The Legal Brief: Disability Rights Sues School District Over Special Education

On March 29, Disability Rights, Texas filed a federal lawsuit, seeking declaratory and prospective injunctive relief against the Austin Independent School District on behalf of five disabled students and hundreds of unnamed students alleging systemic violations of the IDEA and Section 504.  With respect to the individual students, the allegations detail evaluation delays of months and in some cases over a year for initial evaluations and allege triennial reevaluations not occurring over the past year. The plaintiffs allege a failure to provide the named plaintiff children and at least 800 other students with timely initial special education evaluations and a failure to provide an estimated 1,600 students with timely three-year reevaluations during the pandemic.  The allegations remain unproven, however, they include:

• AISD, if fully staffed, would employ one psychologist for every 1,400 students, which plaintiffs allege to be inadequate.
• For the 2019-2020 school year, the District identified 49 campuses with vacancies for Licensed Specialists in School Psychology (LSSPs).
• Plaintiffs allege 800 students are waiting for past due initial evaluations and twice as many 3-year reevaluations are believed past due.
• TEA COVID-19 evaluation guidance recommended completion of all parts of evaluations that could be accomplished without face-to-face contact, but plaintiffs allege AISD instructed evaluators to cease all testing when schools were moved to virtual learning in April 2020 and this allegedly continued into the fall of 2020.
• In October 2020, DRTX filed a State Special Education Complaint against Austin ISD on behalf of two students with delayed special education evaluations. AISD acknowledged the delays but cited the pandemic as the cause. Plaintiffs state that communication between AISD and TEA revealed at least 627 additional students awaiting initial special education assessment.
• Plaintiffs allege a high attrition rate among AISD evaluation staff since October 2019. In March 2019, the district employed 51 school psychologists, but 48 subsequently resigned. Even after replacements were hired, AISD employed 19 school psychologists, “putting its student-to-psychologist ratio at 3,959:1 – nearly six times the upper limit recommended by the National Association of School Psychologists.”

Courts routinely dismiss cases that have not gone through the administrative due process stage.  In an effort to overcome the requirement to exhaust administrative remedies, DRTX argues that it would be futile to pursue its claims in individual due process hearings due to the allegations of systemic deprivations and the inability to timely obtain relief for the thousands of students alleged to be denied a FAPE.

As relief, the Plaintiffs seek injunctive and declaratory relief seeking a judgment AISD’s policies, procedures and practices relating to the evaluation of students with disabilities violate the rights of all Plaintiffs under the IDEA and Section 504.  Additionally, they request that the court order:

• Expedited special education evaluations for all children with currently delayed assessments utilizing existing staff, contractors, and evaluators that conduct independent educational evaluations (IEEs);
• Convene ARD committees for every student impacted by delayed assessment for the past year to determine their need for compensatory educational services;
• Direct ARD committees to determine that outside psychological assessments finding students eligible for special education services must be accepted for purposes of beginning services until such time that district is able to conduct their own assessment;
• Recruit and hire one school psychologist for every 700 enrolled students and continue school psychologist contracts through the summer as needed to work on overdue evaluations;
• Award attorney’s fees and costs.

Presently, Plaintiffs’ pleadings are merely allegations.  Regardless of the allegations, in school districts across the United States, COVID-19 has resulted in significant anxiety, disruption and frustration for families, students and school district staff, which in many cases has forced school districts to balance concerns regarding safety of staff with requirements for the timely completion of evaluations requiring one-on-one assessment. Communication with parents, completion of parts of assessment that can be completed with social distancing and  regular updates to expected completion may go a long way toward avoiding administrative or legal actions by parents.  Your district may want to take an opportunity to make an objective assessment of whether student initial assessments and 3 year re-evaluations are current before students break for the summer and prioritize students with the greatest needs.  If staff is not available, districts may wish to consider contracting with private providers to complete evaluations if doing so will assist with any backlog of evaluations.  Further, ARD/IEP Committees meeting this spring should consider whether students who have experienced disruptions from COVID-19 may benefit from summer school or whether regression may require  extended school year services to address the individual needs of students with disabilities.

If we can assist with questions regarding special education or 504 matters, please do not hesitate to call.

Written By: Hans Graff