Texas denied thousands of students special ed services. Does the policy go back to George W. Bush's presidency?

In the wake of a scathing federal report last month blasting Texas for excluding thousands of students from special education, a wave of accusations has rolled through the state's education community.

The federal government admonished the state for creating the exclusionary policy and charged state officials with cleaning up the mess. Gov. Greg Abbott then blamed school districts for shirking their responsibility to teach kids with disabilities.

In retaliation, school administrators and teachers pointed fingers at former Texas legislators for first suggesting a cap on special education to cut costs. Amid the political infighting, parents held both state leaders and school officials accountable for perpetuating a system that kept so many children from accessing special education for more than a decade.

As the hunt continues for the ultimate culprit, some Texas educators and officials are now pointing back at the federal government.

They said the current narrative — that Texas leaders cut costs by capping the percentage of students who could receive the specialized tools and assistance they needed to learn — ignores the effect of changing federal policy on local actions. The federal government, they argue, had a big part in creating the problem it's now hammering Texas to fix.

The Texas Tribune recently spoke with more than a dozen people who were in federal, state or local education leadership positions in the early to mid-2000s. They described a fierce battle between federal and state education officials on whether and how to test students with disabilities, resulting in mixed messages for school administrators and ultimately leaving thousands of kids without the tools they needed to learn.

The state and local leaders say the U.S. Department of Education pressured Texas to decrease the number of students in special education, especially during President George W. Bush's tenure in the early 2000s.

For decades, the federal government had been concerned states were labeling too many students as having learning disabilities and needing special education. And the Bush administration thought Texas was gaming the system by putting too many struggling learners in special education — resulting in most of those students' standardized test scores being excluded from their schools' overall results, which counted toward crucial federal school ratings.

Then-Texas Education Commissioner Shirley Neeley Richardson advocated for school administrators, who said they were exempting students who should not be subject to high-stakes testing.

The disagreement culminated in a showdown between state and federal education chiefs in spring and summer 2005. Eventually, they reached a compromise: Texas would slowly, over time, include more students with special needs in its school ratings.

It's hard to pinpoint the exact timeline between this Bush-era compromise and the precipitous decline in the percentage of Texas students receiving special education services. But Texas education officials and educators say the Texas Education Agency felt compelled to ensure the state did not identify too many students as eligible for services, and encouraged districts to decrease their numbers.

"I don't think it's fair for TEA and particularly those who by all accounts have been trying to do good work ... to have their reputations impugned when the [federal] department doing the impugning was basically putting the pressure on them to rein in special education," said Todd Webster, who spent about six years in TEA leadership, including a few months as acting chief deputy commissioner in 2012.

"Ugly Texas two-step"

When Bush left the Texas governor's mansion for the White House in 2001, he brought with him the state's strict system for rating schools, and some of its main architects, to use as the basis for the controversial education law called No Child Left Behind.

The law required states to adhere to strict testing and accountability standards, including administering annual standardized tests, reporting scores of specific student subgroups and showing proof of student progress. Schools received regular ratings or evaluations in part based on how their students performed on these tests.

Federal law said states could only keep test scores of students with the most severe disabilities — 1 to 3 percent of each state's students — from counting toward school ratings, to force schools to pay attention to the progress students with special needs were making each year. Unless states could show cause for exempting a higher percentage, students left out of school ratings above those limits would count as automatic failures.

“You couldn’t have a disproportionate number of students identified for special education. I think it was that interpretation that has caused districts now not to provide services for kids,” said Cathy Davis, assistant reading director at TEA in the late 1980s through late '90s, and later an administrator at Round Rock ISD. “The accountability rating, the accreditation rating would suffer if you had too many special education kids.”

In 2003 and 2004, Texas far exceeded the federal limit, choosing not to count the test scores of 9 percent of its students in its school ratings. That meant three-fourths of all Texas students in special education were not fully accounted for in federal evaluations of how schools were preparing students.

Students in that 9 percent were instead taking alternate standardized tests that did not count toward ratings. As a result, more than 400 school districts were able to report higher standardized test scores — and meet federal achievement standards — when they would not have otherwise.

Sandy Kress, one of the key creators of No Child Left Behind as Bush's senior adviser, called this approach to accountability the "ugly Texas two-step." He said he thought Texas districts were putting more students in special education to get them out of general education classes and to avoid testing them and counting them in school ratings.

He said evidence showed most students with disabilities could take the regular tests, often with accommodations such as extra time or separate testing rooms.

So the federal government cracked down. "It was not an absolute cap or a concrete cap, but it was pressure on Texas to reduce the percentage of kids exempted," Kress said.

U.S. Secretary of Education Margaret Spellings, who grew up in Houston, told reporters in 2005 that she was an "earth mother type of Republican" but that she would come down hard on Texas for defying federal law, even if that meant slashing federal funding for Texas schools.

"Nine percent is nearly half a million kids. No Child Left Behind does not mean 'No Fewer Than Half a Million Left Behind,'" she said.

"How TEA internalized that, I can't really speak to," said David Dunn, Spellings' former chief of staff who later headed the Texas Charter School Association.

Texas educators argue they weren't trying to game the system — they were protecting students with disabilities who should not have to be subject to the extreme pressure of a high-stakes test.

"Many of us as special educators are frustrated because if students that receive special education services could pass the test as it is, even with accommodations, they probably wouldn't need to be in special education," said Cyndi Short, special education director at Clear Creek ISD, who was at a district in San Antonio in the early 2000s.

Tensions came to a head in the spring of 2005, when Spellings fined Texas $444,282 for failing to meet a federal deadline to tell schools how they scored in federal evaluations. The delay was caused by the dispute over Texas' process for counting students with disabilities.

In June 2005, Spellings and Richardson, the former state education agency commissioner, reached a compromise allowing Texas to slowly reduce the percentage of students left out of school ratings over the following couple of years. Texas had to enter into a written agreement setting a timeline for complying with federal laws for accountability and special education. "This is very good news for Texas school districts," Richardson said at the time.

In the midst of this conflict, TEA created a new monitoring system that kept track of the percentage of students each district was placing in special education, among other data points — the start of a steep drop in Texas' special education rate to a low of 8.5 percent, the lowest in the country. During last year's legislative session, state lawmakers passed a law that prohibited TEA from tracking that percentage.

The federal government first reviewed and signed off on the new state system in 2006.

Richardson told the Houston Chronicle in 2016 that the system was TEA's "first stab" at addressing the problem of over-identifying students. To this day, TEA says it did not tell schools to deny services to students.

Response to intervention

Texas education officials also responded to a major change in federal special education law in 2004, as popular thought changed on how to help students with learning disabilities like dyslexia, the largest group of students in special education. Research showed that many students labeled as having a learning disability actually never had proper reading and writing instruction.

"We were mixing up students who had legitimate physical or emotional needs with students who had learning needs and instructional needs because of what I felt to be, in many cases, inadequate reading instruction,” former Houston ISD superintendent and U.S. Secretary of Education Rod Paige told the Tribune last year.

The federal government authorized a new version of its special education law giving states more leeway to decide whether certain students belong in special education. The 2004 law let school districts use a process called "Response to Intervention," or RtI, to provide aggressive targeted reading and math instruction and help struggling students catch up. Educators are expected to use data from those screenings to determine whether students have undiagnosed learning disabilities or whether they need other types of academic support.

"A public agency may not identify any public or private school child as a child with a disability if the determinant factor is lack of appropriate instruction in reading or math," read the final regulations for the 2004 Individuals with Disabilities Education Act.

Over the past few years, TEA officials have repeatedly touted the state's decrease in special education numbers as a positive sign that RtI was working and fewer students were being incorrectly identified as learning disabled. But federal investigators last month found many Texas educators were incorrectly using the screening process to delay or deny students federally funded special education services they needed.

"We're always worried about whether everyone has access to special education services that needs it," former TEA special education director Gene Lenz told the Houston Chronicle in 2012. "But nothing seems more inappropriate to me than to place a child into special education when they don't have a disability." He declined to comment for this story.

At the governor's behest last month, TEA quickly drafted an $84.5 million plan to overhaul special education, promising to train school administrators on how to find and educate students with disabilities and promising to find the students who have been denied specialized services and tools over the last decade.

For parents of students with special needs, the stakes are extremely high.

"TEA did not ensure that all ISDs in the state properly identified, located, and evaluated all children with disabilities residing in the State who were in need of special education and related services," U.S. Department of Education officials told Texas in last month's report. "Consequently, TEA failed to make a free appropriate public education available to all eligible children with disabilities residing in the State."