On December 4, 2015, the Texas Attorney General released Opinion KP-0043 (2015) on "Authority of the State Board of Education to promulgate rules governing the process used by school districts and charter schools in selecting instructional materials.”
The summary to the opinion states:
“The Legislature has provided, pursuant to section 11.151 of the Education Code, that with regard to the regulation of school districts, the State Board of Education ('SBOE') has only those powers and duties 'specifically delegated by statute,' and that SBOE 'may not substitute its judgment for the lawful exercise of those powers and duties by the trustees' of the school districts.
The Legislature has not specifically delegated authority to SBOE to require school districts, in their adoption of instructional materials, to: (1) adopt a public input and participation process; (2) adopt procedures ensuring prior local approval of changes in content made by a publisher to instructional materials that are not purchased from SBOE's approved list; (3) specify which essential knowledge and skills ('TEKS') are covered by each locally-adopted instructional material and identify which passages in each of those instructional materials cover which specific elements of the TEKS; or (4) develop conflicts of interest policies and require public schools and publishers to keep contact registers between school officials and publishers.
Section 31.151 of the Education Code authorizes SBOE to impose a reasonable administrative penalty against a publisher or manufacturer who knowingly violates the requirement that its instructional materials be free from factual errors. Because the statute does not specify the entity that must identify the factual error, SBOE has authority to impose an administrative penalty against a publisher for a factual error identified by a school district.
Subsection 28.002(h) of the Education Code requires a school district to offer instruction in United States and Texas history and the free enterprise system and adopt instructional materials accordingly. It also requires that a school district ensure that its curriculum emphasizes patriotism and democratic values. Because the Legislature has not specifically delegated authority to SBOE to ensure school district compliance with subsection 28.002(h), a rule doing so would likely exceed SBOE's rulemaking authority.”
To read the Opinion, click on the link below.
https://www.texasattorneygeneral.gov/opinions/opinions/51paxton/op/2015/kp0043.pdf