WASHINGTON — A first-of-its-kind lawsuit charging that the state of Oregon has failed to provide full school days to students with mental, emotional and behavioral disabilities could create a model for other states to stop the practice of shortening school days.
The class action lawsuit – filed Jan. 22 in U.S. district court by Disability Rights Oregon and other groups – says Oregon violated the Americans with Disabilities Act, the Rehabilitation Act and the Individuals with Disabilities Education Act by the “unnecessary segregation” of children with disabilities. The lawsuit alleges that schools in Oregon, mainly in rural areas, send students home on a regular, sometimes daily basis, for all or parts of the school day, citing behavior issues or safety concerns stemming from behavioral, mental and emotional disorders such as autism.
Joel Greenberg, a Disability Rights Oregon attorney, says the practice often makes disabled students feel “that they don’t belong in school.”
The problem usually occurs in rural districts that often do not have the resources to hire behavioral specialists or specially trained staff members to help students diagnosed with mild or severe autism or other disabilities. Instead, Greenberg says, the districts send the students home early. (Students who are sent home sometimes receive tutoring instead.)
A spokesman says the Oregon Department of Education cannot comment on ongoing litigation, but “is committed to equity and excellence for every learner.”
In Hillsboro School District, just outside of Portland, Beth Graser, the district’s chief communications officer, says the district creates an individualized education program, or IEP, with specialized staff for students who are placed on a shortened school day.
An IEP team would create such a plan if a student has health issues that prevent her or him from full-day attendance or is not able to “regulate their behavior in a way that is safe” during a regular school day, she says, and it would include a process to reintegrate the student into a full day.
Graser emphasized that shortened days are temporary, used only in “extreme circumstances” and agreed to by parents and the IEP team.
“Students never need to ‘earn’ their way into a full day of school,” Graser wrote in an email.
Still, Greenberg says, “What the children learned from this experience is that they don’t belong in school. And they take that hard.”
The Oregon lawsuit is the first to target the state itself for the systemic practice of shortening school days instead of going after individual school districts. Greenberg says that it could lead to a shift in responsibility from individual school districts to states for ensuring that students receive a full day of education.
The problem is not limited to Oregon. Advocates and attorneys in other states, including North and South Dakota, Montana, Maine, New Hampshire, Texas, Ohio, Michigan, Minnesota, Washington state and California, say they have received complaints from parents whose children’s schools days have been shortened without following proper procedures.
Oregon and Maine have passed laws that regulate shortened school days, but they’re too weak, Greenberg says. The Oregon law, which went into effect for the 2017-2018 school year, requires that school districts provide parents or guardians with a notice if their child is placed on a formal shortened school day program, but provides no punishment for noncompliance nor any requirement or money for schools to have specialized staff.
The U.S. Department of Education’s Office of Civil Rights has investigated school districts across the country for these practices, but declined to comment on its efforts. According to the department’s documents, the investigations are usually resolved by the school district saying it will stop the practice and provide tutoring for the student affected.
Diane Smith Howard, an attorney with the National Disability Rights Network, says the Department of Education does not require states to report the number of students given shortened days, unlike suspensions and expulsions, so it is hard to prove a systemic problem in many states.
“This is a practice that has swelled in darkness,” Howard says.
Sivan Tuchman, a research analyst at the nonpartisan Center on Reinventing Public Education, says placing a student on a shortened day should be rare, but – when used correctly – may enable some students, such as those with depression or who undergo chemotherapy, to continue their education.
Tuchman says when she was in school more than 20 years ago in California, she went on a shortened day schedule to help meet her academic goals while she battled depression.
Jolene Sanders – an advocacy manager at Easterseals Texas, an organization that aims to create opportunities for individuals with disabilities – says when her son entered a preschool program in San Marcos, Texas, for children with disabilities nearly a decade ago, she began getting called to pick him up for behaviors ranging from disrupting other students to getting tired, which could trigger “challenging behaviors.”
Sanders says the shortened school days were never officially a part of her son’s IEP and the proper review was never conducted. She does not dispute that he had behavioral challenges while he was there.
“We just got into this cycle of wondering what time I was going to get called to pick up,” Sanders says. “Sometimes it was really like literally he just got off the bus (at school).”
Tal Goldin, an attorney at Disability Rights Montana, says the case could have a particular effect in Montana because, like Oregon, it is in the 9th U.S. Circuit Court of Appeals’ jurisdiction, but also noted that rulings from that appeals court often set trends nationwide.
Special education attorney Steve Aleman says the Oregon case has created a “buzz” around the issue, which has empowered parents in other states, such as Texas, to start advocating.
According to a survey conducted by Easterseals Texas, Disability Rights Texas and Texas Appleseed, early pickup was one of the informal discipline techniques used in K-12 schools throughout the state. Ninety-five percent of the 211 parents surveyed who said their child was experiencing early pickups also said their child had a disability. Sanders says the students ranged from those with “severe disabilities” to those with attention deficit hyperactivity disorder or mild anxiety.
“Folks are just kind of coming out of the woodwork and realizing, ‘This wasn’t just happening to my kid,'” Sanders says.
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