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Federal complaint asks court to declare that Oregon school districts who exclude students with behavioral problems from school are breaking the law.

COURTESY PHOTO: ALISHA OVERSTREET - Alisha Overstreet and her son, Elijah, who for more than a year has been on a reduced school schedule in the Yamhill-Carlton School District due to behavioral struggles. Disability Rights Oregon is suing the state's education officials and Gov. Kate Brown, alleging that the state is violating the rights of "hundreds" of students with disabilities by allowing districts to shorten their school days, but not the school days of other students.

The lawsuit, filed Tuesday, Jan. 22, U.S. District Court's Eugene division, names Gov. Kate Brown, Deputy Superintendent of Public Instruction Colt Gill and the Oregon Department of Education, but not individual schools or districts. The outcome could have a major impact on state education funding and practices, as it goes to the heart of a controversy in modern education around student discipline, disability rights, safety in the classroom and the proper approach for students needing special education due to mental health or behavioral health disorders.

"It doesn't make sense and it's not legally defensible to deal with difficult behavior by excluding kids from school," said Joel Greenberg, attorney for Disability Rights Oregon, or DRO. "The proper way to deal with behavior is to provide additional supports and to better teach them to better regulate their behavior, … (rather than the) wildly improbable theory that their behavior will improve while their parents have to find day care or quit their job to take care of them."

That happened to Alisha Overstreet. The two-child family in Yamhill County lives on her husband's veterans benefits as she navigates the education system. Now in fourth grade, Overstreet's son Elijah was diagnosed with autism in first grade and attention-deficit hyperactivity disorder a little later. His mom said that third grade was when his schooling really became a struggle.

"There were a few situations that led to the school basically to call me and I had to come pick him up," Overstreet said. After that, the Yamhill Carlton School District reduced Elijah's schooling to half-time, she said, though they have added back most of his school day since then.

Overstreet said that the short school day is particularly painful because her son's lack of social skills means he needs more help and experience interacting with peers, not less. "Our children are still struggling," Overstreet said. "In particular, my child with special needs is struggling and doesn't seem to be getting the appropriate education that he has a right to."

Marc Siegel, communications director for the Oregon Department of Education, on Tuesday declined to comment in regards to the suit. "Oregon Department of Education is committed to equity and excellence for every learner. As you know, the Department can't comment on ongoing litigation," he said.

No court date has been set for the lawsuit.

Nationwide implications

Greenberg, the DRO attorney, said that the nonprofit's lawsuit is "kind of a last resort."

Even after years of advocacy — including state guidance against shortened school days in 2015-16 and a new state law in 2017 — Greenberg said the office has been "inundated" with calls from parents like Overstreet who complain their district has unilaterally shortened their children's school days.

"Those efforts have not really moved the needle on this issue," he said, adding that some children are only getting an hour or two per day of public education.

But, he added, the practice is not only found in Oregon."It is not at all uniquely Oregon, although it may be particularly bad here," Greenberg said.

Disability Rights Oregon has teamed with three national disability rights groups on the litigation in the hopes that the nationwide practice will be shown in court to be unlawful. The D.C.-based National Center for Youth Law, the Baltimore-based Council of Parent Attorneys and Advocates and the D.C.-based Bazelon Center for Mental Health Law are teaming up with DRO on the complaint.

"Our congress and our society recognized decades ago that isolation and exclusion were not good for the people who are excluded and it's not good for the people who excluded them," Greenberg said. "What are the prospects for a child who does not get a good education and who does not learn how to get along with other children?"

"The state of Oregon has been on notice for years that many of its school districts, often rural and small school districts, deny children with disability-related behaviors a full day of school — or the chance to attend school at all — in lieu of providing them with needed services. By permitting these practices, Oregon violates the IDEA, ADA, and Section 504."

The DRO attorney has experience working on disability rights issues in the criminal justice system."It's always better to work on problems early rather than later," he said. "We're talking about children as young as 5 and 6 years old who are not allowed to go to school."

Greenberg said the ultimate remedies will be hammered out during the litigation process but the idea is not to throw children with mental health challenges into a full day with unprepared school staff.

"The whole point of this lawsuit is to force the state to provide help and expertise that is particularly lacking at small and rural districts," Greenberg said.

Overstreet said she hopes the litigation will benefit future generations. "It's hard being a mom of a special needs child, and it's especially difficult watching or having to watch your child struggle at school and kind of lose a spark that he used to have because of what's been happening at school," she said. "I don't want other parents to have to go through this."

Shasta Kearns Moore
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