PORTLAND, Ore. — A long-running legal battle over Oregon’s historical practice of allowing school districts to relegate hundreds of their highest needs students to just a few hours of class time per week is headed back to federal court on the orders of a three-judge panel from the 9th U.S. Circuit Court of Appeals.
U.S. District Judge Ann Aiken had previously ruled that the class action suit, filed by disability rights advocates against the Oregon Department of Education, could be dismissed because state lawmakers in 2023 passed legislation intended to remedy the concerns of families. Those families contended their children were being denied their right to public education because of complex medical or behavioral needs deemed too costly or disruptive for their schools to handle.
“Oregon has implemented substantive policies on a centralized statewide level,” to meet the requirements of the federal Individuals with Disabilities Education Act, Oregon Associate Attorney General Jordan Silk argued in front of the 9th Circuit judges in San Francisco last month.
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But lawyers for disability rights advocates argued that the passage of Senate Bill 819 alone was not enough. They said there was scant evidence that the state was fully enforcing the new law, citing a lack of publicly available data about how many children were still on abbreviated school days and for what reasons.
There has also been limited information about the education agency’s oversight of and intervention into districts as they’ve tried to implement the new law, said Tom Stenson, deputy legal director at Disability Rights Oregon, the Portland-based nonprofit that first brought the suit in 2019.
The 9th Circuit’s panel of judges agreed.
In a brief order released this week, Judges Consuelo Callahan, Kenneth Lee and Scott Rash — all Republican appointees — noted that cases are only moot when real-world events result in plaintiffs winning as much relief or more as they might have gained through litigation.
In this instance, the three concluded that the students and their families weren’t finding fault with Senate Bill 819, but with “the state agency’s allegedly deficient policies and practices,” and there was not enough evidence to conclude that the new law had fully fixed decades of problematic practices.
Their decision sends the case back to Aiken, with a recommendation that she should consider “allowing the parties to determine if and how Senate Bill 819 has affected the use of shortened days in Oregon and determining how the Oregon Department of Education has implemented Senate Bill 819’s new requirements since the law’s enactment.”
Under Senate Bill 819, parents must agree in writing to their children being placed on a reduced schedule. And every month, the school must give families a formal chance to revoke their permission. If parents say no to shortened days, schools need to be ready to offer the child a full school schedule within five days.
School districts must report monthly to the education department how many students were on shortened schedules and for what reason.
After The Oregonian/OregonLive requested data last summer, the Oregon Department of Education said that 2,716 children 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 after Senate Bill 819 went into effect.
That is about twice as many as before the pandemic, according to a 2022 report done by neutral experts as part of fact-finding related to the lawsuit.
Data from 2025-2026 won’t be available until the winter of 2026, Liz Merah, a spokesperson for the agency, said this week.
The agency cannot comment on pending litigation, Merah said. But she said it “has and continues to provide extensive technical assistance to districts, develop guidance materials, and strengthen data collection related to this important issue.”
The agency is also facing a separate lawsuit from a former employee who says money allocated to the agency for the implementation of Senate Bill 819 was mishandled and diverted to unrelated projects.
State Sen. Sara Gelser Blouin, D-Corvallis, who was the chief sponsor of Senate Bill 819, said she has heard from families for whom the legislation has made a meaningful difference and from those who say they still feel pressure to agree to limited school hours. Lawmakers need more information on how the state agency is fulfilling its promise to provide regular training sessions, deploy mobile crisis response teams and analyze the data it is collecting.
But for Senate Bill 819 to work as intended, Gelser Blouin said caregivers need to know their rights and be willing to stand up for their children.
“If you don’t have the confidence to do that, not only is it easy for a district to implement a loophole, it is also difficult for agencies to know that there are problems,” she said.
Stenson said he’s concerned that the implementation of the law has made it relatively simple for school districts to obscure the reasons why students are on abbreviated schedules without much auditing or pushback from state officials.
“There was never really a concerted effort by the Oregon Department of Education to address the root causes (of why so many children were being cut off from full school days),” he said. “What we’re asking for is to get children the behavioral health services they need so that they can remain in classrooms.”
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