Tuesday, August 21, 2012


DOE pays school, so is in “substantial compliance," no contempt finding this time… but stay tuned

by Larry Geller

So what happened with the lawsuit pursuing Hawaii’s Department of Education for payment of tuition for a private school student? (See: Taxpayers pay for DOE wrongdoing, 8/14/2012.)

I attended the hearing this morning in federal court. It was a mob scene at the security station since the stop-rail trail was scheduled for the same time, but I got through the crowd in time. Whew! I’m sure the rail people had more fun than I did, but the objective of both, at least in part, is the appropriate use of taxpayer funds.

It appears that the DOE has recently paid most of what they owe.

In a nutshell, during the hearing this morning, most of the dialogue was between Judge Susan Oki Mollway and Deputy Attorney General Carter Siu. Siu persisted in pushing the unfairness of the rates charged to DOE by Loveland Academy, and Mollway pushed back, saying that Loveland wasn’t even a party in this case, and that the DOE could bring that particular issue up before her or another judge in a separate case. She said it was a contract matter.

Still, because the DOE paid at least part of what they owe, they were in substantial compliance and so Mollway dismissed all the motions, but without prejudice. So if the DOE falls behind in the future, the plaintiffs can file the motions anew.

Of course, the education and future prospects of a student hang in the balance of this case, and of course the DOE still has Loveland Academy in its crosshairs.

Under federal law, the DOE must provide required services itself or purchase them. One way or the other. If it doesn’t like the private schools, it can just provide the same services directly. It really is as simple as that. A 1993 Supreme Court case established the school system’s responsibility.

When the Felix Consent Decree was plodding along, Hawaii had around 141 students placed on the Mainland, separated from their families, because the DOE would not provide services in Hawaii. Loveland and other private schools were created at the request of the Department of Health, under pressure from the Court, in an effort to bring these students back to Hawaii. Regular reports had to be filed identifying the students still placed outside of Hawaii.

That has not stopped the DOE from waging war against the schools, which results in removing options for students who need specialized services. DOE’s weapon of mass destruction is to withhold payment as long as it can, as in this case.

In the end, when DOE must pay up, there are legal fees and court costs attached. These are charged to us taxpayers, not to the DOE’s budget. The Legislature apportions money for settlements and legal expenses and the tax man picks our pockets to pay it all.

To my knowledge there has never been a complete accounting of the avoidable expenses charged to taxpayers by DOE’s failure to pay its obligations under the law. Nor has the DOE or its attorneys stepped in to correct violations of law on the part of principals who still believe that they can approve or deny services to special needs students at their whim.

And finally, principals are not held individually liable should they repeatedly violate federal law and run up taxpayer expenses. Should that happen one day, the picking of our pockets would probably stop pretty quickly.

In today’s case, if DOE resumes withholding payments, there will likely be new motions and more court fees and legal expenses. Stay tuned.


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