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COMMISSIONER FOR PROGRAMS AND SERVICES
NORTH FOREST lSD'S POST-HEARING BRIEF COMES NOW, The North Forest Independent School District and files this their posthearing brief and would respectfully show this honorable Hearing Officer the following: I. INTRODUCTION Beginning in March of 2007 and continuing through the suspension and termination of Dr. Johnson in March of2011, individuals hand-picked by TEA had the authority to exercise and did exercise complete control over the North Forest Independent School District ("NFISD"). TEA now proposes to assign a performance rating of Not Accredited-Revoked, close NFISD and
annex NFISD to Houston Independent School District ("HISD") claiming the district failed to improve when, in truth, these failures were the product of the omissions and malfeasance of the individuals TEA selected to oversee and run the district. TEA is so single-mindedly intent upon closing NFISD that it has turned a blind eye to the great strides the District has made since the return to the elected board and the hiring of Superintendent Edna Forte. If TEA will just give due weight to all the facts, including the actions of the elected board and the new superintendent, it must conclude that closing NFISD and annexing the District to HISD is contrary to the best interest of the children of North Forest. Not one person testified that sending the North Forest
children to Kashmere, or any other HISD school, education. Why? Because it is simply not true.
would provide the children with a better
The hearing examiner presided over 2 days of testimony and has before her hundreds upon hundreds of pages of documents. The evidence is clear and uncontradicted that the District has made astonishing advancements under the leadership of the elected board and Edna Forte. TEA's conservator, Kay Karr, felt so strongly about giving NFISD an opportunity to continue that she courageously sat in front of her TEA bosses and testified to exactly that. If the Hearing Examiner's decision turns on the events that occurred between March 1,2011 and November 11, 2011 as she has already ruled, or more properly between March 1, 2011 and July 8, 2011, the decision must be to leave NFISD under the control of the elected board and superintendent Forte. In light of the 25 page limitation on the parties' closing briefs, NFISD will not rehash the overwhelming evidence that clearly shows why NFISD should be allowed to direct the education of the children of North Forest. That evidence speaks for itself. opportunity to show that the Commissioner's withstand legal scrutiny. Instead NFISD will take this
order of revocation, closure and annexation cannot
NFISD stands on its prehearing brief, the testimony of its witnesses
and the documentary evidence without restating it here. II. PRELIMINARY MATTERS A. Scope and Purpose of Record Review. In an attempt to convince this hearing officer that NFISD should be assigned a rating of not accredited-revoked, closed and annexed to HISD, TEA spent the first full day focusing on
events that occurred from 2007 through 2010 - matters, resulting from the omissions of TEA
conservators, the TEA superintendent
and his hand-picked
TEA Board of Managers. These
events are clearly irrelevant to the serious questions before this hearing officer. As Dr. Reynolds ruled and then conveyed through Ms. Allen, there are three matters at issue in the present record review: As I noted before we took our short break, we are here on three different purposes. One is the lowering of the accreditation rating to not accredited revoked from accredited probation; secondly, closure of the school district; and, third, annexation to Houston Independent school district. . . . [B]ecause the accreditation status is in - a viable issue in this matter, it seems relevant to focus in on changed circumstances from March 1st, 2011, which by the notice letter that we had indicates that North Forest was assigned accredited probation to November 10th, 2011 and forward, depending on what is being proffered, to demonstrate why now we have moved from accredited probation to not accredited revoked . . . . [W]e would like to see a focus on the changed circumstances and then references to pervasiveness, but not go through each and every document that might contain information about pervasiveness. Indeed, the relevant period of time is even more limited than March 1, 2011 through November 11, 2011. The Commissioner, on July 8, 2011, wrote to the NFISD Board of
Trustees and Ms. Edna Forte giving "advanced notice" that the District would be assigned a rating of Not Accredited-Revoked, closed and annexed to HISD. The text of this letter makes it
perfectly clear that the decision to close and annex NFISD had already been made. The purpose of this letter is to provide advance notice to the North Forest Independent School District (ISD) regarding the status of the district and its North Forest High School campus. I have determined not to order immediate closure of the high school campus. However, the Texas Education Agency (TEA or agency) has determined that, when it releases ratings on August 1, 2011, both the North Forest ISD and North Forest High School will be rated Academically Unacceptable (AU), the district for the third
consecutive year and the high school for the sixth consecutive year, it has further been determined that, in 2011, the district will earn a substandard financial accountability rating for the fourth consecutive year. These consecutive ratings, coming after the performance history discussed below, will require me to assign North Forest ISD a 2011-2012 accreditation status of Not Accredited-Revoked and to close the district effective July 1,2012.
As stated above, North Forest ISD and North Forest High School will be rated AU when accountability ratings are released on August 1, 2011. With those ratings, the district will have earned a third consecutive year of AU performance, and the campus will have earned a sixth consecutive year of AU performance. Additionally, the district again will earn a Substandard Achievement financial accountability rating in 2011. This third consecutive AU rating and fourth consecutive substandard financial rating, coming after the performance history reviewed in this letter and previous records, will require me to assign North Forest ISD a 2011-2012 accreditation status of Not AccreditedRevoked and to close the district effective July 1, 2012. Therefore, on or after August 1, 2011, I will issue an order for the closure of North Forest ISD. This order will annex North Forest ISD to Houston ISD (101-912) effective July 1, 2012. The order will notify you of the procedures available to the district to appeal its ratings and to appeal the order of annexation. There is nothing the district needs to do at this time in order to preserve those appeal opportuni ties. As far as the Commissioner was concerned, the decision to revoke, close and annex was complete on July 8, 2011. Therefore, the relevant inquiry is actually what occurred between
March 1, 2011 and July 8, 2011 that justified the Commissioner to change the District's status and order closure and annexation. Therefore, nothing that occurred after July 8, 2011 could have played a role in the Commissioner's decision to close and annex the District since the decision had already been
made. The commissioner made clear in his July 8, 2011 letter what his decision was based on, NFISD's "third consecutive AU rating and fourth consecutive substandard financial rating,
coming after the performance history reviewed in this letter and previous records, will require me to assign North Forest ISD a 2011-2012 accreditation status of Not Accredited-Revoked and to close the district effective July 1, 2012." To the extent the Commissioner based his decision on NFISD's AU rating, which is in tum based on NFISD's completion rate, the Commissioner is in error and in violation of Section 39.102(11) of the Texas Education Code. To the extent the Commissioner Commissioner conservators, Commissioner based his decision on the financial rating and performance history, the
is closing the District based on the actions or omissions of his hand-picked hand-picked superintendent and hand-picked board of managers. The
cannot now attribute to the District and the elected board the misconduct and
incompetency of his appointees. It is undisputed that the District has continued to improve and that the changes since the installation of the elected board and Superintendent Forte are truly remarkable. Should the hearing examiner instead determine the relevant time period to be March 1,2011 through November 10, 2011, only four things occurred between TEA's assignment of on
in March 2011, and its lowering of that rating to Accredited-Revoked
November 10, 2011. First, on May 4,2011, TEA expressed continuing financial concerns arising from the district's 2009-2010 audit report. An issue that arose under TEA governance. Second, An
on August 1, 2011, TEA belatedly issued negative accountability ratings for 2010-2011. issue that arose under TEA governance. Third, on October
4, 2011, TEA issued a
DVM/CTE/PAR report based on a site visit conducted March 7-11, 2011. Dr. Johnson was the superintendent during this audit. Fourth, on November 8, 2011, two days before issuance of the closure letter, the conservator issued a September/October 2011 conservator report was authored approximately Monthly Report. This November 8,
124 days after the Commissioner had
already decided to close and annex NFISD.
Moreover, the conservator reports immediately
before and immediately after the November 8, 2011 report were not only very favorable reports about the district, but fail to note the deficiencies noted in the November 8th report. The record conclusively demonstrates that everyone of the deficiencies pointed out in the
documents referenced above, save the November 8, 2011 conservator report, were direct results of acts or omissions of TEA-appointed conservators, a TEA-appointed board of managers and a TEA-appointed superintendent who, in combination, had been in place and running NFISD for the previous three years. B. Commissioner Action based on Completion Rates As noted in TEA letters dated March 1,2011 and November 10,2011 and the testimony of Laura Taylor, the Agency is requesting that the District be assigned a status of not accreditedrevoked, closed, and annexed based on both financial and academic ratings. It is uncontested that NFISD's academically unacceptable ratings, both past and present, were based upon the
District's completion rate and only upon the District's completion rate. The Commissioner cannot assign a rating of Not Accredited-Revoked, cannot close
NFISD and cannot annex NFISD into HISD based on this academically unacceptable rating alone. Section 39.102 of the Education Code provides in pertinent part: 39.102 Interventions and Sanctions for Districts a) If a school district does not satisfy the accreditation criteria under Section 39.052, the academic performance standards under Section 39.053 or 39.054, or any financial accountability standard as determined by Commissioner rule, the Commissioner shall take any of the following actions to the extent the Commissioner determines necessary:
(1) issue public notice of the deficiency to the Board of Trustees;
(11) if a district has failed to satisfy any standard under Section 39. OS4(e)due to the district's dropout rates, impose sanctions designed to improve high school completion rates, including: (A) ordering the development of a dropout prevention plan for approval by the commissioner; (B) restructuring the district or appropriate school campuses to improve identification of and service to students who are at risk of dropping out of school, as defined by Section 29.081; (C) ordering lower student-to-counselor ratios on school campuses with high dropout rates; and (D) ordering the use of any other intervention strategy effective in reducing dropout rates, including mentor programs and flexible class scheduling. (emphasis added) Section 39.1 02( 11), directs the Commissioner dropout improvement plan, restructuring, lower to Impose the specific sanctions of a student-to-counselor ratios, and other
intervention strategies to reduce dropout rates in order to improve high school completion rates; however, Section 39.102(11) does not authorize the Commissioner to close a school district and order annexation on the basis of completion rates. Further, the assignment of Not Accredited-Revoked is equivalent to an order of closure
and annexation and also cannot be supported by an unacceptable rating based on completion rates. Section 39.1 02( 10) provides:
(10) if for two consecutive school years, current school year, a district has accreditation status of accredited-warned probation, has failed to satisfy any standard 39.054(e), or has failed to satisfy financial standards as determined by commissioner the district's accreditation and:
including the received an or accreditedunder Section accountability rule, revoke
(A) order closure of the district and annex the district to one or more adjoining districts under Section 13.054; or (B) in the case of a home-rule school district or open-enrollment charter school, order closure of all programs operated under the district's or school's charter; (emphasis added) Pursuant to Subsection (10), revocation of a district's accreditation requires closure and annexation. It is an all or nothing proposition. If the Commissioner cannot close the district the Commissioner cannot revoke the district's accreditation. In that same vein, if the Commissioner cannot annex the district the Commissioner cannot revoke the district's accreditation. Because the Commissioner cannot close NFISD due to its AU rating, the Commissioner cannot revoke NFISD's accreditation, in part or in whole, based on completion rates. C. Objection to Evidence/Pervasive Conduct
19 TAC 97.1037(8) provides "The TEA representative shall strictly confine presentations and questions to the matters set forth in the notice, and shall exclude information that is irrelevant, immaterial, or unduly repetitious." Throughout the Record Review, NFISD
continuously objected that the scope of the testimony and exhibits offered by TEA were not matters set forth in the notice and were irrelevant, immaterial, or unduly repetitious. Only a short time before the end of the first day of testimony, NFISD, once again objected, to TEA testimony and evidence as violating 19 TAC 97.1 037(8). The hearing examiner recessed the hearing to
review the objection and upon return ruled that the focus of the record review was the period of March 1, 2011 through November 10, 2011. NFISD reurges those objections. In addition,
NFISD objects to any evidence proferred to support closure after July 8, 2011 and any evidence offered to support either the district's AU rating or financial problems that were in fact matters that occurred under the supervision of a conservator, manager or Dr. Johnson. When directed by the hearing examiner to the relevant time period, TEA could not and did not refer the hearing officer to any specific act or event that occurred between the relevant dates that caused the Commissioner to change the status of NFISD. Instead, the Agency droned on
and on about issues that occurred years before, during the reign of the TEA board, TEA superintendent and/or TEA conservators. When confronted with objection after objection, TEA floated the new argument that the academic, fiscal and governance problems were pervasive and continued unchecked. When specifically asked what failings could be attributed to Ms. Forte and the elected board, Laura Taylor directed the hearing officer to the bullet points in the Commissioner's November
10, 2011 letter. Each of these bullet points were addressed and refuted by the testimony of Lois Edwards, Doug Karr, Kay Karr and Edna Forte. The record stands uncontradicted that those deficiencies have been set right in the last 11 months by simply returning the District to the control of the elected board of trustees and their foresight in hiring a competent superintendent. Every witness who had personal experience at North Forest lSD, whether from TEA or from the District, testified that since the appointment of Edna Forte in March 2011, there has been steady and continued improvement on all fronts.
was not even supported by TEA's own witnesses, all of which TEA, realizing that they
testified that the district has shown steady and continued improvement.
had failed to meet their initial burden to prove relevance i.e., that the problems were pervasive during the relevant period of March 1, 2011 through November 10, 2011, called TEA auditors to attack and opine on the District's January 2012 audit report. (the district's first timely audit filing since governance began). These auditors questioned the veracity of the audit knowing they had not spent one minute investigating it. Instead they took the stand three weeks later and speculated as to what might be wrong as if it were fact, admitting as much during cross examination. They questioned the authority of the District's charge down of the bond fund debt as having not been approve when, in fact, it had been approved by the conservator, Kay Karr. It is unfortunate that TEA carne to the Record Review so bent on closure that it would twist evidence in this way. Surely, the interventions authorized by Chapter 39 of the Texas Education Code are designed to tum around a struggling district and get it back on its feet rather than to trudge down a long drawnout path to closure. The record stands on its own merit and needs no further discussion except to point out the sharp divergence between Mr. Rowell's testimony and the documentary record concerning the Agency's active participation in the raiding of the construction fund to meet payroll. Mr. Rowell testified that he approved the one-time use of construction funds because the district could not meet payroll. His testimony is directly contradicted by the record. The board first became aware of the use of bond money on February 18, 2008 (Ex. I7IA; TR328). At this same meeting, it
was revealed that TEA was aware of the use of the bond money BEFORE it was all used up. (Ex. I7IA) Interestingly, neither Mr. Rowell nor Mr. Boening mentioned to the board that this
was a onetime use of funds because of an emergency nor that the funds were reimbursed. It is
clear that the discussion at the board meeting concern the continued use of the construction funds. Mr. Rowell's testimony is belied by the record and, at most, implies it is perfectly ok to use bond funds to stop the default of the district and violate the law when Ronald Rowell
approves it, but it is an albatross for the district to do so on its own. The agency cannot have it both ways. The district recognizes that it needs to rectify the bond fund issue and, there is a plan to do just that. "Pervasiveness" would be relevant only if it pertains to, and adds weight to, specific events between March 1, 2011 and July 8, 2011, (or less arguably November 10, 2011) that justify revocation, closure, and annexation. None of the history so tediously reviewed by TEA counsel has any such relevance. Everything that has happened in NFISD during that period goes far beyond mere correction of identified discrepancies. NFISD has embarked upon concrete,
systematic changes to reform the underlying institutional mind-set and structures that, in the past, pemiitted those discrepancies to occur. The board intends to adopt a single-member district method of electing its trustees. It has adopted a board operating procedure that addresses and regularizes the board/superintendent relationship, so that each can function properly in their
respective roles. It has adopted the toughest, most comprehensive ethics manual and policy in the State of Texas. Data integrity and fiscal responsibility are no longer just matters for piecemeal correction, but have been adopted as district-wide norms to be consistently and systematically planned for, implemented, and achieved. Within the relevant time period, "pervasiveness" is a mere historical artifact-a dead letter.
D. Selection of Board of Managers In an effort to deflect from what was clearly proven to be inept and inappropriate appointments to the Board of managers, the Agency witnesses repeatedly represented to the Hearing Examiner that it was a legal requirement that a majority of the appointed board members be residents of the district. They are wrong. One would assume that the TEA employees responsible for selecting a board of managers would be somewhat familiar with the Education Code relating to that very subject. Sadly for NFISD, that was not the case. The Agency's lack of knowledge of the law proved to be disastrous for NFISD. On July 31, 2008, Commissioner Superintendent §39.131(a)(9), explaining Scott wrote the NFISD Trustees and NFISD Interim the authority of Texas Education Code (TEC) Code (TAC)
and pursuant to the requirements
of 19 Texas Administrative
§97.1037(e), I will assign a board of managers to the North Forest ISD."(818). Nowhere does Texas Education Code (TEC) §39.131(a)(9) require that a majority of the board of managers be residents of the district. § 39.131. Sanctions for Districts (a) If a school district does not satisfy the accreditation criteria under Section 39.071, the academic performance standards under Section 39.072, or any financial accountability standard as determined by commissioner rule, the commissioner shall take any of the following actions to the extent the commissioner determines necessary:
(9) if a district has a current accreditation status of accreditedwarned or accredited-probation, is rated academically unacceptable, or fails to satisfy financial accountability standards as determined by commissioner rule, appoint a board of managers to exercise the powers and duties of the board of trustees;
The language of Subsection (9) is clear. Subsection 9 simply states "appoint a board of managers." It in no way requires that a majority of the board managers, or any of them, be from
the district. TEA simply ignored or, just as bad, overlooked its July 31, 2008 correspondence to NFISD and the specific reference to Section 39.131(a)(9) and relied upon Section 39.131(b) which does require that a majority of the board of managers be from the district. Section 39.131(b) provides: (b) This subsection applies regardless of whether a district has satisfied the accreditation criteria. If for two consecutive school years, including the current school year, a district has had a conservator or management team assigned, the commissioner may appoint a board of managers, a majority of whom must be residents of the district, to exercise the powers and duties of the board of trustees. The problem is two fold. First, the commissioner was not placing a board of managers in the district based on Section 39.131(b). Second, and more importantly, Section 39.131(b) does not
apply to NFISD. Subsection (b) provides "If for two consecutive school years, including the current school year, a district has had a conservator commissioner may appoint a board of managers .... or management team assigned, the letter
" At the time of the Commissioner's
of July 31, 2008, NFISD had not had a conservator for two consecutive years. The record is clear that Henry Boening was appointed in March of 2007. The Agency's lack of knowledge of the law proved to be disastrous for NFISD. As has been shown, the appointment of a board with no knowledge of education or school finance allowed Dr. Johnson to rule the district unchallenged and unchecked. TEA had a real opportunity to help the district, but, as the record demonstrates, did far far more harm than good. It is shameful that TEA can exude such incompetence and then point a finger at NFISD.
III. REVOCATION, CLOSURE AND ANNEXATION ARE LEGALLY UNSUPPORTABLE A. The Assignment of Not Accredited-Revoked Violates the Texas Education Code: As noted above, the Commissioner first notified NFISD of the assignment of Not-
Accredited Revoked on July 8, 2011. The Commissioner, on July 8, 2011, wrote: The purpose of this letter is to provide advance notice to the North Forest Independent School District (ISD) regarding the status of the district and its North Forest High School campus. I have determined not to order immediate closure of the high school campus. However, the Texas Education Agency (TEA or agency) has determined that, when it releases ratings on August 1, 2011, both the North Forest ISD and North Forest High School will be rated Academically Unacceptable (AU), the district for the third consecutive year and the high school for the sixth consecutive year, it has further been determined that, in 2011, the district will earn a substandard financial accountability rating for the fourth consecutive year. These consecutive ratings, coming after the performance history discussed below, will require me to assign North Forest ISD a 2011-2012 accreditation status of Not Accredited-Revoked and to close the district effective July 1, 2012.
... Therefore, on or after August 1, 2011, I will issue an order for the closure of North Forest ISD. This order will annex North Forest ISD to Houston ISD (101-912) effective July 1, 2012. (emphasis added) The Commissioner's notice is untimely and in clear violation of Section 39.054(a) of the
Texas Education Code which requires that notice of the designation be given on or before June 15,2011. 39.054 - Methods and Standards for Evaluating Performance (a) The commissioner shall adopt rules to evaluate school district and campus performance and, not later than August 8 of each year, assign each district and campus a performance rating that reflects acceptable performance or unacceptable performance. If a district
or campus received a performance rating of unacceptable performance for the preceding school year, the commissioner shall notify the district of a subsequent such designation on or before June 15. The July 8, 2011 letter cannot have served as the notice required by Section 39.054(a). It would defy logic, reason and common sense to suppose that notice of an unacceptable performance rating could have been given before it carne into existence on August 1, 2011. The actual notice was the November 10, 2011 closure letter, which is also when NFISD's appellate clock began ticking. In order for the Commissioner to have complied with Section 39.054, he
would have had to issue NFISD's rating and given notice of it to the district on or before June 15, 2011. The Commissioner was four months and 25 days late, and in the absence of lawful notice under Section 39.054 the order the revocation, closure, and merger cannot stand. B. The Commissioner Exceeded his authority: The Commissioner exceeded his authority in assigning NFISD a 2011-2012 accreditation status of Not Accredited-Revoked. specifically provided: This third consecutive AU rating and fourth consecutive substandard financial rating, coming after the performance history reviewed in this letter and previous records, require me to assign the North Forest ISO a 2011-2012 accreditation status of Not Accredited-Revoked and to close the district effective July 1, 2012. This assignment is made under the authority of TEC §39.051 and §39.052 and 19 TAC §97.1055. 19 TAC §97.1055(d) provides as follows: Determination of Not Accredited-Revoked Revocation of accreditation. status; In his November 10, 2011 letter, the Commissioner
(1) The accreditation of a district shall be revoked if, beginning with its 2006 rating, the district is assigned: (A) for four consecutive school years, an academic accountability rating of Academically 15
Unacceptable or insufficient performance under §97.1001 of this title; (B) for four consecutive school years, a financial accountability rating of Substandard Achievement or Suspended-Data Quality under §109.1002 of this title; (C) for four consecutive school years, anyone of the ratings referenced in subparagraphs (A) and (B) of this paragraph; or (D) for three consecutive school years, a combination of ratings referenced in both subparagraphs (A) and (B) of this paragraph. In addition, as documented in previous TEA correspondence and this letter, program deficiencies and other issues of noncompliance have continued to be identified for the North Forest ISO. 19 TAC §97.10SS(d)(2}-(3) provides, in part, as follows: Determination of Not Accredited-Revoked Revocation of accreditation. status;
(2) A district shall have its accreditation revoked if, notwithstanding its performance under paragraph (1) of this section, the commissioner determines this action is reasonably necessary to achieve the purposes of TEC, §39.0S1 and §39.0S2. Such action is generally required by the following circumstances: ... (B) after investigation under TEC, §39.0S6 or §39.0S7, the commissioner finds: (i) the district's programs monitored under §97.100S of this title exhibit serious or persistent deficiencies that require revocation of the district's accreditation; or (ii) the district otherwise exhibits serious or persistent deficiencies that require revocation of the district's accreditation. (2) Notwithstanding paragraph (2) of this subsection, a district's accreditation shall be revoked if the commissioner determines this action is reasonably necessary to achieve the purposes ofTEC, §39.051 or §39.052. Furthermore, 19 TAC §97.10SS(e) provides, in part, as follows: status;
Determination of Not Accredited-Revoked Revocation of accreditation. 16
Legal compliance. In addition to the district's performance as measured by ratings under §97.1001 and §109.1002 of this title, the accreditation status of a district is determined by its compliance with the statutes and rules specified in TEC, §39.052(b)(2). Notwithstanding satisfactory or above satisfactory performance on other measures, a district's accreditation status may be assigned based on its legal compliance alone, to the extent the commissioner determines necessary ... Section 39.102(a)(10) of the Texas Education Code grants the Commissioner the
authority to assigning a rating of not accredited-revoked. (10) if for two consecutive school years, including the current school year, a district has received an accreditation status of accredited-warned or accredited-probation, has failed to satisfy any standard under Section 39.054(e), or has failed to satisfy financial accountability standards as determined by commissioner rule, revoke the district's accreditation and: (A) order closure of the district and annex the district to one or more adjoining districts under Section 13.054; or (B) in the case of a home-rule school district or openenrollment charter school, order closure of all programs operated under the district's or school's charter; Subsection 10 clearly limits the authority of the Commissioner to revoke a district's accreditation three scenarios: 1. If for two consecutive school years, including the current school year, has received an accreditation status of accredited-warned or accredited-probation; 2. If for two consecutive school years, including the current school year, has failed to satisfy any standard under 39.054(e) or; 3. If for two consecutive school years, including the current school year, has failed to satisfy financial accountability standards as determined by commissioner rule. First, 19 TAC §97.1055, as cited by the Commissioner, exceeds the authority provided under 39.102 of the Texas Education Code. Section 39.1 02(a)(1 0) imposes limits on the
authority to revoke a district's accreditation. TEA cannot expand the authority
granted by the legislature
by it's own rule making. The Commissioner's
regulation, 19 TAC § 97.1055, exceeds that authority in at least two particulars. First, Subsection (d)(1) disregards the limiting statutory language "including the current school year." Second, Subsections (d)(2) and (3) do away with the limiting criteria of the statute altogether by
abrogating unto the Commissioner the power to revoke, close and annex "if reasonably necessary to achieve the purposes ofTEC, §39.051 and §39.052." By this overreaching regulation, in other words, the Commissioner claims the authority to revoke the accreditation of a school district and close and annex it so long as he can float up some "reasonable" basis for concluding that leaving the district unrevoked and unclosed would somehow impair the purposes of school accreditation generally. That, of course, removes all limits from the Commissioner's discretion and flagrantly
exceeds the express limitations set forth in Section 39.102 (a) (10), Texas Education Code. Second, and just as important, Commissioner 39.1 02( 10) qualifies the circumstance accreditation. The first qualifier under which the contained within
can revoke a district's
39.102(10) is "if for two consecutive school years, including the current school year .... " The Commissioner's assignment of a rating of Not Accredited-Revoked was not based on the
"current school year." Under Section 44.0011, Texas Education Code, NFISD's school year for Chapter 39
purposes runs from September 1 to August 31 of the following year. The 2010-2011 school year ended on August 31, 2011, and the new, "current" 2011-2012 school year began on September 1, 2011. The Commissioner's closure letter of November 10,2011, was issued two months and ten school year, which is the "current" school year. Yet the
days into the new 2011-2012
Commissioner has not awarded any accreditation status, assigned any performance ratings, or
made any financial accountability determinations regarding NFISD for the current school year of 2011-2012. Consequently, the Commissioner's assignment of a rating of Not Accredited-
Revoked does not include the "current school year." The Commissioner revocation may not, simply by issuing a regulation, relieve himself from the attempted notice of
criteria prescribed by statute. Just as the Commissioner's
revocation was late under Section 39.054, the attempted order of revocation, closure, and annexation is late under Subsection 39.l02(a)(10). The order is in direct violation of the "current school year" requirement in that subsection and cannot stand. C. Closure of the School District is Improper As previously noted, NFISD's AU rating cannot support an order of closure. The only basis for closure available to TEA would be NFISD's financial issues, issues that arose during the relevant time period or, stated another way, during TEA governance. Every witness testified that NFISD has improved financially every year and continued that improvement under the elected board and Superintendent Forte. NFISD should be given a chance to govern itself by and through the elected board and Superintendent Forte. As has been shown, North Forest is a viable district that can resolve its current problems and survive. The path the district is on is a solid path that will, in two school years, return the district to an academically and financially acceptable status. Had the
conservators, the board of managers and/or Dr. Johnson taken the same bold and aggressive steps that have been taken by the current administration we would not be having this record review.
D. TEA's evidence is insufficient as a matter of law under 13.054 to support annexation The Texas Education Code specifically requires that the Commissioner may order annexation only if the Commissioner finds that the annexation will not substantially impair the ability of the receiving district to educate its own students and meet its financial obligations. 13.054 - Academically Unacceptable School Districts
(e) Before the commissioner orders an annexation under this section, the commissioner shall investigate the educational and financial impact of the annexation on the receiving district. The commissioner may order the annexation only if the commissioner finds that the annexation will not substantially impair the ability of the receiving district to educate the students located in the district before the annexation and to meet its financial obligations incurred before the annexation. The record is devoid of any investigation conducted by the Commissioner much less any Commissioner's findings, which by law must be made before an order of revocation, closure and
annexation. The Commissioner's order of annexation is thus unlawful and cannot stand. E. The evidence does not support annexation of the children of North Forest into HISD as it is not in the best interest
It is astonishing that the agency proposes to merge NFISD into HISD and yet fails to offer any evidence concerning the merger and its impact on the students of either district. The only argument advanced by TEA was that HISD is a bigger district and therefore must be better. There is absolutely no evidence that in these particular circumstances "bigger is better," much less that the children of North Forest will benefit from annexation. TEA failed to present a plan of merger, failed to present evidence as to which facility or facilities the North Forest children would be placed and failed to present evidence as to the academic stability of any facility to which the North Forest Children would be assigned. They did offer testimony from Ms. Stevens,
a HISD statistician who opined that certain statistics show HISD is better in TAKS performance. Further, she attempted to leave the impression that NF students can go to any HISD school. This is simply not true. The two closest magnet schools require either an entrance exam or minimum standards as a prerequisite to admission Furthermore, the evidence shows that when examined against both Kashmere and Washington High Schools, North Forest is equal to or better on TAKS and enjoys a superior academic rating. The failure of the agency to offer any substantive evidence on this most important of issues gives the hearing officer no basis for finding that merger is a viable option. F. Disjunctive v. Conjunctive TEA is proceeding under Section 39.102 of the Texas Education Code as if subdivisions (10) and (11) were written in the conjunctive. This is simply not the case. The liberal interpretation adopted by the TEA violates not only the clear and plain language of the statute but the rights of the Board and the residents of North Forest Independent School District. NFISD adopts the arguments and authorities cited in its trial brief as if stated fully herein. G. Discrimination The Commissioner's order of closure and annexation would constitute racial discrimination.
One need only look to the clemency shown the Premont Independent School District, a majority Hispanic district. To deny similar treatment to a majority African American district would be discrimination. minority districts. The only districts actually closed by the Commissioner have been majority The annexation of North Forest ISD by HISD will place North Forest ISD Such
students and tax payers under the authority of a majority Caucasian Board of Trustees.
action will constitute disparate treatment based on race and discrimination in violation of the
Fourteenth Amendment to the United States Constitution, The Civil Rights Act, The Voting Rights Act, and the Texas Constitution. IV. CONCLUSION When the Commissioner returned control of the District to the elected board he stated that other sanctions were available if the district did not continue the current pace of academic and operational performance. "The decision to return control of the district does not limit the
availability of other sanctions in the future, up to and including annexation of the district, if it does not continue the current pace of academic and operational improvement". (EX. 116:
NFISD 3306-3308) The elected board and Superintendent Forte not only continued the pace of academic and operational improvement achieved by the TEA appointed superintendent and
board of managers, they far exceeded it. The TEA representative with the most knowledge of North Forest, Kay Karr, testified as such. Doug Karr, the individual responsible for forecasting revenues and preparing the budget for North Forest testified North Forest will, in two years, be financially sound. If the Commissioner lives up to his word, he will not close the North Forest Independent School District. Should the Commissioner decide to close the district his order will not withstand legal scrutiny. For these reasons and based on the trial brief, the documentary evidence and the
testimony in the record, NFISD request that the hearing officer deny the request to assign the rating of Not Accredited-Revoked, close and merge the district. NFISD requests that it be placed
on probationary status and given two school years, ending in July 2014, to reach acceptable status both financially and academically.
Respectfully submitted, TRITICO RAINEY, PLLC
Christopher Tritico SBN: 20232050 Ron S. Rainey SBN: 16484425 446 Heights Blvd. Houston, Texas 77007 (713) 581-3399 Telephone (713) 581-3360 Facsimile
ATTORNEYS FOR THE NORTH FOREST INDEPENDENT SCHOOL DISTRICT
William C. Bednar 1706 West 6th Street Austin, TX 78703 (512) 587-3504 Telephone (512) 494-1188 Facsimile
CERTIFICATE OF SERVICE I certify that the above and foregoing instrument was served by electronic mail to the below listed individuals on this the 15th day of March, 2012.
Chris Jones Staff Legal Counsel Texas Education Agency 1701 North Congress Austin, TX 78701
Christopher L. Tritico
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