February 1, 2023 Committee of the Full Board Item 4

Consideration of Petition for Amendment of Rule Concerning 19 TAC Chapter 100, Charters, Subchapter A, Open-Enrollment Charter Schools, §100.1, Selection Process

February 3, 2023

COMMITTEE OF THE FULL BOARD: ACTION
STATE BOARD OF EDUCATION: ACTION

SUMMARY: A petition to amend 19 Texas Administrative Code (TAC) Chapter 100, Charters, Subchapter A, Open-Enrollment Charter Schools, §100.1, Selection Process, has been received from the Texas Public Charter Schools Association. The petition requests that the rule be amended to remove subsection (d), which establishes a period of no contact between open-enrollment charter applicants and any person or entity acting on their behalf with the commissioner, the commissioner's designee, a member of the State Board of Education, or a member of an external application review panel. This item provides an opportunity for the State Board of Education (SBOE) to consider the petition.

STATUTORY AUTHORITY: Texas Government Code (TGC), §2001.021 and §2001.004; Texas Education Code (TEC), §12.101; and 19 TAC §30.1.

Texas Government Code, §2001.021, provides that any interested person may petition a state agency adopt a rule change. It also requires a state agency to either deny the petition in writing or initiate rulemaking proceedings.

Texas Government Code, §2001.004, provides that a state agency shall adopt rules of practice stating the nature and requirements of all available formal and informal procedures. It also requires a state agency to make available for public inspection all rules and other written statements of policy or interpretations that are prepared, adopted, or used by the agency in discharging its functions.

TEC, §12.101, requires the commissioner to notify the SBOE of each charter the commissioner proposes to grant. It also establishes that unless, before the 90th day after the date on which the board receives the notice from the commissioner, a majority of the members of the board present and voting vote against the grant of that charter, the commissioner's proposal to grant each charter takes effect.

19 TAC §30.1 allows any interested person to petition the SBOE for the adoption, amendment, or repeal of an SBOE rule and establishes the procedures for the review of a petition for a rule change.

The full text of statutory citations can be found in the statutory authority section of this agenda.

BACKGROUND INFORMATION AND JUSTIFICATION: Ms. Starlee Coleman of the Texas Public Charter Schools Association submitted to the SBOE a petition requesting that rule language that establishes the period of no contact under 19 TAC §100.1 be repealed.

The petitioner stated that the no-contact rule is unnecessary. The petitioner stated that, "No-Contact rules are intended to protect the integrity of the procurement process between vendors/providers and the contracting agency. Because approved open-enrollment public charter schools enter into a contract with the Texas Education Agency (TEA), a short no-contact period between the applicants and the Commissioner and members of the external application review panel may, upon first glance, appear justifiable. However, an analogy to procurement falls apart upon examination. Unlike typical procurements wherein multiple vendors compete for the same business, charter applicants are not in direct competition with one another. An applicant either passes muster or it does not. Applicants who fail to meet TEA standards are removed from the process, and even if an applicant is recommended to the SBOE, there is no guarantee of approval. Moreover, we strongly believe that blocking the applicant as well as those associated with the applicant, from contact with elected SBOE members is uniquely unnecessary. The SBOE holds a vote to (1) veto or (2) take no action on the Commissioner's recommendation, but the SBOE never directly negotiates or contracts with the applicant or school. If an applicant is finally approved, only TEA negotiates terms and conditions with the approved applicant, thereby rendering a No-Contact rule moot and unfounded."

The petitioner also stated that the no-contact rule is unfair. The petition stated that, "Notably, the SBOE rule does not apply to all interested parties, but only to applicants and their supporters. Those in opposition remain free to contact their elected officials. If the intention truly was to allow SBOE members to make uninfluenced decisions, the rules would apply equally to all parties. Instead, this was a politically-driven effort that results in SBOE members only hearing from those opposed to the application, while supporters are purposefully excluded and silenced."

The petitioner also stated that the no-contact rule is unconstitutional. The petitioner stated that, "We have identified no other state agency that penalizes constituents for petitioning elected officials. Section 27 of the Texas Constitution mirrors the Federal Constitutional right to petition one's government: Texans have the right to "apply to those invested with the powers of government for redress of grievances or other purposes, by petition, address, or remonstrance." This No-Contact Rule is content- and person-based discrimination, and creates a valid Constitutional complaint that would be ratified by Federal and Texas courts."

The petition, which provides the petitioner's rationale and justification, is presented as Attachment I of this item.

MOTION TO BE CONSIDERED: The State Board of Education:

Direct Texas Education Agency staff to initiate rulemaking proceedings; or
Deny the petition to amend the rule concerning the no-contact provision.

Staff Members Responsible:
Kelvey Oeser, Deputy Commissioner, Educator and System Support
Marian Schutte, Director, Authorizing

Attachment I:
Petition to Amend Rule Concerning No-Contact Provision

Attachment II:
Text of 19 TAC Chapter 100, Charters, Subchapter A, Open-Enrollment Charter Schools, §100.1, Selection Process