May 27, 2015

Ms. Cindy Swain
Texas Education Agency
Division of Federal and State Education Policy
1701 North Congress Avenue
Austin, TX 78701
RE:
Systemic Complaint Regarding Use of Court Truancy Processes to Force
Students with Disabilities Out of School, in Violation of the Individuals with
Disabilities Education Act
Dear Ms. Swain:
We write to complain about school districts that have unlawfully forced their
most vulnerable students out of school through court truancy processes. The
students who bring this complaint are students with disabilities who are, or should
have been identified as, eligible for special education services.1 Rather than
providing these students with the special education and related services to which
they are entitled—services which would allow them to stay in school and access
their education—their school districts have referred them to court for the Class C
misdemeanor of Failure to Attend School (“FTAS”). Once in court, the school
districts actively force students out of their regular education programs, in violation
of the students’ rights under the Individuals with Disabilities Education Act, 20
U.S.C. §1400 et seq. (“IDEA”). We additionally complain about TEA’s violation of its
affirmative obligation to ensure that these students with disabilities receive an
appropriate education under the IDEA.
I.

INTRODUCTION

Texas is punishing children for failing to attend school by forcing them out of
school.2 Many school districts across the state drive this force-out, particularly for
Throughout this complaint, the terms “students with disabilities” and “student with a disability” are
used to describe: (1) students who have been identified as eligible for special education and related
services and (2) students who should have been identified as eligible for special education and
related services.
2 TEXAS APPLESEED, CLASS, NOT COURT: RECONSIDERING TEXAS’ CRIMINALIZATION OF TRUANCY at 6 (2015).
Available at
1

 students with disabilities. These school districts fail to provide students with
necessary special education services and then penalize them when they inevitably
struggle in school as a result. When the students subsequently miss school, either
because of their disability or out of frustration that their education is inaccessible
given the lack of appropriate special education and related services, the school
districts then criminalize their behavior by referring them to court for FTAS.3
The court process varies among jurisdictions, but in all cases school districts
play a crucial role in forcing students out of school. School districts make the initial
referrals to the courts.4 Once a student has been summonsed to court, school
district representatives make recommendations to the prosecutor or judge
regarding the case outcome. Many courts almost always follow these
recommendations, so the school district’s recommendation frequently becomes the
court order.
Disability Rights Texas (“DRTx”), the National Center for Youth Law
(“NCYL”), and Texas Appleseed (collectively, the “Organizations”)5 bring this
complaint on behalf of seven students and all similarly situated students. The
students bring this complaint against Texas Education Agency (“TEA”) and Abilene,
Austin, Clear Creek, Conroe, Ector County, Fort Bend, Fort Worth, Galena Park,
Galveston, Houston, Pasadena, San Antonio, and Victoria Independent School
Districts (“ISDs”) (collectively, “the Districts”).6 The students named in this

http://www.texasappleseed.net/index.php?option=com_docman&task=doc_download&gid=1208
[hereinafter, TEXAS APPLESEED].
3 Certain school districts (e.g., Dallas) employ automated attendance systems that refer students to
court automatically once the student reaches a certain number of absences; relegating attendance
reporting to such a system means there is no room for correction if an absence should be excused
because it is related to a student’s disability.
4 TEX. EDUC. CODE § 25.0951.
5 DRTx is the federally mandated protection and advocacy system for people with disabilities in the
state of Texas. Texas Appleseed promotes social and economic justice for all Texans by leveraging
the skills and resources of volunteer lawyers and other professionals to identify practical solutions to
difficult systemic problems. NCYL is a non-profit organization that uses the law to ensure that lowincome children have the resources, support, and opportunities they need for a fair start in life. All
three organizations have investigated the harm caused by Texas’s truancy system for over three
years.
6 On April 27, 2015, Ford Bend ISD Superintendent Charles Dupre announced in an email to parents
of students in the district that Fort Bend ISD was “perform[ing] a complete review of the District’s
truancy procedures” and was immediately suspending its truancy procedures during the review. Our
organizations and the Complainants urge that investigation into and relief against Fort Bend ISD are
still warranted. The district could voluntarily cease its review and resume truancy referrals at any
time. Additionally, the Superintendent’s email did not expressly address how, during the pendency
of its review, Fort Bend ISD will handle students for whom truancy referrals are required under TEX.
EDUC. CODE § 25.0951. Finally, students have already been harmed based on Fort Bend ISD’s
practices, and no information that Fort Bend ISD has provided to the public indicates that the district
has incorporated changes aimed directly at remedying the harms to students with disabilities that
this complaint seeks to remedy.

2

 complaint represent the many students with disabilities who find themselves
funneled into the court system for truancy and then forced out of school:7
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

J.W., a student with severe Attention Deficit Hyperactivity Disorder
(“ADHD”), who was ordered to enroll in a GED program upon
recommendation from a Houston ISD Truancy Officer;
R.W., a student with an intellectual disability and mental health diagnosis,
who was forced into a homeschool program by Houston ISD;
M.P., a student with significant learning disabilities, who is at imminent risk
of force out through Houston ISD’s threats that he will be ordered to enroll in
a GED program;
Y.C., a student with severe ADHD, who was told by Fort Bend ISD that she
should enroll in a homeschool program;
C.D., a student with ADHD and depression, who is at imminent risk of being
ordered by a Pasadena ISD Truancy Officer to enroll in a GED program when
he turns 16 years old;
X.S., a student with bipolar disorder and ADHD, who was administratively
withdrawn from school multiple times by his school in Galena Park ISD; and
R.S., a student with Asperger’s Syndrome, bipolar disorder, and ADHD, who is
at imminent risk of being forced out by a Clear Creek ISD Truancy Officer,
who has threatened that he will be ordered to enroll in a GED program.

These students exemplify a few of the many ways in which school districts use the
court truancy process to force students with disabilities out of school and into
settings where the students do not receive a free, appropriate public education
(“FAPE”).
Complainants use the term “force-out” to describe how school districts
pushed them out of school and/or forced them to drop out through the truancy
process. Like other Texas students, complainants were forced out through one of
three methods: (1) to take the General Educational Development (“GED”) test rather
than obtain a high school diploma; (2) to be home-schooled, frequently through
online courses that provide little to no interaction with live instructors; or (3) to
enroll in alternative schooling such as an online/drop-in program or a boot camp
where the student must live away from home for months at a time. None of these
methods provide students with disabilities with necessary special education and
related services. Consequently, all these types of force-out equate with or are likely
to result in these students dropping out of school.
The “forced” aspect of school force-out may be overt or subtle. In overt
cases, after being summonsed to court for FTAS, a student may be court-ordered to
withdraw from school or may agree to withdraw as part of a plea deal or a deferred
The information in this complaint comes from court observations of Failure to Attend School and
Parent Contributing to Nonattendance dockets in counties across the state; interviews with students,
parents, and officials; and data collection and analysis.
7

3

 disposition. More subtly, a student may be forced out of school even where he or
she appears to voluntarily withdraw from school. Students may do so to avoid
further FTAS fines that their families cannot afford because: they do not know their
rights; they feel that they have no other options; and/or their school districts have
failed to provide them with necessary special education services and so remaining
in school feels hopeless or frustrating. For the purposes of this complaint, we refer
to all of these denials of educational services as “force-out.”
Forcing students with disabilities to leave school in any of these ways
violates the students’ rights under IDEA and, beyond that, defies logic. On multiple
occasions, our organizations witnessed students explain in court that they wanted
to remain in school and earn a high school diploma, only to have the school district
recommend that the student be forced out and the court then order it. Available
data reveals the frequency and inappropriateness of forcing these students to leave
school. For instance, from 2010 to 2013, 1,247 special education students in Texas
were court-ordered to drop out of school to take the GED test and then failed it.8
Although students without disabilities are also forced out of school through the
truancy process, force-out disproportionately impacts students with disabilities.
From 2010 to 2013, 19.4 percent of students who failed the GED test after being
court ordered to drop out of school were students with disabilities, even though
they comprised only 8.5 percent of the student population.9 Because school districts
often do not track special education status when they refer students to court for
FTAS and because school districts fail to identify all students with disabilities who
need special education, these numbers are almost certainly underestimates.10
Students with disabilities should never be forced out of school as part of the
truancy process. The alternative options to which they are referred cannot provide
them with access to the special education and related services to which they are
entitled. School districts that use the truancy process to force students with
disabilities out of their educational placements violate the central tenet of IDEA that
placement decisions for students with disabilities must be made through their
Admission, Review and Dismissal (“ARD”) teams. These violations deprive students
of any opportunity for educational benefit, any access to the general curriculum, any
related services, and any transition services. School districts cannot escape their
affirmative obligations to identify and appropriately serve all students with
disabilities by forcing students out of services in all the ways identified in this
complaint.
Additionally, TEA cannot escape its affirmative responsibilities to ensure that
these students receive FAPE by turning a blind eye to this force-out. TEA has failed
to provide districts with sufficient guidance to ensure that court truancy processes
do not violate students’ rights to FAPE. TEA has failed to create a sufficient data
TEXAS APPLESEED, supra note 2, at 31. This data covers a three-year period.
Id. at 4.
10 See § II.A.4, infra.
8
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 monitoring system to track and investigate districts that force out students with
disabilities through the truancy process. And TEA has actively disincentivized
districts from identifying students with disabilities, resulting in the force-out of
students with disabilities who have not been identified for special education
services. Consequently, students with disabilities statewide have been, or are at risk
of being, forced out of their education.
II.

FACTS
A. Background Facts
1. Truancy Laws and Potential Punishments

Texas law requires students to attend school between ages six and
eighteen.11 Parents are required to ensure that their children attend school during
this time.12 If a student has three or more unexcused “days or parts of days” in a
four-week period, a school district may refer the student and/or parents to court for
truancy.13 If a student has ten or more unexcused days or parts of days in a sixmonth period, the school district must either file an FTAS complaint against the
student or refer the student to juvenile court as a “Child in Need of Supervision”
(“CINS”).14 School districts may file FTAS complaints on students who are twelve or
older, meaning that the students face their own criminal charges.15 School districts
may also file a Parent Contributing to Nonattendance (“PCNA”) complaint on the
parent of a child age six to eighteen.16 Both FTAS and PCNA are Class C
Misdemeanors in Texas.17
Municipal and justice of the peace courts are adult criminal courts with
original jurisdiction over FTAS and PCNA cases; large counties can also create
specialized truancy courts.18 Although school districts may refer a student’s truancy
case to juvenile court rather than adult court, they rarely do so. In 2012 and 2013,
for instance, school districts referred 1,011 and 1,014 CINS cases, respectively, to
juvenile court for truancy.19 This is compared with the roughly 115,000 FTAS
complaints filed with municipal or justice courts in each of fiscal years 2012 and
2013.20
TEX. EDUC. CODE § 25.085.
TEX. EDUC. CODE § 25.093.
13 TEX. EDUC. CODE §§ 25.091(a)(2)(B); 25.0951; 25.093, 25.094.
14 Id.; TEX. FAM. CODE § 51.03(b)(2).
15 TEX. EDUC. CODE § 25.094.
16 TEX. EDUC. CODE §§ 25.085; 25.093.
17 TEX. EDUC. CODE §§ 25.093(c); 25.094(e).
18 See TEX. CODE CRIM. PROC. see ch. 45 (Two counties, Fort Bend and Dallas, have established
specialized truancy courts that hear only FTAS and PCNA cases).
19 TEXAS APPLESEED, supra note 2, at 40.
20 This figure includes the total number of cases filed annually in justice courts, municipal courts, and
the Fort Bend and Dallas County truancy courts. TEXAS OFFICE OF CT. ADMIN., JUSTICE COURTS, SUMMARY
OF JUDICIAL OR MINOR ACTIVITY BY COUNTY at 9 (2014), available at
11
12

5

 Potential punishments for FTAS or PCNA cases range from fines to possible
imprisonment. The maximum fine for an FTAS or PCNA charge is $500 each.21
Court costs totaling around $80 may also be levied.22 At the extreme end, FTAS or
PCNA charges may result in arrest and incarceration. A student who is seventeen or
older may be arrested and jailed for failing to pay the fines in his or her FTAS case,
or for contempt if they do not comply with all the terms of the court’s order.23
Similarly, if a student fails to appear in court to face his or her FTAS charges, a
warrant may be issued for the student’s arrest if he or she is over seventeen.24
Students may also be referred to juvenile court and detained for failure to comply
with court orders in FTAS cases. In some jurisdictions, younger students are also
handcuffed and brought to court if they fail to appear in response to an FTAS filing.25
Parents may also be incarcerated for failing to appear in court, to pay fines
associated with their PCNA cases, or to comply with other truancy-related court
orders.26
School districts have broad discretion in filing FTAS and PCNA complaints.
First, school districts have discretion in determining whether to file an FTAS
complaint with adult court or a CINS complaint in juvenile court. Second, in
referring an FTAS complaint, school districts can often choose among a number of
justice of the peace and municipal courts, enabling the school districts to refer to
judges who are likely to accept their recommendations. Third, except for certain
absences defined as “excused” under Texas law, school districts hold discretion in
http://www.txcourts.gov/media/739287/8_juvenile_activity-by-county-2013.pdf (showing 70,003
FTAS cases filed in FY 2013); see also TEXAS OFFICE OF CT. ADMIN., MUNICIPAL COURTS, SUMMARY OF
JUDICIAL OR MINOR ACTIVITY BY CITY 28 (2014), available at http://www.txcourts.gov/media/739135/8Juvenile_Activity_ByCity_2013-pdf.pdf (showing 15,562 FTAS cases in FY 2013); see also TEXAS OFFICE
OF CT. ADMIN., JUSTICE COURTS, SUMMARY OF JUDICIAL OR MINOR ACTIVITY BY COUNTY 9 (2014), available at
http://www.txcourts.gov/media/739262/8-Juvenile_Activity_ByCounty2012.pdf (showing 68,189
FTAS cases filed in FY 2012); TEXAS OFFICE OF CT. ADMIN., MUNICIPAL COURTS, SUMMARY OF JUDICIAL OR
MINOR ACTIVITY BY CITY 28 (2014), available at http://www.txcourts.gov/media/739238/8Juvenile_Activity_ByCity2012.pdf (showing 13,272 FTAS cases filed in FY 2012); LEGISLATIVE BUDGET
BOARD, TEXAS STATE GOV’T EFFECTIVENESS AND EFFICIENCY REPORT: SELECTED ISSUES AND RECOMMENDATIONS
10 (Jan. 2015) (showing Dallas County truancy court FTAS filings of 25,495 cases in FY 2013 and
28,506 cases in FY 2012, and showing Fort Bend truancy court FTAS filings of 4,722 cases in FY 2013
and 5,190 cases in FY 2012).
21 See TEX. PENAL CODE § 12.23; TEX. CODE CRIM. PROC. art. 45.041(b)(2).
22 TEXAS APPLESEED, supra note 2, at 30.
23 See TEX. CODE CRIM. PROC. art. 45.050; TEX GOV’T CODE § 21.002(c); cf. Tex. Att’y Gen. Op. No. GA0131, available at https://www.oag.state.tx.us/opinions/opinions/50abbott/
op/2003/htm/ga0131.htm.
24 TEX. CODE CRIM. PROC. art. 45.060.
25 DRTx, Texas Appleseed, and NCYL court observations.
26 TEX. EDUC. CODE § 25.093(g); TEX. GOV’T CODE § 21.002; TEX. CODE CRIM. PROC. art. 45.054(b). In
February 2015, in a Harris County Justice of the Peace Court, a mother of a special education student
in middle school shared the details of her recent arrest. She was arrested and spent one day in jail
after failing to appear for a PCNA. She had never received the notices, because the school had sent
them to the wrong address. She never received a phone call from the school to inform her about the
referral and was not aware that she had received a ticket until after she was arrested.

6

 determining whether to excuse an absence, so school district policy determines
when a student has reached the statutory prerequisite for truancy.27 Fourth, the law
does not define a “part” of a day, so school district policy sets the number of minutes
missed that results in an FTAS filing. Despite guidance from the Texas Attorney
General and TEA that student tardies should not result in FTAS filings, our
organizations observed many filings based on tardies.28 Fifth, for students over age
twelve, school districts also determine whether they will file a PCNA case against the
parent as well as an FTAS case against the student; our organizations have observed
some school districts who choose to file PCNA charges against both parents along
with an FTAS charge against the student. Thus, the school district controls whether
the maximum possible fine will be $500 or up to $1500 per family.29 Sixth, school
districts also decide how they will file complaints regarding subsequent absences—
for instance, if a student misses fifteen days or parts of days, the school district
could file one consolidated case covering all the absences.30 However, our
organizations have also heard of school districts that would file these same fifteen
absences as multiple separate cases.31
School districts exert enormous influence in their recommendations to
courts regarding the additional conditions that may be imposed through the truancy
process. This includes the three primary methods of forcing students out of schools
that this complaint challenges:
1.

GED Programs: Students age sixteen or older may be forced to
withdraw from school and enroll in a GED program.32 For students
with disabilities, a GED program is almost never appropriate, as

See TEX. EDUC. CODE § 25.087; 25.094(f).
Texas Attorney General Dan Morales opined that tardiness was not an unexcused absence because
it signifies the youth is “present in the school building” and simply late getting to class, whereas the
term “unexcused absence” signifies “a child is not present in the school building for a certain period
of time.” Tex. Att'y Gen. Op. No. DM-200 (1993), available at
https://www.oag.state.tx.us/opinions/opinions/48morales/op/1993/htm/dm0200.htm. A 2001
TEA guidance letter citing this opinion states that “school districts should not routinely classify each
instance of tardiness as an absence for purposes of truancy.” Letter from David A. Anderson, Gen.
Counsel, Tex. Educ. Agency, to Administrators (Nov. 13, 2001), available at
http://ritter.tea.state.tx.us/taa/legal011113.html. Both the AG Opinion and the 2001 TEA letter are
cited in a 2012 TEA guidance letter noting, “Tardies are generally not considered absences for
purposes of compulsory attendance enforcement.” Letter from David A. Anderson, Gen. Counsel, Tex.
Educ. Agency, to Administrators (Aug. 2, 2012), available at
http://www.tea.state.tx.us/index4.aspx?id=2147508100. Texas school districts bypass this guidance
by defining a window within which youth are “tardy” and another within which they are counted
absent.
29 It is worth noting that school districts have some financial incentive to file truancy cases on
families. By statute, half of the fines collected from parents charged with the crime of Parent
Contributing to Nonattendance (see § II.A.1, infra) go to the school district’s operating fund. TEX.
EDUC. CODE § 25.093(d)(1).
30 TEX. EDUC. CODE § 25.094.
31 TEX. EDUC. CODE § 25.094.
32 TEX. CODE CRIM. PROC. art. 45.054 (a)(1)(B), (C).
27
28

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 GED programs are not designed to provide special education
services and accommodations. Additionally, in the past year, the
GED has become significantly more difficult to pass. Passage rates
dropped from 74 percent in 2013 to 51 percent in 2014.33 This
raises further questions about whether the GED is appropriate for
students with disabilities, particularly in the absence of necessary
services.
2.

Homeschooling: In FTAS proceedings, some courts have required
parents to withdraw their children from public school and
homeschool them without the support or resources of the public
school system. In Texas, parents may choose to homeschool their
children, and thus be exempt from compulsory attendance laws, as
long as they are taught a bona fide curriculum designed to meet
certain educational goals, including a study of good citizenship.34
However, parents who homeschool a student with a disability are
treated as though they have placed their student in a unilateral
private placement, thereby terminating the student’s right to
receive some or all of the special education and related services
that he or she would otherwise receive if enrolled in a public
school.35 Courts who order parents to withdraw their students and
homeschool them may mistakenly believe they have the authority
to do so under TEX. CODE CRIM. PROC. art. 45.054(a)(2), despite no
explicit provisions allowing them to order a student to drop out of
school and be homeschooled.
Some courts and school districts pressure parents into
homeschooling their students, threatening that they will continue
to face future truancy charges and fines unless enrolled in
homeschooling.36 Feeling pressured, overwhelmed, and

TEXAS APPLESEED, supra note 2, at 31.
TEX. EDUC. CODE § 25.086; Texas Educ. Agency v. Leeper, 893 S.W.2d 432 (Tex. 1994).
35 19 TEX. ADMIN. CODE § 89.1096.
36 DRTx, Texas Appleseed, and NCYL court observations (February to May 2015). In March 2015, in a
Harris County Justice of the Peace Court, one family shared their previous court experiences with a
truancy officer from Deer Park Independent School District (Deer Park ISD). Despite having a welldocumented medical condition, this child has received three FTAS complaints, because the school
refuses to excuse her absences even though documentation provided to school showed that absences
were due to her medical condition. Under pressure from the school truancy officer and assistant
district attorney, she pled guilty to the first ticket and paid a fine. For the second ticket, she pled not
guilty and a trial date was set. When she and her parents appeared for trial, the judge was not
present. Only the school truancy officer, assistant district attorney, and court clerk were present. The
school truancy officer told her family that there was no need for a trial, because she had already been
found guilty. She received a fine and community service. For the third ticket, she has pled not guilty
and a trial date has been set, but she does not expect the outcome to differ from her previous
experience. At the end of March, she plans to un-enroll and sign up for a homeschool program,
because her family cannot afford to continue to pay the fines associated with these complaints.
33
34

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 discouraged by the lack of assistance from the school, parents are
coerced into agreeing to withdraw their students from public
school and forgo their student’s right to receive a free, appropriate
public education, even when the parents have no desire, ability or
plan to provide meaningful homeschooling to a student with a
disability.
3.

Alternative Schooling: School districts in FTAS proceedings also
make broad recommendations to force students into alternative
schooling or programs such as boot camp or other alternative
programs. For example, our organizations observed a school
district recommend that several students be sent to the Texas
ChalleNGe Academy, a boot camp run by the Texas National Guard.
This twenty-two-week long camp is located almost 400 miles away
from the county in which the students lived. Our organizations
spoke to a judge who mentioned sending several students to attend
this program, thus causing them to withdraw from their home
schools and relocate to a new environment far away from their
families and support systems. We also spoke to a family who
reported that the school district representative had threatened her
son with being ordered to boot camp if he had any more absences.
According to the Texas ChalleNGe Academy, students there prepare
for the GED test.37
Students may also be forced out of school into programs such as
Twilight High School in Houston ISD.38 This program is comprised
of online classes with the option to drop in and receive support
from teachers in the evening. Enrolling in the “school” requires
withdrawing from Houston ISD and being classified as a
homeschool student. As with GED programs and homeschooling,
students with disabilities almost certainly cannot receive a free,
appropriate public education in these settings, because the majority
of instruction occurs independently away from school and away
from an instructor and because special education and related
services and accommodations are not available.
2. Court Procedures for Truancy Cases

See TexasChallengeAcademy.com, Core Components & Goals of Challenge,
http://www.texaschallengeacademy.com/about-us/core-components/ (last visited April 7, 2015).
38 In 2011-2012, 53 students receiving special education services left their high school and enrolled
in the Twilight Program. In 2012-2013, 44 students receiving special education services left their
high school and enrolled in the Twilight Program. Truancy officers do refer children to this program..
HOUSTON INDEP. SCHOOL DIST., DEP’T OF RESEARCH AND ACCOUNTABILITY, TWILIGHT HIGH SCHOOL PROGRAM,
PROGRAM EVALUATION 2011-12 at 6-7 (2012).
37

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 In FTAS proceedings, students and families do not receive appointed counsel
and, based on our observations and conversations with families, are seldom aware
of their rights.39 Although the court procedures vary from court to court and county
to county, school districts play an active role in truancy court proceedings
statewide.40 In some courts, students accept plea deals on the recommendation of
the school district without ever appearing before the judge. In these courts, the
student appears with a prosecutor and representative of the school district before
the judge takes the bench. If the student accepts the prosecutor and school district’s
recommendation, he or she may never see the judge, or may only see the judge for a
cursory plea acceptance. Thus, some students agree to drop out of school at the
school district’s behest without the court ever making a finding as to the student’s
guilt or innocence. In other courts, the judge may take the bench but will defer to
the prosecutor and school district as to the outcome for the student.41 Our
organizations witnessed judges accept school district recommendations to order
students into GED programs, homeschooling and alternative programs over
families’ objections.
School force-out may occur either before or after conviction. Our
organizations witnessed students who were forced out of school by agreeing to drop
out of school in exchange for reduced fines or dismissal of FTAS charges. Our
organizations also witnessed students who were forced out after pleading guilty or
no contest by being ordered by the court to withdraw from school. As noted above,
a student may be forced out of school in ways that the data do not capture. For
instance, a student with a disability who has not been identified for special
education services may have no interest in attending classes that are not
appropriate for him or her, and so agrees with the school district recommendation
of withdrawal. We also spoke to numerous families who reported being forced out
due to fear of additional FTAS or PCNA charges and fines.
In jurisdictions where multiple justice of the peace and municipal courts hear
FTAS cases, school districts have discretion to choose where to refer their FTAS
complaints. Upon information and belief, many of the school districts that force out
numerous students choose to refer to courts that accept without question the school
district’s recommendations regarding forcing students out of schools. One justice of
the peace informed our organizations that several school districts in Harris County
stopped referring cases to that judge’s precinct because the judge did not always
Students with disabilities, who may have a range of disability-related difficulties processing verbal
or written information, are even less likely to be aware of their rights in FTAS proceedings. Even
when we observed courts providing students information about these rights, we never observed a
court modifying its presentation of that information to accommodate the needs of students with
disabilities or checking to ensure that a student with a disability understood his or her rights. We
observed courts where students were only provided written information about their rights in the
court proceedings and the judge then accepted pleas in written form without verifying that the
student could read sufficiently to understand the proceeding.
40 DRTx, Texas Appleseed, and NCYL court observations (February to May 2015).
41 DRTx, Texas Appleseed, and NCYL court observations (February to May 2015).
39

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 accept the school district’s recommendations. Similarly, elsewhere in the state,
municipal courts indicated that schools stopped referring FTAS complaints to their
courts because they preferred justice of the peace courts that imposed higher fines
and were willing to order students to withdraw from school and enter GED
programs.
3. State and District Data42
i.

TEA’s Failure to Ensure Accurate Reporting

School districts are required to track the number of students they refer to
court for truancy each year, and to report this number to TEA as part of their Public
Education Information Management System (PEIMS) data report.43 Additionally,
districts must report whether each FTAS filing was mandatory or discretionary, and
whether each case resulted in a fine.44 Texas Appleseed requested PEIMS data from
TEA on the number of truancy cases filed for the 2010-2011, 2011-2012, and 20122013 school years, for every school district in the state.45 In response, Texas
Appleseed received data reflecting fewer than half of the school districts in the
state.46 For example, during the 2012-2013 school year, TEA reported there were
1,026 school districts in Texas, but only 323 school districts reported court referrals
for truancy.47
Yet other data suggest that other Texas school districts did in fact file FTAS
cases during the 2012-2013 school year. For the 2012-2013 school year, school
districts reported a total of 50,153 FTAS filings to TEA.48 In contrast, Office of Court
Administration (OCA) records, combined with specialized truancy court data from
Fort Bend and Dallas, reflect nearly 115,000 FTAS cases filed for FY 2013.49 This
large discrepancy shows that TEA data do not include all FTAS filings statewide.
These findings are consistent with those of the Legislative Budget Board in the 2015
Government Effectiveness and Efficiency Report (“GEER”), which described the
problem of inaccurate truancy data.50 These inaccuracies persist despite TEA’s claim

Data in this section was obtained by Texas Appleseed through public records requests, both during
research for its CLASS, NOT COURT report and in preparation for this complaint.
43 TEX. EDUC. CODE §42.006; TEXAS EDUCATION AGENCY, PEIMS DATA STANDARDS, available at
http://tea.texas.gov/Reports_and_Data/Data_Submission/PEIMS/PEIMS_Data_Standards/PEIMS_Dat
a_Standards/
44 See LEGISLATIVE BUDGET BOARD, TEXAS STATE GOV’T EFFECTIVENESS AND EFFICIENCY REPORT: SELECTED
ISSUES AND RECOMMENDATIONS at 8-9 (Jan. 2015).
45 TEXAS APPLESEED, supra note 2, at 50.
46 Id.
47 Id.
48 Id.
49 Id. [This figure includes 85,565 FTAS cases reported in OCA records plus specialized truancy court
data from Dallas County and Fort Bend County].
50 LEGISLATIVE BUDGET BOARD, TEXAS STATE GOVERNMENT EFFECTIVENESS AND EFFICIENT REPORT, at 1-20
(2015).
42

11

 that “[f]ailure of a LEA to submit required data for a particular collection will result
in the LEA being referred to the TEA General Counsel for further action.”51
Critically, school districts claim to be unaware that they are required to
submit truancy data through PEIMS: the Legislative Budget Board found that some
school districts failed to enter truancy data because they did not know that they
were required to do so.52 If school districts are unaware of their obligation to
report truancy data, they likely have not been appropriately trained to collect and
submit this data, and the Education Service Centers (ESC) likely are not competently
verifying the information submitted.53
Moreover, we have no evidence to suggest that school districts are tracking
this data separately from PEIMS. In response to Texas Appleseed’s requests for data
regarding the special education status of students referred to court for FTAS, fewer
than half of Texas’s twenty largest school districts were able to provide a complete
set of data.54 Of those that did, several showed discrepancies between the data they
provided to Texas Appleseed, and the numbers they reported to TEA, with most
underreporting their numbers to TEA.55 This suggests a wholesale failure of the
school districts and ESCs to appropriately track, report, and verify data related to
court referrals for FTAS, as well as TEA’s failure to enforce data collection
requirements.
ii. Districts that do Collect or Report
Of the districts that are collecting and reporting data, many show an
overrepresentation of special education students in FTAS cases. The data collected
from TEA indicate that approximately 13 percent of reported FTAS cases were filed
against students identified with disabilities, even though these students make up
approximately 8.5 percent of the Texas student body.56 Data that Texas Appleseed
collected directly from school districts also indicate an overrepresentation of
students with disabilities with FTAS cases.
Not all districts were able to report data from the 2013-2014 school year: for
those that did, the overrepresentation of special education students in FTAS case
filings continues, and in some cases, worsens.
TEA, PEIMS Data Standards, PEIMS Submission and Resubmission Policy, available at.
http://ritter.tea.state.tx.us/peims/standards/wedspre/index.html
52 LEGISLATIVE BUDGET BOARD, TEXAS STATE GOV’T EFFECTIVENESS AND EFFICIENCY REPORT: SELECTED ISSUES
AND RECOMMENDATIONS, at 8-9 (Jan. 2015).
53 See PEIMS Data Standards, Education Service Center Responsibilities, available at
http://ritter.tea.state.tx.us/peims/standards/wedspre/index.html. Under the Standards, TEA has
contracted with the ESC for certifying the accuracy of school district data. Through the electronic
signature during the submission process, the ESC director certifies that the accuracy and authenticity
of the district’s data has been verified. Id.
54 TEXAS APPLESEED, supra note 2, at 70.
55 Id. at 52, 85.
56 Id. at 69.
51

12

 Chart 1: Overrepresentation of Special Education Students
in FTAS Case Filings 2012-201357
35%

31%

30%
25%

21%

21%

20%

17%

15%
10%

10%

12%
9%

15%

11%

15%

10%

6%

10%

5%

5%

10%
6%

5%

4%

0%
Lewisville ISD North East ISD Northside ISD Clear Creek ISD San Antonio ISD Fort Bend ISD
% FTAS Cases Filed Against Special Education Students
% of District Enrollment Identified for Special Education
% Point Difference

Percent Point Difference

Chart 2: Overrepresentation of Special Education Students
in FTAS Case Filings, 2012-2013 v 2013-201458
9%
8%
7%
6%
5%
4%
3%
2%
1%
0%
-1%
-2%

Huffman 8%
Fort Bend 6%
Fort Bend
4%

Corpus Christi 5%

Humble 4%

Corpus
Christi 1%

Humble 2%

Huffman -1%
% Point Difference, 2012-2013

% Point Difference, 2013-2014

These charts and table illustrate both the population and overrepresentation
of students with disabilities in FTAS filings, for the 2012-13 and, where available,
This chart shows that students with disabilities were overrepresented in FTAS case filings,
compared to their enrollment during the 2012-2013 school year, in select school districts. The
numbers represent the difference between the percent of FTAS cases filed against special education
students, and the percent of total student enrollment identified as special education.
58 This chart shows that students with disabilities are overrepresented in FTAS case filings,
compared to their enrollment. Critically, in the selected districts, this overrepresentation increased
during the 2013-2014 school year. The numbers represent the difference between the percent of
SpEd FTAS cases filed, and the percent of SpEd enrollment. The chart depicts these numbers for both
the 2012-2013 and 2013-2014 school years.
57

13

 the 2013-2014 school year. Practices in some districts have resulted in vastly
disproportionate outcomes for students with disabilities. Data reported for the
2013-2014 school year show that the disparity for students with disabilities is
increasing in some districts. In three districts – Corpus Christi ISD, Huffman ISD,
and Humble ISD – total filings decreased, but the number of cases filed against
students with disabilities actually increased in 2013-14. These increased disparities
suggest that students with disabilities are not benefiting from any reforms that have
decreased the total number of FTAS filings in these districts.
iii. Court-Ordered Dropouts
Despite its failure to appropriately track and report the number of FTAS
cases filed, TEA does collect some data that shows how school districts are using the
truancy process to force students with disabilities out of school. Texas Appleseed
uncovered TEA data on the number of students who were ordered to withdraw
from school as part of the truancy process and take the GED but ultimately, never
earned their GED.59 In January 2015, Texas Appleseed was given statewide data for
this dropout code, disaggregated by special education status, race, and ethnicity for
the 2010-11, 2011-12, and 2012-13 school years. Over this three-year period, 6,423
students were ordered by Texas courts to drop out of school and take the GED, but
never earned a GED.60 Of these, 1,247 – about 1 in 5 – were students with
disabilities.61
Table 1: Statewide Court-Ordered Dropouts, 2010-13
General
Education
Special
Education
Total

2010-11
2000

2011-12
1644

2012-13
1532

Total
5,176

504

418

325

1,247

2,504

2,062

1,857

6,423

After receiving this statewide data, Texas Appleseed requested the same data
disaggregated by school district. After nearly four months and multiple requests,
TEA finally produced the data, but at significant cost to the requester because TEA
had to have two different divisions work to create the report. TEA’s difficulty in
producing this report shows that it is not regularly using this data to monitor school
districts, ensure districts comply with IDEA requirements, and protect students with
disabilities from force out through truancy court.
The district-level data TEA produced reveal that more than 100 school
districts had at least one student with a disability ordered to drop out of school and
These students are tracked through a specific dropout code within the PEIMS system.
Id., at 31.
61 Id.
59
60

14

 take the GED who never earned a GED.62 During the 2012-13 school year, several
districts forced a significant number of students with disabilities out of school
through this mechanism.
Table 2: Court-Ordered Dropouts,
Districts with More than Five Special Education Students Reported, 2012-13
School District
Abilene ISD
Austin ISD
Clear Creek ISD
Conroe ISD
Ector County ISD
Fort Worth ISD
Galveston ISD
Houston ISD
Pasadena ISD
San Antonio ISD
Victoria ISD
Total of 11
Districts
Statewide Total

General Education

Special Education

Total

34
27
28
91
85
116
32
145
63
48
48
717

13
10
14
6
16
19
7
27
13
15
10
150

47
37
42
97
101
135
39
172
76
63
58
867

1532

325

1857

Almost half of all students forced to dropout of school through a courtordered GED in 2012-13 attended these 11 school districts. This is true for students
with disabilities as well as general education students. For both groups of students,
these districts are responsible for approximately 46 percent of those ordered to
drop out, who then never earned a GED.
iv. Administrative Withdrawal and Homeschooling
TEA also produced data related to school force out that substantiate the
complainants’ concerns. In addition to the GED data, Texas Appleseed received data
showing that students with disabilities are overrepresented in administrative
withdrawals and withdrawals to homeschooling statewide.

62

See Appendix.

15

 Table 3: Statewide Administrative/Homeschooling Withdrawals, 2012-13

General Education
Special Education
TOTAL

Administrative
Withdrawal
230
50
280

Withdrawal to
Homeschool
17,959
2,901
20,860

Students with disabilities are 18 percent of all students administratively
withdrawn, and 14% of students withdrawn to homeschool, even though they are
about nine percent of students enrolled in Texas schools.
At the district level, Northside ISD stands out as having a significant
overrepresentation of students with disabilities who were administratively
withdrawn. Of the 11 students administratively withdrawn by Northside ISD during
the 2012-13 school year, five were students with disabilities.
Many districts also reported a disproportionate number of students with
disabilities who withdrew to homeschool in 2012-13.63 In some districts, students
with disabilities made up a third or more of students who withdrew to
homeschool.64 Further, many of the districts that forced out a high number of
students with disabilities through the court-ordered dropout process, also
disproportionately withdrew students with disabilities to homeschool.65
These withdrawals may be appropriate in a limited number of cases, but the
stark overrepresentation of students with disabilities in these proceedings raises
concerns about school district compliance with the IDEA. These numbers also
substantiated the lived experiences of the student-complainants, and the
Organizations’ observations in courts across the state. Time and again, the truancy
court process is used to force students with disabilities out of school.
B. Complainants’ Facts
The Organizations represent the following individual complainants. They
request that TEA take immediate action to ensure that the practice of forcing
students with disabilities out of school through the truancy process cease
throughout the state so that they and all similarly situated students are provided an
opportunity to attend Texas public schools and receive necessary special education
and related services. In addition to the violations experienced by the named
complainants, the Organizations have witnessed countless special education
violations in courts throughout the state. We highlight some additional examples
See Appendix.
Id.
65 Id.
63
64

16

 here to demonstrate common types of violations on virtually every FTAS docket
around the state and to inform TEA of its failure in monitoring school districts
statewide.
1. J.W.
J.W. is a seventeen-year-old student in the ninth grade at Sterling High School
in Houston ISD. He is diagnosed with severe ADHD and qualifies for special
education services under the eligibility category of Other Health Impairment.66 He
appears by and through his legal guardian and next friend, Ms. K. Foley. J.W. was
forced out of school through a court-order to enroll in a GED program, an order
made at the recommendation of a Houston ISD Truancy Officer.
On May 15, 2014, J.W. and Ms. Foley received a summons to appear in court
on June 4, 2014, because Houston ISD Truancy Officer Paula Roberson filed FTAS
and PCNA complaints against them.67 On November 18, 2014, Ms. Roberson filed
another FTAS complaint against J.W. and another PCNA complaint against Ms. Foley
for alleged unexcused absences on October 10, October 15, and October 17, 2014. 68
According to J.W.’s attendance records, the school took no adequate prevention
measures prior to filing the complaint, nor are there any prevention measures
documented after the complaint was filed.69 J.W.’s annual ARD meeting occurred on
October 17, 2014. The ARD committee failed to offer any assistance, services, or
assessments to address J.W.’s attendance or implement positive behavior supports
to help him overcome any obstacles preventing consistent attendance.70
On January 16, 2015, Ms. Foley received a summons for J.W. to appear in
court on February 18, 2015, because Ms. Roberson filed another FTAS complaint
against him.71 On January 21, 2015, J.W. and Ms. Foley appeared in court. Ms.
Roberson was present as the complainant. Upon Ms. Roberson’s recommendation,
the Court ordered J.W. to withdraw from school and enroll in a GED program by
March 18, 2015.72 On January 24, 2015, J.W. received a “Juvenile Post-Judgment
Order” warning him that if he failed to pay the total fine and costs assessed of
$274.90 by March 18, 2015, “a Capias Pro Fine Warrant may immediately issue for
[his] arrest.” 73

ARD/IEP Team Report, for J.W., Houston ISD at 3 (October 17, 2014).
Summons, Justice Court, Precinct 7, Place 1, Parent to Appear with Defendant Child, Case Number
CR71C0177015 (May 15, 2015).
68 Roberson Aff. ¶¶ 1-4.
69 Houston ISD Campus Attendance Referral for Truancy Prevention Measures, October 20, 2014.
70 ARD/IEP Team Report, for J.W., Houston ISD at 3 (October 17, 2014).
71 Summons, Justice Court, Precinct 7, Place 1, Parent to Appear with Defendant Child, Case Number
CR71C0196186 (January 16, 2015)..
72 Order Suspending Sentence and Deferring Final Dep. January 21, 2015.
73 Juvenile Post-Judgment Order to Show Cause, (January 27, 2015).
66
67

17

 On January 27, 2015, Ms. Foley received notice from Sterling High School that
J.W. was being charged with another Class C Misdemeanor for FTAS. The notice
alleged that he had 55 unexcused absences from August 28, 2014 to January 26,
2015.74 According to Sterling High School attendance records, only 3 of these 55
unexcused absences were a full day.74 For 52 of the 55 alleged unexcused absences,
J.W. had attended one or more classes during the day.75
On February 2, 2015, Ms. Foley received a letter from Principal E. Dale
Mitchell, stating that J.W. had been “administratively withdrawn.”76 Due to the court
order, J.W. enrolled in the Twilight High School. Since he did not receive any
individualized special education services and supports in Twilight Program, he
struggled to make any progress and, in frustration, dropped out. He is currently
homeless, out of school and unemployed.
2. R.W.
R.W. is an eighteen-year-old student in the twelfth grade. Until she was
forced out of school through the truancy process, she was receiving special
education services at Sterling High School in Houston ISD. Ms. K. Foley, R.W.’s aunt,
files this complaint regarding R.W.’s force-out by Houston ISD. R.W. was forced out
of school by her principal administratively withdrawing her due to absences. R.W.’s
ARD did not do anything to address those absences before she was forced out of
school.
On November 4, 2013, R.W. and Ms. Foley received a summons to appear on
November 19, 2013, because an FTAS complaint had been filed against her.77 On
December 23, 2013, R.W. received another summons to appear on January 22, 2014,
because an additional FTAS complaint had been filed against her.78 On September
23, 2014, R.W. received a “Court Costs Bill” from the court informing her that
although “the assistant district attorney opted to dismiss this case”, she still needed
to pay $85 by October 7, 2014 or she would be convicted and fined in the amount of
$585.79 In addition, if she was unable to pay, a Capias Pro Fine Warrant for her
arrest could be issued.80
On January 27, 2015, Ms. Foley received notice from Sterling High School that
R.W. was being charged with FTAS, because she allegedly had 39 unexcused
Houston ISD, Warning Notice, January 27, 2015.
Id., at 2.
75 Sterling High School Attendance Records for J.W, at 1-4.
76 Letter from E. Dale Mitchell, Sterling High School Principal, to Ms. Foley (February 2, 2015).
77 Summons, Justice Court, Precinct 7, Place 1, Parent to Appear with Defendant Child, Case Number
CR71C0160171 (November 11, 2013).
78 Summons, Justice Court, Precinct 7, Place 1, Parent to Appear with Defendant Child, Case Number
CR71C0164478 (January 22, 2015)..
79 Court Costs Bill, September 23, 2014.
80 Court Costs Bill, September 23, 2014.
74
74

18

 absences from October 1, 2014 to January 26, 2015. On February 2, 2015, Ms. Foley
received a letter from Principal Mitchell, stating that R.W.’s enrollment had been
revoked and she had been “administratively withdrawn from Sterling High
School.”81 The letter further stated that if R.W. could be charged with trespassing if
she returned to Sterling High School.82
As a result, R.W. was forced to sign up for Advanced Virtual Academy, a
homeschool program through Twilight High School, and to abandon her rights to a
free, appropriate public education.
3.

M.P.

M.P. is a seventeen-year-old student in the tenth grade at Worthing High
School in Houston ISD. He qualifies for special education under the eligibility
category of Specific Learning Disability.83 He appears by and through his parent and
next friend, Mr. M. Porter. M.P. is at imminent risk of being forced out of school
because his family cannot afford additional FTAS and PCNA fines, which appear
inevitable given Houston ISD’s continued refusal to correctly record his attendance.
M.P. receives pull-out educational support services in a resource class.84
Despite being present at school, his general educational teachers continue to mark
him absent when he is in the resource class. M.P. and Mr. Porter have received two
FTAS and PCNA complaints. For the first FTAS and PCNA complaint, they both
attempted to plead not guilty and explain the situation, but Houston ISD Truancy
Officer Roberson ignored their explanation and coerced them into pleading guilty.
They were both fined and are still making payments.
On November 3, 2014, the second FTAS and PCNA complaints were filed
against M.P. and Mr. Porter. The Campus Attendance Referral fails to correctly
identify M.P. as a student receiving special education services or show any truancy
prevention measures taken prior to referral.85 On February 18, 2015, M.P. and Mr.
Porter again attempted to plead not guilty and explain the situation, but to no avail.
They accepted a deferred disposition agreement.86 M.P. was threatened by a TRIAD
caseworker with being ordered to enroll in a GED program if he continues to incur
absences.
In March 2015, an ARD was convened for M.P., but attendance was not
discussed and no assurances were made to resolve these issues for M.P. and Mr.
Porter. On April 28, 2015, DRTx appeared as pro bono counsel for M.P. and Mr.
Porter. Ms. Roberson recommended that the disposition agreement be revoked and
Letter from E. Dale Mitchell, Principal, Sterling High School, to Parent of R.W. (February 2, 2015).
Id.
83 ARD/IEP Team Report, for M.P., Houston ISD (October 29, 2014).
84 ARD/IEP Team Report, for M.P., Houston ISD (October 29, 2014).
85 Letter from Judge Hilary Chen, Justice of the Peace Precinct 7, Place 1, to M.P., (November 5, 2014).
86 Order Suspending Sentence and Deferring Final Dep. for M.P. (February 18, 2015).
81
82

19

 a fine imposed, because M.P. had incurred more absences. DRTx insisted that she
call Special Education Department Chair Kimberly Wilson at Worthing High School
to verify the alleged absences. Ms. Wilson confirmed M.P. and Mr. Porter’s claims
that M.P. has not had any unexcused absences from school. Although the Assistant
District Attorney agreed to dismiss the complaints, the Court Clerk told M.P. and Mr.
Porter that they are still required to pay court costs of $87 each or the court will find
them in violation of the deferred disposition agreement and impose a fine of $587
each. On April 28, 2015, DRTx filed a motion to waive fines and costs and requested
a hearing, but the court has not yet responded or set a hearing.
Mr. Porter recently received another warning letter for alleged unexcused
absences. DRTx alerted Houston ISD Legal Counsel Hans Graff and Houston ISD
Special Education Director Susan Hurta about this issue, but has not received a
response on the issue.87 Mr. Porter and M.P. are homeless and have no current
income. Mr. Porter is considering un-enrolling M.P. to homeschool him, because he
cannot afford to pay the fines and costs associated with additional FTAS and PCNA
complaints.
4. Y.C.
Y.C. is a fifteen-year-old student in the ninth grade at Willowridge High
School in Fort Bend ISD. Y.C. is diagnosed with severe ADHD. She is prescribed
Vyvanse 60mg/daily and Intuniv 4mg/daily to treat her ADHD.88 She appears by
and through her legal guardian and next friend, Ms. L. Spann. Y.C. was forced out of
school through the financial burden of FTAS and PCNA fines caused by Fort Bend
ISD’s failure to correctly identify Y.C. as a student with a disability or to correctly
excuse medical absences.
On September 15, 2011, Y.C. was categorized as a Section 504 student, but
Fort Bend ISD failed to ever convene a 504 meeting, develop and implement an
individualized accommodation plan, or convene a manifestation determination
review for any of the multiple suspensions and expulsions to disciplinary alternative

Email from Shiloh Carter, Staff Attorney Disability Rights Texas, to Hans P. Graff, Houston ISD Legal
Counsel (February 23, 2015).
88 See Willowridge High School, Houston, TX, School Health Records for Y.C., (April 1, 2015) (Includes
entries dated from 2010-2015 for the following conditions: Allergy, Asthma, Psychological Disorder,
Vision Conditions, Pregnancy, and ADHD/ADD. Entry dated August 23, 2010 includes comment “take
vyvanse 50 mg @ 0800 AM in clinic; as of 2/9/11 takes intuniv in pm also.” Entry dated August 22,
2011 includes comment “vyvanse 50mg in AM @ school, intuniv 2mg @ home.” Psychological
Disorder entry dated December 1, 2011 includes comment “considering inpatient care; med
regulation pending.” Pregnancy Entry dated February 9, 2015 includes comment “Student in the
clinic feels lightheaded. Medical referral given to student. Referral returned and student physician
noted that student needs to eat frequent meals and stay hydrated”).
87

20

 education placements.89 In addition, Fort Bend ISD has failed to ever evaluate Y.C.
for special education services.90
During the 2009-2010 school year, Y.C. failed the fourth grade.91 In 2013, she
did not pass any section of the STAAR test.92 In 2014, Y.C. did not pass four of the
five sections of the STAAR test.93 During the 2014 fall semester, Y.C. failed six of her
seven classes.94 Despite a doctor’s recommendation that she be evaluated for
special education services when she was in elementary school, several placements
at a disciplinary alternative education placement, failing the fourth grade, being
socially promoted from the fifth grade to the sixth grade, and currently failing all her
ninth grade classes, Fort Bend ISD continues to refuse to evaluate Y.C. for special
education services.
Y.C. just recently gave birth to her first child. Due to her pregnancy, she has
experienced frequent nausea and has had to refrain from taking her prescribed
medications for her ADHD.95 She often misses her first period class because she is in
the school bathroom or school nurse’s office due to pregnancy related nausea.
Willowridge High School has refused to accommodate Y.C. and excuse these
absences.
Instead, Willowridge High School has referred her to the Fort Bend Truancy
Court twice this year. On January 28, 2015, Fort Bend ISD Truancy Officer Rafael
Rincon filed an FTAS complaint against Y.C. for ten alleged unexcused absences
between December 2, 2014 and January 15, 2015.96 According to the attendance
report filed with the complaint, only three out of the ten alleged unexcused absences
were full days.97 On February 17, 2015, the Fort Bend Truancy Court entered a
Deferred Adjudication Order that ordered Y.C. to successfully complete the “Saved
by the Bell” Program or else pay a fine of $295. This order requires Y.C. to pay a
special expense fee of $120 within 30 days (or $145 after 30 days), complete eight
See Fort Bend ISD Section 504 Records for Y.C.; See also Fort Bend ISD School Health Records for
Y.C., April 1, 2015 (School health records for Y.C. indicate that she is not receiving 504
accommodations); See also, Fort Bend ISD Education Records for Y.C. (In 2012-2013, 2013-2014, and
2014-2015 school years, Y.C. was sent to a Fort Bend ISD DAEP, Ferndell Henry Center for Learning).
90 Fort Bend ISD Section 504 Records for Y.C. (Listing no evaluation date).
91 Fort Bend ISD Education Records for Y.C. 91 (At Risk Screen includes entries stating the following:
“Placed in Alternative Education Program”, Entry Date - January 15, 2013, “Did not maintain average
of 70 in 2+ courses (7-12)” Entry Date – October 28, 2012, “Did not perform satisfactorily on
assessment instrument” Entry Date – November 11, 2013, “Not advanced to next grade 1+ times (K12)” Entry Date – August 23, 2010).
92 Fort Bend ISD Education Records for Y.C.
93 Fort Bend ISD Education Records for Y.C.
94 Official Transcript for Y.C., March 31, 2015 (stating Y.C.’s grades for 2014 fall semester are the
following: English 1 -57, Reading 1 – 66, Algebra 1- 3, Science IPC – 59, World Geography – 59, P.E. –
66).
95 Y.C. Student Profile on Skyward Educator Access Plus (Y.C.’s student profile includes a “Critical
Alert Information! – ADD/ADHD – not on meds due to pregnancy”).
96 Truancy Compl. Aff., Fort Bend Truancy Court (January 28, 2015).
97 Period Attendance Report, Fort Bend ISD Complaint # C1502357.
89

21

 hours of community service, and places her under the supervision of a juvenile
probation officer.98 In addition, the order threatens to hold Y.C. in contempt, if she
fails to comply with it or the directions of her assigned probation officer.99
On March 3, 2015, Mr. Rincon filed a second FTAS complaint against Y.C. for
ten alleged unexcused absences from January 16, 2015 to February 23, 2015.100
According to the attendance report filed with this complaint, only one of the alleged
absences was a full day absence.101
Since Willowridge High School refused to provide attendance
accommodations or excuse absences related to her pregnancy and health issues, and
her family could not afford to pay court-ordered fines, Y.C.’s doctor recommended
homebound education services.102 Fort Bend’s Truancy Court assigned S.O.U.R.C.E.
Caseworker Betsy Vasquez to Y.C.’s case. After Willowridge High School received
the request for homebound education services, S.O.U.R.C.E. Caseworker Betsy
Vasquez visited Y.C. at home to try to convince her to withdraw so she could enroll
in a homeschool program rather than Fort Bend ISD’s homebound education
program.
5. C.D.
C.D. is a fifteen-year-old student in the ninth grade at South Houston High
School in Pasadena ISD. C.D. is diagnosed with ADHD and depression. He appears
by and through his parent and next friend, Ms. D. Garcia. C.D. is at imminent risk of
being forced out through Pasadena ISD’s failure to appropriate identify him as a
student with a disability and its referral of C.D. for FTAS.
Despite receiving documentation of his ADHD diagnosis and failing classes
for the last two years, Pasadena ISD has failed to evaluate C.D. for special education
services. Currently, C.D. is failing six of his seven classes.103 In addition, his report
cards include teacher comments describing how C.D.’s behavior affects his
schoolwork.104
C.D. has received three FTAS complaints. Under pressure from the school
Truancy Officer and Assistant District Attorney, C.D. pled guilty to all three and
received fines for all three.

Order Granting Deferred Adjudication, Case No. 15-JJVT1-10579 (February 17, 2015).
Order Granting Deferred Adjudication, Case No. 15-JJVT1-10579 (February 17, 2015).
100 Truancy Compl. Aff., Fort Bend Truancy Court (March 6, 2015).
101 Period Attendance Report for Y.C., Fort Bend ISD Complaint #C1504013.
102 Fort Bend ISD Request for Medical Information for Y.C. (Dr. Pappas completed the form on March
10, 2015. Dr. Pappas stated that “[d]ue to frequent nausea, she should begin homebound services at
this time”).
103 Pasadena ISD Six Week 4 Report Card for C.D. 2014-2015.
104 Pasadena ISD Six Week 3 & 4 Report Cards for C.D. 2014-2015.
98
99

22

 On January 14, 2015, Ms. Garcia spoke with an administrator from South
Houston High School to express her frustration with the school’s failures to provide
adequate supervision, because Ms. Garcia “brings [C.D.] to school every day.”105
South Houston High School did not offer any assistance or assurances that C.D. was
adequately supervised while at school.106 On January 16, 2015, Pasadena ISD
Truancy Officer Susan Baker filed a complaint affidavit against Ms. Garcia and C.D.
for ten alleged unexcused absences between September 19, 2014 and December 19,
2014.107 Only two of the ten alleged unexcused absences were for full days.108
In February 2015, Ms. D. Garcia appeared in court for a PCNA complaint, and
C.D. appeared for his third FTAS complaint.109 The school liaison threatened to
order C.D. to enroll in a GED program when he turns sixteen years old. Ms. Garcia
tried to plead not guilty, but was coerced by the school truancy officer and assistant
district attorney to change her plea to no contest.110 She was told that, if she pled
not guilty, she would have to prove her innocence by providing medical notes for
every alleged absence. She was also told that the charge would not appear on her
record if she pled no contest. She changed her plea to no contest and received a fine
plus court costs of $525. She requested a payment plan, but her request was
denied.111 C.D. also received a fine and court costs of $525.112
6. X.S.
X.S. is a sixteen-year-old student in the eleventh grade at North Shore Senior
High School in Galena Park ISD. He has mental health diagnoses of ADHD and
bipolar disorder. He qualifies for special education services under the eligibility
category of Emotional Disturbance. He appears by and through his parent and next
friend, Ms. J. Simmons. X.S. was forced out of school through administrative
withdrawal for absences. These absences were caused by Galena Park ISD’s failure
to provide X.S. with appropriate special education and related services.
Last school year, X.S. attempted suicide at school and had to be hospitalized
for two weeks. X.S. struggles emotionally at school. Ms. Simmons has requested
assistance from the school to help X.S. improve his attendance, such as through
positive behavior supports and accommodations to attendance policies. In addition,
Assurance of Campus Efforts for C.W. (January 15, 2015).
Assurance of Campus Efforts for C.W. (January 15, 2015).
107 Compl..for Parent Contributing to Nonattendance , Harris County Justice of Peace, Precinct 8, Place
2 (January 16, 2015).
108 See Truancy Officer Packet, Attendance Information Summary for C.D. (February 12, 2015); see
also Compl..for Parent Contributing to Nonattendance , Harris County Justice of Peace, Precinct 8,
Place 2 (January 16, 2015).
109 Direction to Satisfy Judgment, Defendant’s Acknowledgement at 1 (February 17, 2015)
110See Parent/Guardian Plea of No Contest, Court Records from Harris County Justice of the Peace,
Precinct 8, Place 2 (February 17, 2015).See Harris County Justice of Peace, Precinct 8, Place 2 at 2
(February 17, 2015)..
111 See Direction to Satisfy Judgment, Defendant’s Acknowledgement at 1 (February 17, 2015).
112 See Direction to Satisfy Judgment, Defendant’s Acknowledgement at 1 (February 17, 2015).
105
106

23

 she requested a credit recovery program for X.S.. Galena Park ISD has denied X.S.
any of the assistance requested by Ms. Simmons.
In January 29, 2015, Assistant Principal Julian Guillory administratively
withdrew X.S. from school after 6 absences.113 Ms. Simmons re-enrolled her son in
school, although she and X.S. were required to meet with Assistant Principal Guillory
before he would allow X.S. to re-enroll. On February 3, 2015, Ms. Simmons received
a letter from Assistant Principal Guillory notifying her that X.S. had been withdrawn
again.114 The letter further stated that before Ms. Simmons could re-enroll X.S., she
“must attend a meeting with the campus Truancy Officer and Administrator.”115 On
February 10, 2015, X.S. attempted to attend school, but was told that he could not
re-enroll himself and would not be allowed to attend until his mother re-enrolled
him.116 On March 6, 2015, X.S. was administratively withdrawn again from school
for non-attendance.117 In this current school year, according to his attendance
records, X.S. has had no full day unexcused absences.118
7. R.S.
R.S. is a seventeen-year-old student who was in the tenth grade at Clear Lake
High School in Clear Creek ISD during the fall 2014 semester. He is diagnosed with
bipolar disorder, Asperger’s syndrome, and ADHD and receives special education
services under the eligibility categories of Emotional Disturbance and Other Health
Impairment. He appears by and through his parent and next friend, Ms. G. Walters.
R.S. is at imminent risk of being forced out of school into a GED program due to
Clear Creek ISD’s referral of R.S. for FTAS and its failure to provide R.S. with
appropriate special education and related services.
During the 2013-2014 school year, R.S. attended Clear Creek High School in a
self-contained behavior support classroom. During the summer, Ms. Walters was
notified that R.S. would have to change to a general education setting at Clear Lake
High School, because the behavior support program was no longer offered at Clear
Creek High School and their residence was zoned to Clear Lake High School. This
placement change was made outside of an ARD committee meeting or vote.
On October 21, 2014, Clear Lake High School filed an FTAS complaint against
R.S. and a PCNA complaint against Ms. Walters for 10 alleged unexcused absences
See Attendance Interventions and Total Number of Days Missed in a Year for X.S.
Letter from Julian Guillory, Deputy Principal, North Shore Senior High School, to Parent or
Guardian of X.S. (February 3, 2015).
115 Letter from Julian Guillory, Deputy Principal, North Shore Senior High School, to Parent or
Guardian of X.S. (February 3, 2015).
116 See Email from Elizabeth Nettles, Behavioral Specialist for P.A.S.S. Program, to Karen Jill (February
10, 2015).
117 See Email from Elizabeth Nettles, Behavioral Specialist for P.A.S.S. Program, to Karen Jill (April 9,
2015).
118 See North Shore Senior High Day Summary (Morning Report) for X.S. (May 12, 2015).
113
114

24

 from September 16 to October 13, 2014.119 According to attendance records, Ms.
Walters provided notes for absences on September 3, September 15, September 16,
September 17, September 18, September 19, and October 6, 2014, but Clear Lake
High School refused to excuse these absences.120 At the November 7, 2014 court
date a Clear Creek ISD truancy officer recommended that R.S. be ordered to unenroll from school and sign up for a GED course. Ms. Walters advocated against
ordering R.S. to enroll in a GED program. The court threatened to order R.S. to
enroll in a GED program if he obtained any additional unexcused absences.
III.

LEGAL VIOLATIONS
A. The Districts have failed to identify, locate, and evaluate
students with disabilities for special education and related
services under IDEA before referring those students to court
for FTAS.

The Individuals with Disabilities Education Act (“IDEA”) mandates that all
children with disabilities, including those who are homeless or wards of the state,
who are in need of special education and related services, be identified, located, and
evaluated (“Child Find”).121 The Districts have failed to develop policies and
procedures to ensure that all children with disabilities are identified, located, and
evaluated for special education services as required by the “Child Find” laws. For
some of the Districts, these failures are reflected in their significantly lower
percentage of students identified for special education services than the statewide
average.122
For instance, Fort Bend ISD’s inadequate Child Find policies and procedures
have denied appropriate education to an alarming number of children with
disabilities.123 During the most recent school year for which TEA has published
data, Fort Bend ISD’s special education population was only 6.0 percent of the total
student population,124 less than half the national average of 12.9 percent and less
than three-quarters of the state average of 8.5 percent.125 During the 2012-2013
Compl. for Failure to Attend School, Harris County, Texas Precinct 8, Position 2 (October 21,
2014).
120 See Student Attendance Detail for R.S., Clear Lake High School (November 6, 2014).
121 34 C.F.R. § 300.111.
122 34 C.F.R. § 300.111.
123 See attachment 1, Fort Bend ISD 2011-2012 PDMAS Data interpretation, (stating “Although the
district meets TEA’s standard of 8.5% SED representation, as a percentage of total enrollment, the
district reports 6.2% of students receive services under IDEA (we have established that this is a
concern)”).
124 Texas Education Agency Snapshot School District Profiles, Fort Bend ISD 2012-2013, available at
http://ritter.tea.state.tx.us/cgi/sas/broker.
125 TEXAS EDUCATION AGENCY, ENROLLMENT IN TEXAS PUBLIC SCHOOLS, 2012-2013, (Mar. 2014), available at
http://tea.texas.gov/acctres/enroll_index.html; TEXAS EDUCATION AGENCY, ENROLLMENT IN TEXAS PUBLIC
SCHOOLS, 2013-14, (Nov. 2014), available at http://tea.texas.gov/acctres/enroll_index.html (national
data most recently available for the 2011-2012 school year).
119

25

 school year, only 811 students out of 69,123 Fort Bend ISD students were referred
for evaluations and only 56 of those referrals were high school students.126 At
Willowridge High School, only five students of the total 1,256 students were
referred for special education services in 2012-2013.127 Over the last three years,
Fort Bend ISD’s special education population has never constituted more than 6.3
percent of the student population.128
Houston ISD also identifies fewer students who are eligible for special
education than the national and state average. In the 2012-2013 school year, the
district identified only 7.7 percent of the student body as eligible for special
education.129
The Districts are required to include special education referrals as part of
their overall general education or screening system, but have failed to do so.130
Under IDEA, school districts cannot have a policy or procedure that purposefully
delays or denies identification for special education.131 The current referral policies
in Fort Bend ISD purposely delay evaluations in violation of IDEA.132 According to
Fort Bend ISD’s own training materials, the district suggests that students who are
in kindergarten or first grade do not have enough educational opportunity to qualify
for services.133 Furthermore, the district instructs their staff to wait for fifth grade
students to “age up a year” before referring for an initial special education
evaluation or a reevaluation if students are still struggling.
The Districts’ Child Find policies and general education interventions prevent
students with disabilities involved in the truancy courts from being identified,
located and evaluated for special education services. For example:


Complainant Y.C. is a student in Fort Bend ISD who has never been evaluated
for special education services, despite a diagnosis of severe ADHD that has
been well documented with the school district for years. After failing

See attachment 1, Fort Bend ISD K-12 referral data for the 2012-2013 school year, also available at
http://ritter.tea.state.tx.us/cgi/sas/broker) and Texas Academic Performance report for
Willowridge High School (see attached also available at
http://ritter.tea.state.tx.us/perfreport/tapr/2013/static/campus/c079907002.pdf). Of the 811
referred for special education services, 464 were found eligible. Only 1.17 percent of the student
population is referred for services and only .67 percent become eligible each year.
127 See attachment 3, Fort Bend ISD k-12 referral data for the 2012-2013 school year.
128 See attachment 2, Fort Bend ISD’s 2014-2015 Fast Facts report, at 2 (indicating a special education
population of 6.3%).
129 Texas Education Agency Snapshot School District Profiles, Houston ISD 2012-2013, available at
http://ritter.tea.state.tx.us/cgi/sas/broker.
130 19 TEX. ADMIN. CODE § 89.1011.
131 See attachment 4, OSEP Letter 11-07, “A Response to Intervention (RTI) Process Cannot be Used
to Delay-Deny an Evaluation for Eligibility under the Individuals with Disabilities Education Act
(IDEA)” (January 21, 2011).
132 34 C.F.R. §§ 300.304-311.
133 See attachment 5, Fort Bend RTI training, “Making RTI Work For You—how to have more time and
make more money and help more students!” (November 8, 2013).
126

26

 multiple grades and receiving repeated assignments to disciplinary
alternative placements, Y.C.’s doctors recommended and notified Fort Bend
ISD of the need for special education services. Despite this ongoing,
demonstrable need for evaluation for special education services, Fort Bend
ISD continues to fail to evaluate Y.C. for special education services.


Complainant C.D. is a student in Pasadena ISD who has never been evaluated
for special education services. C.D. is diagnosed with ADHD and depression,
and has failed multiple classes over the last two years. C.D. has never been
evaluated for special education and has received three FTAS charges. Rather
than identifying C.D. as a student with a disability and referring him for a
special education evaluation, school staff assigned to the truancy court have
threatened C.D. that they would obtain a court order to force him to drop out
and pursue a GED once he turns sixteen.



A seventeen-year-old student in Houston ISD received special education
services in middle school for her bipolar disorder. When she moved to high
school, she was told that special education was not offered in high school and
she stopped receiving services. Subsequently, she was administratively unenrolled after missing school to take care of her daughter during an extended
illness. Although she wants to return to school to earn her diploma, she has
not been able to do so because of a lack of childcare for her daughter and her
difficulty in making progress in school without the support of special
education. The court ordered her either to re-enroll in public school in two
weeks, without the school providing any services to help overcome the
barriers that had prevented her from re-enrolling previously, or else to
permanently drop out and pursue a GED.



A student in Houston ISD who had not been evaluated for special education
was hospitalized for her depression. After informing the campus of her
depression, subsequent hospitalization and failing grades, the campus
recommended she locate a private therapist and made no efforts to refer her
to special education for evaluation. After receiving FTAS charges for the time
she was in the hospital, she received a 90-day deferred disposition order
along with a requirement to attend tutoring sessions, but the school still did
not refer her to special education evaluations.
B. The Districts fail to provide appropriate and effective
evaluations that could determine the root causes of truancy
for students with disabilities and ensure their appropriate
educational placement.

The Districts are required to ensure that every child receiving special
education and related services is appropriately reevaluated should the student’s
educational or related service needs, including improved academic achievement and

27

 functional performance, warrant a reevaluation.134 The evaluation must use a
variety of assessment tools and strategies to gather relevant functional,
developmental, and academic information about the student to determine whether
the student’s Individualized Education Program (“IEP”) sufficiently supports the
student in making educational progress.135
When a student with a disability misses sufficient school days to be charged
with FTAS, the student’s academic achievement, functional performance, and ability
to access the general education curriculum have likely been harmed. Consequently,
before filing an FTAS complaint, the school district should first determine the
reasons behind the student’s absences and their impact on the student’s ability to
make progress on his or her IEP goals and receive a free, appropriate public
education. If the reasons behind the student’s absences are not readily apparent,
the school should conduct a reevaluation to specifically understand the student’s
attendance issues. Such a reevaluation could include a functional behavioral
assessment to evaluate behavioral difficulties that impact a student’s ability to
remain in a classroom; a psychosocial evaluation to assess psychological or other
factors that may prevent a student from attending school regularly; or academic and
intellectual functioning evaluations to assess whether the student’s attendance is
impacted by the student’s frustration with limited academic understanding. After
conducting court observations throughout the state, our Organizations have not
encountered any students who have received this individualized assessment to
determine the root causes of their nonattendance and provide recommendations for
addressing the issue.
Additionally, a change in placement should generally trigger a reevaluation,
particularly when the placement change is to a more restrictive setting.136 A student
who is court-ordered to pursue a GED, be homeschooled, or attend an alternative
program experiences a change in placement that will impact the student’s ability to
access the general education curriculum.137 However, upon information and belief,
the Districts have no practice or procedure for revaluating students with disabilities
at any time related to their FTAS charges. Nor do the Districts require reevaluations
prior to school district staff recommending that the truancy court order the student
out of school and into a GED program, homeschooling, or an alternative program.
Consequently, we spoke to no families statewide who reported that their student
with a disability received a special education reevaluation before school staff
recommended a change in placement through an FTAS proceeding. For example:

34 C.F.R. § 300.303(a).
34 C.F.R. § 300.304(b)(1).
136 See, e.g., Board of Educ. of City of White Plains, 20 IDELR 1475 (SEA NY 1994); Brimmer v. Traverse
City Area Pub. Sch., 22 IDELR 5 (W.D. Mich. 1994).
137 34 C.F.R. § 300.303(a)(2). While students with disabilities must be reevaluated every three years,
the student’s parent or teacher can request a reevaluation sooner. School districts need not wait until
a parent requests a reevaluation but can proactively request the parent’s consent to reevaluate the
student well before the student’s absences reach the potential for FTAS charges.
134
135

28

 

Complainant J.W. is a student in Houston ISD who qualifies for special
education for ADHD. He received an FTAS charge for absences dated October
10, October 15, and October 17, 2014. J.W.’s annual ARD meeting was held
on October 17, 2014, on the day of the third absence that triggered the FTAS
charge, yet the school requested no new evaluations or assessments to
identify the cause of the attendance issues or to help prevent future
absences.



Complainant M.P. is a student in Houston ISD who qualifies for special
education for learning disabilities. In 2014-2015 school year, M.P. has
received two FTAS complaints. His ARD committee has met twice this school
year, in October 2014 and March 2015, but failed to request new evaluations
or assessments to identify the cause of the attendance issues. His general
education teachers mark him absent when M.P. is actually in school in his
resource class. An assessment would have quickly identified the situation
and provided recommendations to resolve communication issues to prevent
the unnecessary referrals to court and financial burden of fines and court
costs placed on M.P. and Mr. Porter.



Complainant R.S. was a student in Clear Creek ISD who qualifies for special
education for ADHD, bipolar disorder, and Asperger’s syndrome. He and Ms.
Walters received a FTAS and PCNA on October 21, 2014. An ARD was never
convened to discuss non-attendance or request any new evaluations or
assessments to identify the cause of the attendance issues or to help prevent
future absences.



A student in Fort Bend ISD who is eligible for special education under the
category of Emotional Disturbance received an FTAS charge after struggling
with her mental health due to bullying. Despite her ARD committee’s
longstanding knowledge of her attendance struggles, including suicidal
attempts and psychiatric hospitalizations, the school never requested a
single evaluation to address the student’s changing needs and escalating
mental health concerns that directly contributed to her attendance.138
C. The Districts fail to provide students with disabilities with
appropriate special education and related services to address
and remedy attendance issues that lead to FTAS charges.

To receive FAPE, students with disabilities are entitled to special education,
defined as specially designed instruction, at no cost to the parents, intended to meet
the student’s unique needs.139 School districts must provide specially designed
instruction that adapts the content, methodology, or delivery of instruction to
address the unique needs resulting from the student’s disability. This specially
138
139

DRTx, Texas Appleseed, and NCYL court observations (February to May 2015).
34 C.F.R. §300.39.

29

 designed instruction is meant to ensure the student may access the general
curriculum, so that the student can meet the educational standards that apply to all
students.140 Schools must also provide related services, such as transportation or
developmental, corrective, and other supportive services that are necessary to assist
a child with a disability in benefiting from special education.141 In short, school
districts must provide personalized instruction with sufficient support services to
permit the student with a disability to benefit educationally from the instruction.142
Students with disabilities who are referred to court for FTAS miss significant
amounts of school and instructional time, making it difficult, if not impossible, for
them to benefit from special education services. Upon information and belief, when
the Districts refer students to court for FTAS, they fail to address the ongoing needs
of students with disabilities by neglecting to adapt as appropriate the content,
methodology, or delivery of instruction to meet the individual needs of the student.
The Districts further fail to provide appropriate related services to assist students
with disabilities in benefiting from special education. For example:


Complainant X.S. is a sixteen-year-old student in Galena Park ISD who is
eligible for special education under the category of Emotional Disturbance
for bipolar disorder and ADHD. After a suicide attempt at school and
subsequent hospitalization, X.S.’s parent requested additional services from
the school to address his emotional struggles at school and lack of progress.
X.S.’s requests for positive behavior supports, accommodations to attendance
policies, and credit recovery program have all been denied by the school. X.S.
continues to struggle academically and emotionally and has incurred
additional FTAS charges due to the school’s failure to provide him FAPE.



Complainant R.S. was a student in Clear Creek ISD who is eligible for special
education under Emotional Disturbance and Other Health Impairment. As
part of a deferred disposition agreement, the court ordered that his mother
obtain weekly counseling for him. Clear Creek ISD was only providing R.S.
with one 30 minute direct counseling session every nine weeks as a related
service. Instead of re-evaluating his related services and increasing his
counseling at school, Clear Creek ISD used the truancy process to place the
burden on R.S.



A 17-year-old student in Pasadena ISD who receives special education under
the category of Emotional Disturbance reported that the school’s failure to
provide adequate services for him to make educational progress, despite his
requests for help, was the primary reason for his FTAS charges. As a result,

34 C.F.R. §300.39(b)(3).
34 C.F.R. §300. 34(a).
142 Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester County, et al. v. Rowley, 458 U.S. 176,
177 (1982).
140
141

30

 he has dropped out and is currently attending an alternative program,
Summit.
D. The Districts fail to ensure all decisions regarding placement
changes for students with disabilities are made by a properly
constituted ARD committee, regardless of referral to court for
FTAS.
For a student with a disability to receive FAPE, a school district must ensure
that the student’s educational placement is determined by a team that includes the
student’s parents and other persons who are knowledgeable about the student, the
meaning of the student’s evaluation data, and the available placement options.143
The student’s placement must be determined at least annually, based on the
student’s IEP, as close as possible to the student’s home, and the student’s least
restrictive environment.144
For students referred to court for FTAS, school officials from the Districts
recommend that the court require placement changes. These include orders that
the student drop out of school to pursue a GED, that the parent homeschool the
student, or that the student attend an alternate school campus or program that may
not provide appropriate supports and services as required in the student’s IEP.
Upon information and belief, these recommended placement changes are not made
by an ARD committee of individuals who are knowledgeable about the child, the
meaning of the evaluation data or the placement options. Rather, from what we
have witnessed and heard from complainants and others, the Districts’ staff
assigned to these court proceedings make recommendations to the court to
unilaterally change students’ placements without regard to students’ right to be
educated in the least restrictive environment, any evaluation data, or the likelihood
of the student’s success in the proposed placement. To our knowledge, virtually no
consideration is given to the parents’ or students’ wishes when the Districts’ staff
recommend placement changes to the court. Indeed, we have observed the
Districts’ staff recommend that students be ordered to drop out and forgo their right
to FAPE despite the students and parents’ protestations. For example:


R.W. was a student in Houston ISD and was eligible for special education
services. After being administratively withdrawn from school and
threatened with trespass charges if she returned to campus, R.W. was forced
to sign up for a homeschool program as condition of a deferred adjudication,
at the insistence of the truancy officer after referral to court for FTAS. Her
ARD committee never discussed whether her needs could be met through

34 C.F.R. §300.116(a)(1)-(2).
34 C.F.R. §300.116(b). Additionally, students with disabilities must not be placed in special
classes, separate schooling, or otherwise removed from the regular educational environment unless
they cannot make educational progress in the regular environment with appropriate aids and
supports. 34 C.F.R. §300(a)(2)(ii).
143
144

31

 homeschooling or whether a placement change to exit the public school
system was appropriate.


Complainant R.S. is a student in Clear Creek ISD, who is eligible for special
education for ADHD, bipolar disorder, and Asperger’s syndrome. R.S. was
moved from a self-contained therapeutic behavior support classroom at
Clear Creek High School to general education at Clear Lake High School
without Clear Creek ISD ever convening an ARD meeting to discuss where his
needs could be met in general education at Clear Lake High School. At court,
Clear Lake High School’s truancy officer threatened to have R.S. ordered to
withdraw from Clear Lake High School and enroll in a GED program. An ARD
committee never discussed whether his needs could be met through a GED
program or whether a placement change to exit the public school system was
appropriate.
E. The Districts fail to ensure all students with disabilities are
able to continue attending public school and receiving FAPE
until the age of 21.

IDEA requires school districts to provide FAPE to all students with
disabilities between the ages of three and 21.145 Special education eligibility
terminates once the student graduates with a regular high school diploma after
meeting the state or district’s required standards or the student’s IEP goals.146
While students with disabilities are eligible to graduate with a diploma at any time
once graduation standards are met, and thus terminate their eligibility earlier, all
students receiving special education may continue to attend public high school and
receive FAPE until the school year in which they turn 22.147
Our court watching, review of data, and conversations with complainants
indicate students with disabilities facing FTAS charges in the Districts are being
forced out before their eligibility for special education expires. Upon information
and belief, the Districts do not counsel these students on their right to remain in
school until the end of their eligibility or their ability to receive FAPE despite the
court order or agreement requiring them to exit the public school system. Instead,
our observations, the complainants experiences, and our review of the data indicate
the Districts use the truancy court system to force out otherwise qualified students
with disabilities and prevent them from accessing FAPE until the end of their
eligibility. For example:

34 C.F.R. §300.101(a).
19 TEX. ADMIN. CODE §89.1070; 34 C.F.R. §300.102(a)(3)(i).
147 19 TEX. ADMIN. CODE § 89.1035 [In Texas, an eligible student receiving special education services
who is 21 years old on September 1 of the school year may continue to attend school until the end of
the school year, or the student’s graduation].
145
146

32

 

Abilene, Austin, Clear Creek, Conroe, Ector County, Fort Worth, Galveston,
Houston, Pasadena, San Antonio, and Victoria ISD all have significant
numbers of students with disabilities who are court-ordered to enter GED
programs and then do not earn their GED.



Complainant R.W. was a student in Houston ISD who was eligible for special
education services. The week after receiving FTAS charges, R.W. was notified
by letter that she had been administratively withdrawn from public high
school and could face trespass charges if she were to return. At no time was
she counseled on her ability to remain in school until the age of 22 or to
return despite being un-enrolled.



Complainant J.W. is a student in Houston ISD who is eligible for special
education under the category Other Health Impairment for ADHD. Despite
only being seventeen, J.W. was notified by letter that he had been
administratively withdrawn from school. He had missed just three full
school days that school year. Although J.W. demonstrated a desire to
continue attending school, he was forced out by the school district and not
informed of his ongoing right to attend until the age of 22.



Complainant M.P. is a student in Houston ISD who receives special education
services for learning disabilities. At court, M.P. was threatened with being
ordered to enroll in a GED program if he continued to incur unexcused
absences.



Complainant X.S. is a student in Galena Park ISD who receives special
education services under the category of Emotional Disturbance. After
struggling with his mental health, including extended hospital stays following
a suicide attempt at school, X.S. was notified by letter in January 2015 that he
had been administratively withdrawn from school and would only be
allowed to re-enroll after X.S. and his guardian met with the Principal.
Following that meeting, X.S. re-enrolled and continued to attend. However,
in March of 2015, X.S. was again administratively un-enrolled. X.S.’s parent
went to the school to attempt to re-enroll him, only to be denied reenrollment due to X.S.’s absences. Although X.S. was eventually allowed to
re-enroll, at no time during this process did school district staff counsel X.S.
or his parent about his right to receive FAPE until age 22.



Complainant R.S. was a student in Clear Creek ISD who receives special
education services for ADHD, bipolar disorder, and Asperger’s syndrome.
Despite his right to receive services and continue his education until the age
of 22, upon the recommendation of the Clear Creek ISD truancy officer, the
court threatened to order R.S. to enroll in a GED program at the next hearing.

33

 F. TEA has failed to ensure that all students with disabilities in
the state of Texas receive FAPE, regardless of referral to court
for FTAS.
Under federal law, TEA bears ultimate responsibility for ensuring that all
students with disabilities in Texas receive FAPE.148 Among other provisions, federal
law requires TEA to have policies and procedures that ensure that all students with
disabilities in Texas:







are identified and evaluated;149
receive an IEP based on the student’s need and developed according to
federal law;150
receive an educational placement based on the student’s IEP and determined
by “a group of persons, including the parents, and other persons
knowledgeable about the child, the meaning of the evaluation data, and the
placement options;”151
remain in their regular education environment unless they cannot make
satisfactory progress with appropriate supplementary aids and services;152
and
are not removed from their regular classroom because of needed
modifications in the general education curriculum.153

Similarly, Texas state law requires TEA to ensure that each Texas student
with a disability:




has a properly developed and implemented IEP;154
is educated in the least restrictive environment that is appropriate to the
student’s educational needs;155 and
receives necessary related services.156

To achieve these goals, Texas state law mandates TEA’s creation and
implementation of a comprehensive system to monitor school district compliance
with state and federal special education law.157 As part of this system, TEA must
engage in ongoing analysis of school district special education data and inspections
of school district facilities.158
20 U.S.C. § 1412 (a)(1)(A); 34 C.F.R. § 300.101.
20 U.S.C. § 1412(a)(3)(A); 34 C.F.R. § 300.111(a)(1)(i).
150 20 U.S.C. § 1412(a)(4); 34 C.F.R. § 300.112.
151 34 C.F.R. 300.116(a)(1); (b)(2).
152 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2).
153 34 C.F.R. § 300.116.
154 TEX. EDUC. CODE § 29.001(7).
155 TEX. EDUC. CODE § 29.001(8).
156 TEX. EDUC. CODE § 29.001(9).
157 TEX. EDUC. CODE § 29.010(a).
158 Id.
148
149

34

 1. TEA has failed to create adequate data monitoring systems to
prevent school districts from forcing students with disabilities out
of regular education.
TEA’s failure to require school districts to provide accurate data regarding
students with disabilities who are referred to court for truancy means that TEA
cannot ensure that these students receive FAPE. Even though state law requires
school districts to report their truancy data to TEA, many do not do so.159
Consequently, TEA does not have sufficient data to identify all school districts where
students with disabilities are being forced out of regular education through the
truancy process.
Although TEA could employ a range of sanctions against school districts that
fail to report accurate truancy data, upon information and belief, TEA has not done
so. For example, TEA has authority to downgrade the accreditation of Districts that
fail to report this data and TEA also has authority to initiate investigations of school
districts’ special education provision.160 However, to our knowledge, TEA has yet to
downgrade the accreditation of any school district or investigate any school district
for its failure to report truancy data to TEA.
Beyond this failure to collect basic data on truancy court referrals, TEA has
also failed to create any data system that would allow it to monitor whether
students with disabilities are being forced out of regular education through the
truancy process. TEA does not routinely collect or review data regarding:




The types of interventions that school districts implement for
students with disabilities before those students are referred to court
for FTAS;
The effect of FTAS court proceedings on the educational placement of
students with disabilities; or
The recommendations that school staff make to court officials during
FTAS court proceedings.
2. TEA has failed to use the data that it does collect to identify school
districts where students with disabilities have been forced out
through the truancy process.

Even where TEA does have data showing that school districts are forcing
students with disabilities out of school through the truancy process, TEA has failed
to take any remedial action. As described above, over a three-year period, 1,247
See Section II.A.4.i, supra. TEA’s employment of ESCs to verify school district data does not reduce
TEA’s obligation under federal law to ensure that every Texas student with a disability receives
FAPE.
160 TEXAS APPLESEED, supra note 2 at 11; TEX. EDUC. CODE § 29.010(a).
159

35

 special education students in Texas did not earn a GED after being court-ordered to
withdraw from regular education and prepare for the GED. Given that these
students could not earn a GED, they could not have been receiving FAPE in a GED
program. However, to our knowledge, TEA has not initiated investigations of the
school districts responsible for the education of these students. As described in
Section II.A.3.iii., supra, TEA’s great difficulty in producing a report that identifies
which school districts have forced students out in this way shows that TEA is not
regularly using this data to investigate school districts.
Furthermore, although the majority of these students are still age-eligible for
special education, to our knowledge, TEA has failed to identify these students and
ensure that they are re-enrolled in an educational program that provides them
FAPE. For these 1,247 students, TEA has completely abdicated its affirmative duty
to ensure that students with disabilities receive FAPE.
3. TEA disincentivizes school districts from identifying students with
disabilities, thereby increasing the likelihood that these students
will be forced out through the truancy process.
Since 2004, TEA has used the Performance-Based Monitoring Analysis
System (“PBMAS”) to monitor Texas public schools. PBMAS Special Education
Indicator No. 16 measures the percent of students enrolled in a district who receive
special education services.161 TEA has set the “performance level” for Indicator No.
16 at 8.5 percent, meaning that PBMAS expects school districts to identify no more
than 8.5 percent of students as children with disabilities.162 TEA’s annual
monitoring reinforces this expectation: TEA awards its best possible score to
schools that identify 8.5 percent or fewer of their students as eligible for special
education.163 When a school district identifies more students as eligible for special
education, TEA awards a lower score, meaning that the school district will be
subject to additional scrutiny.164
This clearly articulated goal of identifying fewer than 8.5 percent of Texas
students as eligible for special education flies in the face of national data showing
that 13 percent of students nationwide have disabilities that entitle them to special
education.165 Texas school districts have responded to TEA’s goal remarkably
efficiently: approximately 8.5 percent of Texas students were identified as students
eligible for special education in 2013-2014.166

TEA, 2014 PERFORMANCE BASED MONITORING ANALYSIS SYSTEM MANUAL 74, incorporated by reference,
19 Tex. Admin. Code § 97.1005(b).
162 Id.
163 Id.
164 Id.
165 National Center for Education Statistics, Fast Facts, Students with Disabilities, available at
https://nces.ed.gov/fastfacts/display.asp?id=64.
166 TEXAS APPLESEED, supra note 2, at 69.
161

36

 By establishing this low expectation, TEA has created a monitoring scheme
that disincentivizes school districts from meeting their obligations under state and
federal law to identify students with disabilities. This disincentive makes it less
likely that students with disabilities will be identified and receive appropriate
services. As described in Section III.A, supra, when school districts fail to identify
students with disabilities and provide them appropriate services, these students are
more likely to be forced out of regular education through court referral for FTAS.
4. TEA has failed to provide school districts sufficient guidance to
ensure that FTAS referrals do not impact FAPE for students with
disabilities.
Although TEA publishes best practices covering a number of topics relevant
to Texas public education, to our knowledge, TEA has failed to include best practices
regarding:






Addressing truancy without referring students to court;
Ensuring that students with disabilities are not referred to court for
absences related to their disabilities;
Creating behavior intervention plans to address students with
disabilities’ absences before referral to court;
Implementing other evidence-based interventions to ensure students
with disabilities can access their special education programming; or
Ensuring FAPE for students with disabilities who have absences.

To our knowledge, TEA has also failed to provide school districts with any
guidance on:
 The types of truancy prevention and intervention measures that
should be attempted before a court referral is made;
 How to train school staff who attend FTAS court proceedings to
ensure that their recommendations are consistent with providing
FAPE to students with disabilities; and
 How to create a system that ensures that students with disabilities are
not referred to court without a referral to an ARD to discuss
evaluation or to review their educational placement.
Although TEA does provide annual guidance to school districts on implementation
of attendance laws, that guidance has not addressed how to ensure that students
with disabilities still receive FAPE despite referral to court for truancy. 167 In fact,
the total lack of guidance to districts from TEA led the Legislative Budget Board to

See, e.g., Letter from David A. Anderson, Gen. Counsel, Tex. Educ. Agency, to Administrators (Aug.
14, 2014), available at http://www.tea.state.tx.us/index4.aspx?id=2147508100.
167

37

 recommend that the agency be statutorily required to create minimum standards
and establish best practices for truancy prevention and intervention.168
IV.

REMEDIES SOUGHT
A. Request for Independent Investigation and Resolution

Because the Complainants allege that the Districts and TEA have violated
numerous requirements of IDEA, its implementing regulations, and state special
education requirements resulting in the denial of FAPE for students with
disabilities, the Complainants request the selection of an independent expert who is
knowledgeable in educating truant students with disabilities to investigate and
resolve this complaint. TEA has authority to retain an outside individual or entity to
investigate a complaint against it.169
B. Statewide Remedies
Based on the ongoing violations of students’ rights under IDEA, the
Complainants respectfully request that TEA protect students with disabilities across
Texas from further violations by establishing clear guidance and monitoring
systems that guarantee that:
A) Districts develop and follow procedures for ensuring students who miss
school and may have disabilities are identified, located, evaluated, and
offered FAPE;
B) Districts abandon use of the truancy process to force students with
disabilities, identified or unidentified, to withdraw from school to avoid
criminal penalty for FTAS; and
C) TEA undergoes efforts to identify all students with disabilities under the age
of 22 who have been forced out of school through the truancy process
described in this complaint; and
D) TEA ensures that all Texas students with disabilities who have been forced
out of school through the truancy process are offered appropriate special
education services and compensatory education.
The Complainants further request that TEA provide school districts
information on best practices for:

LEGISLATIVE BUDGET BOARD, TEXAS STATE GOVERNMENT EFFECTIVENESS AND EFFICIENT REPORT, at 2, 7
(2015).
169 See, e.g., Comments to 34 C.F.R. § 300.152(a), Federal Register, Vol. 71, No. 156, p. 46602 (August
14, 2006). See also, OSERS Letter to Chief State School Officers, July 17, 2000, Question No. 15.
168

38

 







Developing and implementing Child Find policies that ensure students who
miss school and are suspected of having disabilities are identified, located
and evaluated.
Ensuring that students with disabilities are not referred to court for absences
related to their disabilities;
Creating behavior intervention plans to address students with disabilities’
absences before referral to court;
Implementing other evidence-based interventions to ensure students with
disabilities can access their special education programming;
Preventing and intervening in truancy before a court referral is made;
Training school staff who attend FTAS court proceedings to ensure that their
recommendations are consistent with providing FAPE to students with
disabilities; and
Creating a system that ensures that students with disabilities are not
referred to court without a referral to an ARD to discuss evaluation or to
review their placement.

C. Specific Remedies for J.W. in Houston ISD
1.

Houston ISD convene an ARD and offer appropriate
compensatory education including transition services and oneon-one tutoring with master level teacher in reading,
mathematics, and written expression.

D. Specific Remedies for M.P. in Houston ISD
1.

2.

Houston ISD convene an ARD to offer an expedited formal full
individual evaluation that includes transition assessment,
reading evaluation, speech and language diagnostic evaluation,
psychological evaluation, dyslexia and related disorders
screening.
Houston ISD convene an ARD to review evaluation and results
and offer evaluation-driven compensatory education services
including one-on-one academic tutoring in all areas through an
extended school year and transition services.

E. Specific Remedies for Y.C. in Fort Bend ISD
1.

Fort Bend ISD initiate an expedited evaluation for special
education, including a psychological evaluation, and conduct
an ARD to consider eligibly under categories including but not
limited to Emotional Disturbance as well as Other Health
Impairment for ADHD. The evaluation should also include a
Functional Behavioral Assessment and Counseling Assessment.

39

 2.

Convene an ARD to review the evaluation and results and offer
evaluation-driven compensatory education services including
one-on-one academic tutoring in all areas, counseling services,
and transition services that may be provided in a manner that
accommodate her needs as a parent.

F. Specific Remedies for C.D. in Pasadena ISD
1.

2.

Pasadena ISD initiate an expedited evaluation for special
education, including a psychological evaluation, and conduct
an ARD to consider eligibly under categories including but not
limited to Emotional Disturbance as well as Other Health
Impairment for ADHD. The evaluation should also include a
Functional Behavioral Assessment and Counseling Assessment.
Convene an ARD to review the evaluation and offer one year of
evaluation-driven compensatory education services including
one-on-one academic tutoring in algebra, counseling services,
and transition services.

G. Specific Remedies for X.S. in Galena Park ISD
1.

Galena Park ISD convene an ARD and offer appropriate
compensatory education including transition services, one-onone academic tutoring in all areas, counseling services, and a
credit recovery program.

H. Specific Remedies for R.S. from Clear Creek ISD
1.

Contract compensatory counseling and tutoring to be provided
in his current school district by Clear Creek ISD.

V. CONCLUSION
This complaint details devastating and unlawful practices by Texas school
districts that use the truancy process to force students with disabilities out of school
and the Texas Education Agency that ignores these illegal acts. As exemplified by
J.W., R. W., M.P., Y.C., C.D., X.S., and R.S., the Abilene, Austin, Clear Creek, Conroe,
Ector County, Fort Bend, Fort Worth, Galena Park, Galveston, Houston, Pasadena,
San Antonio, and Victoria Independent School Districts engage in policies and
practices that deny students with disabilities their right to a free appropriate public
education by forcing them into GED programs, homeschooling programs, or other
forms of alternative schools where they cannot receive the special education and
related services to which they are entitled. Students with disabilities forced out of
school through court referral for FTAS are deprived of access to the general
education curriculum, related services, and transition services, and are ultimately
denied opportunities for any meaningful educational benefit. School districts must
40

 be held accountable for their failure to provide special education and related
services to all students with disabilities by forcing students with disabilities out of
the public school system in the ways described in this complaint.
In addition, TEA has ignored its responsibilities to ensure students with
disabilities receive FAPE by failing to prevent school districts from engaging in
repeated and systematic force-out practices. TEA is responsible for providing
guidance and direction to school districts on their implementation of special
education policies and procedures, and must monitor all districts to ensure they
meet the requirements of federal law. However, TEA failed to provide adequate
guidance to school districts to prevent school districts from using the court truancy
processes to force students with disabilities out of school. TEA also failed to create a
sufficient data monitoring system to track and investigate districts that force out
students with disabilities through the truancy process. TEA further pressures
school districts to under-identify students with disabilities that require special
education services, directly contributing to the force out of students with disabilities
who have not been identified as requiring special education services. TEA’s multiple
failures to protect students with disabilities from this force-out harm students with
disabilities and deny them their federally protected right to FAPE.
The allegations and evidence set forth in the above complaint merit prompt
and extensive investigation by an independent individual or organization who is
knowledgeable in educating truant students with disabilities. Disability Rights
Texas, the National Center for Youth Law, and Texas Appleseed stand ready to assist
in whatever way possible to support the investigation and to provide advice about
appropriate resolution of this complaint.
Respectfully submitted,
_________________________________

_________________________________

_________________________________

_________________________________

_________________________________
DISABILITY RIGHTS TEXAS
Dustin Rynders
Shiloh Carter
Meredith Parekh
1500 McGowen, Ste 100
Houston, TX 77004
(832) 681-8205
Fax (713) 974-7695
drynders@drtx.org

_________________________________
TEXAS APPLESEED
Deborah Fowler
Mary Mergler
Morgan Craven
1609 Shoal Creek Blvd, Ste. 201
Austin, TX 78701
(512) 473-2800
dfowler@texasappleseed.net

41

 _________________________________
_________________________________
_________________________________
NATIONAL CENTER FOR YOUTH LAW
Michael Harris
Hannah Benton
Erin Liotta
405 14th Street, 15th Floor
Oakland, CA 94612
(510) 899-6559
hbenton@youthlaw.org
CC:

Abilene ISD
Dr. Audra Ude, Superintendent
241 Pine Street
Abilene, TX 79601

Via CM/RRR

Austin ISD
Dr. Paul Cruz, Superintendent
1111 W 6th Street
Austin, TX 78703

Via CM/RRR

Clear Creek Independent School District Via CM/RRR
Dr. Greg Smith, Superintendent
2425 E. Main St.
League City, Texas 77573
Conroe Independent School District
Dr. Don Stockton
3205 W Davis
Conroe, TX 77304

Via CM/RRR

Ector County Independent School District Via CM/RRR
Mr. Tom Crowe
802 N. Sam Houston
Odessa, TX 79761

42

 Fort Bend Independent School District
Dr. Charles Dupre, Superintendent
16431 Lexington Blvd.
Sugar Land, TX 77479

Via CM/RRR

Fort Worth Independent School District
Dr. Patricia Linares, Superintendent
100 N. University Dr.
Fort Worth, TX 76107

Via CM/RRR

Galena Park Independent School District Via CM/RRR
Dr. Angi Williams, Superintendent
14705 Woodforest Blvd.
Houston, Texas 77015
Galveston Independent School District
Mr. Larry Nichols, Superintendent
P.O. Box 660
Galveston, TX 77553

Via CM/RRR

Houston Independent School District
Terry B. Grier, Superintendent
4400 West 18th Street
Houston, TX 77092

Via CM/RRR

Pasadena Independent School District
Dr. Kirk Lewis, Superintendent
1515 Cherrybrook Lane,
Pasadena, Texas

Via CM/RRR

San Antonio Independent School District Via CM/RRR
Dr. Sylvester Perez
141 Lavaca St.
San Antonio, Texas 78210
Victoria Independent School District
Mr. Robert Jacklich
102 Profit Dr.
Victoria, Texas 77901

43

Via CM/RRR