TEE Texas Education Agency 1701 North Congress Avenue - Austin, Texas 78701 -1494 - 512 463-9734 - 512 463-9838 FAX - tea.texas.gov Michael Williams Commissioner July 31, 2015 Dustin Rynders Deborah Fowler Michael Harris Disability Rights Texas Texas Appleseed National Center for Youth Law 1500 McGowen, Ste. 100 1609 Shoal Creek Ste. 201 405 14th Street, 15th Floor Houston, TX 77004 Austin, TX 78701 Oakland, CA 94612 To the Individuals Addressed: This is a response to your letter dated July 7, 2015, requesting that the Texas Education Agency (TEA) reconsider the closure determinations with regard to the allegations against TEA and eight of the school districts named in your complaint dated May 27, 2015.1 Your letter also provides additional information relevant to allegations that TEA is investigating with regard to other school districts named in the aforementioned complaint.2 As discussed in more detail below, position remains that it cannot investigate the allegations against the eight school districts or TEA through the special education complaint process. Also described below is how TEA will consider the additional information that you have provided concerning several of the pending complaints. Closure of Complaints aqainst Eiqht School Districts As you know, TEA determined that the allegations against eight of the school districts named in the complaint could not be investigated through the special education complaint process because they are not supported by sufficient facts and because the data upon which they are based are outside of the one-year limitations period for filing a special education complaint. Like the complaint, the July 7 letter does not include any facts about individual students who reside in the eight school districts or about specific policies or procedures adopted by the school districts that violate special education requirements. The complainants continue to base the allegations against the eight school districts entirely on PEIMS Leaver Code 88 data from the 2012-2013 school year, which they contend ?shows that hundreds of students with disabilities have been forced out of school and denied [a free appropriate public education by Texas school districts.? PEIMS Leaver Code 88 is used to report students who were court?ordered to attend GED programs at some point during the prior school year but did not receive GED certificates by August 31 and did not enroll in the school district by the school-start window for the following school year. As TEA explains in a June 16, 2015 letter, Leaver Code 88 was created strictly as a means to exclude these students from the dropout and completion rate calculations used for state accountability purposes as required by Texas Education Code To accept the notion that systemic FAPE violations are indicated by the Leaver Code 88 data alone requires TEA to make multiple assumptions. First, TEA must assume that the school districts referred the students 1 TEA issued closure letters with regard to the allegations against Abilene Independent School District Austin Conroe Ector County ISD, Fort Worth ISD, Galveston San Antonio and Victoria ISD. 2 TEA is currently investigating allegations against Clear Creek ISD, Fort Bend ISD, Houston and Pasadena The complainants recently requested that the complaint against Galena Park ISD be withdrawn due to local resolution. to court to force them out of school. TEA must also assume that the courts? decisions to order the students to attend GED programs were primarily based on recommendations of school district personnel. In addition, TEA must assume that the students? failure to earn GED certificates by August 31 is attributable to the school districts. And finally, TEA must assume that the school districts are responsible for the students? failure to reenroll in school by the school-start window. TEA cannot draw assumptions based on the Lever Code 88 data and then characterize those assumptions as ?facts? supporting alleged FAPE violations against the eight school districts. Furthermore, TEA notes that the complainants have drawn incorrect inferences from the 2012- 2013 Leaver Code 88 data. Specifically, the complainants assert that the students represented in the data remain out of school. The fact that a student was reported under Lever Code 88 in 2012- 2013 does not mean that the student remains out of school. The student may have returned to school later in the 2012-2013 school year or during the 2013-2014 or 2014-2015 school years. Students who are reported as dropouts or leavers in one school year do sometimes return to Texas public schools and later graduate, receive GED certificates, continue high school, or drop out. With regard to students who have been court-ordered to receive GED certificates, TEA has long advised school districts that these students, as well as students who have received GED certificates, are eligible to return to school if they meet the other eligibility requirements. The most recent version of the Student Attendance Accounting Handbook, which is adopted by reference in rule, includes the following statement: 3 3.3.10 Students Who Have Received a GED Certi?cate or Have Been Court- Ordered to Obtain a GED Certificate A student who has received a GED certificate or who has been court ordered to obtain a GED certificate is still eligible to enroll in your district to complete the requirements for a high school diploma if the student chooses, provided all other eligibility requirements are met. If the student meets all other eligibility requirements, your district must not deny enrollment to the student. As with any other student, the ADA eligibility code assigned to the student depends on the number of hours the student is scheduled for and provided instruction, or on whether the student is eligible for and taking part in an alternative attendance program. With regard to the statute of limitations issue, the July 7 letter urges TEA to apply a ?continuing violation? theory as an exception to the one-year limitations period. As discussed above, the Leaver Code 88 data from 2012-2013 does not support the allegations that the eight school districts denied the students a FAPE. In addition, the Individuals with Disabilities Education Act (IDEA) regulations no longer include an exception to the limitations period for continuing violations. The US. Department of Education responded to public comments regarding the change in the regulations as follows: We believe a one?year timeline is reasonable, and will assist in smooth implementation of the State complaint procedures. The references to longer periods for continuing violations and for compensatory services claims in current Sec. 300.682(c) were removed to ensure expedited resolution for public agencies and children with disabilities. Limiting a complaint to a violation that occurred not more than one year prior to the date that the complaint is received will help ensure 3 2014-2015 Student Attendance Accounting Handbook at p. 53. Previous versions of the handbook also include a similar statement. Page 2 of 6 that problems are raised and addressed so that children receive FAPE. We believe longer time limits are not generally effective and beneficial to the child because the issues in a State complaint become so stale that they are unlikely to be resolved.4 The July 7 letter also states that attorneys for Conroe ISD and Abilene ISD contacted the complainants to resolve the issues raised in the complaint but that no further communications have taken place since TEA issued its closure determinations. While TEA has determined that the allegations against these two school districts did not meet the requirements for a special education complaint, if the school districts have reason to believe that students with disabilities who were court-ordered to obtain GED certificates are unaware that they are eligible to return to school, the school districts should take steps to locate and inform the students of their eligibility to reenroll in school. For the above reasons, TEA will not investigate the allegations against the eight school districts. Closure of Complaint aqainst TEA The July 7 letter asserts that the complaint contains ?individual and systemic information" demonstrating ongoing violation of its obligations under IDEA and that TEA has offered no contrary evidence to show that the students who are the subject of the complaint actually received a FAPE. letter dated June 16, 2015, fully explains the reasons why TEA cannot investigate the four specific allegations raised in the original complaint. Three of the allegations cannot be investigated because they do not state violations of IDEA or state special education law. With regard to the complainants? assertion that the 2012-2013 Leaver Code 88 data provides sufficient factual support for the allegation of systemic FAPE violations by TEA, the reasons discussed above with regard to the FAPE allegations against the eight school districts also apply to the allegation against TEA. As for the allegation that the 8.5% performance level for one of the special education representation indicators in the Performance-Based Monitoring and Analysis System (PBMAS) has created a disincentive for school districts to identify students with disabilities and has increased the likelihood that unidentified students with disabilities will be forced out of school through the truancy process, TEA explains in its June 16, 2015 letter that it could not investigate the allegation because it is purely based on conjecture. Neither the complaint northe July 7 letter provides any specific facts to show that the 8.5% performance level has resulted in the systemic under-identification of students with disabilities or that the 8.5% performance level has resulted in a significant number of unidentified students with disabilities becoming involved in truancy proceedings. The July 7 letter merely contains additional argument (9.9., the 8.5% performance level is arbitrary, too low compared to the national average, contradictory to the child-find principle, etc.). Furthermore, while the complainants assert that the specific students named in the complaint ?illustrate the failure of school districts to identify many students as students with disabilities as the result of failure to ensure that school districts follow the federal law in individually identifying and evaluating students with disabilities," TEA notes that the complaint names two specific students who were allegedly never evaluated for special education services, but there are no facts in the complaint indicating that the school districts failed to evaluate the two students as a result of the 8.5% performance level. For all of these reasons, TEA will not investigate the allegations against TEA. 4 71 Fed. Reg. 46606 (August 14, 2006). Page 3 of 6 Supplemental Information ijgardim S?i?c Students Regarding the additional i orrnation relating to Student 1 in the Houston ISD complaint (Complaint No. 201510718), TEA will consider the information in its investigation of Allegations 1 and 2 in the complaint. With regard to the concern that TEA is not investigating the allegations in the complaint as systemic violations, TEA notes that it has requested that Houston ISD provide all board policies, administrative regulations, operating procedures, and guidelines speci?c to the issues under investigation. If noncompliance is identified, TEA will require Houston ISO to correct the noncompliance with regard to the students named in the complaint and similarly situated students, as appropriate. TEA will consider the additional information relating to in the Clear Creek ISD complaint (Complaint No. 201510710) in its investigation of Allegations 1 through 3 in the complaint. With regard to the new allegation concerning transportation. TEA noti?ed the parties in a letter dated July 8, 2015, that a fourth allegation has been added to the complainant. While some of the concerns raised in the complaint are outside of the jurisdiction of the special education complaint process and the Division of Federal and State Education Policy, I can assure you that TEA is concerned about how tmancy issues affect students. Internal discussions with multiple divisions are undewvay, and TEA intends to meet with outside stakeholders, including the complainants, to discuss issues related to truancy. For questions regarding this letter, please contact me at (512) 463-9414. Respectfully, Cindy Division of Federal and State Education Policy cc: Audra Ude Superintendent Abilene ISD PO. Box 981 Abilene. TX 79604 Paul Cruz Superintendent Austin ISO 1 1 1 1 West 6th Street Austin, TX 78703 Gregory Smith Superintendent Clear Creek ISD P.O. Box 799 League City, TX 7757 PageAch Don Stockton Superintendent Conroe ISO 3205 West Davis Conroe, TX 77304 Thomas Crowe Superintendent Ector County ISD PO. Box 3912 Odessa, TX 79760 Charles Dupre Superintendent Fort Bend ISO 16431 Lexington Boulevard Sugar Land, TX 77479 Patricia Linares Superintendent Fort Worth ISD 100 North University Drive Fort Worth, TX 76107 Angi Williams Superintendent Galena Park ISD PO. Box 565 Galena Park, TX 77547 Larry Nichols Superintendent Galveston ISD PO. Box 660 Galveston, TX 77553 Terry Grier Superintendent Houston ISO 4400 West 18th Street Houston, TX 77092 Kirk Lewis Superintendent Pasadena ISO 1515 Pasadena. TX 77502 PageSofs Pedro Martinez Superintendent San Antonio ISD 141 Lavaca Street San Antonio, TX 78210 Robert Jaklich Superintendent Victoria ISD P.O. Box 1759 Victoria. TX 77902 PageGofB