Provisions on children with disabilities challenged

Disability Rights Texas, the federally designated protection and advocacy system to protect the rights of people with disabilities under the Americans with Disabilities and IDEA acts, is calling on Cameron County to remove a paragraph from the order closing schools because of COVID-19 that prohibits students with disabilities from in-school instruction during the entire 2020-2021 school year.

The ADA and IDEA, or Individuals with Disabilities Education Act, mandate that students with disabilities are to be educated with students without disabilities to the maximum extent possible and receive equal access to public education.

“We request that paragraph 5 be removed from the Emergency Order of July 14, 2020, and decisions about the education of all students with disabilities be made in accordance with Section 504, Title 2 of the ADA, and the IDEA. While we understand these are unprecedented times and appreciate the efforts of Cameron County to keep its citizens safe, we must protect the rights of students with disabilities to participate in their education on the same basis as all other students,” states a letter from Disability Rights Texas to Cameron County Judge Eddie Trevino Jr. and Dr. James W. Castillo, the Cameron County Health Authority.

Paragraph 5 states: “To the extent permitted under the Individuals with Disabilities Education Act (IDEA) and consistent with the procedures required under the federal regulations and state rules implementing IDEA, all children with special healthcare needs that are considered medically fragile, as determined by a licensed physician, shall not return to school for on-campus, face-to-face instructions until the 2021-2022 school year.”

County Attorney Juan A. Gonzalez said he is in the process of modifying the language in the July 14 emergency order and planned to submit proposed changes to Disability Rights Texas Thursday.

During an emergency meeting at which the Brownsville Independent School District Board of Trustees passed a resolution supporting the emergency order, board attorney Baltazar Salaar recommended modifying the paragraph concerning children with disabilities.

Rosa E. Torres, an attorney and spokeswoman for Disability Rights Texas, said the law requires that decisions on how children with disabilities are educated must be made on a case-by-case basis under an Individualized Education Plan, or IEP, with the participation of the parent.

She said that the paragraph in question, as written, “totally disregards the law. Regardless of COVID-19 or any other circumstances you can’t just blanket exclude children with disabilities. … Our position is that these children are entitled to the same education as other students.”

Torres said excluding children with disabilities from in-school instruction during the entire 2020-2021 school year is planily discriminatory.

“Our ask is to remove the language. We don’t believe it is necessary. … We want to make sure the orders are not discriminatory on their face,” she said.