The Texas attorney general said in a December 4 opinion that a court likely would determine that the Legislature has not specifically delegated to the State Board of Education (SBOE) the authority to enact certain rules on school districts’ adoption of textbooks and instructional materials. The opinion on the SBOE’s authority was requested in June by the then-board chair and continued by the current chair after her appointment by the governor.
The opinion states that the SBOE’s rulemaking authority for the adoption of textbooks under Education Code, sec. 31.003 should be considered alongside sec. 11.151(b), which says that all powers and duties not specifically delegated by statute to the Texas Education Agency or the SBOE are reserved for local school boards. The authority of local school boards to select instructional materials was enhanced in 2011 when the Legislature passed SB 6 by Shapiro, which allowed districts to use their instructional materials allotment to buy materials that are adopted by the SBOE or that are adopted locally.
According to the attorney general opinion, KP-0043, the Legislature has not specifically delegated authority to the SBOE to require school districts, in adopting instructional materials, to:
- adopt a public input and participation process;
- adopt procedures ensuring prior local approval of changes in content made by a publisher to materials not purchased from the SBOE’s approved list;
- specify which essential knowledge and skills (TEKS) are covered by each locally adopted material and identify which passages cover which specific elements of the TEKS; or
- develop conflict of interest policies and require public schools and publishers to keep contact registers between school officials and publishers.
The opinion says the SBOE likely would exceed its rulemaking authority by adopting a rule to ensure locally adopted instructional materials comply with Education Code, sec. 28.002(h), which requires districts to offer instruction in U.S. and Texas history and the free enterprise system with a curriculum that emphasizes patriotism and democratic values.
According to the opinion, the SBOE does have authority to impose an administrative penalty against a publisher for a factual error identified by a district.
For more on this issue, see previous post: AG opinion sought on instructional materials for schools.
by Janet Elliott