Are Texas schools allowed to use Common Core to teach state standards?

Plain-English summary

State Senator Dan Patrick, chair of the Senate Education Committee, asked the Attorney General whether Texas school districts that use the Common Core State Standards "in any way" to teach state standards are breaking the law. The question came from a bill the senator had sponsored, House Bill 462, in the 2013 legislative session, which was meant to keep Common Core out of Texas classrooms. That bill added several subsections to section 28.002 of the Education Code. Among them, the State Board of Education may not adopt Common Core to meet its duties, a school district may not use Common Core to satisfy the requirement to teach the "essential knowledge and skills" at appropriate grade levels, and no district or charter school may be required to offer any aspect of a Common Core curriculum.

The AG explained how the required-curriculum system fits together. The Education Code directs the State Board of Education to identify, by rule, the essential knowledge and skills students must learn, and the Board has done so through its own Texas Essential Knowledge and Skills standards, the TEKS, in title 19 of the Administrative Code. The statute then requires each district to provide instruction in those essential knowledge and skills, and the Board's rules require districts to teach using the TEKS. Putting the new subsections together with those rules, the AG concluded that districts must use the TEKS, not the Common Core Standards, to comply with the requirement to teach the essential knowledge and skills at the appropriate grade levels.

The AG then addressed a practical worry raised in briefing from a school-boards group. Because the TEKS and Common Core overlap on many topics (a fourth-grade math example involves multi-digit multiplication, fractions, and geometry in both sets of standards), the group feared that if teachers could not touch Common Core "in any way," they would be unable to teach many required TEKS. The AG called that concern baseless. Using a simple illustration, if the TEKS require teaching that 2+2=4, the law does not stop a teacher from teaching it just because Common Core also says 2+2=4. The AG pointed to the legislative record, where the bill's author explained that he did not intend "to prevent the use of materials where the two standards may overlap" and that the bill's purpose was to prohibit the "outright adoption of national common core standards." So the bottom line was that districts must not use Common Core to satisfy the curriculum requirement, while overlapping subject matter that also appears in the TEKS may still be taught.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

Senator Patrick and the Senate Education Committee (as the opinion described it): The opinion concluded that under subsection 28.002(b-3), school districts may not use the Common Core State Standards to comply with the requirement to provide instruction in the essential knowledge and skills, and that they must instead use the TEKS. It described the statutory ban as aimed at outright adoption of Common Core.

School districts and teachers (as the opinion described it): The opinion described districts as required to teach the essential knowledge and skills through the TEKS rather than Common Core, but it described the concern that teachers could not teach overlapping content as baseless, citing the bill author's stated intent not to prevent the use of materials where the two standards overlap.

The State Board of Education (as the opinion described it): The opinion described the Board as barred by subsection 28.002(b-2) from adopting the Common Core Standards to meet its duties, and as having satisfied its statutory duty by adopting the TEKS standards in title 19 of the Administrative Code.

Common questions

Can Texas schools use Common Core to teach the required curriculum?
No. The AG concluded that school districts may not use the Common Core State Standards to comply with the requirement to provide instruction in the essential knowledge and skills, and must use the state's TEKS standards instead.

Does the law ban teaching anything that also appears in Common Core?
No. The AG called that concern baseless, explaining that material the TEKS require (its example was that 2+2=4) may still be taught even though Common Core teaches the same thing.

What did House Bill 462 actually do?
The AG explained that the 2013 bill amended Education Code section 28.002 to bar the State Board of Education from adopting Common Core, bar districts from using it to teach the essential knowledge and skills, and provide that no district or charter school may be required to offer any aspect of a Common Core curriculum.

What standards must Texas districts teach?
The AG explained that districts must use the Texas Essential Knowledge and Skills (TEKS) standards adopted by the State Board of Education in title 19 of the Texas Administrative Code.

Background and statutory framework

House Bill 462 amended Education Code section 28.002 by adding subsections (b-1) through (b-4) (Act of May 23, 2013, 83rd Leg., R.S., ch. 861, § 1, 2013 Tex. Gen. Laws 2210, 2210; Tex. Educ. Code Ann. § 28.002(b)-(b-4) (West Supp. 2013)). Those subsections define "common core state standards," bar the State Board of Education from adopting them (id. § 28.002(b-2)), and bar a district from using them to provide instruction in the essential knowledge and skills (id. § 28.002(b-3) (West Supp. 2013)).

The Education Code requires the State Board of Education to identify the essential knowledge and skills of the required curriculum (Tex. Educ. Code Ann. § 28.002(c) (West Supp. 2013)), which the Board did through the TEKS standards (19 Tex. Admin. Code §§ 110.11-128.32 (2013)), and to require districts to provide instruction in those skills, which the Board implemented by rule (19 Tex. Admin. Code § 74.1(b) (2013)). The AG acknowledged overlap between the TEKS and Common Core, illustrated by fourth-grade math standards (19 Tex. Admin. Code § 111.6(a)(4) (2013)), and relied on the bill's legislative history showing the author's intent to bar outright adoption rather than overlapping materials.

Citations

Statutory and regulatory provisions:

• Act of May 23, 2013, 83rd Leg., R.S., ch. 861, § 1, 2013 Tex. Gen. Laws 2210, 2210 (House Bill 462)
• Tex. Educ. Code Ann. § 28.002(b)-(b-4) (West Supp. 2013) (Common Core provisions added to required-curriculum statute)
• Tex. Educ. Code Ann. § 28.002(b-2) (State Board may not adopt Common Core)
• Tex. Educ. Code Ann. § 28.002(b-3) (West Supp. 2013) (districts may not use Common Core for required instruction)
• Tex. Educ. Code Ann. § 28.002(c) (West Supp. 2013) (identifying and requiring instruction in essential knowledge and skills)
• 19 Tex. Admin. Code §§ 110.11-128.32 (2013) (TEKS standards)
• 19 Tex. Admin. Code § 74.1(b) (2013) (districts to provide instruction using TEKS)
• 19 Tex. Admin. Code § 111.6(a)(4) (2013) (fourth-grade math TEKS)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-1067
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2014/ga1067.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

June 17, 2014

The Honorable Dan Patrick Opinion No. GA-1067
Chair, Committee on Education
Texas State Senate Re: Use of the Common Core State Standards
Post Office Box 12068 Initiative by Texas school districts to teach
Austin, Texas 78711-2068 state standards (RQ-1175-GA)

Dear Senator Patrick:

You ask whether school districts using the Common Core State Standards Initiative ("Common Core Standards") "in any way to teach state standards violate the law."[1] As background, you explain that during the Eighty-third Legislative Session you sponsored House Bill 462 regarding the prohibition of the Common Core Standards in Texas. Request Letter at 1. House Bill 462 amended section 28.002 of the Education Code, which relates to required curriculum in Texas public schools, by adding subsections (b-1) through (b-4). Act of May 23, 2013, 83rd Leg., R.S., ch. 861, § 1, 2013 Tex. Gen. Laws 2210, 2210. Section 28.002 now states, in relevant part:

(b) The State Board of Education by rule shall designate subjects constituting a well-balanced curriculum to be offered by a school district that does not offer kindergarten through grade 12.

(b-1) In this section, "common core state standards" means the national curriculum standards developed by the Common Core State Standards Initiative.

(b-2) The State Board of Education may not adopt common core state standards to comply with a duty imposed under this chapter.

(b-3) A school district may not use common core state standards to comply with the requirement to provide instruction in the essential knowledge and skills at appropriate grade levels under Subsection (c).

(b-4) Notwithstanding any other provision of this code, a school district or open-enrollment charter school may not be required to offer any aspect of a common core state standards curriculum.

TEX. EDUC. CODE ANN. § 28.002(b)-(b-4) (West Supp. 2013). The Common Core Standards describes itself as a single set of educational standards for kindergarten through 12th grade in English language arts and mathematics that states may voluntarily adopt. COMMON CORE STATE STANDARDS INITIATIVE, http://www.corestandards.org/resources/frequently-asked-questions (last visited Apr. 3, 2014).

Subsection 28.002(c) of the Education Code requires the State Board of Education ("SBOE") to "by rule identify the essential knowledge and skills of each subject of the required curriculum that all students should be able to demonstrate." TEX. EDUC. CODE ANN. § 28.002(c) (West Supp. 2013). Subsection 28.002(b-2) directs that in doing so the SBOE may not adopt the Common Core Standards. Id. § 28.002(b-2). Pursuant to the statutory mandate to promulgate rules establishing a required curriculum, SBOE has adopted its own set of educational standards, the Texas Essential Knowledge and Skills ("TEKS") standards, which are located in title 19 of the Texas Administrative Code. 19 TEX. ADMIN. CODE §§ 110.11-128.32 (2013).

With regard to individual school districts, the SBOE "shall require each district to provide instruction in the essential knowledge and skills at appropriate grade levels." TEX. EDUC. CODE ANN. § 28.002(c) (West Supp. 2013). Under subsection (b-3), school districts "may not use common core state standards to ... provide instruction in the essential knowledge and skills at appropriate grade levels." Id. § 28.002(b-3). Pursuant to the requirement in subsection (c), SBOE has adopted rules requiring school districts to provide instruction to students using its TEKS standards. 19 TEX. ADMIN. CODE § 74.1(b) (2013). Thus, school districts must utilize the TEKS standards, not the Common Core Standards, to comply with the requirement that they provide instruction in the essential knowledge and skills at appropriate grade levels. TEX. EDUC. CODE ANN. § 28.002(b-3) (West Supp. 2013).

Briefing submitted to this office states that the TEKS and the Common Core Standards overlap in many instances.[2] For example, the math TEKS explain that the "primary focal areas in Grade 4 are use of operations, fractions, and decimals and describing and analyzing geometry and measurement." 19 TEX. ADMIN. CODE § 111.6(a)(4) (2013). Similarly, the Common Core Standards for fourth grade recommend the following:

focus on three critical areas: (1) developing understanding and fluency with multi-digit multiplication, and developing understanding of dividing to find quotients involving multi-digit dividends; (2) developing an understanding of fraction equivalence, addition and subtraction of fractions with like denominators, and multiplication of fractions by whole numbers; (3) understanding that geometric figures can be analyzed and classified based on their properties.[3]

The briefing raises the concern that if teachers cannot use the Common Core Standards "in any way," it will result in an inability to teach many of the required TEKS due to this overlap. TASB Brief at 11. That concern is baseless. To use a simple example, if TEKS requires teaching that 2+2=4, the bill plainly does not prevent this instruction simply because Common Core also teaches that 2+2=4. The Legislature was aware of the frequent overlap between the TEKS and the Common Core Standards, as evidenced by the bill author's explanation that it was not his intent "to prevent the use of materials where the two standards may overlap." H.J. of Tex., 83rd Leg., R.S., 4469 (2013). The stated intent of the bill was to prohibit the "outright adoption of national common core standards." Id. Accordingly, school districts must not use the Common Core Standards to comply with the requirement to provide instruction in "the essential knowledge and skills at appropriate grade levels." TEX. EDUC. CODE ANN. § 28.002(b-3) (West Supp. 2013).

SUMMARY

Texas school districts are required to provide instruction in the essential knowledge and skills at appropriate grade levels, and pursuant to subsection 28.002(b-3) of the Education Code, they may not use the Common Core State Standards Initiative to comply with this requirement.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

Virginia K. Hoelscher
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable Dan Patrick, Chair, Senate Comm. on Educ., to Honorable Greg Abbott, Tex. Att'y Gen. at 2 (Dec. 20, 2013), http://www.texasattorneygeneral.gov/opin ("Request Letter").

[2] Brief from Kelli H. Karczewski, Karczewski, Bradshaw, LLP, on behalf of the Tex. Ass'n of Sch. Bds. at 8-11 (Jan. 21, 2014) ("TASB Brief") (on file with the Op. Comm.).

[3] COMMON CORE, http://www.corestandards.org/Math/Content/4/introduction (last visited Apr. 3, 2014).