ATTACHMENT III
Summary of Public Comments and Agency Responses Related to Proposed Amendments to 19 TAC Chapter 100, Charters, Subchapter AA, Commissioner's Rules Concerning Open-Enrollment Charter Schools
§100.1021, Adverse Action on an Open-Enrollment Charter
Comment: The executive director of the Texas Charter School Association (TCSA) commented that language in proposed §100.1021(b), pertaining to adverse action on an open-enrollment charter, should be strictly tied to the authority granted by the legislature to the Texas Education Agency (TEA) under the Texas Education Code (TEC), Chapter 39. The commenter stated that proposed new subsection (b) should explicitly and expressly state that subsections (b)(1)-(3) are only applicable upon the closing of a charter school as a result of the extended accountability and accreditation review processes set out in the TEC, Chapter 39. The commenter further stated that the provision should include new language indicating that for all other instances of adverse action against a charter school, the process will be governed by the TEC, §12.115 and §12.116; the hearing procedures set forth in 19 TAC §100.1021(c)-(i); and the provisions on mitigating and aggravating factors in 19 TAC §100.1022.
Agency Response: In response to this and other comments, the agency determined that the proposed new §100.1021(b) would not be adopted as part of the amendment to §100.1021. The agency may propose further rule changes at a later date.
Comment: The executive director of the TCSA commented that the terms "charter school" and "charter holder" need to be clarified for the purposes of §100.1021(b)(1) and (3). The commenter also stated that, because a "charter holder," rather than a "charter school," is granted a charter, §100.1021(b)(1) may need to be deleted.
Agency Response: The agency disagrees. The agency has reviewed the instances in 19 TAC Chapter 100 in which the term "charter school" is used and has determined that, in each instance, unless the context clearly indicates otherwise, the term has a known meaning. Specifically, the term "charter school" is defined by 19 TAC §100.1011(3) to mean a Texas public school operated by a charter holder under an open-enrollment charter granted by the State Board of Education (SBOE) pursuant to the TEC, §12.101. The open-enrollment charter of a charter school and the open-enrollment charter held by a charter holder both refer to the charter that authorizes the existence of the charter school. Either phrase is equally clear and precise. However, in response to other comments, the agency determined that the proposed new §100.1021(b) would not be adopted as part of the amendment to §100.1021. The agency may propose further rule changes at a later date.
§100.1021, Adverse Action on an Open-Enrollment Charter, and §100.1022, Standards for Adverse Action on an Open-Enrollment Charter
Comment: A representative from Rogers, Morris & Grover on behalf of Winfree Academy Charter School and Erath Excels Academy Charter School commented that the proposed rule changes in §100.1021 and §100.1022 are inconsistent with existing statutory authorities. The commenter stated that §100.1021 and §100.1022 are authorized under the TEC, §12.115 and §12.116, while the proposed changes are based on the TEC, §39.104.
Agency Response: The agency disagrees. The commenter misstated the rulemaking authority for the amendments to §100.1021 and §100.1022. As published in the April 23, 2010, issue of the Texas Register (35 TexReg 3175), the amendments were proposed under authority of a number of provisions, including the TEC, §39.104. Express rulemaking authority is granted by the TEC, §39.104, to make the proposed changes. However, in response to this comment, the final order adopting the amendments will cite the TEC, §12.116, as additional rulemaking authority.
§100.1022, Standards for Adverse Action on an Open-Enrollment Charter
Comment: A representative from Rogers, Morris & Grover on behalf of Winfree Academy Charter School and Erath Excels Academy Charter School commented that the proposed rule changes to §100.1022(b), pertaining to the minimum standard of student performance required for a charter, reach beyond legislative intent. The commenter stated that it is not the intent of statute to allow the commissioner to substitute stricter accountability standards, and to do such would violate the clear intent of the TEC, §39.104(a).
Agency Response: The agency disagrees. The commenter misstated the rulemaking authority for the amendment to §100.1022(b). As published in the April 23, 2010, issue of the Texas Register (35 TexReg 3175), the amendments were proposed under authority of a number of provisions, including the TEC, §39.104. Express rulemaking authority is granted by the TEC, §39.104, to make the proposed changes. However, in response to this comment, the final order adopting the amendments will cite the TEC, §12.115 and §12.116, as additional rulemaking authority. Further, the rule differentiates between charters and other local educational agencies only as required or authorized by the TEC, §12.111, particularly in paragraphs (3), (4), and (5), and the TEC, §12.115(a)(1). This differentiation has existed in current rule since 2005 and is in no way inconsistent with or precluded by the more recently enacted TEC, §39.104(a). The application for an open-enrollment charter is a competitive process, and the bargained-for benefits that the SBOE may impose in the contract for charter may include standards of student (or other) performance that exceed the minimum performance required by state and federal law. If the applicant for an open-enrollment charter has made promises and then fails to perform as promised, it is in breach of its contract for charter. The commissioner may revoke the charter on such basis. This has been the law since 1995 when the program was first enacted. Current rules implementing this statutory framework have included reference to supplemental accountability requirements included in the open-enrollment charter pursuant to the TEC, §12.111(a)(3) and (4), since their inception. The amendments introduce no relevant change. However, in response to this and other comments, the agency determined that the proposed substantive changes to §100.1022(b) would not be adopted as part of the amendment to §100.1022.
Comment: The executive director of the TCSA commented that the word "primarily" in §100.1022(b) is vague and that all factors that will be considered in allowing the continuation of an open-enrollment charter should be expressly and explicitly stated. The commenter further stated that clarification should be provided to identify the special circumstances in which data other than ratings and accreditation statuses would be considered in determining if a charter can continue to operate and what data other than ratings and accreditation statuses would be considered.
Agency Response: In response to this and other comments, the agency determined that the proposed substantive changes to §100.1022(b) addressed by the comment would not be adopted as part of the amendment to §100.1022. The agency may propose further rule changes at a later date.
Comment: The executive director of the TCSA and the chief executive officer (CEO) of Pegasus School commented that the word "shall" should be replaced with the word "may" in §100.1022(b)(1). The executive director of the TCSA stated that current §100.1022(b)(1) references actions the commissioner is authorized to take under the TEC, Chapter 39, while the language as proposed makes it mandatory for the commissioner to revoke or deny renewal if a charter fails to demonstrate satisfactory performance as outlined in the open-enrollment charter. The executive director of the TCSA further stated that the TEC, §12.115, which authorizes commissioner actions based on supplemental requirements, allows commissioner discretion rather than mandating commissioner action. The CEO of Pegasus School also commented that the TEC, §12.115, allows commissioner discretion rather than mandating commissioner action and that the mandatory language in §100.1022(b)(1) conflicts with the permissive language in §100.1021(a).
Agency Response: The agency disagrees. The word "shall" in §100.1022(b)(1) is appropriate when considering §100.1022 as a whole. Mitigating and aggravating factors pertaining to adverse action are specified in §100.1022(g), and §100.1022(b) makes it clear that the commissioner may consider mitigating factors rather than revoking or denying renewal of a charter that fails to demonstrate satisfactory performance as outlined in its open-enrollment charter. The same structure appears in the relationship between §100.1022(g) and §§100.1022(c)(1), 100.1022(d)(1), 100.1022(e)(1), and 100.1022(f)(1). The change suggested by the commenter would introduce ambiguity concerning the meaning of these other subsections, none of which have been proposed for amendment. Accordingly, no rule change to §100.1022(b)(1) has been adopted.
Comment: The executive director of the TCSA commented that §100.1022(b)(2)(B)(ii) and (iii) should include language specifying the levels of ratings or statuses that would be required as a condition of renewal by the commissioner and what conditions would have to be present for the commissioner to determine if unconditional renewal is reasonable.
Agency Response: The agency disagrees. It is only under the most unusual of circumstances that the performance of an applicant for renewal cannot be determined because the schools operated by the applicant have not received accountability ratings and/or accreditation statuses for a sufficient number of years to allow a judgment on student performance. Under such extraordinary circumstances, it is necessary to retain sufficient flexibility to enable the commissioner to respond to the particular facts of each case falling within §100.1022(b)(2)(B)(ii) and (iii). However, should the agency determine that refinements are necessary based upon accumulated experience in administering the new requirements, a proposal to amend the rule will be developed.
§100.1033, Charter Amendment
Comment: A senior legislative agent of the Texas American Federation of Teachers (AFT) commented that no specific statutory bases for the proposed changes to §100.1033 are cited and that each proposed change should be identified as to whether it is required specifically by statute and, if so, the statute that requires the change; whether it is authorized specifically by statute and, if so, the statute that authorizes the change; and if not required or authorized specifically by statute, under what authority and in pursuit of which specific statutory purpose the change is proposed.
Agency Response: The agency disagrees that there are no specific bases for the amendment to §100.1033. In accordance with state requirements for amending the Texas Administrative Code, statutory citations authorizing the proposed amendments were included in the proposal filed with the Secretary of State and published in the April 23, 2010, issue of the Texas Register (35 TexReg 3175).
Comment: The executive director of the TCSA commented that language in §100.1033(c)(3) allowing the commissioner to consider the performance of all charters operated by the same charter holder in the decision to grant or deny a substantive amendment should be stricken and the review conducted be based only on the performance of the individual charter. The commenter further stated that all standards to be considered by the commissioner when determining whether or not to grant substantive amendments should be enumerated with specific detail, as TCSA members express concern that amendment requests are denied for random and arbitrary reasons seemingly irrelevant to their requests for expansion.
Agency Response: The agency disagrees. The agency has determined that when one or more charters under the supervision of a single charter holder are not performing well, the attention of a charter holder is likely required to oversee the improvement of performance prior to devoting its attention to expansion. Furthermore, the agency has also determined that the language in §100.1033(c) aligns with the agency's goal of maintaining administrative flexibility in lieu of the inflexibility of rules to allow the commissioner to consider the best interest of students at the charter schools as well as the best interest of students throughout the state prior to approving substantive amendments.
Comment: A senior legislative agent of the Texas AFT commented that Texas AFT supports the language in §100.1033(c)(3) allowing the commissioner to consider the performance of all charters operated by the same charter holder in the decision to finally grant or deny a substantive amendment. The commenter also stated that there should be a mandatory examination of all schools operated by a charter holder when considering a request for amendment and a written finding made as to how an amendment would further the best interests of students before it may be granted.
Agency Response: The agency agrees that the language in §100.1033(c)(3) allowing the commissioner to consider the performance of all charters operated by the same charter holder in the decision to finally grant or deny a substantive amendment is appropriate. The agency disagrees that written findings should be required in §100.1033(c). Thorough agency reviews are conducted prior to the commissioner granting substantive amendments, and the commissioner considers the best interest of students at the charter schools as well as the best interest of students throughout the state prior to approving substantive amendments.
Comment: A senior legislative agent of the Texas AFT commented in opposition to the changes to §100.1033(c)(5)(A)(iii). The commenter stated that the changes narrow the requirement so that acceptable performance prior to expansion is required only of campuses covered by the charter for which the amendment is requested rather than all campuses operated by the charter holder.
Agency Response: The agency disagrees. A charter meeting the academic performance standard outlined in §100.1033(c)(5)(A)(iii) does not obligate the commissioner to grant an expansion amendment for the charter; it is the minimum academic performance requirement for an expansion amendment to be considered. Furthermore, the change to §100.1033(c)(3) would allow the commissioner to consider the performance of all charters operated by the same charter holder in the decision to finally grant or deny any substantive amendment.
Comment: A representative from the Texas Classroom Teachers Association (TCTA) stated that alternative education accountability (AEA) campuses are only required to show growth or improvement by comparing prior-year performance to current-year performance and recommended that §100.1033(c)(5) be revised to prohibit charters evaluated under AEA procedures from expanding. The commenter stated that alternative accountability thresholds for acceptable performance are too low to serve as the basis for additional locations, and limiting expansion amendments to charter schools succeeding under standard accountability procedures will provide an incentive for charters to move toward a more rigorous system.
Agency Response: The agency disagrees that charters evaluated using AEA procedures should be prohibited from expanding. However, the agency has determined that the discretion already available to the commissioner under the current rules is appropriate and that the specific decision-making framework included in the rule proposal is unnecessary. Therefore, the agency determined that proposed new §100.1033(c)(5)(A)(iv) would not be adopted as part of the amendment to §100.1033.
Comment: A representative of Responsive Education Solutions commented that language in proposed new §100.1033(c)(5)(iv), pertaining to granting expansion amendments, should be revised to clarify the meaning of the term "all tests" to ensure that successful districts are not prohibited from expansion due to a meaningless measure of successful performance that requires every student in a dropout recovery high school to pass every test attempted. The commenter recommended the requirement in §100.1033(c)(5)(iv) be changed to specify that all campuses in a district would not be required to meet adequate yearly progress (AYP) in order to expand. The commenter also provided certain data related to one charter.
Agency Response: The agency agrees that the meaning of the term "all tests" was unclear. In response to this and other comments, the agency determined that proposed new §100.1033(c)(5)(A)(iv), which outlined the minimum student performance requirements for specified student groups in charters evaluated using AEA procedures, would not be adopted as part of the amendment to §100.1033. The agency also notes that the failure to meet AYP is only mentioned in §100.1033(c)(6)(A)(iii) in relationship to the commissioner approval of new school amendments. Lack of a new school designation will not prevent a successful charter from obtaining an expansion amendment.
Comment: The executive director of the TCSA commented that language in proposed new §100.1033(c)(5)(A)(iv), pertaining to granting expansion amendments to charters evaluated under AEA procedures, should be revised to clarify that data will be reviewed from the final Academic Excellence Indicator System (AEIS) reports rather than any preliminary reports; to indicate that schools evaluated under AEA procedures will be measured on only AEA accountability indicators; to clarify the meaning of the term "all tests," which is not used in determining accountability ratings; and to include only the performance of the subgroups African-American, Hispanic, white, and economically disadvantaged in the expansion requirement.
Agency Response: The agency agrees that the meaning of the term "all tests" was unclear. The agency has determined in response to this and other comments that the discretion already available to the commissioner under the current rules is appropriate and that the specific decision-making framework included in the rule proposal is unnecessary. Therefore, the agency determined that proposed new §100.1033(c)(5)(A)(iv) would not be adopted as part of the amendment to §100.1033. It should be noted that AEIS reports contain final data, including ratings, after resolution of appeals.
Comment: A representative from Rogers, Morris & Grover on behalf of Winfree Academy Charter School and Erath Excels Academy Charter School commented that language in proposed new §100.1033(c)(5)(A)(iv), pertaining to granting expansion amendments to charters evaluated under AEA procedures, imposes a greater standard than the current 50% to 60% AEIS pass rate since the 30% pass rate would be imposed on newly devised subgroup cohorts per campus without application of any subgroup minimum.
Agency Response: The agency provides the following clarification. Proposed new §100.1033(c)(5)(A)(iv) was specific to data reported on the most recent district AEIS report and did not refer to campus data. In addition, performance data for a minimum number of students are required before the data can be publicly reported. Although the agency has determined that it is not sound public policy for the charter expansion standards to be the same as the minimum standards for continuing to operate an existing charter, the agency has also determined in response to this and other comments that the discretion already available to the commissioner under the current rules is appropriate and that the specific decision-making framework included in the rule proposal is unnecessary. Therefore, the agency determined that proposed new §100.1033(c)(5)(A)(iv) would not be adopted as part of the amendment to §100.1033.
Comment: The CEO of Pegasus School commented that language in proposed new §100.1033(c)(5)(A)(iv), pertaining to granting expansion amendments to charters evaluated under AEA procedures, is confusing and imposes requirements on AEA charters that exceed the requirements for charters evaluated under standard procedures. The commenter stated that the term "all tests" is confusing, that the requirement for AEA charters to meet minimum performance standards for subgroups not part of standard or AEA accountability procedures should be removed, and that the rules relating to expansion amendments should not be more stringent than the state accountability system.
Agency Response: The agency agrees that the meaning of the term "all tests" was unclear. Although the agency has determined that it is not sound public policy for the charter expansion standards to be the same as the minimum standards for continuing to operate an existing charter, the agency has also determined in response to this and other comments that the discretion already available to the commissioner under the current rules is appropriate and that the specific decision-making framework included in the rule proposal is unnecessary. Therefore, the agency determined that proposed new §100.1033(c)(5)(A)(iv) would not be adopted as part of the amendment to §100.1033.
Comment: A senior legislative agent of the Texas AFT commented in opposition to proposed new §100.1033(c)(5)(F) and (c)(6). The commenter stated that the proposed language subverts the federal intention of promoting high-quality charter schools by not requiring existing campuses operated by a charter holder to have met a consistent, sustained standard of excellence and by allowing the continued operation of low-performing charters that should be closed.
Agency Response: The agency disagrees. The purpose of designating a school as a new school under proposed new §100.1033(c)(6) is to create more high-performing charters by alleviating some of the burdens of the expansion process. It would not be appropriate to require every campus operated under a charter seeking a new school amendment to have years of sustained high academic performance as campuses do not always open at the same time. Any charter approved by the commissioner to waive some of the expansion amendment requirements and/or awarded new school designation for a new campus will have demonstrated consistent, sustained high performance.
Comment: A representative from IDEA Public Schools commented that proposed new §100.1033(c)(6) is too restrictive and a nationally-recognized charter would not be eligible for new school designation under the proposed amendment.
Agency Response: The agency disagrees. The rule requires consistent, sustained high performance in order for a charter to obtain new school designation, and the agency has determined that this is appropriate.
Comment: A representative from the TCTA commented with general concerns pertaining to proposed new §100.1033(c)(6) about granting current charter holders the ability to add additional charter campuses without all of the expansion amendment requirements, given the limited resources TEA has to monitor existing charter schools and the problems many charters have experienced. The commenter recommended that the expansion amendment option for charters evaluated under AEA procedures be eliminated and that proposed new §100.1033(c)(6)(A)(ii)(I) be revised so that a charter evaluated under standard accountability procedures would be ineligible for new school status if any campus under that charter was rated Unacceptable during the last five years.
Agency Response: The agency disagrees. The agency has determined that the requirements in proposed new §100.1033(c)(6) for a charter to obtain new school designation will ensure that consistent, sustained high performance is demonstrated before the commissioner waives any expansion amendment requirements and/or designates a school as a new school. The agency has also determined that the new school amendment requirement in proposed new §100.1033(c)(6)(A)(ii)(I) for a charter evaluated under standard accountability procedures to have received a district rating of Exemplary or Recognized for three of the last five years with at least 75% of the campuses rated under the charter also being rated Exemplary or Recognized and no campus with an unacceptable rating in the most recent state accountability ratings is sufficient to reflect high performance.
Comment: The executive director of the TCSA commented that the TCSA appreciates the agency's task to establish criteria for open-enrollment charters to qualify for new school amendments and acknowledges proposed new §100.1033(c)(6) was developed so that open-enrollment charters will have the ability to access federal start-up funds for new schools. The commenter also stated, however, that there is a lack of federal guidance regarding federal start-up funds for new schools under existing charters and that the standards established in proposed new §100.1033(c)(6) are unnecessarily stringent and will impede the growth of many high-performing open-enrollment charter schools. The commenter further stated that TEA does not appear to have clear legislative authority to adopt these standards.
Agency Response: The agency disagrees that there is no legislative authority for proposed new §100.1033(c)(6). In accordance with state requirements for amending the Texas Administrative Code, statutory citations authorizing the proposed amendments were included in the proposal filed with the Secretary of State and published in the April 23, 2010, issue of the Texas Register (35 TexReg 3175). Further, the agency has determined that it is appropriate for the standards established in proposed new §100.1033(c)(6) to be higher than standards of performance required for other types of expansion amendments in that new school amendments should be reserved for those charters that are clearly high performing. The agency notes that these higher standards will not prevent the growth of high-performing charters as a new school designation is not a requirement for expansion.
Comment: The executive director of the TCSA commented that the term "potentially eligible" in reference to federal start-up program funding as stated in proposed new §100.1033(c)(6) is unclear. The commenter recommended that the conditions under which a charter would and would not receive these funds be clarified.
Agency Response: The agency agrees in part and disagrees in part. Language in proposed new §100.1033(c)(6) has been modified at adoption to state that charter holders of charter schools receiving new school designations by the commissioner will be eligible to participate in the charter school program (CSP) competitive grant process when federal funding for the Texas CSP is available. However, the agency has determined that it is more appropriate for conditions of the charter school grant program to be published in requests for application rather than in rules.
Comment: The executive director of the charter holder Neighbors United for Quality Education and a representative from the Rhodes School commented that the language in proposed new §100.1033(c)(6)(A)(ii) requiring a charter to be serving at least 50% of its current student population in grades assessed by the state accountability system in order to be eligible for a new school amendment and language in proposed new §100.1033(c)(6)(A)(vii) requiring 50% of the students in a new school to be in grades assessed by the state accountability system should be eliminated. The executive director of the charter holder Neighbors United for Quality Education further stated that these requirements would be an obstacle to replicating a highly effective model of education and would set a dangerous precedent that could be perceived as the first step in an attempt to eliminate schools that focus solely on early childhood education. The executive director also provided certain data related to one early childhood education charter school. The representative from the Rhodes School stated that prekindergarten partnerships are considered expansions and that requiring 50% of the students in an expansion project to be in testable grades would eliminate the opportunities for charter schools to participate in these prekindergarten partnerships. The representative also stated that the timing of the implementation of these rules would not allow for planning for fall 2010 and questioned the source of the proposed new provisions.
Agency Response: The agency disagrees. Although the purpose of designating a school as a new school under proposed new §100.1033(c)(6) is to create more high-performing charters by alleviating some of the burdens of the expansion process, the adoption of proposed new §100.1033(c)(6)(A)(ii) and/or the adoption of proposed new §100.1033(c)(6)(A)(vii) does not eliminate the ability of charters to request expansion amendments under §100.1033(c)(5). One of the purposes of the federal CSP grant program is to expand the number of high-quality charter schools, and the United States Department of Education (USDE) reviews performance on state assessments as reported annually by states that have been awarded grants. Texas has also established as one of the purposes of the state CSP grant program the intent to expand the number of high-quality charters in the state. The agency has determined that the limited CSP resources and the ability to waive some of the expansion amendment requirements should be reserved for charters that have sustained patterns of success on state assessments for a majority of their students and that it is appropriate for charters that are granted new school amendments to have at least 50% of the student population evaluated on state assessments. The agency has also determined that it is not appropriate to award a CSP grant for a charter school that will have no state assessment data for the duration of the grant award period. However, the agency determined that the requirement in proposed new §100.1033(c)(6)(A)(vii) for at least 50% of new school students to be in grades assessed by the state accountability system would not be adopted as part of the amendment to §100.1033. It should be noted that the lack of a new school designation will not prevent a successful charter from obtaining an expansion amendment to replicate. Additionally, the USDE requires that CSP grant funds be awarded to existing charter holders for new schools, not for the replication of existing schools or programs, and a separate federal charter school grant program for replication of charters has recently been released by the USDE.
Comment: The executive director of the TCSA commented that proposed new §100.1033(c)(6)(A)(ii)(I) should be changed to allow high-performing charter holders with more than one charter to be eligible for a new school amendment. The commenter offered substitute language that would change the new school amendment requirement for charters evaluated under standard accountability procedures from 75% of campuses currently rated as Exemplary or Recognized to two-thirds of the campuses currently rated as Exemplary or Recognized.
Agency Response: The agency disagrees. Proposed new §100.1033(c)(6) does not exclude a charter holder with more than one charter from obtaining multiple new school designations or exclude a charter from obtaining multiple new school designations. Since one of the purposes of the federal CSP grant program is to expand the number of high-quality charter schools, the agency has determined that it is appropriate to require a charter evaluated under standard accountability procedures to have 75% of its campuses currently rated as Recognized or Exemplary.
Comment: The founder of Uplift Education commented that proposed new §100.1033(c)(6)(A)(ii)(I) should be modified to make start-up funds available to highly successful growing charter organizations, including those with multiple charters that cannot meet the "multiple years requirement for the ratings." The commenter also stated that under the old rules, a new charter could apply for funds with no requirement of having demonstrated success. The commenter further stated that the time limits imposed by the proposed rules are so extreme that the start-up funds would not be available when an organization opening a new school needs them in the first two years of opening. The commenter provided substitute language that recommended changing the three-year requirement referenced in proposed new §100.1033(c)(6)(A)(ii)(I) to a two-year requirement and the 75% requirement referenced in proposed new §100.1033(c)(6)(A)(ii)(I) to a two-thirds requirement.
Agency Response: The agency disagrees. Proposed new §100.1033(c)(6) does not exclude a charter holder with more than one charter from obtaining multiple new school designations or a charter from obtaining multiple new school designations. In addition, there is no language in current or previous rule specific to CSP start-up funding. Since one of the purposes of the federal CSP grant program is to expand the number of high-quality charter schools, the agency has determined that it is appropriate to require a charter currently evaluated under standard accountability procedures that is requesting a new school designation to have a district rating of Exemplary or Recognized for three of the last five years with at least 75% of the campuses rated under the charter also being rated Exemplary or Recognized and no campus with an unacceptable rating in the most recent state accountability ratings. CSP funding is awarded for up to 18 months of planning and up to 24 months of implementation after the charter begins serving students, so funds awarded to a charter holder for a charter school designated as a new school would be available in the first two years of opening of the school.
Comment: The executive director of the TCSA and the chief executive officer of Pegasus School commented that proposed new §100.1033(c)(6)(A)(ii)(II) should be changed to allow charters evaluated under AEA procedures a safe harbor so that they would be required to meet the accountability standard for new school designation for only three of the last five years instead of five of the last five years as proposed. The commenters stated that proposed new §100.1033(c)(6)(A)(ii)(I) allows charters evaluated under standard accountability procedures to meet the specified standard for three of the last five years.
Agency Response: The agency disagrees and has determined that, for the purposes of a new school amendment, it is appropriate in proposed new §100.1033(c)(6)(A)(ii)(II) to require a charter evaluated under AEA procedures to maintain acceptable accountability ratings for five of the last five years. It should be noted that charters evaluated under standard procedures are held to a different standard both by being evaluated under traditional procedures and by being required to maintain Exemplary or Recognized ratings, higher performance levels than acceptable ratings, for three of the last five years.
Comment: The executive director of the TCSA commented that language in proposed new §100.1033(c)(6)(A)(ii)(II)(-b-), pertaining to granting new school designations to charters evaluated under AEA procedures, should be revised to clarify that data will be reviewed from the final AEIS reports rather than any preliminary reports; to indicate that schools evaluated under AEA procedures will be measured on only AEA accountability indicators; to clarify the meaning of the term "all tests," which is not used in determining accountability ratings; and to include only the performance of the subgroups African-American, Hispanic, white, and economically disadvantaged in the expansion requirement. The commenter further stated that federal standards do not consider science or social studies and that rules relating to new schools should not be more stringent than state or federal accountability standards.
Agency Response: The agency agrees in part and disagrees in part. It should be noted that AEIS reports contain final data, including ratings, after resolution of appeals. Although the agency has determined that it is imperative to consider the data as reported on the standard accountability indicators in order to consider student group data by subject area, it agrees that clarification was needed to make explicit that a 30% pass rate on the All Tests indicator as reported in the AEIS is not a requirement for a charter evaluated under AEA procedures to be considered for a new school amendment. Language in proposed new §100.1033(c)(6)(A)(ii)(II)(-b-) has been revised accordingly at adoption. The agency has also determined that the minimum performance requirements for the subgroups as outlined in proposed new §100.1033(c)(6)(A)(ii)(II)(-b-) are appropriate to ensure that new school designation is reserved for those charters that, in the judgment of the commissioner, have demonstrated performance at levels that warrant potential funding for expansion. Further, the agency has determined that it is not sound public policy for the charter expansion standards to be the same as the minimum standards for continuing to operate an existing charter and that higher standards of performance than required for other types of expansion amendments are appropriate for charters granted new school amendments.
Comment: The CEO of Pegasus School commented that language in proposed new §100.1033(c)(6)(A)(ii)(II)(-b-), pertaining to granting new school designations to charters evaluated under AEA procedures, is confusing and imposes requirements on AEA charters that exceed the requirements for charters evaluated under standard procedures. The commenter stated that the term "all tests" is confusing and that the requirement for AEA charters to meet minimum performance standards for subgroups not part of standard or AEA accountability procedures should be removed. The commenter further stated that special education and limited English proficient subgroups, in addition to the subgroups in the state accountability system, are considered for AYP; that AYP does not consider science or social studies; that the proposed amendments capture the differences in accountability standards by requiring in proposed new §100.1033(c)(6)(A)(iii) that no charter campus has been placed in Stages 1-5 in the No Child Left Behind (NCLB) school improvement program for failure to meet AYP; and that rules relating to new charters should not be more stringent than state or federal accountability standards.
Agency Response: The agency agrees in part and disagrees in part. It should be noted that proposed new §100.1033(c)(6) provides for the expansion of existing charters to include new schools, not new charters. The agency agrees that clarification was needed to make explicit that a 30% pass rate on the All Tests indicator as reported in the AEIS is not a requirement for a charter evaluated under AEA procedures to be considered for a new school amendment, and language in proposed new §100.1033(c)(6)(A)(ii)(II)(-b-) has been modified accordingly at adoption. The agency has also determined that the minimum performance requirements for the subgroups as outlined in proposed new §100.1033(c)(6)(A)(ii)(II)(-b-) are appropriate to ensure that expansion is reserved for those charters that, in the judgment of the commissioner, have demonstrated performance at a level that warrants expansion. Further, the agency has determined that it is not sound public policy for the charter expansion standards to be the same as the minimum standards for continuing to operate an existing charter and that higher standards of performance than required for other types of expansion amendments are appropriate for charters granted new school amendments.
Comment: The executive director of the TCSA commented that the standard imposed in proposed new §100.1033(c)(6)(A)(iii), pertaining to staging in the NCLB school improvement program for failure to meet AYP, is not based on federal guidance, is inflexible, and should be revised to allow charters with campuses in Stages 1 and 2 to be eligible for new school designations.
Agency Response: The agency agrees in part and disagrees in part. Language in proposed new §100.1033(c)(6)(A)(iii) has been modified at adoption to reflect that charters with campuses in Stage 1 of the NCLB school improvement program for failure to meet AYP are eligible for new school designation. The agency has determined that, to ensure that new school amendments are reserved for those charters that are clearly high performing, it is appropriate to reserve new school amendments for those charters with no campuses that have been placed in Stages 2-5 in the NCLB school improvement program for failure to meet AYP in the most current report.
Comment: The executive director of the TCSA and the chief operating officer and president of KIPP commented that the requirement in proposed new §100.1033(c)(6)(A)(vii) for at least 50% of the student population in the new school to be in grades assessed in the state accountability system should be eliminated as it will prevent successful school models that begin schools at early grade levels and add a grade each year. The executive director of the TCSA further stated that this restriction would prevent the replication of high-performing open-enrollment charter schools.
Agency Response: The agency provides the following clarification. The adoption of proposed new §100.1033(c)(6)(A)(vii) would not prevent successful school models that begin schools at early grade levels and add a grade each year from requesting expansion amendments under §100.1033(c)(5). The purpose of designating a school as a new school under proposed new §100.1033(c)(6) is to create more high-performing charters by alleviating some of the burdens of the expansion process. Although the agency has determined that it is not appropriate to award a CSP grant for a charter school that will have no state assessment data for the duration of the grant award period, the agency determined that the requirement in proposed new §100.1033(c)(6)(A)(vii) for at least 50% of new school students to be in grades assessed by the state accountability system would not be adopted as part of the amendment to §100.1033. It should be noted that the lack of a new school designation will not prevent a successful charter from obtaining an expansion amendment to replicate. Additionally, the USDE requires that CSP grant funds be awarded to existing charter holders for new schools, not for the replication of existing schools or programs, and a separate federal charter school grant program for replication of charters has recently been released by the USDE.
Comment: The executive director of the TCSA commented that the language in proposed new §100.1033(c)(6)(B)(iv) is unclear and should be revised to include any requirements of the separate written performance agreements other than those in the Elementary and Secondary Education Act, Section 5210(1)(L), and the TEC, §12.111(a)(3) and (4), or should indicate that those are the only requirements.
Agency Response: The agency disagrees. The language in §100.1033(c)(6)(B)(iv) is intended to allow the commissioner as much flexibility as possible while maintaining alignment to the intent of the federal non-regulatory guidance for charter schools. Should the agency determine that refinements to the rule are necessary based upon accumulated experience in administering the new provision, a proposal to amend the rule will be developed.
Comment: The executive director of the TCSA commented that the language in proposed new §100.1033(c)(6)(F) related to the failure of a charter to meet any standard or requirement for a new school amendment outlined in rule or agreed to in a performance agreement should be changed to clarify that a charter would not be required to exceed any new school standards or requirements to maintain the benefits afforded by new school status and to define all benefits that could be lost if standards and requirements are not met.
Agency Response: The agency agrees in part and disagrees in part. It was not the agency's intent to require a charter to exceed set standards to maintain new school status. Proposed new §100.1033(c)(6)(F) has been modified at adoption to remove the phrase "or exceed"; remove references to all benefits; and specify that the failure to meet any standard or requirement will terminate any federal CSP grant and/or any waiver of expansion amendment requirements that may have been granted to a charter holder as a result of the new school designation.
General Comments
Comment: An individual commented that the proposed amendments to 19 TAC Chapter 100, Charters, Subchapter AA, Commissioner's Rules Concerning Open-Enrollment Charter Schools, are too restrictive and should be revised as charters are held to standards under the TEC, Chapter 12 and Chapter 39. The commenter also stated that the revisions will not promote growth for charter schools.
Agency Response: The agency disagrees. The amendments clarify the responsibilities of charters in alignment with the statutory requirements of the TEC, Chapter 39, and encourage and support the growth of high-performing charter schools.
Comment: A representative of the TCSA and the CEO of Pegasus School commented that the proposed amendments should specifically state that the amendments would not apply retroactively.
Agency Response: The agency disagrees. The amendments do not address retroactive implementation, and the changes to the rules will apply on the effective date of the adoption.
Comment: A representative from Rogers, Morris & Grover on behalf of Winfree Academy Charter School and Erath Excels Academy Charter School commented that "Proposed Rule Changes to 10 TAC §109.1022(d) [sic]" appear "to violate the requirements of TEC, §39.104(a), that interventions and sanctions under Chapter 39 be applied to school districts and charter schools in the same manner."
Agency Response: The comment is outside the scope of the current rule proposal.
For additional information, email rules@tea.state.tx.us.