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.