Department Of Education Finds Texas Violated Special Education Law

Jan 11, 2018
Originally published on January 12, 2018 8:24 am

By setting an enrollment target for special education, the Texas Education Agency violated federal law that ensures a free, appropriate public education to all students with disabilities. That's what the U.S. Department of Education announced Thursday, after a 15-month investigation.

"I think this is a great day," Kym Rogers, a Dallas-based attorney with Disability Rights Texas, said. "I think that the children with disabilities in the state of Texas who have been ignored ... and not gotten the services they need, they've been somewhat validated."

Here's what happened in Texas, and why it matters.

Texas

Every student eligible for special education has the federal right to receive it. Texas officials put out an arbitrary number — 8.5 percent of enrollment — that in effect limited how many students could get special education services. Districts could be penalized if they went over that rate. Across the country, 13 percent of students, on average, are identified as needing special education — in some states, more.

The federal government also found that Texas failed to fulfill its "child find" responsibilities under federal law, to reach out and identify every child who may need special services.

Texas put the 8.5 percent benchmark into place in 2004 and got rid of it just last year, after a 2016 investigation in the Houston Chronicle brought it to light. Over that time, the Chronicle found, hundreds of thousands of children were denied special education, including English-language learners and students with mental health issues. Since then enrollment has surged.

Gov. Greg Abbott gave the Texas commissioner of education, Mike Morath, one week to come up with an action plan to address these findings. "Since becoming Commissioner, I have worked to strengthen the supports provided to our parents and school systems," Morath said in a statement.

"I am committing today that there will be more."

The national picture

Texas may have been the only state to set a black-and-white target, but the number of students in special education varies around the country, and so does the quality of funding and services.

Our reporting in Florida and in Indiana, for example, has shown that many parents have trouble accessing that free, appropriate public education. If they have the means, they hire lawyers, switch from school to school, or pay out of pocket to get what is needed for their kids.

In addition, several states, including California, Massachussetts and New Jersey, use a census-based funding system, which assumes special education students are distributed uniformly across districts. This is not always true, researchers have found, and poor districts may end up with both more special education students and less total money to spend on them.

All of this gets complicated by the question of school choice, a pet issue of Education Secretary Betsy DeVos. In several states, school voucher programs are targeted at special education students. Yet private schools under the law do not have to provide a free, appropriate public education, so if special education students are getting vouchers they may be giving up some of their federal rights. And DeVos has repeatedly refused to say that she would require private schools to serve everyone.

The fact that the Education Department under DeVos pursued this Texas investigation aggressively is taken by some as a sign that it will stand up for the rights of students with disabilities.


Bill Zeeble, an education reporter at member station KERA in Dallas, assisted with reporting for this story.

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RACHEL MARTIN, HOST:

With an update on a story out of Texas about enrollment targets on special education - the U.S. Department of Education has ruled that by imposing enrollment targets, Texas has failed to comply with federal laws to ensure free appropriate public education to students with disabilities. This follows a 15-month investigation. For details, we turn now to NPR education correspondent Anya Kamenetz. Hey, Anya.

ANYA KAMENETZ, BYLINE: Morning.

MARTIN: So just start off by explaining what is wrong with an enrollment target for special ed.

KAMENETZ: So by federal law, any student who is eligible for special education has the right to receive these services. What was wrong - not only setting a target, but Texas set a very low target of 8.5 percent of enrollment of all students. Nationwide, about 13 percent of students are identified as needing special education. And so an investigation in the Houston Chronicle brought this to light and found that perhaps - you know, many hundreds of thousands of children, potentially, were denied services because districts were penalized if they went over that very low 8.5 percent target.

MARTIN: So what's been the reaction from - at the federal and state levels?

KAMENETZ: So the federal government looked into this for about 15 months. They held listening sessions. And they found that Texas, in fact, is in violation of the federal requirement to provide a free appropriate public education to all special education students as well as what's called child find, which is the requirement to identify every child who may need special education services.

Now, Texas got rid of the law - the target last year. And since then, enrollment has surged. But in response to this finding, Governor Greg Abbott gave the Texas commissioner of education one week to come up with a detailed plan to address these findings. And the commissioner says he's committed to more training, more resources for parents and hiring more support staff.

MARTIN: Explain why this is a national issue - all the repercussions of this nationwide.

KAMENETZ: Well, so Texas may have been unique in setting a literal black and white target. But the number of students in special education does vary around the country, and so does the quality of services. So NPR Ed's reporting in Florida and in Indiana, for example, finds that many parents have trouble accessing that free appropriate public education. And if they have the means, they - many of them are hiring lawyers, switching from school to school and paying out of pocket to get what is needed for their kids.

And this is a bottom line issue because special education students - they cost about twice as much per student compared to general education. So where resources are scarce, accessing them can be really tough, especially for groups like English language learners.

MARTIN: So where does this go from here? What happens now?

KAMENETZ: Well, I think that special education advocates see this as a hopeful sign. There had been some worries, you know, with the secretary of education, Betsy DeVos, being such an advocate of school choice. You know, it's an issue there because many students who attend private schools do not have that access to a free appropriate public education. So, you know, advocates are happy to see this kind of aggressive pursuit of Texas. And hopefully, that will mean something for the future.

MARTIN: All right, NPR education correspondent Anya Kamenetz for us this morning. Thanks so much, Anya.

KAMENETZ: Thank you.

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