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Texas Senate Bill 15 is awaiting Gov. Greg Abbott’s signature. Originally intended to set in place policy to fully fund virtual schooling for districts around the state, the passage of this bill could have been a proud moment for Texans, a response to the immediate needs of school districts during the pandemic.

Unfortunately, the bill comes a little too late—the school year has already started without mask mandates in place, and schools are already facing forced closures as student case counts exceed last year’s peak. More problematic is a last-minute amendment to the bill that will undermine educational funding for years and promises to undercut efforts underway to accelerate students’ learning and close education gaps by punishing districts for online students’ learning during the pandemic.

SB 15 was originally written to broadly expand funding for virtual schooling with a few limits in place, such as allocating full funding only to districts and charter schools that received a rating of C or higher from the Texas Education Agency in 2018-19, and capping student participation at 10% of a district’s total enrollment.

The original limitations would have had mixed implications for the Houston area. In the Region 4 Education Service Center where Houston is located, out of 83 school districts or charter schools, 11 either had no rating or had received below a C rating. While that might sound like a lot, only 5,820 out of the nearly 1.2 million students served by public schools in the Houston area were enrolled last year at one of these 11 districts or charter schools.

Capping the proportion of students who could enroll in a virtual program at 10% would likely have larger implications, however. About 40% of students in the Houston area were doing virtual instruction in January 2021. This number varied from district-to-district (ranging from less than 1% to 100%), but the new cap very likely means some students and families who’d prefer learning online wouldn’t be able to. This 10% cap, however, is not a firm limit. Districts and campuses can petition to allow more students to enroll in online schooling and the cap could be waived by the TEA commissioner in response to a public health emergency. In other words, the limit provided by the legislation served as a guideline, and if a district needed to accommodate more students, there’s an option for doing so.

If it were just these limitations in SB15 then the biggest critique of the legislation would have been that it’s 3 months overdue. Instead, as the bill was being finalized in the House, an amendment was added that ties school funding to virtual student performance. Essentially, the amendment will not allow schools to count students enrolled online toward their attendance funding formula if the students had been enrolled online in the prior school year and didn’t achieve satisfactory performance on standardized tests (or don’t take the test), had excessive unexcused absences or did not earn a C or higher in foundation curriculum classes (math and reading).

For the current school year, this means how well a kid did during the first year of pandemic schooling will determine whether a district can be funded for that student this year if the student utilizes online learning again. And though the case can be made that students who struggled last year in the virtual setting might benefit from a return to in-person instruction, this amendment also strips funding away from students who may have thrived last year but opted out of state standardized testing because they were told by the state that they could.

Beyond the moral question of applying this amendment to the current school year – after the state offered assurances last year there’d be no consequences to districts based on student performance – the amendment also does not take into consideration the fact that about one-third of students change schools each summer. Does a district lose funding for a student even though the student wasn’t enrolled there in the prior year? Still further, this amendment represents a dangerous and unprecedented approach for how Texas funds its public schools.

Rather than leveraging funds equitably to ensure those who have the greatest need are provided with the greatest supports, this law further institutionalizes the opposite. SB15 will strip funds based on students’ performance – and while at present this is only applied to students choosing to participate in virtual instruction, how soon until budgets are gutted because of performance regardless of location? Implementing policies that take funds away from schools because of the students they serve is an almost certain way to ensure inequality continues to grow, gaps continue to widen, and the divide between the haves and have nots is preserved for another generation.

Instead of taking funds away from students and letting them fall further and further behind, the state should be exploring ways to invest more in public education no matter where learning is taking place. For the 2019-2020 school year, Texas ranked 37th in the nation, spending just under $11,000 per student. This is about $2,500 less than the national average and less than half of what New York, the District of Columbia, and New Jersey spend per student. Alaska spends almost $8,000 more per student than Texas. State leaders are choosing who they want to invest in for the future, and right now, it’s not Texans.

The current conditions around COVID-19, as well as broader inequalities rampant in society have pushed some families to choose online over in-person instruction in schools. Parents are worried about their children falling behind and not being prepared academically, but public health and safety has been at the forefront of parents’ decision making when it comes to choosing online instruction.

SB15 could have passed earlier this year and could have provided districts the funding needed to respond to parent and student concerns while paving the way for students to remain engaged with education amidst the ongoing pandemic. Instead, districts are now faced with a law that connects funding to performance and the conundrum of educating today or being fully funding tomorrow. This catch-22 for funding our public schools is unneeded, unnecessary, and will perpetuate unequal opportunities ensuring inequitable outcomes.

Daniel Potter is an associate director at the Houston Education Research Consortium, which is part of the Kinder Institute for Urban Research.