87R10731 TSS-F

By: Taylor S.B. No. 2094

A BILL TO BE ENTITLED

AN ACT

relating to the commissioner of education's authority regarding the assessment of public school students and providing accelerated instruction for students who fail to achieve satisfactory performance on certain assessment instruments.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 12.104(b), Education Code, as amended by Chapters 262 (H.B. 1597), 464 (S.B. 11), 467 (H.B. 4170), and 943 (H.B. 3), Acts of the 86th Legislature, Regular Session, 2019, is reenacted and amended to read as follows:

(b) An open-enrollment charter school is subject to:

(1) a provision of this title establishing a criminal offense;

(2) the provisions in Chapter 554, Government Code; and

(3) a prohibition, restriction, or requirement, as applicable, imposed by this title or a rule adopted under this title, relating to:

(A) the Public Education Information Management System (PEIMS) to the extent necessary to monitor compliance with this subchapter as determined by the commissioner;

(B) criminal history records under Subchapter C, Chapter 22;

(C) reading instruments and accelerated reading instruction programs under Section 28.006;

(D) accelerated learning committees, accelerated instruction, and modified teacher assignments under Section 28.0211;

(E) high school graduation requirements under Section 28.025;

(F) special education programs under Subchapter A, Chapter 29;

(G) bilingual education under Subchapter B, Chapter 29;

(H) prekindergarten programs under Subchapter E or E-1, Chapter 29;

(I) extracurricular activities under Section 33.081;

(J) discipline management practices or behavior management techniques under Section 37.0021;

(K) health and safety under Chapter 38;

(L) public school accountability under Subchapters B, C, D, F, G, and J, Chapter 39, and Chapter 39A;

(M) the requirement under Section 21.006 to report an educator's misconduct;

(N) intensive programs of instruction under Section 28.0213;

(O) the right of a school employee to report a crime, as provided by Section 37.148;

(P) bullying prevention policies and procedures under Section 37.0832;

(Q) the right of a school under Section 37.0052 to place a student who has engaged in certain bullying behavior in a disciplinary alternative education program or to expel the student;

(R) the right under Section 37.0151 to report to local law enforcement certain conduct constituting assault or harassment;

(S) a parent's right to information regarding the provision of assistance for learning difficulties to the parent's child as provided by Sections 26.004(b)(11) and 26.0081(c) and (d);

(T) establishment of residency under Section 25.001;

(U) [(T)] school safety requirements under Sections 37.108, 37.1081, 37.1082, 37.109, 37.113, 37.114, 37.115, 37.207, and 37.2071;

(V) [(T)] the early childhood literacy and mathematics proficiency plans under Section 11.185; and

(W) [(U)] the college, career, and military readiness plans under Section 11.186.

SECTION 2. The heading to Section 28.0211, Education Code, is amended to read as follows:

Sec. 28.0211. ACCELERATED LEARNING COMMITTEE [SATISFACTORY PERFORMANCE ON ASSESSMENT INSTRUMENTS REQUIRED]; ACCELERATED INSTRUCTION; MODIFIED TEACHER ASSIGNMENT.

SECTION 3. Section 28.0211, Education Code, is amended by amending Subsections (a), (a-1), (a-2), (a-3), (c), (f), (i), (k), and (n) and adding Subsections (a-4), (a-5), (f-1), (f-2), (f-3), (f-4), and (f-5) to read as follows:

(a) A school district shall establish an accelerated learning committee described by Subsection (c) for each student who does not perform satisfactorily on:

(1) the third grade mathematics or reading assessment instrument under Section 39.023;

(2) [Except as provided by Subsection (b) or (e), a student may not be promoted to:

[(1) the sixth grade program to which the student would otherwise be assigned if the student does not perform satisfactorily on] the fifth grade mathematics or [and] reading assessment instrument [instruments] under Section 39.023; or

(3) [(2) the ninth grade program to which the student would otherwise be assigned if the student does not perform satisfactorily on] the eighth grade mathematics or [and] reading assessment instrument [instruments] under Section 39.023.

(a-1) Each time a student fails to perform satisfactorily on an assessment instrument administered under Section 39.023(a) in the third, fourth, fifth, sixth, seventh, or eighth grade, the school district in which the student attends school shall either:

(1) provide to the student accelerated instruction in the applicable subject area during the subsequent summer or school year; or

(2) assign the student a classroom teacher who has been certified as a master, exemplary, or recognized teacher under Section 21.3521 for the subsequent school year in the applicable subject area.

(a-2) Accelerated instruction provided during the following school year under Subsection (a-1)(1) may require participation of the student before or after normal school hours [and may include participation at times of the year outside normal school operations].

(a-3) Accelerated instruction provided by a district under Subsection (a-1)(1) must:

(1) include instruction in all of the essential knowledge and skills for the foundation school curriculum adopted under Section 28.002 for the grade level in which the student is enrolled and targeted instruction in the essential knowledge and skills needed for previous grade levels;

(2) be provided in addition to instruction normally provided to students in the grade level in which the student is enrolled;

(3) be provided for no less than 30 total hours during the following summer and school year and include instruction no less than once per week, unless the instruction is provided fully during summer or school holidays;

(4) be designed to assist the student in achieving satisfactory performance on the subsequent assessment instrument administered under Section 39.023(a) in the applicable subject area;

(5) be provided to a student individually or in a group of no more than three students, unless the parent or guardian of each student in the group authorizes a larger group;

(6) be provided by a classroom teacher with training and experience in the applicable subject area and in assisting students in achieving satisfactory performance on the applicable assessment instrument administered under Section 39.023(a); and

(7) to the extent possible, be provided by one classroom teacher.

[(a-2) A student who fails to perform satisfactorily on an assessment instrument specified under Subsection (a) and who is promoted to the next grade level must complete accelerated instruction required under Subsection (a-1) before placement in the next grade level. A student who fails to complete required accelerated instruction may not be promoted.]

(a-4) If there is more than one classroom teacher available to provide the student accelerated instruction under Subsection (a-1)(1) or to whom the student could be assigned under a modified teacher assignment under Subsection (a-1)(2), the student's parent or guardian may choose the teacher who will provide the applicable instruction to the student.

(a-5) [(a-3)] The commissioner shall provide guidelines to school districts on research-based best practices and effective strategies that a district may use in developing an accelerated instruction program and may provide resources to districts to assist in the provision of an accelerated instruction program.

(c) [Each time a student fails to perform satisfactorily on an assessment instrument specified under Subsection (a), the school district in which the student attends school shall provide to the student accelerated instruction in the applicable subject area, including reading instruction for a student who fails to perform satisfactorily on a reading assessment instrument.] After a student fails to perform satisfactorily on an assessment instrument specified under Subsection (a), an accelerated learning [a second time, a grade placement] committee shall be established [to prescribe the accelerated instruction the district shall provide to the student before the student is administered the assessment instrument the third time]. The accelerated learning [grade placement] committee shall be composed of the principal or the principal's designee, the student's parent or guardian, and the teacher of the subject of an assessment instrument on which the student failed to perform satisfactorily. The district shall notify the parent or guardian of the time and place for convening the accelerated learning [grade placement] committee and the purpose of the committee. [An accelerated instruction group administered by a school district under this section may not have a ratio of more than 10 students for each teacher.]

(f) An accelerated learning [A school district shall provide to a student who, after three attempts, has failed to perform satisfactorily on an assessment instrument specified under Subsection (a) accelerated instruction during the next school year as prescribed by an educational plan developed for the student by the student's grade placement] committee described by [established under] Subsection (c) shall, as soon as possible after the student fails to perform satisfactorily on an assessment instrument specified under Subsection (a) but not later than the start of the subsequent school year, develop an [. The district shall provide that accelerated instruction regardless of whether the student has been promoted or retained. The] educational plan for the student that provides the necessary accelerated instruction [must be designed] to enable the student to perform at the appropriate grade level by the conclusion of the school year.

(f-1) The educational plan under Subsection (f) must be documented in writing, and a copy must be provided to the student's parent or guardian.

(f-2) During the school year, the student shall be monitored to ensure that the student is progressing in accordance with the plan developed under Subsection (f). The district shall administer to the student the assessment instrument for the grade level in which the student is placed at the time the district regularly administers the assessment instruments for that school year.

(f-3) The board of trustees of each school district shall adopt a policy consistent with the grievance procedure adopted under Section 26.011 to allow a parent to contest the content or implementation of an educational plan developed under Subsection (f).

(f-4) If a student who fails to perform satisfactorily on an assessment instrument specified under Subsection (a) fails in the subsequent school year to perform satisfactorily on an assessment instrument in the same subject, the superintendent of the district, or the superintendent's designee, shall meet with the student's accelerated learning committee to:

(1) identify the reason the student did not perform satisfactorily; and

(2) determine, in order to ensure the student performs satisfactorily on the assessment instrument at the next administration of the assessment instrument, whether:

(A) the educational plan developed for the student under Subsection (f) must be modified to provide the necessary accelerated instruction for that student; and

(B) any additional resources are required for that student.

(f-5) The superintendent's designee under Subsection (f-4):

(1) may be an employee of a regional education service center; and

(2) may not be a person who served on the student's accelerated learning committee.

(i) The admission, review, and dismissal committee of a student who participates in a district's special education program under Subchapter A, Chapter 29, and who does not perform satisfactorily on an assessment instrument specified under Subsection (a) and administered under Section 39.023(a) or (b) must meet to [before the student is administered the assessment instrument for the second time. The committee shall] determine[:

[(1)] the manner in which the student will participate in an accelerated instruction program under this section[; and

[(2) whether the student will be promoted in accordance with Subsection (i-1) or retained under this section].

(k) The commissioner may [shall] adopt rules as necessary to implement this section [, including rules concerning when school districts shall administer assessment instruments required under this section and which administration of the assessment instruments will be used for purposes of Section 39.054].

(n) A student who fails to perform satisfactorily on an assessment instrument specified under Subsection (a) and is promoted to the next grade level [by a grade placement committee under this section] must be assigned in the subsequent school year in each subject in which the student failed to perform satisfactorily on an assessment instrument specified under Subsection (a) to a teacher who meets all state and federal qualifications to teach that subject and grade.

SECTION 4. Section 28.0217, Education Code, is amended to read as follows:

Sec. 28.0217. ACCELERATED INSTRUCTION FOR HIGH SCHOOL STUDENTS. (a) Each time a student fails to perform satisfactorily on an assessment instrument administered under Section 39.023(c), the school district in which the student attends school shall provide to the student accelerated instruction in the applicable subject area [, using funds appropriated for accelerated instruction under Section 28.0211].

(b) Accelerated instruction provided under this section:

(1) may require participation of the student before or after normal school hours and may include participation at times of the year outside normal school operations; and

(2) must comply with the requirements for accelerated instruction provided under Section 28.0211.

SECTION 5. Section 33.0812(a), Education Code, is amended to read as follows:

(a) The commissioner [State Board of Education] by rule shall prohibit participation in a University Interscholastic League area, regional, or state competition:

(1) on Monday through Thursday of the school week in which the primary administration of assessment instruments under Section 39.023(a), (c), or (l) occurs; or

(2) if the primary administration of the assessment instruments is completed before Thursday of the school week, beginning on Monday and ending on the last school day on which the assessment instruments are administered.

SECTION 6. Section 39.022(a), Education Code, is amended to read as follows:

(a) The commissioner [State Board of Education] by rule shall create and implement a statewide assessment program that is knowledge- and skills-based to ensure school accountability for student achievement that achieves the goals provided under Section 4.002. After adopting rules under this section, the commissioner [State Board of Education] shall consider the importance of maintaining stability in the statewide assessment program when adopting any subsequent modification of the rules.

SECTION 7. Sections 39.023(a-4), (c), (c-3), (e), (g), and (l), Education Code, are amended to read as follows:

(a-4) For purposes of Subsection (a)(1), the commissioner [State Board of Education] by rule must require the mathematics assessment instrument for a grade level to align with the technology expectations included in the essential knowledge and skills for that grade level and may designate sections of a mathematics assessment instrument for a grade level that:

(1) may be completed with the aid of technology; and

(2) must be completed without the aid of technology.

(c) The agency shall also adopt end-of-course assessment instruments for secondary-level courses in Algebra I, biology, English I, English II, and United States history. The Algebra I end-of-course assessment instrument must be administered with the aid of technology, but may include one or more parts that prohibit the use of technology. The English I and English II end-of-course assessment instruments must each assess essential knowledge and skills in both reading and writing and must provide a single score. A school district shall comply with commissioner [State Board of Education] rules regarding administration of the assessment instruments listed in this subsection. If a student is in a special education program under Subchapter A, Chapter 29, the student's admission, review, and dismissal committee shall determine whether any allowable modification is necessary in administering to the student an assessment instrument required under this subsection. The commissioner [State Board of Education] shall administer the assessment instruments. An end-of-course assessment instrument may be administered in multiple parts over more than one day. The commissioner, in consultation with school districts, [State Board of Education] shall adopt a schedule for the administration of end-of-course assessment instruments that complies with the requirements of Subsection (c-3).

(c-3) Except as provided by Subsection (c-7), as added by Chapter 1315 (H.B. 3906), Acts of the 86th Legislature, Regular Session, 2019, in adopting a schedule for the administration of assessment instruments under this section, the commissioner [State Board of Education] shall ensure that assessment instruments administered under Subsection (a) or (c) are not administered on the first instructional day of a week unless the superintendent of a school district applies to the commissioner for a waiver of the requirement under this subsection due to local conditions which have significantly affected the district's ability to comply with the requirement of this subsection.

(e) At least [Under rules adopted by the State Board of Education,] every third year, the agency shall release the questions and answer keys to each assessment instrument administered under Subsection (a), (b), (c), (d), or (l), excluding any assessment instrument administered to a student for the purpose of retaking the assessment instrument, after the last time the instrument is administered for that school year. To ensure a valid bank of questions for use each year, the agency is not required to release a question that is being field-tested and was not used to compute the student's score on the instrument. The agency shall also release[, under board rule,] each question that is no longer being field-tested and that was not used to compute a student's score. [During the 2014-2015 and 2015-2016 school years, the agency shall release the questions and answer keys to assessment instruments as described by this subsection each year.]

(g) The commissioner [State Board of Education] may adopt one appropriate, nationally recognized, norm-referenced assessment instrument in reading and mathematics to be administered to a selected sample of students in the spring. If adopted, a norm-referenced assessment instrument must be a secured test. The state may pay the costs of purchasing and scoring the adopted assessment instrument and of distributing the results of the adopted instrument to the school districts. A district that administers the norm-referenced test adopted under this subsection shall report the results to the agency in a manner prescribed by the commissioner.

(l) The commissioner [State Board of Education] shall adopt rules for the administration of the assessment instruments adopted under Subsection (a) in Spanish to students in grades three through five who are of limited English proficiency, as defined by Section 29.052, whose primary language is Spanish, and who are not otherwise exempt from the administration of an assessment instrument under Section 39.027(a)(1) or (2). Each student of limited English proficiency whose primary language is Spanish, other than a student to whom Subsection (b) applies, may be assessed using assessment instruments in Spanish under this subsection for up to three years or assessment instruments in English under Subsection (a). The language proficiency assessment committee established under Section 29.063 shall determine which students are administered assessment instruments in Spanish under this subsection.

SECTION 8. Section 39.02341(a), Education Code, is amended to read as follows:

(a) The agency [, in consultation with the State Board of Education,] shall develop a transition plan to administer all assessment instruments required under Section 39.023 electronically beginning not later than the 2022-2023 school year. The plan must:

(1) evaluate the availability of Internet access for each school district in this state;

(2) identify changes to state law or policy necessary to improve the availability of Internet access described by Subdivision (1);

(3) evaluate the state's experience with administering online assessment instruments, including the occurrence or effects of power outages or other types of disruptions of Internet service, and actions taken by the state to mitigate the occurrence and effect of those disruptions; and

(4) identify and evaluate actions taken by the state to improve the administration of online assessment instruments.

SECTION 9. Section 39.025(b-1), Education Code, is amended to read as follows:

(b-1) A school district shall provide each student who fails to perform satisfactorily as determined by the commissioner under Section 39.0241(a) on an end-of-course assessment instrument with accelerated instruction under Section 28.0217 in the subject assessed by the assessment instrument.

SECTION 10. Section 39.026, Education Code, is amended to read as follows:

Sec. 39.026. LOCAL OPTION. In addition to the assessment instruments adopted and administered by the agency [and administered by the State Board of Education,] a school district may adopt and administer criterion-referenced or norm-referenced assessment instruments, or both, at any grade level. A norm-referenced assessment instrument adopted under this section must be economical, nationally recognized, and state-approved.

SECTION 11. Section 39.027(b), Education Code, is amended to read as follows:

(b) The commissioner [State Board of Education] shall adopt rules under which a dyslexic student who is not exempt under Subsection (a) may use procedures including oral examinations if appropriate or may be allowed additional time or the materials or technology necessary for the student to demonstrate the student's mastery of the competencies the assessment instruments are designed to measure.

SECTION 12. Section 39.029, Education Code, is amended to read as follows:

Sec. 39.029. MIGRATORY CHILDREN. The commissioner [State Board of Education] by rule may provide alternate dates for the administration of the assessment instruments to a student who is a migratory child as defined by 20 U.S.C. Section 6399. The alternate dates may be chosen following a consideration of migrant work patterns, and the dates selected may afford maximum opportunity for the students to be present when the assessment instruments are administered.

SECTION 13. Section 39.030(a), Education Code, is amended to read as follows:

(a) In adopting academic skills assessment instruments under this subchapter, the commissioner [State Board of Education] or a school district shall ensure the security of the instruments and tests in their preparation, administration, and grading. Meetings or portions of meetings held by the commissioner [State Board of Education] or a school district at which individual assessment instruments or assessment instrument items are discussed or adopted are not open to the public under Chapter 551, Government Code, and the assessment instruments or assessment instrument items are confidential.

SECTION 14. Sections 39.032(c-1) and (e), Education Code, are amended to read as follows:

(c-1) The standardization norms computed under Subsection (c) shall be:

(1) based on a national probability sample that meets accepted standards for educational and psychological testing; and

(2) updated at least every eight years using proven psychometric procedures approved by the commissioner [State Board of Education].

(e) The commissioner [State Board of Education] shall adopt rules for the implementation of this section and for the maintenance of the security of the contents of all assessment instruments.

SECTION 15. Section 39.033(c), Education Code, is amended to read as follows:

(c) A private school must reimburse the agency for the cost of administering an assessment instrument under this section. The commissioner [State Board of Education] shall determine the cost under this section. The per-student cost may not exceed the cost of administering the same assessment to a student enrolled in a public school district.

SECTION 16. Section 39.039(b), Education Code, is amended to read as follows:

(b) A person who is an agent of an entity that has been contracted to develop or implement assessment instruments required under Section 39.023 commits an offense if the person serves as a member of a formal or informal advisory committee established by the commissioner or [,] agency staff[, or the State Board of Education] to advise the commissioner or [,] agency staff [, or the State Board of Education] regarding policies or implementation of the requirements of this subchapter.

SECTION 17. Section 39.301(c), Education Code, is amended to read as follows:

(c) Indicators for reporting purposes must include:

(1) the percentage of graduating students who meet the course requirements established by State Board of Education rule for:

(A) the foundation high school program;

(B) the distinguished level of achievement under the foundation high school program; and

(C) each endorsement described by Section 28.025(c-1);

(2) the results of the SAT, ACT, and certified workforce training programs described by Chapter 311, Labor Code;

(3) for students who have failed to perform satisfactorily, under each performance standard under Section 39.0241, on an assessment instrument required under Section 39.023(a) or (c), the performance of those students on subsequent assessment instruments required under those sections, aggregated by grade level and subject area;

(4) for each campus, the number of students, disaggregated by major student subpopulations, that take courses under the foundation high school program and take additional courses to earn an endorsement under Section 28.025(c-1), disaggregated by type of endorsement;

(5) the percentage of students, aggregated by grade level, provided accelerated instruction under Section 28.0211 [28.0211(c)], the results of assessment instruments administered under that section, [the percentage of students promoted through the grade placement committee process under Section 28.0211,] the subject of the assessment instrument on which each student failed to perform satisfactorily under each performance standard under Section 39.0241, and the performance of those students in the subsequent school year [following that promotion] on the assessment instruments required under Section 39.023;

(6) the percentage of students of limited English proficiency exempted from the administration of an assessment instrument under Sections 39.027(a)(1) and (2);

(7) the percentage of students in a special education program under Subchapter A, Chapter 29, assessed through assessment instruments developed or adopted under Section 39.023(b);

(8) the percentage of students who satisfy the college readiness measure;

(9) the measure of progress toward dual language proficiency under Section 39.034(b), for students of limited English proficiency, as defined by Section 29.052;

(10) the percentage of students who are not educationally disadvantaged;

(11) the percentage of students who enroll and begin instruction at an institution of higher education in the school year following high school graduation; and

(12) the percentage of students who successfully complete the first year of instruction at an institution of higher education without needing a developmental education course.

SECTION 18. Section 51.338(d), Education Code, is amended to read as follows:

(d) A student who has demonstrated the performance standard for college readiness as provided by Section 28.008 on the postsecondary readiness assessment instruments adopted under Section 39.0238 for Algebra II and English III, as that section existed before repeal by __.B. _____, Acts of the 87th Legislature, Regular Session, 2021, is exempt from the requirements of this subchapter with respect to those content areas. The commissioner of higher education by rule shall establish the period for which an exemption under this subsection is valid.

SECTION 19. The following provisions of the Education Code are repealed:

(1) Sections 28.0211(b), (d), (e), (i-1), (i-2), (m), and (m-1);

(2) Section 39.0231;

(3) Section 39.0238; and

(4) Section 39.039(a).

SECTION 20. As soon as practicable after the effective date of this Act, the board of trustees of a school district shall adopt a policy as required by Section 28.0211(f-3), Education Code, as added by this Act.

SECTION 21. The change in law made by this Act to Section 39.039, Education Code, applies only to an offense committed on or after the effective date of this Act. An offense committed before the effective date of this Act is governed by the law in effect on the date the offense was committed, and the former law is continued in effect for that purpose. For purposes of this section, an offense was committed before the effective date of this Act if any element of the offense occurred before that date.

SECTION 22. (a) On the effective date of this Act:

(1) all powers and duties of the State Board of Education under Section 33.0812 and Subchapter B, Chapter 39, Education Code, as those provisions existed immediately before the effective date of this Act, are transferred to the commissioner of education; and

(2) all rules, forms, and assessment instruments adopted or prescribed by the State Board of Education are continued in effect as if they were rules, forms, or assessment instruments adopted or prescribed by the commissioner of education until they are repealed or otherwise changed by the commissioner.

(b) The validity of an action taken by the State Board of Education before the effective date of this Act is not affected by the transfer of powers and duties under this Act.

SECTION 23. To the extent of any conflict, this Act prevails over another Act of the 87th Legislature, Regular Session, 2021, relating to nonsubstantive additions to and corrections in enacted codes.

SECTION 24. This Act applies beginning with the 2021-2022 school year.

SECTION 25. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2021.