r
i
/
DOCKET NO. 043-R8-0306
JENNIFER ADAMS. RITA VASQUEX. § REFORE THE
and
EDITH
PORTER
§
§
§
V
§
COMMISSIONER
OF
E D U C AT I O N
§
Y S I . E TA I N D E P E N D E N T §
S C I I O O L D I S T R I C T § T H E S TAT E O F T E X A S
DECISION OK THK COMMISSIONER
Statement ol the Case
Petitioners, Jennifer Adams, Rita Vasquez, Edith Porter, and Dusty Phillips.
complain of actions taken by Respondent, Yslcta Independent School District.
Christopher Maska is the Administrative Law Judge appointed by the Commissioner of
Education. Petitioners are represented by Richard L. Arnetl, Attorney at Law, Austin,
Texas. Respondent is represented by Rosemary M. Marin, Attorney at Law, El Paso.
Texas.
The Administrative Law Judge issued a Proposal for Decision recommending that
Petitioners' appeal be denied. Exceptions and replies were timely filed and considered.
Findings of Fact
After due consideration of the record and matters officially noticed, it is
concluded that the following Findings ol* Fact arc supported by substantial evidence and
are the Findings of Tact that can best support Respondent school district's decision1:
1. Petitioners arc teachers at J. M. Hanks High School.
2. The J.M. Hanks High School 2005-2006 Lesson Plan Template
Instructions reads in pertinent part2:
1 llii!, standard of review is described in liosworth v. East Central Independent School District. Docket No.
OW-R1-803 (Comm't I due. 2003).
Sections 1-10 of the template arc quoted verbatim.
041-R8-0306
1. If you have Word on your computer, you can open the template
easily and save to your hard drive under my documents or desktop.
2. Double click next to the words "Teacher Name'" and type in your
name, subject, lesson title and date with an underscore. The underscore
will help make those items stand out.
3. Double click inside the list box titled "TEKS" and type in the
TEKS you will be teaching in your lesson(s). Make sure to write the
reference number and letter along with the description of the TEKS (refer
to your Scope and Sequence for the TEKS).
4. Double click inside the next box to the right entitled "TAKS
Objective/Lesson Objectives and type in the corresponding information
under each title. Be sure to write the TAKS Objective number with the
description of the objective (you may refer to your "'TAKS Booklet" given
to by your department chair or Mrs. Graves). 'The lesson objectives you
write should also appear on the chalkboard or bulletin board in your
classroom for students to sec.
5. Double click inside the "Lesson Activities/Strategies" box and
begin writing your lesson for the day and number. Be sure to type in the
resource(s) the students will be using along with the activity. For
example: 1. Students will read pages 5-15 from the novel "Night'' by Ellie
Wicsel.
6. Go on to the next box tilled "Assessment" and type in the different
assessments you will be using to check students knowledge. For example:
1. Students will discuss the pages read in small groups and write down
three important events that occurred. 2. Students will share with the class
what their finding. 3. Students will find vocabulary words, write the
words on cards, define and add to Word Wall.
7. If there are any modifications and/or differentiated activities for
your students, then write them in the box titled "Differentiated Activities
and/or Modification Special Populations'1 box.
8. I lomework is optional but if you do not assign homework, be sure
to type in what the students will be required to do and what materials they
will be using.
9. The cognitive level will cover the two weeks and all activities.
This piece is important for keeping in mind what level of difficulty of your
lesson. Type in an X next to the lcvel(s) difficulty that apply.
(M3-R8-0306
10. When you have completed your lesson plan or while working on
your lesson plan, make sure to click on "File" and then click on "Save As"
so that you can save the two weeks* lesson plan (for example: "Lesson
Plan Aug 8 to Aug 10) and still have a blank template saved under
"Lesson Plan."
3. It took teachers between 50 minutes and two hours to complete lesson
plans using the required template.
4. Respondent granted in part Petitioners' grievance by removing the
requirement to write out the TEKS presented.
5. Petitioners failed to object, make offers of proof, or otherwise demonstrate
harm as to its claims that the school board hearings were arbitrary and capricious.
Discussion
Petitioners contend that Respondent violated Texas Education Code section
11.164(a)(6) by requiring them to draft lesson plans according to a particular template.
Petitioners also contest the fairness of the hearings given.
Texas Education Code section 11.164
Texas Education Code section 11.164 reads in relevant part:
(a) The board of trustees of each school district shall limit redundant requests
for information and the number and length of written reports that a classroom
teacher is required to prepare. A classroom teacher may not be required to prepare
any written information other than:
(6) a unit or weekly lesson plan that outlines, in a brief and general
manner, the information to be presented during each period at the secondary level
or in each subject or topic at the elementary level;
(b) The board of trustees shall review paperwork requirements imposed on
classroom teachers and shall transfer to existing noninstructional staff a reporting
task that can reasonably be accomplished by that staff.
(c) 'This section does not preclude a school district from collecting essential
information, in addition to information specified under Subsection (a), from a
classroom teacher on agreement between the classroom teacher and the district.
In particular, subsection (a)(6) is at the center of the present controversy. The
requirement that is being contested is a lesson plan requirement for high school teachers.
The principal at Hanks High School required teachers to create lesson plans using a
043-R8-0306
-3-
template. Hence, it needs to be determined whether that template requires more than for
teachers to outline, "in a brief and general manner, the information to be presented each
period.*' There are two primary issues raised: what does it mean to outline in a brief and
general manner and what is meant by "the information to be presented"?
Outline
The word "outline" has been defined as "to indicate the principal features of
different parts of <outlined their responsibilities"^" Merriam Webster's Collegiate
Dictionary, Tenth Edition, 1993. The word 'outline" indicates a certain briefness and
generality. The statute specifically requires a lesson plan to be both brief and general.
"General" has been defined in case law:
In Webster's Unabridged Dictionary we find the following definition of the word
•general*: M. The whole; the total; that which comprehends all of the chief parts;
opposed to particular.'
('arter v. Carter. 359 S.W.2d 184, 187 (Tex. Civ. App.-Waco 1962, writ dism'd w.o.j.).
A lesson plan by its nature is designed to comprehend all of the chief parts of the
instruction to be given. "General" is also opposed to "particular." Not only is a lesson
plan required to be "general" it is also required to be "brief." "Brief has been defined as
• I. short in duration, extent or length 2 a: concise b : curt abrupt." Id. The words of the
statute allow for lesson plans that arc short in length and that indicate the principal
features of the information presented but not the particulars. This does not entirely
answer the questions of how general is "general" and how short is "short."
Texas Government Code section 312.005 provides:
In interpreting a statute, a court shall diligently attempt to ascertain legislative
intent and shall consider at all limes the old law, the evil, and the remedy.
The caption of Texas Education Code section 11.164 is "Restricting Written
Information." While the goal is to limit "the number and length of written reports." a
number of reports such as lesson plans are allowed. The particular portion of the statute
043-R8-0306
-4-
currently at issue was not in original in statute. As originally passed, Texas Education
Code section 11.164 required districts to consider the number and length of reports. Act
of May 29. 1997. 75lh Leg., R.S., eh. 1320, 1997 Tex. Gen. Laws 5002. Six years later,
Texas Education Code 11.164 assumed its current form. The old law required school
districts to review their paperwork procedures. The remedy was to only allow certain
paperwork. What the evil was can be seem by examining the legislative history.
The relevant provisions of Texas Education Code section 11.164 were originally
filed as SB 13. This bill passed the Senate but was never taken up by the House. Senator
Zaflirini. the author of SB 13. amended I IB 3459 to include the language from SB 13 in a
parliamentary maneuver that gave the I louse more lime to consider the change. Senate
Video. May 27, 2003, 6:15:25. There was very little discussion of the amendment.
Senator Zaffrini did little more than explain that the amendment was identical to SB 13
and that the amendment would give the I louse additional time to take action.
Legislative History
The Senate Education Committee Hearing on SB 13 does indicate what problem
was sought to be remedied. Senator Ogden asked the witnesses what reports the bill
would allow teachers to veto. Texas Senate Education Committee, April 1. 2003, video
3:05:23. Lauren Wayland of the Association of Texas Professional Educators testified:
Senator Ogden, I may have some answers to your questions. We recently did an
informal survey with some of our members about their paperwork requirements.
One of things we asked on that survey are what are the paperwork requirements
and another was how much time do you spend in a week on them. The average
lime was 11 hours in a week in paperwork requirements. Some of the paperwork
requirements that they noted were various classroom documentation including
discipline of students, curriculum alignments. Believe it or not something we hear
very frequently from our members is that their districts require them when they
are writing their lesson plans to write the entire TEKS, for which that classroom,
that period, that they are teaching aligns. Not just the number of the TEKS, you
know Texas Essential Knowledge and Skills 1.2, but to write out the 'TEKS. We
think that the legislation as written would prohibit that practice. This is
something we get a lot of complaints about.
043-R8-0306
-5-
Id at 3:16:40. The problem to be righted is teachers spending too much time on
paperwork. In particular, this includes lesson plan requirements for teachers to write out
what can succinctly identified in another way. The statute's brevity requirement prohibits
such requirements. The statute should be interpreted in such a way as reduce the time
teachers need to spend on paperwork.
The lesson plans required by Respondent arc in an electronic format. Teachers
can cut and paste. Petitioners were granted some of the relief they requested. The Level
II decision maker ruled that teachers could not be required to write out the complete
TEKS. Petitioners argue that even so the weekly lesson plans required are not brief and
general. When the requirement for writing out TEKS is removed the lesson plans
submitted would 111 on page and be easily readable. 'The teachers testified that plans look
50 minute to two hours to complete. By statute, school districts arc required to provide
teachers with 450 minutes of planning and preparation lime every two weeks. Tt:x.
Ein.'C. Codi: § 21.404. Respondent's lesson plan requirement does not violate the intent
of the statute to limit the amount of time teachers need to spend to complete paperwork.
Respondent's requires only a brief and general outline in the lesson plan. Petitioners
contend that certain elements of the plan are not brief and general. However, the
statutory requirement is that a lesson plan may only outline in a brief and general manner.
The requirement is not that each of the constituent parts of a lesson plan must be brief and
general. As the outline required by Respondent as a whole is brief and general.
Respondent's lesson plan requirement complies with the law.
Information to be Presented
Petitioners contend that Respondent's lesson plan requires more than an outline of
the information to be presented. Petitioners argue that certain elements of the lesson plan
are not information to be prescnled. In particular, Petitioners list:
I) the TEKS.
O43-R8-O306
-6-
2) The TAKS objective/lesson objectives;
3) The "strategics";
4) The "modifications and or differentiated activities"; and
5) I he "cognitive levels."
The fact that the words of a lesson plan are not repeated to the students does not mean
that a lesson docs not outline in a brief and general manner the information to be
presented. The issue is whether a lesson plan properly describes the information
conveyed.
The TEKS are the Texas Essential Knowledge and Skills. Texas Education Code
section 28.002(c) provides:
The Stale Board of Education . . . shall by rule identify the essential knowledge
and skills of each subject of the required curriculum and that all students should
be able to demonstrate. . . As a condition of accreditation, the board shall
require each district to provide instruction in the essential knowledge and skills at
appropriate grade levels.
The TEKS are a description of the information that teachers arc required by law to
present. A TAKS objective is an objective designed to cover what will tested in the
Texas Assessment oT Knowledge and Skills test. The 'TAKS objectives arc descriptions
ol* what a district believes are the required elements that will be tested. The lesson
objectives are directly communicated to students. The Lesson Plan Template Instructions
provide. "The lesson objectives you write should also appear on the chalkboard of
bulletin board in your classroom for students to sec." While a strategy may not be
repeated to the students, the strategy to be used does describe what is presented to the
students. Modifications and or differentiated activities box need only be filled out if there
are in fact modifications and or differentiated activities. Assuming that there arc such,
this would describe what was being presented to the students. Cognitive level is a cheek
off that indicates the level of difficulty of the material. This is a genera! description of
what is presented. All of the challenged elements describe the information to be
presented.
Procedures
043-R8-0306
-7-
Petitioners question a number of the procedures used in the grievance process. A
grievance hearing needs to be a fair hearing. To conducl an unfair hearing would be
arbitrary and capricious. Objections need lo be made as the Commissioner reviews a
grievance hearing under the substantial evidence standard. Tex. Educ. Code § 7.057(c).
This is for the most part the standard set forth in Texas Government Code sections
2001.174-175.
Petitioners contend that they should have had more time to review the district's
evidence, that additional time for a response should have been granted, and that ihc
superintendent should not have been allowed to be in the room when the board
considered the grievance in closed session. However, as to all of these claims, Petitioners
failed to make objections, make an offer of proof, or otherwise demonstrate harm.
Conclusion
The required lesson plan at issue does not violate Texas Education Code section
11.164. Teachers are only required lo provide a brief and general outline of the
information presented lo their students. Petitioners received a fair hearing.
Rcplv to Exceptions to the Proposal for Decision.
Petitioners raise a number of issues in their Exceptions to the Proposal for
Decision. Most arc answered by Proposal for Decision itself.
Pelitioners claim there is no procedure were they could show harm related lo the
superinlcndenl being present ai the board meeting. Petitioners could have moved to
supplement the local record under 19 Tex. ADMIN. Code § 157.1073(0 in order to showthat they had no opportunity to object; to show that an ex parte statement was made; and
to show that such statement constitutes harm.
Petitioners contend that a violation occurs if a district requires teachers lo use
more than one-half of iheir statutory preparation time. In the present case, one teacher
spent more than half of her statutory preparation time. Most teachers used significantly
less lime lo fill out the template.
043-R8-O306
-8-
Conclusions of Law
After due consideration of the record, matters officially noticed, and the foregoing
Findings of Fact, in my capacity as Commissioner of Education, 1 make the following
Conclusions of Law:
1. The Commissioner of Education has jurisdiction over this case under
Texas Educalion Code section 7.057.
2. Texas Education Code section 11.164(a) was designed lo decrease the
time teachers spent on paperwork.
3. There is no violation of Texas Education Code section 11.164(a)(6) at the
secondary level if a required lesson plan as a whole, not just components of the lesson
plan, does no more than outline in a brief and general manner the information to be
presented during each period.
4. The word "general" as used in 'Texas Education Code section 11 164(a)(6)
means comprehending all of the chief parts, opposed to particular.
5. The word "brier as used in Texas Education Code section 11.164(a)(6)
means short in length.
6. The word "outline" as used in Texas Education Code section 11.164(a)(6)
means lo indicate the principal features of different parts of the information lo be
presented
7. Lesson plans may be required if they arc short in length and indicate the
principal features of the information presented but not the particulars. TKX. Educ. Code
$ 11.164(a)(6).
8. School districts arc required to provide teachers with 450 minutes of
planning and preparation time every two weeks. Tkx. Educ. Code § 21.404.
9. The lesson plan required by Respondent does not violate the requirements
that a lesson plan cannot be more than a brief and general outline.
043-R8-0306
-9-
10. Texas Education Code 11.164(a)(6) limits a unit or weekly lesson plan to
be no more than a brief and general outline of the information to be presented for each
period. This does not mean that a lesson plan must use words that are actually presented
to the students. Words lhat describe the information lo be presented to the students are
appropriate to include in a lesson plan.
11. Respondent's requirement that teachers include TEKS, TAKS
objective/lesson objectives: strategies; modifications and or differentiated activities; and
cognitive levels does not require a lesson plan to include more than a description of the
information lo be presented.
12. Respondent's lesson plan docs not violate Texas Education Code section
11.164(a)(6).
13. The Commissioner reviews a board's decision on a grievance hearing
using the substantial evidence standard. 'This is for the most pari the standard sel forth in
Texas Government Code sections 2001.174-175. A board's decision may be overturned
if it is arbitrary and capricious.
14. The record does nol support a determination that the grievance was
arbitrary and capricious because ihe instances Petitioners allege concerning the fairness of
the hearings were nol objected to by Petitioners or no harm is shown by the record.
15. Petitioners' appeal should be denied.
043-R8-0306
-10-
ORDER
After due consideration of the record, matters officially noticed and the foregoing
Findings of Fact and Conclusions of Law, in my capacity as Commissioner of Education.
it is hereby
ORDERED that Petitioners' appeal be, and is hereby, DENIED.
SIGNED AND ISSUED this /OfW day ti ^y J£l/\
<-'SmA
■
x-vfc
ROBERT SCOTT
COMMISSIONER OF EDUCATION
043-R8-0306
-I
I-
,2012.