In June, Texas Commissioner of Education Mike Morath embarked on the largest school takeover in recent history, firing the governing board and the superintendent of the Houston Independent School District after one of its more than 270 schools failed to meet state educational standards for seven consecutive years.

Though the state gave Houston’s Wheatley High School a passing score the last time it assigned ratings, Morath charged ahead, saying he had an obligation under the law to either close the campus or replace the board. He chose the latter.

Drastic intervention was required at Houston ISD not just because of chronic low performance, he said, but because of the state’s continued appointment of a conservator, a person who acts as a manager for troubled districts, to ensure academic improvements.

When it comes to charter school networks that don’t meet academic standards, however, Morath has been more generous.

Since taking office more than seven years ago, Morath has repeatedly given charters permission to expand, allowing them to serve thousands more students, even when they haven’t met academic performance requirements. On at least 17 occasions, Morath has waived expansion requirements for charter networks that had too many failing campuses to qualify, according to a ProPublica and Texas Tribune analysis of state records. The state’s top education official also has approved five other waivers in cases where the charter had a combination of failing schools and campuses that were not rated because they either only served high-risk populations or had students too young to be tested.

Only three such performance waivers had been granted prior to Morath, who declined numerous requests for comment. They had all come from his immediate predecessor, according to the Texas Education Agency.

One campus that opened because of a waiver from Morath is Eastex-Jensen Neighborhood School, which is just 6 miles north of Wheatley High School. Opened in 2019, Eastex didn’t receive grades for its first two years because the state paused all school ratings due to the adverse impacts of the pandemic. In 2022, the last time the state scored schools, Eastex received a 48 out of 100, which is considered failing under the state’s accountability system. The state, however, spared campuses that received low grades from being penalized for poor performance that year.

“The hypocrisy here seems overwhelming,” said Kevin Welner, an education policy professor at the University of Colorado Boulder. “This is the same education commissioner who justified taking over the entire Houston school district based largely on one school’s old academic ratings.”

Authorized by the Texas Legislature in 1995, publicly funded charter schools received a reprieve from some state regulations that govern traditional public schools in exchange for innovations that would lead to high academic performance.

Along with that flexibility have come strict accountability measures. A state law requires charters to close if they fail three years in a row. In order for a charter network to grow, 90% of its campuses must have passing grades in the most recent academic year, according to state rules. A previous rule that was scrapped in 2017 had also stipulated that charter networks were ineligible for expansion if even one of their campuses received the state’s lowest possible rating.

The commissioner, however, can waive such rules, and Morath has repeatedly done so in the case of Texas College Preparatory Academies, the charter network to which Eastex belongs.

In response to questions about Morath’s approval of waivers for charters that did not meet the state’s academic performance standards, Texas Education Agency spokesperson Jake Kobersky sent a statement that said a vast majority of charter school expansions do not require one. For those that do, the statement said, the agency conducts a thorough review that includes assessing the “entire portfolio of campuses, along with the requestor’s plan to address any and all issues at campuses resulting in the need for a waiver.”

A waiver is just a first step in the expansion process, according to the statement. After receiving a waiver from Morath, a charter operator must ask him for explicit permission to expand. Of the 17 waivers Morath granted to charters with too many failing campuses, 12 led to expansion approvals.

Only the highest performing charter networks with proven track records should be allowed to grow, said Todd Ziebarth, senior vice president of state advocacy and support for the National Alliance of Public Charter Schools, a nonprofit association that advocates for charter growth throughout the country.

“It really is about, at the end of the day, ‘Are you delivering improved, increased student results for your community?’ And if the answer is no, then you’re not holding up your end of the charter bargain and you shouldn’t have the ability to then go and serve more students,” Ziebarth said. He said he had never heard of a state waiving its own expansion requirements.

The granting of waivers to charter networks that have too many failing schools raises red flags as lawmakers returned to Austin on Monday for a special session of the Legislature to consider helping Texas parents cover private school tuition with state dollars, said David DeMatthews, a professor and education policy researcher at the University of Texas at Austin.

The creation of a school voucher-like program has become a top priority for Gov. Greg Abbott, who appointed Morath. The governor discussed the importance of parental choice during a campaign event last year at a charter campus run by Texas College Preparatory Academies, which is managed by Responsive Education Solutions. The Texas-based charter management organization has made headlines for teaching creationism and for its involvement in a failed effort to create a statewide private school voucher program in partnership with a small public school district in Central Texas.

Neither Abbott nor Responsive Education, which said it handles media inquiries for Texas College Preparatory Academies, responded to written questions. Officials at Eastex also did not respond to a request for comment.

As lawmakers debate allowing taxpayer dollars to go to private schools, they should consider the state’s inability to provide sufficient academic and financial oversight over charter schools, DeMatthews said.

“I think if you look at charters as a potential predictor of how vouchers would be implemented in the state of Texas, it’s very concerning,” DeMatthews said. “Vouchers create even less transparency.”

“Incredibly Hypocritical”

While proposing the approval of a new round of charter schools in June 2021, Morath spoke in stark terms about what was at stake for those that underperformed. Because charters are given freedom from many state regulations, they must meet strict academic standards that force them to close even earlier than traditional schools or keep them from expanding, he said: “They perform or they seek a career in banking.”

Under state rules, charter organizations seeking to grow must face a four-part test that requires them to demonstrate adequate academic, financial and operational performance before they can serve more students, Morath said. “If you don’t pass this four-part test, then you don’t get an expansion,” he told the State Board of Education.

Morath’s choice to repeatedly waive those rules raises concerns for some members of the board, which has no control over whether charters are allowed to expand, even as the expansion of existing networks has become the primary driver of charter growth in the state. More than 7% of the state’s 5.5 million schoolchildren were enrolled in state-authorized charter schools during the last academic year.

Pat Hardy, a Republican who has served on the board for more than 20 years, said granting waivers to charter networks with even one failing school goes against the intent of the law that established them.

“It’s ridiculous,” Hardy said in an interview with ProPublica and the Tribune. “What in the world is the value of repeating a system that isn’t working?”

Brian Whitley, a spokesperson for the Texas Public Charter Schools Association, defended Morath. He argued that the commissioner should have the ability to waive the rules that govern how many campuses must pass in order for a charter to expand, because they are set by his agency and are more strict than the law requires.

But such rules are in place for a reason and the state should either follow them or change them, said Katrina Bulkley, an education professor at Montclair State University in New Jersey, who has studied charter schools since 1995.

Out of 11 schools that opened as a result of Morath’s waivers, three received an “unacceptable” rating within their first two years. All have since improved. In the latest year for which the state has released accountability data, two campuses, including Eastex, got scores that would normally rank them as low performing. But the state did not rate such schools that year because of the pandemic.

Texas College Preparatory Academies, to which Eastex belongs, has opened the most schools as a result of the waivers. The network received two waivers from Morath despite having too many failing campuses. It also was granted waivers when the combined number of underperforming and not rated schools placed it below the passing threshold.

Morath’s most recent waiver for the 42-campus charter network brought it a step closer to opening three new schools and expanding about 20 existing ones over the next two years.

Separately, charters affiliated with KIPP Public Schools have also received various waivers, including one that state education agency officials recommended against.

In a March 2017 memorandum, the head of TEA’s charter school division recommended that Morath deny a waiver request from KIPP Dallas-Fort Worth because only one of its three campuses had met academic standards. Less than two weeks after the recommendation, TEA notified KIPP D-FW that it had been approved for the waiver, making the charter eligible to increase its student enrollment.

In 2018, KIPP consolidated its four separate Texas charter networks. The following year, KIPP had a combination of failing and not rated campuses that again required it to seek a waiver in order to expand. Once again, Morath granted the waiver.

In a written statement, KIPP Texas spokesperson Cat Thorne said that the network “has always followed the TEA’s guidance when considering school expansions.” She said the network does not have access to records from before its merger and so was unaware that agency staff had previously recommended against granting a waiver.

“However, the expansions we requested and were granted always complied with TEA rules,” the statement said. “Our intent for growth is with the best interest of our students and the communities we serve in mind.”

Last year, Shay Green’s son attended pre-K at KIPP Legacy Preparatory in Houston, a campus whose latest grade of 69 out 100 is considered low-performing under state standards.

Green said she initially placed him in the school at the recommendation of her mother, who had researched campuses in the area and thought it would be a good fit. Then, Green said, she learned that her cousin’s children, who were in public school, were already writing their letters and names. She decided to withdraw her son after only a year, believing that the educational quality was inferior.

“My son could spell his name. (We taught him),” Green said in a text message to the news organizations. “But I was expecting him to know as much as the public school kids his same age did and by comparison they were just not being taught nearly as much.”

The school didn’t respond to a request for comment and KIPP Texas did not answer questions specific to the campus.

Green’s son now attends a magnet charter school that she says is providing a stronger education.

Little Oversight

The authority over whether to allow charters to expand used to belong to the 15-member elected State Board of Education. But the Legislature transferred that power to the state’s education commissioner in 2001. More recently, it repealed a provision in state law that appeared to conflict with that earlier change.

The board has in recent years unsuccessfully asked the Legislature to restore its authority over charter growth.

“I think a lot of my colleagues would be more open to approving charters initially, or not vetoing them, if they knew they were going to have additional input down the road on expansions. Because right now, once we approve them, we just go away in the process,” Keven Ellis, the Republican chair of the state education board, said in an interview. “If we had more authority later on, I think it would give us a little more comfort.”

Instead of increasing the board’s authority, the Legislature has over the years given more power to the education commissioner.

Republican state Sen. Paul Bettencourt of Houston, who filed unsuccessful legislation that would have removed the board’s veto power over new charters in the state, doesn’t believe the elected body should have authority over expansions because members aren’t paid and have large districts to represent and other responsibilities like approving textbooks.

A member of the Senate Education Committee, Bettencourt said he was vaguely aware that Morath was waiving academic performance requirements for expansions but would not say if he supports the practice. He said he would first want to know how the charters that received the waivers perform in the future.

“The real question is: If we don’t have improvement over time, why not?” he said.

For now, Bettencourt and his colleagues are focused on the next school choice frontier: giving taxpayer dollars to parents to pay for private school.

Despite support from Abbott, several bills to create such a program, including one co-authored by Bettencourt and eight other senators, died earlier this year during the regular session because of opposition in the Texas House. One of the points of contention has been how the state will ensure that the taxpayer-funded program is leading to better student outcomes.

During a tele-town hall with religious leaders last month, Abbott promised political consequences for lawmakers who oppose the creation of a voucher-like program, suggesting that their votes would be used against them during the next Republican primary election.

“There’s an easy way to get it done and a hard way to get it done,” Abbott said. “The easy way will be for these legislators to come into this next special session and vote in favor of school choice, but if they make it the hard way, we’re happy to take the hard way also.”

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