My testimony against SB 3: Why an educational savings account would be useless for my son

On March 21, 2017, I went to the Texas capitol to testify against SB 3, the newest salvo in the GOP’s school choice crusade. For those who have never testified at a state hearing and want to know what to expect, I will write elsewhere about the process and my experience. The TL;DR version: I didn’t get to give an oral testimony, but I was able to submit a written testimony. I am sharing my public testimony in the hopes that the issues we face make it to the intended congressional ears.



SB 3 Testimony

My name is Felicia Miyakawa and I represent myself. I live in Round Rock. I am a special education advocate and a mom of two kids, both of whom have qualified for Special Education services under IDEA. Thank you for the opportunity to speak to you today in opposition to SB 3.

I would like to share with you how this bill might impact my 10-year-old son. After 2 years of homeschooling, he has chosen to return to a traditional school setting; he will enter middle school this fall. My son has asked to have input into which school he attends, and we have been considering several options. We applied to an excellent charter school in our county. Since it is a public charter school, it would offer my son the protection of IDEA. But the school, which admits students through a lottery system, is overwhelmed with applicants; he’s 104th on the waiting list for next year. He is also on the lengthy waiting list for a private school that has an excellent track record for kids like him, kids who are twice exceptional, who are both gifted and have learning disabilities or developmental disabilities. This private school, however, could reject his application for any reason. If we are able to “choose” this option, we would not only have to pay sizeable tuition, we would also sign away our rights to IDEA protection (and this is a point that I will come back to). As a third option, which currently seems like our only option, we can enroll him in his zoned public school, which offers the protection of IDEA, assures transportation, and is tuition free. But the classes are large, and teachers are poorly trained to deal with kids like him. These are our so-called choices.

So what would this voucher system do for him? At present: nothing. I would like to draw your attention to eligibility requirements for the proposed voucher program. Section 29.354, paragraph 2 includes “attended a public school during the entire preceding academic year” as a requirement for enrolling in this program. Because my son has been homeschooled for 2 years, he would be ineligible for this voucher plan. And he’s not alone. We are what is colloquially called “accidental homeschoolers.” We did not intend to homeschool. We began to homeschool my son when it became clear that the school system was failing him and we had already worked our way through a spectrum of more restrictive placements. What I learned after I began this homeschool journey is that there’s a huge and growing number of “accidental homeschoolers” all over Texas. What do we have in common? Our children need special education services and either did not receive them at all or did not receive sufficient or appropriate services. (For recent evidence, I would point the members of this committee to the Houston Chronicle’s exposé about TEA’s 8.5% cap on special education. Brian Rosenthal’s essays were full of parents who, like me, pulled their kids out of the system when the system failed to deliver adequate—or even basic—services.) Anyone who has had to pull their kids out of school because the schools didn’t deliver appropriate special education services would be shut out of this voucher program.

In 2012, our lieutenant governor said: “If… a family feels they need a better opportunity, they should have that right… And especially, students with disabilities and autism, to be trapped in a school that can’t help you get over a disability, is a sin. And we’re going to stand up for that community.” But this voucher system will not achieve greater protection for disabled kids. Even if children with disabilities are accepted into private schools and can afford to go, they will lose their federal protection under IDEA and Section 504. Section 230.053, paragraph c of this bill specifically instructs private schools to give parents notice that their disabled children will receive no federal or state protection. Without this protection, children and parents would have no recourse, no way to fight for a free and appropriate education, which is their legal right.

I respectfully ask that this committee, and the legislature as a body, turn its attention back to enforcing and funding the laws that already exist, rather than putting our vulnerable children at even more risk.

Thank you again for your time. I would be happy to answer any questions.


Intersections: Activism and Advocacy, part 2, the POWER edition

In this blog series, I’m summarizing some of the major points of Daniel Hunter’s Building a Movement to End the New Jim Crow: An Organizing Guide, and suggesting ways in which we can apply the ideas to intersections of Disability Rights activism and Special Education advocacy. If you missed part one, you can find it here. This post will discuss (some of) the second chapter of Hunter’s guide. There’s so much to pull out of this chapter, but for the sake of honing in on the nexus of Disability Rights and Special Education, I’ll limit my discussion to only one of his main ideas: power.

“Power” has many meanings within the context of movements. I want to address multiple intersections of power: how oppressive systems hold and maintain power; how movements can put pressure on and dismantle oppressive power structures. In a subsequent essay, I’ll look at the human cost of standing up to power, as well the ever-important question of who should hold power / be empowered in movements.

Power Structures

One of Hunter’s crucial points is his explanation of how oppressive structures maintain and control power. Hunter addresses this issue not only to instruct us in how to take down oppressive systems, but also to remind us that unless we pay attention to how power structures tend to be supported, we face the possibilities of (a) building unstable movements, and (b) unwittingly replicating oppressive structures within our own movements. It is important to understand that oppressive systems are not as structurally sound as they may seem. As Hunter points out, “an oppressive system that relies on abusing and degrading humans is insecure––it requires being held up by pillars of support. Some of these pillars include social systems that give the structure legitimacy, such as laws, courts, media, and schools that train us to obey. Other pillars include people who may oppose the system but are complicit in keeping it running–– including administrators, guards, chaplains, janitors, construction workers to build prisons, and so on.” His examples here are specifically about the pillars of support that keep the prison industrial complex intact. Compromise one or more of these pillars, Hunter writes, and we can begin to topple the entire system.

What pillars hold the Special Education system up? School administrators, legislators, teachers, school psychologists, local school boards, State boards of education, State education administrative agencies, school districts, and attorneys who represent school districts in an effort to minimize parent and student rights all contribute to shoring up Special Education. I would also argue that advocates who are so closely connected to the system that they do not question its limitations also help to maintain the system. Special Education is not inherently oppressive by design, but the current delivery of services, locked up in philosophical questions of who is “normal” or “typical” and who should have the right to be in particular classrooms, is not just flawed; it is ableist. And we support the system without thinking much about its ableist underpinnings.

And if, at this moment, you are thinking “Not all [teachers, administrators, school board members, etc.] are ableist!” please remember that I’m not naming individual people; I’m describing how people assume roles within systems and contribute to their perpetuation. I’m reminding us that we all have to take a meta view of the system(s) in which we work and remember why we do what we do in the first place.

(Dis)Serve and Protect

I’m about to make a big leap and equate the Criminal Justice system with Special Education. That feels uncomfortable, I know. Consider the network of laws that underlie the Criminal Justice system, some of which are about how offenses against society are punished, and some of which are about the rights of the accused. (For reference, see Title 18 of the U. S. Code: Crimes and Criminal Procedures.) We also have rights protected by the Constitution: The First Amendment gives us freedom of speech, freedom to assemble peaceably, freedom of the press, and freedom of religion; the Fourth Amendment protects us against unreasonable search and seizures; the Fifth Amendment allows us the protection of not incriminating ourselves; and so on. (For a handy primer on your basic rights, see Practical Ways to Exercise Your Rights Under a Trump Presidency, by Dani Alexis Ryskamp.) When these rights are trampled, we have the right to legally fight back. We also have a right to representation, a right to due process (a trial), a right to be informed of the accusations against us, and a right to a jury of our peers. Sounds great, right? With all of these rights, surely only “guilty” people are incarcerated.

Nope. I’m sure there are experts who will argue that we’re better off than when we were before these laws were put into place, but as many criminal justice activists, advocates, attorneys, and both formerly- and currently-incarcerated people will testify, the system doesn’t always protect those whom it was intended to serve, and it certainly doesn’t protect Black and Brown lives (which is, of course, a milquetoast re-stating of the entire point of Michelle Alexander’s book, The New Jim Crow).

What about Special Education laws? The laws that were first crafted to protect disabled children in schools—such as Section 504 of the Rehabilitation Act (1973) and IDEA (1975)—have been game changers. They were created to ensure basic educational rights and to give parents recourse should those rights not be honored. Before the 1970s, millions of children were denied even a basic education every year. As in: disabled children were not allowed to go to school; they had to be kept at home or were institutionalized. Special Education laws ensure the possibility of a Free and Appropriate Education. When they work well, the laws also help families build connections between schools and community services to create a network of support for disabled students before they leave school. Special Education laws have helped to raise graduation rates among Disabled students, and have empowered more to seek out post-secondary education. But. Like the Criminal Justice system, Special Education is now an overloaded, underfunded, and inefficient system, a system wrapped in endless regulations originally intended to protect, but that ultimately entail a high human cost. Like the Criminal Justice system, Special Education no longer serves its intended function well. The human cost is high in both cases: innocent people go to jail, and students who need an individualized education are warehoused or denied services, or drop out after years of frustration. And too often, these same children end up in the school-to-prison pipeline, which brings us back to the gross injustices of the Criminal Justice system.

law-scalesCrashing the system

So if we understand that a system is built on pillars and we decide a system needs to be dismantled to pave the way for something new, how do we—as part of a larger movement—compromise the strength of a pillar to undermine the power of a system? Hunter offers several examples of how this has worked in real-life movements. One such example is of Serbian citizens who fought against Slobodan Milosovic by refusing to participate in day-to-day activities that maintained the normalcy of the government. This nonviolent approach was ultimately successful, and Hunter attributes the success to mobilization of a massive number of people who were able to identify the pillars and dismantle the pillars one by one. Rapid mobilization efforts and clear-minded understanding of how power works (translated into specific campaigns), are both necessary for movements to grow. (Similar suggestions about effective means of resistance in our post-election society are popping up. Just one example: On November 14, David Cole, incoming legal director of the ACLU, published what is essentially a guide to non-violently bringing down the Trump agenda.)

Hunter also describes in detail what he calls a “crash the system” approach, a way of overloading a particular system by vigorously exercising particular constitutional / legal rights. Hunter cites the work of Susan Burton and her program A New Way of Life for developing a particularly effective “crash the system” approach within the criminal justice system. Burton’s idea was simple: provide legal resources to large numbers of people so that they can collectively demand their constitutional right to a jury of their peers rather than accepting plea-bargains. This approach was necessary because most criminal court cases are resolved through plea bargains, primarily because of harsh mandatory minimum sentencing laws. (How many is “most”? Hunter says 90% of cases are resolved through plea bargains. Findlaw agrees with 90%. Tim Lynch puts this figure at 95%. Jed Raskoff places the number of Federal Court plea bargains at more than 97% of criminal cases. Any way you slice it, the number is YUUUGE.) Prosecuting attorneys convince people that if they go to court, and if they’re found guilty, the minimum sentence will be very harsh. Their alternative is to accept a plea bargain, a compromise that leaves them with a guaranteed lesser sentence in exchange for “admitting” guilt. What these folks give up in these “bargains” is their constitutional right to a trial by a jury of their peers.

Courts push plea bargains in part because the system is so over-loaded with cases; it takes much more work and time to assemble a trial by jury. But this system also ensures that many innocent people go to jail. Burton’s theory was that if more and more people requested their constitutional right to a jury of their peers, the system would become clogged with cases; judges and prosecutors fall further and further behind. To explain the possible outcomes of this move, Hunter offers us a thought experiment: “Imagine how this might play out: In a small city, 100 people refuse to accept plea bargains. They collectively demand jury trials. The already stretched and overloaded city judiciary scrambles to arrange jury trials. Those who are unable (or who refuse) to pay their bond are stuck in jails. (This tactic, as any to shift a system this huge, would require suffering.) Others who are released tour the country to rally support.” More people join, and then an avalanche of more. As local jails and systems are flooded, lawyers file appeals to ensure the right to a jury trial, and public protests support the movement, the system falls into chaos. And then we would need to redesign the system from the ground up.

Crashing the System in Special Education?

What “crash the system” analogy might we make in Special Education? By far the strongest tool in the parent toolbox is the Independent Educational Evaluation (IEE). When a child is evaluated for Special Education services, the school district arranges the initial evaluation. Parents then have a legal right to get a second opinion at no cost to them, an IEE performed by an expert not affiliated with the school district. (See, how, why, and when to request an Independent Educational Evaluation (IEE).) When parents request an IEE, schools must either comply or take the parents to court. After an IEE has been completed, schools are required to “consider” the outside opinion when services are offered to the child. When used carefully and purposefully, IEEs can help parents hold school districts accountable and push school districts to provide an individualized education for every child, as provided by law.

I haven’t been able to find data about the frequency of IEE requests. But to extend our thought experiment, let’s imagine what might happen if every parent of a child who is identified as needing Special Education services requested an IEE. Let’s imagine that in an elementary school that enrolls 800 students total there are 100 kids who have qualified for services under IDEA. (I’m using about the national average here of 13%, but in my own state, the average is 8.5%; hundreds of thousands of children are being underserved, as Brian Rosenthal has revealed.) If the parents or guardians of all 100 kids requested an IEE from that school alone, that would mean that the handful of local private evaluators—including Occupational Therapists, Speech / Language Pathologists, Neuropsychologists, Developmental Pediatricians, and other specialists—would need to weigh in on every case, working within their private case load. It would not take long for the cases to become so backed up that schools could not deliver IEEs within the required time frame. Perhaps local hearing officers would be encouraged to find more often in favor of parents when they appeal, to help keep the system running. Perhaps parents would crash the system, requiring us to rethink why the system often favors schools over parent input. So as a collective mobilization tool, IEEs for everyone is an approach worth considering. But we need to be careful that as we crash the system, we also protect the people for whom we are advocating. The human cost is high any time we assert our rights within a system, as I’ll discuss in my next post.

Special Education identification: what we’re up against in Texas

READ: “DENIED: How Texas Keeps Tens of Thousands of Students out of Special Education,” by Brian M. Rosenthal

In today’s Houston Chronicle, reporter Brian M. Rosenthal exposed a decade-long policy that has led to the denial of special education services for hundreds of thousands of kids. In a nutshell: the national average of kids who receive special education services is 13%; in Texas, our state education agency (TEA) has artificially kept our average to 8.5%.

“Over a decade ago, the officials arbitrarily decided what percentage of students should get special education services — 8.5 percent — and since then they have forced school districts to comply by strictly auditing those serving too many kids.

Their efforts, which started in 2004 but have never been publicly announced or explained, have saved the Texas Education Agency billions of dollars but denied vital supports to children with autism, attention deficit hyperactivity disorder, dyslexia, epilepsy, mental illnesses, speech impediments, traumatic brain injuries, even blindness and deafness, a Houston Chronicle investigation has found.”

TEA has accomplished this goal by systematically denying services to kids with disabilities of all types. (Rosenthal provides a close look at several common strategies districts employ to deny service.) Kids in large cities–particularly those for whom English is not a native language–suffer the most, Rosenthal has found. “In all, among the 100 largest school districts in the U.S., only 10 serve fewer than 8.5 percent of their students. All 10 are in Texas.”

Advocates, attorneys, and parents in Texas have been aware of these numbers. Legislators, according to this investigation, apparently have not been aware of these numbers, nor of the TEA’s policy. TEA continues to deny that the severe reduction in identification (from around 12% in 2004 to 8.5% now) was purposeful. District Special Education coordinators also fail to see the numbers as a problem, arguing tautologically that their local levels reflect state averages so they must be on target. I’ve done independent research about identification in my district and neighboring districts and have found the following data (freely available on TEA’s website). The percentages below are the district percentages of kids served under IDEA in the 2014-2015 school year, the most recent data available.

  • Austin ISD: 9.9% (identification rose to 10.2% last year)
  • Round Rock ISD: 8.5% (exactly like the state average, hmm.)
  • Eanes ISD (a district in / near the city of Austin): 7.9%
  • Lake Travis (just north-west of Austin): 7.0%
  • Leander ISD (a bit more north of the Lake Travis district): 9.7%
  • Hutto ISD (just east of Round Rock, where I live): 9.2%

I could go on and on, but this is enough to make the point: every one of these districts falls far short of the national average. And contrary to what districts argue, these numbers aren’t lower because early intervention eases the need for support by the time children are ready for Kindergarten. Let me put it this way: if a deaf / hearing impaired child is identified as needing services at birth, how will she be less deaf / hearing impaired at age 5 and less in need of accommodations at school? Sounds ridiculous, yet this Chronicle study has found that identification / provision of services has fallen by 15% for deaf / haring impaired children since 2004. Rosenthal estimates that if Texas actually complied with Federal law, about 250,000 more kids would receive services (In 2015-2016, Texas public schools enrolled almost 5.3 million kids.) What happens to these kids?

“Parents have pulled thousands of them out of public school in favor of home schooling or expensive private schools, according to interviews and data.

Others have been left to languish in regular classrooms without the individualized help they need, advocates said.

Many have fallen behind, become depressed and been suspended or expelled, the advocates said. Some have even entered the criminal justice system or otherwise required intensive adult services that cost far more than special education, they said.”

Homeschooling a kid because schools can’t accommodate him? You don’t say.

In a separate blog, I’ll deal with how these numbers overlap with 2e identification. It’s an interrelated SNAFU with its own glorious details. In the meantime, If you are a parent in Texas, know a parent in Texas, or simply care about whether or not ALL of the children in Texas deserve a Free and Appropriate Public Education, please share Rosenthal’s research. See how your state stacks up with Texas. Be suspicious if your state’s rate of identification is under the national average and dig deeper. Join us as we put pressure on our state officials.

*UPDATE: The Houston Chronicle is seeking additional testimony from families whose children have been denied Special Education services. If you want to participate in this on-going investigation, here is a form to contact the newspaper.