Wednesday, October 21, 2009


Two lawsuits filed to block Furlough Fridays

by Larry Geller

Two lawsuits were filed which may block the Department of Education from implementing its first Furlough Friday, depending on what a federal judge will decide as early as tomorrow.

Update: According to the 10 p.m. KHON news, Judge Ezra will hear the two cases tomorrow (Thursday) at 2 p.m.

The first action was filed by attorneys Stan Levin, Susan Dorsey and Carl Varady at 11:42 p.m. Tuesday night. The second case was filed as a class action by attorney Eric Seitz early this afternoon (Wednesday).

Both complaints are attached below.

How do they work? Tonight’s TV news and tomorrow’s papers will explain only the basics. Here’s some background.

Students with disabilities are afforded protections under federal law, primarily under the Individuals with Disabilities in Education Act (IDEA). Congress found that unless students with disabilities have these protections, school districts will systematically or individually exclude these students from educational opportunities. So the IDEA seeks to guarantee them their civil rights. Both of the lawsuits just filed are civil rights lawsuits.

For most students, the protections are in the form of a written document, the Individual Education Plan, or IEP. Parents participate as equals in the meetings that determine each IEP. Once agreed, the school is obligated to perform the program. Nor can the school unilaterally change it. If there is a disagreement about how the plan is being carried out, the parents may take action including calling for a due process hearing, and while that action is pending, the school may not change the services last agreed upon. This is called “stay put.”

These are important safeguards. Without them, a school could simply ignore the student, and the student could conceivably not learn for years. That’s what was happening in Hawaii before the Felix v. Waihee lawsuit. Thousands of students were simply not getting an education.

In ND et al v. DOE, the complaints allege that the DOE tried to unilaterally change students’ IEP programs. Parents did file for an impartial due process hearing, which invokes “stay put.”

“Stay put,” by the way, is one of the best supported procedural safeguards. The federal law is reflected in Hawaii Administrative Rules, which have the effect of state law. From ND:

21. The language of 20 U.S.C. § 1415(j) [part of the federal IDEA] is unequivocal and provides that "during the pendency of any proceedings conducted pursuant to [the IDEA], unless the State or local agency and the parents otherwise agree, the child shall remain in the then-current educational placement of such child ... until all such proceedings have been completed."

22. Similarly, H.A.R. § 8-56-79 provides that " during the pendency of any administrative or judicial proceeding regarding a complaint under section 8-56-72, unless the department and the parent of the student agree otherwise, the student involved in the complaint shall remain in the current educational placement." Citing, 34 C.F.R. § 300.514(a).

23. This provision, also referred to as the "pendency" provision, may also be found in the Department of Education Regulations: [D]uring the pendency of any administrative or judicial proceeding regarding a complaint under [the Act], unless the State or local agency and the parents of the child agree otherwise, the child involved in the complaint must remain in his or her current educational placement. 34 C.F.R. § 300.514(a).

Perhaps this was not under discussion during negotiations between the state and the teachers’ union. It should have been. The DOE may have proposed a plan for furloughs that it can’t legally carry out.

So what will happen? This is hard to predict. The easiest remedy to administer is to keep the schools open. It is hard to conceive of other ways that hundreds or thousands of IEPs could be satisfied if schools are allowed to close.

Seitz’ suit seeks to represent all students, not just special education students. He also includes charter schools serving children with IEPs. In DK, attorney Eric Seitz is pretty strong and straightforward in his allegation:

The State of Hawai`i has the distinction of being the only state with a single statewide school district. State educational leaders often point to this as a strength of the system of education in Hawaii. With the institution of "Furlough Fridays", however, the State of Hawai i demonstrates its utter failure in allowing a statewide system to adopt draconian measures to breach the promise of providing a certain standard of educational service to thousands of parents and students who chose to enroll in the public school system, to adversely and intentionally treat protected classes of citizens such that disparate impacts are felt by these classes to the detriment of their advancement, and to disregard the promise of free appropriate education to children with disabilities that are mandated by federal and state laws.

The Defendants have failed these children and their families and violated their statutory and constitutional rights. Plaintiffs seek an order from this Court declaring that the Defendants have violated these rights, and permanently enjoining Defendants from further violations of these rights.

Seitz’ suit is the more complicated in that he seeks to encompass discrimination against students because of race, color, or national origin, and also because he invokes Section 504 of the Rehabilitation Act of 1973, a civil rights statute that “prohibits discrimination on the basis of disability in, among other
things, federally funded educational activities and ensures that students with disabilities are identified and evaluated and receive an appropriate public education.”

By alleging violations of Section 504, Seitz has constructed a “Section 1983 complaint” (42 U.S.C. Section 1983). As I understand it (and I’m not an attorney), this can open the way for a claim of monetary damages for that subclass. There is no mention of Section 504 in the first suit (ND).

In arguing for regular students enrolled in public schools, Seitz argues that parents expected a certain program from the DOE, and so might have skipped enrolling their children in charter or private schools, for example:

These individual Plaintiffs, the class, and subclasses they represent are all children and parents who relied on the DOE's representation of the length and character of the school year in deciding where to enroll their children, foregoing the opportunity to enroll their children in alternative schools such as charter schools within the public educational system or at private schools.

Seitz observes:

56. In comparison to other states, the average school year is 190 days, and Hawaii now has the shortest school calendar in the nation. Other states have imposed furloughs within their elementary and secondary education systems, but these furloughs are not on instructional school days. Most school districts, including California, Florida, and New Mexico, are requiring teachers to take unpaid days off.

57. No school system in the nation is taking as many furlough days as the State of Hawaii. Furloughs of schools in other states are limited to fewer than five days for the school year.

There are consequences. For example:

Because the number of instructional school days falls well below the WASC Commission's requirement that schools have a minimum of 175 class days, the acceptance of [plaintiff] ANOLANI's transcripts for admission into a college or university is jeopardized by the DOE's furlough program.

Seitz alleges discrimination against certain minorities who attend schools identified as failing under No Child Left Behind. It’s worth reading these arguments in his complaint, below.

Seitz’ complaint includes similar “stay put” claims as the first suit.

How will the court treat these? Could they be combined, at least with regard to special needs students? Stay tuned.


ND et al v. DOE (unofficial copy)

DK et al v. Lingle (unofficial copy)



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