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Six Houston-area school districts have filed a lawsuit in Travis County seeking a court order to prohibit TEA from enforcing its interpretation of a new law, § 28.0216 of the Texas Education Code. The statute provides that a school district grading policy:

1. (1) must require a classroom teacher to assign a grade that reflects the student’s relative mastery of an assignment;
2. (2) may not require a classroom teacher to assign a minimum grade for an assignment without regard to the student’s quality of work; and
3. (3) may allow a student a reasonable opportunity to make up or redo a class assignment or examination for which the student received a failing grade.

Many Texas school districts use grading policies mandating that a student who falls behind cannot receive a failing grade below a certain minimum, usually a 50. These minimum grade policies are described by supporters as a “key tool for keeping kids in school.” For example, students who receive failing grades in the first grading period may still gain credit for the course and will continue to progress towards graduation, provided they earn passing grades in subsequent grading periods. According to the plaintiffs’ petition, at the start of the 2009-2010 school year a majority of school districts in Texas employed similar minimum grading policies.

Shortly after the 2009-2010 school year began, the Commissioner of TEA issued an official correspondence to all superintendents in Texas regarding the scope of Senate Bill 2033, which added § 28.016 to the Texas Education Code during the 81^st Legislative Session. Specifically, the Commissioner indicated TEA’s position that the law not only prohibits minimum grades on assignments but also “for each grading period including six weeks, nine weeks, or semester grades.” Otherwise, according to the Commissioner, the purpose of the legislation would be defeated and grades would not reflect a student’s mastery as required.

TEA issued its letter to superintendents at the request of the Texas Classroom Teachers Association. Teachers have generally been supportive of TEA’s interpretation of Section 28.016, viewing the districts’ position as a case of administrative overreaching. State Senator Jane Nelson, who authored Senate Bill 2033, has also publicly stated her support for TEA and condemned the districts’ lawsuit.

The districts challenging TEA seek a ruling from the court that the Commissioner’s interpretation of § 28.016 is incorrect, exceeds the Commissioner’s authority and violates the Administrative Procedures Act. The six plaintiffs are Fort Bend, Aldine, Klein, Alief, Anahuac and Clear Creek independent school districts. Other districts are expected to join the litigation.