Suits filed over Furlough Fridays


POSTED: Thursday, October 22, 2009

The state is facing two federal lawsuits that seek to block Furlough Fridays in Hawaii's public schools, one representing nine students with autism and the other on behalf of regular and special education students.

Attorney General Mark Bennett had a succinct response yesterday to the legal action. “;We don't believe that the lawsuits have merit and we're going to defend against them,”; he said.

Both suits are set for a hearing today at 2 p.m. before U.S. District Judge David Ezra. The plaintiffs are seeking temporary restraining orders as well as declaratory and injunctive relief.

A class-action suit filed by attorney Eric Seitz and colleagues yesterday contends that the state's plan to shut down public schools for 17 days between now and the end of the school year will cause irreparable injury to students.

The suit was filed on behalf of 11 students age 3 to 17 in regular and special education statewide. It names Gov. Linda Lingle, schools Superintendent Patricia Hamamoto and Board of Education Chairman Garrett Toguchi as defendants in their official capacities. The Department of Education and the governor's office referred requests for comment to the attorney general.


If successful, the suit would immediately affect the students involved in the case, Seitz said. “;Our hope is it would extend to everybody similarly situated because otherwise that would be discriminatory,”; Seitz said.

The wide-ranging complaint argues that Furlough Fridays deny students an adequate education, present a breach of contract, discriminate against certain groups, and violate special education law as well as equal protection provisions.

The complaint noted that parents enrolled their children in public schools on the assumption that the school year would be 180 days, and then the state decided unilaterally to cut 17 days this school year plus another 17 days next year. Other states have imposed furloughs but not on instructional days, the suit noted. The Western Association of Schools and Colleges Accrediting Commission requires that schools have a minimum of 175 class days, it said.

“;When kids transfer to other schools or go to colleges elsewhere, they're going to have accreditation and transfer problems,”; Seitz said.

“;Hawaii law requires you to send your kids to school and you can be prosecuted if you fail to do so,”; he said. “;We believe that implies that they have to provide schools that have a competitive quality with schools in other states.”;

The suit makes a case on behalf of parents who could have chosen private schools, but enrolled their children in public schools expecting a reasonable education, as well as others who can't afford a private education and may be disproportionately affected by the shutdown.

“;When you cut educational opportunities, the impact of that falls on lower-income and predominantly local people,”; Seitz said. “;The disparate impact is on communities generally of color.”;

The suit also argues on behalf of children with disabilities, who are legally guaranteed certain educational and mental health services. And it contends that charter school students are being deprived of equal protection because the Department of Education is withholding funding for their special education teachers.

A separate civil rights lawsuit on behalf of nine students with autism was filed in U.S. District Court shortly before midnight Tuesday by attorneys Stanley Levin and Susan Dorsey, of the Levin Education Access Project, and attorney Carl Varady. It names the state Department of Education as the defendant, and identifies the children only by initials.

The suit alleges that the furloughs represent an illegal change in special education services the disabled children receive. Federal law allows changes to such “;individual education plans”; only if parents agree or a hearing officer or court finds the change appropriate for the child.

;[Preview]  School furlough court battles rage on

Families of special education students are challenging the state on the move to furlough school workers to save money.

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“;Parents were never consulted before these significant changes were imposed, and, even today many of them have not been told how and by whom their children's programs will be implemented on Friday when the schools are closed,”; Levin said. “;All they are being provided are vague reassurances that 'everything will be OK.'”;

The suit seeks to maintain the status quo in education for the children while the dispute over furloughs is resolved in court. Varady, another attorney for the children with autism, noted that simply providing services to students at home on furlough days wouldn't satisfy their educational requirements.

“;Especially with autism, the objective is to build communication and social communication in particular,”; he said. “;And opportunities to do that with regularly developing peers in a structured environment is a skill that is identified in the individual education plan as one of the components the child should be working on and that the DOE should be facilitating.”;

The plaintiffs in the class-action suit filed by Seitz are Oahu residents Melvin and Cheryl Kellet, acting on behalf of children age 12 and 6; Kauai resident Patricia Coon, on behalf of children age 16, 15, 14 and 6; Oahu resident Crystal Schaffner, on behalf of children age 5 and 3; Big Island resident Sue Garry, on behalf of children age 17 and 15; and another Oahu plaintiff who was not named, acting on behalf of a 10-year-old child.