Texas Supreme Court weighs whether to allow state’s education agency to oust Houston school board

Sign up for The Brief, our daily newsletter that keeps readers up to speed on the most essential Texas news.

The Texas Supreme Court on Thursday heard arguments on a yearslong case over whether the Texas Education Agency has the authority to remove all of the Houston school district’s board members and temporarily replace them with a state-appointed board. At the center of the hearing was the impact of a law that updated the education code last year and that TEA lawyers argued cleared the path to implement the agency’s plan.

The state’s highest court took the case nearly two years after the Third District Court of Appeals sided with the Houston Independent School District and upheld a temporary injunction barring TEA Commissioner Mike Morath from taking over the board in response to the continued low performance of HISD’s Phillis Wheatley High School as well as allegations of misconduct by trustees.

The current HISD board will remain in office as long as the injunction stands. If the court were to eventually side with the TEA and overturn the injunction, state education officials could install a new board, which in turn could vote to terminate the HISD lawsuit.

Morath moved to replace HISD’s school board in 2019 arguing that state law gave him the authority to temporarily appoint new board members in school districts that had reported low academic performance for five consecutive years. The TEA further argued that the commissioner had the power to replace the board in any district that had a conservator appointed by the state for more than two years. Conservator Doris Delaney had overseen HISD’s Kashmere High School since 2016 and her authority was extended to the district level in 2019.

The Third District Court disagreed, ruling that Morath had misinterpreted the law and failed to properly follow procedures.

Appealing the decision during oral arguments Thursday, TEA’s attorney Kyle Highful said that factoring major updates to the Texas Education Code introduced by Senate Bill 1365, which was passed last year, would “greatly simplify” the case.

For instance, appeals court justices previously ruled that Delaney’s time overseeing Kashmere High School did not count toward her time as a district-level conservator, so the state had yet to meet the two-year requirement of having a district-level conservator to trigger state law. Highful said this new law has now removed the distinction between campus-level and district-level conservators.

He also noted that while Wheatley High School has recently earned a passing grade, the school had seen years of consecutive failures beforehand.

“The court should go ahead and take the opportunity to resolve this dispute now both for judicial economy because the case has been moving up and down through the courts for several years,” Highful said, “and because the HISD students are still in need of state intervention.”

In response, HISD’s attorney David Campbell said it would be appropriate to remand the case for a trial court to consider changes to the temporary injunction based on the new law.

But he stressed that the current temporary injunction had been in place for almost three years, adding that HISD was ready to “move expeditiously” and make a case for a permanent injunction in 2020. On the other hand, he said there has been limited ability to update their arguments to take into account the new law.

“We have not tried to delay things in any way. If we could have developed facts under the new law, we would have. We haven’t been given that opportunity, because the case has been on appeal,” Campbell said.

In his questioning, Justice Brett Busby expressed concern about setting a precedent of applying a new law without allowing parties to develop facts.

Highful responded that the new law wasn’t “sprung on” HISD, saying that in a previous briefing TEA attorneys have explained what the new law does and how it applies to the case.

The Texas Supreme Court did not make a ruling during Thursday’s hearing.