Monday, September 12, 2011


No one wants a trial in this case but the judge

by Larry Geller

Judge David Ezra wants a trial, but neither the state Department of Education nor the plaintiffs in a case heard today really would choose that route. When the order comes down, it appears it will not be a ruling on the motions presented, but instead will call for this special ed case to go through the full discovery process and present solid evidence at trial.

There were three hearings in federal court today related to special education. Several students’ futures hang in the balance. Special education hearings don’t occur quite every day on average, but they are far from uncommon in Hawaii’s federal court.

The decades-plus Felix case did educate Judge Ezra, if not the DOE, on the requirements of the IDEA (Individuals with Disabilities Education Act). Today he tapped into his experience to project that it would go better should the case be appealed, if a trial were held now to establish the evidence.

Today’s case was an “age-out” case. The DOE had been routinely approving non-disabled students who wished or needed to remain in school until age 22, but discriminated against special needs students.

The Hawaii Disability Rights Center along with Alston Hunt Floyd & Ing filed a class action complaint against the DOE to compel it to provide special education services until a student becomes 22 years of age. It would also enjoin the state from enforcing Act 163, passed by the last legislative session, which appears designed to continue the discrimination by permitting students to continue their education only by entering the adult education system. The adult system does not provide IDEA services.

The suit, brought in U.S. District Court, would enjoin the State from enforcing Act 163. It could provide compensatory education for those denied the ability to stay in school.

Judge Ezra noted that if the case were appealed, it would be examined by the 9th Circuit de novo if he ruled based on the attorney’s statements of law. That is, the appellate court would consider the issues as though for the first time. They could well remand it right back to Judge Ezra for trial, to develop an evidentiary basis for a decision. The standard of review for findings of fact is such that they cannot be reversed unless the trial judge has made a “palpable and overriding error."

So why not hold a trial right now, he suggested.

The trial itself, following discovery and filing all the briefs and motions, should not take much time.

None of the attorneys looked particularly happy with this, but that’s the direction it will probably go.

A sideline to this case: Judge Ezra observed. after the DOE attorney made some kind of derogatory remark about the adult education system, that “it is a good thing there are no reporters present in the courtroom…I don’t think [Governor] Abercrombie would agree with the statement that the state would consider the adult education program to be of little value…”

Well, there was at least one reporter in the room. Over to you, gov’.


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i think there's a federal law which requires them to set a firm trial date after so many delays passed by the former republican congress. can't think of its name though

So what was the derogatory remark and who made it?

The remark was made by the deputy AG, but he was not standing near a microphone so I couldn't hear it. I asked a couple of people after and got slightly different reports. But the judge heard it, and I was able to note down his reaction.

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