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Morath v. Lewis

Court of Appeals of Texas, Third District, Austin

March 29, 2018

Mike Morath, in his official capacity as Commissioner of the Texas Education Agency, Appellant
v.
Virginia Diane Lewis, Individually and as Next Friend to C. J. L.; Jennifer Ruth Rumsey, Individually and as Next Friend to K. L. O.; Jennifer Taylor, Individually and as Next Friend to C. M. T.; Terri Renae Henson, Individually and as Next Friend to A. K. H.; Nicole Rechner, Individually and as Next Friend to D. F. and T. M.; and Ashley Withers Gagnon, Individually and as Next Friend to A. C. G., Appellees

          FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT NO. D-1-GN-16-002211, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING

          Before Chief Justice Rose, Justices Goodwin and Bourland

          MEMORANDUM OPINION

          JEFF ROSE, CHIEF JUSTICE.

         This is an interlocutory appeal from an order denying the plea to the jurisdiction of appellant, Mike Morath, in his official capacity as Commissioner of the Texas Education Agency (TEA), in a case challenging his administration of the 2015-2016 STAAR assessments. We will affirm the order.

         Background

         Chapter 39 of the Texas Education Code requires the creation and implementation of a statewide assessment program to measure Texas public-school students' mastery of state-mandated curriculum standards. See generally Tex. Educ. Code §§ 39.021-.39. To that end, subsection 39.023(a) of this chapter directs TEA to "adopt or develop appropriate criterion-referenced assessment instruments designed to assess essential knowledge and skills in reading, writing, mathematics, social studies, and science" to be used in the State's student-assessment program. Id. § 39.023(a). Specifically, section 39.023 requires that TEA design assessment instruments that test students' knowledge and skills in reading and math at grades three through eight, writing at grades four and seven, science at grades five and eight, and social studies at grade eight. See id. § 39.023(a)(1)-(5). TEA must also adopt end-of-course assessments for English I and II, Algebra I, biology, and U.S. history. Id. § 39.023(e). Since 2012, TEA has used the State of Texas Assessments of Academic Readiness (STAAR) to fulfil these statutory directives. See Morath v. Texas Taxpayer & Student Fairness Coal., 490 S.W.3d 826, 835 (Tex. 2016).

         In 2015, the Legislature amended section 39.023 by adding directives, applicable to the 2015-2016 school year, regarding the STAAR exams' validity, reliability, and duration:

(a-11) Before an assessment instrument adopted or developed under Subsection (a) may be administered under that subsection, the assessment instrument must, on the basis of empirical evidence, be determined to be valid and reliable by an entity that is independent of the agency and of any other entity that developed the assessment instrument.
(a-12) An assessment instrument adopted or developed under Subsection (a) must be designed so that:
(1) if administered to students in grades three through five, 85 percent of students will be able to complete the assessment instrument within 120 minutes; and
(2) if administered to students in grades six through eight, 85 percent of students will be able to complete the assessment instrument within 180 minutes.

Act of May 31, 2015, 84th Leg., R.S., ch. 1006, §§ 1, 5, 2015 Tex. Gen. Laws 3554, 3554-55 (codified at Tex. Educ. Code § 39.023(a-11), (a-12)).

         In a post-session legislative briefing document analyzing these additions to section 39.023, TEA acknowledged that it needed to revise the STAAR exams as a result of the 2015 amendments to section 39.023, but explained that it would not be able to design, in time for the 2015-2016 school year, shortened exams that met the subsection (a-12) duration limits:

Action required for 2015-16 School Year: . . . . The grades 3-5 reading and mathematics assessments must be revised and standards reset to meet the time requirements of subsection (a-12). The grades 6-8 reading and mathematics assessment standards will also need to be reviewed because those reporting ...

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