Playing the Compliance Card: How Texas Denies Education to Children with Disabilities

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September 18, 2016; Washington Post

The Texas Education Agency (TEA) has systematically denied thousands of children with disabilities access to special education, as detailed in a Houston Chronicle investigative report. The Washington Post notes this has been happening since 2004. That is the same year the Individuals with Disabilities Education Act (IDEA, 1975) was updated. IDEA is supposed to ensure that all children with disabilities have access to free and appropriate public education. Despite this, Texas has reportedly allowed unelected officials to arbitrarily decide which percentage of these children can actually have such access.

Texas is reportedly the only known state to have limited special education services in this way. How, exactly? Well, schools have been told that they cannot provide more than 8.5 percent of their students with such services. Over a dozen of Texas’s teachers and administrators have confirmed this mandated cap to the Chronicle.

To ensure that they stayed below the 8.5 percent cap, schools convinced many parents to put their disabled children in less expensive “Section 504” programs, if not pull them out of the public school system completely. Media evidence confirms parents in Texas have been voicing concerns. However, the teachers and administrators explained to the Chronicle that they had no choice but to delay or deny special education services. Noncompliance would lead to audits and expectancies for districts to come up with “corrective action plans” aimed at “lowering the number of kids in special ed at all costs.”

U.S. National Center for Education Statistics data indicates that national percentages of children with disabilities enrolled in special education fell from 13.8 percent in 2004–2005, to12.9 percent in 2012–2013 (the latest available statistics). Despite the overall drop, the 8.5 percent drop in Texas is “far lower than the national average.” The Chronicle investigation reveals that it is actually the lowest in the country. Texas met this 8.5 percent mark in 2015, illustrating a 12 percent drop from a dozen years ago. This can be considered massive, since the article quotes the Chronicle as determining that, “If Texas provided services at the same rate as the rest of the U.S., 250,000 more kids would be getting critical services such as therapy, counseling, and one-on-one tutoring.”

Faced with a $1.1 billion budget cut, “without the benefit of any research on its impact,” the unexplained nor publicly announced TEA efforts have ended up saving them billions of dollars. However, the report confirms that this savings comes with a disturbing cost targeting “children with virtually every type of disability” including autism, ADHD, dyslexia, epilepsy, mental illness, speech impediments, TBI, blindness, and deafness. The investigation further reveals that children who do not speak English at home have suffered the most from the savings gained by the state at their expense.

TEA has denied the 8.5 percent mandated goal accusation. They claim that the benchmark is more of a school performance “indicator”. They completely deny any punishments via audits given to noncompliant school districts. The Chronicle indicates that they and conforming districts actually defend Texas’s dramatic declines in special education enrollment percentages by applauding their early intervention strategies, and “new teaching techniques that have lowered the number of children with ‘learning disabilities,’ such as dyslexia.”

Mind you, the investigation notes that there is no evident link between such new techniques (that are actually used nationwide) and lower special education enrollment percentages. Despite this, their arguments only signify attempts to disregard state-by-state comparative reports. The investigation also quotes school districts’ defenses of immunity from any accusations. They simply argue that their low numbers fall “within the Texas state acceptable range of 0%–8.5%.”

State and local leaders are inquiring. The report states that the U.S. Department of Education is looking into the issue. The spokeswoman, Dorie Nolt, states, “Once we have more information from state officials, we will determine if further actions are necessary.” Meantime, Mike Morath (Texas Education Commissioner) has his agency conducting a detailed review with assistance from Republican House Speaker Joe Straus.

The Washington Post gives examples of various states’ mismanagement of special education funding and programs. Noncompliance with federal laws and regulations are reported to have taken place in Connecticut and Iowa. The article also mentions that a published story in Michigan blames such instances on complicated funding mechanisms. The “various pots of money that go into paying for special education [are] complicated” and nobody in Michigan really knows the categorical amounts of such costs: “It’s so complicated even the people who specialize in school finance can’t figure it out.”

The Chronicle states that Texas is in the same boat. The state actually has no agreed-upon number regarding kids eligible for special education services. Despite this, the TEA set the 8.5 percent cap. The investigation reveals that they admit to being unable to produce any research-based rationale, nor records as to why.

NPQ has spoken out on various problems associated with states’ damaging uses of special education funding, as well as the dire need for better understandings of revenue sources and streams focused on transparencies. Yet, the ethics behind compliance mechanisms cannot be ignored. The Chronicle investigation further proves that burying our heads in the sand while witnessing legally questioning compliance actions leads to detrimental failures in serving our vulnerable populations. This is substantiated in a haunting quote that the Chronicle attributes to a Texas school district administrator: “We live and die by compliance; ask any special ed director, they’ll say the same thing.” Enough said.—Noreen Ohlrich