Texas Education Agency’s push to take over Houston ISD reaches Texas Supreme Court

HISD sued to stop the takeover, arguing the agency’s approach skirted due process and fell outside its legal powers under state law. The district also claimed the outcome of TEA’s investigation into the district was predetermined. 

Kashmere High School has missed state standards for going on seven years. If HISD doesn't improve it and all its other chronically failing schools, it could face a state board of managers.
FILE: Kashmere High School has missed state standards for going on seven years. If HISD doesn’t improve it and all its other chronically failing schools, it could face a state board of managers.

Lawyers representing the Texas Education Agency and Houston Independent School District presented arguments to the state's highest court Thursday morning, continuing a years-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 low academic performance at one school — in a district with, at the time, 280 campuses — and illegal, unethical behavior by the HISD school board as key ingredients for the takeover. TEA also tried to stop the school board from hiring a new superintendent.

"HISD students are still in need of interventions," state assistant solicitor general Kyle Highful, representing TEA, argued before the court on Thursday.

HISD sued to stop the takeover, arguing the agency's approach skirted due process and fell outside its legal powers under state law. The district also claimed the outcome of TEA's investigation into the district was predetermined.

"Across Texas, school board members are — as this court knows — the fundamental way that people interact with democracy," David Jay Campbell of O’Hanlon, Demerath & Castillo told justices on behalf of HISD. "That is why the legislature has said that these elected officials, these members of the community should govern and oversee school districts."

The takeover has been on hold as the case moves through court, and HISD now has a new superintendent — and a mostly new board of trustees.

Duncan Klussman is an assistant clinical professor with the Educational Leadership and Policy Studies department at University of Houston.

"They are the key body that provides the overall leadership to the system and is the public’s voice in running the system," he said. "The difference is that the elected school board has obviously been chosen by the public that makes up that district. The board of managers is still citizens from within the school system, but it’s appointed by the commissioner of education."

In court filings, TEA has argued that justices should rule in its favor to preserve the agency's power and prevent delaying tactics by districts facing takeovers.

"We tried to move this expeditiously," Campbell argued. "We have not delayed this in any way."

TEA has also pointed to a chaotic 2018 HISD board meeting where, in a surprise move, trustees voted to replace the superintendent. Quoting the words of several trustees, the agency argued the board was dysfunctional and failed 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 board the day before TEA commissioner Mike Morath announced the takeover plans.

"I can't speculate what the outcome will be after tomorrow's hearing," she wrote. "What I do know is that the board will continue to do the work we were elected to do. We are focused on student outcomes and whatever the result of the case is, that is what the focus should always be."

First-year HISD trustee Bridget Wade unseated Anne Sung last year. Wade said she didn't disagree with TEA's actions.

"I think they didn’t have a choice at the time," she said. "I think it’s maybe time for us to be able to prove ourselves without the oversight of the TEA. But again, I’ll leave that to the courts to decide."

Other trustees and TEA did not comment on the case.

For years before the attempted takeover, students at HISD's Wheatley High School did not perform at levels deemed acceptable by TEA.

In the time the takeover has been 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 has pointed to another HISD school, Kashmere High School, which did not receive a passing grade last year.

Asked by Justice Jane Bland if Wheatley High School's improved performance has any bearing on the case, assistant solicitor general Highful argued it "doesn't have any legal relevance."

He added that the district's solid overall rating is also irrelevant.

"The commissioner's view is that, ‘Yes, HISD is a large school district, and what that means is you have some very wealthy, very high-performing schools up here that are doing great, but you also have schools like Wheatley and Kashmere that struggle year after year,'" Highful said. "And if you’re a student at one of these low-performing schools, it doesn’t help you to know that elsewhere in the district there’s a school that’s doing great. And the commissioner believes that every student should have access to a quality education."

The not-rated grade for Kashmere High — instead of a failing grade — comes from updates to the state education code. Senate Bill 1365 passed in the 2021 state legislative session. It changes TEA's accountability process for evaluating schools.

It's also a key consideration for the Supreme Court of Texas as it weighs the case. In court, TEA argued the changes simplify the case and make it more clear the agency's actions were lawful. HISD argued the new law places an increased burden on TEA to justify certain actions.

The education code already allowed for what Zeph Capo called "draconian takeovers" that often "disrupt" district operations. He's president of the statewide teachers' union, Texas AFT.

"In addition to the board changing, in addition to the school itself changing, the law has changed a couple times since this case was initiated," he said. "You would in fact be putting in place individuals that are subservient only to the commissioner and the governor’s office, that could have a fundamentally different direction than the millions of parents and taxpayers and students that HISD currently serves and currently listens to."

A court spokesperson said the justices are likely to release a decision sometime between December and July.

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