Furloughs carry special legal risk


POSTED: Sunday, October 18, 2009

Parents naturally are upset about schools being closed for 17 Fridays this school year and again next year, depriving their children of what they thought would be full school years. A sweeping class-action lawsuit threatened against the state is not warranted because the state had little choice in achieving a balanced budget, but a more confined lawsuit must be avoided.

The threat was made in a letter to state Attorney General Mark Bennett by lawyer Eric A. Seitz, who sued the state Department of Education 16 years ago on behalf of Jennifer Felix and other special-needs students. State costs in compliance with a consent decree stemming from that lawsuit totaled more than $1 billion.

In his letter, Seitz said he had received “;an overwhelming number of requests”; to file “;a Felix-like lawsuit”; to keep the schools from initiating the Friday furloughs, with teachers agreeing in a new contract to go without pay for those days.

That contract and other proposals call for the furloughs so the state can meet state constitutional requirements of a balanced budget during the economic slump.

Seitz says reducing the number of days of the school year has a “;disparate”; effect on low-income families, “;local ethnic communities”; and single parents because they cannot afford to enroll their children in private schools. The notion that such families would have standing in a class-action lawsuit against the school system coping with recession-caused budget constraints is a stretch.

However, his suggestion that children with special needs should not be deprived of services required by federal law deserves careful examination. Seitz is well-versed on those federal requirements.

Lawyer David Rosen, a public school parent who is upset about the reduction of school days, points out that “;there's no federal law protecting the regular students in the state Hawaii,”; but he says the DOE has an obligation under the state Constitution.

Schools Superintendent Pat Hamamoto told the Star-Bulletin's Susan Essoyan that stopping the Furlough Fridays at this point is “;highly unlikely;”; the first one comes this week. The labor contract ratified by the Hawaii State Teachers Association calls for the furlough days, which total nearly 10 percent of the 180-day school years.

Seitz suggests that the administration and state legislators “;seek creative solutions”; to avoid “;a virtual attack on public education.”; Indeed, school officials should seek ways to assure compliance with federal requirements for providing education to children with special needs to avert another expensive lawsuit.