Apologies for the image, Senator Patrick, but you totally get it.

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Senate Committee on Education
August 18, 2008
At about 2 hours 54 minutes into the testimony

Senator Dan Patrick with
Jeffrey Miller, JD, Policy Specialist from Advocacy, Inc., and
Chris Borreca, JD, Bracewell & Giuliani , Texas Council of
Administrators of Special Education (aka TCASE)

Senator Patrick: I come from this, I think, from the viewpoint of
Senator Williams, and I think others on our panel, that there are
lives at stake here, and just for me personally, I don’t want to
speak for anyone else, we’ve spent an inordinate amount of time
taking about rules, regulations and laws. I’m not anti-lawyer, but
it sounds like we are forgetting about the children and the families
and I want a…you mentioned, Chris, that there are 500,000 in your
testimony, in our school system now under special education.

Chris: (Responds to question but it’s hard to make out)

Senator Patrick: Approximately.

Chris: Right.

Senator Patrick: And 326 have, at some point, had an issue with the
school districts have had their children ___ being handled. Correct?

Chris: I think it is..3..yes..

Senator Patrick: Three hundred and whatever.

Chris: (Basically agreeing it sounds like but they are talking on
top of each other)

Senator Patrick: And 26 or so actually went to court.

Chris: 45

Senator Patrick: 45 went to court. So that means basically 99% did
not get to this point, and I think we’re spending our time worrying
about that 300 and forgetting about the other 499,000 and odd
numbers. I want a CLEAR answer from both of you on WHY? When a
parent comes to the school and is unhappy, and because apparently
this is a small number, they simply, as Senator Williams said, simply
cannot be handed a check and have the right to go somewhere else. I
want a CLEAR answer on why the two of you think that that is a BAD
IDEA.

Chris: (Stumbling): I guess…it’s…it’s…it’s an easy solution to a
complex problem and one that is not entirely unworkable, I don’t
think, but I think it is going to require more to it. One would be,
before…before taxpayer dollars are spent on something like that, I
think there would be a question of accountability, at least the
school district that’s spending ITS money on ITS program has that
responsibility and that accountability and that legal liability for
providing an appropriate program.

Senator Patrick: What’s wrong with an easy answer to a complex
solution?

Chris: (Laughing for a few seconds). I-I think an easy answer
sometimes doesn’t answer the, all of the complexity.

Senator Patrick: But if the PARENT believes that. If the PARENT
believes that. In any other aspect of life, if a parent is not
satisfied with the service they are getting, wherever it may be.

Chris: Um-hm.

Senator Patrick: They don’t have to sit there and go to court over
the person saying, “I’m not going to let you go as a customer.” I’m
just not going to let you go as a customer. The parent simply
says, “I’m not satisfied with this service for my child…

Chris: Um-hm…

Senator Patrick: or for myself, but we’re talking about children
here, and they simply go somewhere else, that they believe will
provide a better service. Why SHOULD, in this situation, and I would
argue that…that parents with special needs children um have ah
additional burdens and challenges…

Chris: Um-hm…

Senator Patrick: …that others do not, and if they believe in THEIR
heart that an alternative option, a private school, is a better
option, why should they not be able to go.

Chris: It’s…it’s…it’s..(grasping for different word beginnings here)
I guess once again, ah, you know, I could analogize it to…to the work
that we do at…at the Center, um, which I know you’re familiar
with..ah..ah. I remember ah borrowing your, ah, talents, ah, when I
was education director there, and you were working down the road from
us. W-w-why are those parents told that they cannot have their child
in a facility like Cullen Residential Hall because it has too many
people, ah, for it to fit the, ah, the, the, Medicaid regulations,
eh, eh, there were, eh, that to me, those are, those are issues that
don’t make much sense.

Senator Patrick: Well there is never a perfect answer, as Senator
Zaffirini said, we’re not always going to be able to address every
issue in a rural area, or maybe some poor areas, but there are…there
are situations where parents do have a viable option. I have an
employee with me who has an autistic child…he’s been with me for 12
years. Public school after public school FAILED that child to the
point where they were ready to give up on the child. Similar stories
that Senator Williams was saying about the teachers didn’t think
there was a problem. Not until that parent, my employee, took that
child and spent close to $12,000 a year out of his own pocket to put
that child in a private school, did that child have AMAZING results.
AMAZING RESULTS!!

Chris: Um-hm…

Senator Patrick: So I don’t understand why you, who have a great
background in caring for these children, would want to put up a wall
to stop parents from having a choice, and…and this argument about
school funding dollars. Those dollars are taxpayer dollars, too.
Those parents are taxpayers, too. So…so again. Give me a clear
answer why…why we can’t have an easy solution to a complex problem
when a parent comes to a school and says, “Look, we just choose to
agree to disagree, and I’m taking my child out and letting that money
flow through…follow them.” Tell me why.

Chris: I don’t know that that’s necessarily was the result. I don’t
know that that money…(grasping again for word sounds)…at least under
previous proposals actually flowed through and that there wasn’t
actually a cost back to the school district, ah, that…that otherwise
wouldn’t have been borne. Ah, I have a hard time understand, ah, I
guess from, as a lawyer, the standpoint of a school is not
responsible for…and again I apologize..I’m just simply talking like a
lawyer here, and I’m reading from ah…I’m reading from my memory of ah
federal law. And the state law which says that a public school
district does not, is not responsible and cannot pay for a private
school, ah, unless the public school has, ah, is…is inable, is unable
to provide that program, and I think it’s in that deposition, and
that goes back to my very first point, of the ambiguity, ah, and the
difference of opinion between can you provide and can you cannot
provide….

Senator Patrick: Let’s back off the law for a second.

Chris: Right.

Senator Patrick: Let’s assume this legislature, and like Senator
Williams, I co-authored with Shapiro, the bill on…for children of
autism to have these options. Let’s assume we PASS that and fix it.
Do you have any objection to this legislature giving parents the
right to take a voucher and say to a school, “You know, I–I really
have a better option and I’m going to pursue that option.” Do you
have any objection?

Chris: Are you asking me personally?

Senator Patrick: Personally and representing your group.

Chris: I think our GROUP, I think our GROUP has, has long
considered, along with other groups, the issues of vouchers and its
effect on the remainder of the kids who remain back in the public
school, and I think that has been generally the concern that has been
voiced has been, ah, ah, from a 30,000 foot level, will this actually
HURT public schools by taking out resources…

Senator Patrick: But those resources, when you subtract that child,
the cost to educate that child is also subtracted. I’ve never bought
into this argument of this hurts overall public funding overall, but
especially in this area. If the school is already spending X number
of dollars for that student, and that student is extracted from the
school, then those dollars aren’t needed to be spent.

Chris: I’m…I’m certainly no economist. My..my first thinking is..is
that there are some…some costs that are already there that the school
districts (can’t hear because Senator Patrick comes in)

Senator Patrick: Let’s just assume, WE resolve those issues. Would
your organization support parents having a right to take a voucher
and take their child to the school that they believe can change the
life of that child.

Chris: I can’t speak for…for TCASE or even public school districts….

Senator Patrick: What would you recommend as their attorney?

Chris: I would recommend that we sit down and…and work with you and
Senator Williams and Senator Shapiro and any other…ah…ah…senator or
representative that is interested in this and try to come up with
identifying at least the concerns, and then solutions to the…

Senator Patrick: WE’VE identified the concerns. And we have found
the solutions. We don’t NEED any more meetings. Um. Jeff. Let me
ask you this question. You said earlier you think that it would be
harmful to the child if a parent took their child out of the school,
realized the private school was not successful, and put the child
back in. That may happen, it may not, but shouldn’t have the parent
have the right to make that mistake, if it’s a mistake?

Jeff: I think with us it…it comes down to a matter of fundamental
rights because of the fact….

Senator Patrick: Whose rights?

Jeff: The child and…

Senator Patrick: Right

Jeff: And…and the parent.

Senator Patrick: Okay.

Jeff: Right now there is a federal and state law that says that the
district has an obligation to provide an appropriate education. A
voucher, right now, the way things stand, would ONLY be a solution
for a certain NUMBER of parents and students, not for everyone in the
state, and so that’s why, as an organization, we’re unable to support
this idea that only allows certain parents to have rights when others
don’t, because low-income people, people in rural parts of the state,
wouldn’t have that same right.

Senator Patrick: Well not necessarily low-income people would not
have that right. If there is a private school option in HISD or
Dallas Independent School District or San Antonio , there is no reason
ah if…if we fund that voucher that they couldn’t take their child…in
fact, I would argue for that. You’re never, in a state of 23 million
people, you’re never going to find any piece of legislation that
satisfies every parent, every child, every school. There is NEVER a
perfect piece of legislation. But you’re suggesting because several
students in some areas of the state might not be able to benefit from
this, that we then don’t allow the students and the parents who can
benefit from it, to take advantage of it?

Jeff: Our position is that it makes more sense to enforce the law
that’s been in place since 1975. It can work and does work in the
majority of cases…(unable to hear because Senator Patrick comes in)

Senator Patrick: And again, that’s what I want to go back to. The
majority of cases there does not seem to be a problem. So when THERE
IS A PROBLEM, 20, 45 cases, 326 families, the total, WHEN THERE IS A
PROBLEM….

Jeff: Then put in place mechanisms to work out that problem with the
district so that not only do you find a way to provide what’s
appropriate for that child, but there are safeguards in place.

Senator Patrick (become very passionate at this point): But who
makes that decision to find what’s appropriate for that child?
Should it be a lawyer, a school, or THE PARENT.

Jeff: It should be a committee of…

Senator Patrick: (become incensed at this point): Committees? A
COMMITTEE?

Jeff: And the parent….

Senator Patrick: A committee? Excuse me. I (emphasis on that “I”)
have the right to determine what is best for my child. NOT a
committee. I (emphasis on that “I”) have the right.

Jeff: If you’re asking the state to pay for it, I think you have to
look at the law, Senator.

Senator Patrick: The state… First of all, the parent, again is the
taxpayer. Secondly, the state is already spending additional
dollars, or the school districts are, to educate those with special
needs, so again, Chris, I go back to this point, if we, if we allow
that student to move, you are going to be SAVING the school district
money because they are spending more money to educate that child, so
I don’t think that’s an issue. But we go back to the point…this is…
and I didn’t coin this issue this issue gentleman, but this is the
civil rights issue of TODAY. This is a civil rights issue. To allow
that parent and that child, and I can’t think of…there is no piece of
legislation that made me madder in the last session that we were not
able to pass, than to give parents who have students with autism the
right to have school choice. NO PIECE OF LEGISLATION made me more
angry that we didn’t pass that. Because we’re…we’re impacting
LIVES. IMPACTING LIVES GENTLEMAN. Because we don’t want to give a
parent that opp…that opportunity to take that child where they think
that child can have a chance at a decent life?

Chris: Senator, if I could just add one…one bit of information…and
go along the lines of again why I think there could be a dialogue and
why some input would be helpful to work collaboratively as much as
possible with not just TCASE because we’re, we’re a fairly small
organization when it comes to the main players in this arena with
regards to vouchers, but I want the committee to understand one
aspect of the federal law, and that is the federal law’s commitment
to a proportionate share of the federal money that comes to a child
is to be spent…to the school district…is to be spent on those numbers
of disabled children in private schools, and…and I don’t want you to
go away not knowing about that program. Perhaps that would be a
venue or a vehicle to deliver, in effect, what you’re asking.

Senator Patrick: I don’t want to continue this…we’ve gone long this
morning. I will just close by saying this, that if we’re allowed to
take those students out, we are going to relieve those school
districts of some of the financial burdens, so I don’t think that’s
an issue. Secondly, if I were to buy into the premise that both of
you present, you are suggesting that the school districts are
perfect. You are suggesting that the school districts are educating
everyone with special needs satisfactorily and therefore only a few
have an issue. I…that’s the way you are presenting it. You don’t
REALLY believe the school districts are perfect, correct?

Chris: I never said that.

Jeff: I never said that either.

Senator Patrick: So therefore, if the school districts aren’t
perfect, if there are shortcomings where students aren’t given the
opportunity to learn that they could be learning at a private sector,
shouldn’t we MAKE SURE that we allow parents to move their child to a
private school for those opportunities, because we are going to have
areas where the schools aren’t doing the job. Would you agree that
there are some special needs students in our school system in Texas
today that are not getting the educational opportunities they could
get in a private school?

Pause — no reply from Jeff or Chris

Senator Patrick: Because if you argue that there isn’t, then you’re
arguing the public schools are perfect. So are there students in…in
special education in public schools today that aren’t getting the
needed services and programs that they could get elsewhere in a
private sector.

Chris: In my OPINION, the only students that I know of in those
situations are students where the pub–where the public school has…
has already identified that issue and has placed that child into a
private school.

Senator Patrick: So you’re saying that, except for where the school
districts have placed a child in a private school, that every other
child is getting all the services and programs that they need to
avoid the problems that Senator Van de Putte is concerned about it,
that Senator Williams has been concerned about, that I’m concerned
about, so outside of those students who have already been placed, the
public schools are doing a perfect job everyone else.

Chris: (Reluctantly) No. I-I-I think that’s a–that’s a-a-a-a. I
don’t know that that logically flows from that first conclusion, but
I do think….(Senator Patrick speaks up)

Senator Patrick: I think it’s very….

Chris: (Trying to say something).

Senator Patrick: Excuse me. I think it is logical. You’re
suggesting that the schools have identified those students they
cannot help and they have placed them in private schools; OTHERWISE
the schools feel like they’re…they are adequately providing the
services they need for those children. That is very logical.

Chris: I think that the–the–the IEP team has in place that ability
to put together that which is necessary for those kids that are
remaining…remaining. Now, could we do a better job? (Stumbling over
word sounds again). Could we do it with enhanced services? Could we
do it at the level say that some private schools do it at? Ah, with
a, with a smaller ratio of teacher to pupil, um I’m not sure that
necessarily, that that, what one factor is–is–is a quality factor.
But certainly school districts could—does…does ah, ah, ah–of the
1,049 school districts in the state of Texas , are they all equal? Do
they all have the resources? Absolutely not.

Senator Patrick: So therefore, when there is a parent believes that
their school system isn’t equal and those schools aren’t doing it
properly, and there is an option, and again there may not always be
an option,…

Chris: Um-hm…

Senator Patrick: I believe those parents should have that option of
taking that voucher and taking that child somewhere else. Because
we’re talking about a life, not a rule, not a lawyer. Um. We’re
talking about a life. And I can just assure you that I believe there
are members on this panel who feel as passionately as I do about
this. I WILL FIGHT TO MY LAST BREATH AGAINST THOSE WHO OPPOSE
PARENTS GIVING THEIR…HAVING THE CIVIL RIGHTS TO TAKE THEIR SPECIAL
NEED STUDENT TO A SCHOOL THAT CAN GIVE THOSE STUDENTS A QUALITY
LIFE. Thank you very much.

Chris: You’re welcome.

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Rock on. Happy session!