STILL FIGHTING FOR SPECIAL ED
ADVOCATES SAY TEXAS OFFICIALS ARE RUINING GENERATIONS OF CHILDREN
Years after Texas Education officials pledged to undo a decade worth of damage caused by a cap on special education services, the state remains in violation of federal disability laws.
School district administrators are still clamoring for guidance and funding.
And parents are still complaining that they’ve had to beg or threaten to sue in order to get their children evaluated for extra help in the classroom.
They say Texas students are being denied special education — again.
The Houston Chronicle revealed more than three years ago that the state had systematically denied tens of thousands of students special education services, triggering a federal investigation and a series of promised changes by the Texas Education Agency.
Although the state has made some progress, it has yet to deliver critical resources promised to parents and guidance overdue to districts, an investigation by the Chronicle and Houston Public Media shows.
“We have ruined a generation of kids,” said Sonja Kerr, an attorney who works on behalf of students with disabilities, “and we are about to ruin another generation with the inaction from TEA and the complete complacency.”
“There are always going to be folks who say things are not changing fast enough, and when you’re talking about kids and their futures, you can’t argue.”
Justin Porter, TEA’s special education director
The percentage of students receiving special education services rose by a little more than 1 percentage point from 2015-2016 to last school year — from 8.7 percent to nearly 9.79 percent. But it remains far below the national average of 14 percent.
Houston Independent School District has the lowest percentage of any of the large districts in the state, providing services to just 7.5 percent of its students.
The lower rates had a profound impact on children with disabilities who might have benefited from the tailor-made assistance that’s offered in special education under federal law. A study by researchers at the University of California-Davis and Cornell University found that Texas students with minor disabilities who lost services after the TEA’s cap was enacted were 52 percentage points less likely to graduate from high school and nearly 38 percentage points less likely to enroll in college.
Texas Education Agency officials admit they are still in violation of federal disability law but say they are making progress. The soonest the state expects to be able to provide special education services to all students who qualify is still months away — in June 2020, according to a letter the TEA sent this spring to federal officials.
Although the roughly 1 percentage point increase in students receiving services may seem small, it’s significant because Texas is so large, serving more than 5.4 million students, TEA officials said. The number of students who received special education services grew from about 477,000 to 532,000 since 2016-2017. And the number of special education evaluations increased by 56 percent since 2017-2018.
“There are always going to be folks who say things are not changing fast enough, and when you’re talking about kids and their futures, you can’t argue,” said Justin Porter, TEA’s special education director. “But there has been momentous foundational change, and it’s going to take some time for the efforts at state level to affect classrooms.”
But the Chronicle and Houston Public Media found the state has been slow to fix some critical, lingering problems caused by its de facto 8.5 percent cap on special education services, which was in place from 2004 through 2017. Several key parts of the corrective plans it submitted to the U.S. Department of Education remain unfulfilled. Among the findings:
• The TEA has failed to deliver on resources it promised for parents, including literature explaining how the special education system works and their rights under federal disability law.
• The agency has not yet provided school districts guidance on how to provide makeup services to students who were previously denied aid.
• At least one regional education center told districts they would receive a “grace” period from the TEA if they did not comply with state timelines for providing services, emails obtained by the Chronicle and Houston Public Media show. The TEA has denied giving that advice.
Matt Montaño, TEA’s deputy commissioner for special populations, said the TEA fulfilled the federal requirements in the plan it submitted in April 2018 to the Department of Education aimed at fixing critical problems with the system. However, federal officials have yet to confirm that.
“We’re still kind of in limbo because we’re waiting for a response from them,” Montaño said. “But we do believe we’ve met all the requirements.”
Houston school officials also say they’re on the right track. Shannon Lachlin Verrett, HISD’s executive director of special education, said the district encourages staff members to refer students for special education evaluations if they’re falling behind instead of waiting to see if they improve. He said there is no numerical goal for the percentage of students HISD should serve. Instead, he said, it’s about making sure students get the services they need.
“I’m committed to meeting the letter of the law and the spirit of the law because it’s all about children,” Verrett said.
Still, disability advocates and parents from across the state say they are running into problems getting children the help they need. A San Antonio mother said she waited for nearly a decade before her daughter with cerebral palsy was evaluated for special education services this spring. Two sisters in Austin were not screened for dyslexia until they began failing their classes, their mother said. And a Leander ISD mother said her daughter was denied services after being diagnosed with a medical condition that slowed her eye movements, prompting her to put the girl in private school.
Kim Lain started asking teachers to evaluate her daughter, Paige, for special education services years ago, when she was in sixth grade. Paige was failing math. Her classmates laughed at her when she gave the wrong answers.
She was falling farther and farther behind.
Today, Paige, 15, is in 10th grade and tests at the thirdgrade level for math. She finally got a special education evaluation this spring — after her mother threatened to sue Galveston ISD.
“It’s like I’ve been stuck on this for so long,” Paige said, “and no one has ever helped me.”
Dorene Philpot, an attorney who represents Lain and other parents in special education disputes with school districts, said she expected the number of cases relating to districts denying students special education services and evaluations to shrink after the TEA submitted its plans to fix problems to the Department of Education in April 2018. But the opposite has happened, she said.
“It really is business as usual,” Philpot said. “I have not seen any beneficial things come out of the investigation, the promises to improve – nothing.”
A lack of information
One of the improvements promised by the TEA in the spring of 2018 was the creation of a “suite of resources” aimed at educating parents about disability laws and their rights, including how to request evaluations and the types of help available.
The TEA told the Department of Education the resources would be available by Dec. 1, 2018. In late December of that year, the TEA sent a letter to federal officials saying it had satisfied its requirement. The evidence: copies of requests for proposals for vendors to complete the work.
The resources are still not available to parents. TEA officials told the Chronicle they should be available by February 2020 — more than a year after the original deadline.
In the meantime, parents and students have struggled because of a lack of information.
Hilda Chavarria said she never knew the range of services that were available to help her son, who was diagnosed with ADHD in first grade. In the fall of 2018, Xavier Castro enrolled in sixth grade in Dayton ISD’s Woodrow Wilson Jr. High School, bringing with him a detailed plan outlining the special accommodations he needed for his disability.
But his mother said she was told those accommodations were available only for elementary students.
She said she was unaware that Xavier could qualify for additional help under federal law.
Xavier struggled from the start. He dozed off and zoned out in class. He turned in homework late. He had trouble making friends and was a target for bullies, Chavarria said. Then he got in trouble for poking another student with a pen and was sent to an alternative school. Months after enrolling, he was expelled.
“He fell into the deepest, darkest place I’ve ever seen a child fall into,” Chavarria said. “... over something he couldn’t control because certain adults or staff or the school was lacking education on knowing how to work with this disability.”
After getting free legal help from Disability Rights Texas, Dayton ISD tested Xavier in February and found him eligible for special education services, diagnosing him with both ADHD and emotional disturbance. He was allowed to go back to school that March. An aide accompanies him to class now, helping him stay on track. He’s taking a social skills class, and for the first time, his mother said, he’s made friends at school.
In a statement, Dayton school officials said they could not comment on Xavier’s case because of federal student privacy laws but said the district “appropriately identifies and serves students with disabilities, including those who have violated school discipline codes.”
Districts want guidance
Some school district administrators said they need more funding and guidance from the state in order to be able to comply with disability law.
Krista Garcia, director of special education in Northside Independent School District in San Antonio, said her staff has been working on weekends and overtime to evaluate as many students as possible, but it has been challenging.
“(Districts) are expected to be in full compliance right now,” Garcia said. “We have to serve these kids right now. There’s no exceptions on our end. I don’t know why TEA would get an exception.”
Cynthia Ramirez, executive director of special education in United ISD outside of Laredo, said evidence of state-level changes have yet to reach her district. Instead, she said she and her staff are working overtime to keep up with a surge in evaluation requests after they took it upon themselves to send students home with a copy of the TEA’s corrective action plan.
“We’re all navigating the same vast ocean, we’re all out there on a boat, and I hope we’re all heading the same way,” Ramirez said. “I think more clarification from the state would mean we’re all going in the same direction.”
The federal government told the TEA in the fall of 2018 to provide students who previously had been denied special education with additional “makeup services.” But so far, the TEA has failed to provide guidance on how to identify those students.
Emails obtained by the Chronicle show that officials at all levels also have lacked crucial information about other aspects of the state’s plan to fix special education.
Nearly two months after the plans were released, Ginger Gates, the former director of special education for the Region 4 Education Service Center, began asking the TEA for help. The Houston-based center acts as a liaison between local districts and the state agency, providing information and resources for administrators.
Lacking TEA guidance, Gates and her staff wanted to create their own advice for how districts should comply with the TEA’s plans in May 2018. She asked Porter, the special education director for the state, who told her to hold off until the agency could create its own materials. Still, Gates and her staff drafted advice and asked Porter to review it.
Districts are “asking for guidance NOW as they look toward next school year in their planning,” she wrote in a June 2018 email obtained by the Chronicle.
Emails show that Gates and her staff continued to seek guidance through July.
Eventually, the state offered some direction. Last year, TEA officials started holding webinars for special education directors and answered questions about complying with disability laws. It met periodically with staff from the state’s 20 regional education centers and reached out to advocates for input.
But some of the guidance has been unclear or controversial.
At a Houston training session, education attorney Janet Horton told special education directors that in order to comply with mandatory timelines, they could begin providing students with special education services as long as initial testing indicated a disability.
Gates, with the Houston regional center, asked Porter his opinion about Horton’s advice at a meeting with 20 regional special education directors. She later sent an email to Houstonarea school districts in February 2019 summarizing Porter’s response.
Gates said Porter advised that districts should provide services only once a full evaluation is complete, even if that meant schools miss deadlines. Porter worried about setting a precedent, Gates wrote.
“Districts will likely be given ‘grace’ for non-compliance given the state of things statewide,” Gates wrote.
In a statement, the TEA said Gates’ email was “inaccurate,” adding that it was “clearly not guidance that comes from TEA.”
Porter said in an interview he told the special education directors, including Gates, that they should hold off on making decisions until they have completed full special education evaluations. He said he told them they would have the opportunity to explain missed deadlines when they submit evaluation data — an option they have had for years. But that would not excuse them for the missed deadlines, he said.
“We’re not in a position to grant grace with any federal compliance indicators, and that’s not something we would try to do,” Porter said. “They were asking me, ‘Should we sort of go around the system to be in compliance?’ and my response was ‘Absolutely not.’ We have to make sure we do everything we have to do before we make decisions about kids.”
Two regional special education directors told the Chronicle they never heard Porter or anyone with TEA offer leniency with evaluation deadlines.
Dustin Rynders, supervising attorney with the Disability Rights Texas advocacy group, said the more troubling problem was Porter’s dismissal of a reasonable remedy for having students wait for weeks to finish testing.
“I’m not focused on compliance. I’m focused on getting children services,” Rynders said. “They were bringing a solution to do that, and (Porter) immediately shot it down without offering any other solutions.”
Slow to help
TEA officials say more improvements are coming. The resources promised to parents will be available next year. Districts soon will have their special education departments monitored at least every six years. Before, many were never monitored at all.
“I feel like we have righted the ship,” Montaño said. “It’s been a heavy, heavy slow turn, and we’re in the right direction now, and I believe that we’re going to really meet the needs of parents and students around the state of Texas.”
Still, Steve Aleman, a policy specialist with Disability Rights Texas, said the changes fall short.
“On the surface, it seems TEA is more alert and active on special ed issues,” he said. “But if you really start to look at what they’ve done, even the stuff in their plans, really not much has been accomplished.”
While the state moves slowly, Paige Lain has yet to start school this year. Her mother, Kim, decided to pull Paige from Galveston ISD and now is still in mediation with Clear Creek ISD. Kim is waiting to enroll her until she’s sure her daughter will get the services she needs. For now, Paige is taking online classes at home.
“We need to make sure they’re going to agree to do something that will benefit her rather than failing her,” Lain said.