Ruling puts the onus on isle parents versus DOE

The Supreme Court decision affects special-needs kids

>> Custodians suspended after alleged harassment

PARENTS of special-needs schoolchildren likely will find it more difficult to challenge the adequacy of education services offered by the state Department of Education following a U.S. Supreme Court ruling yesterday.

In a case involving a Maryland school district, the court ruled 6-2 that parents who demand changes to their child's education plan, known as an Individual Education Program, or IEP, must bear the burden of proving that the plan is inadequate.

"That's very unfortunate, especially in Hawaii. It really hurts those who don't have attorneys or advocates helping them," said Eric Seitz, the attorney who first filed suit for the plaintiffs in 1993 in the landmark Felix case, which forced Hawaii to improve state special-education services.

The Maryland case has been closely watched in Hawaii by parents eager to retain what they gained through Felix, which led to 12 years of court supervision over state programs for special-education students ranging from the physically impaired to those with learning disabilities and autism.

Felix prompted a dramatic increase in state spending on such programs before court oversight was lifted earlier this year.

GEORGE F. LEE / GLEE@STARBULLETIN.COM A disappointed Naomi Grossman, president of the Autism Society of Hawaii, was turned away from yesterday's meeting of the Board of Education's Committee of Special Programs due to procedural reasons.

EDUCATION OFFICIALS welcomed the ruling.

"In any other dispute resolution system, the burden of proof is always on the one complaining," said Debbie Farmer, administrator of special-education programs for the Department of Education.

IEPs are arrived at with input from parents, teachers and school administrators. If a dispute arises, parents may request a due-process hearing, and the department must pay their legal fees if parents win. The department spent more than $1 million last year on related legal fees, Farmer said.

In some cases a loss by the department could result in a child being sent to private school at state expense.

"If a parent says, 'We don't think you're providing an appropriate education' but that this other school can, I think it's fair to say, 'OK, parents, prove that to us.' But instead the burden has always been on the DOE," she said.

The plaintiffs in the Maryland case were the parents of a special-education student who rejected the education program put forward for the son by the Montgomery County school district. They enrolled him in private school, later seeking reimbursement from the district for his tuition.

The majority, in an opinion by Justice Sandra Day O'Connor, rejected the argument that the school district bore the burden of proof in showing the IEP was adequate.

The ruling's net effect in Hawaii will be to discourage many parents from "going up against the DOE," said Clarrie Selbe, mother of a 7-year-old autistic boy.

"Challenging the DOE on this stuff can be terrifying. Parents are going in against the experts, and they really have to think like attorneys or experts in educational policy," said Selbe, who is "emotionally spent" by an ongoing wrangle with the Department of Education over a proposed change in services for her son.

SINCE PARENTS absorb their legal expenses when they lose IEP challenges, the ruling could especially hurt low-income and immigrant families that do not have the stomach -- or wherewithal -- for a fight with the department, said Naomi Grossman, president of the Autism Society of Hawaii.

"It's essential that parents will have to ask for discovery material going into due-process hearings, and they're just not equipped to do those things themselves," she said.

"But if an attorney says ahead of time that they need a retainer before taking on the case, what parent from Waianae is going to pay that and gamble and say, 'Let's go for it!'?" Grossman said.

Official challenges to Department of Education services remain rare.

The department received just 250 requests for due-process hearings during the 2004-05 school year, less than 1 percent of the 22,711 students in special-education programs, according to figures presented yesterday to a Board of Education committee.

However, Farmer and Dr. Paul Ban, director of the special-education services branch, could not answer committee members who wanted to know the cause of disputes so that any systemic problems could be addressed.

Board member Garrett Toguchi asked why the department lost 53 percent of its due-process hearings last year.

"If we're doing what we should be doing and providing the services we're supposed to, then we shouldn't be losing any of them," he said.

Custodians suspended after alleged harassment

The state Department of Education has placed two custodians -- one of them a convicted sex offender -- on administrative leave after a Big Island middle school girl reported a custodian had made a lewd advance at her last week.

The girl's description of the perpetrator fit two custodians, so school authorities put both on leave to protect students while the matter is investigated, said Gerald Okamoto, assistant superintendent for human resources.

One of them, a male hired in 1992, was discovered recently to have been convicted years ago for a sex offense but was allowed to continue in his job due to an "excellent" work record, Okamoto said.

However, the department continued looking for "every possible angle" to find grounds to dismiss him, Okamoto said.

It planned to take action after it learned that he had failed to register with the state's online sex offender registry, but the man subsequently defused the issue by registering on June 17, Okamoto said.

Okamoto said the department is now "actively pursuing" the student's allegations.