Thursday, July 09, 2009
Judge’s order finds “a picture of blatant discrimination” as DOE kicks special ed students out of school earlier than regular ed students
by Larry Geller
In an order just released in a special education case (which is still ongoing), Judge David Ezra ruled that the Hawaii Department of Education is discriminating against students with disabilities by systematically denying them special education because they were over 20 years of age, while regular ed students are allowed to continue their education beyond that. Judge Ezra wrote:
What emerges is a picture of blatant discrimination in violation of the IDEA and Section 504 of the Rehabilitation Act of 1973.
Ezra also found that when parents have taken the DOE to court or when the DOE has otherwise agreed to continue a special needs student beyond 20, they have refused to provide special education as the law requires.
A scan of Judge Ezra’s order is here.
In the following snippet, Plaintiff is “B.T.” and Defendant is the Hawaii Department of Education.
…Defendant has never denied the request of an overage student without disabilities to attend high school, while Plaintiff B.T. and other disabled students have been denied special education solely because they are over 20. Not only were these special education students denied admittance when general education students received a rubber stamp approval, the special education students and their representatives had to commence legal action to be admitted.
Defendant concedes that many of the overage special education students who were admitted were the result of settlements between Defendant and the parents or guardians of these students. Defendant maintains, however, that there were instances when overage special education students were allowed to participate in new programs or allowed by the principal or IEP team to receive additional educational services. Moreover, Defendant insists that "the reason why an overage student was allowed to attend school is minutia that is not relevant or material to the issues before the Court."
This Court disagrees. The nature of the practice of Hawaii's schools toward students 20 years or older is precisely what is at issue in this case. And if, as seems to be the case, Defendant has approved every single overage general education student and barred almost every single overage special education student without the commencement of legal action, then it suggests a practice much worse than sheer ad hoc discretion. What emerges is a picture of blatant discrimination in violation of the IDEA and Section 504 of the Rehabilitation Act of 1973.
Furthermore, because the Administrative Rule specifically prohibits overage students from further special education services, the few special education students who are admitted apparently are not provided with individualized education but rather are merely allowed to attend general education instruction….Although Congress did not impose any greater substantive educational standard than is necessary to make access meaningful, a school may not simply abandon these children to the backs of classrooms where the adequacy of instruction is gauged by mere attendance. By denying special services, Hawaii is denying these students a meaningful education.
Parents still have to file for due process or take the DOE to court far too often in Hawaii. The process is supposed to be:
Suspect need for special ed –> see if student qualifies –> hold IEP meeting –> DOE provides services
but too often is something like this:
Suspect need for special ed –> see if student qualifies –> hold IEP meeting –> find lawyer –> due process hearing –> (maybe) DOE provides services –> file lawsuit –> (maybe) DOE provides services
When a student has been denied services for years, extending their stay in a special education program in public school is one possible remedy. That remedy has been denied them in Hawaii, up till now.