5th Circuit delivers expensive message to state
The 5th U.S. Circuit Court of Appeals has sent the Texas Legislature an expensive message as lawmakers make plans to head back to Austin to tackle the budget for the next biennium.
Shortchanging the education of Texas schoolchildren has its price, and it won’t be tolerated. Unlike other federal court rulings against the state of Texas on education funding, this one comes with an actual price tag.
The New Orleans-based federal appellate court last week ruled the U.S. Department of Education was within its right to penalize the state $33 million for reducing its special education funding by $33 million in 2012. This is in keeping with federal law that mandates states must maintain the same amount of special education funding to continue to be eligible for the federal grants; the federal dollars are not meant to be substituted for state funds.
The penalty amounts to roughly 3 percent of the $1 billion the state annually allocates for special education. The federal government can demand payment all at one time or spread out the penalty over several years. This fine should be paid from the state’s rainy day fund, which is holding close to $13 billion, to ensure that the allocation does not have a negative impact on any education-related budgets.
In addition, the court ordered the state to pay the federal government’s appeal costs. The feds should waive that part of the penalty in the best interest of Texas students, but at the same time, the state should agree to take this appeal no further. What the state did to children who needed special education services was indefensible.
The state illegally set a cap on the number of students receiving special education and then used the declining participation in the program as the reasoning for decreasing spending in that area. The practice was exposed by a 2016 Houston Chronicle investigation into how special education was being dispensed. This prompted a federal inquiry.
The newspaper found that while 13 percent of students across the country were participating in special education classes, Texas was limiting access to just 8.5 percent of children in public schools. That prompted many parents to seek education alternatives for their children, with many of them having to home-school their children after finding the options were limited.
The Department of Education found the cap to be illegal and ordered the Texas Education Agency to locate and provide services for students who had been denied them. Special education services for the next three years have a projected cost of $3 billion. The bigger problem is going to be finding teachers for the estimated 150,000 additional special education students who are expected to be on the rolls by 2021. There are not enough such teachers in the pipeline to meet the demand.
In a letter sent to TEA in late October, U.S. Department of Education officials said the state was not working fast enough to fix the systemic problems with special education. It set a Dec. 1 deadline for the state to show it has a plan to ensure proper access to special education.
Regrettably, this is not the only education front on which the state has failed Texas children. School districts are still grappling with a less equitable public school finance system more than two years after the Texas Supreme found the system constitutional but in need of serious fixing.
It’s time to get down to the business of resolving the serious education finance issues facing the state. Meanwhile, pay this penalty from the rainy day fund and forgo any appeal.