Published March 8, 2023
As concerns grow about the Texas Education Agency ousting the Houston Independent School District’s elected board, a question with major practical and political implications has emerged: Are state officials legally mandated to take over Texas’ largest school district?
Despite multiple years of legal and legislative battles, there’s still no definitive answer to this fundamental query – setting the stage for even more litigation that could delay or derail any state efforts to strip power from the district’s school board.
A strange confluence of recent events has left it unclear whether TEA officials must, or merely may, take drastic action against the state’s largest school district due to persistently poor academic performance at Wheatley High School, according to a Houston Landing review of state law and court rulings. While the uncertainty has lingered for the past several weeks, it’s taken on greater importance as the state nears a decision on whether to punish HISD for past failings.
The murkiness stems from state appellate rulings and legislative actions in the past several months that were supposed to clarify the state’s responsibility for punishing HISD, yet failed to plainly answer one key question: Did Wheatley trigger a state law requiring sanctions against the district when it received a seventh consecutive failing grade in 2019?
The distinction looms large over the fight between Republican Gov. Greg Abbott’s education commissioner, Mike Morath, who has pushed to replace HISD’s school board for three years, and the contingent of Democratic politicians and school leaders in Houston who oppose state intervention.
If state law does not mandate sanctions against HISD, Morath would face a politically fraught choice over whether to punish the district for past shortcomings at Wheatley, which improved to a “C” grade last year. Morath told a Texas House education committee last week that “what we are going to do is going to be a mandatory action under state law, not a discretionary action” – leaving open the question of whether he would replace HISD’s school board if he isn’t required to.
TEA officials, who didn’t respond to requests for comment for this article, have not announced whether they intend to continue their quest to depose HISD’s board. Houston Mayor Sylvester Turner and several state legislators who represent the city have said they expect Morath will imminently announce plans to oust the board.
It’s not immediately clear whether HISD trustees, who first sued in 2019 to stop an initial state takeover attempt, would keep opposing their removal in court. A lawyer representing HISD’s board, Kevin O’Hanlon, declined to comment on his interpretation of the matter.
However, trustees will face significant public pressure to battle until the bitter end.
“I think that this fight should continue on, and that our schools should be run by the community, not somebody that doesn’t know us,” HISD Trustee Elizabeth Santos said.
No absolute answer
HISD finds itself in legal limbo largely due to a peculiar disconnect between Texas’ legislative and judicial branches.
The saga began in 2015, when Texas legislators passed a law that said the TEA must replace a district’s school board or close chronically low-performing campuses in any district with a single school that failed to meet state academic accountability standards for five consecutive years. The bill, championed by state Rep. Harold Dutton Jr., a Houston Democrat whose legislative district includes Wheatley, aimed to punish school boards for neglecting long-struggling campuses.
However, the law spelled out specific years – including 2018 – for which schools must fail to meet state standards to trigger sanctions. And as a result of Hurricane Harvey, Wheatley received a “not rated” designation in 2018, which didn’t count as a failing grade.
Still, state officials moved to oust HISD’s school board after Wheatley fell short of state standards in 2019, its seventh consecutive failing grade without a passing mark. (TEA leaders have said closing Wheatley would not remedy the root causes of the school’s poor results.)
Wheatley’s “not rated” mark in 2018 set off a legal skirmish over whether the school technically triggered the law with its seventh straight failing grade the following year.
A Travis County judge issued a temporary injunction in HISD’s favor in early 2020, halting the takeover, but she did not elaborate on the rationale for her decision. Then, in late 2020, the Texas Third Court of Appeals ruled that Wheatley did not violate the accountability law because the “plain language of the statute” required a failing grade in 2018. TEA officials subsequently appealed the decision to the Texas Supreme Court.
While the case was pending before the Texas Supreme Court, state legislators passed a bill in mid-2021 clarifying that a “not rated” grade doesn’t count as a passing score for the purposes of calculating whether a school scored five consecutive failing grades. If a school receives four straight failing grades, followed by a “not rated” mark, it must meet state standards the next school year to avoid triggering a state takeover or campus closure. Texas legislators, however, did not make the law retroactive to the Wheatley situation.
“It was our legislative intent not to include any language that would have done that,” Dan Huberty, a Republican former state representative who helped usher the bill to passage, said in an email last week. Huberty added that lawmakers wanted to leave Wheatley’s fate to the courts – a point echoed this week in a statement by another key figure in the law’s passage, state Sen. Paul Bettencourt, R-Houston.
Yet the Texas Supreme Court, when given the chance, didn’t clearly address the unanswered question about Wheatley.
In an October 2022 written opinion, the justices unanimously overturned the temporary injunction, finding the TEA has the legal right to install a replacement board on two unrelated matters: the lengthy presence of a state-appointed conservator in the district; and multiple findings of misconduct by some board members, including violations of the state’s open meetings laws and attempts to steer vendor contracts, following a TEA investigation in 2019. On both fronts, state law says Morath can appoint a new board, but he’s not required to.
But for reasons never made clear, the justices didn’t explicitly rule on whether Wheatley triggered mandatory sanctions. The justices seemed to defer in their opinion to the Texas Legislature’s new law, which could bolster the state’s case for mandatory sanctions, but they never issued an unequivocal directive.
A ‘leg to stand on’?
In the absence of an obvious command from the Texas Supreme Court, state education officials are left with a conundrum.
Does the lower appellate court’s ruling that Wheatley did not trigger required punishment still stand? Or does the Texas Supreme Court’s dismissal of the injunction and oblique reference to the recently revised sanctions law negate the earlier appellate court decision?
Morath said last week that state officials were still reviewing the Texas Supreme Court’s opinion to “discern what our next required action is under state law.”
In the meantime, most Houston-area political and community leaders continue to mobilize against state intervention.
At a downtown Houston rally last week attended by nearly all Democratic state legislators representing the school district, state Rep. Alma Allen called for continuing the legal fight aimed at preventing state action.
“I’d like to just see (Morath) realize before we go into litigation and he spends a lot of money and we spend a lot of money that he doesn’t have a leg to stand on,” said Allen, D-Houston. “I don’t think we ought to just sit down and let them do what they want to do. The governor has already taken too many liberties.”
Rolando Martinez, the father of three HISD students and member of a top district advisory committee, said he believes district and state officials both failed to give students at Wheatley enough attention in years past. However, he trusts the district’s elected board more than state leaders to rectify the neglect.
“I really am supportive of the idea of fighting until the very end,” Martinez said. “I think it’s important that we have individuals who represent our area that are known by citizens and know their community.”