AG opinion sought on instructional materials for schools

books3_final2Questions about how school districts adopt textbooks and other instructional materials were raised by lawmakers during the 2015 session and recently prompted a request for an opinion from the Texas attorney general on the role of the State Board of Education (SBOE) in that process.

In the opinion request, the then-board chair said she was seeking guidance on the SBOE’s authority to adopt rules to ensure appropriate local safeguards, including whether the public is receiving adequate notice of materials being considered for adoption. The current board chair, appointed by the governor on June 18, is continuing the request.

Adopting instructional materials. In 2011, lawmakers changed the way instructional materials are bought and adopted. They also established the instructional materials allotment, a per-student funding amount each district and charter school receives to buy instructional materials and technology. Districts may use their allotment to buy materials that are adopted by the SBOE or that are adopted locally. The bill, SB 6 by Shapiro, was enacted by the 82nd Legislature during its first called session.

Before enactment of SB 6, the SBOE was required for every subject and grade level to adopt two lists, a conforming list and a non-conforming list. On the conforming list, each item covered 100 percent of the state learning standards, known as the Texas Essential Knowledge and Skills (TEKS). On the non-conforming list, each item covered at least half of the TEKS. SB 6 eliminated these lists and required that each item of instructional material approved by the SBOE cover at least half of the relevant TEKS. The SBOE indicates the percentage of the relevant TEKS covered by each item.

keyboard3Before the start of each school year, districts and charter schools are required under the Texas Administrative Code (19 TAC, sec. 66.105) to submit to the SBOE and the education commissioner certification that the district or charter is providing each student with materials that together cover all elements of the TEKS. Certifications must be ratified by local school boards in public meetings. Upon request of the commissioner, the certification must include supporting documentation describing the materials on which it is based. Under Education Code, sec. 31.021(d), districts must first use their allotment to buy instructional materials necessary for certification before buying other materials or equipment.

Request for attorney general opinion. The letter requesting an opinion from the attorney general notes that the board’s rule-making authority for instructional materials in Education Code, sec. 31.003 does not distinguish between the instructional materials purchased from the board’s list and those purchased outside of the board’s list. The letter points out that the 2011 revisions to the statute changed what schools may purchase but did not alter the delegation of rulemaking authority to the SBOE. The attorney general has set Aug. 14 as the deadline for interested parties to submit briefs on the opinion request.

Questions raised in the letter include whether the board, by rule, may:

  • require schools to allow for public input and participation during the local review and adoption process;
  • require schools to ensure prior local approval of changes in content made by a publisher to materials not purchased from the SBOE’s approved list;
  • require schools to specify and make publicly available which TEKS are covered by each locally adopted instructional material;
  • establish an administrative penalty for a publisher of material not on the board’s approved list that fails to correct a factual error identified by a school;
  • require schools to develop conflict-of-interest policies and maintain contact registers between school officials and publishers;
  • require schools to adopt only materials that provide certain review exercises, activities, and unit tests; and
  • require schools to ensure that all locally adopted instructional materials not on the board’s approved list comply with Education Code, sec. 28.002(h), which requires the SBOE and districts to foster the teaching of Texas and U.S. history and the free enterprise system in the adoption of instructional materials.

Legislation recently considered. Bills on the local adoption process were considered by the 84th Legislature earlier this year. SB 1211 by Kolkhorst would have required each local school board and charter governing body to adopt procedures for selecting instructional materials in certain required subjects. The bill would have required public notice and access to proposed  materials and a public hearing. SB 1711 by Campbell would have allowed the SBOE to establish certain minimum standards for local adoption, including requiring materials to be reviewed by an independent panel to ensure coverage of the TEKS. Both bills were considered in a public hearing by the Senate Education Committee and left pending. HB 3571 by Bohac, a companion to SB 1711, was referred to the House Public Education Committee.

Supporters of increasing requirements for locally adopted instructional materials say the state at least should require a minimum level of transparency and public access in the local review process. They say a more open process could allow parents to engage in decisions about classroom materials and could help publishers identify and correct factual errors in locally adopted materials.

Opponents of increasing requirements for locally adopted instructional materials say no additional transparency is needed because these materials are adopted in public school board meetings and parents already have the right to view materials being used in their children’s schools. They say that adding new requirements could lessen input from local educators and lead to politicized debates over how certain subjects are treated.

by Janet Elliott

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