Gatekeeping: Texas Style

In a continuation of our series on special education gatekeeping (Withholding Needed Services and Response to Intervention), we have an amazing story to tell about how the state of Texas kept a quarter of a million children with disabilities from receiving an appropriate education. This story actually deserves its own category, as Texas has gone far beyond the more prosaic gatekeeping tactics we have written about in the past.

What Texas did was to place an arbitrary limit on the number of students for whom the state would provide special education services. Without any legal or other rational basis, a small group of unelected bureaucrats decided to cap the number of students it would enroll in special education at 8.5 percent of the total student population. This was despite the fact that the national average of students with qualifying disabilities is 13 percent. Given the total number of students in Texas schools since the cap was initiated, this amounts to approximately 250,000 students that the state prevented from receiving the special education services that they needed and to which they were entitled.

State Mandated Reductions in Special Education

In a blistering series of articles published in the Houston Chronicle, investigative reporter Brian M. Rosenthal details how the Texas Education Agency (TEA), working virtually in secret, decided that it would limit the number of students with disabilities it would serve under the federal Individuals with Disabilities Education Act (IDEA). This is a clear violation of the law, which states that services should be given based on need, and not on any other criteria.

Although the enrollment limit was couched in the language of a “suggestion,” local special education directors knew what was expected of them. School districts that enrolled more students in special education than the prescribed 8.5 percent were subject to a variety of penalties that ranged from reprimands and fines to having the district taken over and run by state regulators. One director quoted in the article, flatly stated, “TEA required us to do this, there was no wiggle room.

How it Happened

The story begins in 2004, when four members of the TEA decided to place an 8.5 percent benchmark on the number of students who could receive special education services in the state. At the time, special education enrollment in Texas was 12.1 percent of the total student population, close to the national average of 13 percent. One of the four TEA members actually admitted under questioning that the 8.5 percent figure was not supported either by law or any research.

In addition, the TEA did not consult the federal government, the Texas legislature, or even the State Board of Education in reaching its decision. It also never publicly announced or explained its decision. In fact, when asked by some school staff members, the TEA falsely told them that limiting special education enrollment was “federally mandated.” For most school districts, this policy meant purging the rolls of students already on IEPs and discouraging new students from entering special education.

The subterfuge had a very self-serving motive. The Chronicle article estimates that reducing the enrollment in special education saved the state “billions” of dollars. Unfortunately, the collateral damage was that hundreds of thousands of students who should have been eligible were denied special education services.

Texas Tactics

The tactics Texas schools used to enforce the 8.5 percent mandate are used in many other states to prevent eligible students from entering special education or receiving appropriate services. This is why parents need to be aware of the laws that protect their children from any school district that might try to use these tactics to avoid its obligation to provide an appropriate education.

In this and subsequent blog articles, we will review the gatekeeping tactics that the Houston Chronicle uncovered, beginning with the tactic of discouraging parents from seeking evaluations to determine special education eligibility. In later articles we will describe some of the other tactics used by Texas schools.

What Federal and Texas Laws Say

Under 20 U.S.C. § 1414 “Evaluations, Eligibility Determinations, Individualized Education Programs, and Educational Placements,” IDEA states that parents can request an evaluation in all areas of suspected disability to determine whether a child qualifies for special education. Parents can make this request at any time and the school must honor the request without placing any conditions on it.

The only requirement is that the request must be made in writing. Once the school receives a signed consent form from the parents, under federal law it has 60 days to perform all requested evaluations (Texas law specifies 45 school days). All evaluations are to be performed at no cost to the parents. The specific federal statute is: 20 U.S.C. § 1414(a)(1)(B). Texas special education law does not alter this requirement.

What Schools Told Parents Instead

Instead of following either state or federal law, the Chronicle reported that different Texas school districts told parents that:

  • they would have to pay for evaluations
  • there was a long waiting list
  • students could not be evaluated more than once every two years
  • there had to be at least three meetings with teachers before the school can perform an evaluation, or as a variation, a special committee must decide that an evaluation is warranted
  • a student’s IQ was too high for special education
  • dyslexia only qualified for section 504 services and not special education
  • there could be no referral to special education until the student tries Response to Intervention first
  • a private school would be better able to teach their child. (While this last point may be true, if a public school is unable to provide an appropriate education under IDEA, then the school district must pay for the outside placement.)

This is Why You Need to Know Your Rights

All these “tactics” used by Texas schools are contrary to the laws governing special education. Yet, most parents interviewed by the Houston Chronicle were unaware of the law’s requirements, and accepted the school’s explanations without question. This meant that their child never got evaluated for special education eligibility, or they endured long delays while their child fell further and further behind in academic and social skills. This is a tragic situation that can have long-lasting consequences. We wrote our book, Parents Have the Power to Make Special Education Work so that you can separate fact from fiction and to help you get your child the appropriate education he or she deserves.

Postscript

In May of 2017, the Texas state legislature passed a bill banning the practice of placing a cap on special education enrollment. This was 13 years after the Texas Education Agency began the practice.

Judith Canty Graves and Carson Graves

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