In Morath v. Lewis, No. 03-16-00603-CV, 2018 WL 1527875 (Tex. App. Mar. 29, 2018), the appeals court said, yes, and allowed a group of parents to proceed with their claim that the administration of the 2015-2016 STAAR exam violated their students’ rights.  Chapter 39 of the Texas Education Code is the law that requires the creation and implementation of a statewide assessment program to measure Texas public-school students’ mastery of state-mandated curriculum standards. Since 2012, the Texas Education Agency (TEA) has used the State of Texas Assessments of Academic Readiness (STAAR) to fulfil these statutory directives.

In 2015, the Legislature amended Education Code § 39.023 by adding directives, applicable to the 2015-2016 school year, regarding the STAAR exams’ validity, reliability, and duration.  This included requirements that for grades three through five, 85 percent of students will be able to complete the assessment instrument within 120 minutes; and for grades six through eight, 85 percent of students will be able to complete the assessment instrument within 180 minutes.

TEA attempted to shorten the tests by eliminating certain portions, but in the end it was determined that the elimination of those test questions did not bring the tests within the shortened time periods prescribed by the Legislature.  As a result of this, as well as “ongoing reporting issues” with the testing vendor, consequences for failing the test were removed for 5th and 8th graders and districts were encouraged to use their discretion with regard to decisions related to accelerated instruction and retention of students.

Parents of several third, fifth, and eighth grade students who did not perform satisfactorily on the 2015-2016 STAAR exam, sued TEA Commissioner Michael Morath, in his official capacity, for declaratory and injunctive relief related to the spring 2016 STAAR exams.  According to the plaintiffs, Morath acted outside of his statutory authority by adopting and administering STAAR exams that did not comply with limits on test duration.  The parents asserted that the students were harmed by Morath’s “ultra vires” acts because results from the non-compliant tests are used to determine a school district’s or campus’s accountability rating, to make retention and promotion decisions, and to label students as at risk for dropping out.

As relief, they requested declarations that the 2015-2016 STAAR exams did not comply with the statute’s time constraints; that Morath acted outside his statutory authority in developing, adopting, and administering tests that did not comply with the law; and that the non-compliant exams were not valid “assessment instruments” under the Education Code. The parents also requested injunctive relief prohibiting TEA from using the results of the 2015-2016 STAAR assessments and ordering TEA to destroy all score results from those same exams.

Morath challenged the suit in a plea to the jurisdiction, arguing that the ultra vires claim was not viable and, in the alternative, that parents lacked standing to bring the ultra vires claim. The district court issued an order denying Morath’s plea to the jurisdiction, and Morath appealed.

The court of appeals affirmed the decision to let the lawsuit proceed.  The court found that the parents had standing to bring suit against Morath.  According to the parents, which Morath did not dispute, their students have been designated as “at risk” under the Education Code and certain of those students have already been subject to, or are imminently subject to, the consequences of a such a label, including, for example, being subject to accelerated instruction. Further, the parents alleged that at least one of the schools attended by the students had its accountability rating lowered based on the result of the non-compliant tests. To that extent, the parents alleged injuries sufficient to establish standing.

The appeals court also held that the suit raised viable claims.  The parents alleged that Morath acted outside of his statutory authority by adopting and using assessments that were not in compliance with the law, specifically with respect to the test-duration limitations adopted in 2015.  According to the court, while those provisions granted discretion in how those test-duration limits would be met, it did not provide discretion to ignore the limits. Furthermore, while such “ultra vires” claims are limited to prospective relief, the court of appeals determined that the parents properly sought relief limiting the future uses of the results of the 2015-2016 STAAR assessments and preventing TEA from administering non-compliant tests in the future.  The court ultimately concluded that the parents established their right to sue and raised legitimate claims against the Commissioner.

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