Texas Citizens for Science
Brief to the Texas Attorney General
Regarding Opinion Request RQ-0430-GA
March 24, 2006

Texas Citizens for Science has prepared a new Brief (DOC, PDF) for the Texas Attorney General that analyzes and challenges an Opinion Request that attempts to return textbook content control and censorship authority to the State Board of Education. On January 6, 2006, State Board of Education Member Terri Leo and Chair Geraldine Miller requested an opinion (RQ-0430-GA, PDF only) from Texas Attorney General Greg Abbott regarding an interpretation of the Texas Education Code (TEC). In 1995, the Texas Legislature in Senate Bill 1 undertook a complete revision of the TEC. A major purpose of this revision was to strip the State Board of Education (SBOE) of its power to select and adopt textbooks for all Texas school districts. For several decades, the authority to select textbooks in Texas had been abused by the SBOE, for it had engaged in massive content censorship of textbooks for political, ideological, and religious reasons. The initial intent of the 1995 legislation was to take all authority for textbook content away from the SBOE, but during debate two limited and specific powers were returned: the SBOE was entrusted to make sure the textbooks conformed to the Texas Essential Knowledge and Skills (TEKS, the state instructional curriculum, which also governs textbook content) and were free of factual errors. However, the former authority to remove textbooks from the approved list on the basis of only the opinion of a majority of Board members was explicitly removed and not reinstated.

On July 12, 1996, after the new 1995 TEC was in effect, the SBOE adopted a rule requiring textbooks to adhere to certain general content requirements and limitations as a condition of Board approval, a rule similar to others prior to 1995 that permitted textbook censorship. The SBOE requested an opinion of the Texas Attorney General to confirm that this new rule was in compliance with the new TEC, since there was considerable doubt about this. In Opinion DM-424 (PDF) of November 21, 1996, the Attorney General determined that the SBOE no longer had such general rule-making authority under the new TEC, and thus the Board's power to modify textbook content was now severely limited. Among the Attorney General's reasons for determining that the SBOE's authority over textbook content was now extremely limited were the following:

1. The plain text of the new statute (i.e., the TEC).

2. The legislative history of the bill, which explicitly removed the rules that gave the Board its powers and wrote new rules that were specific and limited.

3. Relevant legal standards, including the following:

"When given rule-making authority, a state agency generally may adopt only such rules as are authorized by and consistent with its statutory authority."

"An agency rule may not impose additional burdens, conditions, or restrictions in excess of or inconsistent with relevant statutory provisions."

"When the legislature amends a statute and omits language of the former statute in its amended version, the legislature is presumed to have intended to change the law."

The history and text of all relevant bills and the TEC can be found here.

For ten years, the SBOE worked under the new TEC with its greatly limited authority to control textbook content, nevertheless finding new ways to censor textbooks using the reduced powers they had. One method was to specify what is or is not a factual error; an environmental textbook was rejected in 2001 when the Board decided that it was a factual error that humans and industries cause pollution that should be controlled. Health textbooks were censored of information about birth control, condoms, and human sexual behaviors in 2004, and replaced with an unrealistic and ineffective abstinence-only policy that is harmful to Texas teenagers. But the greatest and most costly effort to censor textbooks occurred in 2003, when four SBOE members, with the help of several national and state creationist organizations, attempted to censor biology textbooks by minimizing and damaging their coverage of the topic of evolution. The four Board members used SBOE powers that give it responsibility to ensure that textbooks conform to the TEKS and are free of factual errors. Even though the Board had lost its far-ranging powers to reject textbooks and force publishers to submit to content changes, the creationist activists believed that the two specific and more limited remaining powers would be sufficient to accomplish their goals of distorting science. But they were mistaken, and they failed in the face of opposition led by Texas Citizens for Science (TCS) and other prominent Texas organizations that brought scientists, business leaders, religious leaders, and ordinary citizens together to promote science and mainstream values in their testimony before the Board, which ultimately voted 11-4 to adopt the biology textbooks without damaging nonscientific changes. The history of these events can be found on the TCS website biology page.

In an attempt to regain the SBOE's lost powers to control textbook content after this major defeat, the radical religious social conservatives tried another tactic in 2005. Bills were introduced in the Texas Legislature to, in the words of the TCS president Steven Schafersman, "return Texas to the Dark Ages." His analysis of the bills can be found here, in which he explains how the two introduced bills would have returned general textbook content authority back to the SBOE and allow them to once again engage in the abusive process of censoring textbooks based on the individual members' political, ideological, and religious beliefs and opinions. Neither of these bills passed the Texas House, but if either had, the SBOE would have been able to force publishers to "revise" (i.e. censor) specific content in their textbooks.

With this second failure, SBOE member Terri Leo has now tried another tactic: using the power of the Texas Attorney General to accomplish the radical religious right's goal of gaining censorship control over textbook adoption as they had in the past. Her and Chair Geraldine Miller's opinion request RQ-0430-GA makes use of this Office of the Texas Attorney General opinion rule:

Unless or until an opinion is modified or overruled by statute, judicial decision, or subsequent Attorney General Opinion, an Attorney General Opinion is presumed to correctly state the law. Accordingly, although an Attorney General Opinion is advisory, it carries the weight and force of law unless or until it is modified or overruled.

Their request asks that the Attorney General overrule or reverse the current opinion, Opinion DM-424, to make it possible for the SBOE to once again write general textbook content standards, as it could do prior to 1995.

That is, after (1) having its power to censor removed by the Legislature in 1995, and (2) having this legislative removal upheld by an Attorney General opinion in 1996, and (3) failing to censor biology textbooks using the retained limited authority in 2003, and (4) failing to regain the former general power over textbook content by new legislative action in 2005, Terri Leo and some members of the SBOE are (5) trying to regain the former general textbook content authority by requesting a new Attorney General opinion that will reverse the old one. In this case, using a subtle but legal method, a single person--the Texas Attorney General--can overrule all previous legislative and legal statutes, opinions, intents, interpretations, history, and rules accepted for a decade, and give the SBOE back its general textbook content authority and ability to censor textbooks with impunity. This prospect is truly a remarkable means to an end--using a subtle, obscure, but effective method to accomplish with a single signature what the radical religious right creationists could not accomplish in ten years using the Texas Legislature and State Board of Education.

The new TCS Brief (also available as a Word DOC file or PDF file) was released on March 24, 2006. In it, TCS President Steven Schafersman analyzes and refutes every argument that Terri Leo uses in her Opinion Request. In addition, the TCS Brief includes a complete summary and history of the legal and legislative maneuverings of the SBOE and its radical right creationist members to censor textbooks and change the law. Among other items, the TCS Brief reveals the specific rule in the old TEC that allowed the SBOE to censor textbooks prior to 1995, and which was removed by the Legislature in 1995. The TCS Brief demonstrates that the arguments used in the Opinion Request by Terri Leo are illogical, disingenuous, and totally without merit, and that the 1996 Attorney General Opinion DM-424 (PDF file version) was a proper analysis and correct interpretation of the law that should remain in force. The TCS Brief concludes with a request to Attorney General Greg Abbott to reaffirm Opinion DM-424, and not reverse it as requested by SBOE member Terri Leo.

Also available on this website is an excellent Brief (PDF only) by Texas State Teachers Association General Counsel Kevin F. Lungwitz on behalf of TSTA and seven other organizations interested in preserving the integrity of the Texas textbook adoption process. The TCS and TSTA Briefs were written totally independently, but both used similar arguments and came to the same conclusion, that Opinion DM-424 should be reaffirmed, and general textbook content authority should not be returned to the Texas State Board of Education.

Steven Schafersman for Texas Citizens for Science
Last updated: 2006/03/24