Has Texas denied special education services in public schools in violation of federal law and at the expense of our school kids? A Houston Chronicle analysis says yes.
The analysis showed that Texas public school districts have drastically reduced their provision of special education, from about 12 percent of students in 2004 to 8.5 percent of students in 2015. In Austin ISD, the proportion dropped from 12.2 percent to 10 percent. This contrasts with a rate of about 13 percent nationwide.
The Texas Education Agency (TEA) says that it didn’t require any reduction in special needs populations. It says that its 8.5 percent benchmark is about data collection. In other words, the TEA might ask a school district to “conduct a data analysis” if its special needs population is large enough.
Here is one solution to this mess: The TEA should pay for school districts’ reasonable data collection costs.
Money is the key to understanding this fight. On one hand, a federal law requires Texas to identify and provide services to “all” special needs kids.
On the other hand, this federal mandate is largely unfunded, and so if Texas school districts provide services to kids who should not have a special needs designation, then other school programs lose the resources they deserve.
The TEA’s responsibility is to help allocate just the right amount of resources to special needs programs. To do this, it needs data. To ask a school district to submit information about special needs populations and programs is entirely reasonable.
But the TEA should not use data collection as a Trojan Horse. It may not conceal a program that takes resources away from deserving kids under the guise of a program that pretends only to collect data.
A problem is that a data collection benchmark can act like a Trojan Horse for a quota even if the TEA does not intend that result. This is because the benchmark acts like a safe harbor. That is, it gives school administrators comfort that they have “met standard” if their district is at or below 8.5 percent.
Even if the TEA does not set any penalties for a higher percentage, school administrators might be tempted by the cozy assurance that the state won’t come sniffing around wanting more information.
They might not want to think about the potential hassle of extra data analysis. School administrators might alter their special needs decisions in order to move closer to the safe harbor line of 8.5 percent. Special needs kids might pay the price for administrators’ peace of mind.
One way to approach this problem is to collect less data. For instance, the TEA could increase the safe harbor data collection benchmark to the national average of 13 percent, or even eliminate it altogether.
The problem with this is that less data probably means a higher chance of error in resource allocation. And that means that students, one way or the other, would lose out.
Another alternative is that the TEA could collect more data. For instance, it could collect large amounts of data from all schools, whether or not their special needs populations exceed a benchmark. But this would cost a lot, and since resources are limited, school kids again will pay the price.
A third alternative is the right solution. The TEA’s data collection efforts should not be allowed to operate as a penalty. So the TEA should first say that data collection is not a penalty. It should say this plainly and publicly, and in a way that is accessible to families who might apply for support for their kids.
It should explain, if true, that school districts with percentages higher than the benchmark (Austin’s among them) have not been penalized. And it should reimburse school districts for the reasonable costs of data collection, which fund the mission of the TEA rather than the goals of a particular district.
This comes down to money and data, with the welfare of Texas school kids on the line.
Susan Morse is a professor of law at The University of Texas at Austin.
A version of this op-ed appeared in the Dallas Morning News and the Austin American Statesman.
To view more op-eds from Texas Perspectives, click here.
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