Off the Kuff Rotating Header Image

Disability Rights Texas

Federal judge will fast-track mask mandate ban lawsuit

I’m ready.

Federal District Judge Lee Yeakel said Wednesday morning he intends to fast-track a lawsuit filed on behalf of 14 Texas schoolchildren with disabilities who allege that Gov. Greg Abbott’s ban on mask mandates breaks federal law by discriminating against them because they are particularly vulnerable to COVID-19.

In Wednesday’s hearing, Yeakel denied a request for a temporary restraining order that would have barred Texas from enforcing Abbott’s order until Oct. 6, when the case is scheduled for trial.

Yeakel said he needs more information about the case before he will be ready to make a ruling.

The delay will allow the judge to hear from witnesses and see other evidence in the case. No matter what his decision on the case, Yeakel said he expects it to be appealed to higher courts — possibly as far as the U.S. Supreme Court.

“I think the issues in this case are extremely important,” Yeakel said.

In legal filings and in court, lawyers for the 14 children argued that Texas’ mask mandate prevents school districts from making reasonable accommodations for children with disabilities, in violation of the federal Americans with Disabilities Act. They also said it preempts the federal American Rescue Plan, the COVID-19 relief package signed into law by the president earlier this year, which they said provides discretion for school districts to follow federal Centers for Disease Control and Prevention recommendations.

[…]

The lawsuit is against Attorney General Ken Paxton, Abbott and Abbott’s Texas Education Agency. The order was defended in court Wednesday by lawyers from Paxton’s office.

The crux of their defense was that the lawsuit was improper because none of the defendants are the right people to sue over Abbott’s mask order. They said the proper people to sue would be those who are enforcing the law, but no one is actually enforcing it, so there’s no one to sue.

“(Abbott’s order) doesn’t stop the plaintiffs from doing anything. They can say, think, do whatever they want. It does not regulate their conduct, it regulates the conduct of local officials,” said Todd Dickerson, an assistant attorney general, adding that there is “no credible threat of enforcement” from the local district attorneys who are supposed to enforce it.

See here and here for the background. The “you can’t sue me” dodge was a key component of Abbott’s claim/admission that he has no power to enforce the mask mandate ban, and has been a part of the defense that he and Ken Paxton have put forward in the various lawsuits against them over the ban. As such, it’s not a surprise to see it turn up here – this is becoming a foundational piece of their governance, which is that no one can hold them accountable for anything. But as the plaintiffs point out, for a guy who claims he can’t enforce Abbott’s mask mandate ban order, he sure is suing a lot of people to do just exactly that. So which one is true? We’ll see what the judge makes of it.

Paxton sues several school districts over mask mandates

Whatever, dude.

Best mugshot ever

Texas Attorney General Ken Paxton announced Friday that he filed a lawsuit against Richardson ISD, following through on his pledge to sue school districts who mandate masks.

The district defied Gov. Greg Abbott’s executive order prohibiting local entities from requiring masks. The RISD trustees voted last week to affirm Superintendent Jeannie Stone’s decision to require face coverings, after they were forced to close an elementary school because of a spike in COVID-19 cases and a sixth grader was admitted into the intensive care unit.

Paxton noted in a release that the office anticipates filing additional lawsuits against the districts flouting the governor’s order. This could include Dallas ISD — the first to openly defy Abbott.

“Not only are superintendents across Texas openly violating state law, but they are using district resources—that ought to be used for teacher merit raises or other educational benefits—to defend their unlawful political maneuvering,” Paxton said in a statement.

[…]

Richardson is among the first Texas districts to be sued by Paxton. Friday he also filed suit against the Galveston, Elgin, Spring and Sherman school districts, according to his office.

He has railed against the dozens of school districts and counties who stood firm on mask mandates, repeatedly posting on social media that he would sue them all. Paxton’s office maintains an ever-evolving list of local entities that are mandating masks.

Meanwhile, Abbott’s order is tied up in both state and federal courts as districts and advocates push for mask mandates to be local decisions.

Dallas County Judge Clay Jenkins is locked in a legal fight with the state over his decision to impose a local mask mandate for businesses and schools.

Disability Rights Texas recently escalated the legal battle, filing a federal lawsuit against Abbott, alleging his order unfairly harms children with disabilities.

Richardson trustees also recently voted to join an existing multi-district lawsuit challenging Abbott’s ban, which argues the governor’s executive order exceeds his authority and infringes on local control.

Paxton’s move could have federal implications, as well. The U.S. Department of Education’s Office for Civil Rights recently opened investigations into five states that prohibit mask mandates, saying such bans may violate the federal law meant to protect students with disabilities.

Department officials indicated they had not opened an investigation into Texas because its ban isn’t currently being enforced because of court orders.

Again, neither Ken Paxton nor Greg Abbott has the power to enforce mask mandate bans. Even if Paxton gets a judge to rule in his favor – the score so far is tilted pretty heavily against him – local DAs can and should thumb their noses at him. It’s not clear to me where these lawsuits have been filed – in this press release he said there were three of them, but didn’t get more specific than that. There may be more coming, so eventually we’ll sort it all out. In the meantime, Paxton can go pound sand. The Chron, Reform Austin, and KXAN have more.

UPDATE: Here’s the Trib story, which notes that the lawsuit against Galveston ISD was brought in Galveston County, as one might expect. That’s probably true of the others, each filed in their home county, but it would still be nice to have that confirmed.

First two lawsuits filed against the voter suppression bill

No time wasted.

The top elections official in Harris County and a host of organizations that serve Texans of color and Texans with disabilities have fired the opening salvos in what’s expected to be an extensive legal battle over Texas’ new voting rules.

In separate federal lawsuits filed in Austin and San Antonio, the coalition of groups and Harris County sued the state over Senate Bill 1 before it was even signed into law, arguing it creates new hurdles and restrictions that will suppress voters and unconstitutionally discourage public officials and organizations from helping Texans exercise their right to vote.

The lawsuits claim the legislation violates a broad range of federal laws — the Voting Rights Act, the Civil Rights Act, the Americans with Disabilities Act, the Rehabilitation Act of 1973 — and the First, Fourteenth and Fifteenth Amendments.

“Egregiously, SB 1 takes particular aim at voters with disabilities, voters with limited English proficiency — who, in Texas, are also overwhelmingly voters of color — and the organizations that represent, assist, and support these voters,” the plaintiffs in the Austin lawsuit wrote in their complaint.

The plaintiffs in the San Antonio lawsuit,, which includes Harris County, also raise claims that lawmakers intentionally discriminated against voters of color in pushing the legislation.

[…]

The plaintiffs attack head on the lack of evidence that fraud is a widespread problem in Texas elections.

In the San Antonio lawsuit, they argue SB 1’s “additional burdens and restrictions” cannot be justified by invoking “unspecified and unproven voter fraud” when there is no proof that it occurs “beyond the very few examples already identified through Texas’s pre-existing processes and procedures.”

“Rather … SB1 is a reaction to Texas’s changing electorate, which is now more racially diverse and younger than ever before,” they wrote in their complaint.

The claims raised collectively in both lawsuits are as expansive as the legislation is far-ranging.

They include claims on SB 1’s new restrictions on voter assistance, including the help voters with disabilities and those with limited English proficiency are entitled to receive. The plaintiffs point to the reworked oath that a person assisting a voter must recite, now under penalty of perjury, that no longer explicitly includes answering the voter’s questions. Instead, they must pledge to limit their assistance to “reading the ballot to the voter, directing the voter to read the ballot, marking the voter’s ballot, or directing the voter to mark the ballot.”

As part of its claims of intentional discrimination, the lawsuit that includes Harris County as a plaintiff also calls out SB 1’s prohibition on the drive-thru and 24-hour voting initiatives used by the diverse, Democratic county in the 2020 election — both of which county officials said were disproportionately used by voters of color.

SB1 also makes it a state jail felony for local election officials to send unsolicited applications to request a mail-in ballot. Several counties proactively sent applications to voters 65 and older who automatically qualify to vote by mail, but Harris County attempted to send them to all 2.4 million registered voters last year with specific instructions on how to determine if they were eligible.

In outlawing those voting initiatives, Republican lawmakers made it clear they were targeting the state’s most populous county, even though other counties employed similar voting methods.

“My first and only priority is to educate and help voters to lawfully cast their ballots,” Harris County Elections Administrator Isabel Longoria said in a statement. “Voting by mail is not simply another method to vote — for many senior voters and voters with disabilities, it’s their only option to vote. SB1 makes it a crime for me to encourage those who are eligible to vote by mail to do so, effectively making it impossible to fulfill my sworn duty as Elections Administrator.”

Both lawsuits also argue the constitutionality of a section of SB 1 that creates new a “vote harvesting” criminal offense, which it defines as in-person interactions with voters “in the physical presence of an official ballot or a ballot voted by mail, intended to deliver votes for a specific candidate or measure.” The lawsuits argue the language in that section — and the criminal penalties attached to it — are unconstitutionally overbroad and vague and could serve to quash legitimate voter turnout initiatives.

The lawsuits also challenge provisions of SB1 that bolster protections for partisan poll watchers inside polling places, and new ID requirements for voting by mail.

You can see copies of the lawsuits here for Austin and here for San Antonio. I note that Isabel Longoria, the Harris County elections administrator, is a defendant in her official capacity in the Austin lawsuit and a plaintiff in the San Antonio lawsuit. I assume there’s a technical reason why a county elections administrator is named as a defendant in these actions, but I have no idea what algorithm is used to decide which county and administrator. (The Austin lawsuit also includes Dana DeBeauvoir from the Travis County elections office as a defendant, while the San Antonio lawsuit picks the Medina County admin. Go figure.)

I’m not going to speculate on the merits or chances of these lawsuits, which I assume will eventually get combined into a single action. I expect that they have a strong case, and we know from past performance that the Republicans in the Lege tend to be shoddy and indifferent in their work when they pass bills like these, but none of that really matters. What matters is what if anything the Fifth Circuit and SCOTUS deign to find objectionable. For obvious reasons, I’m not going to get my hopes up. I expect the Justice Department to get involved on the side of the plaintiffs, and there’s always the specter of passing the John Lewis Act and making this way easier on everyone. In the meantime, settle in for the long haul, because we know this will take years to come to a resolution. Look to see what happens when (I feel confident saying “when” and not “if”) a temporary restraining order is granted.

Federal lawsuit filed against Abbott’s mask mandate ban

Very interesting.

Disability Rights Texas filed a federal lawsuit Tuesday against Abbott and Texas Education Agency Commissioner Mike Morath over Abbott’s executive order preventing school districts from enacting their own mask-wearing requirements.

Abbott’s order, the group alleges in the suit, violates the Americans with Disabilities Act and federal protections for students with disabilities by preventing “students with disabilities from safely returning to school for in-person instruction without serious risk to their health and safety.”

Parents of “medically vulnerable students” will have to “decide whether to keep their children at home or risk placing them in an environment that presents a serious risk to their health and safety” if schools can’t implement mask-wearing, the lawsuit says.

“As a result, Governor Abbott and TEA have erected an unlawful barrier, which will impact many students with disabilities and prevent local school districts and communities from providing a safe learning environment for their most vulnerable students,” the lawsuit reads.

The disability rights group — which sued Abbott and Morath in the Western District of Texas on behalf of 14 schoolchildren who have disabilities or chronic diseases — wants a federal judge to block, at least temporarily, Abbott’s prohibition on mask mandates so school officials can require students, teachers, staff and visitors to don masks.

Disability Rights Texas’ statement about the lawsuit is here, and a copy of the complaint is here. I’ll leave it to the lawyers to evaluate the merits of this complaint, but it’s a new front in the battle and offers perhaps a new wedge against Abbott’s harmful order.

In a recent episode of the Yallitics podcast, law professor Steve Vladeck was asked about the potential for federal litigation over the mask mandate ban, since so far everything had been filed in state courts. His answer was simply that such a filing would require the assertion of a federal right being violated, and that’s what we have here. It’s also potentially an opening for the Biden administration to take more direct action, if they are so inclined. I’ll be very interested to see how this plays out. The Chron has more.

(On a separate note, DRT also recently filed an amicus brief with the state Supreme Court in support of the plaintiffs fighting the mask mandate ban there.)

There’s still a lot of work to be done to make it easier to vote

The ease of access for disabled voters is still a huge unaddressed issue.

Val Vera finally cast his ballot after sitting for two hours in his van outside a Denton County polling place. He wasn’t waiting on people in line ahead of him, but for an elections clerk to respond to his phone calls.

Vera, 52, is disabled and decided to vote curbside this election, an option every county is required to offer any voter whose health would be harmed by entering the polls, or who is physically incapable of doing so.

“In an ideal world, curbside voting at your polling site, there’s the designated parking spot,” said Molly Broadway, voting rights specialist at Disability Rights Texas. “There’s a sign that lets you know that this is where curbside voting is going to happen, and there’s a call button, essentially, that one can access, which will alert the poll worker inside the building of your presence.”

For millions of disabled Texas voters, casting a ballot has long been challenging enough, even without a pandemic and explosive turnout in a high-octane election cycle. Using curbside voting, mail-in ballots and other aids, they must navigate a system that in some parts of Texas has been slow to accommodate their needs.

With fears of contracting COVID-19 compelling more voters to explore options to avoid setting foot in a polling place, disability rights advocates say the process has become an exercise in persistence for even more disabled voters.

In 2012, 30% of disabled voters nationwide reported difficulties at polling places, according to a Rutgers University study. In Texas, a newer Rutgers study estimates, about 15% of those eligible to vote in the general election are disabled — almost 3 million people.

Lisa Schur and Douglas Kruse, professors who helped conduct the study, said lack of accessibility causes disabled people to vote at lower rates than the general population. Without barriers, they estimate, 3 million more disabled Americans would have voted in 2012. Though it’s hard to determine the extent without solid data, the pandemic could limit people’s access even further.

[…]

Disability Rights Texas tries to help voters navigate hurdles they run into at the polls. This year, Broadway said, increased voter turnout, coupled with increasing visibility for disability rights over the past few years, has spawned more calls than usual, and not just for curbside voting.

Chase Bearden, deputy executive director of the Coalition of Texans with Disabilities, said his organization heard reports of long lines at one polling place that strayed into grassy patches difficult to navigate in a wheelchair. Matt Plummer, a wheelchair user, said when he went to vote in Tarrant County, his wife had to make selections for him because he couldn’t reach the touch screen at the back of the machine.

Disabled voters in Texas are also allowed to use mail-in ballots, which helps some voters, but those aren’t entirely accessible either.

Kenneth Semien Sr. said he considered voting by mail but decided to go in person. To submit a mail-in ballot, Semien would have to rely on someone else to mark it for him because he is blind. Not only would that strip away his independence, he said, but he also would have no assurance the person was actually marking his choices instead of their own. Semien is involved in an ongoing federal lawsuit against the Texas secretary of state that is seeking more accessible mail-in ballots, and he thought an alternative way to vote would be available by the time November rolled around.

Instead, Semien cast his ballot in person at the same polling location he’s used in Jefferson County for the past 15 years. Once he arrived, a security guard he knew helped guide him through the line, telling him where to walk so he could stop on the taped X’s on the floor.

As he stepped up to vote, he said, the poll worker took a long time finding where to plug his headphones in so his screen reader could read the ballot to him. Such technical issues sometimes leave people unable to vote, and this one almost made Semien miss his bus back home.

Each time before he goes to vote, Semien calls ahead to make sure the polling location will have someone on staff trained to use the accessible voting machine. Typically, he said, he’s told what he wants to hear, but problems crop up when he arrives.

“It is just terrible that you have to keep repeating these things, but every time we go to the polls we deal with some of the same issues, you know, if the equipment is not available for some reason, they hadn’t gotten set up yet, even though I called before,” Semien said.

I searched my archives but didn’t find a post about Kenneth Semien’s lawsuit – there’s been so many voting rights lawsuits this year I just can’t keep up with them all – but I found this story and a copy of the complaint via Google.

A big part of this is voting locations. Harris County settled a lawsuit last year about the accessibility of its voting locations. Our county, led by County Clerk Chris Hollins, did a tremendous amount to make it easier for everyone to vote – usually over the objections and legal obstacles thrown up by Republicans – but it would be good to review what worked and what still needs improvement. This is going to take a law – really, there should be both state and federal legislation to address this – and money, but most of all it will take commitment, both to listening to the community and their advocates, and following through on what they need. We can absolutely improve this experience for millions of Americans, including millions of Texans, but we have to do the work.

Don’t forget about school police

Maybe we can take another crack at breaking the school-to-prison pipeline.

Several social justice organizations called Monday for Houston ISD to eliminate its police department and contract with local law enforcement agencies, whose officers would respond only to emergency situations on campuses.

In a letter to HISD Interim Superintendent Grenita Lathan, the organizations’ leaders argued police officers make students feel less safe in school and drain funds that could be better spent on mental health counselors and social workers. The organizations are Disability Rights Texas, ONE Houston, Texas Appleseed, Children’s Defense Fund Texas and the Earl Carl Institute at Texas Southern University.

“All children have a right to feel safe and supported at a school, and the police officer’s presence makes some kids feel less safe,” said Karmel Willis, an attorney for Disability Rights Texas. “I don’t think people always look at that.”

The effort follows the death last month of Houston native George Floyd, who stopped breathing after Minneapolis Police Officer Derek Chauvin kneeled on his back and neck for nearly nine minutes. Floyd’s death has triggered nationwide calls for police reform.

School districts throughout the U.S. have increased the presence of police in schools and installed more security measures in recent years following numerous on-campus mass shootings. About 30 miles southeast of HISD, a student is accused of fatally shooting 10 people at Santa Fe High School in 2018.

In a statement Monday, HISD’s administration said its leadership “requires time to thoroughly examine this proposal.

Lathan is proposing to spend an additional $3.5 million in 2020-21 on raises for HISD police officers, whose salaries trail those of Houston Police Department officers. Trustees are scheduled to vote Thursday on the 2020-21 budget.

HISD Board President Sue Deigaard said she has talked to Lathan in recent days about evaluating the district police department’s policies, practices and patterns. However, she said a “bigger conversation” is needed before making major changes to HISD’s police force.

“That is something that should be open for discussion as a board,” Deigaard said. “But we need to balance that conversation, especially in a world we live in with outside threats to our students.”

[…]

HISD Trustee Kathy Blueford-Daniels, who represents some campuses with the area’s highest disciplinary rates, said she would not support eliminating the district’s police department this month or in the future.

“I can’t emphasize enough that the most important thing we can think about as board members is to ensure our children get to school safely and return home safely,” Blueford-Daniels said. “Heaven forbid that something should happen like it did in Santa Fe and there’s no one there to protect them.”

Clearly, there’s a need to discuss this at some length. Similar proposals are being made at other school districts as well. The problem with having police officers inside schools is that they tend to do the things that police officers do, which is write tickets and make arrests for things that would have been handled as internal school disciplinary matters had they not been there (*). Note the bit in that report about “the broad discretion given to school police officers to use pepper spray, Tasers and other types of force” inside schools, and the lack of transparency about same. That was from 2011. Now here’s a quote from the Houston Public Media story about this same proposal:

“They have tear gas, rubber bullets, battering rams,” said Sarah Guidry, director of the Earl Carl Institute at Texas Southern University. “They started getting this equipment, as if they were going to war. And if that’s your philosophy — ‘we’re ready to go to war’ — then it’s going to be easier for you to go to war as opposed to helping somebody.”

It’s almost as if these problems have been around for a long time, without anything being done about it. Note also that the number of armed police officers in schools increased in 2018 following the Santa Fe school shooting.

I doubt that the HISD Board will support cutting out their police department, but now is an excellent time to bring the subject up and make a plan to start drastically reducing police presence in our schools. I look at it this way: I attended public middle and high school in New York City between 1978 and 1984, when the crime rate was way, way higher than it is now. Neither of those schools had any police presence in them. Schools are for learning, not for policing. This is a great time to push for real reform here as well.

(*) To be fair, internal school disciplinary processes are often quite problematic on their own. But one step at a time. Grits has more.

Harris County settles ADA voting rights lawsuit

Chalk up another accomplishment for our new county overlords.

The U.S. Department of Justice will monitor Harris County elections, at county expense, for up to four years under the settlement of a federal lawsuit over inadequate access to polling places for voters with disabilities.

Commissioners Court approved the 15-page settlement during at its regularly scheduled meeting Tuesday. The item originally was designated for a closed-door executive session, but court members simply agreed to First Assistant County Attorney Robert Soard’s recommendation they sign off on the deal.

Under the agreement, Harris County will have to make minor accessibility improvements to as many as 300 of its 750 regular voting sites, hire two outside election experts to supervise balloting and designate an in-house Americans with Disabilities Act compliance officer. The county does not have to concede it has violated the ADA in past elections.

“It’s a fair settlement,” Soard said. “It’s a reasonable way to conclude this litigation.”

Toby Cole, a quadriplegic attorney who almost exclusively represents wheelchair users, said the settlement and extended federal supervision are essential because disabled voters often are reluctant to complain about problems they encounter.

“They don’t want to make a huge fuss,” Cole said. “So, you don’t vote the first time, then the second time. We cut things out of our lives already, and voting is one more thing to say is too difficult.”

County Judge Lina Hidalgo said after the meeting she is confident the county will be able to show the federal government much sooner than four years it is capable of running an election in which each polling place meets ADA guidelines.

“We’ve got a court, and a county clerk, and a county attorney that are committed to equitable access to elections,” Hidalgo said. “We’re all working to make sure we adhere to that settlement.”

[…]

Monica Flores-Richart, whom County Clerk Diane Trautman hired in January as the county’s ADA compliance officer, said the office will re-examine each polling place. In most cases, she said problems can be identified and addressed quickly.

“We’re not talking about permanent improvements,” Flores-Richart said. “If there’s a gap of a certain size in the sidewalk, you need to put a mat down. Those are the kind of things we’re talking about.”

The settlement requires the county to submit a new ADA compliance plan to the Justice Department within 120 days. The county also must hire at least 20 contractors, or use county employees, to monitor each countywide election.

See here, here, and here for the background. I’ve expressed a modicum of sympathy for the County Clerk in the past regarding this litigation, which was filed in August of 2016 following a letter of finding in 2014, but if this is all it took to settle the case, I have to wonder why it took so long. Well, okay, I know the answer to that, and it has to do with whose picture you see when you load up the harrisvotes.com website. But seriously, this should have been wrapped up long before now. Be that as it may, kudos to all for getting it done. I share Judge Hidalgo’s confidence that Harris County can complete the terms of the settlement in less than the time allotted. The Trib has more.

Lawsuit threatened over special education limits

The clock is ticking.

Disability advocates on Monday threatened to sue the Texas Education Agency unless the state permanently ends its special education enrollment benchmark within the next month.

The advocates said immediate action is necessary because of the “devastating harm” caused by the benchmark.

The state already has suspended and pledged to eventually eliminate the decade-old cap, which punished school districts for giving special education services to more than 8.5 percent of students. But the state has angered advocates by not saying when it will permanently end the policy.

“The time for action to protect and support Texas’s children with disabilities is now,” the advocates from the Coalition of Texans with Disabilities and Disability Rights Texas wrote in a letter to the Texas Education Agency and Commissioner Mike Morath.

Asked to comment on the letter, agency spokesman Gene Acuña said that officials already are working to eliminate the 8.5 percent metric. Changes to the policy should be proposed in the spring, he said.

“As always, we continue to seek input from stakeholders during this process,” Acuña said.

[…]

The letter also outlined the group’s legal theory.

First, the advocates said, the benchmark was inappropriate because states are allowed to monitor school districts “only as necessary to ensure compliance with federal law.” Moreover, they argued, the benchmark actively violated the law “because it directs, incentivizes, and has caused school districts to deny enrollment in special education programs to eligible students.”

The advocates said they would not file the lawsuit if Morath and the agency counter-sign their letter and initiate the process of permanently ending the benchmark within 30 days.

See here for the background; a copy of the letter is in the story. The TEA officially backed off enforcing its policy of capping special ed funding in November, but the policy still remains on the books. From the TEA quote above, it sounds like the deadline given will be too short, so it’s a matter of how much progress they make and whether the plaintiffs-to-be will be satisfied with that. Check back in a month and we’ll see.

TEA officially backs off special education limits

We’ll see about that.

Facing increasing criticism over its special education enrollment benchmark, the Texas Education Agency this week told schools that they must provide services to all eligible students with disabilities and that they will no longer be penalized for serving too many children.

In a five-page letter, Penny Schwinn, the agency’s deputy commissioner of academics, advised school districts that a federal provision known as “child find” requires them to locate and evaluate all kids who live within their boundaries who might qualify for services such as tutoring, counseling and therapy.

“A school district’s failure to meet the child find requirements is a serious matter,” Schwinn wrote. “Furthermore, the failure to identify a child may entitle the child to compensatory education or tuition reimbursement.”

Schwinn told the districts that the TEA eventually would end the decade-old benchmark that has set 8.5 percent as the ideal rate of special education. And effective immediately, she wrote, exceeding the target would not “adversely affect” district performance levels or determinations about whether districts are audited.

A decade of audit threats related to the target has left Texas with the lowest rate of special education in the country. If the state was at the national average, more than 250,000 more students would be receiving services.

But as in the past, Schwinn also defended the policy, saying it was not a “cap” on enrollment and did not seriously punish districts for failing to comply.

“It has been alleged that some school district personnel and others may have interpreted the (benchmark) to mean that districts are required to achieve a special education enrollment rate of no more than 8.5%,” she wrote. “This interpretation is incorrect.”

The letter followed through on a promise to the U.S. Department of Education, which last month ordered the TEA to end the enrollment target and remind schools about the requirement to provide special education services to children with disabilities.

[…]

But some advocates and lawmakers said the TEA’s message was undercut by its refusal to accept responsibility for the benchmark.

“TEA says it understands the complexities of schools differentiating between problems due to disability and other factors,” said Dustin Rynders, of Disability Rights Texas. “In reality, the complexity is deciphering the mixed messages TEA sends schools.”

“We welcome the reminder that schools should evaluate those suspected of needing special education, however TEA is the cause of the problem,” he added, arguing that “TEA has no credibility” because it “keeps trying to sell its preposterous story that the 8.5 percent indicator was not a cap or a goal for the percentage of students receiving special education, while offering no explanation for why they awarded their best performance level to districts that served fewer than 8.5 percent of students.”

See here for the backstory. I agree with Dustin Rynders that we should not just take the TEA’s word for it on this. They have not been been particularly transparent, and there’s no way any of this would be happening if it weren’t for the spotlight that has been shone on them by the Chronicle’s investigation. There’s also the small matter of ensuring adequate funding for all the students who need special ed services, which as we know are not cheap. This does represent progress, but it’s definitely a situation that requires oversight and verification going forward.

TEA says no more special ed limits

We’ll see about that.

The Texas Education Agency has agreed to stop auditing school districts that give specialized education to more than 8.5 percent of students, officials announced Wednesday, cheering experts, advocates and lawmakers outraged by the policy.

In a letter to the U.S. Department of Education, which had ordered the state to eliminate the arbitrary decade-old enrollment benchmark, officials promised to suspend it and work to eventually end it altogether.

“TEA will send a letter to all school districts in the state reminding them of the requirements of IDEA (the federal law on special education),” wrote Penny Schwinn, the agency’s Deputy Commissioner of Academics. “In addition, TEA will … not use (the policy) for the purposes of interventions staging moving forward.”

But the agency also vigorously defended the policy, saying it was not a “cap” on enrollment, was not meant to save money and did not seriously punish districts for failing to comply. Officials also said they had no evidence that the policy had kept any disabled students out of special education, and they did not offer any plan for identifying and helping children who may have been shut out.

[…]

Advocates criticized the state’s letter, saying that “stakeholder input” is not the same as public input, that the policy still saved money by preventing spending increases as more students have entered the state, and that the state’s explanation for the enrollment drop did not make sense because federal laws have affected all states, while only Texas has had a large drop.

“Disability Rights Texas is disappointed by the Texas Education Agency’s defensive response filed with the U.S. Department of Education today,” the group said in a statement. “Students’ futures are held in the balance while TEA refuses to claim any responsibility for the dramatic decline in services to children with disabilities.”

Earlier in the day, 22 national disability advocacy groups wrote to the TEA to say they were “deeply troubled” by the Chronicle’s findings.

After the TEA released its letter to the federal government, Straus said in a statement that the agency’s decision to suspend the target was “good news for Texas families.”

A spokeswoman for the U.S. Department of Education said the department would review the TEA letter.

“Texas addressed multiple questions and issues and included a number of attachments,” said the spokesman, Jessica Allen. “The Education Department will carefully review the state’s response and, after the review is concluded, determine appropriate next steps.”

See here, here, and here for some background, and here for a copy of the TEA’s letter to the US Department of Education. Let’s just say that I’m not prepared to take the TEA’s word for it, and any “solution” that doesn’t involve ensuring that all school districts have sufficient funding to adequately provide for all of their special-needs kids is no solution at all. Until we have assurances on that score, this is all talk and no action. The Trib has more.