Third furlough lawsuit claims rights violation


POSTED: Thursday, November 05, 2009

A third federal lawsuit has been filed to block Furlough Fridays, this one claiming that the decision to shut public schools for 17 days violates students' rights to due process under the U.S. Constitution.

The suit was filed on behalf of eight disabled students, but the arguments would apply to any student. The case, naming Gov. Linda Lingle and Schools Superintendent Patricia Hamamoto as defendants, will be heard Monday in U.S. District Court before Judge Wallace Tashima, along with the other two lawsuits already filed over the furloughs.

The latest complaint contends that shortening the school year by 17 days without giving adequate notice and opportunity for public comment violated students' rights to due process of law.

“;We have a constitutionally created educational system and a mandatory school year,”; said Carl Varady, one of the attorneys for the students, who were not named publicly. “;Why is that different from any other state-created benefit like welfare or public health? The Supreme Court has recognized that you cannot take away health care and other social welfare benefits without due process. Why can you take away school?”;

Sandra Goya, spokeswoman for the Department of Education, said yesterday she was unable to comment on the suit and referred calls to Attorney General Mark Bennett. The attorney general's office did not respond yesterday to requests for comment.

The suit was filed Monday and assigned to Tashima the next day as a related case to the previous suits.

“;The 2009-2010 school calendar providing for 180 days of instruction created a liberty and/or property interest protected by the 14th amendment of the U.S. Constitution,”; the suit contends. “;As recipients of mandated public school benefits in Hawaii, Plaintiff Children have due process rights to notice and an opportunity to be heard before Defendants can terminate benefits.”;

Varady, and attorneys Stanley Levin and Susan Dorsey, also filed a previous suit on behalf of students with autism, arguing that the decision on furloughs broke federal laws on special education by unilaterally changing individual education programs.

Another case, filed on behalf of regular and special education students by attorney Eric Seitz, challenges the furloughs on various fronts. It alleges that the move denies students an adequate education, constitutes a breach of contract, discriminates against certain groups and violates equal protection provisions as well as special education law.

Bennett has rejected those arguments as lacking legal merit. He said in court that the state is facing its worst fiscal crisis ever and must cut spending. He argued the decision to shut down schools on Fridays applies to all children equally and does not constitute a change in educational placement for students with special needs. Hamamoto has said the department is working diligently to ensure that services to special education students are not disrupted.

U.S. District Judge David Ezra has been appointed as a special master to try to resolve those cases out of court.