Snake Oil

"Vote here" sign
Patrick Michels
An Election Day sign outside the Travis County Clerk's Office

In the run-up to Election Day, county election officials around the state were almost uniformly upbeat about the first big test of Texas’ voter ID law.

During the early voting window, local papers were full of cooing headlines like, “ID law no problem in Galveston vote,” “Voter ID law no problem in Crossroads,” “New voter ID law working so far,” and maybe best of all, “Voter ID rollout smooth, despite complaints about women being turned away.”

Sure, maybe women were upset, but the line from elections officials around Texas was the same everywhere. Elections administrator Steve Raborn reassured Tarrant County voters that “we’ve really had no complaints, concerns or issues.”

And sure, Wendy Davis, Leticia Van de Putte and Greg Abbott all had to sign affidavits in order to vote because the names on their IDs don’t exactly match their voter registrations. But Abbott says the inconvenience of that extra step has been “overhyped”—how hard is it to sign an extra form?—and that “in reality, there has been no problems whatsoever.”

In reality, the problems with the voter ID law are the same ones they’ve always been.

The voter ID law still gives local election workers—and the tea party poll watchers over their shoulders—far too much leeway in determining whose votes get to count.

The photo ID requirement still adds an extra hassle to something that we should make as easy as possible. One Observer staffer voting today at Austin’s Carver Elementary School was told she couldn’t vote using her U.S. passport—one of the seven approved forms of photo ID—because the polling place didn’t have a machine to read it. She was allowed to vote only after insisting, and waiting for a poll worker to get approval from a call center.

As of 2011, around 600,000 registered Texas voters didn’t have an driver’s license. (By Monday, Texas had issued just 104 voter ID cards.) Some of those people may cast provisional ballots today, and some of those may return later with proof of ID so that provisional vote will count.

Some of them—like 90-year-old Jim Wright, former Speaker of the U.S. House of Representatives—won’t have the right ID and will need someone to drive them to a Texas DPS office for a voter ID card. Then they will need to go back again because they didn’t bring the proper forms of ID required to get the right form of ID to vote.

Most of them will struggle with this system, or choose not to, quietly. They won’t have time to miss work while a poll worker confirms their ID over the phone. They won’t have a personal assistant to drive them around town.

Texas’ voter ID law is so dangerous because its real harm is difficult to measure. The state that already has the lowest voter turnout in the nation just sinks a little lower. High-level election administrators will simply see a system running smoothly. And the prevalence of voter fraud will remain steady at almost zero.

This year’s early voting total actually far outpaced early voting in the last constitutional election: 318,000 votes this year compared to 167,000 in 2011. That could be because early voting is more popular, or because of big-ticket items like Prop 6 to fund the state water plan, Houston’s mayoral race or Astrodome renovations.

Secretary of State John Steen has floated the theory that so many more people are voting this year because of the new voter ID law—voting, in other words, to make sure they still can.

March in favor of a non-discrimination ordinance outside San Antonio City Council meeting.
Forrest Wilder
A September march in favor of San Antonio's LGBT non-discrimination ordinance.

When the U.S. Supreme Court struck down the Defense of Marriage Act last summer, it opened the door to state-by-state challenges to laws barring same-sex marriage.

Justice Antonin Scalia pretty well set the stage in his dissenting opinion: “By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition.”

Within weeks, a Pennsylvania county clerk and two lesbian couples in Virginia mounted challenges to their states’ bans on same-sex marriage. Gay couples in Tennessee and Ohio sued to have their marriages from other states recognized where they live.

And on July 2, a Galveston man named Domenico Nuckols filed a challenge to Texas’ constitutional amendment that bars him from marrying another man.

Less than two weeks later, though, he withdrew it, saying his case “would waste the courts [sic] time and resources.” He’d spoken with national groups like the ACLU and Lambda Legal, and heard the timing just wasn’t right for a challenge in Texas and the conservative 5th Circuit Court of Appeals.

“I’m disappointed,” Nuckols told the Dallas Voice, “but when you have so many people telling you you’re beating a dead horse, you should listen. … There’s a fight out there, but you can’t pick it in Texas.”

Four Texans who disagree: Cleopatra de Leon, Nicole Dimetman, Victor Holmes and Mark Phariss. The two couples are plaintiffs in a suit filed Monday in San Antonio federal court, claiming Texas’ ban on same-sex marriage violates their constitutional rights.

“The State’s refusal to recognize same-sex marriages is a very public rejection of Plaintiffs’ most significant relationship,” they claim, and “Texas’ prohibition of same-sex marriage does not bear any relation to a legitimate government purpose.”

The political climate that deterred Nuckols from his suit can’t have changed much in the last three months, but there are important differences between the two attempts to end Texas’ ban on marriage equality.

For one thing, Nuckols’ suit didn’t mention that he ever tried to marry in Texas. De Leon and Dimetman were married in Massachusetts in 2009, and want their license recognized in Texas. Holmes and Phariss say they want to marry here for the first time.

“We’ve talked numerous times of getting married and going to one of the states that allows gay marriage,” Phariss told the San Antonio Express-News on Tuesday. “The problem with that is we have no legal rights when we return.”

For another thing, the two couples in the new suit have some legal firepower behind their cause: three lawyers from the San Antonio office of Akin Gump Strauss Hauer & Feld who took the case pro bono, including Barry Chasnoff, a partner at the firm.

Chasnoff told the Observer there was no special calculation in the timing of this case—the plaintiffs just asked him to take it on. He said he did speak with groups including the ACLU and Lambda Legal, “but I didn’t ask their permission. We coordinated with them in a sense, letting them know, and sought their wisdom and insights.”

Chasnoff says he hopes to file for a preliminary injunction within a few weeks, to get the case moving quickly. In the days since the case was filed, Chasnoff says he’s gotten supportive calls and emails from gay people who just want to share their stories.

“You think, looking from the outside into their lives, that you have some feel for the difficulties it creates,” but hearing their stories of unequal treatment, he says, “it’s pretty overwhelming.”

In September, San Antonio became the latest big Texas city to formally ban LGBT discrimination.

Texas Lawyer reached Bexar County Clerk Gerry Rickhoff—who’s named as a defendant in the case—about the case Thursday.

“As clerk of Bexar County, I’m restricted to do what the Legislature wants me to do,” he told the magazine. “I have strong feelings about these issues. … As I read through the lawsuit, it brings up an uncomfortable truth of what a reasonable person would expect as equal rights under the law.”

Youth in the Texas Juvenile Justice Department's Phoenix Program
Patrick Michels
Youth in the Texas Juvenile Justice Department's Phoenix Program, photographed in September 2012.

It’s been a little over a year since we reported on the Phoenix Program, Texas’ latest experiment in getting its troubled juvenile lockups under control. The program promised intensive counseling and extra staff attention for the most violent and troubled kids in state lockups, while also removing them from the general population.

Phoenix was a sort of pilot program, an extreme measure meant to curb a troubling spike in violence within Texas’ juvenile lockups. So how’s it going?

As the Austin American-Statesman‘s Mike Ward reported Wednesday, not well. The Phoenix Program, Ward writes, unraveled over the summer into an intense place where some guards even joined in fighting the kids in their custody.

The story, which is behind the Statesman‘s paywall, is based largely on a special report by Debbie Unruh, the Texas Department of Juvenile Justice’s independent ombudsman. You can read the full report below.

That report describes at least three incidents in which guards fought with juveniles, only some of which were caught on security cameras. In one case, a guard told the juvenile to cover the camera lens with a tissue before they began fighting. Many of the incidents described involve throwing youth to the ground, pinning them there and punching them in the ribs.

Ward points out these incidents reportedly happened with disturbing regularity:

Concerning the fights with guards, at least one youth told an investigator he “liked the behavior. … This is just the staff being friendly with them.”

“The youth stated that the practice was for the staff and youth to trade punches in the ribs until one or the other gave up,” the ombudsman report states. “Some youth claimed they did not want to participate but felt they would be made fun of if they refused.”

Three guards have been fired and four others disciplined. Those actions came in response to investigations by TJJD’s Office of the Inspector General, which operates separately from the ombudsman. Chief Inspector General Roland Luna told the Observer that their investigations were prompted by separate complaints about fighting in August and September, and that one guard in each incident was referred to a special prosecutor. Both were no-billed by a McLennan County grand jury. (The Phoenix Program is housed in TJJD’s Mart facility outside Waco.)

According to the ombudsman’s report, the inspector general’s earliest investigation “made the determination the activities were ‘horseplay,’” before taking further action. TJJD spokesman Jim Hurley told the Observer that while guards involved and even some of the youth used that word to describe the incidents, “it’s just totally unacceptable behavior. … There’s no such thing as horseplay at TJJD.”

According to the report, the agency has scheduled new training sessions for Phoenix Program staff beginning in November, and will consider reworking the program. “Clear lines of responsibility have been established and formal oversight of the Phoenix Program has been placed under the Assistant Superintendent,” the report says.

In its response to the investigation, TJJD also plays up its success stories:

Since its inception, 43 youth have completed the Phoenix Program with average stays of 104 days. Fourteen of the 43 youth have had no assaults following program completion, and 34 of the 43 have seen a significant reduction in the number of incidents following completion.

But the ombudsman’s report blames TJJD leadership, at least in part, for the lapse in oversight that let guards get away with nightly fights with the kids in their charge.

Lack of oversight was, of course, the only reason Texas Youth Commission guards were able to get away with abusing kids in their custody for so long. That scandal, which the Observer first reported in 2007, prompted a wave of reforms including the creation of an independent ombudsman, and the creation of the new TJJD to replace TYC.

Sen. John Whitmire (D-Houston) led the charge on those reforms. Quoted in the Statesman‘s story yesterday, he doesn’t sound too happy with the results so far.

“It’s time,” he told Ward, “for the buck to stop at the top at what appears to continue to be an inherently poorly run agency.”

Ted Cruz
Ted Cruz soaks up the adulation Monday night in Houston.

After Ted Cruz’s turn on the national stage—the “filibuster,” the shutdown, the flirtation with self-inflicted economic meltdown—the man has probably earned a little me-time. A little break from the arm-twisting and the name-calling, a chance to joke around with a few old friends.

Sometimes you want to go where everybody chants your name.

For Cruz on Monday night, that was King Street Patriots headquarters in Houston, home to Texas’ preeminent bunch of red-blooded, freedom-loving and positively nonpartisan warriors for the old stars and stripes.

Before a standing-room crowd in King Street’s warehouse, Cruz made a symbolic Texas homecoming—on a tour that continues Tuesday night at a tea party-sponsored “Thank You Ted Cruz” party in Arlington—to share the good word from the front line.

The King Street Patriots’ founder, Catherine Engelbrecht, made sure Cruz left with a souvenir from the occasion: a copy of War and Peace signed by members of the crowd, which she suggested he use as ammunition for his next filibuster. The book, she joked, is “widely considered to be one of the nation’s greatest works of fiction … like the Obamacare bill.”

Michael Berry—the conservative Houston talk radio jock who once said he hoped someone blows up the Islamic community center at Ground Zero—had the honor of revving up the crowd before Cruz took the stage.

Berry fondly recalled Cruz’s 21-hour stand against Obamacare as the night “when Ted Cruz captured the national imagination,” proof that “one guy standing up can stop the status quo in its tracks.”

Ted Cruz and "Green Eggs and Ham"
A video presentation recalled highlights from Ted Cruz’s 21-hour speech against Obamacare

King Street’s warehouse, full of the folks who propelled Cruz’s unlikely Senate win last year, incubated a rich new reality Monday night. Cruz became a triumphant everyman, someone any of us could be someday.

“Mark my words,” Berry said, “there’s another Ted Cruz waiting in the wings. There are more Ted Cruzes waiting in the wings.”

But on Monday night, there was just one Ted Cruz.

He filed past the crowd in a blue coat and khakis, greeted by attorney general hopeful Ken Paxton, who stopped him for a photo op, and a fawning woman whose cries reached Cruz’s mic: “You’re my hero. … I just love you, I do. You speak for all of us, makes me proud of America. I love you.”

The crowd chanted as he prepared to speak: “Thank you Ted! Thank you Ted!”

“I feel a little bit like I’m introducing Davy Crockett after the Alamo has fallen,” Berry had said, but Cruz proved even livelier than that.

He claimed his victories on behalf of the grassroots, he lauded House Republicans for their bravery during the shutdown and he railed against “the disaster, the nightmare, the trainwreck that is Obamacare.”

He drank from a bottle of water in mid-sentence, then broke off to have a little fun with the crowd.

“You know when Marco Rubio reached for a thing of water, they gave him endless grief,” he said. The crowd cheered. Cruz drank again.

“It used to be in Washington, D.C., when they said you had a drinking problem it meant something different from this!” More raucous cheers for Cruz and his keen timing.

The admiration went both ways. Cruz singled out his biggest fans in the crowd, and reminded them all of “what we’ve accomplished in the last two months.” Which is…?

“In the last 2 months we saw something extraordinary happen. We saw millions of Americans from across this country rise up and say we want to take our country back,” Cruz said, referring to two million visitors to an Obamacare opt-out pledge site.

“Y’all melted down the phone lines on Capitol Hill, scared the living daylights out of Washington,” he said. “And you know what, liberty is never safer than when politicians are terrified.”

He credited the crowd with helping “Saturday Night Live” skewer the disastrous Healthcare.gov rollout, and for inspiring the Daily Show. “For those of us who haven’t seen it, when [Health and Human Services Secretary] Katherine Sebelius went on Jon Stewart’s show, he ripped her apart,” Cruz said. “That’s what happens when the grassroots get engaged.”

Cruz closed by reflecting on why he’s gone to such extremes: “So that one day we don’t have to answer to our children and our children’s children, ‘What was it like when America was free?’”

Cruz cast himself on the front lines of a war over Obamacare today and the Bill of Rights tomorrow, and it would have sounded like more of a reach if Engelbrecht hadn’t already gone there.

Before Cruz arrived, she worried we’re witnessing “the managed decline of a once-great nation.” What she suggested—but, mindful of her group’s nonpartisan status, was careful not to say directly—is that Texas ought to elect a lot more of those Ted Cruzes waiting in the wings.

“I do not want to see my children’s future sacrificed,” she said, “because the guys that we elect aren’t willing to put it all on the line.”

 

Sebadoh's "Harmacy"

For years, we’ve been hearing that Texas is running out of the drugs it uses to carry out the death penalty.

In 2011, the state’s supply of the three-drug combination it had long been using expired. Texas switched to using a single drug called Nembutal, then used the last of that Nembutal in an execution late last month.

These shortages aren’t like the dwindling national helium reserve, or NASA’s plutonium-238 shortage. There’s plenty of Nembutal out there, but the drug’s Danish manufacturers refuse to sell them to us, or any state that’ll use them to put people to death.

It’s a strange situation for the state, where there’s still strong support for the death penalty—and most people even think it’s being fairly applied. Nowhere but Ikea have Texans been so susceptible to Scandinavian norms.

Michael Yowell, convicted in 1999 of killing his parents for drug money, argued in a last-ditch lawsuit this month that using an unproven, unregulated replacement drug in his execution could constitute cruel and unusual punishment. The suit, which also includes two other death row inmates, notes the “unprecedented nature of recent events” as Texas scrounges for the drugs it needs to deal out its toughest justice. According to the complaint, the Texas Department of Criminal Justice’s “secretive approach makes it impossible for Plaintiffs to discover the method by which they will be executed.”

Like so much with the death penalty, it’s an eerie thought: a condemned man arguing his right to know how the state plans for him to die, and whether the drug that kills him will be safe. Early this week, a federal judge rejected Yowell’s appeal, essentially saying that Yowell wouldn’t be around to worry about any long-term health risks the drugs may carry. He was executed Wednesday night.

But in the course of that legal wrangling, Texas’ new source for death row pharmaceuticals was revealed to be the Woodlands Compounding Pharmacy, a 5-year-old custom drug maker tucked away in an industrial office complex in Houston’s dreamiest suburb.

Not only that, the pharmacist was having second thoughts. “I must demand that TDCJ immediately return the vials of compounded pentobarbital in exchange for a refund,” Jasper Lovoi III told TDCJ in a letter dated October 4. Though he’d been assured his involvement would be kept “on the ‘down low,’” Lovoi writes, “I find myself in the middle of a firestorm that I was not advised of and did not bargain for.”

Protesters had gathered outside Lovoi’s pharmacy before Yowell’s execution. Lovoi’s Google reviews are in the tank. Critics decried the conflict between supplying the state’s lethal drugs after taking the pharmacist’s oath to consider “the welfare of humanity and relief of human suffering.” And Texans for Public Justice noted Lovoi’s side business selling anti-aging creams, dryly suggesting his custom pentobarbital was the ultimate cure for old age.

All that for a $2,800 order.

TDCJ refused to return the drugs to Lovoi. The Chicago-based drug maker Hospira asked for its drugs back too, but again TDCJ refused.

So it’s not just European drug makers who’ve grown squeamish about their role in putting convicts to death. As Dan Solomon put it at Texas Monthly this week, “the invisible hand of the market is increasingly uncomfortable participating in executions.”

It’s not just market forces at work, though—it’s the concerted efforts of anti-death penalty activists who’ve spent years lobbying pharmaceutical companies in the hopes of creating a storm just like this. Without winning over the public sentiment or even scoring a major political debate over the capital punishment, they’ve put the death penalty in Texas on shaky ground.

It’s a fascinating trend playing out all over the country. Just this week, Missouri agreed to return some of its lethal injection drugs to a frantic supplier who said it only filled their order by mistake.

One elegant solution to this problem, from the state’s perspective at least, could be to copy recent laws in Georgia and South Dakota protecting death row drug makers’ identities. Georgia’s law is facing a court challenge right now.

Earlier this year, NPR quoted Georgia’s assistant attorney general Sabrina Graham, who defended the law in court by imagining  just the situation Lovoi and Texas find themselves in today:

“Once that compounding pharmacy’s identity is revealed, how will the Department of Corrections ever get another compounding pharmacy to sell to us?”

Juan Mendoza, left, and Joe Gallegos
Patrick Michels
Former San Antonio barrio gang members Juan Mendoza, left, and Joe Gallegos. Each are organizing events this month to help preserve West Side San Antonio's street gang history.

Back in August, the Observer featured a fascinating project in the works at the University of Texas at San Antonio, where criminologist Mike Tapia is gathering oral histories from veterans of the 1950s barrio gang wars on the city’s West Side.

At a time when train tracks separate much of the West Side from downtown, when many of the streets were still unpaved, the street gangs were built on fierce neighborhood pride. Boys and girls got caught up in the scene young, and were on the way out by the time they reached 18.

Today’s street violence is of a vastly different character, with more cars and guns and often a connection to highly stratified prison gangs. But many of the West Side neighborhoods have kept their names. Many of the old street brawlers still live in them.

This month, two events will bring some of those old days back to life.

The first is a three-day festival this weekend, organized by Juan Mendoza, a former member of Los Cocos in the early ’50s. Decades after that, his bar—Los Cocos Lounge—was a place where old gang members got together to tell old war stories, swap old photos and take new ones. The bar has closed, but for three nights this weekend, Friday to Sunday, he’s hosting a reunion at Dora’s Patio Bar, 1225 S. Brazos, inconjuntion with the Hampton Roads Mexican-American Club. Here’s the flyer with more details.

The following Friday, October 18, is a fundraising reception for Tapia’s project, to help fund more work committing stories from San Antonio’s West Side to the historical record. Joe Gallegos—a member of the Ghost Town Boys who spent years counseling gang members once he grew up, and is also featured in the Observer‘s story—is helping to organize this event, with Adelante Second Chance and the Hispanic Community Center. Here’s that flyer with more details.

Both events, in their own ways, will help ensure more of this often-overlooked history gets remembered.

Texas Education Commissioner Michael Williams
Patrick Michels
Texas Education Commissioner Michael Williams speaks at the Texas Charter Schools Association's annual conference earlier this year.

Education Commissioner Michael Williams announced his picks last Friday for new charter schools that could open next year. Texas has 12 open spots for new charter schools, and state regulators interviewed 12 candidates last month.

This is the first time Williams and the Texas Education Agency got to make the picks, and not the State Board of Education. There was no telling how freely he might hand out new charters, and it’s a particularly important question with the state’s charter cap set to increase every year starting in 2014. So far, Williams doesn’t look like such a charter-happy rubber-stamper after all—only four of the 12 made the cut:

Great Hearts Dallas
This Phoenix-based chain already won a Texas charter to open in San Antonio. Now it’s applying to open up to four schools in Dallas-Forth Worth. Rep. Lon Burnam (D-Fort Worth) asked Williams not to approve Great Hearts’ new application, saying the school hadn’t fulfilled its duty to give local school districts, or his office, a chance to respond to its plans. The school’s expansion plans in other states have faced major pushback over complaints they focus on affluent neighborhoods.

Carpe Diem
Another out-of-state addition, Carpe Diem is based in Arizona, where it has a campus in Yuma and runs a separate online-only school. It’s seeking five campuses in San Antonio to expand its “blended learning” model into Texas. They promise “a new approach to education” with face-to-face instruction mixed with individual online lessons in a big computer bay.

El Paso Leadership Academy
The school would open one campus, featuring a middle and high school, in El Paso, according to its application. Led by El Paso attorney Victor Omar Yanar, the school would include longer hours and place students in internships with El Paso-area organizations.

Magnolia and Redbud Montessori for All
These two campuses would open in Austin and San Antonio, beginning in pre-K through third grade and expanding to seventh grade. Teach for America and KIPP alum Sarah Cotner is the school’s leader and its application lists TFA vice president Sarah Kirby Tepera as the school board chair. Montessori for All says its Austin campus, which would open first in fall 2014, would be the city’s first public Montessori school—a model built on mixed-age classrooms and giving students freedom to discover new lessons.

That leaves eight left under the cap, according to Tracy Young at the Texas Charter Schools Association. And thanks to Senate Bill 2, the state’s cap on charter schools will increase by 10 more next year. If Williams and TEA are this choosy about charters next time around, it’s hard to imagine getting anywhere near that new limit—unless a lot more schools apply.

Young mentioned that TCSA’s director David Dunn found it interesting that Williams approved a mix of local charters and out-of-state networks.

Not making the cut this year: any of the schools listed in a Dallas Morning News report on schools with awfully similar (or identical) language in their charter school applications. Those include Excel Center, which had bigtime lobbyist and GOP strategist Ted Delisi along to make its case to the board.

As the News‘ Holly Hacker wrote:

One of the aspiring charter operators, High Point Academy of Fort Worth, withdrew its application after learning that parts of it were not original work.

Katie Peterson Stellar said the proposal didn’t live up to the values of honor, integrity and service that her group’s school would demonstrate. “It was an opportunity for us to stand up for what we believed was right, and to be the kind of leader that we expect our students to be,” she said.

This isn’t a new problem. In February, Hacker found copied passages in four charter applications, all of which used the same consultant. “I give myself an F-minus on the paperwork,” one school superintendent told the News. Deion Sanders’ Prime Prep Academy won approval with an application littered with language identical to descriptions used by schools across the country.

Now that Williams and TEA staff get to make the first cut in the charter school picks, it looks like copying off your neighbor may not be a winning strategy. “TCSA will definitely place greater emphasis on this next time around,” says Young, though she says her group already stresses the need for applications to be original.

The SBOE still gets to have its say—the board can veto any of the four picks at their next meeting in late November.

El Paso's Bowie High School
Patrick Michels
El Paso's Bowie High School was Ground Zero in a cheating scandal that's shaken state regulators and schools across Texas.

In the late 2000s, El Paso ISD’s schools were enjoying a miraculous turnaround under then-Superintendent Lorenzo Garcia. Schools that had struggled for years, and even faced the prospect of closure, were suddenly earning high ratings for their test scores and graduation rates. But Dan Wever, a retired former school board member with a habit of sifting through the district’s data for fun, sensed the numbers behind this miracle weren’t on the level.

For one thing, many of the schools’ 10th grade classes had become remarkably small compared to other grades (for high schools, federal ratings are based on their 10th grade scores). For another, some schools enjoying impressive turnarounds had begun a practice of exempting many students’ tests from counting toward the school average. All districts are allowed to exempt a few students’ tests for specific reasons. Back then, exemptions included recent immigrants with limited English, or special education students, and at EPISD’s Bowie High School, exemptions for special ed students jumped from seven to 31 from 2006-07 to 2007-08.

Wever’s source for all this was data from the Texas Education Agency’s website. He wrote to TEA about the spike in test exemptions, and says he never heard back. His concerns about the 10th grade enrollment, though, became the basis of two TEA “desk audits” from Austin—which cleared the district of wrongdoing—followed by a separate federal investigation. Which did not clear the district.

Lorenzo Garcia ended up in federal prison, top administrators left or were fired, and EPISD’s entire school board was replaced.

But Wever still wonders about those tests he suspects Bowie High swept under the rug.

“Everywhere else I’ve seen, the cheating is more mechanical—teachers changing the test scores. In Texas, we’re more sophisticated than that,” Wever says. “We’ve got people who really know how to cheat.”

There hasn’t yet been a reckoning of how those exemptions helped improve school ratings in El Paso, or if any other schools have been getting away with the same thing. It’s less obvious than other methods used in EPISD, but for a victimless little accounting trick, it’s an effective way to make your school look better to parents, neighbors, and the school boards that award your bonuses. All you lose is some small measure of the system’s integrity.

Here’s how it works.

Every year, Texas grades its schools based on students’ pass rate on the STAAR exams. Most people only ever hear that their neighborhood school is rated “exemplary” or “recognized” by the state. It’ll get even simpler next year when schools get A-F grades just like students. But those simple ratings are the outputs of an incredibly complex system that changes every year, spelled out in a monstrous TEA accountability manual few ever read.

One of those complexities is that schools can exempt some students from figuring into their overall pass rate. Inevitably, some kids are absent on test day, so they don’t count. Others transfer into a school mid-year. They get exempted too. Until recently, schools could claim exemptions for students in special education, or for recent immigrants with limited English.

Those last two exemptions are gone, now that the STAAR includes alternate versions for some students with special needs. But schools can still claim exemptions under a nebulous category called “other,” meant to cover any unpredictable test day interruptions—a poorly-timed fire drill, maybe, or a student throwing up on his test book.

That’s always been part of the system, and a few exemptions are totally normal. But when Wever checked the numbers beyond El Paso, he found some districts claiming exemptions far more freely than others. In some places, the exemptions vary wildly from one year to the next. Wever is particularly interested in districts where a school’s exemptions spiked the same year their state accountability rating went up.

“There’s nothing in here that’s gonna prove anything. It’s gonna give you indicators,” Wever says. “It’s like a treasure map.”

To pick one such example at random: Edinburg’s Anne Magee Elementary jumped two levels from “acceptable” to “exemplary” from 2006-07 to 2007-08. Over the same year, the percentage of its uncounted students rose from 4 to 15 percent, thanks largely to special ed exemptions, which jumped from five to 37. In 2007-08, South Dallas’ H.S. Thompson Learning Center earned an “exemplary” rating while leaving 30 percent of its students uncounted.

Under the new STAAR test, many districts still claim plenty of exemptions, either for “mobile” students who transferred in mid-year or for the catch-all “other” category. Some of the highest rates of exemptions appear in Killeen and San Antonio, where more military families probably moved in mid-year. Some charter schools also claim high exemption rates. At San Antonio Can High School, only 42 percent of students counted toward its passing grade in 2012-13. Washington Tyrannus School of the Arts—the largest school in the Shekinah Radiance Academy Chain the Observer has covered—exempted 42 percent of its students’ scores last year.

Wever says the key is that benchmark testing before the state tests can give schools an idea which students aren’t likely to pass the STAAR. By exempting a few of the right students, a school could boost its rating. Some districts even buy special software that advertises the ability to—in the words of one program, InovaPlus!—”Identify … who are the green/blue/gray students most likely to fail and who are the gray/yellow/red students most likely to convert.”

Schools are also graded on the passing rate for students of a particular race, students with special needs or who are still learning English. Some of those subgroups are so small, Wever notes, a district might boost its rating by keeping just a few tests out of the average.

“People don’t realize that it takes such low numbers to change these things,” Wever says. “If I were a principal and my job and my bonus depended on three kids not being tested, then they wouldn’t be counted. I think it drives people to do things that they wouldn’t normally do.”

Cheating scandals are almost as old as Texas’ test-based accountability system, which was one of the nation’s first. In some cases, like Garcia’s scheme in El Paso, the harm to students is clear: children are pushed out of school, told they can’t graduate or denied credit for tests they’ve rightfully passed. Other schemes, like the test exemptions, just add to the low-level hum of doubt about how much you should trust a school’s grade.

UT-Austin researcher Julian Vazquez Heilig has been studying this problem for years, and he says it’s the same problem behind scandals in Ysleta ISD and Houston a decade ago. “Schools identify the students that are problematic and can hurt their bottom line,” he says. “There’s all kinds of ways they do that.”

It’s simply baked into the system, he says. After every new fix, some other loophole appears. At the state level, TEA gets to decide what cutoff scores count for “passing” each test—to set the statewide pass rate. Districts have accounting tools like those exemptions for some students’ tests. You don’t even need a bunch of teachers doctoring the answer keys if you want to put your finger on the scales.

“What you see is the first-order cheating where it’s just egregious,” Heilig says, “but there’s all this second-order cheating where it’s less obvious.”

Even some of that obvious cheating has gone undetected, according to a damning state audit released this summer of TEA and its investigations clearing EPISD and Lorenzo Garcia. “The deficiencies in the Agency’s investigation of the systemic cheating that occurred in EPISD,” they wrote, “reflect the weaknesses in the Agency’s investigative processes for school accountability overall.” El Paso, in other words, is just the beginning.

The scandal has rippled across the state, sparking investigations of policies elsewhere that keep likely low-scorers—students from Mexico, often, with limited English—from counting toward the school’s average. Other El Paso-area districts, plus Uvalde ISD, McAllen ISD and Houston ISD have either been investigated by TEA or hired their own outside audits. Some state officials say the trouble surely runs deeper.

“I guarantee you that this is happening in every metropolitan area and in many other places,” state Rep. Naomi Gonzalez (D-El Paso) told the El Paso Times. “It just hasn’t been discovered yet.”

TEA does have a history of catching cheaters in the act. Even 15 years ago, a “truth squad” in the accreditation department investigated suspicious spikes in exempted tests, according to one former manager at the agency. When investigators caught Austin ISD gaming the system 14 years ago, this kind of cheating was still a novelty. Prosecutors back then said they had to make an example of AISD to prevent more cheating in the future.

As Lorenzo Garcia proved, there are still powerful incentives to cheat, and plenty of ways to do it. But since the Austin ISD scandal, TEA’s budget has been slashed repeatedly—less money for investigators’ salaries or travel to visit districts in person. Today, TEA staff has an automated system that looks for outliers in data they get from schools; a spike in exemptions can trigger a “desk audit” by the agency. But a public information request for any investigations into accountability fraud since 2009 returned only the few mentioned in the state audit, most part of the fallout from EPISD.

In response to that audit, Education Commissioner Michael Williams announced he’s creating an Office of Complaints, Investigations and School Accountability to ferret out rule-breakers among Texas’ more than 1,000 school districts.

State Sen. Jose Rodriguez (D-El Paso) says it’s clear TEA needs more money from the state if it’s going to be serious about catching cheaters. “There’s a need for the agency to be given the resources for the number of investigators they need, the money required to travel to the districts and do full-scale investigations,” he says. “The system needs a good review, and TEA, it seems to me … it just simply needs to do better.”

Last session he authored a handful of bills that toughened up TEA’s investigative powers. Now he hopes the Senate Education Committee will use the interim between legislative sessions to study what else TEA needs to do its job, and keep the accountability system honest. (Trustees at Canutillo ISD have gone even further, calling on El Paso-area lawmakers to seek an all-out restructuring of TEA.)

“As long as you have people that are willing to take a risk to circumvent the system,” Rodriguez says, “you’re going to continue to have these problems. And the people who will suffer are the kids.”

State Board of Education chair Barbara Cargill
State Board of Education chair Barbara Cargill

As Tincy Miller said this week, “We are in a different era today, and that is technology.”

The Dallas Republican was describing, at Tuesday’s hearing on the adoption of new science textbooks, how things had changed for the State Board of Education since she first joined in 1992. And while our present “Technology Age” probably predates even her tenure, she’s right that, thanks in part to classroom technology, the board’s influence on textbooks has changed dramatically. It’s shrinking—fast.

Miller spoke Tuesday about how a 2011 law has “regretfully” stripped much of the state board’s authority from the textbook adoption process by letting school districts spend state money on any books they want, including ones that aren’t on the state board’s approved list.

This week showed the board adjusting to its new, more advisory role in textbook selection—and a few board members hoping to get some of that old authority back. SBOE chairwoman Barbara Cargill, in her latest newsletter to supporters, advocates restoring the board’s authority to rule on the quality of lessons, a power the Legislature revoked in 1995. (“Now is the time to ride the wave of public concern and outrage about CSCOPE,” she writes.)

Two years ago, as the Legislature cut $5.4 billion from public education, it also eliminated the state’s classroom technology account and told districts to use the state’s $750 million textbook fund for their tech needs too. Senate Bill 6 let districts spend that money on any textbooks they wanted, or software, or iPads, or people to keep the equipment running. They got less money, but more freedom.

“If I were a publisher, I would simply bypass the state adoption process,” former state board member Michael Soto told the San Antonio Express-News last year.

So far, districts haven’t exactly abandoned the books on the state board’s approved list, but David Anderson, an education lobbyist whose clients include publishers and school districts, says the change has been faster than he expected. “I really thought it’d take four to five years till districts see all the possibilities this has opened up,” he says.

Thanks to some meticulous record-keeping at the Texas Education Agency, it’s easy to see how districts are spending their money. So far this school year—as of today—districts have spent $83.5 million from the state’s “instructional materials” fund, $36 million of which has gone to books that aren’t on the state board’s list of adopted materials. Another $20 million has paid for software, tech gear and personnel.

“They’re still buying a lot of state board approved items,” Anderson says, but mostly, districts are buying less of everything.

As gatekeepers to book sales for 5 million students, Texas’ State Board of Education used to have a huge influence on schoolbooks sold nationwide. Former chairman Don McLeroy famously said, “Sometimes it boggles my mind the kind of power we have.”

Lawmakers relieved the board of much of that power in Senate Bill 6, two years after McLeroy led the SBOE on a tear of culture-war revisionism. Meanwhile, the vast majority of other states adopted the federal Common Core standards, creating a much more enticing market for publishers—one that doesn’t include Texas or the whims of its state board.

But a weaker state board doesn’t mean an end to pitched battles over how we teach evolution or global warming. As nasty as the SBOE’s efforts to politicize education have been in the past, they’ve been the lightning rod that spares local districts from hosting those fights.

Under a new law carried by by Sen. Robert Duncan (R-Lubbock), school districts now have to hold public meetings on any new “major curriculum initiatives” they adopt. Activists agitating against the CSCOPE lessons hope the law means a chance to wage little battles over Islam or Agenda 21 at districts across the state. But the law also means any new textbook adoption could flare up another culture war.

“The possibility absolutely exists,” Anderson says, “and the atmosphere is more conducive for a successful push for local hearings now than it was 10, 20, 30 years ago.”

 

Great Hearts Academies
Rep. Lon Burnam (D-Fort Worth) is asking Education Commissioner Michael Williams to deny Great Hearts Academies' plans to expand into North Texas.

The latest round of charter school hopefuls are wrapping up their interviews with state regulators today, the first group to apply since Senate Bill 2 shook up the state’s charter school program. This year, for the first time, charter approval is up to Education Commissioner Michael Williams and not the State Board of Education—and one lawmaker says public input is getting shafted under the new system.

All the charter applicants are required to tell nearby school districts and lawmakers about their plans, but Fort Worth Democratic Rep. Lon Burnam says Great Hearts Academies—a school that’s faced opposition to its expansion plans across the country—waited till the last minute to notify him and Fort Worth ISD about its planned expansion to North Texas. In a letter to Williams, Burnam says Fort Worth ISD got notification from Great Hearts on Monday—the day of TEA’s deadline for input before this week’s interviews.

Burnam says his office hasn’t even heard from Great Hearts directly, and only got letters from two other applicants on Monday. “I know that other legislators and school districts across the state have also experienced this same limited time for comments,” he writes.

Burnam wants Williams to delay his decision on the charter schools so that lawmakers and school districts can weigh in.

Buried in the 200-plus-page charter applications, these “statement of impact” letters can look like technicalities, but it’s still easy to see why schools like Great Hearts might enjoy a quiet approval process.

The Observer wrote last December about the Phoenix-based chain’s expansion plans into San Antonio, and the school’s rejection in Nashville over concerns that Great Hearts’ schools create segregated student bodies catering to wealthy families. In its latest application to the state, Great Hearts proposes four campuses in the Dallas-Fort Worth area, with up to 3,440 students after five years.

For an area that big, Burnam complains in his letter, Great Hearts should have held more than a single meeting all the way over in Dallas. Burnam flat-out asks Williams to reject Great Hearts’ application, with a little dig at the Arizona chain’s lack of Texas bona fides.

“As Texans know, Ft. Worth is not Dallas,” he writes. “Conducting a hearing in Dallas is not sufficient to provide an opportunity for my Ft. Worth constituents to comment on a proposed school in their district.”

Attracting high-quality out-of-state charters is precisely part of the point of SB 2, the biggest set of changes to Texas’ charter school program since its creation almost 20 years ago. The changes also include raising the state’s cap on charter schools, which begins next year, and the new process for charter approval.

The bill also takes the authority to approve charters away from the elected State Board of Education and places it with Williams, a Rick Perry appointee. During yesterday’s charter interviews, TEA officials were ready with tough questions for charter applicants, questioning plans to charge mandatory fees for supplies, for instance, and asking another school about word-for-word similarities between their application and another school’s.

State Board of Education members still have sway, though: Under SB 2, they maintain the power to veto a school’s approval. Many of them were there to ask questions during the charter interviews yesterday too.

 

TEA now posts charters’ applications online, but if you want to read more about the dozen new candidates without downloading the giant files, you can find them all here:

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