Rulemaking: How Agencies Change the Rules of the Game

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MORGAN SMITH: Welcome to the Intersect Ed Podcast, where the stories of public education policy and practice meet. 

I’m your host, Morgan Smith.

Today, we’re talking about a big change that’s about to wallop Texas school districts. At the end of September, as lawmakers approach an anticipated special session this fall on private school vouchers, about one out of every four public school campuses will see the letter grade that marks their performance in the state’s A-F accountability system drop. 

In many cases this will happen despite student achievement at these campuses having gone up. And for high schools, there’s an added hit: a key component of their rating, the Career, College, and Military Readiness Indicator, will be retroactively applied, based on the performance of students who graduated in 2022. So going into the 2023-2024 school year, there’s nothing they can do to change it, even if they could. 

So why is this happening? Put simply, it’s because of a paperwork change—or in more precise terms, a “technical adjustment”—in how the Texas Education Agency calculates the accountability ratings. So taking the Career, College, and Military Readiness Indicator, or CCMR, as an example—instead of requiring 60 percent of kids to meet the standard to receive an A rating, now 88 percent of kids must meet it. 

But it’s hard to ignore the timing of it all.

GINA HINOJOSA: I think it’s important for people listening to understand that what is happening with cut scores is part of a larger campaign by the governor to make our schools look bad.

MORGAN SMITH: This is Texas State Representative Gina Hinojosa, an Austin Democrat who serves on the House Public Education committee. The former president of the Austin ISD school board and a public school parent, Rep. Hinojosa has closely followed the accountability changes since they were announced this spring.

GINA HINOJOSA: There were efforts to say we had nasty books in the library, we’re grooming our kids, our teachers are not teaching curriculum, but they’re teaching  partisanship. All sorts of allegations that have been launched at our schools that those of us who are in our schools know are not true. All of that is part of a campaign to make our schools look bad so that the answer can be privatization or vouchers or ESAs, and most Texans don’t buy that. They are trying to wear us down, and I think we just need to stay strong.

MORGAN SMITH: It’s important to note here that nobody is arguing schools shouldn’t strive to make sure more students are prepared for graduation or that the state shouldn’t hold its schools to the highest standards possible. In fact, the state regularly ramps up accountability measures every few years. The problem lies in how the Texas Education Agency is rolling out these new standards. 

BOBBY OTT: The issue is not the standards. There’s nobody in education that I know of that’s terribly afraid of accountability. I mean, that’s day-to-day in our lives.

MORGAN SMITH: Here is Dr. Bobby Ott, the Superintendent of Temple ISD, a district of about 8,500 students near Waco. 

BOBBY OTT: But it’s the way that this has gone about, which has been so different. And so there have been people out in the public that have said, “Well, public schools knew in 2017 and 2018, because there was legislation that said standards were going to change.” Absolutely right. And so we fully expected that to happen sometime. It would’ve happened sooner, but COVID took place, so that didn’t happen. But that’s not what we’re complaining about. What we’re complaining about is there’s no transition year. And we’re also complaining about how drastic the changes are. When you implement changes like this, you typically do it by increments, and you lay it out there as the way you should do it.

MORGAN SMITH: What Dr. Ott says is true—school districts knew standards would increase after the Legislature passed a law making changes to the assessment and accountability system way back in 2017. But what’s happening now with the roll out of new standards was not directed by the Legislature when they passed that bill, it is an agency level decision. And to understand how we got to this point, we have to take a trip to the opaque world of agency rulemaking. 

TODD WEBSTER: The legal way to describe it is it’s essentially a delegation of legislative authority to the executive branch. So you have state agencies like the Texas Education Agency, which is an executive branch agency, and the legislature, (who) will enact a law and then say, “Okay, state agency, you go implement it.” Rulemaking is when the legislature gives the agency power to fill in the blanks. 

MORGAN SMITH: This is Todd Webster, a government affairs consultant who over the last three decades has worked at many different levels of state government — including stints as the interim commissioner and deputy director of the Texas Education Agency. 

TODD WEBSTER: Think of the legislature as directing the state agency to bake a cake, they tell them, “We want the cake to be of a certain type and variety and we want it to look like this.” The agency, it then has to come up with what the ingredients are and how you put them together and what temperature you have to bake the cake at. It takes sort of the basic direction that the legislature made or gave and has to fill in all the blanks so that they can make it happen. Because the legislative process is one where I think it’s coming up with all those details when you have that many people so figuratively in the room trying to figure out how to put all that together. It’s almost impossible to come up with every scenario and every detail and to think about everything in that environment.”

MORGAN SMITH: Over the last ten years, Todd Webster and other state government insiders say they’ve seen two things happen. The executive branch has slowly consolidated power at the agency level—and the Legislature has delegated more of the details of lawmaking to agency decisions.

DEE CARNEY: So when it comes to assessment and accountability, at least over the past four legislative sessions, we have seen bills that were signed by the governor, made it through both houses, signed by the governor. And in TEA’s rulemaking, the rulemaking did not align with the legislative intent of the bill. And when that happens, I’ve learned there is no redress for the legislators, even if they wanted to go back and or speak to TEA and say, “Hey, that’s not what we intended.” Remember in the bill language it says TEA has rulemaking authority. I think to me, trying to implement and trying to help districts understand the legislative process and the rulemaking process, it’s difficult to explain when that happens.

MORGAN SMITH: Dee Carney is a former middle school math teacher and longtime school administrative leader who is now an Assessment and Accountability Policy Consultant. 

DEE CARNEY: Rulemaking is way down in the weeds, but it has a ripple effect from the Teacher Incentive Allotment and how teachers receive that additional incentive, because that’s based on test scores in part, to the value of your home. And how that letter grade impacts what you can sell it for, to businesses and workforce development that choose to move into your community or not, based on this letter grade. That’s why it’s important.

MORGAN SMITH: It’s hard to overstate how much these ratings matter to school communities. If a school district performs poorly, it faces the threat of a state takeover. And the ratings affect everything from whether teachers at a school receive bonuses, to real estate property values—to companies’ decisions to relocate to Texas or take that economic investment in our state elsewhere. But despite this, it’s incredibly difficult to influence the rulemaking process once it’s underway—even if you are a longtime lobbyist or lawmaker.

DEE CARNEY: The opportunity for public input around the accountability manual, which is the rulemaking process for accountability that occurred, the public comment period was May to June. So those comments, if people were going to comment on the manual, were submitted to the agency, and then the agency considers those public comments before they finalize the rules. You don’t talk to the agency. There’s not a hearing. You submit them online, the agency reviews them, and then they publish in the Texas Register if they agree with your comment or disagree with your comment. Most of the time, again, most of the time when you go back and look at the register, the agency disagrees with comments.

MORGAN SMITH: And when there’s dissent over what happens in the rulemaking process, there’s very little recourse for lawmakers or members of the public. They can either take it to the courts—which at least seven school districts, including Pflugerville and Del Valle ISD did when they sued the state over the new standards this August—or wait until the next legislative session rolls around to try to pass a new statute.

GINA HINOJOSA: What the commissioner is doing is moving the goalposts for our schools after the game is over and saying that they did not make the cut because they failed to score within the goal. 

MORGAN SMITH: Here is Representative Gina Hinojosa again.

GINA HINOJOSA: I know that we hear complaints a lot in the Legislature that the commissioner is applying law in a way that members did not intend. That may be true to an extent, but legislators also bear responsibility here. 

MORGAN SMITH: Representative Hinojosa says that lawmakers had the opportunity to pass a bill that would have ensured school districts had a year to transition to the new accountability standards instead of leaving that decision up to TEA Commissioner Mike Morath, but that the bill never got a committee hearing.

GINA HINOJOSA: I do think that Commissioner Morath exercises more discretion and control in his rulemaking than other agency executives, but I don’t think that washes our hands of responsibility to get it right.

MORGAN SMITH: Meanwhile, at the end of September, school leaders will be left to explain to their communities why their schools are suddenly dropping one letter grade or more.

GINA HINOJOSA: I think school leaders need to be transparent and upfront with our communities and not be fearful. This is happening through no fault of theirs. To have a new standard retroactively applied on our schools is 100% the doing of our commissioner, our governor; and most people, vast majority of people, in fact, I don’t think I’ve come across a single person who thinks that’s fair. It just violates our notions of fair play in all sorts of ways. I think once we tell our school communities, “Listen, this is the grade for the school, but the state has retroactively applied this heightened standard without giving us any indication that this was going to be the new standard, we will try to do better next time. But we did not know this was what the standard was going to be.” 

MORGAN SMITH: This topic may be confusing and in the weeds. You can learn more about accountability issues at www.RaiseYourHandTexas.org. 

To stay informed on critical education issues, you can sign up online for Raise Your Hand’s Across the Lawn weekly newsletter at www.RaiseYourHandTexas.org/Get-Involved.

To receive text alerts that will allow you to join Raise Your Hand in taking action at key moments in the lead up to the special session, text RAISEMYHAND to 40649. 

Today’s episode was written by me, Morgan Smith. Our sound engineer is Brian Diggs, our executive producer is Anne Lasseigne Tiedt and our episode producer is Amelia Folkes.