Sunday, October 18, 2009


Countdown to a showdown

by Larry Geller

Showdown This coming week could be a bit dramatic in Hawaii. The first Furlough Friday for Hawaii’s schools is scheduled for October 23. If nothing happens, it will take place as scheduled. Schools will be closed, parents will either have figured out what to do with their kids on that day, or not.

There may be very little parents can do to stop the furlough plan. Except for parents of special needs students, that is. The DOE/HSTA negotiations didn’t change federal law. Attorney Keith Peck said before a meeting of parents on Thursday that by scheduling these days off, the DOE has "anticipatorily repudiated" IEPs (Individual Education Plans).

How to understand an IEP? An IEP is like a contract. If it is done right, it is an agreement between parents and schools that covers the types and location of services to be delivered to a student for a specific period of time and it identifies the service providers. And it is enforceable in federal court.

Unlike many laws (speeding on the highways, for example), no cop will show up at a school and defend a student against cuts in services specified in an IEP. It is up to parents to enforce the IEP. They do this usually by calling the school to a due process hearing. At the same time, they may make a motion for “stay put,” which means that the DOE must continue providing services that are in the IEP until the matter is resolved.

“Stay put” could keep a school open. This has to be tested. The DOE could, if it chooses, disobey a “stay put” order and bear the consequences. What consequences? Just as an example, a hearings officer or court might decide that the DOE has failed to deliver on its promise of a free appropriate public education for the student, and let the parent move the student to a private school, at DOE expense. This is assuming that the parent is willing to do that. At Thursday’s parent meeting, one parent said that it’s a public education that they want, not a remedy involving private school.

Since due process hearings relate to a single student’s education, there would be no effect on the school system in general. Enough of these DP cases, though, could throw a monkey wrench into DOE’s plans.

Another scenario would be one or more class action suits, asking a federal court to stay the Furlough Fridays. This would be the kind of approach that attorney Peck suggested, and that attorney Eric Seitz is threatening in the media. It could affect all schools, unlike the action taken by a particular parent. It would be like a very big “stay put” affecting everything.

Seitz has featured in news articles in both papers as the one who may file a suit to challenge the days off.

Eric Seitz, the attorney who represented special education students in the 12-year Felix lawsuit against the state, is readying a new complaint against the state Department of Education because of the 17 school furlough days set to start Friday. [Star-Bulletin, Lawsuit in the works, 10/18/2009]

Although the papers refer to him as “the [Felix] attorney,” in fact there were many attorneys who joined together in Felix v. Waihee in 1993 and thereafter. The news articles may mislead. Here is a list of early plaintiff attorneys in Felix that I grabbed from the court website:

Benjamin L. Carroll, III, Disabled Rights Legal Project
Susan A. Cooper, Disabled Rights Legal Project
Dora J. Dome, Hawaii Disability Rights Center
Shelby Anne Floyd, Alston Hunt Floyd & Ing
Mary L. Martin, Clay Chapman Crumpton Iwamura & Pulice
Jennifer Schember-Lang, Hawaii Disability Rights Center
Eric A. Seitz
Carl M. Varady
Suzanne J. Young, The Protection and Advocacy Agency of Hawaii

A couple of these attorneys (or others representing the same organization or successor organizations, for example, Matt Bassett for the Protection and Advocacy Agency of Hawaii) are still very actively representing special needs students. And new attorneys, coming into the field with no association with Felix, are working with parents as well.

Any one or more of the attorneys could represent plaintiffs seeking to defend students with IEPs that will be violated by the furloughs. It’s not just Seitz.

Showdown in the works?

As an example of the battle formations taking shape:

At a meeting of parents of children with special needs on Thursday evening, attorney Keith Peck predicted that Furlough Fridays would soon be blocked by legal action. Individualized education plans for special-education students, mandated under federal law, specify the number of minutes of services and instruction required for each child.

"They cannot violate the federal law with their state act," said Peck, who focuses on special education. "One class-action suit in federal court will stop it all."

The state Department of Education, however, vows to continue educating special needs kids as mandated, despite Furlough Fridays.

"We will provide the services that are required in the Individualized Education Plan," Superintendent Pat Hamamoto said last week. "We are looking in some instances at rescheduling, doing makeups. We will work with the parents and schools on what is the best way to get this accomplished." [Star-Bulletin, Parents demand action, 10/18/2009]

The Star-Bulletin editorial today concludes with:

Indeed, school officials should seek ways to assure compliance with federal requirements for providing education to children with special needs to avert another expensive lawsuit.

They should, but can they? Bottom line is that Governor Lingle controls the purse strings, and she has shown little love for public education or for the DOE in the past. Ideology drives her to reject tax increases that might ease the cuts to education and other public services. It’s also hard to see how the Legislature could restore funding, since they cannot disburse the funds they might make available.

If a legal challenge succeeds, then Lingle will have to come up with the money. At that point another showdown could take place, between the Legislature and the Governor.

With elections next year, there would be no shortage of remedies proposed, putting the ball back in her court to choose among them. Whether or not the Legislature meets in special session could depend in part on whether Seitz or another attorney succeeds in scuttling the furlough plan.


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