AUSTIN, Texas — Disability advocates this week threatened to sue the Texas Education Agency unless the state permanently ends its special education enrollment benchmark within the next month.

The advocates said immediate action was necessary because of the “devastating harm” caused by the benchmark.

The state already has suspended and pledged to eventually eliminate the decade-old benchmark, which punished school districts for giving special education services to more than 8.5 percent of students. But the state has angered advocates by not saying when it will permanently end the policy.

“The time for action to protect and support Texas’s children with disabilities is now,” the advocates from the Coalition of Texans with Disabilities and Disability Rights Texas wrote in a letter to the Texas Education Agency and Commissioner Mike Morath.

Asked to comment on the letter, agency spokesman Gene Acuña said that officials were already working to eliminate the 8.5 percent metric. Changes to the policy should be proposed in the spring, he said.

“As always, we continue to seek input from stakeholders during this process,” Acuña said.

The Texas Education Agency has denied that any child has been harmed by the benchmark.

The threat adds a new dimension to the debate over the benchmark, which already is a topic in the state legislature and the subject of an investigation by the U.S. Department of Education.

Legal action also could open the door to an effort to obtain compensation for the tens of thousands of students with disabilities who have been denied services due to the benchmark. Federal law requires schools to serve all eligible students with disabilities.

The four-page letter cited a 2016 Houston Chronicle investigation that revealed the policy and the damage it caused.

The Chronicle found that officials arbitrarily chose the 8.5 percent target while facing a $1.1 billion state budget cut and did not consult lawmakers, the federal government or any research.

Nationwide, about 13 percent of students receive some type of special education services such as tutoring, counseling or therapy — a percentage that has not significantly changed for years.

In Texas, after the benchmark took effect, the percentage dropped from near the national average down to exactly 8.5 percent. That is the lowest rate in the United States, by far.

More than 100 current and former school employees admitted to the Chronicle that they delayed or denied services to students with disabilities due to the benchmark.

“The children and families of Texas deserve, need, and are legally entitled to better,” the advocates wrote in their letter.

The letter also outlined the group’s legal theory.

First, the advocates said, the benchmark was inappropriate because states are allowed to monitor school districts “only as necessary to ensure compliance with federal law.” Moreover, they argued, the benchmark actively violated the law “because it directs, incentivizes, and has caused school districts to deny enrollment in special education programs to eligible students.”

The advocates said they would not file the lawsuit if Morath and the agency counter-sign their letter and initiate the process of permanently ending the benchmark within 30 days.

“We genuinely hope and believe such a lawsuit is unnecessary given our joint interest in making sure the children with disabilities of Texas get the support and services they are legally entitled to receive,” the advocates wrote.

© 2017 Houston Chronicle
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