2023 Intervenor School Districts#39 Petition in Intervention Request For Declaratory Judgment and Request For Temporary and Permanent Injunction Filed
2023 Intervenor School Districts#39 Petition in Intervention Request For Declaratory Judgment and Request For Temporary and Permanent Injunction Filed
2023 Intervenor School Districts#39 Petition in Intervention Request For Declaratory Judgment and Request For Temporary and Permanent Injunction Filed
D-1-GN-23-004675
I.
STATEMENT OF THE CASE
campuses on an annual basis and assign each district and school a “performance
1
rating” on a scale from A to F. According to the Texas Education Agency (“TEA”),
which Commissioner Morath leads, the A–F Accountability System must be “fair,
successes while improving student supports.”1 Issuing A–F ratings to school districts
that they will perform better on standardized tests, accumulate more credits,
graduate from high school on time, and attend and graduate from college.3
known standards and to measure Texas schools’ ability to meet those standards. To
meet these goals, the Legislature mandates certain parameters for generating the
employ a rating system that makes it possible for all districts and campuses to earn
the top available A rating. The Legislature also requires the Commissioner to adopt
1 See Texas Education Agency, Updated Preliminary 2023 A–F Refresh Overview and Summary
(Nov. 2022), at https://tea.texas.gov/texas-schools/accountability/2023-a-f-refresh-preliminary-
overview-summary.pdf (last visited Sept. 5, 2023); see also Texas Education Agency, Supplemental
A–F Refresh Info (May 2023), at https://tea.texas.gov/texas-schools/accountability/academic-
accountability/performance-reporting/supplemental-a-f-refresh-slides.pdf (last visited Aug. 31, 2023).
2 See Texas Education Agency, Updated Preliminary 2023 A–F Refresh Overview and Summary
(Nov. 2022), at https://tea.texas.gov/texas-schools/accountability/2023-a-f-refresh-preliminary-
overview-summary.pdf (last visited Sept. 5, 2023).
3 See Texas Education Agency, Supplemental A–F Refresh Info (May 2023), at
https://tea.texas.gov/texas-schools/accountability/academic-accountability/performance-
reporting/supplemental-a-f-refresh-slides.pdf (last visited Aug. 31, 2023).
2
indicators and standards on which the A–F ratings are based (a) during a school year,
and (b) before the TEA collects district and campus performance data needed for the
school districts, prior to the start of each school year, a document explaining the
assign performance ratings for that year. The Commissioner must publicly release
the final performance ratings for all districts and campuses by August 15 of each
calendar year.
Accountability System’s goals of setting statewide standards and informing the public
how school districts are meeting them. Intervenor Plaintiffs Pflugerville Independent
ISD”), Ector County Independent School District (“Ector County ISD”), and La Vega
Independent School District (“La Vega ISD”) (the “Intervenor School Districts”)—
establishment of high statewide standards and always strive to meet and exceed
them, to assure their communities know that their local educational institutions
provide a high quality education to all students. Indeed, the Intervenor School
3
standards under the A–F Accountability System, analyze and plan what needs to be
done to satisfy those benchmarks, and allocate resources to reflect the applicable
standards.
4. For the 2022–2023 school year, however—the same time when the TEA
Readiness (“STAAR”) tests that generate much of the data considered by the A–F
Accountability System—the Commissioner chose to hide the ball and change the
playing field for the district and campus accountability ratings. The Commissioner
did not adopt final indicators and standards for the accountability ratings to be issued
for the 2022–2023 school year before that school year ended. The Commissioner also
did not adopt final district and campus indicators for the 2022–2023 school year
before gathering the school performance data based on which the Intervenor School
Districts’ accountability ratings for that school year are being assigned. And the
Commissioner did not provide the Intervenor School Districts a document explaining
Commissioner is actually applying for the 2022–2023 school year before the start of
fly and immediately applying the new methodology to the 2022–2023 school year
4
increasing cut scores for the College, Career, and Military Readiness (“CCMR”)
indicator and applying that new bar to data for the Intervenor School Districts’
graduates in the Class of 2022, who have been off campus for more than a year. The
manner that diminishes recognition of students’ progress. Unlike in prior years when
the State modified its student testing and/or school accountability systems, the
Commissioner did not gather baseline data or establish a benchmark year for schools
to transition to the new STAAR test and A–F rating mechanisms. Instead, the
Commissioner intends to release details about the final standards applicable for the
2022–2023 school year and the ratings themselves, based on those previously
undisclosed standards, within a few weeks of each other in September 2023, long after
the 2022–2023 school year ended and the data upon which ratings will be based was
collected.
Accountability System for the 2022–2023 school year eschews the principles on which
it is based. Because the Intervenor School Districts did not have advance notice of the
indicators and standards being used in the evaluation process, they could not take
action to satisfy the new state standards. If ratings are issued now based on
previously unknown benchmarks and methods, how will the public learn whether
districts’ and campuses’ efforts are meeting such benchmarks? And how will the A–F
School Districts did not know during the 2022–2023 school year what the state’s
5
standards were for that school year? Accordingly, Commissioner Morath’s
assignment of A–F ratings to the Intervenor School Districts and their campuses for
the 2022–2023 school year would do nothing to “empower parents and educators to
the A–F Accountability System for the 2022–2023 school year contradict the tenets
of fundamental fairness, it also violates state law. The Commissioner lacks legal
authority to adopt indicators and standards for the system after a school year ends
and after performance data is collected for districts’ and campuses’ evaluations. The
campuses’ ratings for a given school year prior to the start of that school year. Yet
Commissioner Morath did not set final accountability indicators and standards for
the 2022–2023 school year before that academic year ended and did not publish an
actually applicable to the Intervenor School Districts prior to, or even during, the
2022–2023 school year. The Commissioner has even breached the statutory mandate
to release final district and campus ratings by August 15, 2023. At bottom, the TEA’s
administration of the A–F ratings for the 2022–2023 school year is haphazard and
extralegal.
4 See Texas Education Agency, Updated Preliminary 2023 A–F Refresh Overview and Summary
(Nov. 2022), at https://tea.texas.gov/texas-schools/accountability/2023-a-f-refresh-preliminary-
overview-summary.pdf (last visited Sept. 5, 2023).
6
8. The Intervenor School Districts have been harmed by the lack of
advance notice of the criteria and methods the TEA is applying as part of the A–F
Accountability System for the 2022–2023 school year, because the districts do not
know the expectations set by the Commissioner and have been unable to adjust to
the TEA’s new accountability measures and allocate resources in a manner required
to meet state standards. Upon information and belief, many of the Intervenor School
Districts and their campuses are likely to see lower A–F performance ratings for the
2022–2023 school year that do not reflect their true performance, their students’
efforts and growth, or the hard work of their teachers and staff. Particularly as the
Intervenor School Districts work to respond to and mitigate the learning loss so many
that Commissioner Morath intends to dramatically change how the Intervenor School
Districts are held publicly accountable to their communities without prior notice of
Accountability System for the 2022–2023 school year in violation of the requirements
of state law.
II.
SUMMARY OF THE LEGAL ARGUMENT
10. The Texas Education Code mandates that the Commissioner “adopt
indicators and standards” for the annual A–F school district and campus performance
rating during each school year and before the Commissioner evaluates a district or
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campus. TEX. EDUC. CODE § 39.0541. Furthermore, state law requires the
Commissioner to provide school districts prior to the start of a school year a document
that will be applied for that school year in assigning each school district and campus
a performance rating.” TEX. EDUC. CODE § 39.0542. These statutory mandates limit
adopt final indicators and standards applicable to the Intervenor School Districts’
and their campuses’ performance ratings for the 2022–2023 school year during that
school year. The Commissioner also did not adopt those final indicators and
standards before gathering the Intervenor School Districts’ performance data for the
evaluation process for the 2022–2023 school year. And the Commissioner did not
provide the Intervenor School Districts prior to or even during the 2022–2023 school
procedures that the TEA is actually employing to calculate district and campus
12. The planned publication of A–F district and campus ratings for the
Commissioner Morath did not timely adopt and on methods the Commissioner did
not timely explain is an ultra vires act by the Commissioner that exceeds his
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authority under the Texas Education Code. He must be enjoined from engaging in
III.
PARTIES
schools, 7 middle schools, 4 high schools, and 2 alternative schools. Pflugerville ISD
exists under and by virtue of Article VII of the Texas Constitution and the Texas
Education Code as passed and amended by the Texas Legislature. Pflugerville ISD
maintains its principal office in Travis County, Texas and can be contacted through
district that serves more than 118,000 students across 95 campuses, including 58
facilities. Cypress-Fairbanks ISD exists under and by virtue of Article VII of the
Texas Constitution and the Texas Education Code as passed and amended by the
schools, 3 middle schools, 3 high schools, and 8 alternative and other schools. Waco
ISD exists under and by virtue of Article VII of the Texas Constitution and the Texas
Education Code as passed and amended by the Texas Legislature. Waco ISD
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maintains its principal office in McLennan County, Texas and can be contacted
schools, 3 middle schools, 2 high schools, and 1 other campus. Temple ISD exists
under and by virtue of Article VII of the Texas Constitution and the Texas Education
Code as passed and amended by the Texas Legislature. Temple ISD maintains its
principal office in Bell County, Texas and can be contacted through the undersigned
counsel.
that serves more than 35,000 students across 43 campuses, including 25 elementary
schools, 7 traditional middle schools, 4 traditional high schools, and 7 other schools.
Spring Branch ISD exists under and by virtue of Article VII of the Texas Constitution
and the Texas Education Code as passed and amended by the Texas Legislature.
Spring Branch ISD maintains its principal office in Harris County, Texas and can be
middle school, a high school, and two other campuses. Academy ISD exists under and
by virtue of Article VII of the Texas Constitution and the Texas Education Code as
passed and amended by the Texas Legislature. Academy ISD maintains its principal
office in Bell County, Texas and can be contacted through the undersigned counsel.
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19. Intervenor Plaintiff Ector County ISD is an independent school district
middle schools, 5 high schools, and 5 other campuses. Ector County ISD exists under
and by virtue of Article VII of the Texas Constitution and the Texas Education Code
as passed and amended by the Texas Legislature. Ector County ISD maintains its
principal office in Ector County, Texas and can be contacted through the undersigned
counsel.
elementary school, an intermediate school, a junior high school, and a high school. La
Vega ISD exists under and by virtue of Article VII of the Texas Constitution and the
Texas Education Code as passed and amended by the Texas Legislature. Ector
County ISD maintains its principal office in McLennan County, Texas and can be
Educator for the State of Texas, may be served with process at 1701 North Congress
IV.
JURISDICTION AND VENUE
22. This Court has original jurisdiction to adjudicate the Intervenor School
Districts’ claims or causes of action under the Texas Uniform Declaratory Judgments
Act, section 37.001, et seq., of the Texas Civil Practice and Remedies Code (“UDJA”).
11
23. Venue is proper in the district court of Travis County because Defendant
V.
STANDARD FOR INTERVENTION
24. “Any party may intervene by filing a pleading, subject to being stricken
out by the court for sufficient cause on the motion of any party.” TEX. R. CIV. P. 60.
in the suit as a matter of right.” In re Union Carbide Corp., 273 S.W.3d 152, 154 (Tex.
2008). “A party has a justiciable interest in a lawsuit, and thus a right to intervene,
when his interests will be affected by the litigation.” Jabri v. Alsayyed, 145 S.W.3d
660, 672 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (citing Law Offices of Windle
Turley v. Ghiasinejad, 109 S.W.3d 68, 71 (Tex. App.—Fort Worth 2003, no pet.)). “The
interest asserted by the intervenor may be legal or equitable.” Guar. Fed. Sav. Bank
25. There is no pre-judgment deadline for intervention. Tex. Mut. Ins. Co. v.
Ledbetter, 251 S.W.3d 31, 36 (Tex. 2008) (citing TEX. R. CIV. P. 60); Citizens State
Bank of Sealy v. Caney Invs., 746 S.W.2d 477, 478 (Tex. 1988). A petition in
intervention may be untimely only if it is “filed after judgment,” Texas v. Naylor, 466
S.W3d 783, 788 (Tex. 2015) (quoting First Alief Bank v. White, 682 S.W.2d 251, 252
12
26. The Intervenor School Districts have an interest in challenging
for the 2022–2023 school year in contravention of the requirements of Chapter 39,
27. The Intervenor School Districts seek non-monetary relief through this
VI.
BACKGROUND
quality education and provide all students with the opportunity to meet and exceed
Texas standards. The Intervenor School Districts are committed to providing rigorous
and challenging curricula that prepare students for college and career success. The
Intervenor School Districts employ teams of highly qualified and dedicated teachers
and staff who are committed to helping students achieve their full potential. Teachers
and staff on the Intervenor School Districts’ campuses are working daily to provide
children with the finest education and innovative opportunities for students to learn.
success. It ensures they possess essential knowledge and skills required for higher
education, employment, and active citizenship. The Intervenor School Districts do not
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shy away from high standards for student and school performance and welcome
30. When standards for performance are established, the Intervenor School
Districts review, adopt, and respond to those standards. The Intervenor School
Districts plan their budgets and allocate staff and academic and support resources to
reflect applicable standards and develop strategies to meet and exceed them.
students, provide great academic opportunities, and meet all applicable performance
standards, they also recognize that their students recently experienced significant
and widespread learning loss during the COVID-19 pandemic. Indeed, the TEA
recognizes the tremendous impact of the pandemic on learning and found that the
statewide.5 Commissioner Morath has stated that Texas lost at least a decade of
STAAR results showed a decrease in Texas students’ academic performance, with the
5 See Texas Education Agency, Impacts of COVID-19 and Accountability Updates for 2022 and
Beyond (November 2021), at https://tea.texas.gov/texas-schools/accountability/academic-
accountability/performance-reporting/2021-tac-accountability-presentation-final.pdf (last visited Aug.
31, 2023).
6 Lynnanne Nguyen, Texas students lost decade’s worth of learning progress during pandemic,
TEA says, FOX4 KDFW (Oct. 13, 2021), at https://www.fox4news.com/news/texas-students-lost-
decades-worth-of-learning-progress-during-pandemic-tea-says (last visited Aug. 31, 2023).
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largest decline in math.7 And economically disadvantaged students experienced much
greater learning loss in both reading and math than non-economically disadvantaged
students.8 Since the height of the COVID-19 pandemic and the return to in-person
learning, the Intervenor School Districts have worked to respond to that learning
loss.
schools. In 2017, through House Bill 22 that was adopted in the Regular Session of
the 85th Texas Legislature, the State substantially restructured its accountability
Progress, and Closing the Gaps.9 House Bill 22 required the Commissioner to adopt
for performance in each domain, beginning in August 2018, and for campuses to
7 See Texas Education Agency, Impacts of COVID-19 and Accountability Updates for 2022 and
Beyond (November 2021), at https://tea.texas.gov/texas-schools/accountability/academic-
accountability/performance-reporting/2021-tac-accountability-presentation-final.pdf (last visited Aug.
31, 2023).
8 Id.
9 See Act of 2017, 85th Leg., R.S. ch. 807 (H.B. 22); Texas Education Agency, The
Implementation of House Bill 22, at https://tea.texas.gov/texas-schools/accountability/academic-
accountability/performance-reporting/a-foverviewfnlv03ar.pdf (last visited Aug. 31, 2023).
10 See id.
15
33. In addition to specifying the domains for the A–F Accountability System,
34. The Legislature prohibited the Commissioner from issuing district and
campus ratings using a “bell curve.” Rather, under the A–F Accountability System,
there must be the mathematical possibility that all districts and campuses receive
the highest possible rating of A.11 The TEA recognizes that this legislative mandate
establishes the objective that the A–F Accountability System is “fair for schools.”12
standards for the A–F Accountability System at any time during a school year before
the evaluation of a school district or campus takes place.13 The evaluation process for
purposes of the A–F Accountability System is the TEA’s gathering of district and
campus performance data relevant to the standards and indicators established by the
Legislature. Accordingly, the Commissioner must have all standards and indicators
in place before starting that data collection process and may not issue district or
16
Having a clear understanding of these expectations ensures that the evaluation
establishment of standards and indicators for the A–F Accountability System also
and staff. When the Intervenor School Districts know and understand the standards
and indicators applicable under the A–F Accountability System, they can work on
specific areas that align with the standards and indicators, leading to more effective
teaching practices. Knowledge of the standards and indicators also informs the
37. Moreover, the Legislature requires the Commissioner each school year
explains the accountability performance measures, methods, and procedures that will
be applied for that school year in assigning each school district and campus a
performance rating.”14 Accordingly, the Commissioner must not only adopt indicators
and standards that will govern the A–F Accountability System’s ratings prior to an
evaluation for each school year, but must also distribute to all school districts
38. When the Intervenor School Districts are aware of the standards and
indicators being assessed, they can actively engage in discussions about educational
quality and improvement. Knowing the applicable standards and indicators that are
17
part of the A–F Accountability System before an evaluation ensures that the process
performance and increasing the likelihood of graduation from high school and college
attendance and graduation.15 According to the TEA, the A–F Accountability System
helps accomplish this goal by putting pressure on schools to avoid a low performance
rating.16 The Intervenor School Districts can only respond to the Commissioner’s
the Intervenor School Districts know in advance what standards will apply to them.
40. The Legislature requires the Commissioner to make school district and
41. Advance knowledge of the standards and indicators applicable under the
A–F Accountability System also helps facilitate the system’s goal of providing
states that “clear performance information helps students,” and that the A–F
15 See Texas Education Agency, Supplemental A–F Refresh Info (May 2023), at
https://tea.texas.gov/texas-schools/accountability/academic-accountability/performance-
reporting/supplemental-a-f-refresh-slides.pdf (last visited Aug. 31, 2023).
16 See id.
17 TEX. EDUC. CODE § 39.054(a-3).
18
Accountability System helps “educators, parents, business leaders, and community
members [have] easy access to information regarding how schools and districts are
allows the Intervenor School Districts to use the results to monitor progress, identify
areas for improvement, and make informed decisions. Such data-driven decision
2023, while the State takes pride in setting high standards for its schools, “our
accountability system must also be fair with clear and transparent expectations set
for educators and students so that they have a realistic opportunity to strive to meet
these goals.”19
House Bill 22 through 2022, the A–F Accountability System employed a common
structure and similar indicators and standards for each domain that is a component
of the system. In 2021, however, the TEA announced that there would be an
“accountability system reset” implemented in the 2022–2023 school year.20 The TEA
promised that it “will complete reset development” in May 2022, at which time “[t]he
18 See Texas Education Agency, Supplemental A–F Refresh Info (May 2023), at
https://tea.texas.gov/texas-schools/accountability/academic-accountability/performance-
reporting/supplemental-a-f-refresh-slides.pdf (last visited Aug. 31, 2023).
19 State Representative Gina Hinojosa, Letter to Commissioner Morath (May 26, 2023), at
https://twitter.com/GinaForAustin/status/1663947551626723328/ (last visited Aug. 31, 2023).
20 See Texas Education Agency, Impacts of COVID-19 and Accountability Updates for 2022 and
Beyond (November 2021), at https://tea.texas.gov/texas-schools/accountability/academic-
accountability/performance-reporting/2021-tac-accountability-presentation-final.pdf (last visited Aug.
31, 2023).
19
accountability system reset framework will be released,” in advance of the
implementation of the “reset” for the 2022–2023 school year.21 The TEA also
announced that “[t]argets and scaling updates will be released in fall 2022 after
43. Under the TEA’s stated plans and timeline, by May 2022 the Intervenor
School Districts would have received information about the “reset” of the A–F
that would be applied, in advance of the reset’s first application during the 2022–
2023 school year. Had the TEA followed through on that promise, this lawsuit would
never have been filed. Indeed, had the TEA provided the Intervenor School Districts
the promised information about the changes to the A–F Accountability System, the
Intervenor School Districts would have been able to analyze the system’s standards
and indicators, recognize the impact of any changes to the evaluation process, and
44. Contrary to its published plans and, critically, to state law that
establishes the A–F Accountability System, in May 2022 the TEA did not release
detailed information about the system’s “reset” that accurately reflects the evaluation
process that the Commissioner is now employing to assign school districts and
campuses performance ratings for the 2022–2023 school year. For example, the TEA
21 Id.
22 Id.
20
did not provide the Intervenor School Districts with the “accountability system reset
accountability ratings for the 2022–2023 school year, or information concerning new
45. In June 2022, prior to the start of the 2022–2023 school year, the TEA
and procedures applicable to the 2022–2023 school year under the A–F Accountability
System.23 In August 2022, the TEA also published the “2022 Accountability Manual”
procedures to be used for the then recently-completed 2021–2022 school year, could
procedures to be used for the then upcoming 2022–2023 school year.24 Both
measures, methods, and procedures that the TEA is, in fact, utilizing in calculating
accountability ratings for the Intervenor School Districts and their campuses for the
2022–2023 school year. The materials published by the TEA in June and August 2022
predate and do not reflect the “accountability system reset.” Since the publication of
23 See Texas Education Agency, Preliminary 2023 Accountability Refresh Overview (June 2022),
at https://tea.texas.gov/texas-schools/accountability/academic-accountability/performance-
reporting/preliminary-2023-academic-accountability-system-one-pager.pdf (last visited Sept. 5, 2023).
24 See Texas Education Agency, 2022 Accountability Manual (Aug. 5, 2022), at
https://tea.texas.gov/texas-schools/accountability/academic-accountability/performance-
reporting/2022-accountability-manual (last visited Aug. 31, 2023); see also 47 Tex. Reg. 4669 (Aug. 5,
2022), codified in 19 TEX. ADMIN. CODE § 97.1001.
21
both documents, the TEA has substantially modified the system’s components, such
that neither the Preliminary 2023 Accountability Refresh Overview nor the 2022
the TEA intends to release in September 2023 for the 2022–2023 school year.
Consequently, the Commissioner did not inform the Intervenor School Districts in
advance about the accountability measures, methods, and procedures actually being
applied to them and their schools for the 2022–2023 school year prior to the start of
that school year and, indeed, never released that information in final form during
the 2022–2023 school year, without providing the Intervenor School Districts
information about the revisions in advance, during the same school year the TEA also
“that it might even be worth calling it a new name.”26 The changes to the STAAR
25 The Intervenor School Districts understand that the TEA is in the process of releasing the
final 2023 Accountability Manual in September 2023, on the date of the filing of this Petition in
Intervention. The publication of the 2023 Accountability Manual long after the end of the 2022–2023
school year and well into the 2023–2024 school year is irrelevant to Commissioner Morath’s failure to
comply with the requirements of the Texas Education Code relating to the A–F Accountability System
prior to and during the 2022–2023 school year.
26 See Commissioner Morath testimony to the Texas House Public Education Committee (Feb.
28, 2023), at https://tlchouse.granicus.com/MediaPlayer.php?view_id=78&clip_id=23878 (last visited
Aug. 31, 2023).
22
part of the Grades 3–8 STAAR Reading Language Arts test; introduction of new non-
multiple choice question types; increases in scale scores; and cut score changes.
47. Because of the significance of the redesign of the STAAR tests, the TEA
of improvement or academic growth a student has made from year to year—for the
2022–2023 school year.27 Put simply, even the TEA recognizes that the “STAAR” test
48. STAAR test results are a critical component of the A–F Accountability
System. Elementary and middle school campus assessments are based entirely on the
STAAR test scores of students on those campuses. For high schools, STAAR test
scores account for 40% of the A–F Accountability System’s Student Achievement
domain and inform the results under the School Progress and Closing the Gaps
domains.28
49. The TEA has never changed the state’s district and campus
50. While student test results have long been a part of statewide
accountability metrics, in past years when the State of Texas implemented major
changes to student testing systems, the TEA collected baseline testing data in
27 See Texas Education Agency, STAAR Progress Measures for 2023 (July 2022), at
https://tea.texas.gov/texas-schools/accountability/academic-accountability/performance-
reporting/2023-staar-progress-measures.pdf (last visited Aug. 31, 2023).
28 See Texas Education Agency, The Implementation of House Bill 22, at
https://tea.texas.gov/texas-schools/accountability/academic-accountability/performance-reporting/a-
foverviewfnlv03ar.pdf (last visited Aug. 31, 2023); Texas Education Agency, Supplemental A–F
Refresh Info (May 2023), at https://tea.texas.gov/texas-schools/accountability/academic-
accountability/performance-reporting/supplemental-a-f-refresh-slides.pdf (last visited Aug. 31, 2023).
23
benchmark years and issued “hold harmless” ratings to school districts and campuses
before applying the results of new student testing methods as part of district and
campus accountability metrics. This was the case in 2003, when the State phased out
the Texas Assessment of Academic Skills (“TAAS”) and replaced it with the Texas
Assessment of Knowledge and Skills (“TAKS”) testing system. That was also the case
in 2012, when the STAAR assessments replaced the TAKS. Baseline data over a
benchmark year is not being collected, however, as part of the STAAR redesign
effective in the 2022–2023 school year. Further, the Intervenor School Districts and
their campuses will not receive “hold harmless” accountability ratings for the 2022–
2023 school year, the first academic year when the Intervenor School Districts were
required to administer the redesigned STAAR tests. The removal of a transition year
for the implementation of the new STAAR test and accountability standards is
unprecedented.
State’s testing and accountability ratings systems during the 2022–2023 school year
to provide the Intervenor School Districts information about the criteria upon which
the A–F ratings for the 2022–2023 school year are based.
C. The Intervenor School Districts did not receive notice about the
changes to the A–F Accountability System before the start of the 2022–
2023 school year.
52. Before the 2022–2023 school year began, the TEA did not inform the
Intervenor School Districts about the standards and indicators upon which
24
performance ratings for the districts and their campuses are being based under the
Accountability System during the 2022–2023 school year in a manner such that the
accountability ratings expected to be issued in Fall 2023 for the 2022–2023 school
year will be based on a different set of rules than previous A–F ratings, making it
impossible to compare the ratings issued by the TEA in 2022 and 2023 side by side.
ratings “cannot be easily compared with last year’s ratings . . . [and] they are no
54. The Commissioner did not release to the Intervenor School Districts
procedures being applied for the 2022–2023 school year before the 2022–2023 school
year began or, indeed, over the course of that school year.
55. The TEA did not adopt or publish the final rules, indicators, and
standards being applied to develop the district and campus accountability ratings for
the 2022–2023 school year during that school year. Rather, on May 19, 2023, as the
Intervenor School Districts were finishing the academic year, the TEA only released
29 See Texas Education Agency, Commissioner Video Message to School Boards (May 31, 2023),
at https://www.youtube.com/watch?v=zbmp0VKzQ1Y (last visited Aug. 31, 2023).
30 See Texas Education Agency, Preliminary 2023 Accountability Manual (May 19, 2023), at
https://tea.texas.gov/texas-schools/accountability/academic-accountability/performance-
reporting/2023-accountability-manual (last visited Aug. 31, 2023).
25
56. The Preliminary 2023 Accountability Manual revealed to the Intervenor
School Districts the significance of potential changes to the CCMR indicator within
the A–F Accountability System. Specifically, according to the proposed Manual, the
Commissioner is raising the cut score necessary for a high school to receive an “A” on
the CCMR domain by almost 47%, from a 60 to an 88.31 That metric will be applied
retroactively to the CCMR data for the Class of 2022. The Intervenor School Districts
did not receive notice of this standard prior to the start of the 2022–2023 school year.
of students who graduated from the Intervenor School Districts in May 2022, even
though the Intervenor School Districts have not had any influence over those former
students for more than one year and were not informed of these expectations until
after they graduated. In turn, any more recent improvements in the Intervenor
School Districts’ CCMR data for the 2022–2023 school year will not be reflected in
57. As to the Academic Growth metric under the School Progress domain of
through use of a transition table system and new cut scores applicable to STAAR test
results. The Preliminary 2023 Accountability Manual stated that a transition table
mechanism, which would award students 0, 0.5, or 1 point for growth in STAAR test
26
performance, would be used to calculate results for the Academic Growth metric.32
Even the Preliminary 2023 Accountability Manual, however, did not provide the
Intervenor School Districts information how to convert raw STAAR test scale scores
into the transition table format, to show how students needed to perform on STAAR
58. The Commissioner did not make information about how to convert the
raw STAAR test scale scores for purposes of the transition table mechanism until
August 2023, months after the 2022–2023 school year ended.33 In August 2023, the
Intervenor School Districts learned for the first time that under the “refreshed” A–F
Accountability System being applied for the 2022–2023 school year, students must
move up between STAAR performance levels (Did Not Meet, Approaches, Meets,
absolute scale score improvements by students were sufficient to show growth for
59. Commissioner Morath has changed the growth measure from focusing
student starts in a school year. For a student who starts close to the low end of a
performance level, that student could make significant progress during a year, but
32 See Texas Education Agency, Preliminary 2023 Accountability Manual, Chapter 3—School
Progress Domain (May 19, 2023), at https://tea.texas.gov/texas-schools/accountability/academic-
accountability/performance-reporting/chapter-3-2023-school-progress-domain.pdf (last visited Aug.
31, 2023).
33 See Texas Education Agency, 2022–2023 STAAR Raw Score Conversion Tables (Aug. 16, 2023),
at https://tea.texas.gov/texas-schools/accountability/academic-accountability/performance-
reporting/2022-2023-staar-raw-score-conversion-tables (last visited Aug. 31, 2023).
27
not make it all the way to the next performance level. Previously, the accountability
system would have recognized the significant progress the student made. Under the
comparison, another student who starts close to the high end of a performance level
could make much less progress during the school year, but still make it to the next
performance level. This student’s progress, even though less than the first student’s
progress of students who start close to the low end of a performance level is
unreasonable and arbitrary, and potentially forces school districts and campuses to
focus resources and effort on students who are closer to the high end of a performance
level.
60. The Intervenor School Districts did not receive notice of this new
an overwhelming impact on elementary and middle schools, whose A–F scores are
the new growth standards and STAAR test data the Commissioner has released to
date, the Intervenor School Districts anticipate that districts and schools that serve
the most economically disadvantaged populations will likely see the highest declines
28
in growth metrics and, thus, declines in overall A–F ratings. This will occur even
63. As of the date of this Petition, the Commissioner has not published the
2022–2023 Technical Digest and the 2023 STAAR Statewide Frequency Distributions
with information needed to analyze the results of the 2022–2023 STAAR assessments
64. Before the end of the 2022–2023 school year, Commissioner Morath did
not provide the Intervenor School Districts a document in a simple, accessible format
that reflects and explains the accountability performance measures, methods, and
procedures the Commissioner is actually applying for the 2022–2023 school year in
D. The lack of advance notice of the standards applicable for the 2022–
2023 school year under the A–F Accountability System has harmed the
Intervenor School Districts.
65. Because Commissioner Morath did not adopt indicators and standards
for the A–F Accountability System before evaluating districts and campuses for the
2022–2023 school year and did not provide school districts an explanation of the
applied for that school year prior to the start of that school year, in violation of state
law, the Intervenor School Districts had no advance notice of the criteria and methods
66. The Intervenor School Districts did not know the expectations set for
them by the Commissioner before the 2022–2023 school year started. They, therefore,
could not review the Commissioner’s new accountability measures, determine how
29
those measures might impact the Intervenor School Districts’ operations, and allocate
resources in a manner required to meet state standards. For example, had the
Intervenor School Districts known prior to the start of the 2022–2023 school year how
the Commissioner would change the method for calculating scores for the growth
metric under the Student Progress domain, the Intervenor School Districts could
have targeted their resources, such as means of accelerated instruction and staff time
and allocations, to help campuses reach the Commissioner’s new growth goals. The
Intervenor School Districts could have also modified instructional plans and deployed
performance targets. The Intervenor School Districts, however, could not respond to
changes were neither implemented before the evaluation and data collection process
for the 2022–2023 school year began nor communicated to the Intervenor School
Districts before the start of that school year, in violation of state law.
67. Because of the lack of advance notice of the A–F Accountability System’s
standards for the 2022–2023 school year, the Intervenor School Districts could not
work to meet and exceed those standards. That contradicts Commissioner Morath’s
stated goal that the A–F Accountability System create a long-term benefit for
34 See Texas Education Agency, Supplemental A–F Refresh Info (May 2023), at
https://tea.texas.gov/texas-schools/accountability/academic-accountability/performance-
reporting/supplemental-a-f-refresh-slides.pdf (last visited Aug. 31, 2023).
30
establishing a standard and giving the Intervenor School Districts an opportunity to
satisfy it, the Commissioner moved the goalposts after the game was already over.
the system was really going to work to the Intervenor School Districts in advance of
the 2022–2023 school year prevented them from taking action to improve
performance in accordance with the new standards. How can a school district or
campus work to improve performance to meet standards that it does not know exist?
69. Rather than receiving ratings that reflect their students’ actual
performance and their employees’ actual efforts, the Intervenor School Districts are
likely to see artificially lower A–F accountability scores for the 2022–2023 school
year, even if they actually improved performance in that school year. A school or
district could achieve the exact same level of success as in year past or show
improvement but receive a much lower letter grade from the Commissioner. The
standards. They, however, want to recognize the success of their students and
families, as well as the hard work of their staff and teachers. Release of accountability
ratings for the 2022–2023 school year based on undisclosed standards that the
Intervenor School Districts could not have addressed during that school year will
confuse their communities and will not accurately reflect “how schools and districts
35 See Texas Education Agency, Supplemental A–F Refresh Info (May 2023), at
https://tea.texas.gov/texas-schools/accountability/academic-accountability/performance-
reporting/supplemental-a-f-refresh-slides.pdf (last visited Aug. 31, 2023).
31
70. In addition, receipt of an accountability rating of D or F under the A–F
Accountability System can put a campus or district under the threat of campus
ratings matter each year. Because the Commissioner did not provide the Intervenor
School Districts an understanding of the expectations that underlie the A–F ratings
for the 2022–2023 school year, it is fundamentally unfair to apply those undisclosed
VII.
RELEVANT LAW & ARGUMENT
71. The Texas Constitution provides that “it shall be the duty of the
Legislature of the State to establish and make suitable provision for the support and
maintenance of an efficient system of public free schools.” TEX. CONST. art. VII, § 1.
The Texas Legislature enacted the Texas Education Code, which generally applies to
all educational institutions supported in whole or in part by state tax funds. TEX.
rules to evaluate school district and campus performance and assign each district and
§ 39.054(a). The Commissioner is also required to assign each district and campus a
32
School Progress, and Closing the Gaps domains under the A–F Accountability
each school district and campus no later than August 15 of each calendar year. TEX.
74. State law allows the Commissioner discretion to “adopt indicators and
standards” as the rubric for the district and campus performance ratings at any time
“during a school year.” TEX. EDUC. CODE § 39.0541. The Commissioner must,
however, adopt those indicators and standards before the evaluation of a school
district or campus, which for the A–F Accountability System consists of data
75. Each school year, the Commissioner must provide each school district a
measures, methods, and procedures that are actually being applied for that school
year in assigning each school district and campus a performance rating. TEX. EDUC.
CODE § 39.0542.
school year, the Commissioner has ignored and violated the Education Code’s
requirements for the evaluation of the Intervenor School Districts and their campuses
33
77. The evaluation of the Intervenor School Districts and their campuses
mandated under section 39.0541 of the Education Code must take place after the
78. The Commissioner failed to adopt the “indicators and standards” for
district and campus evaluations under the A–F Accountability System for the 2022–
2023 school year during that school year, in violation of section 39.0541 of the
Education Code. The 2023 Accountability Manual contains the “indicators and
standards” used to calculate the A–F academic accountability ratings for the 2022–
2023 school year. The Commissioner did not publish the final 2023 Accountability
Manual during the 2022–2023 school year, leaving the complete indicators and
standards governing the A–F Accountability System for the 2022–2023 school year
standards and indicators being used as part of the district and campus evaluation
process for the 2022–2023 school year have changed as part of a “refresh” that
occurred during the 2022–2023 school year and still has not been completed. For
changing the standards governing the CCMR and graduation rate cut scores and the
STAAR test scale scores under the Student Achievement domain, modifying the
procedure for calculating student growth element of the School Progress domain,
adopting new indicators and standards for the Closing the Gaps domain, and
changing the method for computing a school district’s performance rating by using a
34
weighted average of campus ratings. The Commissioner, however, did not finalize
any of these changes to the standards and indicators for the A–F Accountability
80. Once the 2022–2023 school year ended, the Commissioner no longer had
statutory authority to adopt “indicators and standards” for that school year. The
2022–2023 school year is now over, and all districts have started the 2023–2024
school year. Therefore, the Commissioner cannot now adopt “indicators and
standards” for district and campus evaluations for the 2022–2023 school year.
did not provide the Intervenor School Districts a document in a simple, accessible
format that reflects the drastic changes to the accountability performance measures,
methods, and procedures that are apparently being applied for the 2022–2023 school
year in assigning district and campus performance ratings. Under the section
applicable for the 2022–2023 school year during that school year. Yet Commissioner
Morath did not provide the Intervenor School Districts information regarding the
changes to the A–F Accountability System and the performance measures, methods,
and procedures actually applicable to accountability rating for the 2022–2023 school
Morath also failed to publish districts’ and campuses’ accountability ratings for the
35
2022–2023 school year by August 15, 2023. The evaluation process mandated under
state law remains incomplete, long after the 2022–2023 school year ended.
83. During the 2023 Regular Session, the 88th Legislature considered a
proposal that would have given Commissioner Morath a reprieve from the Education
Code’s strict timeline for completing the accountability evaluation process. If adopted,
a proposed House Committee Substitute to Senate Bill 8 would have permitted the
that bill been adopted, state law would allow Commissioner Morath to complete the
district and campus accountability evaluation process after the conclusion of the
2022–2023 school year and release district and campus performance ratings for that
84. The 88th Legislature, however, did not modify any requirements of
Chapter 39, Subchapter C of the Education Code that govern the A–F Accountability
System. Commissioner Morath is violating state law that establishes the evaluation
system and appears to be acting as if those requirements have changed when, in fact,
VIII.
CAUSES OF ACTION
36
A. Declaratory judgment that school district and campus accountability
ratings for the 2022–2023 school year must be based on indicators and
standards adopted during that school year and before the evaluation
of a school district or campus.
86. The Intervenor School Districts seek declaratory relief under the UDJA,
set forth in Texas Civil Practice and Remedies Code Chapter 37, to require that
this ultra vires exception, a suit must not complain of a government officer’s exercise
of discretion, but rather must allege, and ultimately prove, that the officer acted
without legal authority or failed to perform a purely ministerial act.” City of El Paso
88. Because the Texas Education Code does not authorize Commissioner
Morath to adopt indicators and standards for the A–F Accountability System after
the end of a school year, or after the evaluation of a school district or campus,
ratings to the Intervenor School Districts and their campuses for the 2022–2023
school year based on indicators and standards that Commissioner Morath did not
89. Commissioner Morath did not adopt indicators and standards actually
applicable to school district and campus A–F performance ratings for the 2022–2023
school year before the 2022–2023 school year ended. In August 2022, Commissioner
Morath issued the 2022 Accountability Manual that describes indicators and
37
standards which do not apply to the performance ratings under the A–F
90. Commissioner Morath did not adopt indicators and standards applicable
to school district and campus A–F performance ratings for the 2022–2023 school year
in final form before collecting district and campus performance data upon which the
Morath’s actions in failing to adopt the indicators and standards applicable to the
district and campus performance ratings for the 2022–2023 school year during that
school year and before the evaluation of districts and campuses for the 2022–2023
school year are ultra vires and exceed the Commissioner’s authority under the Texas
Education Code.
F Accountability System for the 2022–2023 school year are without legal authority,
the Commissioner may not issue school district and campus accountability ratings
for the 2022–2023 school year based on indicators and standards that were not
adopted during that school year and before the evaluation of districts and campuses.
38
B. Declaratory judgment that school districts must be provided a
document explaining the accountability performance measures,
methods, and procedures that actually apply in assigning district and
campus performance ratings for a school year prior to the start of that
school year.
93. The Intervenor School Districts seek declaratory relief under the UDJA,
set forth in Texas Civil Practice and Remedies Code Chapter 37, to require that
94. Because the Texas Education Code does not authorize Commissioner
performance measures, methods, and procedures that will be applied for a school year
Morath acted without legal authority by failing to provide the Intervenor School
Districts, prior to the start of the 2022–2023 school year, a document in a simple,
accessible format that fully and accurately describes the accountability performance
each school district and campus a performance rating for the 2022–2023 school year.
95. During the 2022–2023 school year, Commissioner Morath did not
provide the Intervenor School Districts a document that explains the accountability
assign districts and campuses performance ratings for that school year. Based on
information and belief, the information the Commissioner provided the Intervenor
F Accountability System does not reflect the drastic changes the Commissioner made
39
to standards and procedures being used to calculate the Intervenor School Districts’
and their campuses’ A–F ratings for the 2022–2023 school year.
Morath’s failure to issue, prior to the start of the 2022–2023 school year, a document
methods, and procedures that are being actually applied for that school year in
assigning each school district and campus a performance rating is ultra vires.
that because Commissioner Morath did not timely provide them a written
that are actually being applied for the 2022–2023 school year in assigning each school
district and campus a performance rating, Commissioner Morath may not issue
school district and campus accountability ratings for the 2022–2023 school year.
IX.
APPLICATION FOR TEMPORARY INJUNCTION AND PERMANENT INJUNCTION
permanent injunction to stop the Governor’s ultra vires and unlawful administration
of the A–F Accountability System for the 2022–2023 school year. TEX. CIV. PRAC. &
99. The purpose of a temporary injunction “is to preserve the status quo of
the litigation’s subject matter pending a trial on the merits.” Butnaru v. Ford Motor
Co., 84 S.W.3d 198, 204 (Tex. 2002). The status quo is the “last, actual, peaceable,
40
non-contested status that preceded the controversy.” In re Newton, 146 S.W.3d 648,
651 (Tex. 2004) (citation omitted). The applicant for a temporary injunction must
plead and prove the following elements: “(1) a cause of action against the defendant;
(2) a probable right to the relief sought; and (3) a probable, imminent, and irreparable
injury in the interim.” Butnaru, 84 S.W.3d at 204. To establish a probable right to the
relief, the applicant must present evidence to sustain the pleaded cause of action.
EMS USA, Inc. v. Shary, 309 S.W.3d 653, 657 (Tex. App.—Houston [14th Dist.] 2010,
no pet.); Vaughn v. Intrepid Directional Drilling Specialists, Ltd., 288 S.W.3d 931,
936 (Tex. App.—Eastland 2009, no pet.). “An injury is irreparable if the injured party
Brown, 373 S.W.3d 204, 208 (Tex. App.—Dallas 2012, pet. denied). “[T]he legal issues
before the trial court at a temporary injunction hearing are whether the applicant
showed a probability of success and irreparable injury.” Tom James of Dal., Inc. v.
Cobb, 109 S.W.3d 877, 882 (Tex. App.—Dallas 2003, no pet.); see also Brown, 373
S.W.3d at 208.
100. Here, the “last, actual, peaceable non-contested status” before the
instant controversy was prior to the start of the 2022–2023 school year, when
chose not to apply to the accountability evaluation process for the 2022–2023 school
year.
41
101. Commissioner Morath has now decided that he no longer wishes to
comply with the requirements of the Texas Education Code that govern the
development and issuance of A–F performance ratings for school districts and
campuses. Commissioner Morath did not adopt final indicators and standards
applicable to school district and campus evaluations under the A–F Accountability
System for the 2022–2023 school year before that school year ended, or prior to
collecting performance data for the evaluation process. He also did not provide the
measures, methods, and procedures that the Commissioner is actually applying for
that school year in assigning each school district and campus a performance rating
before the start of the 2022–2023 school year. Thus, to return the matter to the status
quo, the Court should enjoin the release of A–F accountability ratings for school
districts and campuses that are being calculated in contravention to governing law.
102. The Intervenor School Districts are entitled to injunctive relief because
they have demonstrated a probable right to relief on their cause of action for
declaratory judgment. As set forth above, and incorporated herein by reference, the
Intervenor School Districts can demonstrate that the Texas Education Code does not
provide Commissioner Morath with authority to adopt indicators and standards for
the performance ratings under the A–F Accountability System after the end of a
school year, or after the evaluation of a school district or campus. The Intervenor
School Districts can also demonstrate that the Texas Education Code does not
42
start of a school year concerning the accountability performance measures, methods,
and procedures that the Commissioner will apply for that school year in assigning
each school district and campus a performance rating. The Commissioner’s attempts
to ignore these mandates are statutorily impermissible and constitute ultra vires
acts, which evidence the Intervenor School Districts’ probable right to relief.
requirements for evaluating the performance of school districts and campuses, the
intends to spring A–F performance ratings for the 2022–2023 school year on the
Intervenor School Districts, their students, teachers, staff, and communities after
substantially changing the indicators and standards that control the ratings, without
was to be conducted. The ratings will not reflect the Intervenor School Districts’ real
performance during the 2022–2023 school year, will mislead community members,
may adversely impact enrollment and the perception of the Intervenor School
Districts’ actual academic expertise, and may expose districts and campuses to the
threat of closure or state takeover. These injuries are irreparable, and there is no
hearing on their application for temporary injunctive relief. Following such hearing,
the Intervenor School Districts request that the Court enter an order enjoining
Commissioner Morath from assigning districts and campuses performance ratings for
43
the 2022–2023 school year that are based on (a) indicators and standards the
Commissioner did not adopt during that school year and before collecting
performance data for district and campus evaluations, and (b) accountability
performance measures, methods, and procedures that were not explained to school
105. The Intervenor School Districts also seek permanent injunctive relief
lawsuit.
PRAYER
Independent School District, and La Vega Independent School District pray that this
Court:
44
D. Award the Intervenor School Districts such other and further relief, both
general and special, at law or in equity, to which they may show
themselves to be justly entitled.
45
Respectfully submitted,
CHRISTOPHER B. GILBERT
[email protected]
State Bar No. 00787535
CARLOS G. LOPEZ
[email protected]
State Bar No. 12562953
OLEG V. NUDELMAN
[email protected]
State Bar No. 24099473
46
CERTIFICATE OF SERVICE
The undersigned certifies that on September 8, 2023, a true and correct copy
of this document is being served upon all parties in accordance with the Texas Rules
of Civil Procedure:
47