Klein Independent School District And Mike Morath, Texas Commissioner of Education v. Alana Sisk

Affirmed and Opinion filed November 16, 2023.

In The

Fourteenth Court of Appeals

NO. 14-22-00418-CV

KLEIN INDEPENDENT SCHOOL DISTRICT AND MIKE MORATH,
TEXAS COMMISSIONER OF EDUCATION, Appellants
V.

ALANA SISK, Appellee

On Appeal from the 11th District Court
Harris County, Texas
Trial Court Cause No. 2020-03126

OPINION

Klein Independent School District (KISD) terminated Alana Sisk’s continuing
teaching contract, and Texas Commissioner of Education Mike Morath affirmed the
decision. On further review, the district court reversed the Commissioner’s
affirmance and remanded the case to the Commissioner.1 Because substantial

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Upon reversal, the Commissioner must order the “order the school district to reinstate the
teacher and to pay the teacher any back pay and employment benefits from the time of discharge
or suspension to reinstatement.” TEX. EDUC. CODE § 21.304(e). The school district may instead
evidence was not presented that Sisk failed “to meet the accepted standards of
conduct for the profession as generally recognized and applied in similarly situated
school districts in this state,”2 we affirm the district court’s judgment.

I. FACTS

In the spring of 2018, McDougal Elementary School teacher Alana Sisk
proctored the administration of the STAAR Reading Test, the STAAR Reading
Retest, and the STAAR Math Retest for fifth-grade students allowed to take the test
orally based on evidence of reading deficiencies, limited English proficiency, or
“Section 504 or Special Education accommodations.”

The students to whom Sisk administered STAAR tests had testing
accommodations that included a “whisper phone,” a C-shaped PVC tube into which
students could whisper test questions or answers and hear the whispered words
without disturbing other students. A whisper phone, dictionary, and scratch paper
were available on each student’s desk. Many of the students also had
accommodations that included “Individualized Structured Reminders” or
“Reminders to Stay on Task,” and test administrators were permitted to “remind
students to stay focused” or to “encourage students to stay on task”; however, the
school’s STAAR testing procedures state that “[r]einforcing, reviewing, and/or
distributing testing strategies during an assessment is strictly prohibited.”

In the school year following Sisk’s oral administration of the STAAR tests,
the school district investigated possible testing “irregularities.” Sisk met with
KISD’s Executive Director of Human Resources Martha Werner and KISD’s

“pay the teacher one year’s salary to which the teacher would have been entitled from the date on
which the teacher would have been reinstated.” Id. § 21.304(f).
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See id. § 21.156(a).
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Director of Assessment & Accountability Stacy Kindsfather. Sisk later described the
meeting as follows in her testimony before the independent hearing examiner:

I volunteered that I had been reflecting and wracking my brain trying
to think of anything that I may have done that was improper. And I told
Ms. Werner and [Kindsfather] that during actual testing, my students
had their allowable accommodations on their desks. And if I noticed a
student that was off task, daydreaming, playing with their shoes,
whatever, that I would pick up the whisper phone, for example, and –
without saying anything and hand it to the student as a non-verbal
reminder to stay on task because the students I tested in small group
they were very – they were easily distracted.
Ms. Werner similarly testified:

[Sisk] did remember that she did give students looks if she thought they
weren’t using their strategies. She also did say that she picked up a
whisper phone and handed it to a student. Did not make any verbal
commentary, but did hand the whisper phone to the student who wasn’t
using it.
Q: So what was your opinion of what she told you?
A. So I felt like when you hand a student an accommodation, while
not verbally telling a student to utilize the conversation [sic], the
handing of that accommodation is an indirect method of telling them to
use that accommodation.
At the meeting with Werner and Kindsfather, Sisk was told she was placed on
administrative leave.

On the recommendation of KISD’s Superintendent Dr. Bret A. Champion,
KISD’s Board of Trustees proposed terminating Sisk’s contract for good cause.
Sisk’s attorneys wrote to the Board and to Commissioner Mike Morath of the Texas
Education Agency (TEA) to request a hearing by an independent hearing examiner
(IHE). The case was heard by IHE Peter Thompson. Thompson’s formal
Recommendations included the following statements, labeled as findings of fact:

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94. Petitioner has not established that Respondent provided
unauthorized assistance to any students during the 2018 STARR
testing.
...
96. Petitioner has not established that Respondent violated KISD Board
Policies, state law, or ethical standards, including Standards 1.1, 1.6,
1.7, 1.10, 3.2, and 3.3 of the Educator’s Code of Ethics.
97. Petitioner has not established that good cause exists to terminate
Respondent’s continuing contract.
In the “Discussion” section of his recommendations, the IHE additionally stated that
KISD “has not met its burden of establishing good cause to terminate [Sisk’s]
contract.”

The Board voted unanimously to make changes to the IHE’s
recommendations by deleting the word “not” from each of the quoted statements.
The Board then terminated Sisk’s employment.

Sisk appealed the Board’s decision to Commissioner of Education Mike
Morath, who held that KISD met its burden to establish that good cause existed to
terminate Sisk’s contract.

Sisk then appealed to the 11th District Court, who reversed the
Commissioner’s decision and remanded the case. KISD and the Commissioner
appeal.

II. STANDARD OF REVIEW

The board of trustees may adopt, reject or change an IHE’s conclusions of
law, including the IHE’s determination concerning good cause for termination;
however, the board can reject or change the IHE’s factual findings “only after
reviewing the record of the proceedings before the hearing examiner and only if the
finding of fact is not supported by substantial evidence.” TEX. EDUC. CODE

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§ 21.259(b), (c). As used here, “substantial evidence” means “more than a mere
scintilla.” Goodie v. Houston Indep. Sch. Dist., 57 S.W.3d 646, 650 (Tex. App.—
Houston [14th Dist.] 2001, pet. denied). Whether substantial evidence exists is a
question of law. Miller v. Houston Indep. Sch. Dist., 51 S.W.3d 676, 681 (Tex.
App.—Houston [1st Dist.] 2001, pet. denied) (citing Montgomery Indep. Sch. Dist.
v. Davis, 34 S.W.3d 559, 566 (Tex. 2000)). Although the school board can reject or
modify the IHE’s findings of fact, the board is not authorized to find facts in addition
to those found by the IHE. Davis, 34 S.W.3d at 564.

The Commissioner of Education reviews the school board’s decision by
measuring the evidence against the IHE’s fact findings to see if substantial evidence
supports the findings. Miller, 51 S.W.3d at 681. If so, then the board erred in
determining otherwise.

On further review, the district court and the appellate court focus on the
Commissioner’s decision, which may not be reversed unless the decision is
unsupported by substantial evidence or unless the Commissioner’s conclusions of
law are incorrect. See TEX. EDUC. CODE § 21.307(f); N. E. Indep. Sch. Dist. v. Riou,
598 S.W.3d 243, 251 (Tex. 2020); Goodie, 57 S.W.3d at 650. Specifically, the courts
review the Commissioner’s legal conclusion “that the board correctly found
substantial evidence did not support the examiner’s fact findings.” Miller, 51 S.W.3d
at 681.

“Review under the substantial-evidence rule is highly deferential—the issue
is not whether the agency’s decision is correct, but whether the record demonstrates
a reasonable basis for it.” Riou, 598 S.W.3d at 251. “[A] reviewing court is not bound
by the agency’s reasons for its decision when a valid basis exists for the action
taken.” Id. On questions of law, however, decisions of the courts and agencies below

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are not entitled to deference. See Tex. Dep’t of Pub. Safety v. Alford, 209 S.W.3d
101, 103 (Tex. 2006) (per curiam).

III. LACK OF SUBSTANTIAL EVIDENCE OF GOOD CAUSE

“Good cause for termination” is a conclusion of law that the board of trustees
is free to adopt, reject, or change. TEX. EDUC. CODE § 21.259(b)(1). The evidence
required to establish good cause differs depending on the type of contract the teacher
has. If the teacher has a term contract for a fixed period of time, 3 the board may
terminate the teacher’s contract for “good cause as determined by the board.” Id.
§ 21.211(a)(1). But if the school district employs the teacher under a continuing
contract, then the board may terminate the contract “for good cause as determined
by the board of trustees, good cause being the failure to meet the accepted standards
of conduct for the profession as generally recognized and applied in similarly
situated school districts in this state.” Id. § 21.156(a). Such generally applicable
standards may be imposed by state or federal laws or regulations. To terminate a
teacher’s continuing contract for reasons unrelated to such generally applicable legal
sources, the “good cause” determination must be based on evidence of the generally
accepted standards in similarly situated school districts. Riou, 598 S.W.3d at 254.

Here, such evidence is lacking. KISD and the Commissioner assert that Sisk
violated a generally applicable law or regulation but they have not identified the law
or regulation on which they rely. KISD asserts that “[r]egulations from the Texas
Education Agency . . . make it clear that the distribution of testing strategies during
testing administration is a serious testing irregularity,” but they cite no such
regulations. KISD instead cites pages from its “2018 Texas Student Assessment
Program Coordinator Manual” and its “2018 Campus Test Administrator Training,”

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See TEX. EDUC. CODE § 21.201(c) (defining “term contract”).
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neither of which cite a law or regulation as the source of the statement that
“[r]einforcing, reviewing for, or distributing testing strategies during an assessment
is strictly prohibited.” KISD and the Commissioner also cite no law or regulation
under which the use of a whisper phone is treated as a “testing strategy.”

Moreover, the manuals on which they rely refer to “testing strategies,”
“accommodations,” and “accessibility features” without expressly defining these
terms. At the hearing, both KISD and Sisk referred to a whisper phone as an
“accommodation,” and the 2018 Campus Test Administrator Training manual
contains a page with the heading “Accommodations Reminders,” followed by the
bullet point “[m]ust be individualized to address the specific needs of each student.”
The same manual similarly includes a child’s access to “[t]ools that minimize
distractions”—such as a tool that would allow a child to “[r]ead test aloud to self”
without disturbing others—among “Accessibility Features” rather than “testing
strategies.”

Having failed to show that Sisk violated accepted standards imposed by a
generally applicable law or regulation, KISD was required to produce evidence of
generally accepted standards in similarly situated school districts. Here, too, the
evidence falls short. Although Werner testified that Sisk’s conduct constituted good
cause for termination, and that she, Werner, would have reached the same decision
in her prior position as Leander Independent School District’s senior director of
elementary staffing and employee relations, there is no evidence that Leander ISD
is a “similarly situated school district.”

IV. CONCLUSION

In affirming the Board’s decision to terminate Sisk, the Commissioner
reasoned that “school districts authoritatively interpret their own policies” and
“determinations regarding good cause are conclusions of law that school districts
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have significant authority to change.” But although this might support termination
of a term contract, good cause for terminating a continuing contract requires more.

We overrule the issues presented. Because the record lacked substantial
evidence supporting the Commissioner’s decision to uphold KISD’s board’s
termination of Sisk’s continuing teaching contract, we affirm the district court’s
judgment reversing that decision and remanding the case to the Commissioner for
further action consistent with, and pursuant to, Texas Education Code section
21.304(e) and (f).

/s/ Tracy Christopher
Chief Justice

Panel consists of Chief Justice Christopher and Justices Jewell and Spain.

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