                     The Attorney                   General of Texas
                                         December        28,    1978
JOHN L. HILL
Attorney General


                   Honorable Lyndon Olson, Jr.                         Opinion No. II- 1314
                   Chairman, Higher Education Committee
                   House of Representatives                            Re: Validity of State Roard of
                   State Capitol                                       Education rules for the accredi-
                   Austin, Texas 78711                                 tation of school districts.

                   Dear Representative     Olson:

                         You request our opinion concerning the validity of the rules adopted in
                   1977 by the State Board of Education to govern the process of accrediting
                   school districts in the state.

                         ‘Ihe Legislature has specified that a Texas school district must be
                   accredited by the Central Education Agency in order to receive financial
                   support from the Foundation School Fund. Educ. Code SS 16.051, 16.053. The
                   State Board of Education has the duty to establish rules and regulations for
                   the accreditation of schools. Educ. Code, SS R.01, R.26.

                         You first ask if the 1977 rules, designated in the Texas Register as Rule
                   226.37.15 a&denominated     “Rinciples, Standards end Procedures for Accredi-
                   tation of School Districts - 1977,” conflict with section 13.032(c) of the
                   Education   Code.

                           Section 13.032(c) specifies that in developing standards for programs in
                   teacher education,      the State Board of Education may not require an
                   institution    to teach a particular    doctrine or to conduct instruction      in
                   accordance with any pedagogical method.           In our opinion, the provision
                   concerns only the authority ~of the board ~with respect to-~colleges. and
                   universities offering programs of teacher education and does not relate to the
                   authority     of the board respecting accreditation      of school districts   for
                   participation    in the Foundation .Schod-Fund.-Gee.-Attorney-~~~
                                                                      -                      Qpinion-
                   H-197 (1974).

                         You also ask if the 1977 rules are in conflict with section 23.26(b) of the
                   Education Code, which reads:

                               The trustees [of an independent school district] shall
                               have the exclusive power to manage and govern the free
                               schools omict.




                                                    P-   5170
Honorable Lyndon Olson, Jr.       -     Page 2          (H-1314)



(Emphasis added). TIN corollary of this provision is section ll.SS(a)(S), which states whh
respect to the State Department of Kducatiom

                utl shall...  seek to assist looal school districts in developing
                effective and improved pqrams         of education through re-
                search and exuerimentation.     consultation, conferences, and
                evaluation, but-shall have & power over local school districts
                except those specifically granted by statute.

(Emphasis added).

       lbe 1977 accreditation  rulea set out specific standarda to which school districts
must conform to be .accredited by the Central Kducation Agency for participation in the
FouudationschoolFund.

         We do not b&eve sect&n 23:26(b) can be read in isoktion from other provisions of
 the law. Referring to ita similarly w&&d predecessor, the Amarillo Court of Appeals
said in Anderson v. Canyon Ind. Sch. Dist., 432 S.W.2d 387 (Tex. Civ. App. - AmsriKo
l967, no writ), %E provlsiana of this statute must be considered in the li#t of other
statutes to determfne the authority of the trustees to. enact a partkulsr         rule or
 regulatio~~~ No s&tool district k? statutorily compelled to’seek accredita-&-&
failure to gain t3cweditation forfeits financial tapport from the &bmd&on
see univeraitv Interscliolastic liaamte v. Midwestern Universi@ 255 S.W.2d 177 (Tex.
i353);&Pub’met
           hinR’&                                                     Attarney General
O&ica V-388 uS4g          See also &ok       V.   Jtkkaon, iO? S.W.2d 160 (Tex. 1937), ~reversin2 82
BW.2dl54.

        ‘Additionally SeaMe Concurrent Reaoluti~ No. 30 of the re@tir session of the 65th
Legialeture eommamkd the State K&d of &Ncation to revise its accreditation’standard
torequireofachool~ictsthatrrtudentpoficiencyinbasic~beaasessedand,it
riecemq,     rem&@.        Tlte-l977.rulea adopted by the board ‘were designed to aecoioplisb
tJat task. .This resolution reflet$a the polioy of the state in one of the modes prescrkd
by the Texas Constitution. .TerreK v. K@, 14 S.W.2d 786 (Tex. 1929).          :

        ~Accordi&ly it fs our view that the courts of this state would eon&de that the 1977
akreditation   rules do not usurp the authority of. local school boards or conflict with
section lL63 of the Kducation Code.

        Your third inquiry asks if the 1977 h&s are void for vagueness. Admibtrative
regulations ere tested by the same principles of construction    as statutes, and .a~
unconstitutionally vague only when a required course of conduct is stated in terms 80
vague   mat   pgsons   of dnar~       int-              cannot   be sll~e 0f what   i.3 ~hd~a51t.f~
when there is a substantial risk of miscalculation by those whose acts are subject to
                 A. m wfina       (26 v. state, 6412.W.Bd 639 (Tex. Civ. App. - Dallas




                                                  .p.    5171
Honorable Lyndon Olson, Jr.     -   Page 3   (H-1314)



        The 1977 accreditation    rules, as subsequently amended, consist of (l) a statement
regarding the statutory       basis for accreditation,      (2)a general position statement,
(3) conditions and procedures for accreditation,       (4) principles and standards, and (5) an
appendix of additional accreditation regulations, including a description of the accredita-
tion planning process.      All except the’ fourth &&gory above, that is, “principles and
standards,” are presented in relatively straightforward and easy-to-understand       language.

         We cannot say that material in tha “principles and standardsn section of the 1977
accreditation rules is ao vague as to be invalid aa a matter of law, although jargon used in
the educational field is often employed. Regulations are presumed valid and the burden of
 showing otherwise is on the party asserting invalidity. When a term used has a peculii or
 technical meaning as applied to some art, science, or trade, courts look to the particular
 art, rience or trade from which it Is taken in order to ascertain its meaning, and the
‘testimony of expert witnesses may be uaed to clarify such terms. Lloyd A. Fry Roofmg
Co. v. State, s?lpra

        We cannot aaaume that the language of the 1977 accreditation rulea,.when read in
its qntirety, preaenta a aubatantial risk of miscalculation by those educators whoae acts
are subject to regulation.

       In your last question you ask if the 1977 rules impose a required teaching ideology
upon tea&era in violation of theii First Amendment right&

      Senate Concurrent Resolution No. 30 of the 65th Legislature, a policy.directive        in
which both legislative houses joined, and which the governor approved, provides:

               WHEREAS, The State Roard of Rducation haa adopted the
               following aa a state goal for public education:    ‘In terms of
              .Ueir individual abiiity to achieve, each ah&M ahouldhave a
               knowledge of, tha traditionally accepted fundamentala, arch aa
               read&      writii,    end arithmetic    in the early grades,
               accompanied      by studies in higher mathematics,       science,
               history, English, and other languages aathey progress through
               the lpper grades;’ and

               WHEREAS, There is mounting public concern that the public
               achoola are graduating ‘en increaamg number of students who
               have not achieved thfa goal and who simply cannot read, write,
               or do basic arithmetic at a level high enough to be functionaRy
               competent in today’s society; and

               WHEREAS, It is a personal tragedy for a atudent to spend 12
               years in the public school system and to be unable to compete
               in employment      and other opportunities   after graduation
               because of poor preparation; and

               WHEREAS, Public confidence in and fiscal support for a public
               school system that fails to achieve its basic goals are difficult
               to maintain; now, therefore, be it


                                             p.   5172.
Honorable Lyndon Olson, Jr.     -   Page 4        (H-1314)




               RESOLVED by the Senate of the State of Texas, the House of
               Representatives concurrin2, That the State Roard of R&cation
               be and hereby is directed to revise its accreditation standards
               to ‘~require school districts   to evaluate their educational
               ;vrofms    in terms of the goals of public educationt and, ba it


              RFSOLVRD, That the State Board of Education revise its
              accreditation standards to require each school district to
              aasess the proficiency   of its students in basic skills at
              designated grade levels and to formulate plans for remedial
              programs if necessary.   S.C.R. 30, 1977 Tex. Gen. Laws, at
              3192,3193.

        The briefs submittedto us on this questionview  it as one involving the academic
freedom of teachers to choose the content of particular couraes  or subjects taught in the
schools, or to choose the method of teaching a particular course or subject,          It is
contended by some of the briefs that the concept of %ccountabilityn fs infmicable to the
First Amendment rights of the academic community.

        We do not believe the 1977 accreditation rules are facfally unconstitutional. &a
Rast Hartford Rducation A&n v. Board of Education, 562 F.2d 838,857, n.5 (2nd Cir. 1Sm
‘(en bane).

        fn our opinfon the 1977 accreditation     rules do not fmpose a required teachtng
ideology upon teachers. in violation of their First Amendment rig+.           See Adams v.
Cam&all Countv School Dist. Sll F.2d 1242 (lOth Cir. 1975); Presidents Cou mefLDfst. 25 v.
Community School Board d.         25, 457 F.2d 289 (2nd Cm         372); Ahem v. hard     of
Bducatim, 456 P.2d 399 (8th Cir. 1972); Mafiloux v. Kfley, 323 F. Supp. 1587 (D. Mass.,
aff’d. 448 F.2d l242,(lst Cfr. 1971); Goldstein, The Asserted Constitutional Right of Public
School Teachers to Determfne What They Teal
1293976).

                                       SUMMARY

              The 1977 principles,      standards,  and procedures    for the
              accreditation of school districts adopted by the State Roard of
              Jklucaticn do not conflict with particular provisions ~of the
              Texas Rducation Code, are not unconstitutionally     vague, and
              do not facially violate First Amendment rights of teachers.




                                              Attorney General of Texas




                                             p.     5173
Honorable Lyndon Olson, Jr.   -   Page 5 (Ii-1314)




APPROVED:




   m
C.
Opinion Committee




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