Judge rejects injunction bid, urges parties to settle suits


POSTED: Tuesday, November 10, 2009

Parents who want their children back in school on Furlough Fridays lost a round in federal court yesterday, but one attorney plans to appeal the ruling, and the judge urged both sides to settle the issue before it goes to trial.

“;I think this case should be resolved as quickly as possible because there's nothing you can do to bring back the Furlough Friday after it's gone by,”; said visiting Judge Wallace Tashima, of the 9th U.S. Circuit Court of Appeals, who heard the case in U.S. District Court in Honolulu. “;I think frankly the plaintiffs are suffering irreparable harm.”;

But he turned down their bid for a preliminary injunction, saying he thought it unlikely they would prevail in their lawsuits to stop the state from shutting public schools statewide for 17 Fridays this year.

The state and the Hawaii State Teachers Association agreed to the furloughs, effectively shrinking the academic year by nearly 10 percent, to help balance the state's budget. Each day without school saves the state roughly $4 million, according to Attorney General Mark Bennett.

The deal was struck in September, after the school year started, and parents of both special- and regular-education students filed suit to block the plan. In his ruling, Tashima focused on students with special needs, who have specific protections under federal law. He agreed with Bennett that the decision to close schools did not constitute a change in their individual education programs, which would require prior parental approval.

“;It's just an overall administrative decision on how to run the schools,”; Tashima said. “;Not what to do with handicapped children, but how to run the schools generally. The changes made here are not changes in the educational placement of any plaintiff.”;

State officials welcomed the decision, saying the schools are doing the best they can in a trying situation.

“;The Department of Education does not take pleasure in Furlough Fridays, but the department is acting legally in response to what is an unprecedented financial crisis,”; Bennett said.

;[Preview]  State's Furlough Fridays Will Go On

A federal judge refused to put a stop to furlough Fridays, so public school students will continue without school several Fridays a month.

Watch ]


“;I understand that parents want their kids to get the best education possible,”; he added. “;Parents, citizens, if they believe things have to be changed, they have the right to engage in the democratic process.”;

Schools Superintendent Pat Hamamoto said discussions would continue on how to restore instructional days. Tashima urged the parties to continue working with federal Judge David Ezra, an appointed special master, toward a settlement. Otherwise the issue will go to trial, with a scheduling conference set for Jan. 25.

Schools have already shut down for three Fridays so far. The fourth is scheduled for Nov. 20.

Attorney Carl Varady, who represents students with autism, said he planned to appeal Tashima's decision. He said he would also consider filing suit in state court on the grounds that the state violated its own rule-making provisions in imposing the furloughs.

“;What's going to prevent the state from cutting more days?”; he said. “;Where are we as a community if the first thing we do when we're in a tight financial situation is to cut the schools? Other countries in the developed world are providing more, not less instructional time.”;

Tashima denied motions by attorney Eric Seitz, who represents regular- and special-education students in a separate case, against the state for what Seitz called “;unethical”; conduct in connection with students who filed suit. Bennett bristled at the accusations, calling them “;frivolous, baseless allegations against teachers, principals and attorneys.”;

The judge also dismissed Seitz's claim that Bennett faced a conflict of interest in representing both the Department of Education and the governor.