Not So Special Ed

Texas Monthly

by Mimi Swartz
Executive Editor

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

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.

ILLUSTRATION BY THOMAS FUCHS

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.