The following editorial originally appeared in The Seattle Times:
This was supposed to be the year for the Legislature finally to do right by special education. Instead, it might be the year for a big-time special education lawsuit. Call it McCleary 2.0.
Lawmakers had vowed to tackle the long-acknowledged fact that Washington shirks its obligation to cover the aides, therapy, special schools and other accommodations that 158,863 children with disabilities need in order to learn.
But after two dozen bills proposing to address everything from improper discipline, to dyslexia screening, to the way the state calculates the number of kids eligible for services, reality is sinking in: Though special education funding will likely increase, it will be nowhere near flush. As a result, thousands of kids who need help won’t get it.
This half-measure approach — which retains a controversial cap on the number of kids who can qualify for special-needs funding — simultaneously leaves the Legislature and governor vulnerable to the possibility of significant litigation.
Washington’s Constitution enshrines the obligation to provide for the basic education of all children. And the state Supreme Court, in deciding the behemoth McCleary school funding case in 2012, ruled unequivocally that basic education includes special education.
Yet the Legislature continues to act as if covering these students — at an estimated cost of $1.5 billion annually — is something they’d like to get to someday. Eventually. Rather than a duty they are required to fulfill now.
Powerful and experienced lawyers are preparing to remind them.
Tom Ahearne, who forced the state to cough up billions of dollars for basic education as the lead attorney on McCleary, expects to bring a new lawsuit by the end of this year. He’s been talking with school districts, parents and the nonprofit Attorneys for Education Rights.
It’s not as if these lawyers are out on a limb. Chris Reykdal, the state superintendent of public instruction, also believes Washington is on shaky ground, legally speaking. The McCleary justices themselves said they would “let experience be the judge” of whether the Legislature stepped up sufficiently.
Rep. Gerry Pollet, who tried — unsuccessfully — to limit the state’s legal exposure by removing the cap on kids who can generate extra funding, put it bluntly: “We are ripe for a lawsuit.”
No one can predict the future, and there is still an outside chance that the cap on special education funding will be removed. But if past is prologue, be prepared for a new court case with the significance of McCleary.
Legislators may claim they are juggling competing priorities. But the court could not be clearer: Lawmakers’ first duty is providing an ample education for all students. That should be enough legal cover to do what is morally right.
