The 5th Circuit has affirmed the decision of the Department of Education that Texas is ineligible for over $33 million in special education federal money. That’s going to hurt. The state asked the Circuit Court to issue a ruling on this quickly so that the 2019 Legislature will know what it is dealing with. The Circuit Court did rule quickly. So now we know where we stand: $33 million in the hole.
This was entirely avoidable. The Court held that the weighted student model that Texas uses for funding of special education is fundamentally flawed. In effect it enables individual ARD Committees to determine the overall level of state funding for special education. Funding in Texas is tied to student need. Student need is determined case by case as ARD Committees write IEPs and determine placement. Under the Texas model if a student needs less intense services, the state provides less funding. So if a thousand ARD Committees reduce services by just a little bit for each student it has a cumulative effect on state funding. Then consider what happens when the percentage of students receiving special education services drops, as it did in Texas. Fewer kids in special ed, and many of those kids receiving less intensive services. It adds up. Thus in 2012 Texas allocated $33 million less for special education than it had in 2011.
Our model, which has been in place since 1995, is broken. Texas argued that every child in Texas still received an appropriate education. For purposes of this case that was not disputed. But the Circuit Court said that it didn’t matter. The statute is pretty simple. It looks at the total amount of money you allocate for special ed from year to year. Did it go up or down? If it went down, you broke the law. Simple.
The court pointed out that Texas could have sought a waiver of the requirement. If it could produce “clear and convincing evidence” that every eligible child in Texas was receiving an appropriate education, it could obtain a waiver from the Secretary of Education to justify reduced funding. But T.E.A. did not do that. Instead it relied on the complex “weighted student” formula that had the effect of reducing funding.
The court pointed out how the Texas formula empowered ARD Committees to do what only the Secretary of Education is authorized to do:
The weighted-student model circumvents the waiver process by allowing a state to reduce its amount of financial support whenever the state—rather than the Secretary—determines that special education needs of children with disabilities are adequately funded. Indeed, Texas claims to have funded special education according to the diverse instructional arrangements that its students need to succeed. But the state admits that those needs are determined by an “individualized education program” team. Conversely, the IDEA entrusts that discretion to the Secretary, permitting a waiver only if she concludes that all disabled children enjoy a free appropriate public education. Thus, the weighted-student model undermines the waiver process by enabling a state to decide, on its own initiative, that it sufficiently funded the needs of children with disabilities.
Some of you may be thinking: isn’t the ARD Committee supposed to determine student needs? And the answer to that is yes—absolutely. But that does not give the ARD Committee the power to determine the funding. The state is obligated to fund special education with at least the same amount of money that it allocated the previous year. If state officials believe that there is a good reason to deviate from that in a given year they are supposed to explain that to the Secretary of Education and get approval for the reduction.
T.E.A. did not do that. T.E.A. let us down.
The case is Texas Education Agency v. U.S. Department of Education, decided by the 5th Circuit on November 7, 2018. We found it at 118 LRP 46003.
DAWG BONE: ANOTHER CHALLENGE FOR OUR GOVERNOR AND LEGISLATURE.
Tomorrow: Cuts in funding lead to cuts in personnel, lead to litigation.