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Disability Rights Texas

Harris County settles ADA voting rights lawsuit

Chalk up another accomplishment for our new county overlords.

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

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

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

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

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

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

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

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

[…]

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

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

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

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

Lawsuit threatened over special education limits

The clock is ticking.

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

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

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

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

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

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

[…]

The letter also outlined the group’s legal theory.

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

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

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

TEA officially backs off special education limits

We’ll see about that.

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

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

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

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

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

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

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

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

[…]

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

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

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

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

TEA says no more special ed limits

We’ll see about that.

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

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

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

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

[…]

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

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

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

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

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

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

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