transgender students’ interest in playing sports against cisgender students’ interest in “fairness in competition” and avoiding injury. (The rule is aimed at K-12 education; the NCAA has adopted separate policies for college athletes that seem to satisfy the agency.)

The oddity here is that Title IX’s text does not actually incorporate this kind of balancing. It simply bars schools from discriminating “on the basis of sex.” When courts have applied this principle to transgender students, they have declined to weigh competing interests, instead just asking whether the student faced discrimination because of their identity. That’s one reason why the new rule surprised so many trans advocates: As journalist Erin Reed noted, portions of the document provoke the fear that schools will seize upon well-worn pretexts to “balance” transgender students’ rights into oblivion. Furthermore, claims that trans athletes have unfair advantages and imperil cisgender girls are conservative talking points against transgender equality. It was startling to see such ideas in a proposal from the administration of Joe Biden, who has called transgender discrimination “the civil rights issue of our time” for more than a decade.

And yet, there are good reasons to adopt a more generous view of the new policy (while acknowledging that its rollout was borderline disastrous). GLAD, a renowned LGBTQ advocacy group, issued a statement “applaud[ing]” the proposal, praising the decision to let schools “adopt reasonable policies” that “take into account differences between sports and across levels of competition.” Shannon Minter, legal director of the National Center for Lesbian Rights, told me that the Department of Education did “a good job of setting out a proposed standard that is reasonable, protects the dignity and equality of transgender students, and permits only very limited restrictions in elite competitions,” with a “baseline presumption” of inclusion.

As for the Title IX rule, it’s way too early to say how it might play out. The only thing I feel confident saying is that there will be litigation once it is in effect. Just put a pin in all this and we’ll see where we are in six months or a year. The Trib and the Chron have more.

Second federal complaint filed over TEA takeover of HISD

Apr 2nd, 2023
by Charles Kuffner.
3 comments

From the inbox:

The American Civil Liberties Union of Texas, the ACLU, the Houston NAACP, LULAC #19, and the Greater Houston Coalition for Justice filed a complaint with the U.S. Department of Justice on Friday regarding the Texas Education Agency’s plan to remove locally elected officials during its takeover of the Houston Independent School District. The complaint was filed on behalf of Anna Chuter, Dr. Audrey Nath, Kenyette Johnson, and Kourtney Revels, who are parents of students at Houston public schools.

Houston ISD is the largest school district in the state and eighth largest school district in the country, made up of 274 schools and nearly 200,000 students. Earlier this month, Commissioner Mike Morath announced the agency’s plans to take over the school district citing the poor performance of some schools, despite the fact that his own agency gave the district a “B” rating in 2022. As part of the takeover, Morath intends to replace the district’s locally elected school board trustees with a board of managers who will be appointed by the commissioner and will not have any electoral accountability to Houston voters.

“The district was making a lot of progress after we voted in new trustees. That’s how democracy works,” said Anna Chuter (she/her). “The state just wants to control every aspect of our lives, and I’m afraid of how this will affect our family. My son is finally getting the special needs education he deserves, but now neither of us know what will happen.”

“I feel indignant. As a pediatric neurologist, I’m particularly concerned that the district will not get the resources it needs to support special education,” said Dr. Audrey Nath (she/her). “The state takeover is insulting to so many Houston voters like me who canvass for candidates we care about and take our local elections seriously. Apparently our choice never mattered in the first place.”

The ACLU of Texas is calling on the Justice Department’s Voting Section to investigate the agency for civil rights violations of the Voting Rights Act and the U.S. Constitution. The state’s takeover prevents Houston voters of color from having the opportunity to meaningfully elect their candidates of choice, thereby disenfranchising voters and discriminating against them on the basis of race and national origin.

“We are asking the Department of Justice to take immediate action and investigate the state’s relentless attempts to take over the largest school district in Texas,” said Ashley Harris (she/her), attorney at the ACLU of Texas. “The state takeover is not about public education but about political control of an almost entirely Black and brown student body in one of the country’s most diverse cities. This hostile takeover strips power from Houston voters of color by replacing the democratically elected school district trustees with a board of managers handpicked by the commissioner. Our public officials should be accountable to the growing racially diverse communities they represent and serve.”

“This attempted takeover would essentially put an appointed, unelected commissioner in charge of the school district, with no electoral accountability to Houston’s voters of color,” said Adriel I. Cepeda Derieux (he/him), deputy director of the ACLU’s Voting Rights Project. “It’s critical the Department of Justice step in to investigate potential violations of the Voting Rights Act and the U.S. Constitution.”

Read the Department of Justice complaint here.

See here for more on the previous complaint. As with that one, I have the same questions about timeline, process, and odds of success. I mean, I suppose either we see the Education Department do something before the Board of Managers are installed or we don’t. I do appreciate the mention of the Voting Rights Act, which I brought up way at the beginning of this process. I don’t know how much deference the federal courts will give it if it comes to that, however. At this point, all we can do is wait and see. More from the ACLU of Texas on Twitter, and the Trib has more.

Special ed and the TEA takeover

Apr 1st, 2023
by Charles Kuffner.
Comments are off for this post

This part of the reason for the TEA takeover of HISD is less well known and has some adherents among the key stakeholders, but it’s still quite controversial and far from clear that the TEA will do any better.

Many parents of special education students in Houston ISD who feel the school system has failed their children are deeply conflicted over news of the state takeover.

Some who say their children have been denied federally protected rights to an education believe a takeover is long overdue. Others agree accountability is needed, but question whether the Texas Education Agency has the capacity or track record necessary to execute change for the better. Both entities have received intense criticism of their delivery of special education services for decades.

“It’s a tall order to ask a failing TEA special education department to come and rescue a failing HISD special education department,” said Jane Friou, an HISD parent and co-founder of the Houston Special Education Parent Association. “I don’t understand how it’s going to get any better.”

The school system’s special education department’s “significant systemic compliance problems” was cited among the reasons in TEA Commissioner Mike Morath’s notice that a state-appointed board of managers will soon lead the district.

“The takeover is happening because our children’s rights are systematically and continuously violated through denial (of services) and the noncompliance of HISD,” said Marifi Escobar, a parent of an HISD ninth grader with multiple disabilities. “I want to see an overhaul of HISD. This seems to be the first time HISD is being held accountable.”

However, some advocates say they anticipate little change to the beleaguered department given that state-appointed conservators have overseen it for years.

“We, as parents, have not seen anything get better since the conservators got here,” said Fiou. “It may have actually gotten worse from a parent perspective. It’s as chaotic as ever and that makes me very concerned for whatever is coming.”

Other education experts say the state agency’s own failures to provide supports to students with disabilities doesn’t bode well for success in the district.

“TEA is the entity that receives funding from the federal government to implement (the Individuals with Disabilities Education Act) and it is supposed to provide technical assistance, monitoring and professional development across the state,” said David DeMathews, associate professor of the University of Texas at Austin’s department of educational leadership and policy. “TEA has failed miserably doing this job for more than a decade.”

[…]

Criticism of TEA’s implementation of special education stems from its artificial cap on the number of students with disabilities who could receive services. The since-removed arbitrary 8.5 percent cap, which was first reported by the Houston Chronicle, led to the denial of services to tens of thousands of children with disabilities in Texas.

In January 2018, the federal Office of Special Education Programs announced it found TEA had failed to ensure all children with disabilities in the state were identified and evaluated. In October 2020, TEA told OSEP  it believed it had completed all the required corrective actions. However, OSEP found the state had made only one of many required changes to its operations.

In 2021, the U.S. Department of Education said TEA failed to put into place many of the corrective actions it pledged to make to comply with IDEA and threatened recourse of taking away special education funding. Among the alleged shortcomings was that there was no indication districts in the state were promptly referring children for dyslexia evaluations.

Currently, TEA officials say the agency has “exceeded” the corrective actions laid out by OSEP and has increased the number of students in special education 37.3 percent since 2015.

See here for all my previous blogging on special education, which includes both the many issues at HISD and the many issues with the TEA. I have not had to interact with the special ed system at HISD, but some of my friends have and they very much say that it is a huge hassle. These are educated professional folks with resources to deal with those hassles talking, so you can extrapolate from there for folks who don’t have such resources. If the TEA can make things better here, that’s unequivocally great. There are plenty of reasons to be dubious of that possibility. As I’ve said before, it’s now 100% on them to make it happen. We’ll see.

Federal complaint filed over TEA takeover

Mar 19th, 2023
by Charles Kuffner.
Comments are off for this post

We’ll see if it can have an effect.

The Greater Houston Coalition for Justice this week filed a complaint with the U.S. Department of Education alleging that Texas is discriminating against Houston schoolchildren by taking over the majority-minority school district.

Johnny Mata, presiding officer for the coalition, outlined the allegations in a Wednesday letter addressed to U.S. Education Secretary Miguel Cardona.

The coalition filed the complaint on behalf of the Houston Independent School District and against the state of Texas, Gov. Greg Abbott, Education Commissioner Mike Morath and the Texas Education Agency, according to a copy of the letter shared with the Chronicle.

Mata said he believes the TEA is violating a federal civil rights law by taking control of HISD. The contentious takeover has sparked outrage and pushback in recent days among teachers, parents and community advocates who say the move is a political attempt to destroy public education. 

“They’re asking for a fight,” Mata said about state leaders. “They’re playing games, they’re playing politics, they’re catering to their base, and that’s unconscionable.”

Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color and national origin. This civil rights law and others extend to all state education agencies, schools and universities, according to the U.S. Department of Education.

Anyone may file a complaint with the federal education department’s Office for Civil Rights, which enforces federal civil rights laws in educational programs or activities that receive federal funding, according to the government website.

[…]

HISD may request an administrative review by the State Office of Administrative Hearings by March 30, according to the commissioner.

Mata, who is not a lawyer, said he disagrees with the state interpretation of the takeover law.

“State law is superceded by federal law and they cannot and should not discriminate against anyone,” he said.

U.S. Rep. Sheila Jackson Lee has said she is also seeking federal intervention in the takeover by speaking with the Biden administration and other members of Congress.

A spokesperson for the federal education department confirmed that it has been in touch with Lee’s office.

“We cannot prejudge the effect of state and local decisions that have not yet been implemented,” the spokesperson said. “At the U.S. Department of Education, our most important focus is to ensure all students receive high-quality education. We always value and encourage community input in education decisions, and every school district should ensure that community rights are respected.”

See here for the background. I don’t know what the likelihood of federal action is, nor do I know what kind of timeline they might be on, or what procedural steps there may be along the way. I do feel confident that if the feds step in that the state would file its own complaint in federal court, and who knows what happens from there. It’s a lot, at least potentially. Or maybe it’s nothing, if the feds decline to act or decide they don’t have the authority. Like I said, who knows? It’s not boring, we know that much.

Asking the feds to stop the TEA takeover

Mar 18th, 2023
by Charles Kuffner.
Comments are off for this post

Can’t hurt to ask.

U.S. Rep Sheila Jackson Lee said Thursday she is seeking federal government intervention to halt the Texas Education Agency’s takeover of the Houston Independent School District.

Jackson Lee said she has been in contact with the White House frequently over the past years and is now speaking to President Joe Biden’s assistant secretary and the U.S. Office of Civil Rights

“I truly believe that this is a clearly defined matter of discrimination,” Jackson Lee said, adding that other districts have faired similarly to HISD but are not facing takeovers.

Wheatley High School, which received failing grades from the TEA for seven consecutive years, is at the center of the debate over the HISD takeover. While the TEA takeover remained in legal limbo for over three years due to a lawsuit from the district, Wheatley High School has since earned a C grade.

The TEA has said the performance of Wheatley High School is not the only reason for its decision to take over the district. TEA Director Mike Morath pointed to a corruption scandal in which trustees admitted to accepting kickbacks from district vendors as well as a state conservatorship the TEA had placed over HISD for over two consecutive years.

Lee said she has also been speaking with fellow members of Congress, and has distributed a letter criticizing the takeover.

The story notes that the Chron has not yet seen a copy of the letter; I’d have linked to it if there had been a link in the piece. I have previously suggested that federal intervention is the only possible means of stopping this now, given that passing a new law would take far too long and has at best an uncertain chance of happening. That doesn’t mean I think it has a good chance of success, or that the state would sit idly by if it did happen. My best guess is that the Education Department will review Rep. Jackson Lee’s letter but is unlikely to take action, unless they see a clear justification for it.

On that score, I will note that in a world where we still had a fully functioning Voting Rights Act, the TEA would almost certainly have had to get preclearance to sideline the elected Board of Trustees as they will be doing. (This thought is not original to me, I saw it mentioned somewhere else, maybe on Twitter, but I don’t remember where.) That doesn’t mean the takeover couldn’t have happened, just that it would have required more effort on the TEA’s part, or perhaps that the TEA would have gone about it differently. I will also note that if this is the scandal in question, it involved one Trustee who hasn’t been on the Board since 2020. It’s a thing that happened, but we should acknowledge that no current Trustees – you know, the ones who are going to be replaced – were involved.

UPDATE: The Greater Houston Coalition for Justice has filed a complaint with the U.S. Department of Education regarding the takeover. I’ll post separately about that but wanted to acknowledge it this morning.

Bills filed to stop the TEA takeover of HISD

Mar 8th, 2023
by Charles Kuffner.
5 comments

Feels too late to me, but it can’t hurt to try.

State senators have filed the first bill to soften the law that triggers school district takeovers.

State Sens. Carol Alvarado, Borris Miles and John Whitmire filed Senate Bill 1662 in response to the threat of a possible takeover of Houston Independent School District by the Texas Education Agency. State Rep/ Alma Allen has filed companion legislation in the Texas House.

The bill modifies the current state law to provide TEA additional tools to address low performance ratings such as hearings before the commissioner, academic achievement plans, appointing agency to monitor, but not replace trustees, among other items. Under SB 1662, the TEA commissioner will have broader discretion to choose an alternative that does not require a school closure or the appointment of a board of managers.

Given Phyllis Wheatley High School improvement to a C and the district’s overall B rating, the TEA’s reason for initiating a takeover bid in 2019 is no longer valid, Alvarado said.

“It is unjust and unwarranted for TEA to move forward with a takeover,” Alvarado said in a statement. “S.B. 1662 offers the agency options to work collaboratively with HISD to address any current deficiencies instead of subjecting nearly 200,000 students and 27,000 teachers and employees to a takeover.”

Other leaders also made promises to get answers. NAACP president Bishop James Dixon said he plans to call a meeting with TEA commissioner Mike Morath. U.S. Rep. Sheila Jackson Lee said she intends to bring the issue to the Biden administration and the U.S. Department of Education.

HISD Trustee Patricia Allen said the trustees, administrators and other HISD representatives will let their grievances be known when they go to the legislator March 20.

“We have been in this fight before we even came in office,” Trustee Patricia Allen said at a community meeting at North Main Church of God in Christ in the Heights. “The board has been working since we were elected. We have a lone star governors coach, a TEA program — we have tried our best, hired the best superintendent.”

See here for the previous update, and here for my discussion of things that could be done to stave this off. As I said then, even if these bills have the support to pass and are allowed to come to the floor, it would be at least weeks and more likely months before they would take effect. Thus, unless Mike Morath is agreeable to wait it out, the legislative process is just too damn slow. I appreciate the effort, but let’s not put our hope in something that can’t work unless Morath and the TEA are willing to let it work.

Now having said that, it’s Tuesday afternoon and the TEA hasn’t taken over HISD yet, so maybe Morath is waiting until something happens to take him off the hook. Stranger things and all that. I would encourage Trustee Allen and Bishop Dixon and whoever else can get a meeting with Morath to ask him nicely if he’d at least talk to these legislators before he does anything. As with the bills themselves, it can’t hurt. Getting the feds involved has a chance of achieving something, and it could be done quickly, but it would also be super antagonistic, so let’s try the “ask very nicely for a delay” option first, since it surely won’t work if we do it the other way around. Throw everything at the wall, but do so in the proper order.

Oh, and why wasn’t a bill like this filed in the last Lege? Well, maybe there was one – I’d have to look, I don’t know offhand. That would have solved the timing issue, but only if it was allowed to pass, as with this one, and we didn’t know we’d need it because of the then-ongoing litigation. I think it’s at best a tossup whether these bills get even a committee hearing now, and I’d say that was never in the cards in 2021. That’s easy to say, and if we give credit for trying now we do have to ask what we tried then. We’re in this situation now regardless, so let’s not waste too much energy on what could have been. What it is now is what matters.

The past history of TEA takeovers

Mar 7th, 2023
by Charles Kuffner.
1 comment

As of Monday afternoon there’s still no word from the TEA about the fate of HISD, so while we wait we ponder what history can teach us. Assuming that history doesn’t contain anything gay or CRT-related so we’re allowed to learn from it, of course.

As rumors of a looming state takeover of the Houston Independent School District cause uncertainty and anxiety for educators and families, many are looking to previous examples of the Texas Education Agency imposing control of local school systems.

There are 15 such instances over the course of three decades, according to state records. None likely offer a case study that would compare to a takeover of HISD, the largest school district in the state and the eighth largest in the nation. Still, some have likened the potential takeover of diverse HISD to that of the other school systems, all of which served predominantly Black and Hispanic student bodies or children from families considered to be “economically disadvantaged.

“I’ve been getting a lot of calls from HISD teachers asking me for advice,” said Jennifer Jermany, a former North Forest ISD teacher who was laid off when the district was absorbed into HISD. “Our cases are similar, but not exact. My heart really goes out to those teachers because we really don’t know what is going to happen.”

[…]

Of the 15 previous state takeovers, four — Kendleton, Wilmer-Hutchins, North Forest and La Marque ISDs — closed entirely after regaining local control. El Paso, Beaumont, Edgewood and Southside ISDs remain open after local control was restored.

Progreso, Pearsall, Hearn, Harlandale and Snyder ISDs each came to a settlement or did not proceed with a board of managers.

Two districts — Marlin ISD and Shepherd ISD — still have a state-appointed board of managers in place.

Seven of those districts were predominantly Black, including multiple districts with schools significant to Texas’ African American history. Another seven of the districts taught mostly Hispanic student bodies. Only one district — Shepherd ISD — was predominantly white. Around 66 percent of students in that district are economically disadvantaged.

Of HISD’s 187,000 students, 62 percent are Hispanic and 22 percent are Black. Nearly 80 percent of its students are economically disadvantaged.

None of the districts previously taken over by TEA come close to comparing in size to HISD. The smallest of those districts, Kendleton ISD, had less than 100 students and the largest, Beaumont ISD, currently has around 17,000.

In the previous takeovers, TEA gave reasons such as financial issues, administrators violating the law, fraudulent test score data, inability of school boards to properly govern, loss of accreditation status and poor academic ratings, among other causes.

See here, here, and here for the background. Beaumont ISD was taken over because of fiscal mismanagement. That at least would be an understandable reason, with clear goals for being returned to local control. Most of the rest of the story is about the takeover of North Forest, which followed a few years later by North Forest being absorbed into HISD. They had serious, long-term issues with their board of trustees, which again is a different issue than what HISD faces. It’s also a reminder that we didn’t have any real mechanism in place at the time to track the former NFISD students as they made their way through HISD. That was long enough ago that I’d expect none of those original students are still in HISD schools. Sure would have been nice to know what their outcomes were, or how those who followed them into HISD have been doing.

Anyway. The one reason why I think HISD might maybe avoid a full takeover is that the TEA cannot possibly be prepared to handle the responsibility of running HISD, even if they outsource it to a board of managers. I don’t think they want it, and I think they will look for an exit ramp. I agree with Mayor Turner and Judge Hidalgo and many others that politics is at play, and I freely admit I am thinking wishfully when I say stuff like this. It’s what I’ve got, and until the TEA tells us what they’re doing we can at least hope for the best.

So is there anything that can be done to derail the TEA takeover?

Mar 5th, 2023
by Charles Kuffner.
3 comments

Probably not. I mean, I really appreciate the engagement and the passion, but we’re at the end of the road here, a road that started almost six years ago. Sometimes you just run out of things to do.

With time seemingly running out, Houston politicians vowed on Friday to file lawsuits and legislation — whatever it takes — to stave off a possible state takeover of Houston ISD that has been in the works for four years.

Mayor Sylvester Turner and state Rep. Alma Allen announced earlier this week that they’d heard reports that the takeover could happen as early as March 6. The Texas Supreme Court gave the Texas Education Agency final authority to assume control of the school system in January but has yet to take formal action to do so.

“We as a body, as state legislators, are standing before you to say ‘We are not asleep at the wheel,’ ” state Rep. Jarvis Johnson, said Friday during a protest at Discovery Green, one of a series of events held to highlight the urgency of the situation. “We are in the process of rewriting legislation. We are looking at every lawsuit we can bring to the doorstep of the governor, and the TEA, to thwart the efforts of the TEA.”

Turner called on TEA Commissioner Mike Morath and state legislators at the protest and earlier this week to amend the law so the state doesn’t appoint a board of managers.

During their conversations, Morath did not confirm nor deny takeover plans, but cited a provision in state code that he says requires the TEA to take over a district or close a school that has failed five consecutive years.

Turner is advocating a different option. “If there is something that is not in the best interest of the kids, you can go to the Legislature now, and make any modification that is needed and we can move further down the road,” the mayor said.

[…]

Friday started with a few dozen protesters in front of the district’s central office, also wondering why HISD should be taken over by the state instead of other lower-performing districts. They pointed to HISD schools’ current ratings, which show that 94 percent of schools earn a grade of A, B or C.

“Those who cannot stand on the right side of history, don’t deserve our shopping, don’t deserve our worship, they don’t deserve our tithes and offerings,” James Dixon, president of the Houston NAACP, said. “If you can’t stand up for public schools and for education, you don’t deserve our support financially, you don’t deserve our votes and you do not deserve our respect.”

Speaking via the phone from the U.S. Capitol, U.S. Rep. Sheila Jackson Lee, D-Houston, said she could not attend the protest in person but fully supported its mission.

“I’ve said to the Department of Education and to the president United States … this is a test case and we must win this case,” Jackson Lee said.

See here and here for the background. We’re where we are now because of a Supreme Court ruling, so a state lawsuit seems extremely unlikely to bear fruit. A federal lawsuit could be possible, and maybe there’s some way for the US Department of Education to intervene, but that all feels vague and undefined. Better odds than a state lawsuit, but nothing I’d want to bet on. And as far as legislation goes, we’re barely even into the committee-hearings part of the legislative session. Any bill to stop this takeover, assuming it had majority support in both chambers and wasn’t opposed by Speaker Phelan or Dan Patrick or Greg Abbott, would be at least a month away from getting signed. And even then, unless it passed with a two-thirds majority in both chambers, it would be another 90 days before it went into effect. This just cannot happen in time.

The one possibility I can see is someone convincing Mike Morath that the Supreme Court ruling just means that the TEA “may” take over HISD, not that it “shall” take it over. I don’t know what provision he’s citing, I’m not a lawyer, and I don’t know what’s in his head or what legal advice he’s receiving, but at least this is a plausible path. If Morath believes he has discretion, then we just have to persuade him to do something less drastic. How good are the odds of that? We’ll find out soon.

Department of Education investigating removal of LGBTQ books from Texas school library

Dec 27th, 2022
by Charles Kuffner.
3 comments

Good.

The U.S. Education Department’s civil rights enforcement arm has launched an investigation into a North Texas school district whose superintendent was secretly recorded ordering librarians to remove LGBTQ-themed library books.

Education and legal experts say the federal probe of the Granbury Independent School District — which stemmed from a complaint by the American Civil Liberties Union of Texas and reporting by NBC News, ProPublica and The Texas Tribune — appears to be the first such investigation explicitly tied to the nationwide movement to ban school library books dealing with sexuality and gender.

The Education Department’s Office for Civil Rights notified Granbury school officials on Dec. 6 that it had opened the investigation following a July complaint by the ACLU, which accused the district of violating a federal law that prohibits discrimination based on sexual orientation and gender. The ACLU complaint was based largely on an investigation published in March by NBC News, ProPublica and the Tribune that revealed that Granbury’s superintendent, Jeremy Glenn, instructed librarians to remove books dealing with sexual orientation and people who are transgender.

“I acknowledge that there are men that think they’re women and there are women that think they’re men,” Glenn told librarians in January, according to a leaked recording of the meeting obtained, verified and published exclusively by the news outlets. “I don’t have any issues with what people want to believe, but there’s no place for it in our libraries.”

Later in the meeting, Glenn clarified that he was specifically focused on removing books geared toward queer students: “It’s the transgender, LGBTQ and the sex — sexuality — in books,” he said, according to the recording.

The comments, combined with the district’s subsequent decision to remove dozens of library books pending a review, fostered a “pervasively hostile” environment for LGBTQ students, the ACLU wrote in its complaint. Chloe Kempf, an ACLU attorney, said the Education Department’s decision to open the investigation into Granbury ISD signals that the agency is concerned about what she described as “a wave” of anti-LGBTQ policies and book removals nationally.

“In this case it was made very clear, because the superintendent kind of said the quiet part out loud,” Kempf said in an interview. “It’s pretty clear that that kind of motivation is animating a lot of these policies nationwide.”

An Education Department spokesperson confirmed the investigation and said it was related to Title IX of the Education Amendments of 1972, which prohibits schools from discriminating on the basis of sex, gender and sexual orientation. The Office for Civil Rights doesn’t comment on pending investigations, the spokesperson said.

If the investigation confirms violations of students’ rights in Granbury schools, the agency can require the district to make policy changes and submit to federal monitoring.

[…]

Education and legal experts said the Education Department’s decision to open an investigation in Granbury is significant because it sets up a test of a somewhat novel legal argument by the ACLU: the idea that book removals themselves can create a hostile environment for certain classes of students.

“It’s certainly the first investigation I’ve seen by the agency testing that argument in this way,” said W. Scott Lewis, a managing partner at TNG, a consulting firm that advises school districts on complying with federal civil rights laws.

The ACLU of Texas made similar legal arguments in another civil rights complaint filed last month against the Keller Independent School District in North Texas in response to a policy banning any books that mention “gender fluidity.” The Education Department has yet to decide whether to open an investigation in Keller, Kempf said.

Jonathan Friedman, the director of free expression and education at the nonprofit PEN America, which has tracked thousands of school book bans since last year, said the same legal argument could be made in districts across the country where parents, school board members and administrators have expressed anti-LGBTQ motivations.

“It’s not uncommon to see people explicitly saying that they want to remove LGBTQ books because they believe they are indoctrinating students,” said Friedman, who cited a case in Florida in which a teacher called for the removal of a children’s picture book about two male penguins because, she said, it promoted the “LGBTQ agenda.”

Granbury isn’t the only North Texas school district facing federal scrutiny.

The Office for Civil Rights over the past year has opened five investigations into allegations of discrimination at the Carroll Independent School District in Southlake, a wealthy Fort Worth suburb that has been at the center of the national political fight over the ways schools address racism, gender and sexuality. If the Education Department finds Carroll students’ rights have been violated, experts said, the federal agency could require the district to implement the same types of diversity and inclusion training programs that conservative activists have fought to block in Southlake.

Part of the problem here is that Granbury ISD just elected a couple of self-righteous censors to its Board of Trustees, which makes this a bigger political issue. Maybe the voters there will get tired of this fight, or at least of the expense of fighting it, and start to fix their mistakes in the next election. That’s far from a guarantee, of course – it could easily get worse instead. Ultimately, changing hearts and minds is the best long-term solution, but in the meantime doing whatever it takes to protect the rights of the marginalized kids is paramount.

I’m glad to see this, and I absolutely hope these investigations will happen in the other named districts and more, but I fear that the penalties that the DOE is able to impose will be inadequate. Part of that problem is that often the biggest stick that the feds can wield is the threat of withholding funding, but doing that ultimately just hurts the people who most need the help, and doesn’t really affect the politicians in question. There are already plenty of local and state officials who are happy to defy the feds on all kinds of civil rights matters, which they can do because they have voter support and no fear of the potential consequences. The days when officials could be shamed into compliance, or at least into reverting to normative behavior, are over. We need to have a conversation about better and more effective ways to get the modern day segregationists to comply with federal law.

Trump judge blocks student loan forgiveness order

Nov 12th, 2022
by Charles Kuffner.
Comments are off for this post

Same crap, different day.

A federal judge in North Texas ruled on Thursday that President Joe Biden’s student loan forgiveness program is “unlawful,” the latest challenge to the policy that has seen several attacks from conservative groups.

U.S. District Judge Mark Pittman said in court files that he declared the loan forgiveness plan unlawful because Biden did not follow federal procedures to allow for public comment prior to the policy’s announcement.

In October, the Job Creators Network Foundation filed the lawsuit in the North Texas court on behalf of two borrowers who don’t qualify for all of the program’s benefits. Those borrowers disagreed with the program’s eligibility criteria and the lawsuit alleged that they could not voice their disagreement.

The latest attack on Biden’s loan forgiveness programs comes after the U.S. Court of Appeals for the 8th Circuit temporarily halted the program last month in response to a lawsuit from six GOP-led states. The Texas lawsuit joins a growing number of legal challenges to the loan forgiveness plan that Biden announced in August. Borrowers started applying for the program in October.

[…]

The Texas lawsuit alleges that Biden’s program violated the Administrative Procedure Act by not providing a public comment period. The lawsuit also argues the Secretary of Education does not have the authority to implement the program.

Alexander Taylor, one of the plaintiffs, is not eligible for $20,000 in forgiveness because he did not receive a Pell Grant, which is only available to low-income students, and therefore will only be entitled to $10,000 off his student loans.

The other plaintiff, Myra Brown, has privately held loans that are no longer covered by Biden’s plan. Earlier in the program’s existence, commercially held loans like Brown’s could be consolidated into Direct Loans, which meet the eligibility requirements of Biden’s program, but the Education Department changed this policy after fielding multiple lawsuits from conservative states.

In response to the lawsuit, the Justice Department argued last month that Biden’s plan doesn’t require notice and comment.

I guess we should be thankful that this is based on a colorable legal claim, one that at least theoretically could be addressed in a subsequent order if it came to that, and not on some bullshit Constitutional theory invented last week by a drone in a Federalist Society lab. It’s still the case that every two-bit Trump-appointed or adjacent district judge thinks they have a national veto on anything the President does, and that’s not how this is supposed to work. It really would be nice if we could restore a little balance here.

Math test scores took a hit during the pandemic

Oct 27th, 2022
by Charles Kuffner.
Comments are off for this post

The decline started before the pandemic, but kept on going from there.

Students in Houston and across the nation showed “appalling and unacceptable” declines on the 2022 Nation’s Report Card, adding to mounting evidence that the pandemic impacted young people already facing academic and mental health challenges.

U.S. Secretary of Education Miguel Cardona said low-performing students’ scores on the National Assessment of Educational Progress were faltering even before the pandemic and now all performance levels are showing sharp declines. The nation must take swift action and invest more in education to reverse these troubling trends, he said.

“It’s heartbreaking, and it’s horrible,” Cardona said. “It’s an urgent call of action. We must raise the bar in education.”

The U.S. Department of Education administers the NAEP every other year to fourth- and eighth-graders across the country. Comparisons can be made among states, as well as among 27 of the country’s largest school districts. Desegregated results from Houston, Austin, Dallas, and Fort Worth ISDs are available, as are state totals. Score range from 0 to 500.

Results for Houston ISD show:

  • In math, the number of fourth-grade students performing “below basic” on the math NAEP increased 14 percentage points to 37 percent since 2019. On average, Houston ISD fourth-graders scored a 226, compared to 235 in 2019. The national average this year fell to 227.
  • The average score of a white fourth-grader in HISD on the math test was a 260, compared to a 212 for Black students and a 223 for Hispanic students. Additionally, 22 percent of white fourth-graders reached the “advanced” benchmarks of the math test, compared to 2 percent of Black and Hispanic students.
  • About 44 percent of eighth-graders in Houston ISD performed “below basic” on the reading NAEP, an increase from 41 percent in 2019. Their average score was 247, falling 2 points lower than 2019 scores and 8 points lower than the national average. White students averaged a 275, while Black students averaged 236 and Hispanics 244.
  • Additionally, only 4 percent of white eighth-graders in Houston ISD reached the “advanced” benchmark on the reading test.

Houston ISD Superintendent Millard House II said support services will be key to improving scores.

“While these challenges are not unique to HISD, providing students and families with the necessary academic and non-academic supports as detailed in our community driven five-year strategic plan, will address many of these needs,” House said in a statement. “We are confident that these investments in our students such as requiring a librarian, counselor or social worker, and supporting our schools with the highest need through our RISE program, will ensure a more equitable, targeted approach increasing positive academic outcomes.”

The first STAAR results post-pandemic weren’t so bad, but there was definitely an impact on poorer students. I feel reasonably confident that we can make up the lost ground, but what we can’t ever get back is those years of those kids’ lives. At a certain point, the effect of the learning loss has real long-term negative effects. That’s a problem that won’t go away.

One more thing:

There’s more to the thread, but you get the idea. Don’t let people go jumping to conclusions around you. The Trib and Texas Public Radio have more.

The Biden student loan forgiveness plan will help a lot of Texans

Sep 23rd, 2022
by Charles Kuffner.
Comments are off for this post

Hope they’re all voters, because it’s very clear who is on their side and who is against them.

More Texans would benefit from President Joe Biden’s plan to forgive student loan debt than residents of nearly any other state — and 1.6 million would have their balances completely cleared — according to new White House estimates released as Republicans call it an unconstitutional giveaway to the elite and seek to derail it.

More than 3.3 million Texans would be eligible to have at least $10,000 forgiven and most people in that group, 2.3 million, would have $20,000 forgiven. Texas is second only to California in the number of residents that would benefit from the debt forgiveness plan, according to the estimates, which were compiled by the U.S. Department of Education.

[…]

Officials have said they plan to have applications available early next month, but the plan is likely to face a long legal battle.

Texas is among the red states looking for ways to stop it from becoming a reality. Attorney General Ken Paxton said in a recent interview on Fox News that Texas is “definitely looking at a strategy.”

It is the first time a president has sought to unilaterally cancel swaths of student debt and whether the administration has the authority to do so has been the point of heated debate. The administration says it can, citing a 2003 law that grants the secretary of education authority to offer loan relief during times of war or national emergencies.

But Republicans say Biden is going too far.

“The reality is, I don’t actually think Joe Biden thinks he can do this,” Paxton said. “We are absolutely looking at something we can do to protect the American people from a president that is just making up his own rules as he goes along.”

Republicans argue the plan is unfair to those who have already paid off their debt, as well as the vast majority of American adults who do not have student loans. They say the plan will cost too much — with some estimates as high as $600 billion — and will help those who need it the least.

“College may not be the right decision for every American, but for the students who took out loans, it was their decision: able adults and willing borrowers who knowingly agreed to the terms of the loan and consented to taking on debt in exchange for taking classes,” Gov. Greg Abbott wrote in a letter to Biden with other Republican governors last week. “For many borrowers, they worked hard, made sacrifices, and paid off their debt. For many others, they chose hard work and a paycheck rather than more school and a loan. Americans who did not choose to take out student loans themselves should certainly not be forced to pay for the student loans of others.”

Paxton and Abbott are gonna do what they’re gonna do, and we’ll have to deal with it as we always do. There are absolutely root-cause issues here that are not addressed, but one of the big ones is the underfunding of state universities, which is why they’re so much more expensive now than they were even 20 years ago. Remember tuition deregulation, which the Lege did under Tom Craddick back in 2003 as an exercise in budget-cutting? Not much the President can do about that, and I don’t see Greg Abbott lining up to offer solutions. Anyway, policies that offer a lot of people a tangible benefit are usually good, and certainly attractive from a vote-getting perspective. I hope everyone involved in this remembers that.

Fifth Circuit tosses mask mandate lawsuit filed by disability rights activists

Jul 30th, 2022
by Charles Kuffner.
Comments are off for this post

Par for the course.

A federal appeals court on Monday tossed out a lower-court injunction, issued in November, that would have allowed public schools in Texas to ignore Gov. Greg Abbott’s ban on mask mandates.

U.S. District Judge Lee Yeakel of Austin had blocked Abbott’s order as it pertained to schools, ruling that a ban on mandatory face masks improperly endangered students with disabilities and violated the Americans with Disabilities Act by denying them the opportunity to participate equally in school.

Texas appealed, and a month later the 5th U.S. Circuit Court of Appeals blocked enforcement of Yeakel’s injunction while it considered the state’s case.

On Monday, in a 2-1 ruling, the appeals court sided with state officials, tossing out Yeakel’s injunction and dismissing the lawsuit by the students. The court said the students did not prove that the ban on mask mandates put them at imminent and concrete risk of contracting COVID-19.

“In light of widely available vaccines and the schools’ other mitigation efforts, the odds of any particular plaintiff contracting COVID-19 and subsequently suffering complications are speculative,” Judge Andrew Oldham wrote in an opinion joined by Judge Don Willett. Both were appointed by former President Donald Trump.

In addition, Oldham wrote, the Americans with Disabilities Act only ensures that students have access to school, not that they have access to their desired accommodation of universal masking.

“Schools, in turn, have numerous alternatives for mitigating the risks of COVID-19 so plaintiffs have such access. The schools can adopt policies regarding vaccines, plexiglass, hand sanitizer, social distancing, and more,” Oldham wrote. “Plaintiffs have not even attempted to show that one or any combination of these accommodations is insufficient to mitigate the risks of COVID-19 to a level low enough that plaintiffs can attend school.”

In a dissenting opinion, Judge Eugene Davis complained that Oldham mischaracterized the students’ argument by saying they merely feared an increased risk of contracting COVID-19. Instead, the students argued that state Attorney General Ken Paxton’s dogged defense of Abbott’s ban on mask mandates, including lawsuits against school districts and threats of additional litigation, amounted to disability discrimination.

The students also proved that they had been, or will be, harmed by a ban on all mask mandates, even at schools that determine that limited mask orders were a reasonable accommodation for student health, he wrote.

“While all students bear some health risks by attending school in person during the ongoing pandemic, the district court found, and it is undisputed, that these plaintiffs face a much higher risk to their health because of their disabilities,” said Davis, appointed by former President Ronald Reagan.

See here for the previous update, and here for a copy of the opinion. There are still a lot of state lawsuits over the Abbott executive order that banned mask mandates in school, which largely turn on the question of what the Governor’s authority under the 1975 Texas Disaster Act is; the San Antonio ISD vaccine mandate lawsuit is in that same bucket. This was a federal lawsuit that claimed discrimination under the Americans with Disabilities Act. I still think they had a pretty good argument, but it’s the Fifth Circuit, what are you gonna do? I suppose an appeal to SCOTUS is possible, but perhaps not advisable, as it’s probably not a good idea to give them a chance to mess with that law. Texas Public Radio and the ABA Journal have more.

Biden signs executive order to protect trans kids

Jun 17th, 2022
by Charles Kuffner.
Comments are off for this post

Good.

President Joe Biden signed an executive order Wednesday to enhance protections for transgender children and take steps to ban conversion therapy as efforts continue in Texas and other states to restrict gender-affirming medical care.

The executive order calls on the U.S. Department of Education and the Department of Health and Human Services to increase access to gender-affirming care and develop ways to counter state efforts aimed at limiting such treatments for transgender minors.

Biden signed the order Wednesday afternoon, joined by six LGBTQ teens who were reportedly from Texas and Florida.

“My message to all the young people: Just be you,” Biden said to a crowd of members of Congress, administration officials and LGBTQ advocates. “You are loved. You are heard. You are understood. You do belong.”

The federal health department will release sample policies for states to expand health care options for LGBTQ patients. The federal education department will release a sample school policy to achieve full inclusion of LGBTQ students.

[…]

Biden’s order also asks the health department to lead an initiative aimed at reducing youth exposure to conversion therapy and expand awareness and support for survivors of the practice. Biden is also asking the Federal Trade Commission to see if conversion therapy “constitutes an unfair or deceptive act or practice, and whether to issue consumer warnings or notices,” per the White House. He is also directing department heads to promote an end to conversion therapy worldwide.

Texas is one of 22 states that has not banned conversion therapy, a debunked practice that seeks to change a person’s sexual orientation or gender identity. The health department will explore guidance clarifying that federally funded programs cannot conduct conversion therapy.

Biden’s order calls on the health department to expand youth access to mental health services and issue new guidance for providing mental health care for LGBTQ youth. The order also charges the health department with strengthening LGBTQ nondiscrimination practices in the foster care system. Biden is also calling on the department to increase access to voluntary family counseling.

“We’re in a battle for the very soul of this nation,” Biden said. “It’s a battle I know we will win.”

I feel like there had been some earlier promise from President Biden to take this action, but if so I don’t see that I blogged about it. I assume there will be a lawsuit filed by our shitbird Attorney General to stop all this, which will exist alongside the earlier lawsuit that had been filed to stop the feds from turning off some funding sources in response to our anti-trans bullying ways. In the meantime, we’ll wait and see what the new policies this order directs look like. Whatever the ultimate outcome, this was the right thing to do.

Fifth Circuit puts school mask order on hold

Nov 26th, 2021
by Charles Kuffner.
3 comments

This effing court.

A federal appeals court has reinstated Gov. Greg Abbott’s executive order banning mask mandates as it weighs a federal judge’s ruling that the ban violates the rights of disabled students.

U.S. District Judge Lee Yeakel previously ruled that the order violated the Americans with Disabilities Act and the American Rescue Plan, which gives discretion to school districts to follow Centers for Disease Control and Prevention guidance on the virus. Yeakel, an appointee of former President George W. Bush, had banned state Attorney General Ken Paxton from enforcing the order, including suing school districts that required masks.

Texas appealed the judge’s ruling to the Fifth Circuit U.S. Court of Appeals in New Orleans, a court composed mostly of judges appointed by Republican presidents that has historically trended conservative in its legal decisions. Wednesday’s decision was made by a three-judge panel, two of whom were appointed by former President Donald Trump.

The lawsuit was brought by Disabled Rights Texas on behalf of a number of children with disabilities in Texas. Lawyers for those children argued the law banning mask mandates goes against CDC advice and that it doesn’t allow schools to consider mask mandates as an accommodation for kids with disabilities who are particularly vulnerable to COVID-19. They argued that it violates the ADA, which requires equal access to public goods for people with and without disabilities.

See here for the background. Other than the Bloomberg News story linked in the Chron piece, which says that the order was made by the court without any explanation, I can’t find any coverage of this, so this is what we know. But honestly, how much more do we need to know? As with the SB8 case and the detailed ruling given by the district court judge, the Fifth Circuit exists to enforce a partisan orthodoxy on whatever comes before it. When was the last time the state of Texas went running to them to ask for a stay on a ruling they didn’t like and got a No answer? All of the things that reformers want to do to the Supreme Court need to be done with even more urgency to this abomination.

Federal judge blocks Abbott’s ban on school mask mandates

Nov 12th, 2021
by Charles Kuffner.
12 comments

Excellent news.

A federal judge ruled Wednesday that Gov. Greg Abbott’s executive order prohibiting mask mandates in schools violates the Americans with Disabilities Act — freeing local officials to again create their own rules.

The order comes after a monthslong legal dispute between parents, a disability rights organization and Texas officials over whether the state was violating the 1990 law, known as the ADA, by not allowing school districts to require masks. U.S. District Judge Lee Yeakel barred Attorney General Ken Paxton from enforcing Abbott’s order.

“The spread of COVID-19 poses an even greater risk for children with special health needs,” Yeakel said. “Children with certain underlying conditions who contract COVID-19 are more likely to experience severe acute biological effects and to require admission to a hospital and the hospital’s intensive-care unit.”

The judge said the governor’s order impedes children with disabilities from the benefits of public schools’ programs, services and activities to which they are entitled.

The advocacy group, Disability Rights Texas, filed the federal lawsuit on behalf of several Texan families in late August against Abbott, Paxton and Texas Education Agency Commissioner Mike Morath. It states that the governor’s order and the TEA’s enforcement of it deny children with disabilities access to public education as they are at high risk of illness and death from the virus.

Kym Davis Rogers, litigation attorney with Disability Rights Texas, said in a statement that the court found that Texas is not above federal law and state officials cannot prevent school districts from providing accommodations to students who are especially vulnerable to the risks of COVID-19.

“No student should be forced to make the choice of forfeiting their education or risking their health, and now they won’t have to,” Rogers said.

Rogers said she doesn’t rule out the state appealing the decision in the 5th U.S. Circuit Court of Appeals because the state has done so before, most recently with its new law that bans abortions after as early as six weeks.

[…]

In court documents, Ryan Kercher, the attorney representing the state, argued that neither the attorney general nor the state education agency were enforcing the executive order so they couldn’t be sued.

But Disability Rights Texas attorneys said the three were enforcing the order and provided the court with a letter that the TEA sent to the attorney general’s office. In it, the education agency listed school districts that appeared to be operating in violation of the governor’s order. The plaintiffs also noted how Paxton sued several school districts over requiring masks and sent “threatening” letters to districts telling them that they were violating the order.

This isn’t the first time state attorneys argued that Paxton and Abbott didn’t actually enforce the law. In an August lawsuit against the state over the mask order, Paxton made the same argument and indicated that it was up to local county prosecutors to enforce the order.

See here, here, and here for the background, and here for a copy of Judge Yeakel’s ruling. As the story notes, the US Department of Education is also doing an investigation into Texas’ mask mandate ban; it’s not clear to me what effect this ruling, if it stands, could have on that. Also as the story notes, Paxton had filed multiple lawsuits against school districts that had mask mandates, getting most if not all of them to stop. We’ll see what happens next with that.

I do expect the state to appeal to the Fifth Circuit, and why wouldn’t they? The Fifth Circuit gives them everything they ask for pretty much all of the time, whatever the facts or merits of the case in question. This is still a significant ruling, and we should always take the opportunity to revel in any defeat suffered by Greg Abbott and Ken Paxton. May this be the start of a very long losing streak. The DMN and the Chron have more.

Federal lawsuit over mask mandate ban in schools has its hearing

Oct 11th, 2021
by Charles Kuffner.
2 comments

A big case with potential national implications.

School district leaders should have the right to make decisions about mask mandates based on the needs of their students and local coronavirus spread data, attorneys argued Wednesday in federal court.

Lawyers with Disability Rights Texas, who filed the first federal lawsuit over the ban in mid-August, allege that Gov. Greg Abbott’s prohibition on mask mandates puts students with disabilities at risk.

The organization claims that Abbott’s executive order violates federal anti-discrimination law, which prohibits the exclusion of students with disabilities from public education programs and activities.

Disability Rights Texas represents students mostly younger than 12 with disabilities and underlying medical conditions “which carry an increased risk of serious complications or death in the event that they contract COVID-19″ including children who have Down syndrome, moderate to severe asthma, and chronic lung or heart conditions.

“Doctors that treat the plaintiffs told them to avoid places without universal masking,” attorney Scott Thomas said.

Their parents submitted testimony outlining their difficult choices about whether to prioritize their vulnerable children’s educational needs or their health.

“No parent should be forced to make a decision like this,” one said.

Ryan Kercher, arguing on behalf of the state, stressed that the lawsuit hinged on data, pointing to the relatively low number of COVID-19 cases in the schools of the students suing.

Judge Lee Yeakel interrupted Kercher, asking why the data mattered. If the odds of contracting COVID-19 were 10,000-1, it would matter to the one person, he said.

Kercher pushed back, saying it is important to examine the number of cases to see if a real risk existed should masks not be mandated. Holding up Fort Bend Independent School District, which does not require masks, as an example, Kercher said the district near Houston had case totals that are on par with districts that do not require masks.

But Yeakel also questioned why not search for the most safe option to prevent the spread of coronavirus.

“That’s not a choice anyone gets,” Kercher said, noting that the speed limit isn’t 5 miles per hour everywhere. He and his co-counsel did not wear face coverings during the hearing.

Yeakel did not rule on the case Wednesday but said he would work to do so as quickly as possible. He alluded to the national interest and impact such a decision could have as states across the country are also in the midst of their own mask battles. No matter what he decides, appeals appear likely.

See here, here, and here for the background. The Justice Department got involved in the case on the side of the plaintiffs earlier this week. I think they have a strong case, and of course I’m rooting for Greg Abbott to be handed a loss, but we’ll see. I do think this one will eventually make its way to SCOTUS, perhaps quickly if there’s a question about staying a favorable ruling for the plaintiffs. KVUE has more.

Justice Department gets involved in federal lawsuit over mask mandate ban

Oct 5th, 2021
by Charles Kuffner.
1 comment

Missed this over the weekend.

The Justice Department signaled its support on Wednesday for the families of children with disabilities in Texas who are suing to overturn Gov. Greg Abbott’s ban on mask mandates in the state’s schools.

The department filed a formal statement on Wednesday with the federal district court in Austin that is hearing one of the lawsuits, saying that the ban violates the rights of students with disabilities if it prevents the students from safely attending public schools in person, “even if their local school districts offered them the option of virtual learning.”

The move signals a willingness by the federal government to intervene in states where governors and other policymakers have opposed mask mandates, using federal anti-discrimination laws like the Americans with Disabilities Act. The Justice Department has often used similar statements of interest to step in to cases involving civil rights.

“Frankly I’m thrilled,” said Juliana Longoria, 38, of San Antonio. Her daughter, Juliana Ramirez, 8, is one of the plaintiffs in a suit against the ban filed in August by the advocacy group Disability Rights Texas. “It gives me a lot more hope that the federal government is serious about protecting our children,” Ms. Longoria said.

[…]

Dustin Rynders, a lawyer for Disability Rights Texas, said the department’s position put schools in Texas and beyond on notice that they had an obligation to accommodate people with disabilities, including through the wearing of masks.

“It would be discrimination for a state to prohibit ramps to enter in the school,” Mr. Rynders said. “And for many of our clients, people wearing masks to protect our clients’ health is what is required for our clients to be able to safely enter the school.”

Because masks are not required at her school, Juliana Graves, 7, has not been back to school in Sugar Land this year, according to her mother, Ricki Graves. The Lamar Consolidated Independent School District did not immediately respond to requests for comment.

Juliana has had a heart transplant, and the medication she takes to prevent rejection suppresses her immune system, her mother said. As a result, respiratory infections as simple as the common cold have landed Juliana in the hospital more than a dozen times, Ms. Graves said, adding that she worries that Covid-19 could kill her daughter.

Instead of going to school, Juliana has been receiving four hours a week of instruction from a teacher through homebound school services, Ms. Graves said. Her daughter is repeating first grade, she said, and might now be falling even further behind.

“She’s missing all her social interaction, she’s not able to go to school in person and be with her teachers and have recess and go to lunch,” Ms. Graves said. “It’s hard for her.”

See here, here, and here for the background. The story says that a hearing for the lawsuit is scheduled for this week, but I couldn’t find what the date of that hearing is, so I guess I’ll know when I see a story about that. I would like to think that an injunction barring Abbott from banning mask mandates would be in the offing, but I think a narrower ruling that would require schools that have a student that meets some definition of “disabled” to have a mandate is more likely. But I Am Not A Lawyer, so what do I know? ABC News and the Trib have more.

Feds officially investigating Texas mask mandate ban

Sep 22nd, 2021
by Charles Kuffner.
Comments are off for this post

Good.

The U.S. Department of Education on Tuesday launched a civil rights investigation into Gov. Greg Abbott’s ban on mask mandates in schools, making Texas the sixth state to face a federal inquiry over mask rules.

The investigation will focus on whether Abbott’s order prevents students with disabilities who are at heightened risk for severe illness from COVID-19 from safely returning to in-person education, in violation of federal law, Suzanne B. Goldberg, the acting assistant secretary for civil rights wrote in a letter to Texas Commissioner of Education Mike Morath.

The investigation comes after the Texas Education Agency released guidance saying public school systems cannot require students or staff to wear masks to prevent the spread of COVID-19 in light of Abbott’s ban on mask mandates.

[…]

Goldberg wrote that the Office for Civil Rights will examine whether TEA “may be preventing school districts in the state from considering or meeting the individual educational needs of students with disabilities or otherwise enabling discrimination based on disability.”

The department previously opened similar investigations into mask policies in Iowa, South Carolina, Utah, Oklahoma and Tennessee. But the agency had not done so in Texas because of court orders preventing the state from enforcing Abbott’s order. The new TEA guidance changed that, however.

See here and here for the background. The TEA’s new directive made me scratch my head.

In newly released guidance, the Texas Education Agency says public school systems cannot require students or staff to wear masks to prevent the spread of COVID-19.

A statement released by the agency Friday says Gov. Greg Abbott’s May executive order banning mask mandates precludes districts from requiring face coverings.

“Per GA-38, school systems cannot require students or staff to wear a mask. GA-38 addresses government-mandated face coverings in response to the COVID-19 pandemic,” the statement reads. “Other authority to require protective equipment, including masks, in an employment setting is not necessarily affected by GA-38.”

The agency previously had said it would not enforce the governor’s ban until the issue was resolved in the courts.

Texas Attorney General Ken Paxton has sued several school districts for imposing mask requirements on students and teachers, and some districts have sued the state over the governor’s order. The lawsuits have produced mixed results with some courts upholding districts’ mask mandates and some siding with the attorney general.

TEA officials on Tuesday did not immediately respond to requests for comment on the new guidelines and questions about how the agency would enforce the ban on mask mandates. The agency has not yet clarified what prompted the new guidelines, given that the legal battles regarding the order are ongoing.

Hard to know exactly what motivated this, but “pressure from Greg Abbott and Dan Patrick and Ken Paxton” would be high on my list of suspects. If I were to advise school districts that currently have mask mandates, as HISD does, or are thinking about imposing one, I would say go right ahead, and keep the mandates you have. This is a toothless threat, and the courts have not yet weighed in on the issue in a meaningful way. We know that having the mask mandates promotes safety, and if that isn’t the highest priority I don’t know what is. Do not waver.

Anyway. The Trib has an explainer about the state of mask mandates and lawsuits around them, but it doesn’t indicate when the legal cases may be having hearings, which admittedly would be a big task to track. The federal lawsuit will have a hearing on October 6, and we may get some clarity out of that. In the meantime, keep the mask mandates. We need them, and (a couple of district court judges aside) no one is stopping school districts from having them. The Trib has more.

Paxton sues several school districts over mask mandates

Sep 11th, 2021
by Charles Kuffner.
15 comments

Whatever, dude.

Best mugshot ever

Texas Attorney General Ken Paxton announced Friday that he filed a lawsuit against Richardson ISD, following through on his pledge to sue school districts who mandate masks.

The district defied Gov. Greg Abbott’s executive order prohibiting local entities from requiring masks. The RISD trustees voted last week to affirm Superintendent Jeannie Stone’s decision to require face coverings, after they were forced to close an elementary school because of a spike in COVID-19 cases and a sixth grader was admitted into the intensive care unit.

Paxton noted in a release that the office anticipates filing additional lawsuits against the districts flouting the governor’s order. This could include Dallas ISD — the first to openly defy Abbott.

“Not only are superintendents across Texas openly violating state law, but they are using district resources—that ought to be used for teacher merit raises or other educational benefits—to defend their unlawful political maneuvering,” Paxton said in a statement.

[…]

Richardson is among the first Texas districts to be sued by Paxton. Friday he also filed suit against the Galveston, Elgin, Spring and Sherman school districts, according to his office.

He has railed against the dozens of school districts and counties who stood firm on mask mandates, repeatedly posting on social media that he would sue them all. Paxton’s office maintains an ever-evolving list of local entities that are mandating masks.

Meanwhile, Abbott’s order is tied up in both state and federal courts as districts and advocates push for mask mandates to be local decisions.

Dallas County Judge Clay Jenkins is locked in a legal fight with the state over his decision to impose a local mask mandate for businesses and schools.

Disability Rights Texas recently escalated the legal battle, filing a federal lawsuit against Abbott, alleging his order unfairly harms children with disabilities.

Richardson trustees also recently voted to join an existing multi-district lawsuit challenging Abbott’s ban, which argues the governor’s executive order exceeds his authority and infringes on local control.

Paxton’s move could have federal implications, as well. The U.S. Department of Education’s Office for Civil Rights recently opened investigations into five states that prohibit mask mandates, saying such bans may violate the federal law meant to protect students with disabilities.

Department officials indicated they had not opened an investigation into Texas because its ban isn’t currently being enforced because of court orders.

Again, neither Ken Paxton nor Greg Abbott has the power to enforce mask mandate bans. Even if Paxton gets a judge to rule in his favor – the score so far is tilted pretty heavily against him – local DAs can and should thumb their noses at him. It’s not clear to me where these lawsuits have been filed – in this press release he said there were three of them, but didn’t get more specific than that. There may be more coming, so eventually we’ll sort it all out. In the meantime, Paxton can go pound sand. The Chron, Reform Austin, and KXAN have more.

UPDATE: Here’s the Trib story, which notes that the lawsuit against Galveston ISD was brought in Galveston County, as one might expect. That’s probably true of the others, each filed in their home county, but it would still be nice to have that confirmed.

Just a reminder, no one is enforcing Abbott’s mask mandate ban

Sep 6th, 2021
by Charles Kuffner.
3 comments

In case you had forgotten.

While Republican Gov. Greg Abbott is speaking out against mask mandates in schools and suing to stop some Texas school districts from enacting them, in reality his order banning such mandates has gone largely unenforced — so much so that the federal government doesn’t consider it active.

Abbott threatened $1,000 fines for officials who try to impose mask mandates, although no such fines have been handed down. And if he wanted to, Abbott could send state troopers or deputize the Texas National Guard to enforce his order, as he has done on the border, but he hasn’t. Texas Attorney General Ken Paxton, meanwhile, has a published list of 71 non complying cities, counties and school districts; is fighting in court with at least six of them and sent letters threatening more legal action to others.

But in the court filings from the lawsuits, Paxton has acknowledged that neither he nor Abbott will directly enforce the ban on mask mandates, instead leaving it to local district attorneys, some of whom are already on-record saying that they don’t intend to prosecute.

Abbott’s own Texas Education Agency on Aug. 19 said that the ban on mask mandates would not be enforced until the courts have resolved legal challenges to his authority to do it. And the federal Department of Education chose Monday not to open an investigation into the matter in Texas, even as it launched probes of five other states with active bans.

[…]

The five largest counties in the state are Harris, Dallas, Tarrant, Bexar and Travis. The district attorneys for Harris and Bexar counties have already announced they don’t intend to prosecute school districts over mask rules, and a prosecutor with Travis County said the office would remain focused on violent crime, although they would evaluate the situation on a case-by-case basis.

Tarrant County did not respond to a request for comment, and a spokeswoman for Dallas County said: “This issue is working its way through the civil courts. At this point in time — until that’s concluded and depending on how that’s concluded — there’s no reason to consider a position on that.”

On Monday at a House Public Education Committee hearing, Rep. Steve Allison, a San Antonio-area Republican, acknowledged there’s “an appearance of dysfunction” in government right now over the mask orders and Abbott’s ban.

See here and here for the background. I’m not sure why the Travis and Dallas DAs are being so equivocal, but it doesn’t really matter. There’s no way they’ll prosecute anyone over this, not if they want to avoid having their asses handed to them in the next primary election. We all know this is about Greg Abbott trying to look macho for the Republican primary voters. There’s no need to help him with that in any way.

Feds take first steps in the mask mandate fight

Sep 2nd, 2021
by Charles Kuffner.
2 comments

Coming attractions.

The U.S. Department of Education is opening civil rights investigations to determine whether five states that have banned schools from requiring masks are discriminating against students with disabilities, the agency said on Monday.

The department is targeting Iowa, Oklahoma, South Carolina, Tennessee and Utah, all Republican-led states, in its investigations. It said it was concerned that their bans on mandatory masking could leave students with disabilities and underlying health conditions more vulnerable to COVID-19, limiting their access to in-person learning opportunities.

“It’s simply unacceptable that state leaders are putting politics over the health and education of the students they took an oath to serve,” U.S. Secretary of Education Miguel Cardona said in a statement.

“The Department will fight to protect every student’s right to access in-person learning safely and the rights of local educators to put in place policies that allow all students to return to the classroom full-time in-person safely this fall.”

[…]

Florida, Texas, Arkansas and Arizona are four other Republican-led states that have banned mandatory masking orders in schools. The Education Department left those states out of its inquiry because court orders or other actions have paused their enforcement, it said in a news release.

The department says it is monitoring those states and would take action if local mask-wearing policies are later barred from going into effect.

See here for the background, and here for the press release. It’s too early to say how this might go, and that’s before we get a resolution in the reams of mask mandate-related lawsuits that are still working their way through our system. Suffice it to say that the good guys have a lot of fight left in them.

The feds prepare to enter the mask mandate fight

Aug 20th, 2021
by Charles Kuffner.
1 comment

Good.

Texas Gov. Greg Abbott may soon be fighting a war on two fronts — with local officials and the federal government — to stave off mandatory COVID-19 prevention efforts after the Biden administration announced Wednesday it was going after states like Texas that try to ban universal masking at schools.

Saying that the federal government will not “sit by as governors try to block and intimidate educators from protecting our children,” Biden said he will use the U.S. Department of Education’s civil rights enforcement authority to deter states from blocking mask mandates in classrooms.

“I’m directing the Secretary of Education, an educator himself, to take additional steps to protect our children,” Biden said. “This includes using all of his oversight authorities and legal action, if appropriate, against governors trying to block and intimidate local school officials.”

“If you aren’t going to fight COVID-19, at least get out of the way of everyone else who’s trying,” Biden added.

Biden didn’t directly name Texas or Abbott in his Wednesday remarks, but both Florida and Texas have made national headlines for efforts to block schools from requiring masks, even as children under 12 remain ineligible for the vaccine and the delta variant affects mostly the unvaccinated.

Biden’s announcement could tee up another legal battle for Abbott, who is already fighting in state court Texas school districts which have implemented mask mandates as school kicked off this month. Abbott’s office did not immediately respond to a request for comment.

More than 50 school districts and at least eight counties are currently defying or have recently violated Abbott’s executive order banning mask mandates, according to a tally released Wednesday by Attorney General Ken Paxton.

[…]

Last week, U.S. Education Secretary Miguel A. Cardona sent Abbott and Texas Education Agency Commissioner Mike Morath a letter expressing support for local school districts that have implemented mask mandates.

Cardona said in the letter that school districts had received COVID-19 relief funds to use for “contact tracing, implementing indoor masking policies, or other policies aligned with CDC guidance” and that the federal government was monitoring whether the state’s ban was in line with fiscal requirements attached to those funds. Texas has received $18 billion for public schools in COVID-19 relief dollars from the federal government and has already released $11 billion of it to the districts to spend.

Hard to know exactly what this means right now. Most likely, we’ll learn more in the coming days, and this is just an early flare to give some warning that stuff is about to happen. There needs to be a clear statement about what is expected, and what will happen if a state isn’t living up to it. As with the school districts defying Abbott on his mask mandate ban, if there’s no known mechanism of enforcement, it’s all voluntary. As I noted yesterday, the Biden administration can also get involved with the lawsuit filed by Disability Rights Texas, but that’s independent of whatever this will be. I want ’em both, and the sooner the better.

Fort Bend joins the lawsuit parade

Aug 12th, 2021
by Charles Kuffner.
7 comments

Come on in, the water’s fine.

As the Delta variant drives a pandemic surge, Fort Bend County officials on Wednesday filed a lawsuit against Gov. Greg Abbott’s executive order banning local government from implementing public health mandates.

“I’ll do all I can to protect the public health, and the people of Fort Bend County,” Judge KP George tweeted. “I hope others will join me in following the science and listening to local doctors and the CDC to act swiftly and decisively.”

The county filed a lawsuit in district court requesting a temporary restraining order to challenge the Republican governor’s order. George, a Democrat, and other county leaders had scheduled a news conference for Wednesday afternoon.

County commissioners met in a closed special session at 3 p.m. Wednesday to deliberate with an attorney and discuss potential responses to rising COVID-19 infections, according to the meeting agenda.

The story has no further detail, so I will just assume this is along similar lines as the others so far.

We now have our first official response from the powers that be, and as one might expect, it’s arrogant and jerky.

Attorney General Ken Paxton said Wednesday he plans to appeal a pair of rulings by judges in Dallas and San Antonio that allow local officials in those cities to issue mask mandates, with possible decisions from the Texas Supreme Court by the end of the week.

The temporary rulings override Gov. Greg Abbott’s May executive order that bars local officials from requiring face coverings. They came in response to legal challenges from top elected officials in the Dallas and San Antonio areas, who argued Abbott overstepped his emergency powers by preventing the local mandates. The rulings also pointed to a rapid ongoing rise in COVID hospitalizations across the state, particularly in large cities.

Paxton said Wednesday he expects a quick ruling in his favor from the state’s top civil court.

“I’m hopeful by the end of the week or at least early next week we’ll have a response from the Texas Supreme Court,” Paxton told conservative radio host Dana Loesch. “I’m going to tell you right now, I’m pretty confident we’re going to win that.”

[…]

Paxton argued on the talk show Wednesday that the Texas Legislature had granted Abbott the power to ban local COVID restrictions, including mask mandates, through the sweeping Texas Disaster Act of 1975. He also downplayed the early court win by Jenkins.

“The reality is, he’s going to lose,” Paxton said. “He may get a liberal judge in Dallas County to rule in his favor, but ultimately I think we have a Texas Supreme Court that will follow the law. They have in the past.”

We’ll see about that. For what it’s worth, there was one Republican district court judge in Fort Bend who wasn’t challenged in 2018, so there’s at least a chance that he could preside over this case. The crux of the argument here is that it’s Greg Abbott who isn’t following the law. I agree with Paxton that the Supreme Court is going to be very inclined to see it Abbott’s way, but I’d like to think they’ll at least take the plaintiffs’ arguments into account.

Later in the day, we got the first words from Abbott as well.

“The rebellion is spreading across the state,” Bexar County Judge Nelson Wolff said.

Abbott — under intense pressure from some on his right to hold the line against local officials who want to require masks — now is trying to quell that rebellion.

Hours after Jenkins signed his mandate, Abbott and Attorney General Ken Paxton announced they would go to court to block Dallas County’s top official — asking the 5th Court of Appeals to overturn the state district judge’s decision that allowed Jenkins to move forward. The two men threatened to sue any government official who defies Abbott’s order.

“The path forward relies on personal responsibility — not government mandates,” Abbott said in a statement.

Yeah, that’s what has gotten us to this situation in the first place. I will confess that I’m surprised it has taken this long for Abbott to speak up. He’s never been shy about quashing dissent, and as this story notes the right wing scream machine has been fulminating about his lack of action. Those days are clearly now over.

We got another peek at the state’s response in this story about the larger revolt by cities and school districts against Abbott’s mask mandate ban.

At a hearing Tuesday afternoon before state District Judge Antonia “Toni” Arteaga, a city attorney argued that Abbott had exceeded the bounds of the Texas Disaster Act of 1975, which the governor cited in suspending local authority to impose COVID restrictions.

“The Texas Legislature has given cities and counties broad authority within the Texas Health and Safety Act,” said Assistant City Attorney Bill Christian. “Only the Legislature has the authority to suspend laws.”

Kimberly Gdula, a lawyer with the Texas Attorney General’s Office, pointed to an appellate court ruling last November that upheld Abbott’s ban on local business restrictions. She also argued that the city and county were asking the court to improperly “throw out” parts of the Disaster Act.

Interesting, but I don’t know how to evaluate it. When there are some actual opinions and not just temporary restraining orders pending the injunction hearings, we’ll know more.

It’s possible there may be another avenue to explore in all this.

President Joe Biden says the White House is “checking” on whether he has the power to intervene in states like Texas where Republican leaders have banned mask mandates.

Asked whether he has the power to step in, Biden responded: “I don’t believe that I do thus far. We’re checking that.”

“I think that people should understand, seeing little kids — I mean, four, five, six years old — in hospitals, on ventilators, and some of them passing — not many, but some of them passing — it’s almost, I mean, it’s just — well, I should not characterize beyond that,” Biden said.

[…]

White House Press Secretary Jen Psaki said Wednesday the administration is “looking into ways we can help the leaders at the local level who are putting public health first continue to do their jobs.” She said those include efforts to “keep students safe and keep students in school” and that the U.S. Department of Education “and others” are working on it.

Insert shrug emoji here. I don’t know what this might look like, but I believe they will be creative in looking for a possible point of leverage.

Finally, on a side note, Fort Worth ISD implemented a mask mandate on Tuesday. We are still waiting for HISD to vote on the request by Superintendent Millard House to implement one for our district. The Board meeting is today, I expect this to be done with little fuss from the trustees.

More federal stimulus money for education coming

Jul 13th, 2021
by Charles Kuffner.
Comments are off for this post

Good.

Texas soon will receive another $4.1 billion in federal stimulus money to address the post-pandemic needs of public school students, many of whom fell behind academically during months of remote learning.

The funding comes come as the U.S. Department of Education announced Wednesday that it has approved Texas’ plans for spending $12.4 billion allocated to the state. The state’s plan was among the first proposals to receive approval from the federal government. While some of the money will be spent on improving academics, the funding also aims to address student inequities that were worsened by the pandemic, as well as kids’ social and emotional needs.

The Texas Education Agency’s plan calls for mitigating learning loss as a top priority. The agency estimates students in the state lost an average of 5.7 months of learning last school year. Meeting student and staff mental health needs, expanded tutoring, high-quality instructional materials and job-embedded learning are included in the plan.

“The approval of these plans enables states to receive vital, additional American Rescue Plan funds to quickly and safely reopen schools for full-time, in-person learning; meet students’ academic, social, emotional, and mental health needs; and address disparities in access to educational opportunity that were exacerbated by the coronavirus pandemic,” Secretary of Education Miguel Cardona said in a news release.

We have all the evidence we need to know how vital this is. The next year or more has to be about getting kids back up to where they would have been without the disruption of the pandemic. Their future depends on it.

Where are the stimulus funds for the schools?

Apr 11th, 2021
by Charles Kuffner.
1 comment

Ridiculous.

For more than a year, the federal government has been pumping billions of dollars into school districts across the country to help them meet the demands of the pandemic. Most states have used that pot of stimulus funds as Congress intended: buying personal protective equipment for students and teachers, laptops for kids learning from home, improved ventilation systems for school buildings to prevent virus transmission and covering other costs.

But in Texas, local schools have yet to see an extra dime from the more than $19 billion in federal stimulus money given to the state. After Congress passed the first stimulus bill last year, officials used the state’s $1.3 billion education share to fill other holes in the state budget, leaving public schools with few additional resources to pay for the costs of the pandemic.

Now, educators and advocacy groups worry that the state could do the same thing with the remaining $17.9 billion in funding for Texas public schools from the other two stimulus packages. Because of federal requirements, Texas has to invest over $1 billion of the state’s own budget in higher education to receive the third round of stimulus funding for K-12 public schools. Experts said the state has applied for a waiver to avoid sending that added money to higher education, but the process has caused major delays in local districts receiving funds they desperately need.

“Principals’ budgets are being eaten up with personal protective equipment, with tutoring, with trying to get kids back engaged, while the Legislature is sitting on a whole bunch of money,” said Michelle Smith, the vice president of policy and advocacy for Raise Your Hand Texas. “And that will have an impact on our school districts not just this school year, but for several school years to come.”

A spokesperson for Gov. Greg Abbott told The Texas Tribune that state leaders are waiting for more guidance from the U.S. Department of Education before opening the spigot and letting billions flow down to school districts.

Because of the state’s waiver request, Texas lawmakers likely will not decide how to parcel out the money until they either hear back from Washington D.C., or until the Legislature finalizes its plans for the state budget. But the waiver only applies to the latest stimulus package, so the state could unlock $5.5 billion for education from the second relief bill at any time.

Libby Cohen, the director of advocacy and outreach for Raise Your Hand Texas, said dozens of states are already sending these federal dollars to public schools, and the most recent stimulus package also includes guidance on how to use that money. Texas and New York are the only two states that have provided no additional funding to public schools during the pandemic, according to Laura Yeager, a founder of Just Fund It TX.

“We find it baffling that Texas is pumping the brakes on this particular issue to the extent that it is,” Cohen said. “The dollars are there … and districts need to know if and when they’re coming because they’re writing their budgets right now, and they’re making decisions about summer programming right now.”

Many Texas teachers and administrators say they need money now, and want the Legislature to start funneling the federal funds to school districts as soon as possible.

But state lawmakers holding the most power over budgeting and education funding want the Legislature, instead of local school districts, to decide what to do with these federal stimulus dollars.

“The federal funds will ultimately get to school districts but the overriding question is how should these funds be spent and who should make that decision?” said Rep. Harold Dutton, D-Houston chair of the House Public Education Committee. “I think the primary obligation for educating Texas children vests in the Legislature according to the Texas Constitution.”

I can accept that the Legislature should have oversight of this process, but I don’t accept that they must play the part of approving each allocation. All that does is put a bottleneck on things, at a time when the schools need the funds now. More to the point, it’s not even clear that it will be the Lege making these decisions:

I see even less point to that. There’s a lot of money at stake, not all for the schools, and it makes sense to want to ensure it’s being spent for its intended purposes. But it doesn’t make sense to sit on it and take a lot of time figuring that out, because that money is needed now, especially the money for schools and students.

One more thing to consider: Rising property values, which have fueled an increase in local property tax revenues, have already been used by the Legislature to pay for other things.

Because of the way public schools are funded, a rise in local property tax revenue means the state doesn’t have to send as much money to local school districts. The schools would get the same amount as before — it’s not a budget cut — but the money that might have come from the state comes instead from local school property taxes.

This year, that amounts to $5.5 billion — most of it from property value increases. About 21% of that amount — $1.2 billion — comes from what the Legislative Budget Board called “lower-than-anticipated Average Daily Attendance rates, increased non-General Revenue Funds revenues, and federal Coronavirus Aid, Relief, and Economic Security (CARES) Act funding.”

In plain language, that’s a drop in the average number of students that school funding is based on, money that comes from sources other than state taxes and money from the first round of federal COVID-19 relief.

That last one is a sore spot for local officials, who see the state skimming from a pot of money that was supposed to go to public education. Here’s how that scam works: The money is still going to public education, but the amount the state would have sent is being reduced by the same amount, freeing the state to use money it would have used on schools on some other part of government.

The budgeteers’ word for that is “supplanting” — instead of getting the state money that was coming to them, with the federal money on top, the schools get the same amount of money they’d have received without any federal aid.

Give the schools their money already. There’s no more time to waste. The Chron has more.

Legislators call for no STAAR test this year

Nov 20th, 2020
by Charles Kuffner.
5 comments

Fine by me, and very fine by my kids.

A bipartisan group of 68 Texas House representatives signed a letter calling on the Texas Education Agency to cancel the State of Texas Assessments of Academic Readiness exam or at minimum not use student scores to rate schools or districts this school year.

The letter, penned by Rep. Diego Bernal, D-San Antonio, asks that the state apply for waivers from the U.S. Department of Education to cancel the standardized test, which is administered to students in third through 12th grade.

Should the test still be administered during the coronavirus pandemic, it “should only serve as a diagnostic instrument to see where our students stand academically as opposed to an assessment instrument to determine district and campus sanctions,” the lawmakers wrote in the letter.

The letter is addressed to TEA Commissioner Mike Morath, but it’s “just as much a letter to the governor,” Bernal said in an interview, adding that Gov. Greg Abbott “very easily could call the play to change the landscape right now.”

“If we take our time talking to educators — not administrators — but educators, counselors, parents and students, of course, that the last thing they all need right now is the extra and added stress of STAAR,” Bernal said.

You can see a copy of the letter and its signatories here, and a late addition here. As you may recall, the STAAR test was waived last spring at Greg Abbott’s order. The Chron adds some details.

The federal government and Texas Legislature set broad frameworks for testing and accountability, while the TEA fills in many details for the state. Texas did not administer STAAR in the spring of this year after the TEA sought and received a federal waiver because of the pandemic, which forced the abrupt shutdown of all public schools in March.

The U.S. Department of Education has not decided whether it will grant similar waivers in 2021. The decision likely will rest with President-Elect Joe Biden’s new administration, which has not yet taken a firm stance on the issue.

At a State Board of Education meeting Wednesday, Morath said the state plans to apply for waivers related to student participation rate requirements, which essentially punish districts when some children do not take exams. However, he did not commit to canceling the exam or outline potential changes to the state’s A-through-F accountability rating system.

“I think there’s still a lot of question as to how we might pursue this,” Morath said. “We’ve got 10 or so different options, as it were, to consider. No final decision has been made as we gather feedback from folks.”

If Texas education officials move forward with STAAR in the spring, the group of 68 state representatives wants the TEA to set aside its traditional campus and district accountability framework.

“At most, any administration of the STAAR exam during the 2020-2021 school year should only serve as a diagnostic instrument to see where our students stand academically, as opposed to an assessment instrument to determine district and campus sanctions under the current A-F accountability system,” the legislators wrote.

The letter echoes some of the arguments made in recent months by educator organizations and unions, which lobbied against high-stakes standardized testing before the pandemic. Texas State Teachers Association President Ovidia Molina said STAAR testing “should be the last priority” in schools.

“Our students, educators and their families can’t afford the distraction of STAAR as they struggle to stay safe and continue to adjust to new methods of teaching and learning,” Molina said in a statement Wednesday.

I mean, this entire year has been at best a struggle for many, many students. I don’t see the point in making it any harder on them. Ditch the STAAR until things are back to normal.

STAAR testing waived

Mar 17th, 2020
by Charles Kuffner.
Comments are off for this post

This had to happen, given everything else.

In an unprecedented move, Gov. Greg Abbott announced Monday he would waive testing requirements for this year’s STAAR exam, as many schools expect to be closed at least through the April testing window, due to the new coronavirus.

He also said he would ask the federal government to waive this year’s federal standardized testing requirements, which apply to all states. According to the state, as of Sunday afternoon, 569 school districts had announced closures due to coronavirus concerns. Texas is not alone, since more than 30 states have closed schools due to coronavirus, affecting at least 30 million public school students nationwide.

The federal government has previously said it might give out targeted waivers from testing for areas where the COVID-19 disease has had significant impact.

The state will not mandate that districts offer the exam, but some superintendents may want the test data to see how their students are doing, according to the TEA. Agency officials are working to support those school districts, if necessary.

[…]

State leaders are giving schools more leeway than they have in the past, showing the increasing seriousness surrounding the COVID-19 disease.

When Hurricane Harvey decimated Houston-area and Coastal Bend communities in 2017, [TEA Commissioner Mike] Morath hesitated to give them a break on testing or accountability requirements, arguing that doing so would harm student learning. He argued that getting rid of state testing requirements would violate federal requirements and put federal funding at risk.

Eventually he agreed not to hold poor STAAR results against schools and districts, though he did not waive the requirement that they test students.

“Accountability results have been waived for Hurricane Katrina, Hurricane Ike, Hurricane Harvey. But never has testing itself been waived,” said Dee Carney, a longtime school accountability consultant in Texas. “It’s absolutely an unprecedented event requiring extraordinary measures of our schools and our teachers and our communities.”

It is not clear exactly what the implications are for students who need to take certain state tests in order to graduate from high school or move on to the next grade. Morath said he would send more specific guidance on student testing and school accountability this week, likely before Thursday.

So three things here. One, given the likely closure of schools through the rest of the academic year, this was basically inevitable. There’s too much disruption, and the test results would be essentially meaningless. Which was the same argument lots of people made following Harvey in 2017, but this time the message was received. Two, this is going to be a months-long, if not years-long, experiment in unprecedented actions and figuring things out as we go, because what else can we do? And three, we just may find out that some of the things we’d been doing all along we can do without, or do differently, and some things we’d never done before become new habits. That’s what happens with big disruptions. Maybe one result of all this is we’ll completely re-evaluate the need for high-stakes testing like we have now. Or maybe we’ll decide we need even more of it. I don’t know what will happen, but I’ll bet that five years from now when we look back on all this, we’ll be amazed at how different things became.

Who’s to blame for the special education limits

Jan 17th, 2018
by Charles Kuffner.
6 comments

The Lege gets a finger pointed at it.

After a federal report blasted Texas for failing kids with disabilities, educators and public education advocates are pointing the finger directly at state legislators who, they argue, first suggested capping special education to keep costs low.

The U.S. Department of Education last week released a monitoring report, after a 15-month investigation, finding that the Texas Education Agency effectively capped the statewide percentage of students who could receive special education services and incentivized school districts to deny services to eligible students. Gov. Greg Abbott released a statement soon after that criticized local school districts for their “dereliction of duty” in failing to serve students — which touched a nerve for educators.

“We weren’t derelict: the state of Texas was derelict, the Texas Education Agency was derelict,” said HD Chambers, superintendent of Alief ISD and president of the Texas School Alliance, an advocacy group. “We were following what they put in place.”

In a statement sent to TEA and Abbott on Sunday, the Texas School Alliance and school administrator groups dated the creation of a special education cap back to a 2004 Texas House Public Education Committee interim report, which surveyed how other states fund special education and which made recommendations to the Legislature for how to discourage identifying too many students with disabilities.

[…]

The committee’s report recommended the Legislature “determine what aspects of our current funding mechanism for special education encourage overidentification; and then investigate alternative methods for funding special education that decrease any incentives to overidentify students as needing special education services.”

It also recommended reducing state and local administrative costs in overseeing special education in order to direct more money to students with disabilities.

That same year, TEA implemented a system to monitor and evaluate how school districts were serving kids with disabilities. The percentage of students with disabilities served plunged from 11.6 percent in 2004 to 8.6 percent in 2016. The U.S. Department of Education found last week that the agency was more likely to intervene in school districts that provided services for more students with disabilities, incentivizing administrators to cut back on services.

Chambers was a central office administrator at Cypress-Fairbanks ISD in 2004 and recalls receiving direct and indirect instruction from the state to serve fewer students. “We were under the impression that we were out of compliance if we were identifying more than 8.5 percent of our population,” he said.

See here for past blogging on the topic, and here for the Trib story on the federal report. I will note that the Chair of the House Public Education Committee at the time of the 2004 interim report was none other then Kent Grusendorf, a man who was so anti-public education that he was basically the inspiration for (and first real victory won by) the Texas Parent PAC. So yeah, I have no trouble believing this. As to when it might get fixed, that’s a topic for November.

Bathroom bills are floundering

Feb 28th, 2017
by Charles Kuffner.
Comments are off for this post

Good.

Bills to curtail transgender people’s access to public restrooms are pending in about a dozen states, but even in conservative bastions such as Texas and Arkansas they may be doomed by high-powered opposition.

The bills have taken on a new significance this week following the decision by President Donald Trump’s administration to revoke an Obama-era federal directive instructing public schools to let transgender students use bathrooms and locker rooms of their chosen gender. Many conservative leaders hailed the assertions by top Trump appointees that the issue was best handled at the state and local level.

Yet at the state level, bills that would limit transgender bathroom access are floundering even though nearly all have surfaced in Republican-controlled legislatures that share common ground politically with Trump. In none of the states with pending bills does passage seem assured; there’s been vigorous opposition from business groups and a notable lack of support from several GOP governors.

The chief reason, according to transgender-rights leaders, is the backlash that hit North Carolina after its legislature approved a bill in March 2016 requiring transgender people to use public restrooms that correspond to the sex on their birth certificates. Several major sports organizations shifted events away from North Carolina, and businesses such as PayPal decided not to expand in the state. In November, Republican Pat McCrory, who signed and defended the bill, became the only incumbent governor to lose in the general election.

[…]

National LGBT-rights groups are closely monitoring the fluctuations, recalling how North Carolina politicians took activists by surprise last year when they passed the divisive bathroom bill in a fast-paced special session.

“That experience makes us very wary about when and how legislation will move,” said Sarah Warbelow, legal director of the Human Rights Campaign. “On the other hand, the American public has been incredibly vocal against these bills… so we’re hopeful that legislators have learned a lesson from North Carolina.”

Even if all the new bathroom bills fail, Warbelow said activists will continue to push for explicit and effective federal protections for transgender students — protections have been undercut by this week’s revocation of the Obama-era guidance.

In addition to Arkansas, I counted fourteen other states where legislators have tried or are trying to pass a North Carolina-like bill, though none of the ones that are trying are getting any traction. The fact that states like South Dakota and Kentucky have explicitly rejected such bills should give you some idea of how far out on a limb Texas would be if we follow Dan Patrick and pass SB6. All these other states saw what happened in North Carolina, and they have stepped back from the abyss. Are we really dumber than they all are? Call Dan Patrick’s office, as so many others have, and ask him that.

Trump Justice Department to drop appeals in transgender bathroom directive case

Feb 13th, 2017
by Charles Kuffner.
Comments are off for this post

From ThinkProgress:

The Trump administration has elected not to contest a Texas federal judge’s injunction barring the federal government from implementing Obama administration guidelines that protect transgender kids in schools.

Oral arguments for the Obama Justice Department’s appeal of the judge’s decision were scheduled for Tuesday. The DOJ cancelled them in a legal brief submitted Friday.

“Defendants-appellants hereby withdraw their pending November 23, 2016 motion for partial stay pending appeal,” the brief says. “The parties jointly move to remove from the Court’s calendar the February 14, 2017 oral argument currently scheduled for that motion. The parties are currently considering how best to proceed.”

That brief was filed the day after Jeff Sessions was sworn in as Attorney General.

As ThinkProgress reported last August, the Obama administration’s guidance “stated that Title IX’s nondiscrimination protections on the basis of ‘sex’ protect transgender students in accordance with their gender identity, such that they must be allowed to use the bathrooms and play on sports teams that match their gender.” But the brief filed Friday signals that the Trump administration no longer wants to implement that guidance.

See here, here, and here for the background. I suppose some other group could try to enter the proceedings at this point in place of the feds, but there’s nothing to stop Dear Leader from rescinding this executive order, which would moot the whole thing. We’re clearly not going to move forward in the next few years, so we’re going to have to fight to not move back.

Feds officially file appeal in transgender bathroom directive lawsuit

Jan 12th, 2017
by Charles Kuffner.
Comments are off for this post

This may be the last stop.

With two weeks left, the Obama administration has asked a federal appeals court to throw out a lower court’s decision that suspended policies designed to protect transgender people’s access to restrooms — a sign the current leadership of the Justice Department will close shop mid-fight on one of its signature LGBT issues.

Federal lawyers said in a brief filed Friday with the US Court of Appeals for the Fifth Circuit that the previous ruling was incorrect and overly broad.

[…]

With their remedies waning in the lower court — and time running out — the Justice Department’s Civil Division made three arguments to the Fifth Circuit.

The Justice Department said the case is not ripe for judicial review because the government did not violate the Administrative Procedure Act, as Texas and the other states claimed. The guidance for schools and workplaces are not final acts by any agency, the appeal says, and therefore did not require a rule-making process under the APA.

Federal lawyers further contend the states lack standing to bring the case because they “can ignore [the guidance] without legal consequence.” They note that enforcement stems from civil rights laws, not the guidance itself. In the past, the states have bristled at that argument, noting in briefs and oral arguments that the government cited the guidance when threatening to sue school districts that banned transgender students from certain facilities.

Finally, the Justice Department argues that the lower court, under Judge O’Connor, erred by ruling too broadly. O’Connor did so by in applying the injunction nationwide, rather than just within the states that brought the lawsuit, the government lawyers say.

See here and here for the background. As Kerry Eleveld notes, Judge O’Connor cited the fact that this directive did not go through the federal rule-making process in his injunction against it, but other directives, including the health directive that O’Connor also injuncted, did go through that process. As always, it sucks to have to depend on the Fifth Circuit for anything, but there’s not much choice. We’ll see what happens.

Another take on the potty drama

Dec 29th, 2016
by Charles Kuffner.
1 comment

Ross Ramsey plunges in, and no I don’t regret that at all.

Gov. Greg Abbott wants lawmakers to take a bathroom break, and you can’t blame him for trying to find relief.

The next legislative session hasn’t even started and regulation of which restrooms transgender Texans use is getting the kind of attention usually reserved for taxes and immigration.

Abbott told reporters last week that he wants to wait and see what lawmakers come up with before he’ll take a position. At a forum last month, House Speaker Joe Straus downplayed the issue in a different way, saying it’s not “the most urgent concern of mine.”

If those two officials sounded mild to untrained ears, they were perfectly clear to those with political antennae. Their intended audience knows that this issue is not on the fast track some in their party want it to be on.

A slowdown might turn the bathroom fight to the back burner. Republicans attribute it to a directive from the federal Department of Education on how school districts should deal with the needs of transgender students.

Abbott doesn’t like the federal directive and tweeted his support for the state’s challenge to it early last summer.

But he is unwilling, at this point, to endorse legislative efforts to remedy the situation. The policy questions around facilities and transgender people are complicated and the politics are gnarly.

[…]

It’s always possible that the incoming Republican administration in Washington will retract that initial federal directive and remove the declared reason for state action — the kind of bureaucratic “never mind” that could ease the political pressure for new laws.

The courts might take care of that for them. A federal judge in Texas already put the federal rules on hold, saying the feds didn’t jump through the right hoops when putting the regulation into effect. The Obama administration is appealing that ruling.

It is already clear that the drum major at the front of this particular parade in Texas — Patrick — is trying different variations of a transgender bathroom bill to find an acceptable option. Sen.-elect Dawn Buckingham, R-Lake Travis, said earlier this month that “my understanding is the businesses, the sporting venues, will not be affected by this law” — i.e. the bill could be limited to schools and other public buildings.

That might solve some problems. But the North Carolina law was aimed only at public buildings and still ran into opposition from businesses and from sports groups like the NCAA and the NBA.

A lot of this is stuff that we’ve talked about before. I’m glad to see someone other than me read the Buckingham and Abbott statements as showing the effect of business lobby arm-twisting, though I remain concerned that those folks will cut and run at their first opportunity to declare victory. But it seems clear now that they are making a difference, and that’s all to the good. Those of us who want to see this dead and buried and not just neutralized need to keep the pressure on to make that happen.

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