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Not So Special Ed

Public school parents with special-ed kids often find themselves squaring off against school districts and the taxpayer-funded lawyers who protect them.

By March 2017Comments

illustration by Thomas Fuchs

In May of 2009, an Austin mother by the name of Cheryl Fries filed a lawsuit against the Eanes Independent School District for denying her daughter, Claire, who suffered from cerebral palsy, what the Americans with Disabilities Act has mandated since 1990: a right to “a free appropriate public education.” Fries, who had been a schoolteacher, could never have imagined that the fight for her daughter’s rights would land them at the courthouse; all Fries had been asking for since 2004 was that her daughter be accommodated according to the law, which would have allowed her, among other things, to play with the rest of the kids during recess.

Cerebral palsy is a neurological disorder that affects muscle control and, therefore, balance, posture, and coordination. Claire, then as now, was inordinately bright and outgoing, but she couldn’t walk; she used a wheelchair, and while the rest of the kids played during recess, her school thought it best to leave Claire on the sidewalk outside the playground—with the kids who were being punished for misbehaving. She was bullied and often came home in tears. In addition, the bathrooms lacked grab bars, so she sometimes fell onto the floor. She still fared better than some of the other disabled kids in the district, who would be left inside the classrooms during fire drills because the school lacked proper handicapped access. What the Frieses ­wanted was to make Claire’s school safer and more enjoyable for the disabled kids. But despite promises to help, Eanes ISD, one of the state’s wealthiest districts, always found a reason to refuse.

That is how Claire Fries, then twelve, ended up in an imposing law firm conference room, awaiting her deposition at the hands of the school district’s attorney, who was with the firm Rogers, Morris and Grover. Seated directly across from the superintendent, Claire was terrified that testifying would get her thrown out of school. The Frieses reached a settlement with Eanes in 2011, sometime after the Office for Civil Rights intervened. “Everything my kid needed cost about one hundred thousand dollars, and they ended up having to spend ten to twelve million dollars because I backed them into a corner, and they had to fix every school in the district,” Fries told me.

The Frieses’ victory, however, is not the norm. Houston Chronicle reporter ­Brian M. Rosenthal’s excellent ongoing series, Denied, has shown that school districts all across the state refuse special-education services to children in need. Since 2004, the percentage of kids in Texas schools receiving special-ed services has dropped well below the national average of 13 percent to 8.5 percent. The Texas Education Agency claims that this drastic drop is a result of commitment and better programs, along with a desire to stop schools from dumping minority kids, including non–English speakers, in special ed. But the federal government agreed with Rosenthal’s reporting when he asserted that the TEA arbitrarily assigned the 8.5 percent ceiling during the $1.1 billion state budget cuts required around fourteen years ago.

Change might be coming. House Speaker Joe Straus has demanded that the agency overhaul the way it identifies special-education kids this session. The Department of Education’s Office of Special Education and Rehabilitative Services held listening sessions last fall, and a federal investigation of the TEA was set to begin in late February. Earlier this year, advocates threatened suit against the agency, unless it abolishes the 8.5 percent benchmark.

The TEA deserves some sympathy. Public schools are fighting for their lives, trying to be all things to all children, with fewer resources from the state to do so. Wealthy parents want Mandarin classes while the poorest kids don’t have textbooks. In truth, kids with special needs have never been particularly popular in public schools; that’s why the Individuals with Disabilities Education Act was created back in 1975. Special-ed kids can be expensive to help, and behavioral issues can be distracting to other students. Then too, the explosion in the identification of various learning disabilities has coincided with the growth of high-stakes testing; kids with learning issues can lower a district’s state-mandated ratings and, in turn, its funding.

But as parents of special-needs kids point out, the earlier the intervention, the better the outcome. Children with disabilities can learn using proven methods and can go on to lead productive lives. And, as Fries pointed out, a portion of a $53 million bond used to build new athletics facilities at Eanes could have gone to help some needier kids. The damage done by denying them an education can result in a lifetime of devastation.

Collaboration between families and schools is actually written into laws protecting the disabled. But in the eyes of parents like Fries, a handful of law firms specializing in education have made the process adversarial, working with school districts to deny services. It can be hard to determine which tail is wagging which dog—school districts or their lawyers—but the situation many families find themselves in is comparable to that of a poor kid who gets entangled in the criminal justice system and discovers that all the power and wealth of the state is lined up against him. “This is what happened to educated parents in a wealthy school district,” said Fries of her experience. “So imagine how bad it is for those families who don’t have the tenacity I had, who don’t even know their rights.”

The average person may not even know that the practice of school law exists, though in our highly specialized society, it’s not exactly surprising. The field took hold during the days of integration and then expanded as the U.S. moved toward greater equality: with the creation of the Bilingual Education Act, in 1968; protections against gender discrimination with Title IX, in 1972; and the 1975 Individuals with Disabilities Education Act, which has been revised over time. Today, the practice has a strong focus on special-needs children and determining what lengths schools and school districts must go to in accommodating them.

It’s a setup for conflict, and conflict was evident at an Austin listening session called by the Office of Special Education and Rehabilitative Services in December. The purpose was to encourage community members to weigh in on the availability of services for special-needs kids in public schools. It became the verbal equivalent of total war. On one side were parents with horror stories of the tactics schools use to avoid educating their kids; on the other was Jim Walsh, who is a name partner in one of the most powerful education firms in the state, Walsh, Gallegos, Treviño, Russo & Kyle, which has offices all over Texas.

Walsh has a thatch of silver hair, sun-weathered skin, and the easy manner of a West Texas ranch hand. At the session, he tried to rebut claims that the state was denying an appropriate education to special-ed kids. “There is no evil plot at work, and no one in Texas has intentionally or systematically denied services to kids who need them,” he said. But the more he spoke, the more he was shouted down by jeering, hissing parents, who accused him of being a liar, of making millions off disabled children, of being the evil mastermind behind the ejection of needy children from public schools.

“We are not the bad guy,” Walsh told me later, in a steady voice that betrayed just a whiff of irritation. Indeed, many attorneys who have worked with or opposite the firm say that it is the most collaborative of several in the state. To Walsh, the controversy over the denial of services is just another story sensationalized by the media. The “more boring but far more accurate” story, he said, is that Texas schools are run by people who care about kids; many of them are parents of students with disabilities. Money is tight, so it’s hard to do the right thing, but that doesn’t mean there’s a desire to deprive kids of the education the law requires. “We are gonna help the people who help the kids,” he told me. “What parents don’t see are the numbers of phone calls [from school districts] we take every day in which we tell them, ‘Yes, you have to do that for the child.’ ”

Indeed, the Walsh Gallegos website is a paean to public education. Members of the firm have served as the director of legal services for the Texas Association of School Boards. They serve and have served as special education hearing officers for the TEA. They host seminars all across the state on school law and are a go-to firm for school districts seeking legal advice. But it is precisely those connections that were most troubling to the parents at the listening sessions last year. The normal identification and approval of a child for special ed involves a series of near-endless meetings between parents, teachers, counselors, and administrators. Often, working together breaks down around the time a school’s opinion of a student’s status starts conflicting with a parent’s. Foot-dragging on the part of a school is common; the more aggressive a parent is on his or her child’s behalf, the more likely the parent is to be targeted as “difficult.” Retaliation, as evidenced by testimony during the listening sessions last year, is not unusual. Frustrated parents who hire educational advocates to help them through the maze (another growth industry) can discover that suddenly a $300-an-hour lawyer is attending meetings that have nothing to do with legal procedures. In other words, the taxpaying parents wind up footing the bill for the school’s lawyer, whose very appearance could be perceived as an intimidation tactic. “They want to wear you down until you move on or move away,” said Fries. “They know that families with children with disabilities have a lot on their plates.”

Then too, part of Walsh’s work involves advising hundreds of school boards across the state.* In fact, he told me he had been against attaching a specific number to special-ed enrollment. It’s particularly worrisome to parents that firms like Walsh Galle­gos hold seminars on special-ed law that are open only to educators and that teachers and administrators from disparate districts can be heard to parrot the same jargon that appears in the firms’ training materials. “If you are a school leader, a principal, or a school board member and the only training you get about special-ed law is from the one voice who is also hired by your district to help you not provide services, that’s a conflict of interest,” said Fries. “It also creates a poisoned climate.”

An overall lack of transparency prevails. Fries has spent years trying to trace how schools actually spend their special-ed dollars and what they pay their law firms. “I don’t think anybody in Texas believes their tax dollars should be paying for lawyers instead of teachers,” said Fries. That’s actually a debatable point these days. The unspoken fear—or that which is spoken behind closed doors in many school districts—is that serving one special-needs child will require schools to serve them all. Maybe someone should remind districts that that’s the law.

Correction: A previous version of this article said Walsh’s work involved advising the TEA. He, in fact, advises school boards across the state. We regret the error. 

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  • compassion123

    Thank you for caring about our children, for recognizing they are valuable members of our communities, and that they are legally entitled to a meaningful education. Hopefully this is only the beginning of an investigative piece that fleshes out what is really happening to disabled students in Texas: a systematic denial of their civil rights that goes far deeper than the cap.

  • CranesForever

    Thanks Mimi!

  • Sarah Schneider

    Thank you, Mimi for putting a spot light on special education and special needs children. Please continue to write about this important issue.

  • ATXmama

    Parents who are just trying to advocate for their children with disabilities and get them what they are entitled to under the law have no idea what they are up against. A handful of attorneys have been controlling special education in Texas for a long time, and making a lot of money doing it. We should all submit open records requests to our school districts and find out just how much WE TAXPAYERS have been paying high priced attorneys to fight us in our attempts to educate our children with disabilities. Thank you for bringing attention to this issue… and please don’t stop. This is the tip of the iceberg.

  • andrea stanford

    Thank you for bringing light to a subject that has stayed hidden in the shadows for years!

  • Jana Palcer

    I am joining every other commenter in THANKING you profusely for this powerful piece of work. You have put in a perfect nutshell almost every single horror and tactic that parents face in their fight against non-compliant school districts and the corrupt law firms who protect them AT ALL COSTS. Please, please continue to investigate and address this ugly secret that needs desperately to find the light of day. The taxpayers should be OUTRAGED that endless public monies go directly to line the pockets of attorneys who make their living off of crushing the weakest and most vulnerable children and families in the state. Parents, like myself, who go up against these cowardly districts and high priced lawyers are targeted, blamed, maligned, slandered, and viciously victimized from all angles. Retaliation is real, and so are the scars it leaves behind. Please somebody stop this. Please somebody save us.

  • suzshepherd

    Great article and thank you Mimi Swartz for writing it. The Fries’s case is sadly not very unusual in Texas special education. Lots of foot-dragging by districts before they do what the law requires, and it’s the child whose time is wasted waiting for decent access to facilities and curriculum. The most pathetic aspect of the article is Jim Walsh’s apparent pride in the many phone calls every day his firm receives from school districts attempting to deny rightful services to kids in special ed. That is certainly the experience of many special ed parents: school districts spending money on lawyers to avoid providing services, instead of doing the right thing to educate all the kids in the district.

  • Charlene Stubbs

    I live in NY and this article could have been about them. I read an article once that said in this country we spend more on jails than special education. maybe if children were not falling through the cracks they would not end up in jail as adults. Love this article.

  • Mimi

    Thank you for this article!! I hope it is the first of many more on this topic. Educating all children in a safe and needs-met environment should be our top priority. The mental health spectrum is a broad one but our children are worth the time and money (not used on lawyers) to address and fulfill their needs. Times they are a changing and we must figure out what the future of education should look like for all, then we must move in that direction.
    C.Allsbrooks – Texas

  • Ebs

    Great article, thank you for investigating and sharing this piece. My kids attend Fort Bend ISD and I give the district kudos for keeping their schools and facilities maintained to meet disability and handicapped acts/requirements. Not that I didn’t have too go to war with my son’s school in his first grade year.

    His first grade teacher informed me at the end of April that his reading level was not up to par he was at level 18 and had to be at 27 by the end of may. In order to pass first grade. The same very lacking at her job teacher also suggested I go too a certain place and see if he fits dyslexia criteria.

    At this point in time we were dealing with the No Child Left Behind era. The reason the school did not test my child or take my request for testing was extremely disturbing to me. Texas as well as a majority of states do not test kids for learning disabilities until they are in the third grade. They did not accept the summer school program as a means of passing him to second grade. My kid falling through the cracks was not an option for me.

    I was left to getting my own professional and evaluations out of my own pocket (not cheap) I was however armed with professional proof that my child was indeed extremely intelligent, however dyslexic. Which I discovered was a very different evaluation and analysis from what the Principal at Mission Bend presented when I went too war with them about aiding my son. The professionals that I paid too help me, happened to very well aware of the all too common situation. Between the professional psychologist and speech therapist the two were well connected friends with School District Head of Disabled Students. So through great help and suggestions, although my child was retained in first grade. I was able to win the war and get him the needed help and learning resources at school.

    Stay vigil and never give up on advocating for your children. By fifth grade my Son’s grades and STARRS test scores were so high that they could no longer assist him which was done with no outside help in his following years. All his help came from the school who happens to have a highly qualified speech and dyslexia therapist.

  • SK

    “Special-ed kids can be expensive to help, …..” please as an editorial note; kids are not special-ed, they are people. They are people first. Thank you.

    • Debra Liva

      Please state facts on the expense to support your irresponsible comment. Why not do an open records request to find out where the expense is. Like, how much they spend on the attorneys mentioned in this article fighting parents for rights that they are already entitled to by law but would rather spend money on their attorneys. I know this because I have done my homework and I know the facts. Ask your own District for starters, I challenge you. As for special-ed kids, I can’t agree more, they are people and deserve to be treating as such and get the education they are entitled to without parent having to pay their own attorney and/or advocate just to get that education.

      • SK

        The note is meant for the editors of the article (see quotation marks). If we can’t address children in special-education as individual’s first how can we expect policy, attorneys, schools et al. to address them as individuals first. Properly written, children with special needs or children enrolled in special-education, are entitled to a free and appropriate education (regardless of expense).

  • ANC

    As a Special Education evaluator, I find this article very one sided. Where is the input from the Special Education personnel who have sat across from parents whose child desperately needs support and the parent refuses to initiate services? Where is the input from Special Education personnel who have sat across from advocates and been insulted and disrespected by those same advocates? Where is the input from the other side of this story?

    • Debra Liva

      As an advocate for 20+ years all across Texas, I can guarantee without a doubt that I believe that the only disrespect comes from school personnel who are quite rude and condescending to the parents and/or advocates or both. On that same note, it is usually some district person from the District level or an administrator because we know that everyone aka teachers who work with the children for the most part are silenced and not allowed to speak or told to agree with whatever the spokesperson for the District says. Can you state some stats on the percentage of families who “refuse” because I sure would love to hear that and for that VERY small percentage, I going to guess less than 1% of those who need testing/service and refuse, where they explained their rights or where they told that there would be some sort of stigma and maybe it would not be in their best interest, because that is what is the norm.

      Lastly, I am not ashamed to state my name to the truth and tend not to hold a lot of weight on someone who spats out words but doesn’t identify him/herself or they are just a setup to create a diversion from the truth. Good Story Mimi, Debra Lopez Liva, Advocate

  • TexasSpecialEducator

    I understand what parents experience when trying to acquire special education or 504 services for their child, because I am one of those parents. I have two children who receive special services. One requires 504 services due to anxiety, and my second has a significant learning disability.

    I also understand the struggles school districts face when trying to provide a free and appropriate public education, because I am also a special education administrator. Let me state for the record, I got into special education because of my desire and passion to help students with disabilities, not because I want to withhold services. This article makes my profession look like we hate students with special education, which is absurd!

    I know there are situations where schools are not in compliance with federal and state statutes, and I can tell you firms such as Walsh Gallegos will be the first to set the school straight. I know because I’ve seen it. I also know there are situations where parents repeatedly sue school districts as they jump from one school district to the next anticipating a payday. (Yes, there are situations where cash money paid directly to the family is involved.)

    I’d love to walk everyone through the entire process, but it would require a very long response in order for me to explain the many variables that come into play. It would also be impossible to provide an honest and fair representation of both sides without an expansive explanation.

    All I ask is that you do your research before you form an opinion or take a position. Please remember this: Most journalist write articles that sell. It’s their job to sensationalize.

    These are questions or observations that I made as I read this article:
    1) Why did the journalist reference a case from 8 years ago? Why not something more current?
    2) Did the journalist’s article have a biased skew? What about this statement from the article: “While the rest of the kids played during recess, her school thought it best to leave Claire on the sidewalk outside the playground—with the kids who were being punished for misbehaving.” Notice how it’s not quoted as something said by the parent or from the hearing officer’s findings. I’d be willing to bet this colorful statement is just something made up by the journalist. You can bet if the parent said it there would be quotation marks around it.
    3) I’d like to know if making the campus ADA compliant was the only complaint filed. I ask because when buildings are constructed, the architecture firm has to submit building plans to be approved for ADA compliance. How was this building not ADA compliant? The only way is if the building in question was built prior to the implementation of the ADA regulation, in which the building code would be grandfathered. I know it’s an assumption on my part, but I highly doubt a school in Eanes ISD fell in that category.

    In reference to the 8.5% benchmark set by TEA, I along with every special education administrator I know has opposed it, but that does not excuse biased journalism. I must point out Rosenthal’s Houston Chronicle article titled “Texas’ special education cap drives families out of public schools,” doesn’t paint an entirely true picture. He compares the percentage of students receiving special education services in Texas (8.5%) to the national average of students receiving special education services (13.5%). A very crucial piece of information Rosenthal leaves out is that students with dyslexia are included in the national average, but not included in the percentage for Texas. The reason is Texas provides dyslexia services under Section 504 of the Rehabilitation Act. I can’t speak for other districts, but I can say once you add in these students the percent served by my district rises from 11.5% to 15.5%. That means we are serving a higher percentage of students than the national average. The state does not publicly report the percentage of students receiving dyslexia services, but I know they have the numbers because districts must report dyslexia service information to the state.

  • Debra Liva

    Thank you Ms. Swartz for the article. Unfortunately, while this story references a situation from 2008, I have been advocating for over 20 years and started with family members, then friends, and then Texas and the stories and situation are just egregious and unbelievable 20 years ago, in 2008 and even worse today in 2017. I also hope that this is the beginning of the exposure of what District across Texas do to CHILDREN. Yes, CHILDREN. Innocent CHILDREN on a daily basis without blinking an eye and hide behind their attorneys. Not the law, the attorneys.

  • Privacy matters

    Eanes ISD will not acknowledge special ed until the problem is really undeniable. The school encourages a parent to withdrawal before providing services. They frequently violate FAPE, IDEA and deny IEPs. Eanes team of lawyers will make anyone think twice about suing. It is just easier to leave. They would absolutely take the chance to get sued than provide services to the needed children. If you think you may have a child in need – do not move to Eanes – like I did, regretfully.