The Austin Independent School District is facing a federal lawsuit that claims the district has a backlog of hundreds of students who are not receiving special education evaluations, and therefore services, that they're entitled to. 

Those evaluations are used to identify students with special needs and determine what additional special education services they need in school. 

The nonprofit Disability Rights Texas, along with the families of five AISD students, filed the lawsuit, saying that the district is not providing those special education evaluations within the timeline required by law. 

According to Texas law, the district has 15 days to respond to a parent’s request for their student to be evaluated. 

Then once both the district and parent consent, the district has 45 days to complete the evaluation.  

After the evaluation report is done, the district has 30 days to determine if the student is eligible for special education services, and if so, develop an individualized education plan for the student. 

Disability Rights Texas, along with the five families who are plaintiffs in the case, say those five students did not receive their evaluations within that 45 day window, and that hundreds more students are in the same boat. 

One of the families involved in the case says that navigating the multi-step process for getting a student access to special education services is already confusing and laborious, but when they started the process for their third child in the fall, they ran into an additional hurdle they weren’t expecting. 

“Genevieve is very free spirited. She's very artistic," said Jarin Schiavolin. 

Six year old Genevieve is the third of Schiavolin’s 4 children. Schiavolin noticed Genevieve was showing signs of a learning disability, so in the fall, she put in a request for a special needs evaluation.

According to state law, the district is required to complete the evaluation within 45 days. 

“Right when that 45 day window that they have to do the testing ran out, I got an email from the psychologist saying that AISD is so understaffed, she has no idea when she'll be able to do the testing because she has this giant backlog," said Schiavolin. 

The district’s psychologists who perform those evaluations have been sounding the alarm about overwhelming and unmanageable caseloads for years. 

Disability Rights Texas reviewed footage of Austin ISD board meetings from October 2019.

“School psychologists who work for the district [were] asking for help… getting up and saying, ‘Hey, we should have one school psychologist for every 700 students and our ratio was like five times that bad," said Dustin Rynders, supervising attorney with Disability Rights Texas. 

The pandemic has only worsened the problem. 

Despite her sympathy for the school psychologists’ workloads, Schiavolin says as a parent her priority is Genevieve. 

“I understand where you're coming from, but this is a legal obligation, and I can't just sort of let that go," said Schiavolin. 

Not knowing how to move forward, she went to Disability Rights Texas for advice. 

“You feel when you're in this process, you're alone. It's very confusing. It's very bureaucratic, tons of red tape.”

That’s when the nonprofit told her they believe hundreds of students in the district are awaiting long overdue evaluations, and therefore not getting special education services they might need. 

“The delay for us, just keeps us in the dark longer about what's really going on… So it just kind of delays the intervention really," said Schiavolin. 

“When you have a student with a disability or suspected disability, you already know they're struggling in some way, or they wouldn't have been referred and there wouldn't be agreement around them needing to be assessed for special education," said Rynders. "And so the longer they go without the services they need, the worst consequences occur.”

According to federal law, school districts are also required to re-evaluate students receiving special education services, at least every 3 years. ​

Disability Rights Texas says they worry that an estimated 1,600 students have not been re-evaluated within that required timeline, meaning that they're receiving services based on potentially out of date information, which could also have an impact on their learning and academic progress. 

Schiavolin and four other families joined Disability Rights Texas in a federal lawsuit against AISD over the delayed evaluations. 

A spokesperson for AISD said the district does not comment on pending litigation. 

“The school district has the public trust," said Schiavolin. "They're supposed to be there to put the child first and to get them what they need so that they can flourish… So that's, that's definitely why I feel it's important to hold them accountable.”

Schiavolin says it was important for her to stand up not just for her own family, but for the hundreds of kids she worries are also not getting the help they need. 

The families involved in the case, as well as Disability Rights Texas, say they are not seeking solutions for their children alone, the lawsuit reads, "exhausting remedies for any one or several students would be futile, because the district would expedite evaluation and award compensatory services to that one child (as they have with previous individual DRTX clients) without remedying the systemic concerns that are impacting the other students." 

The plaintiffs in the case are seeking for all the students who are currently waiting for either initial evaluations or re-evaluations to receive them in an expedited manner, and for the district to make systemic changes to ensure the backlog doesn't occur again, including hiring more school psychologists to adequately meet the district's needs, and to provide compensatory education services for all the students impacted by delayed evaluations. ​

"What we're really talking about is compensatory education, so tutoring services or speech therapy or counseling services, occupational therapy, or physical therapy, whatever it is that student needed in special ed that they didn't get, because of these delays," said Rynders. “We want Austin ISD to come to the table and work with us on real solutions… to build in an ideal world model program of having school psychologist resources, as, you know, as a key investment in the district for all of the reasons that they matter, including serving all these students who have been delayed.”