All children are entitled to a free public education, a right enshrined in federal law.
But the state of Washington doesn’t pick up the full tab on education costs for students with learning disabilities, forcing school districts to cover the difference using funds they are legally supposed to be using for nonessential expenses.
Disability rights activists have long opposed Washington’s way of funding special education, saying it pressures districts to shortchange services in order to save on spending. In this year’s legislative session, a yearslong proposal to change the system has come further than it has before.
But it’s unclear whether it will survive in the final three weeks of session as lawmakers hammer out the terms of the state’s budget.
“We’ve made progress … but we’ve shifted from hearing legislators talk about solving problems to talking about a down payment toward future work,” said Samantha Fogg, legislative chair for Seattle’s citywide PTSA organization.
The state funds education for students with developmental, learning and emotional disabilities by attaching extra dollars to the money it gives school districts for each student. But under a peculiar policy from the 1990s, the state’s funding taps out when students needing special education account for more 13.5% of a district’s enrollment.
More than half the state’s school systems exceeded the cap this year, contributing to a $400 million deficit last year between what the state gives and what districts spend.
If there is an especially hefty cost — like placement at a residential facility out of state — the district can apply to receive money from a fund called the safety net. But barring an extraordinary expense, when a district doesn’t have enough funds from the state to cover its special education enrollment, it has to pull from other places, including the money it collects from local taxes.
While federal law prohibits districts from denying services based on funding, Fogg said it’s clear that cost influences what families receive.
“If districts said it publicly, they could get sued. But parents have heard that across the state,” she said. “Is it any wonder that our special education students feel like a problem?”
The cap also gets the state into dicey legal territory, said Rep. Gerry Pollet, D-Seattle, who has led the effort to remove the cap in the House. The state constitution mandates that the state pay for basic education, and a state Supreme Court decision reaffirmed this.
“If the cap isn’t fully removed, the state faces a constitutional lawsuit that it is almost certain to lose,” he said.
Lawmakers who oppose removing the cap believe it could lead to misuse of funds and overdiagnoses of kids with disabilities. Nearly three decades ago, lawmakers created the cap and set it at 12.7% to prevent districts from trying to secure extra funds.
The Legislature has made tiny increases to the cap over the years. Senators who are opposed to removing the cap altogether have proposed to increase the cap to 15%, and increase the funds allocated for each student. They have also tucked into their bill a provision that grants relief for districts with very small numbers of students, where just a few kids can tip the scale far above the cap.
“I don’t think you have to get rid of the cap to solve this,” said Sen. John Braun, R-Centralia. He added that he thinks accountability for the money could look differently than a cap, but that better alternatives hadn’t been proposed or received support.
One of the special education funding bills in play would require an audit of special education evaluations. While there is research showing that students of color are overrepresented in special education settings, some studies argue that students of color can also be underidentified for services.
Raising the cap to 15% would still leave out some larger districts, including Spokane, which as of March had a special education enrollment of nearly 16%.
The debate over the cap ties into a wider negotiation about how much to dedicate to special education in the budget. The House and Senate’s budget proposals are far apart on how much to dedicate toward special education — $177 million versus $358 million, respectively. Part of the gap is due to the fact that the House proposal to remove the cap wouldn’t be implemented for a few years. The Senate’s budget would increase the amount allocated per student and raise the cap amount faster.
“They stretch this out so they don’t have to pay the bill right now,” said Braun. “I don’t view that as a legitimate negotiating system.”
It’s hard to know what may happen to the proposal to remove the funding cap. It could be a fight until the very last day of the session on April 23.
