                                 QBffice     of the Bttornep    QBenerat
                                               &tate of Z!Cexas
DAN MORALES
 AI-TORNW
       CENERAL                                    January 9,1998



  Dr. Mike Moses                                           Opinion No. DM-465
  Commissioner of Education
  Texas Bducation Agency                                   Re: State Board of Education adoption of sex
  170 1 North Congress Avenue                              education curriculum and textbooks (RQ-942)
  Austin, Texas 78701-1494

  Dr. Jack Christie
  Chair, State Board of Education
  1701 North Congress Avenue
  Austin, Texas 78701-1494



  Dear Commissioner Moses and Chairman Christie:

          Under the revised Education Code,’ the State Board of Education (the “board”) is required
  to establish the public school curricuhnn and adopt textbooks for use in public schools. At the same
  time, the Education Code allows local school districts to choose course materials and instruction
  relating to human sexuality, sexually transmitted diseases, the human immunodeficiency virus, and
  acquired immune deficiency syndrome for use in their districts. The code also mandates five
  elements, mostly relating to abstinence t?om sexual activity, that must be included in any course
  materials and instruction on human sexuality chosen by a district. You ask about the relationship
  between the powers granted to the board and those granted to local school districts with respect to
  sex,education in public schools.

         We begin by discussing the relevant law. Section 28.002 of the Education Code sets out the
  minimum curriculum that must be offered by a public school district with grades kindergarten
  through twelve.2 Each school district must provide a “foundation cur&mum” consisting of English,
  matheanatks, science, and social studies. E&c. Code 5 28.002(a)(l); id. $4.002. Each district must
  also provide an “emichment curriculum” that includes health, physical education, fine arts,
  economics, career and technology education, technology applications, and, to the extent possible,
  languages other than English. Id. 5 28.002(a)(2).



          ‘Act of May 21,1995,74th    Leg., ch. 260, 1995 Tex. Gen. Laws 2207.2207.

           ‘For school districts that do not offer kindergarten through grade 12, the. board must designate subjects
  comtihUin~ a well-balanced curriculum. Fduc. code 8 28.002(b).
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Dr. Jack Christie



        For each foundation curriculum subject, the board must identify the “essential knowledge
and skills,” commonly known as “TEKS,” that all students should be able to demonstrate for that
subject at the appropriate grade level.’ Id. 4 28.002(c). The TEKS are developed with input 6om
educators, parents, business and industry representatives, and employem. Id. The foundation TEKS
must be considered by the board in evaluating textbooks for use in schools’ and must be included
in the assessment of academic skills test, known as ‘TAAS,” required of all students5 Jnstruction
in the TEKS for each foundation subject is required for accreditation of a school district by the
board. Id. $28.002(c); see id. $9 11.001 (requiring each school district to be accredited), 39.071 -
.076 (setting criteria and procedures for accreditation), 39.13 1 (establishing sanctions for failure to
satisfy accreditation criteria).

        For each enrichment curriculum subject, the board must also establish TEKS. Enrichment
curriculum subjects are not required to be included in the TAAS test, and instruction of enrichment
curriculum TEKS is not a condition of accreditation. Instead, “]e]ach district shall use the essential
knowledge and skills identified by the board asguidelines in providing instruction in the enrichment
cuniculum.” Id. § 28.002(d) (emphasis added).

        The board must adopt two lists of textbooks for each subject in both the foundation and
emichment curricula.      See id. $9 31.022, .023, .024. Books reviewed by the board are placed on
the “conforming list” if they cover all of the TBKS elements for the subject. Id. $31.023. Books
are placed on the “nonconforming list” ifthey cover at least half, but not ah, of the TEKS elements6
Id. For subjects in the foundation curricuhrm, local school districts must select books Tom either
the conforming or nonconforming list in order to have the cost of the books paid by the state. Id.
9 31.101. The state will not pay for any part of the cost of a foundation subject book that does not
appear on the conforming or nonconfotming list. For subjects in the emichment cunicul~,
however, the state will pay for the 111 cost of books selected t?om either list, and seventy percent
of the cost of books that do not appear on either list. Id. A school district may use local funds to
purchase any textbook it likes for any subject. Id. 5 3 1.106.

      In sum, the Education Code requires the state board to establish TBKS for foundation and
emichment curricuhnn subjects and adopt textbooks containing at least half of the TEXS elements


          yrhe code declares that “[i]t is the intent of the legislature that the esential knowledgt and skills developed
by     ~StatcBoardofEducation...shallrequirc~studcntstodarmnstratethelmowledgeandsldllsnecessarytoread,
write, compute, problem solve, think critically, apply technology, and communicate. across all subject axas.” Id.
$28.001.

          ‘See Id. 5 3 1.023 (requiriag board to adopt lists of textbooks from which districts may choose books for use
in schools); see generaIly Attorney General Opinion DM-424 (1996) at l-8 (discussing textbook selection).

         %ee Fduc. Code ch. 39 (providing for system of public school assessment to ensure school accounkabiity       for
student achievement).

        6Books on both lists must also meet the board’s physical specifications,      contain no factual errors, and be
adopted by majority vote ofthe board. Id. $31.023.
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Dr. Jack Christie



for each subject. At the same time, the boards of trustees of local school districts are required,
pursuant to section 28.004 of the Education Code, to select “[altry course materials and instruction
relating to human sexuality, sexually transmitted diseases, or human immunodeficicncy virus or
acquired immune deficiency syndrome. . . with the advice of the local health education advisory
council established Iby the board of trustees].” Id. $28.004(a). The local health education advisory
council “as&s+] the district in ensuring that local community values and health issues are reflected
in the district’s human sexuality instruction.” Id. 5 28.004(e). The council’s members, a majority
of whom must be parents of students enrolled in the district, must include “persons who represent
diverse views in the community about human sexuality instruction.” Id. § 28.004(g). The council’s
duties include recommending appropriate grade levels for human sexuality instruction,
recommending the methods of instruction to be used by a teacher, and recommending the number
of hours of instruction to be provided. Id. 9 28.004(f). With the advice of the council, the district’s
board of trustees is directed to “determine the specific content of the district’s instruction in human
sexuality.” Id. $28.004(d).

         While section 28.004 creates local control over sex education, it also lays out five mandates
with respect to the subject. Any course materials and instruction in human sexuality selected by a
district must:

               (1) present abstinence &om sexual activity as the preferred choice of
           behavior in relationship to all sexual activities for unmarried persons of
           school age;

               (2) devote more attention to abstinence t+om sexual activity than to any
           other behavior,

              (3) emphasize that abstinence from sexual activity, if used consistently
           and correctly, is the only way that is 100 percent effective in preventing
           vw=w9         sexually transmitted diseases, infection with human
           immunodeficiency virus or acquired immune deficiency syndrome, and the
           emotional trauma associated with adolescent sexual activity;

               (4) direct adolescents to a standard of behavior in which abstinence t?om
           sexual activity before msrriage is the most effective way to prevent
           pregnancy, sexually transmitted diseases, and Section            with human
           immunodeficiency virus or acquired immune deficiency syndrome; and

                (5) teach contraception and condom use in terms of human use reality
            rates instead of theoretical laboratory rates, if instruction on contraception
            and condoms is included in ctmiculum content.

Id. 5 28.004(a). Under section 28.004, if a school district offers sex education, it must do so
according to local guidelines but with the state-mandated components.



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Dr. Jack Christie



        Your questions   arise fivm the apparentwnflict between the boa&s duty to establish TBKS
and adopt textbooks, and a local school district’s duty to fommlate any human sexuality instruction
it chooses to offer, select appropriate wurse materials, and comply with the abstinence mandates.
Our goal in this opinion is to harmonize the relevant provisions, if possible, so as to give effect to
the entire statute in accordance with legislative intent See Klinger v. City of San Angelo, 902
S.W.2d 669 (Tex. App.-Austin 1995, writ denied); Attorney General Opinion DM-353 (1995) at
3; Gov’t Code 9 3 11.021 (“In enacting a statute, it is presumed that . . . the entire statute is intended
to be effective; . . . .“); id. 4 311.026 (“If a general provision conflicts with a special or local
provision, the provisions shall be construed, if possible, so that effect is given to both.“).

        We turn to your specific questions, which we have summarized and combined into three
areas of inquiry. You first ask:

                Does section 28.004 in any way limit the authority granted to the board
            by section 28.002 to develop the TEKS? If so, are the limits different for the
            foundation and enrichment curriculums? Must TEKS adopted pursuant to
            section 28.002 include the elements ofhuman sexuality instruction set out in
            section 28.004?

         Section 28.004’s effect on the board’s powers under section 28.002 is different for foundation
and enrichment curricula. Because instruction in foundation TEZLSis a wndition of accreditation
and because the TEKS are required to be included on the TAAS test, sex education TBKS adopted
as part of a foundation curriculum subject would be mandatory for local school districts. Districts
would thereby be placed in a position of conflict with their obligation under section 28.004 to
develop a locsl wurse of instruction for sex education. To the extent they wnflict, the specific sex
education requirements dire&d to local school districts in section 28.004 prevail over the authority
granted to the state board in section 28.002 to set TBKS for curricula subjects generslly. See Gov’t
Code 5 311.026(b) (providing that special or local provision prevails as an exception to general
provision where wnflict is irreconcilable).

        Furthermore,  we doubt that the legislature intended to allow the board to establish TBKS for
sex education as part of a foundation curricula subject. Gur examination of the legislative history
of section 28.004 indicates that the legislature intended to allow school districts to decide whether
to offer instruction in human sexuality. See Conference Comm. on Senate Bill 1, 75th Leg.
(May 11,1995) (tmnscript available t?om Senate Staff Services) (statement of Rep. Sadler). They
would not have this discretion if sex education were required as a foundation subject. We conclude,
therefore, that the board may not adopt human sexuality TEKS as part of a foundation curriculum
subject.
                                                                 1
         Enrichment curriculum TEKS, on the other hand, may be used merely as guidelines for local
districts. A district that decides to offer sex education could adopt a local instructional plan in
accordance with section 28.004 irrespective of any TEKS adopted by the state board, and thus no




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Dr. Jack Christie



wnflict between the provisions would exist. We conclude, therefore, that the board may, but is not
required to, adopt TEKS for sex’education as part of an enrichment curriculum subject7

         However, a board rule establishing TEKS inconsistent with the section 28.004 abstinence
mandates would be useless to school districts. Statutes creating and defining the powers of
       .
admnmt&ve agencies are to be wnstrued under the presumption that the legislature never intends
that functions committed to agency should be exercises in futility. Beaver Express Service, Inc. v.
Ra&oadComm ‘n, 727 S.W.2d 768,773-74 (Tex. App.-Austin 1987, writ denied). Thus any human
sexuality TEKS adopted by the board as part of an enrichment subject must be consistent with the
mandates set out in section 28.004.

       You next ask “May the board adopt a textbook that addresses human sexuality but which
does not contain the elements of human sexuality instruction set out in section 28.004?’

        The board may adopt a textbook if it wntains half of the TEKS for the subject for which the
book is to be used. Id. $3 1.023. If the board adopts TEKS relating to human sexuality, which
TEKS must be wnsistent with the requirements of section 28.004, the board may adopt a textbook
on human sexuahty if it includes at least half of the TEKS elements, even if it does not include all
of the elements.

         In our view, a local school district is not prechtded tIom using a board-adopted textbook that
does not wntain all the elements that section 28.004 requires in any “wurse materials and
instructions” in human sexuality. We do not believe that each “wurse material,” such as a textbook,
must include sII of the elements. Instead, we believe that wurse materials and instruction as a whole
must satisfy the mquirements of section 28.004. That is, emphasis on abstinence required by section
28.004 may be conveyed to students through a combination of different materials and classroom
instruction, even if one source does not contain all the required elements.

        Finally, you ask:

             May a school district select a textbook for local use that contains material
             inwnsistent with the course of instruction for humau sexuality selected by the
             district? If yes, may a school district selectively use the wmponents in a
             manner that complies with the local course of instruction chosen pursuant to
             section 28.004.

        The snswer to both of these quations is yes. Section 28.004 allows local school districts to
choose the “wurse materials” for use in human sexuality instruction and requires the materials to
include certain elements. The Education Code does not define “wurse materials,” but “instructional


         ‘It is our understanding that your questions arise. from the board’s adoption of TEKS for human sexuality as
part of health class, me of tbe enrichment curriculum subjects. See Texas Educ. Agency, 22 Tex. Reg. 7755,7759
(Aug. l&1997) (codified at T.A.C. tit. 19 $5 115.31 - .33).




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Dr. Jack Christie



materials*’ are included in the code’s definition of “textbook.” Educ. Code § 31.002(3)
(“‘Textbook’ means a book, a system of instructional materials, or a combination of a book and
instructional materials that wnveys information to the student or otherwise contributes to the
lesrning process, or an electronic textbook.“). Thus “course materials” includes part of a textbook.
We conclude that a district may select a textbook that contains material inwnsistent with the locally
determined wurse of sex education instruction, provided any materials from the textbook used in
the course of instruction are consistent with the local instructional plan. In other words, if a textbook
selected by a district includes material that is inconsistent with the district’s instructional plan a
school district may select the book and comply with section 28.004 by using only those parts of the
book that reflect its instructional plan.

                                         SUMMARY

                 The State Board of Education may not establish as part of a foundation
            curriculum subject the essential knowledge and skills (“TEKS”) for
            instruction in human sexuality, sexually transmitted diseases, the human
            immunodeficie.ncy virus, or acquired immune deficiency syndrome. Any
            human sexuality TEKS adopted by the board as part of an enrichment
            curriculum subject must be consistent with the sex education mandates set
            out in Education Code section 28.004. If the board adopts TEKS for an
            enrichment subject that includes human sexuality, the board may adopt a
            textbook for the subject that does not contain the elements of human
            sexuality set out in section 28.004 provided at least half of the TEKS
            elements for the subject are included in the book. A local school district may
            select a textbook that contains material inconsistent with the 1ocalIy
            determined sex education instructional plan provided any materials used in
            the wurse of instruction are consistent with the local instructional plan.




                                                DAN MORALES
                                                Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH I. SHIRLEY
Chair, Opinion Committee

Prepared by Bsrbara Griffin
Assistant Attorney General




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