The uproar after the September 2016 Houston Chronicle report, “Denied: How Texas Keeps Tens of Thousands of Children Out of Special Education,” was fast and furious. Outrage, disbelief, shock, and anger. These are just a few of the emotions expressed by parents, educators, and special education advocates in the backlash over the report, which provided compelling evidence that the Texas Education Agency capped special education services at 8.5 percent of Texas school districts’ student population. According to an October 26, 2016, story in the Dallas Morning News, “The overall number of students in special education dropped from 516,480 in the 2004-05 school year to 463,185 students last year. Meanwhile, the state's total enrollment grew 20 percent.”

October 3, 2016, Sue Swenson, acting assistant secretary for the U.S. Department of Education – Office of Special Education and Rehabilitative Services, sent a letter to Mike Morath, Texas commissioner of education. The letter begins with this: The Office of Special Education and Rehabilitative Services (OSERS) was recently provided with a copy of an investigative report on special education in Texas published in the September 11, 2016 edition of the Houston Chronicle (Chronicle). The report, titled Denied: How Texas Keeps Tens of Thousands of Children Out of Special Education, states that there has been a systematic denial of special education services to children with disabilities in Texas and that the State’s identification rate for children with disabilities has declined significantly in the last ten years.(Footnote in letter: Data reported by the Texas Education Agency to the US Department of Education verify that the State’s child count for children with disabilities aged three through 21 under IDEA was 11.8 percent of enrolled students in SY (school year) 2003-2004 and has declined to 8.6 percent in SY 2013-2014.) The report raises serious concerns about the State’s compliance with a number of requirements of Part B of the Individuals with Disabilities Education Act (IDEA), including the child find requirements under section 612(a)(3) and the requirement under section 612(a)(1) to make a free appropriate public education available to all eligible children with disabilities residing in the State.

The letter refers to TEA’s Performance Based Monitoring Analysis System (PBMAS) and the evidence in the Houston Chronicle’s report that Texas school districts that exceed the 8.5 percent “cap” are required to take steps to reduce the number of students identified as having a disability. It also addresses an email OSERS received in August of 2014 from Disability Rights Texas expressing concerns about this issue. At the time, OSERS contacted Gene Lenz, TEA’s director of the Division of Federal and State Education Policy, who assured OSERS that TEA was merely trying to prevent districts from “over-identifying” students as needing special education services.

As a result of the Houston Chronicle’s report, however, OSERS ordered TEA to provide them with a written response to the claims within 30 days. The letter also informed Commissioner Morath that TEA’s response must include a detailed description of the steps the State has taken and will take to:

1. Discontinue the use of any cap on the identification of children with disabilities under IDEA, including SPED Indicator 10 in the PBMAS, unless the State can provide evidence that the Indicator has not resulted in practices that have led to districts not referring and evaluating students suspected of having a disability and who need special education and related services.

2. Ensure that districts identify, locate and evaluate all children suspected of having a disability who need special education and related services, in accordance with section 612(a)(3) of the IDEA, and make a free appropriate public education available to all eligible children with disabilities in accordance with section 612(a)(1) of the IDEA.

3. Determine which districts may have discouraged or refused to act upon referrals for evaluations from staff or parents of children suspected of having disabilities and who need special education and related services, in order to reduce the districts’ special education identification rate, and in such districts, the specific steps the State will take to remedy the effect of such past practices.

4. Inform all districts that they may not violate the rights of children with disabilities by delaying or denying referrals, evaluations or the provision of special education and related services in order to meet the State-imposed 8.5 percent monitoring standard.

5. Require all districts to inform their staff and the parents of students enrolled in the district’s schools of the steps TEA is taking to ensure that all children suspected of having a disability and who need special education and related services are identified, located and evaluated.

Next week, in Part II, I will address Commissioner Morath’s response. This series will also include public hearings held in five Texas cities, including Edinburg, and where Texas and its school districts will go from here in reforming the current state of special education.

Chris Ardis retired in May of 2013 following a 29-year teaching career. She now helps companies with business communications and social media and works as a sales coordinator for Tony Roma's and Macaroni Grill. Chris can be reached at cardis1022@aol.com.