Court rejects bid to keep schools open


POSTED: Friday, October 23, 2009

Hawaii's public schools shut down today on their first furlough Friday, displacing more than 170,000 children, after a federal judge rejected emergency requests from families to keep schools open.

U.S. District Judge David Ezra said yesterday afternoon that he had virtually no choice in the matter, since it was too late to call back teachers and staff to handle students if he ordered the state to open schools.

“;We have a train which is going down the tracks, and like most trains it takes some time to stop and we do not have that time,”; Ezra said. “;I will not issue an order that will put children in jeopardy.”;

While he turned down a temporary restraining order, he noted that he has not decided the merits of the two lawsuits facing the state. Ezra set a hearing on motions for a preliminary injunction at 8:30 a.m. Nov. 5. By then two furlough Fridays will have taken place. The third is scheduled for Nov. 6.

;[Preview]  Despite Hearing Furloughs Will Go On

A federal judge refused to order schools to open tomorrow, but the effort to force an end to furloughed days will go on.

Watch ]


“;I am not suggesting for a moment that the court has reached any conclusion,”; the judge declared, adding that he would proceed with “;all deliberate speed.”;


The state has decided to shut schools for 17 Fridays between now and the end of the academic year, and another 17 next year. Teachers and administrators are taking the days off without pay to help balance the state budget. Cafeteria workers and custodians will report to duty because their union has not agreed to furloughs.

Hawaii's decision to shut campuses for nearly 10 percent of the 180-day school year has ignited a vigorous protest among parents concerned about their children's education, and sparked headlines around the country. While some furlough days have been ordered for school staff in other states, none are being taken on instructional days.

Two lawsuits filed in U.S. District Court are seeking an injunction to block the furloughs. One suit represented nine students with autism, while the other was a class-action suit filed on behalf of 11 regular- and special-education students.

The first lawsuit, filed by attorneys Stanley Levin, Susan Dorsey and Carl Varady, contends that the furloughs represent an illegal change in special-education services the disabled children receive. Federal law allows changes to such “;individualized education programs”; only if parents agree or a hearing officer or court finds the change appropriate for the child.

The second lawsuit, filed by attorney Eric Seitz, contends that shutting down public schools for so many days will cause irreparable injury to students by depriving them of an adequate education. It also raises claims of breach of contract, discrimination against certain groups and violations of special-education law and equal-protection provisions.

In court yesterday, Attorney General Mark Bennett argued that the state is acting responsibly in the face of a dire budget situation. And because its decision to shut schools affects the entire system, he said, it does not amount to a change in individual programs mandated for special-needs children.

“;Our state is in the most serious fiscal crisis in our history,”; Bennett said. “;We are facing a budget deficit of enormous proportions. Everyone in this state is affected by this crisis.”;

“;Economic or policy-driven systemwide changes do not effect a change in the individual placement,”; he said. “;We continue to believe that these lawsuits have no legal merit.”;

But Varady, representing special-needs children, said the reduction is a dramatic and unilateral change to agreements made with parents of special-needs children for instruction and services.

“;For the state to argue the 17-day reduction of the school year is not a substantive change is absurd,”; Varady said.

Chrystal Schaffner, one of the plaintiffs in Seitz's suit, attended the hearing and said she understood why the judge felt he could not order schools to open today. But she hopes he will act soon for the sake of all children, including her sons, ages 3 and 5, who both have autism.

“;It's important to try to cut down as many furlough days as possible,”; Schaffner said. “;For my kindergartner this is the first year he's being mainstreamed. Every minute with his peers is integral for his education. He's losing instructional time, and he's losing time with his peers.”;

In a declaration with the court, she wrote that “;there are few if any private schools that are willing to take my children due to their special needs.”;

Superintendent Patricia Hamamoto welcomed what she called a “;prudent”; decision by the judge, and said the department will keep working with parents to make sure their children get the necessary services.

The judge did not tip his hand, but said the cases raise important issues that deserve consideration.

“;Serious questions have been raised,”; Ezra said. “;The case is certainly not a frivolous one.”;