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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.

Just a reminder, no one is enforcing Abbott’s mask mandate ban

In case you had forgotten.

While Republican Gov. Greg Abbott is speaking out against mask mandates in schools and suing to stop some Texas school districts from enacting them, in reality his order banning such mandates has gone largely unenforced — so much so that the federal government doesn’t consider it active.

Abbott threatened $1,000 fines for officials who try to impose mask mandates, although no such fines have been handed down. And if he wanted to, Abbott could send state troopers or deputize the Texas National Guard to enforce his order, as he has done on the border, but he hasn’t. Texas Attorney General Ken Paxton, meanwhile, has a published list of 71 non complying cities, counties and school districts; is fighting in court with at least six of them and sent letters threatening more legal action to others.

But in the court filings from the lawsuits, Paxton has acknowledged that neither he nor Abbott will directly enforce the ban on mask mandates, instead leaving it to local district attorneys, some of whom are already on-record saying that they don’t intend to prosecute.

Abbott’s own Texas Education Agency on Aug. 19 said that the ban on mask mandates would not be enforced until the courts have resolved legal challenges to his authority to do it. And the federal Department of Education chose Monday not to open an investigation into the matter in Texas, even as it launched probes of five other states with active bans.

[…]

The five largest counties in the state are Harris, Dallas, Tarrant, Bexar and Travis. The district attorneys for Harris and Bexar counties have already announced they don’t intend to prosecute school districts over mask rules, and a prosecutor with Travis County said the office would remain focused on violent crime, although they would evaluate the situation on a case-by-case basis.

Tarrant County did not respond to a request for comment, and a spokeswoman for Dallas County said: “This issue is working its way through the civil courts. At this point in time — until that’s concluded and depending on how that’s concluded — there’s no reason to consider a position on that.”

On Monday at a House Public Education Committee hearing, Rep. Steve Allison, a San Antonio-area Republican, acknowledged there’s “an appearance of dysfunction” in government right now over the mask orders and Abbott’s ban.

See here and here for the background. I’m not sure why the Travis and Dallas DAs are being so equivocal, but it doesn’t really matter. There’s no way they’ll prosecute anyone over this, not if they want to avoid having their asses handed to them in the next primary election. We all know this is about Greg Abbott trying to look macho for the Republican primary voters. There’s no need to help him with that in any way.

Feds take first steps in the mask mandate fight

Coming attractions.

The U.S. Department of Education is opening civil rights investigations to determine whether five states that have banned schools from requiring masks are discriminating against students with disabilities, the agency said on Monday.

The department is targeting Iowa, Oklahoma, South Carolina, Tennessee and Utah, all Republican-led states, in its investigations. It said it was concerned that their bans on mandatory masking could leave students with disabilities and underlying health conditions more vulnerable to COVID-19, limiting their access to in-person learning opportunities.

“It’s simply unacceptable that state leaders are putting politics over the health and education of the students they took an oath to serve,” U.S. Secretary of Education Miguel Cardona said in a statement.

“The Department will fight to protect every student’s right to access in-person learning safely and the rights of local educators to put in place policies that allow all students to return to the classroom full-time in-person safely this fall.”

[…]

Florida, Texas, Arkansas and Arizona are four other Republican-led states that have banned mandatory masking orders in schools. The Education Department left those states out of its inquiry because court orders or other actions have paused their enforcement, it said in a news release.

The department says it is monitoring those states and would take action if local mask-wearing policies are later barred from going into effect.

See here for the background, and here for the press release. It’s too early to say how this might go, and that’s before we get a resolution in the reams of mask mandate-related lawsuits that are still working their way through our system. Suffice it to say that the good guys have a lot of fight left in them.

The feds prepare to enter the mask mandate fight

Good.

Texas Gov. Greg Abbott may soon be fighting a war on two fronts — with local officials and the federal government — to stave off mandatory COVID-19 prevention efforts after the Biden administration announced Wednesday it was going after states like Texas that try to ban universal masking at schools.

Saying that the federal government will not “sit by as governors try to block and intimidate educators from protecting our children,” Biden said he will use the U.S. Department of Education’s civil rights enforcement authority to deter states from blocking mask mandates in classrooms.

“I’m directing the Secretary of Education, an educator himself, to take additional steps to protect our children,” Biden said. “This includes using all of his oversight authorities and legal action, if appropriate, against governors trying to block and intimidate local school officials.”

“If you aren’t going to fight COVID-19, at least get out of the way of everyone else who’s trying,” Biden added.

Biden didn’t directly name Texas or Abbott in his Wednesday remarks, but both Florida and Texas have made national headlines for efforts to block schools from requiring masks, even as children under 12 remain ineligible for the vaccine and the delta variant affects mostly the unvaccinated.

Biden’s announcement could tee up another legal battle for Abbott, who is already fighting in state court Texas school districts which have implemented mask mandates as school kicked off this month. Abbott’s office did not immediately respond to a request for comment.

More than 50 school districts and at least eight counties are currently defying or have recently violated Abbott’s executive order banning mask mandates, according to a tally released Wednesday by Attorney General Ken Paxton.

[…]

Last week, U.S. Education Secretary Miguel A. Cardona sent Abbott and Texas Education Agency Commissioner Mike Morath a letter expressing support for local school districts that have implemented mask mandates.

Cardona said in the letter that school districts had received COVID-19 relief funds to use for “contact tracing, implementing indoor masking policies, or other policies aligned with CDC guidance” and that the federal government was monitoring whether the state’s ban was in line with fiscal requirements attached to those funds. Texas has received $18 billion for public schools in COVID-19 relief dollars from the federal government and has already released $11 billion of it to the districts to spend.

Hard to know exactly what this means right now. Most likely, we’ll learn more in the coming days, and this is just an early flare to give some warning that stuff is about to happen. There needs to be a clear statement about what is expected, and what will happen if a state isn’t living up to it. As with the school districts defying Abbott on his mask mandate ban, if there’s no known mechanism of enforcement, it’s all voluntary. As I noted yesterday, the Biden administration can also get involved with the lawsuit filed by Disability Rights Texas, but that’s independent of whatever this will be. I want ’em both, and the sooner the better.

Fort Bend joins the lawsuit parade

Come on in, the water’s fine.

As the Delta variant drives a pandemic surge, Fort Bend County officials on Wednesday filed a lawsuit against Gov. Greg Abbott’s executive order banning local government from implementing public health mandates.

“I’ll do all I can to protect the public health, and the people of Fort Bend County,” Judge KP George tweeted. “I hope others will join me in following the science and listening to local doctors and the CDC to act swiftly and decisively.”

The county filed a lawsuit in district court requesting a temporary restraining order to challenge the Republican governor’s order. George, a Democrat, and other county leaders had scheduled a news conference for Wednesday afternoon.

County commissioners met in a closed special session at 3 p.m. Wednesday to deliberate with an attorney and discuss potential responses to rising COVID-19 infections, according to the meeting agenda.

The story has no further detail, so I will just assume this is along similar lines as the others so far.

We now have our first official response from the powers that be, and as one might expect, it’s arrogant and jerky.

Attorney General Ken Paxton said Wednesday he plans to appeal a pair of rulings by judges in Dallas and San Antonio that allow local officials in those cities to issue mask mandates, with possible decisions from the Texas Supreme Court by the end of the week.

The temporary rulings override Gov. Greg Abbott’s May executive order that bars local officials from requiring face coverings. They came in response to legal challenges from top elected officials in the Dallas and San Antonio areas, who argued Abbott overstepped his emergency powers by preventing the local mandates. The rulings also pointed to a rapid ongoing rise in COVID hospitalizations across the state, particularly in large cities.

Paxton said Wednesday he expects a quick ruling in his favor from the state’s top civil court.

“I’m hopeful by the end of the week or at least early next week we’ll have a response from the Texas Supreme Court,” Paxton told conservative radio host Dana Loesch. “I’m going to tell you right now, I’m pretty confident we’re going to win that.”

[…]

Paxton argued on the talk show Wednesday that the Texas Legislature had granted Abbott the power to ban local COVID restrictions, including mask mandates, through the sweeping Texas Disaster Act of 1975. He also downplayed the early court win by Jenkins.

“The reality is, he’s going to lose,” Paxton said. “He may get a liberal judge in Dallas County to rule in his favor, but ultimately I think we have a Texas Supreme Court that will follow the law. They have in the past.”

We’ll see about that. For what it’s worth, there was one Republican district court judge in Fort Bend who wasn’t challenged in 2018, so there’s at least a chance that he could preside over this case. The crux of the argument here is that it’s Greg Abbott who isn’t following the law. I agree with Paxton that the Supreme Court is going to be very inclined to see it Abbott’s way, but I’d like to think they’ll at least take the plaintiffs’ arguments into account.

Later in the day, we got the first words from Abbott as well.

“The rebellion is spreading across the state,” Bexar County Judge Nelson Wolff said.

Abbott — under intense pressure from some on his right to hold the line against local officials who want to require masks — now is trying to quell that rebellion.

Hours after Jenkins signed his mandate, Abbott and Attorney General Ken Paxton announced they would go to court to block Dallas County’s top official — asking the 5th Court of Appeals to overturn the state district judge’s decision that allowed Jenkins to move forward. The two men threatened to sue any government official who defies Abbott’s order.

“The path forward relies on personal responsibility — not government mandates,” Abbott said in a statement.

Yeah, that’s what has gotten us to this situation in the first place. I will confess that I’m surprised it has taken this long for Abbott to speak up. He’s never been shy about quashing dissent, and as this story notes the right wing scream machine has been fulminating about his lack of action. Those days are clearly now over.

We got another peek at the state’s response in this story about the larger revolt by cities and school districts against Abbott’s mask mandate ban.

At a hearing Tuesday afternoon before state District Judge Antonia “Toni” Arteaga, a city attorney argued that Abbott had exceeded the bounds of the Texas Disaster Act of 1975, which the governor cited in suspending local authority to impose COVID restrictions.

“The Texas Legislature has given cities and counties broad authority within the Texas Health and Safety Act,” said Assistant City Attorney Bill Christian. “Only the Legislature has the authority to suspend laws.”

Kimberly Gdula, a lawyer with the Texas Attorney General’s Office, pointed to an appellate court ruling last November that upheld Abbott’s ban on local business restrictions. She also argued that the city and county were asking the court to improperly “throw out” parts of the Disaster Act.

Interesting, but I don’t know how to evaluate it. When there are some actual opinions and not just temporary restraining orders pending the injunction hearings, we’ll know more.

It’s possible there may be another avenue to explore in all this.

President Joe Biden says the White House is “checking” on whether he has the power to intervene in states like Texas where Republican leaders have banned mask mandates.

Asked whether he has the power to step in, Biden responded: “I don’t believe that I do thus far. We’re checking that.”

“I think that people should understand, seeing little kids — I mean, four, five, six years old — in hospitals, on ventilators, and some of them passing — not many, but some of them passing — it’s almost, I mean, it’s just — well, I should not characterize beyond that,” Biden said.

[…]

White House Press Secretary Jen Psaki said Wednesday the administration is “looking into ways we can help the leaders at the local level who are putting public health first continue to do their jobs.” She said those include efforts to “keep students safe and keep students in school” and that the U.S. Department of Education “and others” are working on it.

Insert shrug emoji here. I don’t know what this might look like, but I believe they will be creative in looking for a possible point of leverage.

Finally, on a side note, Fort Worth ISD implemented a mask mandate on Tuesday. We are still waiting for HISD to vote on the request by Superintendent Millard House to implement one for our district. The Board meeting is today, I expect this to be done with little fuss from the trustees.

More federal stimulus money for education coming

Good.

Texas soon will receive another $4.1 billion in federal stimulus money to address the post-pandemic needs of public school students, many of whom fell behind academically during months of remote learning.

The funding comes come as the U.S. Department of Education announced Wednesday that it has approved Texas’ plans for spending $12.4 billion allocated to the state. The state’s plan was among the first proposals to receive approval from the federal government. While some of the money will be spent on improving academics, the funding also aims to address student inequities that were worsened by the pandemic, as well as kids’ social and emotional needs.

The Texas Education Agency’s plan calls for mitigating learning loss as a top priority. The agency estimates students in the state lost an average of 5.7 months of learning last school year. Meeting student and staff mental health needs, expanded tutoring, high-quality instructional materials and job-embedded learning are included in the plan.

“The approval of these plans enables states to receive vital, additional American Rescue Plan funds to quickly and safely reopen schools for full-time, in-person learning; meet students’ academic, social, emotional, and mental health needs; and address disparities in access to educational opportunity that were exacerbated by the coronavirus pandemic,” Secretary of Education Miguel Cardona said in a news release.

We have all the evidence we need to know how vital this is. The next year or more has to be about getting kids back up to where they would have been without the disruption of the pandemic. Their future depends on it.

Where are the stimulus funds for the schools?

Ridiculous.

For more than a year, the federal government has been pumping billions of dollars into school districts across the country to help them meet the demands of the pandemic. Most states have used that pot of stimulus funds as Congress intended: buying personal protective equipment for students and teachers, laptops for kids learning from home, improved ventilation systems for school buildings to prevent virus transmission and covering other costs.

But in Texas, local schools have yet to see an extra dime from the more than $19 billion in federal stimulus money given to the state. After Congress passed the first stimulus bill last year, officials used the state’s $1.3 billion education share to fill other holes in the state budget, leaving public schools with few additional resources to pay for the costs of the pandemic.

Now, educators and advocacy groups worry that the state could do the same thing with the remaining $17.9 billion in funding for Texas public schools from the other two stimulus packages. Because of federal requirements, Texas has to invest over $1 billion of the state’s own budget in higher education to receive the third round of stimulus funding for K-12 public schools. Experts said the state has applied for a waiver to avoid sending that added money to higher education, but the process has caused major delays in local districts receiving funds they desperately need.

“Principals’ budgets are being eaten up with personal protective equipment, with tutoring, with trying to get kids back engaged, while the Legislature is sitting on a whole bunch of money,” said Michelle Smith, the vice president of policy and advocacy for Raise Your Hand Texas. “And that will have an impact on our school districts not just this school year, but for several school years to come.”

A spokesperson for Gov. Greg Abbott told The Texas Tribune that state leaders are waiting for more guidance from the U.S. Department of Education before opening the spigot and letting billions flow down to school districts.

Because of the state’s waiver request, Texas lawmakers likely will not decide how to parcel out the money until they either hear back from Washington D.C., or until the Legislature finalizes its plans for the state budget. But the waiver only applies to the latest stimulus package, so the state could unlock $5.5 billion for education from the second relief bill at any time.

Libby Cohen, the director of advocacy and outreach for Raise Your Hand Texas, said dozens of states are already sending these federal dollars to public schools, and the most recent stimulus package also includes guidance on how to use that money. Texas and New York are the only two states that have provided no additional funding to public schools during the pandemic, according to Laura Yeager, a founder of Just Fund It TX.

“We find it baffling that Texas is pumping the brakes on this particular issue to the extent that it is,” Cohen said. “The dollars are there … and districts need to know if and when they’re coming because they’re writing their budgets right now, and they’re making decisions about summer programming right now.”

Many Texas teachers and administrators say they need money now, and want the Legislature to start funneling the federal funds to school districts as soon as possible.

But state lawmakers holding the most power over budgeting and education funding want the Legislature, instead of local school districts, to decide what to do with these federal stimulus dollars.

“The federal funds will ultimately get to school districts but the overriding question is how should these funds be spent and who should make that decision?” said Rep. Harold Dutton, D-Houston chair of the House Public Education Committee. “I think the primary obligation for educating Texas children vests in the Legislature according to the Texas Constitution.”

I can accept that the Legislature should have oversight of this process, but I don’t accept that they must play the part of approving each allocation. All that does is put a bottleneck on things, at a time when the schools need the funds now. More to the point, it’s not even clear that it will be the Lege making these decisions:

I see even less point to that. There’s a lot of money at stake, not all for the schools, and it makes sense to want to ensure it’s being spent for its intended purposes. But it doesn’t make sense to sit on it and take a lot of time figuring that out, because that money is needed now, especially the money for schools and students.

One more thing to consider: Rising property values, which have fueled an increase in local property tax revenues, have already been used by the Legislature to pay for other things.

Because of the way public schools are funded, a rise in local property tax revenue means the state doesn’t have to send as much money to local school districts. The schools would get the same amount as before — it’s not a budget cut — but the money that might have come from the state comes instead from local school property taxes.

This year, that amounts to $5.5 billion — most of it from property value increases. About 21% of that amount — $1.2 billion — comes from what the Legislative Budget Board called “lower-than-anticipated Average Daily Attendance rates, increased non-General Revenue Funds revenues, and federal Coronavirus Aid, Relief, and Economic Security (CARES) Act funding.”

In plain language, that’s a drop in the average number of students that school funding is based on, money that comes from sources other than state taxes and money from the first round of federal COVID-19 relief.

That last one is a sore spot for local officials, who see the state skimming from a pot of money that was supposed to go to public education. Here’s how that scam works: The money is still going to public education, but the amount the state would have sent is being reduced by the same amount, freeing the state to use money it would have used on schools on some other part of government.

The budgeteers’ word for that is “supplanting” — instead of getting the state money that was coming to them, with the federal money on top, the schools get the same amount of money they’d have received without any federal aid.

Give the schools their money already. There’s no more time to waste. The Chron has more.

Legislators call for no STAAR test this year

Fine by me, and very fine by my kids.

A bipartisan group of 68 Texas House representatives signed a letter calling on the Texas Education Agency to cancel the State of Texas Assessments of Academic Readiness exam or at minimum not use student scores to rate schools or districts this school year.

The letter, penned by Rep. Diego Bernal, D-San Antonio, asks that the state apply for waivers from the U.S. Department of Education to cancel the standardized test, which is administered to students in third through 12th grade.

Should the test still be administered during the coronavirus pandemic, it “should only serve as a diagnostic instrument to see where our students stand academically as opposed to an assessment instrument to determine district and campus sanctions,” the lawmakers wrote in the letter.

The letter is addressed to TEA Commissioner Mike Morath, but it’s “just as much a letter to the governor,” Bernal said in an interview, adding that Gov. Greg Abbott “very easily could call the play to change the landscape right now.”

“If we take our time talking to educators — not administrators — but educators, counselors, parents and students, of course, that the last thing they all need right now is the extra and added stress of STAAR,” Bernal said.

You can see a copy of the letter and its signatories here, and a late addition here. As you may recall, the STAAR test was waived last spring at Greg Abbott’s order. The Chron adds some details.

The federal government and Texas Legislature set broad frameworks for testing and accountability, while the TEA fills in many details for the state. Texas did not administer STAAR in the spring of this year after the TEA sought and received a federal waiver because of the pandemic, which forced the abrupt shutdown of all public schools in March.

The U.S. Department of Education has not decided whether it will grant similar waivers in 2021. The decision likely will rest with President-Elect Joe Biden’s new administration, which has not yet taken a firm stance on the issue.

At a State Board of Education meeting Wednesday, Morath said the state plans to apply for waivers related to student participation rate requirements, which essentially punish districts when some children do not take exams. However, he did not commit to canceling the exam or outline potential changes to the state’s A-through-F accountability rating system.

“I think there’s still a lot of question as to how we might pursue this,” Morath said. “We’ve got 10 or so different options, as it were, to consider. No final decision has been made as we gather feedback from folks.”

If Texas education officials move forward with STAAR in the spring, the group of 68 state representatives wants the TEA to set aside its traditional campus and district accountability framework.

“At most, any administration of the STAAR exam during the 2020-2021 school year should only serve as a diagnostic instrument to see where our students stand academically, as opposed to an assessment instrument to determine district and campus sanctions under the current A-F accountability system,” the legislators wrote.

The letter echoes some of the arguments made in recent months by educator organizations and unions, which lobbied against high-stakes standardized testing before the pandemic. Texas State Teachers Association President Ovidia Molina said STAAR testing “should be the last priority” in schools.

“Our students, educators and their families can’t afford the distraction of STAAR as they struggle to stay safe and continue to adjust to new methods of teaching and learning,” Molina said in a statement Wednesday.

I mean, this entire year has been at best a struggle for many, many students. I don’t see the point in making it any harder on them. Ditch the STAAR until things are back to normal.

STAAR testing waived

This had to happen, given everything else.

In an unprecedented move, Gov. Greg Abbott announced Monday he would waive testing requirements for this year’s STAAR exam, as many schools expect to be closed at least through the April testing window, due to the new coronavirus.

He also said he would ask the federal government to waive this year’s federal standardized testing requirements, which apply to all states. According to the state, as of Sunday afternoon, 569 school districts had announced closures due to coronavirus concerns. Texas is not alone, since more than 30 states have closed schools due to coronavirus, affecting at least 30 million public school students nationwide.

The federal government has previously said it might give out targeted waivers from testing for areas where the COVID-19 disease has had significant impact.

The state will not mandate that districts offer the exam, but some superintendents may want the test data to see how their students are doing, according to the TEA. Agency officials are working to support those school districts, if necessary.

[…]

State leaders are giving schools more leeway than they have in the past, showing the increasing seriousness surrounding the COVID-19 disease.

When Hurricane Harvey decimated Houston-area and Coastal Bend communities in 2017, [TEA Commissioner Mike] Morath hesitated to give them a break on testing or accountability requirements, arguing that doing so would harm student learning. He argued that getting rid of state testing requirements would violate federal requirements and put federal funding at risk.

Eventually he agreed not to hold poor STAAR results against schools and districts, though he did not waive the requirement that they test students.

“Accountability results have been waived for Hurricane Katrina, Hurricane Ike, Hurricane Harvey. But never has testing itself been waived,” said Dee Carney, a longtime school accountability consultant in Texas. “It’s absolutely an unprecedented event requiring extraordinary measures of our schools and our teachers and our communities.”

It is not clear exactly what the implications are for students who need to take certain state tests in order to graduate from high school or move on to the next grade. Morath said he would send more specific guidance on student testing and school accountability this week, likely before Thursday.

So three things here. One, given the likely closure of schools through the rest of the academic year, this was basically inevitable. There’s too much disruption, and the test results would be essentially meaningless. Which was the same argument lots of people made following Harvey in 2017, but this time the message was received. Two, this is going to be a months-long, if not years-long, experiment in unprecedented actions and figuring things out as we go, because what else can we do? And three, we just may find out that some of the things we’d been doing all along we can do without, or do differently, and some things we’d never done before become new habits. That’s what happens with big disruptions. Maybe one result of all this is we’ll completely re-evaluate the need for high-stakes testing like we have now. Or maybe we’ll decide we need even more of it. I don’t know what will happen, but I’ll bet that five years from now when we look back on all this, we’ll be amazed at how different things became.

Who’s to blame for the special education limits

The Lege gets a finger pointed at it.

After a federal report blasted Texas for failing kids with disabilities, educators and public education advocates are pointing the finger directly at state legislators who, they argue, first suggested capping special education to keep costs low.

The U.S. Department of Education last week released a monitoring report, after a 15-month investigation, finding that the Texas Education Agency effectively capped the statewide percentage of students who could receive special education services and incentivized school districts to deny services to eligible students. Gov. Greg Abbott released a statement soon after that criticized local school districts for their “dereliction of duty” in failing to serve students — which touched a nerve for educators.

“We weren’t derelict: the state of Texas was derelict, the Texas Education Agency was derelict,” said HD Chambers, superintendent of Alief ISD and president of the Texas School Alliance, an advocacy group. “We were following what they put in place.”

In a statement sent to TEA and Abbott on Sunday, the Texas School Alliance and school administrator groups dated the creation of a special education cap back to a 2004 Texas House Public Education Committee interim report, which surveyed how other states fund special education and which made recommendations to the Legislature for how to discourage identifying too many students with disabilities.

[…]

The committee’s report recommended the Legislature “determine what aspects of our current funding mechanism for special education encourage overidentification; and then investigate alternative methods for funding special education that decrease any incentives to overidentify students as needing special education services.”

It also recommended reducing state and local administrative costs in overseeing special education in order to direct more money to students with disabilities.

That same year, TEA implemented a system to monitor and evaluate how school districts were serving kids with disabilities. The percentage of students with disabilities served plunged from 11.6 percent in 2004 to 8.6 percent in 2016. The U.S. Department of Education found last week that the agency was more likely to intervene in school districts that provided services for more students with disabilities, incentivizing administrators to cut back on services.

Chambers was a central office administrator at Cypress-Fairbanks ISD in 2004 and recalls receiving direct and indirect instruction from the state to serve fewer students. “We were under the impression that we were out of compliance if we were identifying more than 8.5 percent of our population,” he said.

See here for past blogging on the topic, and here for the Trib story on the federal report. I will note that the Chair of the House Public Education Committee at the time of the 2004 interim report was none other then Kent Grusendorf, a man who was so anti-public education that he was basically the inspiration for (and first real victory won by) the Texas Parent PAC. So yeah, I have no trouble believing this. As to when it might get fixed, that’s a topic for November.

Bathroom bills are floundering

Good.

Bills to curtail transgender people’s access to public restrooms are pending in about a dozen states, but even in conservative bastions such as Texas and Arkansas they may be doomed by high-powered opposition.

The bills have taken on a new significance this week following the decision by President Donald Trump’s administration to revoke an Obama-era federal directive instructing public schools to let transgender students use bathrooms and locker rooms of their chosen gender. Many conservative leaders hailed the assertions by top Trump appointees that the issue was best handled at the state and local level.

Yet at the state level, bills that would limit transgender bathroom access are floundering even though nearly all have surfaced in Republican-controlled legislatures that share common ground politically with Trump. In none of the states with pending bills does passage seem assured; there’s been vigorous opposition from business groups and a notable lack of support from several GOP governors.

The chief reason, according to transgender-rights leaders, is the backlash that hit North Carolina after its legislature approved a bill in March 2016 requiring transgender people to use public restrooms that correspond to the sex on their birth certificates. Several major sports organizations shifted events away from North Carolina, and businesses such as PayPal decided not to expand in the state. In November, Republican Pat McCrory, who signed and defended the bill, became the only incumbent governor to lose in the general election.

[…]

National LGBT-rights groups are closely monitoring the fluctuations, recalling how North Carolina politicians took activists by surprise last year when they passed the divisive bathroom bill in a fast-paced special session.

“That experience makes us very wary about when and how legislation will move,” said Sarah Warbelow, legal director of the Human Rights Campaign. “On the other hand, the American public has been incredibly vocal against these bills… so we’re hopeful that legislators have learned a lesson from North Carolina.”

Even if all the new bathroom bills fail, Warbelow said activists will continue to push for explicit and effective federal protections for transgender students — protections have been undercut by this week’s revocation of the Obama-era guidance.

In addition to Arkansas, I counted fourteen other states where legislators have tried or are trying to pass a North Carolina-like bill, though none of the ones that are trying are getting any traction. The fact that states like South Dakota and Kentucky have explicitly rejected such bills should give you some idea of how far out on a limb Texas would be if we follow Dan Patrick and pass SB6. All these other states saw what happened in North Carolina, and they have stepped back from the abyss. Are we really dumber than they all are? Call Dan Patrick’s office, as so many others have, and ask him that.

Trump Justice Department to drop appeals in transgender bathroom directive case

From ThinkProgress:

The Trump administration has elected not to contest a Texas federal judge’s injunction barring the federal government from implementing Obama administration guidelines that protect transgender kids in schools.

Oral arguments for the Obama Justice Department’s appeal of the judge’s decision were scheduled for Tuesday. The DOJ cancelled them in a legal brief submitted Friday.

“Defendants-appellants hereby withdraw their pending November 23, 2016 motion for partial stay pending appeal,” the brief says. “The parties jointly move to remove from the Court’s calendar the February 14, 2017 oral argument currently scheduled for that motion. The parties are currently considering how best to proceed.”

That brief was filed the day after Jeff Sessions was sworn in as Attorney General.

As ThinkProgress reported last August, the Obama administration’s guidance “stated that Title IX’s nondiscrimination protections on the basis of ‘sex’ protect transgender students in accordance with their gender identity, such that they must be allowed to use the bathrooms and play on sports teams that match their gender.” But the brief filed Friday signals that the Trump administration no longer wants to implement that guidance.

See here, here, and here for the background. I suppose some other group could try to enter the proceedings at this point in place of the feds, but there’s nothing to stop Dear Leader from rescinding this executive order, which would moot the whole thing. We’re clearly not going to move forward in the next few years, so we’re going to have to fight to not move back.

Feds officially file appeal in transgender bathroom directive lawsuit

This may be the last stop.

With two weeks left, the Obama administration has asked a federal appeals court to throw out a lower court’s decision that suspended policies designed to protect transgender people’s access to restrooms — a sign the current leadership of the Justice Department will close shop mid-fight on one of its signature LGBT issues.

Federal lawyers said in a brief filed Friday with the US Court of Appeals for the Fifth Circuit that the previous ruling was incorrect and overly broad.

[…]

With their remedies waning in the lower court — and time running out — the Justice Department’s Civil Division made three arguments to the Fifth Circuit.

The Justice Department said the case is not ripe for judicial review because the government did not violate the Administrative Procedure Act, as Texas and the other states claimed. The guidance for schools and workplaces are not final acts by any agency, the appeal says, and therefore did not require a rule-making process under the APA.

Federal lawyers further contend the states lack standing to bring the case because they “can ignore [the guidance] without legal consequence.” They note that enforcement stems from civil rights laws, not the guidance itself. In the past, the states have bristled at that argument, noting in briefs and oral arguments that the government cited the guidance when threatening to sue school districts that banned transgender students from certain facilities.

Finally, the Justice Department argues that the lower court, under Judge O’Connor, erred by ruling too broadly. O’Connor did so by in applying the injunction nationwide, rather than just within the states that brought the lawsuit, the government lawyers say.

See here and here for the background. As Kerry Eleveld notes, Judge O’Connor cited the fact that this directive did not go through the federal rule-making process in his injunction against it, but other directives, including the health directive that O’Connor also injuncted, did go through that process. As always, it sucks to have to depend on the Fifth Circuit for anything, but there’s not much choice. We’ll see what happens.

Another take on the potty drama

Ross Ramsey plunges in, and no I don’t regret that at all.

Gov. Greg Abbott wants lawmakers to take a bathroom break, and you can’t blame him for trying to find relief.

The next legislative session hasn’t even started and regulation of which restrooms transgender Texans use is getting the kind of attention usually reserved for taxes and immigration.

Abbott told reporters last week that he wants to wait and see what lawmakers come up with before he’ll take a position. At a forum last month, House Speaker Joe Straus downplayed the issue in a different way, saying it’s not “the most urgent concern of mine.”

If those two officials sounded mild to untrained ears, they were perfectly clear to those with political antennae. Their intended audience knows that this issue is not on the fast track some in their party want it to be on.

A slowdown might turn the bathroom fight to the back burner. Republicans attribute it to a directive from the federal Department of Education on how school districts should deal with the needs of transgender students.

Abbott doesn’t like the federal directive and tweeted his support for the state’s challenge to it early last summer.

But he is unwilling, at this point, to endorse legislative efforts to remedy the situation. The policy questions around facilities and transgender people are complicated and the politics are gnarly.

[…]

It’s always possible that the incoming Republican administration in Washington will retract that initial federal directive and remove the declared reason for state action — the kind of bureaucratic “never mind” that could ease the political pressure for new laws.

The courts might take care of that for them. A federal judge in Texas already put the federal rules on hold, saying the feds didn’t jump through the right hoops when putting the regulation into effect. The Obama administration is appealing that ruling.

It is already clear that the drum major at the front of this particular parade in Texas — Patrick — is trying different variations of a transgender bathroom bill to find an acceptable option. Sen.-elect Dawn Buckingham, R-Lake Travis, said earlier this month that “my understanding is the businesses, the sporting venues, will not be affected by this law” — i.e. the bill could be limited to schools and other public buildings.

That might solve some problems. But the North Carolina law was aimed only at public buildings and still ran into opposition from businesses and from sports groups like the NCAA and the NBA.

A lot of this is stuff that we’ve talked about before. I’m glad to see someone other than me read the Buckingham and Abbott statements as showing the effect of business lobby arm-twisting, though I remain concerned that those folks will cut and run at their first opportunity to declare victory. But it seems clear now that they are making a difference, and that’s all to the good. Those of us who want to see this dead and buried and not just neutralized need to keep the pressure on to make that happen.

Abbott says something about bathrooms

Typically wishy-washy of him.

Gov. Greg Abbott is adopting a wait-and-see approach about anticipated legislation that would prohibit transgender people in Texas from using the bathroom that corresponds with their gender identity.

“I have not seen any proposed legislation yet,” a characteristically cautious Abbott told reporters Tuesday at the Capitol. He added that there are still a number of things unknown that could determine the need for such a bill.

Among those variables, Abbott said, is the legal challenge to President Barack Obama’s guidelines directing public schools to accommodate transgender students. The incoming administration of GOP President-elect Donald Trump could bring an end to that dispute, which was an impetus for the push for a so-called “bathroom bill” in Texas.

While such legislation has not been released yet in Texas, business leaders have already lined up to voice their opposition, worried it could scare off investment in the same way a similar proposal did in North Carolina. Asked about those concerns, Abbott said his goal heading into this session is “ensuring the safety and security of the people of Texas.”

“We are in the information-gathering stage right now,” Abbott told reporters when pressed on his views about a potential bathroom bill.

Whatever. This is basically of a piece with the Buckingham statement that may or may not have represented a tentative stepping back from the original intent of the Patrick potty bill, but let’s be clear that the impetus for this was not school bathrooms but the HERO fight and the recognition that whipping up a frenzy against the transgender community struck a chord with GOP base voters. It’s only now that the business community has kicked up a fuss, much to Patrick’s disgust, that some Republicans are maybe, possibly, could be dialing it back just a bit. I remain dubious, but there does appear to a change in rhetoric, and it is worth noting. But let’s not lose sight of what this was always all about, and what Dan Patrick and his fellow travelers still want it to be all about. They may settle for something smaller this session if they feel they have to, but that doesn’t mean they’ll be satisfied if it happens.

By the way, the embedded image comes from this Gray Matters post by Cort McMurray, in which he demonstrates his facility for inventing potty-based nicknames for Dan Patrick. You should definitely read it.

Here’s your chance to give feedback on special education

The feds are coming to Texas to hear what you have to say about it.

The U.S. Department of Education is sending representatives to tour Texas and take comment from school community members on special education, continuing to look at whether the state is denying services to students with disabilities.

Representatives from the Office of Special Education and Rehabilitative Services will join Texas Education Agency officials for “listening sessions” in five Texas cities between Dec. 12 and 15.

[…]

“The sessions provide members of the public an opportunity to comment on the timely identification and evaluation of students with disabilities, as well as the delivery of special education and related services to all eligible children under the Individuals with Disabilities Education Act, or IDEA,” the advisory reads.

The federal department is also collecting comment on a blog for those who cannot attend any of the listening sessions.

Officials from the Texas Education Agency have been planning the listening sessions with the federal government, working with regional Education Service Centers to secure meeting sites for the five stops, said agency spokeswoman Lauren Callahan.

“The listening sessions parallel with our ongoing efforts on the state level to continue to get feedback on this important issue,” she wrote in an email to The Texas Tribune. “As a result, TEA will have representatives at each stop.”

See here for previous blogging on this topic. I don’t have anything to add beyond saying that this is a great opportunity to be heard and to make sure there is pressure on the TEA and the Legislature to get this right.

Two more lawsuit updates

The ban on the transgender bathroom rule remains in place pending appeals.

RedEquality

Continued lack of access in public schools to bathrooms matching transgender persons’ gender identity won’t cause them irreparable harm, a Texas federal judge has ruled.

U.S. District Reed O’Connor of Wichita Falls, Texas, made that finding Sunday in ruling against two federal executive branch departments.

O’Connor concluded the U.S. Department of Justice and the Department of Education had failed to show they will suffer irreparable injury if he allows to continue his nationwide ban on their policy for allowing transgender people in public schools access to the bathrooms assigned to the gender with which they self-identify.

The federal statutes prohibiting discrimination on the basis of “sex”—the scope and meaning of which the federal government agencies claim now includes gender identity—were promulgated nearly 40 years ago, O’Connor wrote.

He referred specifically to the time gap between the passage of Title IX of the Education Amendments of 1972 and Title VII of the Civil Rights Act of 1964 and May this year when the federal agencies announced their new transgender bathroom guidelines for public schools. “[T]he Court views this delay as strong evidence that Defendants will suffer no irreparable injury if a stay is denied and enforcement of the [federal agencies’] guidelines delayed until their legality is established,” O’Connor wrote.

See here for the background. I’m sure no one suffered any injury at all during the time between the passage of Title IX and the much more recent recognition of transgender people as actual human beings.

The litigation over the Obama Administration executive order on immigration will be on hold until next year.

The first major litigation effect of the election of Donald Trump took place in a Texas federal district court Friday when the lawyers in the case against the Obama administration’s plan to delay deportation of millions of undocumented immigrants asked the judge to postpone proceedings until Feb. 20.

“Given the change in administration, the parties jointly submit that a brief stay of any further litigation … would serve judicial efficiency and economy so that the parties have a better understanding of how they might choose to move forward,” U.S. Justice Department lawyers wrote in the filing.

[…]

The injunction will remain in place if the judge grants the motion to stay the proceedings. President-elect Trump would have the option of ending the litigation after his inauguration by withdrawing the guidance that authorized the deportation delays.

SCOTUS had declined to intervene in the appeal of the original ruling that halted this order nationwide, so here we are. Both of these cases involve non-legislative action – an executive order in this case, and an updated administrative guideline from the Department of Education in the other – and so in some sense the litigation doesn’t matter, since both of those actions can and almost certainly will be reversed by the next President. I would imagine that once that happens, the Attorneys General who filed these suits will withdraw them. Such will be life for the next four years.

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.

Feds to appeal transgender bathroom directive

Good.

RedEquality

The U.S. Department of Justice (DOJ) plans to appeal a Texas judge’s injunctionbarring the Obama administration from implementing guidelines aimed at protecting transgender students against discrimination.

DOJ attorneys announced in court documents Friday that they’ll file formal notice that they’re appealing the injunction to the 5th U.S. Circuit Court of Appeals on or before October 20.

U.S. District Judge Reed O’Connor issued the nationwide preliminary injunction in August, in response to a request from the Texas Attorney General’s Office, which is challenging the guidelines on behalf of more than a dozen states.

“DOJ has a number of strong procedural arguments,” said Ken Upton, senior counsel at the LGBT civil rights group Lambda Legal. “It will be interesting to see what the 5th Circuit does.”

[…]

Upton said it could be March or April before the 5th Circuit rules on whether to overturn the injunction. But as soon as the notice of appeal has been filed, the DOJ can request that the injunction be placed on hold while the 5th Circuit considers the case — a request that could be granted within weeks. If the DOJ obtains a stay of the injunction, the Obama administration could resume implementing the guidance.

A request for a stay of the injunction would first have to go to O’Connor, who would be likely to deny it, Upton said. But the DOJ could then request a stay from the 5th Circuit and, if necessary, the U.S. Supreme Court.

“Given the way the injunction binds the government agencies and DOJ, I think there is a good chance they might get a stay,” Upton said.

After O’Connor issued the injunction, DOJ attorneys filed a motion requesting that he clarify its scope. O’Connor heard arguments on the motion September 30 but has not yet ruled. The DOJ had requested that O’Connor do so by October 3.

Upton said he believes Friday’s filing — in which the DOJ announced it plans to file a notice of appeal this week — was intended “to nudge the judge to rule on the clarification motion before their appeal time runs out on October 20.”

“I think you could call it a friendly reminder that if he doesn’t rule by Thursday he’s going to lose jurisdiction of the case and it’s going to the 5th Circuit as is,” Upton said.

See here for the background. On Thursday, they followed through.

Federal officials say they will ask the U.S. 5th Circuit Court of Appeals to overturn an injunction issued by Fort Worth-based U.S. District Judge Reed O’Connor. On Tuesday, O’Connor reaffirmed that his ruling blocking the guidelines applied nationwide, not just in the 13 states that filed suit against the federal government.

O’Connor issued the original ruling in August on the same day millions of Texas children headed back to school, preventing the federal government from enforcing the guidelines as the case went through the courts.

In a 38-page order, O’Connor sided with Texas and 12 other states challenging the federal directive, saying the “status quo” should remain in place nationwide until the court rules on the case, or a federal appeals court provides further guidance, because the administration had not followed proper rule-making procedure in crafting the guidelines.

O’Connor did not, however, rule on the merits of the case, noting “the resolution of this difficult policy decision is not … the subject of this order.”

See here for more on the affirmation that the ruling was intended to be nationwide. It’s always dicey having to put one’s faith in the Fifth Circuit doing the right thing, but this is where we are, and the stakes are high. I suppose even if the Fifth Circuit fails to stop the madness, another lawsuit in a different circuit might generate a conflicting opinion, which would force SCOTUS to get involved sooner than I’m sure it wants to. Trail Blazers and Daily Kos have more.

Feds intervene in Texas special education mess

Good.

The federal government on Monday ordered Texas state officials to eliminate an 8.5 percent benchmark on special education enrollment enforced in the state’s 1,200 school districts unless they can show that it had not kept children with disabilities from receiving appropriate educational services.

The U.S. Department of Education directed the state to report back in 30 days on the benchmark’s impact and on which school districts across the state may have relied on it to deny special education services to children. Its findings on those districts should include “the specific steps the State will take to remedy the effect of such past practices,” the department said.

“It appears that the State’s approach to monitoring local educational agency compliance … may be resulting in districts’ failure to identify and evaluate all students suspected of having a disability and who need special education,” Sue Swenson, the department’s acting assistant secretary for special education, wrote in a three-page letter to Mike Morath, head of the Texas Education Agency.

“Depending on TEA’s response,” Swenson wrote, the federal government “will determine whether additional monitoring activities or other administrative enforcement or corrective actions are necessary.”

The TEA, which has denied that children with disabilities have been kept out of special education but has promised to review the issue, said in a statement that it “welcomes the opportunity” to discuss its policies.

[…]

Since 1975, federal law has mandated that public schools provide specialized education services to all eligible children with any type of disability.

TEA officials have said state-by-state comparisons are inappropriate and have attributed the dramatic declines to new teaching techniques that they say have lowered the number of children with “learning disabilities,” such as dyslexia.

In response to criticism from lawmakers, school board members, superintendents, advocates and parents, the TEA also has said the policy was adopted in response to a federal effort to reduce over-representation in special education.

Swenson’s letter disclosed that Texas and the U.S. Department of Education have previously discussed the target, in 2014. In that exchange, according to the letter, TEA special education director Eugene Lenz said the districts that exceeded 8.5 percent were not penalized but merely monitored to ensure compliance with the law. He also assured the federal government that the state ensures that all children with disabilities get services.

“However, the information presented in the Chronicle’s investigative article raises serious questions about Texas’s compliance” with federal law and about “the implementation of the approaches Texas described to (the U.S. Department of Education) in 2014,” Swenson wrote. “According to information in the article, some districts view the 8.5 percent (benchmark) as a cap on the number of children with disabilities that may be identified in a district, and in some instances if a district exceeds the cap, the district will be required to develop a corrective action plan demonstrating how it will reduce its special education identification rate.”

See here, here, and here for the background. One wonders if the appearance of the feds will finally stir Greg Abbott to action. Will he bravely defend the TEA’s secret administrative rules from federal interference, or will he maintain radio silence? I’m sure he’s making the political calculations about what he needs to oppose now. Until then, we’ll see how the TEA responds. The Current has more.

Some officials take note of special education funding restrictions

It’s a start.

The vice chairman of the State Board of Education, a Houston school board member, a key state senator and scores of parents and disability advocates all expressed strong opposition on Monday to a Texas Education Agency performance-based monitoring system that has kept thousands of disabled children out of special education since 2004.

[…]

Thomas Ratliff, a Mount Pleasant Republican who is the second-highest-ranking member of the State Board of Education, expressed dismay at TEA’s 8.5 percent special education target.

“It looks awfully arbitrary and in no way mirrors reality,” he said. “The concentric circles of damage that this has done I think is immeasurable at this point.”

State Sen. Eddie Lucio, the vice chair of the Senate Education Committee, called the issue an “utmost priority.”

“We have a constitutional duty and a moral obligation to provide all Texas children with the services that are required to ensure that every student can thrive academically,” said Lucio, D-Brownsville, echoing statements made by several of his Democratic colleagues in the Legislature. “By urging schools to limit the number of students they enroll in special education services, our state is turning its back on students that need our help the most.”

[…]

Gene Acuña, a spokesman for the Texas Education Agency, declined further comment. Gov. Greg Abbott, Lt. Gov. Dan Patrick and House Speaker Joe Straus also declined comment.

Previously, former Gov. Rick Perry, during whose administration the 8.5 percent enrollment target was first put in place, declined to discuss the monitoring system.

In Washington, a U.S. Department of Education spokeswoman confirmed that her office was ready to take action, if needed, to ensure that children with disabilities get services.

“We are looking into it,” she said.

See here for the background. The headline on the story is “Officials vow to end limits put on special ed”, but let’s be honest. Until at least two of Greg Abbott, Dan Patrick, and Joe Straus make that vow, nothing is going to happen. Those three, as well as Rick “Dancing Terribly With The Stars” Perry, should not be allowed to “no comment” their way out of this for more than a few days, too. I greatly admire what the Chron has done with this story, but they need to call those three’s offices every day until they have some answers. The other news outlets in this state are more than welcome to get in on that action as well. In the meantime, I hope there’s more to report on, and I definitely hope to hear of some followup from the US Department of Education soon.

“Denied”

This is worth your time to read.

During the first week of school at Shadow Forest Elementary, a frail kindergartner named Roanin Walker had a meltdown at recess. Overwhelmed by the shrieking and giggling, he hid by the swings and then tried to escape the playground, hitting a classmate and biting a teacher before being restrained.

The principal called Roanin’s mother.

“There’s been an incident.”

Heidi Walker was frightened, but as she hurried to the Humble school that day in 2014, she felt strangely relieved.

She had warned school administrators months earlier that her 5-year-old had been diagnosed with a disability similar to autism. Now they would understand, she thought. Surely they would give him the therapy and counseling he needed.

Walker knew the law was on her side. Since 1975, Congress has required public schools in the United States to provide specialized education services to all eligible children with any type of disability.

But what she didn’t know is that in Texas, unelected state officials have quietly devised a system that has kept thousands of disabled kids like Roanin out of special education.

Over a decade ago, the officials arbitrarily decided what percentage of students should get special education services — 8.5 percent — and since then they have forced school districts to comply by strictly auditing those serving too many kids.

Their efforts, which started in 2004 but have never been publicly announced or explained, have saved the Texas Education Agency billions of dollars but denied vital supports to children with autism, attention deficit hyperactivity disorder, dyslexia, epilepsy, mental illnesses, speech impediments, traumatic brain injuries, even blindness and deafness, a Houston Chronicle investigation has found.

More than a dozen teachers and administrators from across the state told the Chronicle they have delayed or denied special education to disabled students in order to stay below the 8.5 percent benchmark. They revealed a variety of methods, from putting kids into a cheaper alternative program known as “Section 504” to persuading parents to pull their children out of public school altogether.

“We were basically told in a staff meeting that we needed to lower the number of kids in special ed at all costs,” said Jamie Womack Williams, who taught in the Tyler Independent School District until 2010. “It was all a numbers game.”

Texas is the only state that has ever set a target for special education enrollment, records show.

It has been remarkably effective.

In the years since its implementation, the rate of Texas kids receiving special education has plummeted from near the national average of 13 percent to the lowest in the country — by far.

In 2015, for the first time, it fell to exactly 8.5 percent.

If Texas provided services at the same rate as the rest of the U.S., 250,000 more kids would be getting critical services such as therapy, counseling and one-on-one tutoring.

“It’s extremely disturbing,” said longtime education advocate Jonathan Kozol, who described the policy as a cap on special education meant to save money.

“It’s completely incompatible with federal law,” Kozol said. “It looks as if they’re actually punishing districts that meet the needs of kids.”

Heidi Walker hoped that Humble school officials would help her son Roanin adapt and cope when he entered kindergarten.

In a statement, Texas Education Agency officials denied they had kept disabled students out of special education and said their guideline calling for enrollments of 8.5 percent was not a cap or a target but an “indicator” of performance by school districts. They said state-by-state comparisons were inappropriate and attributed the state’s dramatic declines in special educations enrollments to new teaching techniques that have lowered the number of children with “learning disabilities,” such as dyslexia.

In fact, despite the number of children affected, no one has studied Texas’ 32 percent drop in special education enrollment.

The Chronicle investigation included a survey of all 50 states, a review of records obtained from the federal government, state governments and three dozen school districts, and interviews with more than 300 experts, educators and parents.

The investigation found that the Texas Education Agency’s 8.5 percent enrollment target has led to the systematic denial of services by school districts to tens of thousands of families of every race and class across the state.

Among the findings:

• The benchmark has limited access to special education for children with virtually every type of disability. Texas schools now serve fewer kids with learning disabilities (46 percent lower than in 2004), emotional and mental illnesses (42 percent), orthopedic impairments (39 percent), speech impediments (27 percent), brain injuries (20 percent), hearing defects (15 percent) and visual problems (8 percent).

• Special education rates have fallen to the lowest levels in big cities, where the needs are greatest. Houston ISD and Dallas ISD provide special ed services to just 7.4 percent and 6.9 percent of students, respectively. By comparison, about 19 percent of kids in New York City get services. In all, among the 100 largest school districts in the U.S., only 10 serve fewer than 8.5 percent of their students. All 10 are in Texas.

• Students who don’t speak English at home have been hurt the most. Those children currently make up 17.9 percent of all students in Texas but only 15.4 percent of those in special education. That 15 percent difference is triple the gap that existed when the monitoring system began.

See here for the unebeddable charts that accompany the story, and be sure to read the whole thing, as it is well-reported and deeply infuriating. I had no idea any of this had been happening, and that’s despite knowing a couple of families who were directly affected by it. Now that this is out in the light, the next step is to try to pin down some elected officials and get them on the record about it. What do Greg Abbott and Dan Patrick think about this, and more importantly what if anything do they think needs to be done about it? Perhaps Rick Perry could spare a few minutes from his cha-cha practice to answer how his happened on his watch. Regardless of what answers we get, I hope the federal government opens a big ol’ probe of this practice, and comes down like a ton of bricks as needed. I don’t know what else the Chron has in store on this issue, but whatever it is, I look forward to it. Well done.

Paxton’s dinner with the Briggle family

So he did go, and he managed to behave himself.

Best mugshot ever

Best mugshot ever

Lots of preparation led up to the moment, but Amber and Adam Briggle still exchanged nervous looks when their doorbell rang about 6:30 p.m. Thursday.

“I was terrified,” Amber Briggle said.

They had invited Texas Attorney General Ken Paxton and his wife, Angela, to come over for dinner and spend a little time with them and their transgender son. The Briggles occupy a much different political space than Paxton, a conservative Republican who has opposed expanding civil rights for gay and transgender people.

A lot of the usual insecurities went through Amber Briggle’s mind — worrying about the food she prepared, whether she would spill her drink, what they would all talk about over dinner.

She needn’t have worried.

“Honestly, it was a very pleasant evening,” Amber Briggle said.

[…]

The Briggles called their invitation to Paxton an act of diplomacy. He has opposed gay marriage, and he is against the idea that transgender people be allowed to use a public restroom that corresponds to their gender identity.

The Briggles see the state’s latest political battle with the federal government over transgender civil rights as one that directly affects their child.

“I’m concerned that the lawsuit, and all these injunctions, and the legislation that’s coming our way is putting my son in danger,” Amber Briggle said.

Many families of transgender children don’t draw attention to themselves out of self-preservation. But that also feeds ignorance, the Briggles say.

They weren’t sure whether the Paxtons had ever knowingly met a transgender person before. The Briggles wanted to show that they are an ordinary Texas family and that they really aren’t alone.

[…]

The couple didn’t ask Paxton for anything specific in relation to the politics surrounding LGBT rights in Texas. Instead, they asked the attorney general to remember them and their son when considering future actions.

See here for the background. The Briggles are better people than I would be in this situation. I wish I could say that I believe Paxton will become a better, more empathetic person as a result of the Briggles’ hospitality, but alas, I can’t. I expect he won’t say, do, or feel anything different. Worth the effort, but this audience wasn’t ready to hear the message.

Paxton encourages schools to discriminate against transgender students

From the ACLU of Texas:

[Friday], the ACLU of Texas issued a letter to Texas school districts outlining their ongoing legal responsibility to provide transgender students access to educational opportunities and school facilities on the same basis as all other students. Yesterday, the State of Texas issued its own “guidance” letter to Texas schools regarding thefederal government’s May 13 guidance.

The following may be attributed to Rebecca L. Robertson, legal and policy director of the American Civil Liberties Union (ACLU) of Texas:

“We value Texas educators, whose top priority is the academic success of their students and we think those educators deserve better legal advice than they got from Attorney General Ken Paxton. To be clear, public schools are not party to the lawsuit filed by the State of Texas in federal court in Wichita Falls and they aren’t subject to the preliminary injunction that prevents the Obama administration from acting on its Guidance regarding Title IX. School districts in Texas that already have inclusive policies to protect their transgender students are free to enforce them. School districts considering such policies are free to adopt them. School districts that do not have appropriate policies under Title IX risk being sued by transgender students who experience discrimination.”

A copy of the ACLU of Texas letter on Transgender Student Guidance is available here.

Here’s a Chron story about this. Remember how Paxton has said he was willing to meet with a transgender child’s family, to, I don’t know, tell the kid that it’s nothing personal, he just wants to make sure no one is forced to treat that kid like a fellow human being? I still don’t believe he will really do this, but if he does, I hope it’s the most awkward and uncomfortable experience he ever has.

Preliminary injunction granted in transgender bathroom directive case

Ugh.

RedEquality

A federal judge in Fort Worth has blocked Obama administration guidelines directing the nation’s public schools to allow transgender students to use bathrooms and other facilities that align with their gender identity.

In a 38-page order released Sunday, U.S. District Court Judge Reed O’Connor said the “status quo” should remain in place nationwide until the court rules on the case, or a federal appeals court provides further guidance.

[…]

“This case presents the difficult issue of balancing the protection of students’ rights and that of personal privacy while using school bathrooms, locker rooms, showers, and other intimate facilities, while ensuring that no student is unnecessarily marginalized while attending school,” O’Connor wrote in the order. He added: “The sensitivity to this matter is heightened because Defendant’s actions apply to the youngest child attending school and continues every year throughout each child’s educational career.”

“The resolution of this difficult policy decision is not, however, the subject of this order,” he said.

You can see a copy of the court order here. We had expected a ruling before school started, though I honestly didn’t think that would mean Sunday. The question now is what does this mean, since there wasn’t a law in place, just a recommendation. ThinkProgress offers one explanation:

The scope of O’Connor’s order is vast. It dictates that the federal government can not intervene on behalf of trans students in any school nationwide. If the departments were already investigating claims of anti-trans discrimination, they must suspend those investigations immediately. In other words, so long as this injunction is in place, it’s as if the guidance protecting trans students doesn’t exist at all. It doesn’t, however, prevent schools from continuing to follow the guidance.

The ACLU, which was one of the filers of a joint amicus brief in the case, had the following to say:

“A ruling by a single judge in one circuit cannot and does not undo the years of clear legal precedent nationwide establishing that transgender students have the right to go to school without being singled out for discrimination. This unfortunate and premature ruling may, however, confuse school districts that are simply trying to support their students, including their transgender students. So let us make it clear to those districts: your obligations under the law have not changed, and you are still not only allowed but required to treat transgender students fairly. The scope of this injunction has no effect on the ability of other courts or lawyers representing transgender people to continue to rely on the federal government’s interpretations of Title IX or on prior decisions that have reached similar conclusions about the scope of federal sex discrimination laws.

“The court’s misguided decision targets a small, vulnerable group of young people – transgender elementary and high school students – for potential continued harassment, stigma and abuse.”

Although the court failed to consider the interests of the very students the federal laws were intended to protect, the five civil rights organizations who advocated on their behalf avowed, “We will continue to file lawsuits representing transgender students and litigate them to the fullest extent of the law—regardless of what happens with this particular federal guidance.”

The one thing that is clear is that this will be appealed. One should never get one’s hopes up where the Fifth Circuit is concerned, but this is what we’ve got for now. The DMN, the Austin Chronicle, the Current, and the Press have more.

No ruling yet in potty lawsuit

We should get one soon, at least as far as the request for an injunction goes.

RedEquality

U.S. District Court Judge Reed O’Connor did not issue a ruling from the bench after an almost two-hour long hearing during which state attorneys — as part of a Texas-led, 13-state effort to block the guidelines — argued they unconstitutionally “hold a gun to the head” of states and school districts.

In the first hearing over the state’s lawsuit against the federal government, Austin Nimocks, associate deputy for special litigation in the Texas Attorney General’s office, told O’Connor that the federal government “usurped” the authority of states and schools by requiring that “sexes must be mixed” in “intimate areas” like bathrooms.

[…]

But Texas jumped the gun in filing the lawsuit because the federal government has not moved forward with any enforcement action against a school, said Benjamin Berwick, an attorney with the U.S. Department of Justice. Because of that, Berwick argued, Texas and the dozen other states that joined the lawsuit have no legal standing.

“Even if the guidance documents didn’t exist, the [federal government] could still bring enforcement based on understanding of the law as it pertains to transgender individuals,” Berwick argued. The difference is that entities would not have the “benefits” of knowing how the feds are interpreting the nondiscrimination protections.

During the hearing, Nimocks regularly described the guidelines as coercive because schools were required to change their policies or risk losing federal funds over unconstitutional rules that were “legislative in nature” but passed without congressional approval.

“They cannot simply say they are clarifying” existing law, Nimocks said, adding that the new rules were not consistent with the use of the sex category by Congress in the federal statutes, where it has been kept separate from gender identity.

See here and here for some background, and here for a story from before the hearing. As my children know all too well, school starts in nine days, so expect a ruling this week. Judge O’Connor is being asked to impose a nationwide halt on the directive, which is kind of a big deal especially with more than half of the states not being involved in the litigation. I suppose a more limited injunction is a possibility, but we’ll see.

More states file potty lawsuits

Oh, goodie.

Best mugshot ever

Why would anyone follow this guy?

Ten additional states are suing the Obama administration to stop a directive that requires schools to allow transgender students to use bathrooms aligned with their gender identity under the threat of losing federal funding, bringing the total number of states challenging the guidance to 21.

Nebraska Attorney General Doug Peterson announced the lawsuit, filed in federal court in Nebraska, on Friday afternoon. The state is joined by nine others: Arkansas, Kansas, Michigan, Montana, North Dakota, Ohio, South Carolina, South Dakota and Wyoming.

[…]

Friday’s lawsuit is part of a recent spate of litigation about the issue. There are now legal challenges to the Obama administration’s directive pending in at least four federal appellate circuits, setting up the possibility that courts could diverge on the issue and lead the U.S. Supreme Court to weigh in.

Stanford law professor Jeffrey Fisher, co-director of the school’s Supreme Court Litigation Clinic, said the court is more likely to take up an issue if federal appellate courts come to different legal conclusions. But he said the high court often waits until lawsuits have the chance to percolate through the legal system so it has the benefit of the input from other jurisdictions.

“The fact that a particular issue is being litigated in several states across the country weighs in favor” of the Supreme Court stepping in, Fisher said.

The Court of Appeals for the 4th Circuit, based in Richmond, Va., is the highest court to issue a ruling on the matter. In April, the court sided with a transgender student suing a Virginia school board for banning him from the boys’ bathroom, saying his lawsuit challenging that policy could move forward in a lower court. In its ruling, the appeals court deferred to the Obama administration’s position that Title IX protects the rights of transgender students to use bathrooms in accordance with their gender identity.

See here and here for the background. Before we get as far as appellate courts possibly issuing conflicting opinions, Ken Paxton is trying to get a nationwide injunction halting the directive before school starts in Texas on August 22. This is going to be the never-ending Summer of Potties, whether we like it or not.

Paxton petitions for national injunction against transgender bathroom directive

This guy, I swear.

Best mugshot ever

Best mugshot ever

Plunging further into the politics of public school bathrooms, Texas Attorney General Ken Paxton on Wednesday expanded his federal lawsuit against an Obama Administration directive instructing schools not to discriminate against transgender students, saying he wants a nationwide injunction stopping the policy and wants it quickly.

Because a federal judge’s decision to halt President Obama’s executive action on immigration was applied nationwide, Paxton suggested that a different federal judge in Wichita Falls has the authority to issue a similar order regarding the transgender policy.

The updated request for preliminary injunction against the new rules is the latest in Texas’ fight against the federal government over the transgender-inclusive policy. Zeroing in on a requirement to allow transgender students to use the bathroom that corresponds with their gender identity, Texas, joined by 10 other states, filed a federal lawsuit in March to stop Obama’s directive.

In the filing, Paxton’s office wrote a nationwide injunction is necessary because the new rules apply to all public school districts and not just those suing the federal government. The other states in the lawsuit are Alabama, Arizona, Georgia, Louisiana, Maine, Oklahoma, Tennessee, Utah, West Virginia and Wisconsin.

See here for the background. Yes, they said “plunging” in a story that has to do with bathrooms. That’s about as much respect as this desperate gesture deserves. Unfortunately, there’s a real chance the judge could go along with this. We’ll keep an eye on it and hope for the best. Equality Texas, the Chron, and the Press have more.

UPDATE: From the Statesman:

According to Paxton’s motion to U.S. District Judge Reed O’Connor in Wichita Falls, the federal government has agreed to an expedited court schedule in an attempt to resolve the injunction request before the fall semester begins Aug. 22 for most Texas districts.

The schedule calls for all briefs to be submitted by Aug. 3 and requests that a hearing, if needed, be held Aug. 8 or 9.

Mark your calendars accordingly.

Ken Paxton does not approve of transgender bathroom policies

Big surprise, right?

Best mugshot ever

Best mugshot ever

Texas Attorney General Ken Paxton on Tuesday issued an opinion saying the Fort Worth school superintendent who made headlines for formulating guidelines to accommodate transgender students exceeded his authority. Paxton also said that a portion of the guidelines instructing district employees not to out transgender students to their parents might violate state law.

Citing a part of the Texas education code, Paxton wrote that school district boards of trustees — not superintendents — are required to adopt policies while superintendents can only implement those policies “by developing administrative regulations.”

Attorney general opinions are not legally binding, and Paxton’s interpretation has no direct legal impact on the Fort Worth district.

[…]

The district has indicated that the board of trustees was not asked to vote on the policy because it is an “administrative guideline” — a policy that superintendents can implement without official board approval — that stemmed from a non-discrimination policy updated in 2011.

To ensure privacy of students, particularly in cases when the student has not disclosed gender identity status to a parent or guardian, Fort Worth ISD’s guidelines include a protection of privacy for transgender students, directing school personnel to only share information about the student’s gender identity and expression on a “need-to-know basis or as the student directs.”

In his opinion, Paxton indicated that portion of the guidelines violates state law to the extent that they “limit parental access to information about their child and operate to encourage students to withhold information from parents.” Policies dealing with “parental involvement with students’ gender identity choices” must be “addressed” by the school board before they are implemented, he said. He added that the guidelines “relegate parents to a subordinate status.”

In response to Paxton’s opinion, a spokesman for Fort Worth ISD said the district’s legal counsel was reviewing the opinion. “She will advise the superintendent as appropriate,” he added.

Scribner has stood by the guidelines and confirmed he will stay in his post. School board trustees have reiterated that they were in the loop on the policy change, with at least two saying they were surprised the issue had escalated.

Paxton was asked for this opinion by Dan Patrick, whose obsession with bathrooms is well established. I didn’t have a chance to read this opinion – which as we all know does not carry the force of law – when it first came out, but then thankfully John Wright spared me the need.

But nowhere in his nonbinding opinion does Paxton address the question of restroom use, and a closer review of the document reveals Patrick’s “victory” to be mostly hollow.

In the opinion, Paxton wrote that the guidelines violate state law by limiting when school officials can disclose a student’s gender identity to parents. However, FWISD representatives have already stated — in a brief to Paxton’s office cited in a footnote of the opinion — that they plan to revise the parental notification provisions to bring them into line with the Education Code.

David Mack Henderson, president of LGBT advocacy group Fairness Fort Worth, said Tuesday he expects those changes “will render General Paxton’s unenforceable opinion moot.”

Even before Patrick and other Republican lawmakers stormed into Fort Worth in April to call for Scribner’s resignation over the guidelines, school board Trustee Matthew Avila told the Observer that officials were likely to tweak the parental notification provisions, which LGBT advocates agree are on shaky legal ground.

“Generally, parents have a right to access their children’s information and control their upbringing,” Lambda Legal senior counsel Ken Upton said.

FWISD’s brief to Paxton’s office lists exceptions to this rule, including for child abuse investigations, and notes that a 2002 AG’s opinion determined there are “very narrow and unusual circumstances” in which student information can be withheld from parents. FWISD’s brief states that “absent such circumstances, District personnel involve parents in all student matters, including gender identity issues.”

With regard to a second question posed by Patrick, Paxton found that Scribner violated the Education Code by implementing the Transgender Guidelines without a vote from the school board — but only in the context of the parental notification provisions, which account for roughly four paragraphs of the eight-page document.

“While a superintendent is authorized to recommend policies to be adopted by the board, chapter 11 requires that policy decisions, like those addressing parental involvement with students’ gender identity choices, be addressed by the board of trustees prior to the development of any related administrative regulations,” Paxton wrote.

FWISD officials have said Scribner acted within his authority to implement the guidelines because they are an extension of the district’s 2012 nondiscrimination policy, which includes gender identity. The Education Code gives superintendents the authority to “ensure the implementation of the policies created by the board.”

So there’s less to this than meets the eye. Mostly, it’s an invitation for someone who has a kid in FWISD to file a lawsuit, much as Paxton has filed a lawsuit against the feds over their advisory on bathroom access. I firmly believe that in the end forces of darkness and cowardice like Paxton and Patrick will lose, but it will not be quick or easy getting there. There will be setbacks, and people will be hurt along the way. The only message these guys will ever comprehend is at the ballot box. Trail Blazers, Texas Monthly, and the Current have more.

Anyone want to help me sue the feds?

Anyone? Anyone? Bueller?

Best mugshot ever

Best mugshot ever

When Texas Attorney General Ken Paxton announced Wednesday that he had filed a lawsuit challenging federal guidelines for transgender students, he said it was to protect a Texas school district that had adopted a policy requiring students to use bathrooms according to the gender cited on their birth certificates.

He didn’t say his office asked the district to pass the policy.

Nor did he say what The Texas Tribune has now learned: that his staff had approached another North Texas school district about pursuing the policy — and the lawsuit — 10 days earlier.

On May 16, two top Paxton aides attended a Wichita Falls school board meeting. The board was considering an agenda item regarding gender-specific restrooms and requesting legal representation from the attorney general’s office.

In a video recording of the meeting, Trey Sralla, the Wichita Falls school board president, introduces Paxton senior adviser Ben Williams and Assistant Attorney General Andrew Leonie, explaining that they are there to answer questions about the proposed policy.

“This has come down from the attorney general’s office, who have asked us to look at a policy here and [said] that they would be willing to on our behalf go and take this to the court system,” Sralla said at the meeting, which came three days after the federal government released guidelines instructing school districts to let transgender students use the bathroom that corresponds with their gender identity.

Leonie then fielded several questions from board members, including whether getting involved in legal action would mean the district would lose federal funding.

“I wish I had brought my crystal ball with me but I left that in Austin,” Leonie said. “We are here to reassure you that if you should adopt a policy like is under consideration, we will do what we can to back you and to protect you from the federal government, whether that means being proactive in filing a suit or whether it is responding to a suit, I don’t know.”

After about an hour of discussion, board members ultimately decided against adopting the policy, concluding that the district already had appropriate practices in place to address the needs of transgender students.

“I feel like in this situation we’ve been put between a rock and a hard place by both the federal and our state government where we are the ones who would be the sacrificial lambs effectively in this fight,” said board member Elizabeth Yeager. “I think that would be completely a waste of time and a distraction from our school business of educating students.”

Wichita Falls Superintendent Michael Kurht also came out against adopting the policy, citing legal counsel that the school district’s current policies were in compliance with the new federal guidelines.

“I don’t know that my time and the district’s time is best suited to do this,” he said.

[…]

Asked to clarify how many school districts the attorney general’s office approached about adopting the transgender policy, Paxton spokesman Marc Rylander did not provide a specific number.

I’m sure. There were many questions raised when this lawsuit was first announced, but the question of how many times the AG’s office had to ask and got a No answer is one that ought to be pursued. The fact that they didn’t immediately say “no one else, just Wichita Falls ISD” suggests to me that there was at least one other school district besides them. Let’s find out who they were. There was also a question about whether they looked anywhere other than the Wichita Falls area. Given that Pearland already has the policy in place that Paxton was seeking Wichita Falls ISD to adopt, one wonders why they needed them or Harrold ISD or whoever else they might have pursued. Well, OK, we do know the reason, we just don’t know how vigorously Paxton pursued it before finding his mark. Like I said, that would be nice to find out.

Paxton sues over Obama directive on transgender bathroom access

A more transparent publicity stunt you would be hard-pressed to find.

Best mugshot ever

Best mugshot ever

Texas, joined by 10 other states, filed a lawsuit Wednesday to stop a federal directive instructing school districts to let transgender students use the bathroom that corresponds with their gender identity, Attorney General Ken Paxton announced Wednesday.

Calling the Obama administration guidelines “outside the bounds of the constitution,” the McKinney Republican said that the state was taking action to protect a school district near the Oklahoma border that had passed a policy earlier this week requiring students to use bathrooms according to the gender cited on their birth certificates.

“Harrold Independent School District fulfilled a responsibility to their community and adopted a bathroom policy puts the safety of their students first,” said Paxton. “Unfortunately the policy placed them at odds with federal directives handed down earlier this month. That means the district is in the crosshairs of Obama administration which has maintained it will punish anyone who doesn’t comply with their orders.”

The other states in the lawsuit are Alabama, Arizona, Georgia, Louisiana, Maine, Oklahoma, Tennessee, Utah, West Virginia, and Wisconsin. Paxton said they had joined because the issue was of national importance.

“It represents just the latest example of the current administration’s attempt to accomplish by executive fiat what they couldn’t accomplish democratically in Congress,” he said.

The Obama administration guidelines stated transgender students have the right to use their preferred bathrooms in public schools because of Title IX, a federal statute that prohibits discrimination on the basis of gender at education institutions that receive federal funding. It does not have the force of law, though school districts could risk losing federal money if they do not comply.

Harrold superintendent David Thweatt, who joined Paxton at the Austin news conference, said his school board had passed the policy out of concern for the “safety, security, and dignity of the children.” None of the 100 students currently enrolled there identify as transgender, he said.

Concerns about the safety of allowing transgender people to access the bathrooms that correspond to their gender identities draw deep skepticism from LGBT advocates. With virtually no evidence of attacks coming from such policies in any states, they say, efforts like those ramping up in Texas instead serve to further stigmatize transgender people and perpetuate violence against them.

When asked Wednesday, neither Paxton nor Thweatt could point to instances where allowing transgender students access to the bathrooms that correspond to their gender identities had threatened anyone’s safety.

We all know why that’s true, right? Paxton had previously sent a letter to the feds asking for some “clarifications” on the directive, which was clearly some laying of groundwork for the lawsuit. It’s not the first time Paxton has expressed a deep interest in people’s potty usage, nor is he the first Republican to do so. To get some idea of how ridiculous this all is, Andrea Grimes digs in a bit:

Harrold ISD passed its policy, which according to Paxton makes “accommodations for special circumstances on a case-by-case basis,” on Monday. That’s two days ago. The Obama administration issued its guidelines nearly two weeks ago.

Apparently one of President Obama’s many skills is oppressing people from the past, using time travel. What a mighty coincidence that, on May 23, Harrold ISD, which says it has no transgender students, decided to pass a papers-please bathroom policy that affects none of its students. And then on May 25, Harrold just happened to become the lead plaintiff in an 11-state federal lawsuit against the federal government, arguing that guidelines Obama issued before Harrold even had a bathroom policy violate Harrold’s right to have whatever non-existent policy it wanted, two weeks before.

When I pressed the Harrold ISD superintendent on the curious timing of the policy’s passage, he responded: “We passed the policy because we believe in it. We think it’s necessary to protect the security and safety and dignity of children.”

Well, speaking of security and safety — from what, exactly? At Wednesday’s presser, reporters put pressure on Paxton to cite any examples of transgender people of any age doing harm to others in public facilities. Because it would be impossible, even for a great legal mind like Paxton’s, to present evidence for something that doesn’t actually happen, the AG spun questions back to familiar territory: defending the Constitution, bad Barack Obama, the evil fed, etc.

She documents the more recent previous cases of potty panic from the state GOP, which shows no sign of letting up. Think Progress adds on:

The entire lawsuit is based on a false premise. As Paxton explained at the beginning of Wednesday’s press conference, the federal government’s directives “open all school bathrooms to people of both sexes.” The lawsuit similarly suggests that the guidance requires that “persons of both sexes have a right to use previously separate sex intimate facilities.”

Drawing this conclusion requires both a deliberate misreading of the guidance and a rejection of who transgender people are. The letter issued earlier this month by the Department of Justice (DOJ) and Department of Education (DOE) specifically affirms that “Title IX’s implementing regulations permit a school to provide sex-segregated restrooms, locker rooms, shower facilities, housing, and athletic teams, as well as single-sex classes under certain circumstances.” It simply adds that when doing so, schools must allow transgender students to participate in accordance with their gender identity.

The Texas lawsuit doesn’t even use the word “transgender” except when quoting from other documents, and it uses scare quotes to mock the concept of “gender identity” throughout. After describing the guidance as a “massive social experiment” that runs “roughshod over commonsense policies protecting children and basic privacy rights,” it proceeds to layout an unrecognizable understanding of gender identity.

The suit also claims that the guidance requires “seismic changes” to how the schools operate, because they must allow students to “choose the restrooms, locker rooms, and other intimate facilities that match their chosen ‘gender identity’ on any given day.”

The notion that a gender identity can be chosen or that it can flipflop by the hour ignores the definition provided by the DOJ and DOE — that it is “an individual’s internal sense of gender.” The guidance also repeatedly refers to providing treatment that is “consistent” with students’ gender identity, something that could not be done but for the assumption that their identity is, in fact, consistent.

[…]

The lead counsel on the case is Austin Nimocks. Before working for Paxton, Nimocks was senior counsel for the Alliance Defending Freedom (ADF), where he helped them repeatedly lose caseschallenging marriage equality. ADF is behind multiple other lawsuits challenging the transgender guidance and has also persuaded schools to pass anti-trans policies like Harrold’s by promising to provide free counsel.

Despite the losing record Nimocks brings to the case, he may prevail at the district court level. The only judge on the bench in the federal district court in Wichita Falls, where Harrold ISD is located and where the suit was filed, is Judge Reed O’Connor. In 2014 and early 2015, when federal judges were ruling in favor of same-sex marriage across the country, O’Connor was one of the only judges — and indeed, one of the last judges anywhere — who ruled against it.

So there may be a step or two backwards before we can move forward. Though who knows, maybe it will be harder than even Ken Paxton thinks to get a judge to buy his mishmash of baloney and fact-free fearmongering. I look at it this way: The reason why the courts began ruling against same-sex marriage bans is that the argument against same-sex marriage ultimately boiled down to discredited studies claiming that children raised by same-sax couples did worse than other children, and a general animus towards the whole idea. The former couldn’t stand courtroom scrutiny, and the latter was ruled to be an insufficient cause for a law that targeted a class of people. This is a different kind of case here, since it’s the plaintiffs who are seeking restrictions, but I think this basic principle will eventually play out in the courts. There’s no justification for the anti-trans laws, and I am confident that the courts will, by and large, rule that way. It may yet take awhile, and Ken Paxton may get the legal victory to go with the political bonanza that he hopes to reap, but in the end I believe justice will prevail. The Chron, the Current, Trail Blazers, the AusChron, and the Press has more.

Paxton asks the feds if they’re sure about that bathroom thing

Just checking, I’m sure.

Best mugshot ever

Best mugshot ever

Will public schools really lose federal education funding if they refuse to comply with a new Obama administration directive regarding transgender students?

That’s the basic query posed by top lawyers from Texas, Oklahoma and West Virginia in a letter sent Tuesday to the U.S. Justice and Education departments seeking clarification on the directive, which advises the nation’s public schools to allow transgender students to use the bathrooms that match their gender identity.

The guidance, issued Friday by those agencies, came days after Lt. Gov. Dan Patrick called for the resignation of the Fort Worth ISD superintendent for implementing similar rules designed to help educators abide by an updated nondiscrimination policy.

Attorney General Ken Paxton has already threatened legal action over the directive, which does not have the force of law but seeks to clarify how federal agencies may interpret relevant statutes and an entity’s compliance.

In Tuesday’s letter, Paxton and the two other state attorneys general ask whether entities receiving federal funding must “follow this ‘significant guidance’ in order to be in compliance with Title IX” — the federal law governing gender equity in education — “and/or entitled to continued receipt of federal funding?”

“Do circumstances exist in which you would consider a school still in compliance with Title IX despite non-compliance with these guidelines?” the letter asks. “If so, please describe those circumstances and whether you would take steps to recoup or end federal funding.”

Texas receives more than $5 billion per year in federal education funding, which it uses for free-and-reduced lunch and other programs designed to help needy children.

Last week, Patrick said he was willing to forgo that money and urged Texas superintendents to resist pressure from the federal government to follow the directive.

See here, here, and here for the background. I can’t imagine Paxton will get the answer he wants to hear, so I assume this is just laying groundwork for the threatened litigation. The Chron and Daily Kos have more.

TEA Commissioner has no opinion yet on federal transgender bathroom directive

Noted for the record.

Texas Education Commissioner Mike Morath on Tuesday praised the state Supreme Court’s recent opinion upholding the state’s public school funding system and demurred on questions about bathroom use by transgender students.

“Last time I checked, it was a free country,” Morath said in a wide-ranging interview with The Texas Tribune’s Evan Smith when asked whether Lt. Gov. Dan Patrick’s efforts to overturn a policy in Forth Worth allowing transgender students to use the bathroom that matches their gender identity clashed with Morath’s belief in the importance of local control.

The issue erupted last week when the Obama administration ordered every public school in the nation to allow transgender students to use the bathrooms and locker rooms that align with their gender identity rather than their biological sex.

[…]

But the Texas Education Agency is still reviewing the federal directive, Morath said Tuesday, contending that it was too soon for him to weigh in on the issue.

“Until we have a clear sense of our options, it’s just not appropriate for me to comment,” he said.

Not very illuminating. I’ll take him at his word about not having fully reviewed the federal directive, but that’s a temporary excuse. To be fair, if Dan Patrick shoves a potty package check bill down everyone’s throat, then Mike Morath’s opinion of the federal missive matters not at all. Still, it would be nice to know just what kind of person Mike Maroth is. Please have an answer ready the next time someone asks you about this, sir.