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Texas spent less on students with disabilities. But did it break the law?

"Texas spent less on students with disabilities. But did it break the law?" was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

A mother offers to buy her son's textbooks and pay for a tutor, promising not to reduce her financial support for his education. The next year, textbook prices unexpectedly plummet and the tutor offers a major discount — meaning mom ends up spending less.

Could anyone rightly accuse her of breaking her promise to her son?

Of course not, argued attorneys for the state of Texas, providing a colorful analogy in a recent legal brief to explain why the state provided $33.3 million less in 2011-12 to educate kids with disabilities than it had the previous year.

Like the boy needed less money for books, children with disabilities needed less expensive educational services that year, due to the "declining severity of special education needs," Texas has argued, preparing for a face-off with the U.S. Department of Education in a federal appeals court this week.

But the U.S. government says Texas violated an unambiguous federal law requiring states to maintain the same amount of funding each year for special education services in order to continue to be eligible for federal special education grants. Steering clear of literary devices to argue its case, the federal government is claiming in court that Texas needs to be stripped of $33.3 million in federal funds — the same amount that the state cut.

A panel of three judges will hear from both sides Wednesday morning in New Orleans, and determine whether Secretary of Education Betsy DeVos' decision to take away Texas' funding should stand. Texas lost its challenge at the U.S. Department of Education's Office of Hearings and Appeals in May, and in July successfully petitioned the 5th Circuit to take up the case.

If Texas fails to defend its decrease in spending, it stands to lose the equivalent of about 3 percent of its annual federal special education grant.

This week's argument comes months after the U.S. Department of Education, in a separate investigation, found Texas was failing to provide many students with disabilities with an adequate education and effectively denying services to thousands of students who needed extra support. State education officials are now tackling a long list of federally-mandated reforms to special education, including closely monitoring and supporting schools struggling to properly educate kids with disabilities.

Many educators told federal investigators that they saw evaluating students for special education services as a "last resort" for students having trouble learning, a major violation of federal law. Texas spent less in 2011-12 in part because its percentage of kids in special education dropped that year to 8.6 percent — the lowest rate in the country.

With hundreds of thousands more students now expected to enroll in special education, the state recently estimated it will spend an additional $3 billion on kids with disabilities over the next three years.

The case before the 5th Circuit does not address the federal investigation, and the quality of Texas' special education programs is not currently under legal fire. The question the 5th Circuit will answer is much more narrow: Did Texas' decision to provide less money for students with disabilities that year violate federal law?

Texas' interpretation of the statute could encourage states to "reduce services provided to children with disabilities, so as to save State finances while continuing to obtain the same amount of federal grant funding," lawyers for the federal government argue. Texas argues its special education programs are so good at getting kids to "overcome their disabilities" that many of those students just don't need services as expensive or personalized when they get older.

Since 1995, Texas has weighted funding for kids with special needs, giving schools more money to educate students who have more severe disabilities or need more personalized attention in the classroom. A chronically ill student confined to a hospital or bed at home is considered more costly to educate than a student who must be placed in a school classroom specifically for kids with disabilities, according to the funding system coded in Texas law.

It calculates funding, not per student, but per the number of hours students spend receiving these additional services to learn.

In 2011-12, Texas contributed about $1.3 billion to special education, including money from multiple state agencies and the Legislature. When accounting for the slight decrease in special education enrollment, Texas spent about $75 dollars less per student that year than the one prior — a total reduction of $33.3 million.

A state cannot "reduce the amount of State financial support for special education and related services for children with disabilities, or otherwise made available because of the excess costs of educating those children, below the amount of that support for the preceding fiscal year," according to the 1997 statute the Department of Education cited in claiming Texas should be stripped of funds. If a state violates that statute, the federal government will take away the same amount in a future federal grant.

The law is intended to make sure states continue their financial responsibility for students with disabilities, instead of just using federal grants to trim state budgets.

Texas acknowledged it decreased funding, but said there's no evidence students with disabilities missed out on a good education due to inadequate state funding that year.

"It is not the support for special education that has changed from year to year, it is the special education needed that has itself changed," Texas' attorneys argued. Its funding system, in fact, helps meets students' unique needs instead of pushing a "one-size-fits-all approach."

The federal statute is "ambiguous" since it does not specifically define "state financial support" or specifically disallow Texas' interpretation — so the federal government should not withhold the money, Texas argued. "Texas's financial support for the actual needs of its special education students has never been reduced."

The federal government says the statute is clear, and that it shouldn't have to lay out every single way states could conceivably comply with or violate the requirement.

"Under Texas's interpretation, it could decrease the amount of funding made available for special education from year to year on the ground that it believes that children with disabilities needed fewer special education services," lawyers for the federal government argued.

Administrative Law Judge Robert Layton, who supported the feds in the original challenge, warned that accepting Texas' interpretation of the statute would let states shirk their financial responsibility to kids with disabilities.

"It would allow a state to reduce or defund state contributions to special education funding, and shift to the federal government the burden of funding special education," he wrote in the May determination.

This article originally appeared in The Texas Tribune at https://www.texastribune.org/2018/10/01/texas-special-education-fifth-circuit/.

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The Texas Tribune is a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.


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