Saturday, November 07, 2009


Separation of powerlessness, or earned helplessness

by Larry Geller

Hawaii’s trashing of its children’s education is still achieving national publicity. Two letters to the editor kept the discussion going in the New York Times today.

The latest word on Furlough Fridays is that Judge David Ezra, acting as Special Master to mediate between the parties in the various lawsuits, has failed to come up with a solution. Why am I not surprised—he only had a couple of days. Give him 10 years and we might have something. (For those new to federal intervention in Hawaii’s failures, the Felix, State Hospital, and prison lawsuits all took far too much time. During the course of Felix, for example, innumerable children continued to be denied services while the parties met in sessions closed to the public. Ezra still talks repeatedly, when he has an audience in the courtroom, about parents’ expectations of “Cadillac” services although it took him a decade to get the broken down school bus to move.)

But anyway, Judge Ezra seems powerless to resolve this.

Nobody seems to like the Friday Furloughs and blame is flying on who is responsible for the destruction of our children’s future. I haven’t heard a convincing argument that they will be better off for missing school, so if only the Governor, Legislature, or anyone would step forward and produce a fix. But no.

Perhaps the Governor and our legislators are simply awaiting the federal court’s ruling on this. It seems that we are unable to take care of our own children without Uncle Sam reading us the consequences. That process starts 10:00 a.m. Monday with a hearing in front of Judge Wallace Tashima, a senior U.S. Ninth Circuit judge from California, on attorneys’ requests for a preliminary injunction to stop the furloughs. The hearing is open to the public, just come down to the federal courthouse at 300 Ala Moana Blvd. I’m sure the parents’ attorneys would appreciate the show of support.

I’ve heard arguments around the separation of powers, that the Legislature can’t act because only the Governor can release money. Which is true. I’ve heard from lawmakers that nobody can do anything, the problem is between DOE and the union. They are all helpless.

We are preserving the separation of powerlessness since no one is willing to step forward to undo the damage. Even in the face of embarrassment in the worldwide media, our government can’t end the Furlough Fridays.

It could cost us large federal grants for innovation in education as well, but again, it seems we’ll do nothing. Unless it is considered “innovative” to let a judge from the 9th Circuit come to Hawaii to improve our children’s education. No one has tried that before.

And who will pay the legal bills for all this? It’s not just the cost of attorneys fees in these court cases. The bill could be much bigger than just legal fees since the judge might rule that special needs children are being deprived of services.

Who pays that? We taxpayers do.

I think that since taxpayers are always available to pay for the state’s mistakes and wrongdoings, the state is under little pressure to do things right. No state official goes to jail when dams aren’t inspected, and no state official is fined when the time comes to compensate the victims or families of those who were killed by the flood waters. No state employee will suffer because they may have broken federal law in depriving special needs children of services.

Instead, each year the Legislature passes a bill to settle claims against the state. The claims are just listed up along with the dollar amounts for each. The bill always passes and so we pay. Here’s one from the 2009 session.

It would be radical, but suppose public officials were held somewhat liable economically for the cost of their negligence? Please don’t tell me that the Department of Education did not know that Friday Furloughs would adversely affect special needs students and that a court action must inevitably follow. The Governor probably had no clue, but the DOE is very experienced in this.

So imagine just for a moment that DOE officials would fined for their violations even as the Legislature apportions the bulk of the claims settlement out of taxpayer funds.

The principle could be more universally applied. For example: the sidewalks near where I live are full of cracks, big holes, and other irregularities. Sooner or later someone could be injured, and they will sue. The City or State will of course pay, charging the bill to us taxpayers, while still not fixing the sidewalks.

But suppose the head of the Department of Transportation would have to fork up something out of his own pocket in that event. Would the sidewalk get fixed? I think it would.

If the possibility of fines loomed over our state officials, I bet the furlough problem would be fixed real fast.

There oughta be a law.


A nice turn of phrase, Larry, when you write:

"We are preserving the separation of powerlessness since no one is willing to step forward to undo the damage. Even in the face of embarrassment in the worldwide media, our government can’t end the Furlough Fridays."

However, the collective bargaining process was (for good reason) never designed to accommodate forces, be they "powerless" or powerful players, that might wish (or who may feel compelled) to insert themselves into the CB process to undo an agreement (i.e. what you describe as "the damage"). Be careful what you wish for.

If our Executive, Judicial or Legislative branch actually held (or exercised without actually holding) such unilateral power to void a collective bargaining agreement, THAT would be the cause of even greater "embarrassment" at the hands of the worldwide media.

I wouldn't suggest voiding a collective bargaining agreement. I would, however, suggest that entering into that agreement in the first place was a collosal mistake.

Given that such an agreement was made, we are still faced with whether to leave the situation as-is, or to undo it somehow. Since federal law may be violated, it might be undone tomorrow, and we'll just have to see how that affects teachers and their pay. Can a judge order teachers back to work? Maybe. What if they decline? Who knows. More likely he will order the state to do something.

If there is any order tomorrow, we'll just have to see how it shakes out.

Regardsless, Hawaii is probably in for more adverse publicity as a result of the initial blunder.

Refresh my memory, please, Larry.

The last time the Federal Court intervened in Hawaii special education did it order the DOE to spend a certain amount of money, and/or to provide a certain level of services? Did the earlier intervention order immediate implementation of a remedy, or did the DOE take steps to comply in a subsequent CB agreement (or academic year)? To carry out the ruling, was the CB agreement modified or re-opened for modification? If the latter, was it re-opened with the consent of all the parties involved, or by judicial fiat?

In Felix, yes, the state was required to provide a certain level of services. When the Legislature balked at providing the money, Judge Ezra pointed out he could attach state assets.

It was only "relatively" immediate. The DOE/DOH/court pretty much wasted the first three years, but towards the end (May 2000), Ezra gave DOE and DOH heads "superpowers" to bypass state procurement and collective bargaining laws.

Really? Wow. Attachment of assets? Superpowers to bypass procurement and CB? Those options were never exercised, though, were they? Are those powers still available for instant use? Evidently not, or it could be that having the power and choosing to exercise it are not the same...

Wasn't the crux of the Felix litigation the argument that the special education students were getting less education than the other students? The current situation seems different, insofar as all students are impacted by furloughs equally.

Felix was v e r y complicated. I hate to summarize it in few words, but most of the time was spent developing a system of care. Hawaii simply did not have a way to deliver services to special needs students that the law required.

In the current situation, sped students each have an IEP which specifies what education and services are to be provided, and the setting (placement) in order for the student to receive a Free Appropriate Public Education (FAPE). Regular ed students have no such "contract" with the schools (I've always thought that they should!). Most often the frequency or quantity of services is specified. For example, speech therapy 1/2 hour a day for a total of xx minutes per week. So if a day is taken away on Friday, and if Monday is a holiday, the minutes won't be delivered. That's perhaps not the best example, but not too bad either.

For some students there is a question of maintenance, sometimes called regression, though it is all very complicated. Too many days off and the lesson is gone. This is common in the autism spectrum though not limited to those students.

So special ed students aren't affected equally. A good hunk of their program can be cut off, according to the student and the IEP. In that case, federal law is violated, and we end up in court. With the cuts, many students will not be receiving FAPE.

Of course, DOE knows this. Pat Hamamoto is a veteran of hundreds of IEPs. So I wonder what they were thinking.

I forgot to answer the Superpowers question.

Yes, they were exercised. I the case of DOE, they contracted with a Mainland firm to hire teachers and place them in Hawaii. This caused great resentment among the non-Mainland (HSTA) teachers. The imports were said to not have been treated well, and few if any stayed on. They were very highly paid and if I recall correctly (I could be wrong) had their transfer expenses paid also.

I assume you went to the hearing. Are you going to write a follow-up post? I read an article that said the judge (among other things) noted that the furloughs harm all students equally and (from what I could tell via the articles) never mentioned IEP.

I got bogged down with other things and haven't had a chance to follow up. The newspapers did a good job in general, so it's not like the news has disappeared, really. I'll try to catch up soon.

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