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The Texas Supreme Court may make a final decision in the Texas Education Agency v. Houston Independent School District case as early as this month.

One of the key considerations: changes to the system that imposes sanctions on districts with underperforming schools. TEA argues that changes to the law strengthen their position and that the agency should be allowed to create a Board of governors instead of a democratically elected school board.

Houston Republican Senator Paul Bettencourt sponsored a bill that would make this possible in 2021.

“The bottom line is that if the school system fails, the state should intervene and change the leadership,” he said. “Because we can’t afford to lose a generation of kids in a bad education system due to bad leadership from trustees in certain areas of the state.”

The state Supreme Court heard oral arguments in October. According to the representative of the court, the decision is expected no later than June.

Originally published October 6, 2022

Lawyers representing the Texas Education Agency and the Houston Independent School District filed arguments in the state’s highest court Thursday morning, continuing a decades-long case that could change who controls the largest school district in Texas.

TEA Commissioner Mike Morath attempted to replace the locally elected school board with a group of state-appointed managers in 2019, citing poor academic performance at one school — in a district that had 280 campuses at the time — and illegal, unethical behavior on the part of the administration. The Hisd School Board as a key element of the takeover. TEA also tried to stop the school board from hiring a new superintendent.

“HISD students still need intervention,” Assistant State Solicitor General Kyle Highful, who represents TEA, said Thursday in court.

HISD sued to stop the takeover, arguing that the agency’s approach was not in accordance with due process and was outside its legal authority under state law. The county also stated that the outcome of the county’s TEA investigation was predetermined.

“Throughout Texas, school board members – as this court knows – are the primary way people interact with democracy,” David Jay Campbell of O’Hanlon, Demerath & Castillo told judges on behalf of HISD. “That’s why the legislature has said that these elected officials, these members of the community, should govern and control the school districts.”

The takeover has been put on hold while the case goes through the courts, and HISD now has a new superintendent and basically a new board of trustees.

Duncan Klusman is an Assistant Clinical Professor in the Department of Educational Leadership and Policy Studies at the University of Houston.

“They are the key body that provides overall direction for the system and is the voice of the public in the governance of the system,” he said. “The difference is that the elected school board has obviously been chosen by the public that makes up this district. The Board of Governors is still made up of citizens of the school system, but is appointed by the Commissioner of Education.”

In court documents, TEA argued that judges should rule in its favor to preserve the agency’s power and prevent delaying tactics by counties facing takeovers.

“We tried to get it done as quickly as possible,” Campbell said. “We didn’t put it off in any way.”

TEA also pointed to a chaotic 2018 HISD board meeting in which the trustees unexpectedly voted to replace the superintendent. Citing several trustees, the agency argued that the board was dysfunctional and unable to serve students.

“The current board is a different board than the one that began in the lawsuit,” HISD board president Judith Cruz said in a written statement.

She won election to the council the day before TEA Commissioner Mike Morath announced the takeover plans.

“I can’t imagine what the outcome will be after tomorrow’s hearing,” she wrote. “What I know for sure is that the board will continue to do the job for which we were elected. We are focused on student outcomes, and whatever the outcome of the case, this is what should always be the focus.”

Last year, HISD trustee Bridget Wade took over from Ann Soong. Wade said she did not agree with TEA’s actions.

“I think they had no choice at the time,” she said. “I think maybe it’s time for us to prove ourselves without the oversight of TEA. But again, I’ll leave that up to the courts.”

The other trustees and TEA did not comment on the case.

For many years prior to the takeover attempt, Whitley High School HISD students did not perform at a level that the TEA considers acceptable.

While the takeover stalled, Wheatley received a passing grade. At the district level, HISD received a B from TEA for the 2021–22 school year. In court, TEA pointed to another HISD school, Kashmir High School, which did not receive a passing grade last year.

When asked by Judge Jane Bland whether the improvement in Whitley High School’s record had anything to do with the case, Assistant Solicitor General Highful stated that it had “no legal value whatsoever”.

He added that the solid overall rating of the area does not matter either.

“The commissioner’s view is, ‘Yes, HISD is a big school district and that means you have some very wealthy schools with very high academic performance that are doing well, but you also have schools like Whitley and Kashmir that fight year after year,” Haiful said. “And if you’re in one of those underperforming schools, it won’t help you to know that there’s a school somewhere else in the area that’s doing well. And the commissioner believes that every student should have access to a quality education.”

The failing grade for Kashmir High School – instead of failing – comes from updates to the state education code. Senate Bill 1365 was passed in the 2021 state legislature. This changes the TEA accountability process for school evaluation.

It is also a key moment for the Texas Supreme Court to hear the case. In court, TEA argued that the changes simplify matters and make it clearer that the agency’s actions were legal. HISD argued that the new law places an increased burden on TEA to justify certain actions.

The Education Code already allowed for what Zef Kapo called “draconian takeovers” that often “disrupt” district operations. He is president of the Texas State Teachers’ Union AFT.

“In addition to the change of government, in addition to the change of the school itself, since the initiation of this case, the law has changed a couple of times,” he said. “In fact, you would put in their place people who only report to the commissioner and the governor’s office, who may have a fundamentally different direction than the millions of parents, taxpayers and students that HISD currently serves and currently listens to.”

A spokesman for the court said the judges would likely announce their decision sometime between December and July.