Report on Back-Ordered Instructional Materials and Recommendations for Penalties
November 20, 2009
COMMITTEE ON SCHOOL FINANCE/PERMANENT SCHOOL FUND: ACTION
STATE BOARD OF EDUCATION: ACTION
SUMMARY: Each publisher shall have adopted instructional materials in stock and available for distribution to school districts during the entire adoption period as specified in 19 Texas Administrative Code (TAC) §66.78(b). A back order is defined as adopted instructional material not in stock when ordered and not available for delivery to school districts or open-enrollment charter schools on the specified shipment date. This item presents a report on back-ordered instructional materials and recommends penalties to be assessed for publishers with materials not in stock and available for shipment prior to the first day of school year 2008-2009.
STATUTORY AUTHORITY: Texas Education Code (TEC), §31.151 and 19 TAC §66.10(g).
PREVIOUS BOARD ACTION: In February 2001, the SBOE approved 19 TAC §66.10(g), which specifies that administrative penalties may be imposed on publishers for failing to deliver instructional materials in a timely manner. Back-order penalties have been based on the length of time materials were on back order and the value of the back-ordered materials. The rate of penalty has been based on one percent of the average value of the back-ordered materials for each day the instructional materials remain on back order after the first day of the school year. Each penalized publisher has been required to issue credit to the agency in an amount equal to the penalty. The credits are applied to future payments to the publishers.
BACKGROUND INFORMATION AND SIGNIFICANT ISSUES: TEC, §31.151(a)(7), states, “A publisher or manufacturer of textbooks shall guarantee delivery of textbooks before the opening day of school of the year for which the textbooks are ordered if the textbooks are ordered by a date specified in the sales contract.” TEC, §31.151(b), further states, “The State Board of Education may impose a reasonable administrative penalty against a publisher or manufacturer who knowingly violates Subsection (a). The board shall provide for a hearing to be held to determine whether a penalty is to be imposed and, if so, the amount of the penalty.”
Texas Education Agency (TEA) staff considered requests from publishers for reductions in proposed penalties due to unpredictable spikes in student enrollment stemming from natural disasters, start-up of bilingual programs, curriculum changes, or for similar reasons. Where appropriate, reductions in the proposed penalties were made.
FISCAL IMPACT: The credit issued by the publishers will be applied to future payments, thereby decreasing the state’s overall expense for textbooks during the next school year.
PUBLIC AND STUDENT BENEFIT: Assessing penalties for back-ordered textbooks based on the length of time the instructional materials are on back order will encourage publishers to deliver textbooks in a timely manner.
PROCEDURAL AND REPORTING IMPLICATIONS: None.
PUBLIC COMMENTS: None.
ALTERNATIVES: None.
OTHER COMMENTS AND RELATED ISSUES: None.
COMMISSIONER’S RECOMMENDATION: I recommend that the State Board of Education:
Impose a penalty for publishers’ back orders based on one percent of the average value of back-ordered materials for each day the instructional materials remained on back order after the first day of school year 2008-2009; and
Require each publisher to issue credit to the agency in the appropriate amount as recommended in the attachment.
Respectfully submitted,
Robert Scott
Commissioner of Education
Staff Members Responsible: Anita Givens, Associate Commissioner
Standards and Programs
Norma Torres-Martinez, Deputy Associate Commissioner
Standards and Alignment
John Lopez, Managing Director
Instructional Materials and Educational Technology
Charles Mayo, Manager, Distribution and Accessibility
Instructional Materials and Educational Technology
Attachment:Recommended Penalties for Back-Ordered Instructional Materials