Friday, June 14, 2013


Will the state learn from the 9th Circuit ruling against the DOE?

In a response to questions from Civil Beat about the ruling, the DOE said that it is reviewing the appellate decision and that the department intends to comply with all federal requirements.

From the case: Doug C. v. State of Hawaii Dep’t of Education

Individuals with Disabilities Education Act

Reversing the district court’s judgment, the panel held that the Hawaii Department of Education violated the Individuals with Disabilities Education Act by holding a student’s annual individualized education program meeting without the participation of a parent.

The panel held that the Department of Education denied the student a free appropriate public education by holding the IEP meeting without the parent even though the parent did not affirmatively refuse to attend, but rather actively sought to reschedule the meeting in order to participate. The panel remanded the case for the district court for further proceedings regarding the parent’s entitlement to reimbursement of private school tuition.

[A full copy of the order is attached below]

by Larry Geller

This case validates the rights of students with disabilities not only in Hawaii but in every state in the 9th Circuit. Attorney Keith Peck has done thousands of students a service with his persistence in this case.

There’s nothing at all funny about the DOE trying to deprive yet another special needs student of the education that the federal Individuals with Disabilities Education Act (IDEA) guarantees. Nothing. The DOE has ruined the lives of countless students and their families since ‘way before the Felix lawsuit was filed in 1993.

But the pull-quote above, the last line in yesterday’s Civil Beat article Court Ruling: Hawaii DOE Failed Autistic Student (Civil Beat, 6/13/2013) brought a tear to my eye.

The DOE has so blatantly failed to comply with federal court orders that the Felix Consent Decree ran for more than a decade, and before and during that action the DOE was found in contempt of court several times—for not complying with orders of the court.

Central to this case was whether the DOE can hold an IEP ( Individualized Education Program) meeting without the parent present. Speaking generally, the school district is required to make every reasonable effort to accommodate parents’ schedules so that they may attend. The consequences for holding a meeting without the parent present, which the DOE still does when it can, are that the school often unilaterally changes the student’s program to the school’s advantage. If the parent is aware enough, this will result in due process hearings and even court cases (such as this one)—which the DOE most often loses. When they lose, taxpayers pay attorneys fees and court costs, but the student has often lost an irreplaceable chunk of education.

When the DOE is taken to court, it is represented by a deputy attorney general. In some states, the AG represents the people, but in Hawaii, it is the attorney for the state agencies, so the AG’s office ends up defending DOE wrongdoing. It could, of course, have advised the DOE beforehand what the requirements of federal law are. If the AG would do that, then I suspect a majority of DOE due process hearings and court cases could be avoided.

Reading the “breaking news” article on the same case in the Star-Advertiser earlier brought an illustrative case to mind. My memory of what transpired in 2001-2002 is no longer perfect, but fortunately there are documents available.

Reading this Order Imposing Sanctions one could question the quality of the deputy AGs representing the DOE and their supervision. Basically, the court had ordered that several school officials and a service provider be present in court for a hearing. They were not present.

The court found the defendants (Paul LeMahieu named for the DOE) in contempt, and additionally, the deputy was sanctioned $1500 by the court.

What the order does not say, and what I have to rely on memory for, was that at the time of the hearing, the DOE was holding an IEP meeting without the parents. So the school officials were at the IEP meeting while the parents were in court.

That takes a lot of nerve, but clearly, the DOE thought it was ok to hold that meeting.

I obtained a partial transcript from a hearing in that same case at the time (transcripts are expensive!) which illustrates the quality of representation that was provided by the deputy AG. Draw your own conclusions (as the court later did). I should say that this may be an extreme. Sadly, competent representation runs up bigger bills when the case finally wraps up, which is something of a paradox… if you’re a taxpayer.

You’d think that the DOE would carefully instruct its staff on the conduct of IEPs, but it has also been a pattern that violations will be repeated over and over again (heck, there are only so many ways to violate the law…). In fact, a parent can take the DOE to a due process hearing and win, but the same violation will be committed later with another student.

So we will have to see if, indeed, the DOE follows through with it’s “intention” to “comply with all federal requirements.” That would be very refreshing (and save taxpayers bundles of money).

Meanwhile, again, Mr. Peck has done a service for all special ed students in the 9th Circuit.


Three Hawaii special education cases were heard in the 9th Circuit on Wednesday in Honolulu. A good writeup can be found at this link. Two of the three were consolidated, and the third heard separately. They involved the so-called “age-out” issue, and how long the DOE is required to provide supports to students with disabilities. It’s a bit complicated.

Download 12-15079 9th Cct Order 20130613 special ed case from Disappeared News


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