Sunday, August 29, 2010
by Larry Geller
You may have read about this long-running and difficult lawsuit in the Star-Advertiser (Autism suit might bring more claims, 8/28/2010). The suit alleges that the Hawaii Department of Education was “deliberately indifferent” to the needs of two sisters with autism, Natalie and Michelle H. This is a complicated lawsuit, but winning it could provide funds to care for the sisters, who may never be able to communicate or live independently.
The DOE stole their chances of speaking many years ago.
I don’t think I have to say “allegedly” because the DOE has admitted it was negligent. Check out page 17 of the lawsuit. Here’s the snip:
The DOE admits it was merely negligent. It’s an important distinction under the law and relates to damages. While nothing is certain in court, it is very likely that the parents may prove their case.
It’s sad that during the lifetime of the Felix Consent Decree even the named Felix plaintiffs could not get services for their children without, in at least some cases, taking action against the DOE separately from Felix. Other families fought individual battles throughout the lifetime of the consent decree. The number of parents filing for due process hearings was so large on an annual basis that Hawaii must have held some sort of record. And the parents won their cases with few exceptions.
The word “Fail” has taken on a new usage as a noun on the Internet, whether it is Twitter’s “Fail whale” or any of several websites specializing in humorous photos. Sometimes it is modified by “epic,” as in “epic fail.” Humor is fine, but the Hawaii DOE continues to face regular and numerous due process hearings because it continues to fail special needs students, and there’s nothing funny about it. Indeed, it is an “epic fail.”
This case originated years ago, but the neglect of other students goes on even today. It’s an ongoing Fail that in the end ruins lives, burdens families, and costs taxpayers in legal and settlement fees.
The legal document linked above is easy reading, but it’s a horror story. Had the two children been provided services that the DOE provided to others however reluctantly, the outcome for the girls could have been very favorable. Autism must be remediated as early as possible. The brain changes rapidly in young children.
It’s important to understand that Natalie and Michelle are by no means the exception. Hawaii’s Department of Education is far from welcoming for children with disabilities and for children with autism in particular. For various reasons, few families advance into court. Perhaps some children do get services that allow them to benefit from their education, but there are certainly many who do not.
“Deliberate indifference” is hard to prove, so I don’t know if I would agree with the article headline that there might be more claims. There is also a tight statute of limitations. Perhaps there will be a few similar cases. Each one would be hard-fought.
What this state may need is a Felix II lawsuit, this time done differently. The focus should be on the DOE’s process, which still centers on opposing parents who somehow figure out what their children need. While one family may prevail, the DOE will simply try to deny services to the next student. Neither the federal nor the state law provide overall remedies. The law must be enforced one student at a time by their families, and winning any one case changes nothing at the DOE.
Parents are not supposed to be experts on special needs education, that’s a DOE responsibility under the law.
The DOE has become very experienced at defending themselves, making it harder for parents to effectively challenge them. The challenge usually requires that parents engage attorneys who are similarly versed in disability law, and these are few in Hawaii (or in other states). The DOE, on the other hand, just dips into the taxpayer till to engage expensive lawyers to defend some of these cases. That’s right, you and I pay for the DOE’s wrongdoing. The state Attorney General also defends the DOE’s wrongdoing instead of defending the children. The Legislature each year apportions money to pay for the suits, the cost doesn’t come out of the DOE budget.
Interestingly, there are no consequences for principals or DOE officials who cheat children out of their future, as appears to be the case here. No one will lose their job, no one will be fined or even charged with a crime. If the lawsuit succeeds, it will be the amorphous “DOE” that will be found to be at fault, not those individuals whose decisions caused the damage.
In fact, a whole lineup of individuals were responsible. Until there is individual accountability, it’s hard to see how the children will get better outcomes.
I think you could prove deliberate negligence if you could show that the negligence was a product of budget dilemmas. That would make poorly resources disability services a specific choice.
I've heard of some cases, in other states, where the school system claims lack of funds to provide the services. Under the law, the services must be provided, and a claim of poverty is no excuse.
While you make great points I just can't help but think about the kids who are being short changed because the cost of the Felix consent decree. This coin has two sides and resources are not limitless. What's the answer? I really don't know, but the answer is not written in black or white.
No other kids were shortchanged by the Felix Consent Decree. It was a separate budget (EDN150).
Besides, would you say that white children were shortchanged when schools were integrated? It is the right of every child to get an education.
so, so true. My husband and I are having our own dealings with the DOE/district and so far have come up short on good solutions and long on excuses.