For Immediate Release
September 18, 2006Contact: Steven Schafersman
President, Texas Citizens for Science
Texas Citizens for Science (TCS) agrees with the conclusions of Attorney General's Opinion No. GA-0456, the opinion responding to the request to overturn 1996 opinion DM-424 that upheld the Texas legislation that stripped the Texas State Board of Education (SBOE) of its power to control specific textbook content. This power was used for decades by the SBOE to censor science, history, government, economics, health education, and English textbooks. Censoring was accomplished by the power the SBOE had to reject any textbook from the adoption list for any reason, so publishers agreed to rewrite textbooks to the specifications of individual SBOE members.
For the first issue of whether the Board may adopt a rule requiring textbooks to meet general textbook content standards as a condition of Board approval, the Opinion states that, "to the extent Opinion DM-424 is read or applied inconsistently with this conclusion, that opinion is overruled," but Opinion GA-0456--quite correctly, in my opinion (see my brief on the TCS website)--treats the rule-making power of the State Board narrowly, restricting it to only the specific powers granted by the Legislature, namely, whether textbooks (1) conform to at least half or all of the TEKS (Texas Essential Knowledge and Skills, the state's course curriculum and textbook standards) and (2) are free from factual errors (both conditions identified by TEA curriculum officials, State-appointed textbook review panels, university fact-checking panels, and citizens by public written and verbal testimony, and ultimately evaluated by the State Board members themselves), (3) meet applicable manufacturing standards and physical specifications (durability of the cover, etc.), and (4) "foster the continuation of the tradition of teaching United States and Texas history and the free enterprise system." That's all, and this is all that Opinion DM-424 allowed, so the original AG Morales opinion remains essentially in effect.
What this means for this issue is the following:
(1) The State Board may not re-write, censor, reject, or negotiate in secret with the publishers to change textbook content, all of which were done in the past with predictable egregious, unscientific, inaccurate, and undemocratic results.
(2) If the State Board wishes to re-write, censor, reject, or force or intimidate a publisher to change a textbook's content, it must publicly identify the offending text as either factually in error or nonconforming with the TEKS, both of which can be publicly evaluated by concerned citizens, education professionals, scientists, and the press. This was, of course, the original intention of the Texas Legislature, which wished to firmly halt the decades-old practice of the State Board to force publishers (by adopting the books but requiring textual changes in secret negotiations with publishers, who were obliged to comply or lose enormous textbook contracts) to censor their own textbooks to match the religious, political, economic, and ideological beliefs of individual Board members. That this practice still continues, by the State Board having the power to define for itself what constitutes a "factual error," is another issue that must ultimately be addressed.
(3) The single issue of Section 28.002(h), the rule that requires that the State Board and each school district foster the continuation of teaching US and Texas history and the free enterprise system in regular subject matter, reading courses, and the adoption of textbooks, was of specific and timely interest. The Board adopted a rule early in 2006, Section 66.66(c)(3), that allows it to reject (this includes also obliging publishers to change the text to make it comply so it doesn't conflict with the rule) a textbook if it contains "content that clearly conflicts with the stated purpose of . . . Section 28.002(h)." The Texas Education Agency staff declined to certify this single rule, believing that it conflicted with Opinion DM-424. The current opinion, GA-0456, states that it does not so conflict.
(4) The original opinion request, RQ-0430-GA, written by Terri Leo and submitted by State Board Chair Geraldine Miller, asked for much greater Board powers over textbook content and selection than was necessary to inquire about a single rule concerning the free enterprise system. The request actually asked for a return to the full powers the Board possessed prior to the 1995 legislation, allowing it to specify textbook content and have it match the particular religious, political, and ideological beliefs of individual members. The 1995 legislation deliberately stripped the State Board of those powers. The Leo/Miller request was therefore disingenuous, asking for much greater power than necessary, and the current Opinion GA-0456 wisely did not grant those over-reaching powers. This opinion is therefore a victory for Texas students, teachers, public education officials, and most of all for Texas society, commerce, and industry, for students--future knowledge workers in these areas--will gain reliable, accurate knowledge untainted by ideology, religion, and politics, as has too often been the case in the past (and unfortunately still is the case with regard to health education).
The second issue Opinion GA-0456 dealt with was the question of whether the Board may adopt or reject ancillary materials. The Opinion simply stated that the identity of ancillary materials is unknown, because the State Board has never adopted a rule defining whether such ancillary materials are a textbook or not. If ancillary materials are, in fact, "supplementary instructional materials," which is one definition of a "textbook" under the Texas Education Code, then the Board has the necessary authority. DM-424 stated that publishers may submit free "ancillary items" that are "not within the definition of 'textbook.'" But the Board may define a "textbook" as it wishes, to include "ancillary materials." Opinion GA-0456 concludes--correctly, in my opinion--that "In the absence of a Board rule reasonably clarifying the items comprising the definition of 'textbook,' we cannot conclude that ancillary materials are textbooks subject to Board review as a matter of law." The opinion overrules AG Opinion DM-424 "to the extent that is inconsistent with this opinion." That is, if the State Board adopts the necessary rule defining ancillary materials as textbooks, then it may review, adopt, or reject ancillary materials.
Texas Citizens for Science commends Attorney General Greg Abbott and his associates for reaching the correct legal conclusions in Opinion GA-0456. It would have been easy, but incorrect and probably illegal, to return the over-reaching powers to the State Board of Education that some members sought to gain. This opinion follows the will of the Texas Legislature, which has several times refused to return those egregious powers by statute. Both the Attorney General and the Texas Legislature have acted for the good of Texas citizens and should both be commended.