Attorneys for seven autistic students asked a federal appeals court yesterday to let them go back to school on Furlough Fridays, arguing that Hawaii's decision to shut down campuses has illegally disrupted their education.

Three judges from the 9th U.S. Circuit Court of Appeals will rule later on the case, an appeal of a Nov. 9 District Court decision that rejected a request to immediately stop Furlough Fridays.

The lower court had concluded that the state's decision to close schools for 17 Fridays this school year was a system-wide, administrative decision that didn't target individual disabled students or alter their educational placement in violation of federal law.

During yesterday's oral arguments, judges questioned the precedent the court might set if it granted the students' appeal to go back to school.

“;I'm worried about the slippery slope situation,”; said Senior Circuit Judge Dorothy Nelson. “;The IDEA (Individuals with Disabilities Education Act) is intended to protect disabled children. But is it intended to give them veto power over every system-wide change?”;

Because of a budget shortfall, the state and the teachers union agreed to cut the school year by 10 percent, from 180 days to 163, giving Hawaii the shortest school year in the nation. Despite an outcry from parents and students, efforts to restore instructional time have failed so far, and the 11th Furlough Friday will be tomorrow.

  Ongoing debate on Furlough Fridays gets heated

 

As students face another Furlough Friday in two days, parents are more frustrated and so are their elected representatives.

[ Watch ]

 

Judge Jerome Farris noted that the District Court had concluded that instituting Furlough Fridays was “;the least of the bad alternatives.”;

But the plaintiffs' attorney, Carl Varady, told the court that the state could have dealt with the budget shortfall without closing schools on instructional days. He asked the court to restore the full school week for the seven children until the conclusion of their due-process hearings at the Department of Education.

“;The question for the court is whether the students should be riding at the front of the train that the governor and Legislature are watching hurtle over the cliff,”; Varady wrote in his argument.

“;Hawaii elected officials have constitutional tools at their discretion to divert that train to safety by, among other actions, covering the deficit; but they have stood by and done less than nothing, while the train wrecks in front of them.”;

He submitted depositions showing the students' behavior had regressed as a result of Furlough Fridays, including self-injurious behavior, tantrums, heightened anxiety and lost opportunities for inclusion and socialization vital for autistic children. But the state challenged those documents.

Attorney General Mark Bennett argued that the students are getting the education they were promised because their schools have made other arrangements to provide services that would normally be available on Furlough Fridays. He said that none of the students' educational plans call for a specific number of school days in a year.

“;We're not denying the children the special education services they deserve,”; Bennett said. “;We're rescheduling them.”;

The case, N.D. et al v. State of Hawaii, is not a class-action lawsuit and would affect only the seven students and the five public schools they attend. The students are identified only by their initials. If they prevail, and their educational plans require mainstreaming with regular-education students, it could mean that nondisabled students might also be called back to their schools.

Attorney Eric Seitz, who represented other students in a separate federal suit challenging Furlough Fridays, said that case is pending while those students pursue their claims in administrative hearings within the Department of Education.

“;We're going to take that back to federal court,”; he said.