Credit: Eli Hartman for The Texas Tribune
President Donald Trump’s order to dismantle the U.S. Department of Education last month came with promises that federal dollars for special education will stay intact.
In CNN’s State of the Union, U.S. Education Secretary Linda McMahon said protections for students with disabilities are “not going to be disrupted,” but added that she wanted to see special education services be “monitored and taken care of at the state level.”
McMahon’s comments align with Texas Republican leaders’ desire to shrink the federal government’s role in education and give states more discretion in how they manage federal resources for public education.
But while Texas schools will still receive about $1.3 billion a year in federal special education funds, disability rights advocates fear the changes will mean the state will be left with few guardrails to make sure the money is going toward the students it was intended for.
In a state that has long struggled to comply with federal special education law, advocates are sounding alarms that Texas students with disabilities could see an erosion of their civil rights protections that guarantee they receive certain accommodations and educational supports.
“There’s been talk about throwing it back to the states,” said Jolene Sanders, a policy director with the Coalition of Texans With Disabilities. “Texas is not equipped to do that. To not have that level of federal oversight, it’s devastating. ”
The Trump administration cannot eliminate a federal agency without approval from Congress, but McMahon has insisted core functions of the Education Department will move to other agencies. Special education, she has said, could be kicked over to the Department of Health and Human Services.
So far, the administration has cut the agency’s staff in half — a purge that included the shuttering of the entire Office of Civil Rights hub in Dallas, which probed disability discrimination complaints in Texas.
Little oversight of funds
Texas has a checkered history complying with the federal special education law that requires schools to properly evaluate students with disabilities and provide them with an adequate public education.
“We have this past where the state was actively trying to avoid spending on special education,” said Andrea Chevalier, with the Texas Council of Administrators of Special Education.
Between 2004 and 2017, tens of thousands of students in the state did not receive the tools and services they needed to learn because Texas had quietly capped the percentage of students districts could identify as in need of special education services. State officials later said the cap was to cut down on special education costs.
The Education Department in Trump’s first term was forced to intervene in 2018, slapping the Texas Education Agency with a series of corrective actions like requiring it to reevaluate students who were previously denied services.
“Far too many students in Texas had been precluded from receiving supports and services,” said then-Education Secretary Betsy DeVos.
When the TEA said it had made good on the Education Department’s instructions a year later, federal reviewers visited a dozen Texas public schools and found otherwise.
A federal audit in 2017 separately found that Texas misused a special education program for Medicaid students, improperly billing the federal government for unrelated services. Federal officials ordered Texas to return $16 million back.
“Texas has really struggled with special education,” said David DeMatthews, a professor of education leadership at the University of Texas at Austin. “Without a Department of Education monitoring Texas … the situation for children with disabilities and their families would be much worse.”
The state’s challenges in meeting children’s special education needs are partly because schools don’t have enough money or staff. Every year since 2000, Texas has reported a shortage of special education teachers and diagnosticians, DeMatthews said.
In testimony in front of state lawmakers this legislative session, TEA officials identified a $1.7 billion gap in the funding schools need to pay for special education services.
In plans to dismantle her own agency, McMahon has talked about wanting to remove the “strings attached” that come with the federal dollars states receive, which disability rights experts say could translate to diminished oversight.
Given Texas’ past, they said they don’t trust the state to provide adequate special education services to the children who need them. They have counted on federal oversight in the past to hold Texas accountable — and without those checks, they worry the state will once again violate special education law and misuse special education funds.
“Texas can basically stop implementing special ed law, but still receive the money. That is shocking, that is anti-civil rights.” DeMatthews said. “History has shown us that, without monitoring, states will break the law, and Texas has proved itself to be one of those states.”
Whittling away at due process
When students do not get the accommodations and help they need for their disabilities, their families can file a civil rights complaint with the Department of Education. As of Jan. 14, more than 1,100 civil rights complaints were active in Texas. More than half of those were related to disability discrimination.
But since taking office, Trump has gutted the civil rights division, shuttering the entire Dallas office, along with six other hubs around the country. Many of the staffers who were laid off were attorneys who would find resolutions with schools involved in complaints.
The Dallas office was handling every civil rights complaint coming out of Texas. Those complaints will likely be redirected to the Kansas City office at a time when Department of Education attorneys were already struggling to keep pace with their caseloads, Dallas staffers who were laid off told The Texas Tribune.
“These are students who are all over our state who are saying that, ‘hey, I’m not getting the help that I need,’” said Brittany Coleman, who worked as an attorney in the Dallas civil rights office for six years. “Consider the sheer size of Texas… that means delayed responses to intervene for students who have special needs.”
The Trump administration also appears to be changing the division’s focus. The Department of Education has touted new investigations related to Trump’s priorities, like getting rid of gender-neutral bathrooms, banning trans women athletes and combating antisemitism.
Meanwhile, student complaints related to disability access and sexual and racial harassment have been put on hold. Before the Dallas office closed, Coleman told the Tribune she had been instructed not to communicate with students and institutions involved in ongoing cases. Nor could she help students and families wanting to file new cases, she said.
“We lost valuable time to be able to work on cases. A lot of these cases can be time sensitive,” Coleman said. “Especially if you have students with disabilities, the longer that child may go without having their accommodation provided…There are kids being harmed.”
McMahon has suggested the civil rights office could move over to the Justice Department.
Such a shift would narrow students’ access to due process, said Sheria Smith, who worked as an attorney in the Dallas civil rights office for nearly a decade and is a chief union organizer for Education Department employees.
“The elimination of the Department of Education will make it less likely that these students will be protected and certainly more expensive for these students and their families to seek their protection,” Smith said.
For as long as the civil rights division has been housed under the Education Department, families have been able to file a free one-page form to get the federal government to intervene. Smith said attorneys take on every complaint and aim to find a resolution within six months.
That’s very different from the Justice Department, where litigators can pick and choose which cases they take on and cases often take years to be resolved. Families would also need to get an attorney, Smith said.
“Texas families — unless they have the ability to retain an attorney to enforce their child’s rights and the ability to wait three, four years for a resolution — will not have a recourse to enforce their children’s rights,” Smith said.
Rob Reid contributed reporting to this story.
Disclosure: Coalition of Texans with Disabilities and University of Texas at Austin have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.
