Innovation Districts Resource Page

A Texas law passed in 2015 allows certain acceptably-rated school districts to become Districts of Innovation (DOI) and claim exemptions from many state laws that affect public education. Innovation districts are allowed to operate in a similar manner as a charter school. ATPE has compiled this resource page to help educators and parents learn how the law could affect them and how they can share their input with local school boards that are considering adopting innovation plans.

The concept of a DOI was originally filed as standalone legislation, SB 1241 by Senate Education Committee Chairman Larry Taylor (R - Friendswood), to allow for the establishment of “innovation zones” for schools seeking to improve educational outcomes through community or higher education partnerships and needing waivers of some state laws in order to pursue innovative academic strategies. The bill was filed on March 11, 2015, two days before the House and Senate bill filing deadline. The bill was heard by the Senate Education Committee on April 7. As originally filed, the bill contemplated flexibility for innovative campuses and groups of campuses, as opposed to whole school districts. Also, the original bill as filed provided that the commissioner of education would have to grant approval for any innovation zone proposal before it could proceed.

The bill, largely unchanged, was heard by the House Public Education Committee on May 19, 2015. ATPE testified in opposition to the bill in both chambers. SB 1241 died as a standalone bill when it did not make it onto a calendar for floor consideration by the full House of Representatives. The bill was revived, however, when the Senate voted to amend its language into another bill that was still alive, HB 1842 by House Public Education Committee Chairman Jimmie Don Aycock (R-Killeen). The Senate changed the language of the bill to allow entire school districts to receive regulatory exemptions; thus, the focus shifted from helping campuses that wanted to improve their students’ educational outcomes to creating “Districts of Innovation,”, which would be allowed for any school district that is rated acceptable or higher.

When the House refused to accept the Senate’s changes to HB 1842, a conference committee was convened to iron out differences in the two chambers’ versions of the accountability bill. The 10 conference committee members agreed to keep the innovation district language in HB 1842, but they stripped out the section of the bill that would have required commissioner approval for any such school districts. As agreed upon by the conference committee in the final version of the bill, districts must merely notify the commissioner of their innovation plans, and the commissioner has no real authority to grant or deny districts the right to operate as DOIs. The conference committee report for HB 1842 was approved by both chambers on May 30, 2015, which was the last day that the legislature could pass a bill, and the votes occurred during the last hour of business before the House and Senate adjourned for the day; the 84th legislative session ended the next day.

Statutory Requirements

HB 1842 (2015) created the law that allows for the designation of Districts of Innovation (DOI). The law can be found in Chapter 12A of the Texas Education Code (TEC). This chapter provides that a traditional school district that is rated acceptable or better may create a district-level innovation plan, potentially including exemptions from the vast majority of the TEC, which constitutes the state’s regulatory framework and statutory safety net for public schools.

A district may become a DOI by following these steps as laid out in statute:

  1. The district’s board of trustees adopts a resolution to consider becoming a DOI, or receives a petition signed by a majority of the members of the district-level planning committee established under TEC 11.251.
  2. The board holds a public hearing to consider becoming a DOI.
  3. At the conclusion of the hearing, the board either
    • Declines to pursue the designation or
    • Appoints a committee to develop a local innovation plan in accordance with TEC 12A.003.
  4. The committee then drafts a local innovation plan that must:
    • Provide for a district-wide comprehensive educational program, which may include:
      • innovative curriculum, instructional methods, and provisions regarding community participation, campus governance, and parental involvement;
      • modifications to the school day or year;
      • provisions regarding the district budget and sustainable program funding;
      • accountability and assessment measures that exceed the requirements of state and federal law; and
      • any other innovations prescribed by the board of trustees.
    • Identify requirements imposed by the TEC that inhibit the goals of the plan from which the district should be exempted; the exemptions sought by the district cannot include statutes that are identified as non-exemptible under TEC 12A.004.
  5. The final version of the proposed innovation plan must be posted on the district’s website for 30 days.
  6. The board must notify the commissioner of its intention to vote on adoption of the proposed innovation plan.
  7. The district-level planning committee established under TEC 11.251 must consider the final version of the innovation plan in a public meeting and approve it by a majority vote.
  8. Upon conclusion of the 30-day posting period and after the affirmative vote of the district-level planning committee, the full board may adopt the proposed plan by a two-thirds vote.

 

Regulatory Requirements

HB 1842 permits the commissioner of education to adopt rules to implement the DOI law. Commissioner Mike Morath has adopted final DOI rules that provide more detail as to how a district becomes a DOI and significantly, add additional legal provisions from which a DOI is prohibited from exempting itself. To read the Commissioner's final DOI rules, please click here. Commissioner Morath accepted input on the proposed rules during a public comment period that ended May 2, 2016. Read ATPE’s written comments on the rules here. The commissioner also held a public hearing on the proposed rules on April 25, 2016; ATPE Lobbyist Monty Exter testified at the hearing. The effective date of the commissioner’s rules, is June 9, 2016.

Senate hearing on SB 1241 can be found here. ATPE testimony is at 14 minutes 20 seconds.

House hearing on SB 1241 can be found here at 2 hours 34 minutes 20 seconds. ATPE testimony is at 3 hours 10 minutes 50 seconds.

ATPE’s formal written comments on the Commissioner’s proposed rules on HB 1842 can be found here.

 

Excerpts from Summary of Public Comments and Agency Responses Related to Proposed New 19 TAC Chapter 102, Educational Programs, Subchapter JJ, Innovation District

Comment. ATPE suggested adding "as described by these rules" at the end of §102.1305(c) to indicate that the plan must meet the requirements in rule as well as statute.

Agency Response. The agency agrees and has modified §102.1305(d) to specify that the plan must meet the requirements in rule.

Comment. ATPE commented that a district needs to specifically identify TEC sections from which it is exempting itself and that the rules should specify that a district developing an innovation plan is required to affirmatively list the sections of TEC from which it intends to exempt itself and state how compliance with those provisions would inhibit the goals of its plan. ATPE also stated that the check-off list in Figure: 19 TAC §102.1307(d) is inadequate to meet the requirement of TEC, Chapter 12A; provide due notice of the district's plan; or promote thoughtful consideration of the district's actions. ATPE further commented that the commissioner should maintain an exhaustive list of TEC provisions from which a district may exempt itself.

Agency Response. The agency provides the following clarification. The requirement that the plan identify the requirements of the TEC that inhibit the goals of the plan and from which the district should be exempted is already included under §102.1305(b)(2), which states that the local innovation plan shall be developed in accordance with TEC, §12A.003. Additionally, the checklist in the figure is a reporting function for the agency as required in TEC, §12A.004(b)(1), and not intended to be a substitute for the district innovation plan. Lastly, the agency disagrees that the commissioner should maintain an exhaustive list of TEC provisions from which a district may exempt itself and has determined that the current list provides a practical reporting mechanism for ease of meeting the statutory requirements for the districts and agency.

Comment. ATPE recommended that the rules clearly state that the civil immunity protections and procedures of TEC, Chapter 22, Subchapter B, apply to districts of innovation in order to deter plaintiffs' lawsuits without the need for costly litigation to determine the definition of "requirement" as it applies to districts of innovation and civil immunity from protections and procedures.

Agency Response. The agency agrees and has added the TEC, Chapter 22, Subchapter B, to the prohibited exemptions list in §102.1309(a)(1).

After this law was enacted, ATPE raised serious concerns about how some districts approached the new flexibility. ATPE believes the innovation district law was intended to offer districts flexibility for limited purposes aimed at achieving specific goals, but at least one district used the law to claim entitlement to blanket exemptions of all the laws that could be waived, and doing so without explaining how they would use that flexibility. ATPE believes that school district employees and parents of students in the district should receive ample notice of any legal rights and protections they might be losing under a district’s innovation plan.

Of particular concern was districts claiming blanket exemptions in their innovation plans, seeking waivers of every statute in the Texas Education Code (TEC) that is susceptible to being waived under HB 1842. Those plans fail to identify particular statutes that the district intends to waive, and ATPE attorneys and lobbyists who reviewed the DOI law recognized that such blanket exemption claims could lead to unintended consequences. For instance, the TEC provides educators with strong immunity protection from civil liability for actions that the educators take in their professional roles. It also provides specific procedural requirements that a potential plaintiff must follow before filing a lawsuit against a school district or educator and provides for limits on potential damage awards. These protections are not included in TEC Chapter 12A’s specific list of non-waivable provisions. In other words, the immunity protections found in TEC Chapter 22, Subchapter B, are all statutes that can be waived under the language that the legislature adopted in HB 1842. Thus, it is unclear whether any district that chooses to “waive everything it can” within its innovation plan might unintentionally be waiving immunity protections, as well. The commissioner of education helped address this concern when, at the request of ATPE, he added the immunity protections found in TEC Chapter 22 to the list of statutes that could not be waived by an innovation district.

Examples of statutory rights and protections that may be compromised in DOIs

Parents and educators may take for granted many of the rights and protections that they enjoy and have little understanding of where those exist in the law. Most of them come from the Texas Education Code (TEC), and most of them can now be waived when a district becomes a DOI. The rights that can be waived, especially by a district that claims entitlement to blanket exemptions of every law that is exemptible, are too numerous to list. Here are just a few practical examples:

  • Certified educators in a DOI that opts to exempt itself from TEC Ch. 21 will no longer have a legal right to a contract. If they do get a contract, the district will decide what rights the contract provides. For instance, the contract may allow the district to require additional work, such as work both during the school year and even through the summer with no additional compensation. The contract, if one is provided, could allow the district to lower an educator’s salary at any time.
  • Certified educators in a DOI may or may not be given any due process before negative employment action is taken due to an allegation against them. It will be entirely up to the DOI as to what process is provided and whether it is possible to appeal a decision by the district. The educator will no longer be required to be notified if the district intends not to employ the educator for the next school year.
  • Educators in a DOI that exempts itself from TEC 22.003 will no longer have a right to paid leave under state law. Any paid leave provided will be at the discretion of the district. While the right to federal leave under the Family and Medical Leave Act is unaffected, educators will no longer have a statutory right to temporary disability leave or assault leave.
  • Educators in a DOI that exempts itself from TEC 21.003 will no longer have to be certified to hold their position. This means that a principal in a DOI may have no education experience, and the teacher across the hall may be uncertified. It also means that a teacher employed by the DOI may be reassigned to a new position for which the teacher is not certified and may be required to obtain certification as a condition of keeping her job.
  • Duty-free lunch and planning time during the school day will no longer be guaranteed in a DOI that exempts itself from TEC 21.404 and 21.405. A district that provides such benefits to its teachers by virtue of a local policy will be generally free to make exceptions. For instance, a DOI might require special education program teachers to remain with their students during lunch, or a DOI might choose to take away planning time for group meetings and require teachers to do their individual planning and grading on their own time.
  • While a DOI is required to maintain a student code of conduct, it can still exempt itself from TEC 37.002. This means that a teacher in such a district will no longer have a statutory right to send a student to the office or request the removal of a disruptive student. Also, the teacher will lose the statutory right to refuse to accept back into the classroom a student who has assaulted the teacher.
  • There will be no set start time for the school year (TEC 25.0811), no set length for the school year, and no set instructional day in DOIs that exempt themselves from TEC 25.081. Each of these schedules will be entirely up to the DOI, and it is likely that the DOI will be able to make schedule changes at any time.
  • While a DOI may make it much easier for the district to terminate an employment contract, if it chooses to provide one at all, a DOI can still choose to hold an educator bound by the contract and file a complaint to the State Board for Educator Certification if the educator leaves before the end of the contract, possibly leading to a suspension of the educator’s certification. This could be done even if the district takes one of the actions it will now be able to take, such as lowering the educator’s salary or reassigning them to a position they are not certified to hold.
  • Parents will still have their right to access their child’s educational record, but they could lose the broad right to access instructional materials that the Education Code provides in a DOI that exempts itself from TEC 26.006.
  • Parents could lose the right to prohibit the videotaping or audiotaping of their children, if the DOI exempts itself from TEC 26.009.
  • Parents could lose the broad access to teachers and administrators that the law provides in TEC 26.003 and 26.008. DOIs are permitted to exempt themselves from these statutes.
  • Parents could lose the expectation that their child will be safe at school or in the classroom with the DOI’s exemption of laws that require removal and expulsion for certain serious student offenses. These include, for instance, TEC 37.006 and 37.007.

If you live or work in a school district that is considering becoming a DOI, here are suggestions for how you can ensure that your district’s innovation plan is reasonable and specific, and ways that you can participate in the process:

Become knowledgeable.

Get to know the district’s plan. Find out which parts of the law the district is planning to claim as exemptions in its innovation plan. Once the district declares itself exempt from a requirement of the TEC, the DOI arguably can at any time simply stop following that particular statute. This action to ignore the law from which the DOI has claimed exemption may or may not happen immediately, and it may or may not coincide with additional board votes on specific policies. Innovation plans adopted under this new law can give school districts broad authority, which is why it’s important for interested stakeholders to find out early in the process exactly what types of exemptions the district intends to claim and how they will be used to facilitate innovations at the local level.

Get involved.

Ask questions if you are unsure about what your district is planning or why the district is recommending taking a particular action. Each statute that the district is seeking to exempt itself from should relate to a specific objective in the district’s innovation plan. As stakeholders, we encourage you to ask for explanations of how the DOI’s exemptions are needed to achieve the goals of the innovation plan. For instance, if your district is requesting an exemption from the law requiring that teachers be given a 30-minute duty-free lunch, ask why that exemption is needed. If the district is requesting an exemption from the law that gives a teacher the right to remove a disruptive student from the classroom, ask why that exemption is needed. If the district is asking to exempt itself from all laws from which it can legally exempt itself, rather than taking the time to determine which legal requirements really are interfering with the district’s educational goals, ask why such blanket exemptions are necessary.

Give public input.

The DOI law requires districts to post their innovation plans online for at least 30 days and discuss their plans in open meetings where the public has a right to appear and provide input. Take advantage of all opportunities to share your feedback on the district’s plans before they are voted upon and implemented. Remind your colleagues and other stakeholders to exercise their rights to be heard, too.

TEA maintains a list of school districts that have notified the agency, as required by law, that they have become a District of Innovation.

The list can be found by clicking here 

Clicking on a district listed will link you to that district’s innovation plan which describes the laws in the Texas Education Code (TEC) from which the district has exempted itself.

Based on media reports, as of January 2017, these are the top five exemptions claimed by DOIs:

  1. First day of instruction (TEC 25.0811 mandates that the school start date cannot be before the fourth Monday of August) - 55 districts exempted.
  2. Teacher certification (TEC 21.003 requires that teachers hold appropriate certification) - 46 districts exempted.
  3. Class size (TEC 25.112 caps class sizes in grades pre-k through 4, limits overall student-teacher ratios, and requires a waiver if the caps or limits are exceeded) – 37 districts exempted 
  4. Class size (TEC 25.113 requires parent notification if class size limits are exceeded) – 30 districts exempted.
  5. Minimum minutes of instruction (TEC 25.081 requires a minimum of 75,600 minutes of instruction each school year, or an average of 7 hours over 180 days.) – 22 districts exempted.

From Community IMPACT, Northwest Austin Edition,
Vol 10, Issue 12, January 26-February 26, 2017.