### DAN MORALES

AI-TORNW CENERAL 

### QBffice of the Bttornep QBenerat &tate of Z!Cexas January 9,1998

Dr. Mike Moses Commissioner of Education Texas Bducation Agency 1701North Congress Avenue Austin, Texas 78701-1494 Opinion No. DM-465
Re: State Board of Education adoption of sex education curriculum and textbooks (RQ-942)

Dr. Jack Christie Chair, State Board ofEducation 1701North 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 ofthe 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 ofEnglish, matheanatks, science, and social studies. E&c. Code 528.002(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. 528.002(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).Dr.MikeMoses - Page 2

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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.428.002(c). The TEKS are developed with input 6om educators, parents, business and industry representatives, and employem. Id. Thefoundation 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 arenot required to be included inthe TAAS test, and instruction of enrichment curriculum TEKS isnot a condition ofaccreditation. Instead, “]e]ach district shall use the essential knowledge and skills identified by the board asguidelinesinproviding instruction in the enrichment cuniculum.” Id. §28.002(d) (emphasis added).
The board must adopt two lists oftextbooks for each subject in both the foundation and emichment curricula. Seeid. $931.022, .023, .024. Books reviewed by the board are placed on the “conforming list” if they cover all ofthe TBKS elements for the subject. Id. $31.023. Books areplaced on the “nonconforming list” ifthey cover at least half, but not ah, ofthe 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 ofthe books paid by the state. Id. 9 31.101. The state will not pay for any part ofthe cost of afoundation 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 111cost ofbooks selected t?om either list, and seventy percent of the cost ofbooks 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. 531.106.
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 ofthe 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 31.023 (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.Dr. Mike Moses - Page 3

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for each subject. At the same time, the boards of trustees of local school districts are required, pursuant to section 28.004 ofthe 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 oftrustees].” 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.528.004(e). The council’s members, a majority ofwhom must be parents of students enrolled in the district, must include “persons who represent diverse views in the community abouthuman sexuality instruction.” Id.§28.004(g). Thecouncil’s duties include recommending appropriate grade levels for human sexuality instruction, recommending the methods of instruction to be used by ateacher, and recommending the number ofhours ofinstruction to beprovided. Id.928.004(f). With the advice ofthe council, the district’s board oftrustees is directed to “determine the specific content ofthe 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+omsexual 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 ofbehavior 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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Your questions arise fivmtheapparent wnflictbetweentheboa&s duty to establish TBKS and adopt textbooks, and alocal 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, ifpossible, so asto give effect to the entire statute in accordance with legislative intent See Klinger v. CityofSanAngelo, 902 S.W.2d 669 (Tex. App.-Austin 1995,writ denied); Attorney General Opinion DM-353 (1995) at 3;Gov’t Code 9 311.021(“In enacting a statute, it ispresumed 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, ifpossible, so that effect is given to both.“).
We turn to your specific questions, which we have summarized and combined into three areas ofinquiry. You first ask:

Does section 28.004 in any way limit the authority granted to the board by section 28.002to 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 ontheboard’spowers under section 28.002 isdifferent for foundation and enrichment curricula. Because instruction in foundation TEZLS is awndition of accreditation and because the TEKS arerequired to be included on the TAAS test, sex education TBKS adopted aspart 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 alocsl wurse ofinstruction for sexeducation. 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 stateboard in section 28.002to setTBKS forcurricula subjects generslly. SeeGov’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 sexeducation aspart of a foundation curricula subject. Gur examination ofthe 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 ofRep. Sadler). They would not have this discretion if sex education were required as afoundation subject. We conclude, therefore, that the board may not adopt human sexuality TEKS aspart of a foundation curriculum subject. 1 Enrichment curriculum TEKS, on the other hand, may beusedmerely asguidelines forlocal 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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wnflict between the provisions would exist. We conclude, therefore, that the board may, but is not required to, adopt TEKS for sex’education aspart 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 aretobe wnstrued under the presumption that the legislature never intends that functions committed to agency should be exercises in futility. Beaver ExpressService,Inc. v. Ra&oadComm‘n,727S.W.2d 768,773-74 (Tex.App.-Austin 1987,writdenied). Thus any human sexuality TEKS adopted by the board aspart of an enrichment subject must be consistent with the mandates set out in section 28.004.
You next ask “May the board adopt atextbook that addresses human sexuality but which does not contain the elements ofhuman sexuality instruction set out in section 28.004?’
The board may adopt atextbook ifit wntains half ofthe TEKS for the subject forwhich 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 atextbook on human sexuahty ifit includes at least half ofthe TEKS elements, even ifit does not include all of the elements.
In our view, alocal school district isnot prechtded tIom using aboard-adopted textbook that does not wntain all the elements that section 28.004 requires in any “wurse materials and instructions” in human sexuality. We donot believe that each “wurse material,” such as atextbook, must include sIIofthe elements. Instead, webelieve that wurse materials and instruction as awhole must satisfy themquirements ofsection 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 ofinstruction forhumau sexuality selected by the district? If yes, may a school district selectively use the wmponents in a manner that complies with the local course ofinstruction chosen pursuant to section 28.004.
The snswer to both ofthese quations isyes. 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

‘Itis 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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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 atextbook. We conclude that adistrict may select atextbook that contains material inwnsistent with the locally determined wurse of sex education instruction, provided any materials from the textbook used in the course ofinstruction are consistent with the local instructional plan. In other words, ifatextbook 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 aspart 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 forthe subject areincluded in thebook. 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 ofTexas
JORGE VEGA First Assistant Attorney General
SARAH I. SHIRLEY Chair, Opinion Committee Prepared by Bsrbara Griffin Assistant Attorney General

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