19 TAC §97.1021
The Texas Education Agency (TEA) adopts new §97.1021,
concerning annual evaluation of disciplinary alternative education programs,
with changes to the proposed text as published in the November 10, 2000, issue
of the
Texas Register
(25 TexReg 11220). The
new section establishes the procedures and indicators to be used in the disciplinary
alternative education program (DAEP) evaluation. The new section implements
the requirement of Texas Education Code (TEC), §37.008(m), which specifies
that the commissioner shall adopt rules necessary to evaluate annually the
performance of each district's alternative education program established under
TEC, Chapter 37, Subchapter A. Academically, the mission of alternative education
programs shall be to enable students to perform at grade level.
TEC, §37.008(m), 75th Texas Legislature, 1997, also specifies that
the annual evaluation of DAEPs be based on indicators defined by the commissioner,
but must include student performance on assessment instruments required under
TEC, §39.023(a) and (c).
In response to comments, the following changes have been made to the section
since published as proposed.
Language was added to subsection (d) to clarify and reinforce each teacher's
right to maintain a disciplined classroom learning environment.
Language was modified in subsection (e) to indicate that the evaluation
will be based on indicators which consider the length of student assignment.
Language was modified in subsection (f) to reflect that placement indicators
are evaluated against appropriate standards.
Language was added in subsections (f)(1), (f)(2), and (f)(3) to specify
that the evaluation will examine discretionary DAEP placements under TEC, §§37.001,
37.002, 37.006, and 37.007, and, separately, mandatory placements under TEC, §37.006
and §37.007.
The following comments were received regarding adoption of the new section.
The Texas Association of School Administrators (TASA) and the Texas Association
of School Boards (TASB) expressed concerns with the proposed rule stating
that it creates an onerous burden and will unfairly indict many districts
based on inappropriate and misleading quantitative data. They further stated
their belief that the proposed rule does not recognize nor support efforts
made by Texas schools to keep children safe, but rather, imposes another regulatory
burden and record-keeping requirement on districts which they do not believe
is justified by statute. The specific TASA/TASB recommendations and rationale
are included in the following summary of comments. Agency responses are provided
after each comment.
Comment. The TASA and the TASB recommended deletions in subsection (b)
relating to compliance with TEC, §11.252, and disaggregation of performance
data. The TASA and the TASB commented that there is no legal requirement in
TEC, §37.008(m), that the evaluation of the DAEPs be part of the district
improvement plan under TEC, §11.252. The TASA and the TASB stated that
student performance data is already disaggregated with respect to race, ethnicity,
and socio-economic status.
Agency Response. The agency disagrees with the comment. TEC, §11.252(a)(3),
requires that the district improvement plan include provisions for strategies
for improvement of student performance. These strategies include, among other
things, discipline management. The agency believes that it is appropriate
for districts to consider the DAEP evaluation in the development of district
improvement plans. The agency disagrees that student performance data for
DAEP students as a group is already disaggregated with respect to race, ethnicity,
and socio- economic status. The agency believes that disaggregation of DAEP
student data is important as districts consider this evaluation in developing
district improvement plans.
Comment. The Texas Classroom Teachers Association (TCTA) suggested the
addition of language in subsection (d), in the event that language in subsections
(e)(3) and (f) was retained, to make clear that the issue of placements under
TEC, §§37.001, 37.002, 37.006, and 37.007, should be addressed by
examining a district's overall discipline management program. The TCTA commented
that rules should not impair the ability of a teacher to maintain a disciplined
classroom learning environment.
Agency Response. The agency agrees with adding language to subsection (d)
and has modified the section to clarify and reinforce a teacher's right to
maintain a disciplined classroom learning environment as permitted or required
by TEC, §37.001 and §37.002.
Comment. The TCTA expressed the opinion that subsections (e)(3) and (f)
exceed the commissioner's rulemaking authority, commenting that TEC, §37.008(m),
directs the commissioner to adopt rules with a narrow focus on student performance.
The TCTA provided their recommendation that rules to track student placements
should be proposed through a different rule and under a different authority.
Agency Response. The agency disagrees with this comment. TEC, §37.008(m),
states that the evaluation required by this section shall be based on indicators
defined by the commissioner with the inclusion of student performance on assessment
instruments required under TEC, §39.023(a) and (c).
Comment. The TASA, the TASB, and the Tuloso-Midway Independent School District
recommended that language be added to subsection (e) that would state that
student performance indicators should apply only to students assigned to a
DAEP for at least 90 instructional days. The associations commented that the
proposed rule does not specify long- or short-term placements and that this
makes it difficult to assess accurately students in short- term placements.
Agency Response. While not agreeing to identify a specific number of days
in the rule, the agency agrees to modify the language in subsection (e) to
take into consideration long- or short-term placements. The agency disagrees
with applying the evaluation only to students who have been assigned to a
DAEP for at least 90 instructional days; if 90 instructional days were used,
less than five percent of the students assigned to DAEPs would be included.
Comment. The TASA and the TASB recommended deleting the phrase "in the
annual evaluation" in subsection (e)(2).
Agency Response. The agency believes that the language of subsection (e)(2)
is aligned with TEC, §37.008(m), which states to evaluate annually.
Comment. The TASA, the TASB, and the Tuloso-Midway Independent School District
recommended removing language presented in subsection (e)(3) relating to repeated
disciplinary actions resulting in placement in a DAEP. The associations commented
that repeated disciplinary actions that result in DAEP placement are beyond
the control of the DAEP and based on incidents of individual student misbehavior.
The school district commented that this could create a disincentive for placing
students who commit serious infractions back in the DAEP.
Agency Response. The agency agrees that repeat disciplinary actions are
based on incidents of individual student misbehavior; however, the agency
believes that reporting data related to repeat DAEP assignments enables districts
to gauge the effectiveness of their programs in meeting the behavioral needs
of students. The agency disagrees that this language could create a disincentive
for placing students who commit serious infractions into a DAEP. Districts
are expected to comply with the provisions of TEC, Chapter 37, and create
and maintain safe educational settings.
Comment. The TASA, the TASB, the Tuloso-Midway Independent School District,
and an individual recommended the deletion of subsection (f). The associations
commented that this recommendation is based on the belief that such language
will lead to the creation of a "quota system" by comparing and evaluating
individual district placements against state benchmarks. The school district
and individual also expressed their belief that districts must be allowed
to respond to behavior violations without being concerned about evaluations
of placements.
Agency Response. The agency believes language in subsection (f) allows
districts to examine, analyze, and address overrepresentation of student groups
in DAEP settings. A recommendation of the state auditor to the agency is to
evaluate school district placement practices for students. The agency does
not agree that subsection (f) in any way creates a quota system. However,
the agency agrees to modify subsection (f) by replacing the phrase "state
performance benchmarks" with the term "standards." The agency also agrees
to modify subsections (f)(1), (f)(2), and (f)(3) by adding language to clarify
that evaluations will examine discretionary placements under TEC, §§37.001,
37.002, 37.006, and 37.007 and, separately, mandatory placements under TEC, §37.006
and §37.007.
Comment. An individual commented that the proposed rule is in line with
state accountability measures, but that it did not evaluate the effectiveness
of DAEP programs in comparison to alternative settings and means of educating
students with discipline problems. The individual interjected that additional
legislation would possibly be needed in order to conduct this proposed alternative
comparison.
Agency Response. The DAEP evaluation does compare a district's DAEP program
to other DAEP programs in the state.
The new section is adopted under the Texas Education Code, §37.008(m),
75th Texas Legislature, 1997, which authorizes the commissioner of education
to adopt rules necessary to evaluate annually the performance of each district's
alternative education program established under Texas Education Code, Chapter
37, Subchapter A.
§97.1021.Annual Evaluation of Disciplinary Alternative Education Programs.
(a)
A disciplinary alternative education program is defined
as a program, including shared service arrangements, established in conformance
with Texas Education Code (TEC), §37.008, or to serve expelled students
pursuant to TEC, §37.011(k).
(b)
The Texas Education Agency (TEA) shall provide an annual
evaluation for each district to be considered in complying with TEC, §11.252.
Performance data will be disaggregated with respect to race, ethnicity, and
socio-economic status. Information reported will conform to limitations consistent
with requirements under the Federal Educational Rights and Privacy Act of
1974.
(c)
The commissioner of education may consider the results
of this evaluation as a component of monitoring and/or a special accreditation
investigation.
(d)
Nothing in this section affects program requirements for
special populations under TEC, Chapter 29 (Educational Programs). Nothing
in this section affects a teacher's right to maintain a disciplined classroom
learning environment as permitted or required by TEC, §37.001 and §37.002.
(e)
The performance of a district's disciplinary alternative
education program shall be evaluated on the basis of specific indicators in
relation to appropriate performance benchmarks. This evaluation shall be based
on the following indicators, with consideration given to the length of student
assignment:
(1)
student performance on assessment instruments required
under TEC, §39.023(a) and (c), including appropriate Texas Learning Index
measures;
(2)
other indicators of student performance in the annual evaluation,
which may include:
(A)
course completion rates;
(B)
dropout rates;
(C)
completion rates; and
(D)
attendance rates; and
(3)
repeated disciplinary actions resulting in placement in
an alternative education setting.
(f)
In addition to evaluation on the indicators identified
in subsection (e) of this section, a district's disciplinary alternative education
program and overall discipline management in preventing referrals shall be
evaluated annually on the basis of identification and placement practices.
Placement indicators are evaluated against appropriate standards and include
the following:
(1)
percentage of a district's students placed in a disciplinary
alternative education program, considering all discretionary placements under
TEC, §§37.001, 37.002, 37.006, and 37.007, and, separately, those
mandatory placements under TEC, §37.006 and §37.007;
(2)
percentage of a district's minority and economically disadvantaged
students placed in a disciplinary alternative education program, considering
all discretionary placements under TEC, §§37.001, 37.002, 37.006,
and 37.007, and, separately, those mandatory placements under TEC, §37.006
and §37.007; and
(3)
percentage of a district's students with disabilities placed
in a disciplinary alternative education program, considering all discretionary
placements under TEC, §§37.001, 37.002, 37.006, and 37.007, and,
separately, those mandatory placements under TEC, §37.006 and §37.007.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the Office of
the Secretary of State on January 25, 2001.
TRD-200100443
Criss Cloudt
Associate Commissioner, Accountability Reporting and Research
Texas Education Agency
Effective date: February 14, 2001
Proposal publication date: November 10, 2000
For further information, please call: (512) 463-9701