Suit alleges TEA violating law on special ed

Father says agency is refusing to allow him to advocate for disabled son who turned 18

AUSTIN — Jesse Alvarez may be in his late teens, but he functions on a first- or second-grade level. He has fetal alcohol syndrome, attention deficit hyperactivity disorder and a learning disability, requiring his father,

Alfredo, to make most of his son’s decisions for him, according to court records.

Alvarez was concerned the school district wasn’t meeting Jesse’s needs in May and asked for a hearing, but says he was told by a special education officer that he could no longer advocate for his son because Jesse had turned 18.

Now Alvarez and special education watchdog groups contend Texas is violating federal law by refusing to allow guardians to look out for certain students after they become legal adults.

“There’s a lot of kids that go to school and get special education services. They turn 18, they’re more than capable of making their own decisions. But when you have kids that have multiple, physical and mental and cogitative disabilities and they’ll never be capable of making their own decisions … those types of children are the ones that are most in need of our protection,” said Martin Cirkiel, attorney for the Alvarez family.

The family sued the Texas Education Agency and the Corpus Christi Independent School District in September in what they propose could be a class action

complaint. The TEA, represented by the state attorney general, wants a federal judge to dismiss the lawsuit, arguing the Legislature has no laws on the books providing the TEA with a blueprint to allow guardians to help adult special education students.

The TEA declined to comment, but the state says in its motion to dismiss the case that the Alvarezes are making allegations of harm, such as being denied benefits, “without providing a scintilla of factual support.” Further, the state argues the Individuals with Disabilities Education Act does not require Texas to establish a procedure for appointing a parent or guardian to act on behalf of the adult student.

“There are no facts specific to Plaintiffs or any member of the Proposed Class showing how TEA allegedly deprived them to their rights under IDEA,” the motion to dismiss says.

The state argues parents can seek power of attorney or take other legal procedures to maintain their role in making decisions on behalf of their sons or daughters. Cirkiel argues those avenues are typically expensive and time-consuming and the TEA or administrative hearing officers should be able to appoint parents or other qualified individuals.

The lawsuit comes as the state’s department of education tries to prove it is doing a better job of serving students with disabilities since revelations in 2016 that the TEA illegally capped the number of students receiving special education accommodations. A Houston Chronicle investigation found school districts denied services to tens of thousands of students with special needs under the 8.5 percent cap while other states averaged 13 percent of students enrolled in special education.

The Legislature has since banned any limit on the number of students in special education and has committed more money to serving students with autism and dyslexia.

Texas public schools provide special education services to about a half-million students, according to Disability Rights Texas. About 23,000 of those students are at least 18 years old.

Jesse turned 18 last November. Alvarez was able to continue to participate and make decisions on behalf of his son for several months, according to court records. In May, after asking for a due process hearing, the district argued Jesse’s father did not have authority or standing to request one.

Under the Individuals with Disabilities Education Act, students receiving special education services assume responsibility for their education once they turn 18 in Texas, provided they are not deemed incompetent. But federal law appears to require states to establish a procedure for appointing a parent or guardian for those considered “not to have the ability to provide informed consent with respect to the education program.”

Disability Rights Texas, an advocacy group, asked the TEA in August to amend its rules to create a procedure to appoint a parent or other guardian. In October, the agency responded that its hands are tied.

“There is no law in Texas by which to determine that an adult student who has not been deemed incompetent may be found to lack the ability to provide informed consent,” wrote Justin Porter, director of special education for the TEA.

Steven Aleman, a policy specialist for Disability Rights Texas, said he is disappointed with the TEA’s conclusion. A longtime lobbyist who advocates for people with disabilities, he said he wants to see more leadership from the TEA and less fingerpointing.

“It’s disappointing that the agency isn’t doing everything that they can do to protect every child with a disability,” he said. “If there isn’t someone there to help a student articulate their wants, their desires, then we’re shortchanging their dreams.”