Wednesday, February 10, 2010


Furlough Fridays case heard by 9th Circuit judges

by Larry Geller

Before the Storm Three judges of the 9th Circuit heard N.D. v. State of Hawaii DOE this morning in Honolulu. The oral arguments lasted approximately 40 minutes. A decision will come later.

Attorney Carl Varady argued for the children and Attorney General Mark Bennett spoke for the state. The three-judge panel consisted of Judges Jerome Farris, Dorothy W. Nelson and Carlos T. Bea.

Use this player to hear the complete session. The audio is surprisingly clear.

(or click here to download)

The crux of the case is whether the state is obligated to follow “stay put” under the IDEA (Individuals with Disabilities Education Act). “Stay put” is imposed by the IDEA to protect students while a due process hearing is held to enforce their individual education programs. The state argues that “stay put” was not intended to keep schools open, and the parents hold that the state cannot unilaterally alter the children’s programs which have been agreed upon until the hearings are completed.

Carl Varady began:

Appellants in this case are facing a fiscal crisis that we do not dispute, but bereft of other ideas, the State of Hawaii has chosen, unilaterally, to shorten its instructional calendar for the 2009-2010 school year by 17 days.

This lead to the first question: “What do you mean unilaterally? Can’t they do that?”

As the arguments progressed, it was not clear to me that the judges understood fully that each IEP (Individualized Education Program) might be viewed as a contract and that the contract cannot be fulfilled if days are taken from it—unilaterally. That is, without parent consent at an IEP meeting.

Further along, it was clarified that should the court decide in favor of the plaintiffs, there isn’t a requirement that the DOE open all schools and abolish Furlough Fridays, only the five schools needed to fulfill the programs of these plaintiff students would have to remain open.

In practice, though, others may bring similar cases at other schools.

In addition to the oral arguments, both sides briefed the court, and so even listening to the attorneys speak does not give a complete understanding. For example, they referred quickly to some other cases in the 9th Circuit and in other jurisdictions that were detailed in the written arguments but that a listener would not necessarily understand.

There may be implications for other school districts in the 9th Circuit and across the country depending on how this case is decided. Should the court find for the State, other school districts may feel free to cut school days without renegotiating students’ IEPs.

The judges will probably issue a ruling without much delay, but there is no timetable for their decision.


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