Advocates worry 'unclear process' in school choice law could lead to increased burden, lawsuits
AUSTIN (KXAN) — Days before Gov. Abbott signed Senate Bill 2 into law, clearing the way for students with disabilities to receive up to $30,000 in taxpayer funds annually for private schooling, Texas school districts were already reportedly getting requests for special education evaluations — some with intentions of using the determination for the new Education Savings Account program. The state’s ESA program is expected to launch in the 2026-27 school year.
“We have already received several requests, specifically from parents who currently private school or homeschool their children,” Texas Council of Administrators of Special Education (TCASE) Region 13 Delegate Cassandra Hulsey said. “And I know a lot of other directors in this area have received those requests as well.”
Officials with the Austin Independent School District told KXAN they do not collect information to determine if requests are related to a parent’s intention to access ESA funds. Still, district officials said there had been an uptick in requests during the 2024-25 school year for evaluations from families who attend private school or are homeschooled compared to the last two school years.
Austin ISD’s special education department has been under state conservatorship since September 2023 after a Texas Education Agency investigation found the district had, for years, not been able to meet deadlines for evaluating students suspected of having a disability.
The requests come as the House school funding bill that promises relief for underfunded special education programs still has not gone before the Senate K-16 Education committee for a hearing, and as districts are dealing with a statewide and nationwide shortage of school psychologists, speech language therapists and educational diagnosticians to conduct evaluations.
“The concern is with this increase in referrals or parent requests for evaluations, districts are going to have a difficult time meeting the demand of those evaluations that they have a specific number of school days to complete,” Hulsey said.
Federal and state law already requires school districts to evaluate students suspected of having a disability within 45 school days of receiving parental consent, including children who are not enrolled in the public school district.
However, federal and state law allow for several extensions depending on the situation.
Education advocates have warned lawmakers that S.B. 2 seems to expedite the evaluation process for students seeking an ESA, removing many deadline extensions districts utilize for other students waiting to learn whether they qualify for special education services.
“The ESA legislation that is being considered basically allows private school students to cut the line. They could then become eligible for the larger ESA benefit for students with disabilities,” Disability Rights Texas Senior Policy Specialist Steven Aleman said.
Current law also allows school districts to refuse an evaluation if the student is not suspected of having a disability. In those cases, the district would have to give parents written notice of its refusal to evaluate, including an explanation of why and the information used to make the decision.
“Those thresholds seem not to exist anymore. Which means any evaluation request the district receives, we would be obligated to conduct,” Hulsey said. “Right now, there is a lot of confusion and questions.”
Despite concerns, Sen. Brandon Creighton, R-Conroe, recently told KXAN’s State of Texas host Josh Hinkle the bill makes no changes to how evaluations are conducted.
“Those evaluations, they are required by federal law, and there’s nothing that changes that in this bill; they’ll continue to be available,” Creighton said. KXAN reached out to his office with additional questions and will update this story when we receive a response.
TCASE officials warned in a statement that school districts would see increased litigation, “as parents disagree with school districts’ decisions under the unclear processes in SB 2.”
“The legislation imposes a burden on public schools to do work for a private school student they are not ever going to see, they are not ever going to get reimbursed for, over and above the public-school students who are already there needing services, already on waitlists,” Aleman said.
Rep. Brad Buckley’s school finance plan, House Bill 2, would give school districts $1,000 or more for every child evaluated for a suspected disability. The legislation was referred to the Senate Education K-16 committee on April 23 and has gone nearly two weeks without a hearing.
“We are a bit concerned that the original proposal to help fund some of those special education services, in particular, will be compromised by the time the bill makes it through the Senate and final approval,” Hulsey said.
Sen. Creighton, the Senate Education K-16 Chair, said on Saturday that he is working on a bill that combines H.B. 2 and the Senate’s school finance plan.
“The Senate poured historic dollars into specific funding requests from our superintendents, our teachers, our parents, our public-school advocates; the House poured more money into the basic allotment. The dollars are very similar, but the approach is a little bit different,” Creighton told KXAN during Gov. Abbott’s event where he signed the Education Savings Account program into law.
