Grade Stagflation

Hundreds of school districts across the state can continue giving failing students inflated grades, after a Travis County Civil Court judge declined to rule Monday in a lawsuit challenging the state’s interpretation of a new law mandating “honest grades.”

The lawsuit, filed by 11 Houston-area districts, seeks to preserve the right of all school districts to give students minimum grade percentages, usually a 50, when they actually scored lower or didn’t complete the work at all. The Texas Education Agency and lawmakers who passed the measure argue the minimum grades give students marks they didn’t earn — and teach them the lesson that actions don’t have consequences. The Houston districts and many teachers support the minimum grades, saying they give struggling students a realistic chance to reclaim their academic standing with hard work.

The suit challenged the interpretation of the law in an Oct. 16 letter from state Texas Commissioner of Education Robert Scott, who the plaintiffs’ attorney, David Feldman, asserted had improperly issued an administrative rule to enforce mandates never stated in the “plain language of the law.”

Passed last session by state Sen. Jane Nelson, R-Flower Mound, the legislation was intended to apply to any kind of student grade, Nelson has said. But it suffers from sloppy writing: It refers to “assignments” and “exams” but does not mention far more important grades for six- or nine-week terms or semesters, court testimony revealed. When districts first posed questions to Scott about the legislation, he issued the following guidance: “TEA understands this legislation to also require honest grades for each grading period including six weeks, nine weeks, or semester grades. … [I]f actual grades on assignments are not used in determining a six weeks grade, the purpose of the legislation has been defeated. … If the six weeks grades do not reflect the actual assignment grades, they would not reflect academic achievement or demonstrated proficiency.”

Attorneys representing Scott and the TEA said the intent of the law should have been clear to districts in the first place. “What the district said was, we didn’t hear the magic words” specifically banning the practice for whole-term grades, “so we’re just going to continue giving minimum grades on the back end,” said Assistant Attorney General Nichole Bunker-Henderson, who's representing the defendants.

Eliminating the minimum grades would defeat any incentive for a failing student to do better, the districts argue. If a student, for instance, earned a 20 percent in the first nine-week marking period, even a grade of 100 percent in the second nine weeks would only average 60 percent for the semester — still failing.

“So why even try? It makes it mathematically impossible for a student to pass,” said Sarah Winkler, a member of the Board of Trustees in Alief ISD, one of the districts suing the state. “We’re not giving students a passing grade. … It just leaves them a little light at the end of the tunnel.”

In addition to Alief, the school districts suing are Fort Bend, Anahuac, Aldine, Livingston, Clear Creek, Humble, Klein, Deer Park, Eanes and Dickinson. About half the school districts in Texas have minimum-grade policies, Winkler said.

The plaintiffs sought Monday to get a temporary injunction from 200th District Court Judge Gisela Triana-Doyal or to have her simply validate their interpretation and invalidate TEA's guidance. Triana-Doyal declined to act, however, because the state attorney general’s office, representing Scott and the TEA, assured her that the agency had no intent to enforce the grading law in advance of the case’s resolution. In fact, attorneys for Scott said he believed he had no authority to enforce the statute, regardless of the lawsuit. So the outcome of the hearing — no action — merely preserves the status quo, with districts, for now, ignoring the TEA guidance. Triana-Doyal said she hoped the case could be decided before next school year, to allow school districts to set grading policy as needed.

Triana-Doyal also made clear she did not intend to pass judgment on the academic merits of the policy. Rather, she directed attorneys to keep their arguments limited to the issue of whether Scott, as commissioner, had overstepped his authority. “I’m not the one who is going to decide whether this is good policy, bad policy or otherwise,” she said, cutting short attorneys’ arguments on academic merits. “I’m not the Legislature, and I’m not going to legislate.”

The Legislature is where the dispute ultimately returns, said Winkler, the Alief school board member. The defendants expect Nelson or other legislators to return next session and tighten the law’s language to match their intent. But the lawsuit, Winkler said, will give districts a way to preserve their policies while they mount another challenge in the political arena.

“I absolutely think they’ll come back again and change the language,” she said of minimum-grade opponents. “But I know some legislators who disagree with them.”