By Alice Keesing
Advertiser Education Writer
A federal judge yesterday warned legislators to cut the politics and find the money for special education, or risk putting the state in a "catastrophic position."
During his more than one-hour lecture, U.S. District Judge David Ezra asserted his court’s power and took lawmakers to task for recent suggestions that they may try to stem the flow of money to special education and challenge his authority in the Felix consent decree case.
"This is not a case in which politics should play a role, Ezra told a full courtroom, with no legislators present.
Ezra called yesterday’s hearing in response to comments from the governor and lawmakers about the runaway costs of providing the special-education services demanded by the federal-state consent decree.
"There’s no politics involved," House Speaker Calvin Say responded last night. "It’s just accountability — accountability of how much monies are being spent. The bottom line is: Is the money being spent getting to the children?"
Lawmakers have become increasingly uneasy about the cost of complying with the Felix consent decree, a 1994 order by Ezra to improve services to children with mental disabilities. The cost for special education has risen more than 400 percent since the Felix case was filed in 1993. This year, it is expected to reach $363 million.
Ezra said the state has only itself to blame for the huge increases in spending because it ignored the needs of special education children for years and is having to catch up.
He said it’s time to "lift the shame" of the consent decree, which resulted from Hawai‘i’s special needs children "receiving substantially underfunded, substandard care not in compliance with the laws of this country."
But legislators say they want assurances the money is being well spent before they sign off on the latest request, which the Department of Education and the Health Departments say they need to meet special education costs for the rest of this year. Say has said the object is to "hold their feet to the fire."
But yesterday Ezra asked whose feet are being held to the fire.
"If the state legislators, in a misguided attempt to hold feet to the fire, refuse to find the monies ... then I will be in a position I have tried to avoid since 1993 and that is to bring the full force of contempt down on the state and take actions that would divest the state of control," he said.
Ezra already has found the state in contempt for not improving special education services as he had ordered in 1994. But instead of penalizing the state, he granted a reprieve, giving the heads of the education and health departments extraordinary powers to cut through some laws to get the job done.
But with the new deadline in December, Ezra warned he is running out of options if the state fails again.
He could divert all money Hawai‘i gets from the federal government into special education or appoint a special master to take over the education system. And while confirming the Legislature’s right and responsibility to oversee state programs and expenditures, Ezra said the best way for the state to end the consent decree is to comply.
"I am concerned, deeply concerned that for reasons unfathomable to me, that after all the money that has been spent, after all the progress that has been made, after all the effort that been expended ... that all of this is going to be thrown away at the eleventh hour because of some concerns some may have that the money isn’t being spent wisely."
Once relieved from his court’s oversight, the state can take time to examine such issues, he said.
But Say questioned that. "The ironic thing ... is everything is being driven by just compliance; it’s not being driven by getting services to the child," he said.
Ezra also tried to head off a battle between state and federal powers, saying any such attempt by the state would be costly and unsuccessful.
"This is the United States of America," he said. "State law is subservient to federal law."
In addition, in agreeing to the consent decree, the state waived any right of appeal, he said.
However, Say said lawmakers are exploring their options.
There are questions, he said, about the separation of the three branches of state government as well as the line between state and federal authority. One issue is whether the federal court can force the state to raise taxes, an option for paying for the consent decree.
"The Legislature was never involved in any of the discussions and formulations and development of the consent decree," he said. "All we are handed is the bill."
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