Oregon Sued Over Instruction Time For Students With Disabilities

By Rob Manning (OPB)
Portland, Ore. Jan. 22, 2019 6 p.m.

Disability Rights Oregon has joined with four other legal groups to sue the state of Oregon over what they say is the state's lax oversight of special education programs, especially for children with disabilities in small, rural communities.


The suit aims to help students like Aidin, an 8-year-old in eastern Oregon who likes math, art and music. At school, he says he enjoyed the occasional chance to play with Legos in the principal’s office.

“Oh, yeah, that reminds me: I love Legos by the way,” Aidin said.

Aidin, 8, is one of a number of children who might be affected by a lawsuit led by Disability Rights Oregon, over instruction time for students with disabilities in rural parts of Oregon.

Aidin, 8, is one of a number of children who might be affected by a lawsuit led by Disability Rights Oregon, over instruction time for students with disabilities in rural parts of Oregon.

Courtesy of Jennifer Schell

But throughout Aiden’s short time at two public schools, he wasn’t usually spending a full day in class with other students his age.

Oregon is already familiar with the perils of a limited academic year; the state's short school year even surfaced as an issue in the 2018 race for governor. Advocates say attending school for only an hour or two per day, week after week, sometimes for years, can provide even greater barriers to meeting the academic and social needs of children with disabilities.

Aidin is a high-functioning boy on the autism spectrum. His mother, Jennifer Schell, said her son was sent to the principal's office regularly, for what she saw as little reason.

Other times, Schell would get a call shortly after she dropped her son off, asking her to come pick him up. Schell said at times, it was because Aidin acted inappropriately. But in other cases, she said teachers would call simply because they anticipated "it was going to be a bad day."

The pattern of regularly missing school was obvious to Aidin, and he didn't like it.

“I want to go full days,” he said.

As a child aware of his disability, Aidin saw the treatment as putting a negative emphasis on how he was different from his peers.

Related: Oregon Governor Calls For Longer School Years To Boost Graduation Rate

“I don’t like to have short days. It gives me the feeling that I should be there full days like a normal kid,” he said. “When I have short days like that, it makes me feel like I’m not a normal kid.”

To Schell and the lawyers suing Oregon, Aidin's case is an example of how smaller districts discriminate against children with disabilities — and how the state ignores problems.

“We have about twelve families [in a support group] that meet regularly, and of those, in our small little town, we have five families that are on a shortened day,” Schell said, adding that families generally feel their kids can manage a full day with the right support. “We’re not getting that, and the frustration is very high."

Small, Rural, Shortchanged

The problems are not unique to Aidin's school, according to lawyers familiar with the potential class-action suit filed in Oregon district court. That's why the lawsuit doesn't target individual school districts but rather the Oregon Department of Education, the agency responsible for ensuring every school follows state and federal laws.

Oregon’s small, rural school districts regularly shortchange the education of children with disabilities, according to the suit, which lays out in detail the problems of four boys in rural districts. Short days and long exclusions come up throughout their school histories, though the districts are not named in the lawsuit.

In general, Oregon districts can limit students’ time in school if they act violently, particularly in ways that threaten their own safety or that of classmates and staff.

OPB recently reported on a boy who missed much of the 2017-18 school year as part of the Class of 2025 project. Dale endured domestic violence at home, and the results of that trauma came out at school in fights with classmates and staff. Dale doesn't have a disability, and he's back in school now after receiving instruction for several months with a one-on-one tutor.

In Aidin’s case, and in the situations of the boys represented in the lawsuit, their disabilities often involve “trouble controlling impulses,” as the suit describes for one boy, or challenges with “temper,” as Aidin acknowledged in his own behavior. The lawsuit suggests the preferred course should be to give students the support they need, rather than excluding them from class.

Related: Class Of 2025: How A Sense Of Control Can Help Students With Childhood Trauma

The suit argues that schools may have good intentions in offering a shorter school day or time away from class as an opportunity for behavior to moderate. But such policies can be exploited and misused, the suit says.

“Although shortened school days are often proposed as a temporary measure to manage student behaviors, students regularly remain on a shortened school day schedule for an extended and sometimes indefinite basis that can last for months, semesters, or entire school years,” lawyers write in the lawsuit. “Some children who are subjected to shortened school days due to their disability-related behaviors are eventually denied any instruction at all.”

The lawsuit contends that these exclusions and limits on attendance discriminate against children with disabilities and deprive them of an appropriate education in violation of three federal laws.

"Oregon Department of Education is committed to equity and excellence for every learner. As you know, the Department can’t comment on ongoing litigation," said ODE communications director Marc Siegel in a statement to OPB.


In A Scathing Audit's Wake

The suit comes on the heels of a scathing audit from the Oregon secretary of state's office. Auditors found the Oregon Department of Education is not doing an adequate job of ensuring school districts spend public dollars wisely in support of helping children learn. This new lawsuit essentially focuses that broad assertion at the state agency's difficulties supporting students in need of special education in small, rural school districts.

Attorney Joel Greenberg said the plaintiffs want a straightforward remedy.

“We would like the state of Oregon to operate an educational system that does what it is required to do under the law," he said, "which is to make sure that students who attend school or are of school-age are not discriminated against because of their disabilities. They’re not isolated; they’re not excluded from opportunities."

Greenberg, the lawsuit and the secretary of state’s audit all suggest leaders at the Oregon education department ensure legal compliance through complaints and appeals — rather than proactive oversight and enforcement.

That puts the burden on parents, school staff and other community members to monitor how individual school districts behave and to file complaints and push for government officials to investigate problems. Groups including Disability Rights Oregon argue that after years of advocacy and litigation, school districts lack the resources and expertise to fix problems on their own.

Related: Audit: Many Problems At PPS, Oregon Department Of Education

“Because of the State’s failure to ensure that its districts provide needed services and supports, [one of the child plaintiffs] and children like him remain unable to access a full day of instruction even after prevailing in the complaint process,” lawyers for the advocacy groups write in their suit.

The suit alleges that state administrators appear to throw up their hands at the prospect of pushing school districts for tougher enforcement. It offers an example from 2017 of a district that limited the instructional time for four students.

State leaders allowed the district to continue, according to the lawsuit:  “[B]ecause the district did not document the services that it was providing students, ODE concluded that it could not determine which services were needed for the full day and that it lacked sufficient information to find a violation of the IDEA.”

In other words, state leaders allowed the school district to use a lack of documentation to defend its policy of shortened school days for some students.

A Shorter Day's Impact

For parents and special education advocates, the shorter days represent a misunderstanding of the needs of kids with disabilities such as autism. They argue that high-functioning children on the autism spectrum, who might be achieving academically, are often behind their peers in terms of social development — they may lag on skills such as how to read non-verbal cues and respond appropriately.

In the case of a 14-year-old represented in the lawsuit, the limited time at school interfered with a critical learning need.

“Receiving such limited instruction in isolated settings only worsened [his] behaviors, yet the district continued to shorten his school day,” lawyers say in the suit.

Related: PPS, Parents At Odds Over Providing Autism Therapy In Classrooms

Aidin agrees with that sentiment.

“It shouldn’t really be my business, but I feel like they’ve been holding me back,” Aidin said about his school.

Parents often blame the school district. Aidin’s mom said officials in her son's school have said they lack staffing, due to funding. She doesn't buy that.

“I’m knowledgeable enough to know there’s funding available,” Schell said, pointing to the additional money school districts receive for students who qualify for special education. “These kids are easily dismissed: We’re just going to shorten their day; it’s less work for everybody involved."

Who Is To Blame?

Disability Rights Oregon said it has been bringing up the problems of limited or eliminated instruction time for students with disabilities dating back to 2013. Greenberg said individual school districts should not be blamed as much as the state agency above them.

“Even though they receive some special education funding, resources are often strapped to the extent that they simply don’t have the ability to understand and intervene in a way that makes sense to help children to regulate their behavior,” he said.

Greenberg said one child represented in the lawsuit hasn’t been in school for four years, even after a successful complaint.

“His school district has simply been unable to serve him," he said. "And in a case like that, we feel that the state has a responsibility ... it can’t be enough to say, ‘You violated the law, and we order you to fix it.'"

Greenberg suggested the state create a team of specialists who can visit districts and help local administrators adjust to the needs of kids with specific challenges such as autism.

It’s not that different from what 8-year-old Aidin suggests. In a light-hearted moment, he suggests having “better teachers.” Then he gets serious.

“Maybe a special teacher, like a teacher that knows kids very well and can communicate with them very well,” Aidin suggested.

“I think that would make a bigger and better difference for the school.”