Governor Greg Abbott signed historic truancy reform legislation this month. It decriminalized the Failure to Attend School (FTAS) in Texas; yet child and civil rights advocates contend that the new law does little to help youngsters in public school settings who have disabilities and special needs.

Disability Rights Texas, the National Center for Youth Law, and Texas Appleseed filed a joint complaint with the Texas Education Agency (TEA) in late May. They argue that 13 public school districts use the truancy courts and court orders to force out special needs students from the system, violating federal law.

The complaint alleges that students with disabilities are disproportionately removed from public school classrooms and funneled into alternative education, high school general equivalency diploma (GED) programs, or mandatory homeschooling despite the Individuals with Disabilities Education Act (IDEA), which requires that public schools identify students with disabilities and develop the least restrictive individualized plans to meet their education goals.

They also assert that there is nothing in the new law that forbids courts from continuing to court order students with disabilities to withdraw from public school and enroll in GED programs that they have no chance of successfully completing, Dustin Rynders, supervising attorney with Disability Rights Texas, explained to Breitbart Texas.

The school districts named in the action are Abilene, Austin, Clear Creek, Conroe, Ector County, Fort Bend, Fort Worth, Galena Park, Galveston, Houston, Pasadena, San Antonio, and Victoria.

“Our complaint also revealed that 1,247 special education eligible students have been court ordered to get GEDs over the past several years (2010-13) and then were not able to pass the GED,” said Rynders.

These special needs students were folded into a larger 19.4 percent of students who failed the GED. They represented only 8.5 percent of students but not all school districts track special education status when they refer students to court for FTAS so it is impossible to know if the special needs students’ GED failure rate is underestimated, according to the complaint.

The truancy reform law, HB 2398, goes into effect on September 1 and replaces existing criminal truancy prosecution with civil punishments. Breitbart Texas reported that HB 2398 intends to examine the underlying issues behind FTAS — like homelessness, chronic illness, or unidentified special education needs. It also requires schools to take common-sense steps to address students’ truancy problems before referring students to court.

“HB 2398 is well intentioned in trying to get to the root cause of a truancy,” says attorney Deron Harrington, who filed a class action lawsuit against the highly punitive Fort Bend County truancy court system on grounds that the courts themselves are illegal, which Breitbart Texas reported.

Harrington emphasized that while Texas truancy reform eliminated FTAS as a criminal offense and replaced it as civil matter in the new family code section, it left in place as a Class C misdemeanor the offense of the parent contributing and added measures against the parents or any other person that the court finds contributing to the truant conduct of the student. That means, it still holds parents accountable, adds Harrington.

In April, the US Department of Justice launched an investigation into the Dallas County truancy courts due process policies and practices. It was prompted by Texas Appleseed in a 2013 complaint.

The Fort Bend Independent School District (ISD) is named in the complaint for its allegedly inadequate policies and procedures to identify, locate and evaluate special education students as required by federal Child Find laws.

The complaint purports that Fort Bend’s special education population is harmed because district school officials do not properly identify youngsters and instead instruct staff to wait until grade five before referring a child for an evaluation or re-evaluation if a student struggles in school.

One of the pillars of special education is Free Appropriate Public Education (FAPE). Housed under the US Department of Education (USDE) Office of Civil Rights, FAPE is supposed to protect the rights of students with disabilities under Section 504 of the Rehabilitation Act of 1973.

It requires that school districts provide FAPE to K-12 youngsters with disabilities and those special education services are developed and administered through individualized education plans (IEP), funded under IDEA.

Dianna Pharr is an Austin-area education advocate who helps parents navigate through complex special education laws. She told Breitbart Texas that there is nothing “free” or “appropriate” about a public education that “seeks to exclude and punish children with disabilities.”

She asked, “Why not focus on the child’s needs instead of criminalizing those needs? When children are unwanted by school districts, parents see a side of the public school system that remains hidden to those whose children fit the mold.”

Although Pharr is not affiliated with the TEA filed complaint, she has served clients in one of the named districts in the complaint—Austin ISD—where she recalled an elementary student client who was late by just a few minutes on multiple days “due to her disability-related school refusal and anxiety,” said Pharr. “Instead of addressing the child’s needs, the school filed criminal truancy charges against the parent.”

She explained, “Filing truancy charges are effective because districts know that parents will feel intimidated and frightened and are likely to simply give up and remove their child from the school.”

“In a very real sense, truancy criminalizes disabilities,” she emphasized.

Many of her cases involve truancy. Pharr says it is not about absences only. “Students don’t have to miss whole school days to be charged with truancy. Local board policy can include tardies as absences for the purpose of truancy.”

In the complaint, a homeless student was charged with truancy twice after teachers marked him absent when he was actually receiving instruction in a special education classroom.

Pharr told Breitbart Texas, “Sometimes, even though a child is in the school building, if he doesn’t make it to his desk before the bell rings, he is marked tardy. This is an incredibly militant approach that adds layer of stress on families that already are dealing with far more than their fair share of struggles.”

Impairments like Attention Deficit Hyperactivity Disorder (ADHD), Asperger’s syndrome, depression, and bipolar disorder run rampant among the complainants. One family reported that their school district representative threatened their special-needs son with a 22-week-long stay at a boot camp, which was almost 400 miles away, if he had further absences. Operated by the Texas National Guard, Texas ChalleNGe Academy is on record in the complaint as saying students were there to prepare for the GED.

Another teen with multiple mental health disorders was told he would be ordered to drop out of school and enroll in a GED program if he missed anymore school despite notes from his parents, which the school did not count as excused absences.

The complaint noted that some courts and school districts pressure parents into homeschooling by threatening that they will continue to face future truancy charges and fines otherwise.

“This approach, the combination of denying services to students and then, filing truancy charges, forces students with disabilities out of the public education system,” Pharr commented.

While some are fortunate enough to fund private school, she pointed out that most families don’t have that option because public education dollars don’t follow the child to private school. Instead, families throw their hands up in utter despair, are forced to homeschool, or enroll their children in public charter schools or other alternatives that may or may not be appropriate.

“In my experience, parents often turn to public charter schools that accept students with disabilities after they are forced to leave the neighborhood public school,” she said. “However, charter schools often use the same strategies to deny a Free Appropriate Public Education to students and retain the very same private attorneys as the public school districts.”

Open-enrollment charter schools are part of the public school system.

Pharr said banning parents from their child’s campus for disruptive behavior is among the strategies used by public schools to force out students with disabilities. She underscored it is with “no evidence necessary.”

Rynders believes that the truancy reform law will minimize some of the “harmful effects of court involvement by considering the impact of mental health” treating cases on a civil level and eliminating student fines, but it will not offer any specific relief for students already forced out of the system.

He said that all of those students are eligible for special education services until the age of 22 under federal law. “TEA must work diligently to ensure school districts locate and offer educational services to each of these students.”

The complaint also alleges that the state’s Performance-Based Monitoring Analysis System (PBMAS) Special Education indicator scrutinizes districts that report higher special education student cases than 8.5 percent of those eligible. PBMAS measures the percent of students enrolled per district who receive services.

“Under HB 2398, TEA is required to create minimum standards and establish best practices for truancy prevention measures, and adopt rules for sanctioning school districts found to be noncompliant with those minimum standards,” Rynders told Breitbart Texas.

Like federal law, Texas Education Code Chapter 29 requires that the TEA ensures students with disabilities have properly developed and implemented IEPs and are educated in the least restrictive environment that is appropriate to the students educational needs; and that students receive the necessary related services, the complaint states.

Rynders continued, “For far too long, TEA has not addressed nonattendance issues, even as it relates to special education services which they oversee.  TEA must follow the clear mandate from the legislature to take on a more robust monitoring role with respect to truancy. In doing so, TEA must make sure students with disabilities are identified, offered appropriate interventions, and not forced out of schools through the truancy process.”

Before the TEA can potentially do anything, though, they must determine the merits of the complaint, which they received by mail on June 1. Agency Media Director Debbie Ratcliffe told Breitbart Texas that because of the number of entities involved in the complaint, she is fairly certain “we will extend the review period” beyond the normally allotted 60 day review period. The complaint is also lodged against TEA.

Follow Merrill Hope on Twitter @OutOfTheBoxMom.