As they respond to a Department of Education investigation into the state’s special education practices, school districts and the Texas Education Agency are under the microscope this school year to correct mistakes that denied children educational services needed to succeed in school.

With the education of hundreds of thousands of special needs students at stake and the first day of school around the corner, a lack of consensus remains about how school districts need to define basic terms and protocol for students with dyslexia, the most common learning disability.

The TEA is preparing guidance for school districts to clarify some of the issues the DOE investigation raised. One advocate for dyslexic students said state-sponsored practices in the meantime have continued to muddy the waters about when general education interventions are appropriate and when Individuals with Disabilities Education Act protocols and protections are needed.

Waco’s Region 12 Education Service Center, one in a network that carries state educational initiatives to the local level, held a seminar Monday, “Section 504 updates and Emerging Issues,” featuring attorney David M. Richards. Richards is a partner at Austin-based Richards Lindsay & Martín LLP. His biography describes the firm as, “devoted entirely to the defense of school districts and special education cooperatives.”

“Section 504” refers to a federal law pertaining to accommodations for students with disabilities, often provided in a general education setting. A TEA letter to districts earlier this summer states one of the issues the DOE identified was students with special needs, particularly dyslexic students, being given Section 504 accommodations when the law may require more robust services through IDEA. Local school officials said at the time the TEA letter raised more questions than answers and they were eager to see the state’s updated dyslexia program expected this fall.

During the seminar Monday, Richards described a “public relations nightmare for districts” on the horizon.

“When TEA comes out with mandates in November … parents are going to be angry,” he said. “… School districts need to be telling parents that this is all because of TEA and the 8.5 percent cap TEA imposed.”

About 100 people attended his seminar in Waco. Educational professionals in attendance received six continuing education credits for their time. One attendee, Robbi Cooper, federal and state policy director of Decoding Dyslexia Texas, said she left the seminar concerned.

“My perspective as an attendee at this presentation was that the defense attorney was left to fill the audience with information that seemed as though he was arguing a court case specifically to keep dyslexic students away from IDEA protections,” she said. “Scrap and resist the legal excuses that perpetuate the same process of divide and conquering. We encourage schools and parents to start this new school year by working together.”

Her general advice to parents this year, she said, is to ask questions, get to know teachers and make sure requests are in writing.

Chris Griffin, Region 12 Director of Special Education resources, said Richards is a frequent speaker at the center, along with many other attorneys who offer seminars to local districts.

“It’s important for them to hear all those different viewpoints,” Griffin said. “The school is going to make a decision on how they are going to approach that, but we don’t pick one that we feel like we align with. We just bring different folks in at different times.”

Region 12 marketing director Jennifer Marshall-Higgins declined to say how much Richards was paid for the seminar or who paid for the event.

During Monday’s conference, a special education educator asked whether special education directors should err on the side of caution in deciding which students to evaluate in order to rule out the possibility of need and to avoid potential legal ramifications if they miss a student who should be getting special education services.

Richards said it comes down to resources.

“Typically what we want to do is we want to conserve the resources and make sure we are using them for the proper purposes,” he said. “If I have a kid who is doing really well and the student may have dyslexia but is doing better with dyslexia instruction, I don’t want to waste my time with the special ed (evaluation). And I don’t think special ed should waste their time when there are needy kids who need that attention of the (evaluation). That’s my concern. I want to look at the use of resources. If you as a special ed director want to take a different route then more power to you.”

One of the DOE investigation’s findings was that districts were failing to meet the IDEA’s “child find mandate” to identify all students needing special education services, because the districts were relying on other interventions or accommodations.

The state’s compliance action plan in response to the investigation states the TEA will update guidance and provide training on best practices, among other compliance measures.

“This will explicitly include clarifying the interplay between response to intervention, Section 504, dyslexia, and special education,” according to a TEA presentation last month at the Texas Council of Administrators of Special Education.

Griffin said there are a lot of “gray areas” in the definition and distinction of those programs. Cooper said she hopes the Department of Education will clear up those gray areas soon.

The clarification is important because a child’s educational services can differ greatly depending on which program the student receives. Under IDEA, school districts must fully evaluate a student to rule out other disabilities, create an Individualized Education Plan with parents and staff, and monitor and record of the student’s progress. IDEA also lays out specific recourse for failure to follow an Individualized Education Plan, while general education programs do not carry the same protections.

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