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Cap or Indicator? Is the Texas Education Agency Helping or Hurting our Special Education Population?

By Irma Cruz*

The Individuals with Disabilities Education Act (IDEA), originally called the Education for All Handicapped Children Act of 1975, is the federal law governing special education. Congress enacted IDEA because millions of students with disabilities were being denied proper educational services.[i] IDEA’s mission is to provide all students who have disabilities with an “appropriate public education that emphasizes special education and related services designed to meet their unique needs…”[ii] This act has led to decades of nationwide success in the area of special education. [iii] However, a recent investigation by the Houston Chronicle revealed that the Texas Education Agency (TEA), the state agency that oversees primary and secondary education in the state, has deliberately disregarded IDEA’s mission.[iv]

According to the Houston Chronicle, the “percentages of students in special education…declined since 2004[,] when the TEA created [an] 8.5 percent enrollment benchmark.”[v] Primary and secondary school districts in the state interpreted this enrollment benchmark as a cap on the number of acceptable special education students. Further, these districts did not want to surpass the maximum 8.5 percent benchmark because they feared they would face punitive measures, including sanctions and on-site monitoring.[vi]

Although the Texas Deputy Commissioner of Academics, Penny Schwinn, asserted that TEA never intended to limit the number of students receiving special education services,[vii] there is no doubt that this standard created such a cap.  Consequently, the Texas school districts experienced detrimental effects for the next decade, as evidenced by statewide data. Looking at the Houston Independent School District from 2003 to 2004, the school year before the cap went into place, 9.9 percent of students in the District received special education services.[viii] That percentage immediately began to decline. For instance, the most recent numbers show that during the 2014-2015 school year, the percentage fell to 7.4 percent.[ix]

One of the most drastic declines existed within the Laredo Independent School District, where the percentage of students receiving special education services fell from 13.6 percent (2003-2004) to 7.8 percent (2014-2015).[x] Although this is not the only district that experienced a sharp decline, the Laredo District faced large amount of scrutiny, including fines and on-site monitoring, from the TEA. [xi]

When faced with the Laredo accusations, Deputy Commissioner Schwinn explained “[a]llegations that TEA issued fines, conducted on-site monitoring visits, required the hiring of consultants, etc. when districts provided special education services to more than 8.5% of their students are entirely false.”[xii] Schwinn laughably went on to allege that TEA’s on-site monitoring of Laredo, beginning in 2004—the same year as the cap went into effect—stemmed from other issues within the District. According to Dallas News, Schwinn and other “Texas Education Agency officials have insisted that they simply developed an indicator — not a cap — monitoring enrollment rates to ensure that students are not inappropriately placed in special education.”[xiii]

However, even if TEA’s claim that it was setting an indicator is taken at face value, such a statement is irrelevant and, quite frankly, unsubstantiated. The impact is clear: districts responded by denying students evaluations and by asking their employees to find ways to reduce the number of students in special education. One such casualty was Citlali Espinoza, a student who was repeatedly denied an evaluation from school officials. Only when her parents sought legal help did the school agree to (1) evaluate Espinoza and, (2) provide her with all necessary services.[xiv] Citlali serves as a paragon of what all districts were doing across the State: districts were systematically denying many students evaluations to keep their enrollment below the 8.5 percent mark set by the TEA.

School officials like Christine Damiani, the former Special Education Chair for the Alief Independent School District, confirmed that her district faced many sanctions from the TEA because of their high number of special education students.[xv] She recalls that she was once obligated to call dozens of students’ parents from her self-contained autism class, and tell them that their child was going to be moved to another program or out of special education entirely.[xvi] Damiani said she complied with the orders but “it felt illegal and immoral. [xvii]She lost sleep for weeks afterward[s]…and eventually the incident helped drive her to retire after 21 years with the district.”[xviii] These two examples perfectly illustrate what this “indicator” motivated: committed school employees retired and students with specialized needs were denied services.

All the evidence presented and the copious anecdotes from parents and school officials confirming the negative affects of the TEA cap forced the U.S. Department of Education, in accordance with IDEA, to intervene. The U.S. Department of Education sent a letter to TEA, on Oct. 3rd, expressing their apprehensions concerning this “indicator.[xix]” TEA officials, like Schwinn, have continued to defend the notion of the benchmark as an indicator as opposed to a cap, intended to help not harm special needs students.

Nonetheless, it seems like positive changes are on the horizon. On November 2nd, 2016, TEA agreed to stop auditing schools that have more than 8.5 percent of students in special education, and also agreed to suspend the benchmark and eventually eliminate it.[xx] In time, schools will stop feeling the pressure imposed by this benchmark and will finally be empowered to offer special education to all children in need of such services.

The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.

*Irma Cruz is a Junior Editor on MJEAL.  She can be reached at

[i] Individuals with Disabilities Education Improvement Act (IDEA) of 2004, 20 U.S.C. §1400 (2016)

[ii] Id.

[iii] Id.

[iv] Brian M. Rosenthal, A Chronicle Investigation Denied: Schools Push Students Out of Special Education to Meet State Limit, Houston Chronicle,; Texas Education Agency (TEA), (Jan. 25, 2017)

[v]: Glynn A. Hill, Local Districts Respond to Special Education Report, Houston Chronicle, (Nov. 10, 2016, 3:44pm),

[vi] TEA Finally Drops Special Ed Cap (Nov. 3, 2016, 1:24 pm),

[vii] Letter from Penny Schwinn to Assistant Secretary Swenson (Nov. 2, 2016),

[viii] Rosenthal, supra note 4; TEA, supra note 4.

[ix] Rosenthal, supra note 4

[x] Id.

[xi] Letter, supra note 7

[xii] Id.

[xiii] Eva- Marie Ayala, Texas kids weren’t kept out of special education classes to save money, state tell feds (Nov. 2, 2016), Dallas News,

[xiv] Texas May Be Denying Tens of Thousands of Children in Special Education (Oct. 21, 2016, 4:59am),

[xv] Rosenthal, supra note 4

[xvi] Id.

[xvii] Id.

[xviii] Id.

[xix] TEA,

[xx] Glynn A. Hill, Local Districts Respond to Special Education Report, Houston Chronicle,  (Nov. 10, 2016, 3:44pm),

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