Bonnie Arbittier / Rivard Report
The Texas Education Agency will face off against the U.S. Department of Education in court this week with federal special education funding at risk.
The federal education department contended in January 2017 that Texas should be docked $33.3 million in grant funding for students with disabilities in a future year because of a past compliance question from fiscal year 2012. Texas appealed this decision, and in May 2018 an administrative law judge sided with the federal education department. Texas successfully petitioned for an appeal in July.
On Wednesday, the two parties will argue their cases in front of the Fifth U.S. Circuit Court of Appeals in New Orleans.
The money in play comes from an Individuals with Disabilities in Education Act (IDEA) grant, allocated by Secretary of Education Betsy DeVos to states to provide special education and related services to students with disabilities.
The federal department is arguing that Texas did not comply with a federal statute mandating that states “must not reduce financial support made available for special education and related services below the amount of such support for the preceding fiscal year.”
If a state does so, statute allows the secretary of education to reduce funding by the same amount that the state reduced its financial support.
In its 2013 IDEA grant application, Texas noted its state special education funding had decreased by more than $377 million from the previous year due to a reduction in enrollment and level of special education services. The federal department said Texas could still meet the consistent funding requirement by showing support per capita remained consistent.
At the time, Texas proposed an alternative “weighted-student model,” in which funding is determined based on hours of services, reflecting the level of disabilities served rather than number of students.
The Department of Education did not agree with this method of evaluating support but calculated with changes in enrollment that Texas had reduced funding by $33.3 million.
“Here, there is no dispute that Texas reduced both the aggregate amount of funding it appropriated for such services as well as the amount of funding it appropriated per individual child with a disability in SFY 2012,” the federal department argues. “That should end the matter.”
Texas argues that the IDEA provision mandating states not reduce financial support is ambiguous and that the federal department misreads the section with too specific a focus on funding and appropriation and not enough attention to support.
“The Department’s core argument turns on a word that appears nowhere in the statute: ‘appropriated,'” the State’s legal brief reads. “In short, the Department focuses only on actual expenditures and funding on a statewide budgetary basis measured in aggregate and per capita terms. The State’s approach, by contrast, focuses on financial support for children with disabilities.”
Texas goes on to argue that the situation compares to a mother who pledges to not reduce financial support for her son’s education. She pays for her son’s textbooks and tutoring. A year goes by and the textbooks decrease in price and the tutor discounts the tutoring fees.
“The circumstances and costs of the son’s education have changed, and the mother’s expenditures have decreased,” the State contends. “But the mother has nonetheless maintained her financial support.”
This legal battle is narrow in focus on the $33.3 million in funding but is being argued at a time when Texas is grappling with a special education controversy. After a Houston Chronicle investigation revealed that Texas had effectively capped special education enrollment at 8.5 percent, the Department of Education found in January that Texas failed to ensure students with disabilities were properly evaluated and had access to an adequate education.
The TEA put together a special education strategic plan that called for significant changes to the way it monitors and offers special education services. The changes will likely cause the State to enroll hundreds of thousands more students in special education programming and spend billions more, according to the state agency.
San Antonio special education attorney and former special education teacher Karen Dalglish Seal said she is concerned about money being cut from Texas schools.
Seal spent two decades working with students in all areas of special education in the San Antonio, Medina Valley, and Southwest independent school districts, first as a teacher and later as an administrator.
Even though $33.3 million is small compared to Texas’ overall budget, any available funding is important to keep and use, she said.
“I don’t know that [schools] use it totally appropriately all the time, but we are so far down on the list as far as where we stand on [special education funding] in the nation that [if] you cut more money, you cut teachers and services,” Seal said.
Deneatra Terry, whose eighth-grade son is enrolled in special education services at a local charter, disagrees. She said the federal department shouldn’t give any more money to Texas until the State proves it can use the money wisely, to better special education services for all who need them. For Terry, it is about holding Texas accountable for the funds it is given.
“The damage has been done, so from the top up, this is where salaries need to be cut,” Terry said. “I’m not saying take it from the school district, because most of them don’t have the money already.”