Judge allows
suit for damages
regarding education

Ezra's ruling for one family
leaves the state open to more suits
for special-needs students

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By Lisa Asato
Star-Bulletin

A federal judge's ruling that lets the parents of a special-needs student sue the state for out-of-pocket expenses and punitive damages may open a "Pandora's box" of baseless lawsuits, a state lawmaker said yesterday.

U.S. District Judge David Ezra ruled on Wednesday that Patricia and Guy Nahale may proceed in their suit seeking to force the state to pay for therapy for their 6-year-old daughter, Amber, who is autistic and requires 20 hours of services a week. The Nahales also have an autistic son.

The complaint argues for lost wages, emotional distress and punitive damages. Ezra rejected the state's argument that individual families were not allowed to sue because they already had their chance under the initial federal suit filed in 1993.

That class-action suit filed on behalf of Jennifer Felix claimed the state violated federal law by failing to provide adequate services to special-needs students. Costs for the resulting Felix consent decree, which aims to improve mental-health and educational services, have soared to $350 million for 11,000 children from $45 million for 4,000 children in 1995.

The state had argued that the decree precluded individual lawsuits, such as the Nahales'.

Ezra, however, disagreed in his ruling Wednesday.

"The decree deals with systematic problems in state educational and mental health programs -- it does not remedy the individual problems of specific class members," he ruled.

"(Ezra's ruling) could affect everybody who is Felix-class whose educational services were deliberately or intentionally stopped," said Stanley Levin, attorney for the Nahales. The affected people "can sue the state for damages and emotional distress if the action was intentional," he said.

Carl Varady, an attorney who represents families of special-needs children, said the decision could affect thousands of Hawaii families.

He said he is handling about six similar cases like the Nahales', and numerous others have been filed in federal court or are developing. One case is scheduled to come before Ezra on June 10, he said.

Meanwhile, Shelby Anne Floyd, attorney for the children in the Felix case, which is independent of the Nahales' lawsuit, said the ruling is significant in two ways.

First, it gives parents the right to seek punitive damages under a rehabilitation act that prohibits discrimination against the disabled. "You can not only get damages under that act, you can get punitive damages," which she said "is a very important weapon to get people to do what the law requires."

This may be the first time that a judge in Hawaii has ruled that punitive damages may be sought for educational issues, she added.

Second, and perhaps more important, parents have a right to seek damages -- even if it is their child who is disabled -- if there is "deliberate indifference" to their child's needs, Floyd said.

"This is potentially very far-reaching, because it is often the parents who are the ones who are hurt when the school system doesn't do its job," she said.

"This is a way for parents to assert claims that could result in better services for their children.

"I would expect the (state Department of Education) to be very concerned about that ruling."

Schools Superintendent Paul LeMahieu said the ruling allowing individual families to seek damages was not surprising. "I think that's just a statement of law that we've mostly known to be an accurate enough statement all along," he said yesterday.

Levin said the case is set for trial on June 19, but that date will probably be pushed back, as the state intends to appeal Wednesday's ruling, he said.

The state Attorney General's Office did not return phone calls for comment yesterday.

House Education Chairman Ken Ito (D, Kaneohe) disagreed with the judge's ruling, adding that Ezra should visit the schools and see for himself what is going on so he can make enlightened decisions.

"I think they should have an avenue for parents (to sue), but I think this is going to open up a Pandora's box. ... People sometimes sue just because they're mad.

"If it has any value, by all means, if the child is not getting proper care; but parents have to take responsibility, too -- it's not all on teachers or schools."