1111 Louisiana, 25th Floor TX 77002 its North America Europe Asia F3 +1 (713) 651-2700 Jason W. Billeck Partner 713.651.2795 JBilleck@winston.com January 30, 2017 VIA NO. 71969008911125045749 AND VIA FAX TO (512) 463-9838 Honorable Mike Morath Commissioner Texas Education Agency 1701 N. Congress Avenue Austin, Texas 78701 Re: Special Education Representation Indicator 10 Dear Commissioner Morath and Texas Education Agency: We write on behalf of our client, Coalition of Texans With Disabilities regarding the devastating harm the PBMAS Manual Special Education Representation Indicator 10 (the Indicator?) continues to in?ict on Texas?s children with disabilities. As recently detailed by the Houston Chronicle, your and the Texas Education Agency?s implementation of the 8.5 Indicator has led to teachers and school districts systematically denying tens of thousands of Texas?s most vulnerable children the special education support and services they are entitled to receive under state and federal law. This fact is supported by the statements of countless teachers and school district administrators who now admit they denied special education support and services to children with disabilities because of the 8.5% Indicator. It also is proven by the objective data. Speci?cally, since TEA adopted the 8.5% Indicator, the rate of Texas students receiving special education dropped from near the longtime national average of about 13% to exactly as required by the 8.5% Indicator. Moreover, implementation of the 8.5% Indicator has fueled the under-identi?cation of English Language Learners compared to 2006, ELL students are about 11 percent less likely to receive special education services than their proportion in the total school population would suggest is appropriate.2 CTD is a statewide, nonpro?t organization composed of individuals and families of children with disabilities whose purpose is to promote positive public policies to ensure that persons with disabilities may work, live, learn, play, and participate fully in the community. Texas Education Agency, Peiformance-Based Monitoring Analysis System (2006, 2016): 5, AmericasActive:85 07867.1 WINSTON January 30, 2017 81 STRAWN Page 2 LLP Texas is the only state in the United States to impose this type of cap on the number of students who receive special education and the cap has directly resulted in Texas falling to last among all states at providing services and support to its children with disabilities. The children and families of Texas deserve, need, and are legally entitled to better. Your recent statements to the Houston Chronicle provide optimism that you agree. Speci?cally, you stated in the Houston Chronicle that you are ?personally, deeply committing to improve the kinds of supports that we offer to our neediest kids.?3 This is not only the moral thing do to, but also is compelled by the governing law, including Texas?s Administrative Procedure Act. For instance, authority to administer and monitor the special education services provided to children with disabilities is limited by Tex. Educ. Code 7.028 and 29.010, which provide, respectively, that, except where otherwise provided, TEA is authorized to monitor school districts only as necessary to ensure compliance with federal law, and (ii) that TEA must monitor school districts for compliance with federal and state law. TEA, however, has acted directly contrary to and in violation of the obvious requirement that it administer and monitor the provision of special education services and support in compliance with state and federal law. Speci?cally, the 8.5% Indicator violates federal and state law because it directs, incentivizes, and has caused school districts to deny enrollment in special education programs to eligible students, which violates the letter and spirit of the Individuals with Disabilities Education Act, including its Child Find Mandate, which requires Texas to have a comprehensive program to locate, ?nd, and refer all children who need special education services. 20 U.S.C. 1401(8), 1412; 34 CPR. 300.111. Additionally, inclusion of the 8.5% Indicator in the PBMAS Manual violates recently adopted federal regulations addressing disproportionality in special education. These regulations, which took effect on January 18, 2017, speci?cally instruct that the requirement to monitor disproportionality does not ?authorize a State or an LEA to develop or implement policies, practices, or procedures that result in actions that violate the requirements of this part, including requirements related to child ?nd and ensuring that a free appropriate public education is available to all eligible children with disabilities.? 34 CPR. The harm caused by your and continued adoption and current use of the 8.5% Indicator was detailed over and over again at the listening sessions held in December by the US. Department of Education and TEA. Hundreds of parents and students attended these sessions to share their stories of delay and denial of Special education support and services and the devastating effect these illegal denials and delays have had on not only the children, but also their families. Educators joined the parents and shared how they were instructed to delay and Brian M. Rosenthal, Morth vows to and special ed cap, boost support to families, HOUSTON CHRON., Dec. 16, 20 1 6, educators-have?beem I 080244 1 .php. 4 See Assistance to States for the Education of Children With Disabilities; Preschool Grants for Children With Disabilities, 81 Fed. Reg. 92376 (effective Jan. 18, 2017) (to be codi?ed at 34 CPR. AmericasActivc:8507 867.1 WINSTON January 30, 2017 STRAWN Page 3 LLP deny evaluations and eligibility determinations to comply with the 8.5% Indicator. Hundreds more shared their stories on the blog created by the US. Department of Education.5 CTD has been encouraged by your and recent promises and assurances to do away with the 8.5% Indicator. Speci?cally, you represented in a December 16, 2016 brie?ng to reporters that you and TEA ?removed the use of our indicator from that intervention system and our intent is to remove it in our rule-making process in the spring from the FEM system in its entirety.?6 Similarly, the TEA Deputy Commissioner of Academics represented to the US. Department of Education that TEA would not use the 8.5% Indicator for the purpose of intervention staging going forward, and would eventually eliminate it.7 While CTD appreciates these promises and representations, it appears that the 8.5% Indicator still remains a part of the current PBMAS Manual. In fact, CTD is unaware of any steps taken by you or TEA to remove the 8.5% IndiCator, including the assignment of performance levels based on the 8.5% Indicator, from the 2016 PBMAS Manual. The time for action to protect and support Texas?s children with disabilities is now. CTD therefore requests that you, on behalf of yourself as the Commissioner of TEA and on behalf of TEA, follow through on your promises and assurances regarding the elimination of the 8.5% Indicator by countersigning this letter to show your formal agreement in writing that within thirty (30) days of your and receipt of this letter, you and TEA will publish a Notice of Proposed Rule to immediately eliminate and remove the 8.5% Indicator from the current PBMAS Manual, and (ii) that you and TEA will not approve, adopt, or include the 8.5% Indicator, or any similar rule with the same impact or effect, in any future PBMAS Manuals. Based on your public statements and assurances, we believe con?rmation of these basic requests should be agreeable, and easily doable, by you and TEA. If you and TEA do not intend to follow through with your public statements and promises and refuse to countersign this letter to evidence your formal agreement to the requests set forth above, within thirty (3 0) days of receiving this letter, CTD intends to ?le suit to seek appropriate relief against you and TEA. We genuinely hope and believe such a lawsuit is unnecessary given our joint interest in making sure the children with disabilities of Texas get the support and services they are legally entitled to recelve. Of?ce of Special Education and Rehabilitative Services Blog, US Department of Education, Texas Listening Sessions, (last visited Jan. 17, 2017). Statement by Mike Morath, Texas Education Commissioner, to reporters (Dec. 16, 2016), available at Letter from Penny Schwinn, Deputy Commissioner of Academics, Texas Education Agency, to Sue Swenson, Acting Assistant Secretary, United States Department of Education (Nov. 2, 2016), available at _educaticn_concerns/. AmericasActive:8507867.l WINSTON January 30, 2017 Page 4 Thank you for your attention to this vital matter that affects so many children and families in the State of Texas, and please to do not hesitate to call if you wish to discuss. You may return the counter?signed letter to our attention. Counterwsigned, HonOIable Mike Morath Di ab lit-y Rights Texas On behalf of 14 W. Mockingbird Lane, Suite 450 Texas Education Agency Dallas, Texas 75247 1701 N. Congress Ave (214) 845-4045 Austin, Texas 78701 5 illeok Honorable Mike Morath ston Strawn LLP Commissioner 111 1 Louisiana St. Texas Education Agency 25th Floor 1701 N. Congress Ave Houston, Texas 77002 (713) 651-2795 jbilleok@winstoncom JWB/cam AmerieasActive: 85078611 . . i . . Austin, Texas 78701