Fail-safe?

Report cards have long caused fights between parents and kids. Now they've sparked a battle between school districts, teacher’s unions and the Texas Education Agency.

As many as ten schools are preparing to take the agency to court in an effort to keep their minimum grade policies — which assign higher numeric scores to failing grades.  

While no suits have been filed yet, Fort Bend Independent School District approved plans on Tuesday to move forward. David Feldman, the districts’ lawyer, refused to name the rest of his clients but confirmed there would be nine or ten districts involved at the outset. He promised the legal action would come soon.

The debate centers on who has the right to determine grading policy, the district or the individual teacher. Behind this discussion is a more delicate question: Where to draw the line between setting high standards and allowing second chances for at-risk kids.

The El Paso Independent School District, for example, assigns students a minimum score of 50 for a failing grade during the first six weeks of a grading period — regardless of how students actually scored. Patricia Hughes, the district's school board president, said the policy offers a safety net for students who might otherwise give up.

During the last legislative session, Sen. Jane Nelson, R-Flower Mound, raised concerns about school districts allegedly demanding that teachers give kids a passing grade of 70, even if the student did not hand in the assignment. She crafted SB 2033 to target such practices, then shepherded it through the legislative process. The bill had little debate and went on the House local calendar — passing easily. It passed unanimously in the Senate.

But soon school districts began raising questions. The bill forbade school districts from having minimum grade policies on individual assignments, but didn’t specify whether it applied to report card grades as well. By the time the education commissioner sent out a letter saying grading periods should be included, it was already October.

School districts like Dallas, Fort Bend and El Paso all argued they could not immediately implement the changes. And more important, some said they didn’t want to.

“If the legislation or the bill had in fact referenced report cards, I can assure you that it would have received a whole lot more attention than it did during the session,” Feldman said.

The Texas Association of School Administrators (TASA) and the Texas Association of School Boards concur.

“We still believe it was about assignments and examinations,” said Amy Beneski, spokesperson for the school administrators. Her association was neutral on the bill when they believed it referred only to assignments and exams, but since the commissioner’s letter, Beneski said districts have been calling and asking what to do.

Nelson's office confirmed that the senator always intended for the bill to apply to report card periods. That doesn’t make it easier for some districts to swallow.

“We’re in violation of the law. So are a thousand other school districts,” El Paso's Hughes said.

The Texas Association of School Boards spokeswoman Jackie Lane said policies like El Paso’s make sense. Lane said that while most schools were still failing students even with minimum grade policies, Nelson insinuated that districts were passing students who hadn't done the work. 

Or as Feldman says, "A failure is a failure is a failure." Even with minimum grades. 

Feldman said the districts he represents will ask the court to stop the commissioner from taking any action, and to determine whether the interpretation of the law is correct.

Teachers’ groups, on the other hand, are lining up in support of the law, which transfers power from the district to the individual teacher. “You kind of figure teachers give grades and the teacher’s ability to give grades has long been protected by state law,” said Louis Malfaro, the president of local teachers’ union Education Austin.

Dwight Harris, a Fort Bend teachers’ union field organizer, was so upset by his district’s decision that he reached out to the state branch of the American Federation of Teachers. “I don’t see any advantages in giving a student something they didn’t earn,” he said.

In its newsletter, the state union promised to support the bill if and when litigation began.

As both sides rev up in anticipation of litigation, the TEA is still wondering why the districts are bothering to file suit. “There’s this assumption that the TEA grade policy SWAT team is in their van headed to your school right now,” said David Anderson, the agency's legal counsel.

According to Anderson, there are a variety of rules the agency doesn’t routinely enforce, from saying the Pledge of Allegiance to certain lunchroom standards.  Minimum grade policy isn’t at the top of anyone’s enforcement list.

Anderson also points to the various options still left to schools who want to give second chances. School districts can still let students re-do assignments or drop lowest grades, he said.

But in most cases, that still means that students who already failed would have to do twice the work to catch up. And while teachers’ groups say schools should reflect the real world, some districts say students need a second chance.

Feldman says kids may face extenuating circumstances early on in the semester and fail a few assignments. They'll only be able to pass, he says, if they make excellent grades the rest of the semester. 

“They’re never going to pass,” he says bluntly. “Unless all of a sudden they turn into a superstar. And if they were a superstar, they wouldn’t get a [failing grade] in the first place.”

Even Anderson acknowledges the high stakes nature of the fight. The dispute, he said, is a “much more philosophic debate about how to deal with a kid who has the one horrific grade and it kind of dooms them.”

With Texas’ high dropout rate, those advocating minimum grades say they keep kids from giving up too early.

“Grading is subjective anyway,” argues TASA's Beneski. “I don’t think anyone was telling teachers to not do what they thought was best, but the policy was about keeping kids from dropping out of school.”