Judge Orders Washington State Private Special Education School to Turn Over Records

A King County judge ruled last week that a private special education school that has been the subject of a recent Seattle Times and ProPublica investigation has to comply with public information laws and release records to the Times.

The ruling has the potential to shed light on an obscure part of Washington’s special education system, in which school districts send students with disabilities to private programs at taxpayer expense. Few other legal rulings have defined how the state’s public records laws apply to private organizations that assume the functions of government agencies.

The special education schools operate with little state oversight and aren’t required to disclose key data, like discipline rates or test scores, as traditional public schools are.

The investigative series, published late last year, found significant problems at the Northwest School of Innovative Learning, the largest program in the system, including allegations of abuse by staff, a lack of basic resources and unqualified aides instead of certified special education teachers leading classrooms.

While researching the story, in December 2021, Times reporter Mike Reicher sent a request to Northwest SOIL seeking records related to restraint and isolation of students, staff training materials, complaints against the school, government inspection reports and other documents.

These documents would be available at any public school under the state’s Public Records Act, which requires government agencies to make documents available for public review to ensure transparency but typically does not apply to private entities. Northwest SOIL is owned by Fairfax Hospital, the largest private psychiatric hospital in Washington and a subsidiary of the Universal Health Services hospital chain. UHS denied the Times’ request, noting the school was not a government agency.

The Times sued Fairfax in February, arguing that Northwest SOIL should be subject to state transparency laws because it was a “functional equivalent” of a public agency — all its students were placed by public school districts, and their tuition was paid entirely using tax dollars.

In a Jan. 18 order, King County Superior Judge Annette Messitt agreed with the Times, granting its motion for summary judgment. Messitt wrote that Northwest SOIL “has essentially stepped into the shoes of the school districts to carry out the state’s duty to provide special education to children with disabilities.”

Fairfax and its attorneys did not respond to requests for comment and haven’t indicated whether they plan to appeal. Previously, Fairfax denied that it understaffed its schools and said restraint and isolation were only used as a last resort.

“They are paid with public tax dollars, and they are charged with educating and nurturing public school students — and only public school students,” Seattle Times Executive Editor Michele Matassa Flores said. “They should be held accountable, which starts with parents and the taxpaying public being able to see what’s happening there. This disclosure is a step toward transparency and ultimately better outcomes for the students.”

The Times and ProPublica pieced together details about Northwest SOIL by sifting through more than 17,000 pages of documents obtained under public records laws from more than 40 schools districts, three police departments and the state education department.

The series prompted a sweeping reform bill in the Washington State Legislature and an investigation by the state Office of Superintendent of Public Instruction. OSPI noted that some allegations were “previously unknown” to the education office and other government agencies.

The ruling has potential implications for parents of children who have attended private programs that have operated for years with little accountability or oversight.

Emily Ragan, whose son attended Northwest SOIL last school year, said the school needed to be more transparent. In a declaration in support of the Times’ lawsuit, Ragan described how her son, then 9 years old, came home from school with bruises at least seven times. When she asked Northwest SOIL for video footage that might explain how her son was injured, the school similarly denied her request.

Ragan supported the Times’ lawsuit because “I believe that would help parents like me find out what really goes on at Northwest SOIL,” she wrote in her declaration.

Messitt’s ruling last week compels Fairfax and Northwest SOIL to provide the Times with all documents and information that the newspaper requested, with the exception of those that are exempt under state law, in February and March, absent an appeal. The ruling also awarded the Times attorney fees and potential penalties, to be determined later, for the withholding of the records.

“This important ruling will shine a light on how a large for-profit corporation carries out the state’s educational duties at enormous public expense,” said Katherine George, the Times’ attorney. “It will help the public assess whether vulnerable students are getting the services and humane treatment they deserve.”

Messitt used a four-pronged legal assessment, known as the Telford test, to judge whether the private school was subject to public records. The judge wrote that three of the four factors applied to Northwest SOIL to some degree: the school performs a government function, it receives significant government funding and it is subject to government involvement or control. The fourth factor — whether an entity was created by the government — does not apply, Messitt wrote.

In 2017, the state Supreme Court applied the test in a public records case involving an animal rights activist who requested records from the private nonprofit group that ran the Woodland Park Zoo. In that case, the court ruled in favor of the zoo and against public disclosure, but it found the Telford test was an appropriate way to decide whether a private entity must comply with the Public Records Act.