The day after the federal Fifth Circuit Court of Appeals ruled against Texas for spending tens of millions of dollars less than it was supposed to on kids with disabilities in 2012, advocates have dug up documents appearing to show Texas did the same thing in 2017 – raising the prospect it could get hit with even more penalties.

For months, Texas has battled with the U.S. Department of Education over how to interpret a 1997 federal statute prohibiting states from reducing their funding for kids with disabilities from year to year. Appeals court judges on Wednesday effectively upheld the federal government’s interpretation – and its decision to penalize Texas for the $33.3 million it underspent six years ago.

Texas’ 2012 special ed spending decrease is “not an isolated violation of federal law,” said Steven Aleman, policy specialist at Disability Rights Texas, which works to protect the rights of people with disabilities.

He and other advocates say they have found evidence of that in a more recent state application for federal special education funding. In that May application, the Texas Education Agency acknowledges spending $41.6 million less in 2017 than in 2016 – meaning the federal government might be able to withhold that amount in the future. The application was signed just a week before a federal administrative law judge ruled against Texas on its 2012 spending – the same case that made its way to the Fifth Circuit this week.

“All states must ensure a minimum level of state aid for special education services and Texas is faced with multiple school years in which it fell short,” Aleman said. “Texas has to get its priorities straight, fix the broken grant allocation system, and put more resources into special education services.”

Asked about the application, TEA spokesperson DeEtta Culbertson said agency officials were still reviewing Wednesday’s court ruling and related issues.

Since 1995, Texas has weighted its funding for kids with disabilities – meaning it pays schools more to educate kids who have more severe disabilities or need more personalized attention to learn. The state has argued it has adequately funded existing needs, and that it spent $33.3 million less in 2012 than it did in 2011 because school districts reported that their students needed less expensive services that year.

Federal statute says states must not decrease special education funding from year to year, in order to ensure they use federal special ed grants to enhance services for students, not offset state dollars.

In an opinion Wednesday, the 5th Circuit noted that Texas’ weighted funding system “creates a perverse incentive for a state to escape its financial obligations merely by minimizing the special education needs of its students.”

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Aliyya Swaby, The Texas Tribune

Aliyya Swaby started as the Texas Tribune's public education reporter in October 2016. She came to the Tribune from the hyperlocal nonprofit New Haven Independent, where she covered education, zoning,...