9th Circuit revives Oregon lawsuit over short school days for special education students

On the instructions of a three-judge panel from the 9th U.S. Circuit Court of Appeals, a long-running legal struggle over Oregon’s historical practice of permitting school districts to reduce hundreds of their most needy pupils to just a few hours of class time per week is returning to federal court.

Because state lawmakers in 2023 passed legislation aimed at resolving families’ concerns, U.S. District Judge Ann Aiken had already decided that the class action lawsuit brought by disability rights advocates against the Oregon Department of Education may be dropped. These families argued that their children’s complicated medical or behavioral demands, which were judged too expensive or disruptive for their schools to manage, were preventing them from receiving a public education.

Last month, Oregon Associate Attorney General Jordan Silk argued before the judges of the 9th Circuit in San Francisco that the state had centralized its statewide implementation of substantive policy to comply with the federal Individuals with Disabilities Education Act.

However, attorneys for campaigners for disability rights contended that Senate Bill 819’s passing was insufficient on its own. Citing a dearth of publicly available statistics regarding the number of students still attending school on shortened days and the reasons behind it, they claimed there was little proof the state was properly implementing the new rule.

According to Tom Stenson, deputy legal director of Disability Rights Oregon, the Portland-based charity that initially filed the lawsuit in 2019, there has also been little information available regarding the education agency’s supervision of and intervention in districts as they have attempted to execute the new rule.

The judges of the 9th Circuit concurred.

Judges Consuelo Callahan, Kenneth Lee, and Scott Rash—all Republican appointees—stated in a brief ruling issued Monday that lawsuits are only moot when actual occurrences give plaintiffs as much or more relief than they could have obtained through litigation.

In this case, the three came to the conclusion that there was insufficient evidence to conclude that the new law had completely corrected decades of problematic practices, and that the students and their families were criticizing the state agency’s allegedly inadequate policies and practices rather than Senate Bill 819.

According to their ruling, the case is returned to Aiken, who is advised to think about letting the parties ascertain whether and how Senate Bill 819 has impacted Oregon’s use of shortened days as well as how the Oregon Department of Education has applied the new requirements of the law since it was passed.

Senate Bill 819 requires parents to give their written consent before their children can be put on a modified schedule. Additionally, the school must provide families with a formal opportunity to withdraw their consent once a month. Schools must be prepared to provide the child with a complete school schedule within five days if parents refuse to accept shorter days.

The education department requires school districts to submit a monthly report detailing the number of children on abbreviated schedules and the reasons behind them.

The Oregon Department of Education stated that 2,716 pupils had time—typically many hours—shaved off of their school day for at least some portion of the 2023–2024 school year, the first year following the implementation of Senate Bill 819, following a data request made by The Oregonian/OregonLive last summer.

According to a 2022 study prepared by impartial experts as part of the lawsuit’s fact-finding, that is roughly twice as many as existed prior to the pandemic.

The agency’s spokesperson, Liz Merah, stated on Monday that data for 2025–2026 won’t be accessible until the winter of 2026.

Merah stated that the agency is unable to comment on ongoing legal proceedings. However, she stated that it has and still does offer districts a great deal of technical support, create advice materials, and improve data collecting on this crucial topic.

A former employee has also filed a separate complaint against the agency, claiming that funds intended for the execution of Senate Bill 819 were improperly handled and used for unrelated purposes.

The primary sponsor of Senate Bill 819, Sen. Sara Gelser Blouin, D-Corvallis, said she has spoken with families who think the law has had a significant impact on their lives as well as those who claim they are still under pressure to accept less school hours. Legislators require additional details on how the state agency is carrying out its commitment to conduct frequent training sessions, send out mobile crisis response teams, and evaluate the data it is gathering.

Gelser Blouin, however, stated that in order for Senate Bill 819 to be effective, caregivers must be aware of their rights and prepared to defend their children.

According to her, if you lack the confidence to do so, it is not only simple for a district to create a loophole, but it is also challenging for agencies to recognize issues.

According to Stenson, he is worried that the law’s implementation has made it easier for school districts to hide the reasons why pupils are on shortened schedules without facing much opposition from state authorities or auditors.

He claimed that the Oregon Department of Education has never made a serious attempt to address the underlying reasons why so many kids were being excluded from full school days. Our request is to provide children with the necessary behavioral health services so they can continue attending school.

Julia Silverman writes for The Oregonian/OregonLive about K–12 education. You can email her at jsilverman@oregonian.com.

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