Judge hands schools final special education deadline
| • | Nearly half not in compliance |
By Alice Keesing
Advertiser Education Writer
A federal judge yesterday gave the state one final chance to improve special education services before he takes over the system.
By giving the state until Nov. 1, U.S. District Judge David Ezra granted the state a little breathing room — the plaintiff attorneys in the Felix consent decree had asked him to appoint a receiver immediately.
But most agree the Department of Education and the Department of Health face a tough task in meeting the court's deadline.
Shelby Floyd, one of the attorneys who brought the Felix case eight years ago, said the extension is just delaying the inevitable.
"I think that they will have a very difficult time meeting those benchmarks. I mean, they're already a year over," she said.
Hawai'i's special-education system has been under federal court oversight since a 1993 class-action lawsuit that accused the state of not adequately educating children with mental disabilities. The state signed the consent decree in 1994, agreeing to improve services. Schools may be required to provide services ranging from counseling to physical therapy to transportation to and from school.
Floyd and fellow attorney Eric Seitz agree the state has made significant progress, but there are still areas where children are not getting the help they need.
"The court has seen that in certain cases ... there has not only not been progress but there has been backsliding," Floyd said.
Seitz yesterday praised the work of schools chief Paul LeMahieu and health director Bruce Anderson. Instead he pointed the finger at Gov. Ben Cayetano and the Legislature for delays in meeting the consent decree.
Contract dispute
The ongoing deadlock in the teachers contract is causing "irreparable harm" to efforts to attract and retain teachers, he said, and the Legislature's investigation into special education spending is "intrusive and threatening."
Ezra acknowledged those concerns, but in issuing his ruling before a packed courtroom, he said he is trying to walk "the fine line" between federal and state authority, balancing the state's sovereign rights with its obligation to comply with federal laws.
"There is absolutely no question but that the state is in noncompliance with federal law," he said.
Ezra last year found the state in contempt for not improving services as he had ordered. At that time he gave the state another 18 months to get the job done. This time, he suggested there will be no more chances.
In just 10 weeks, the DOE must have two-thirds of its school complexes in full compliance and must meet about eight other benchmarks. If the state meets that deadline, it will have until March 31 to reach "substantial compliance" — a three-month extension beyond the previous December deadline.
However, if the state fails on Nov. 1, "the machinery to place the United States government in charge of the special education system will move forward," Ezra said.
Schools chief LeMahieu said he needs to see the details of Ezra's order before predicting how attainable the deadline is.
"I'm optimistic if he was both serious and correct when he said it's doable," LeMahieu said. "I know the system is ready to do it."
But he agreed it could be a difficult challenge.
After seven years under the consent decree, only nine of 41 school complexes are in full compliance. In the next 10 weeks, the department will have to bring 18 more up to par.
Twelve complexes already are halfway there, having passed the intensive service testing that measures how well they are helping special needs children. Those 12 complexes only have to undergo a final presentation to Ivor Groves, the court monitor who oversees the state's progress in the Felix case. However, to meet the court's requirements, another six will have to pass the testing and the presentation.
"I think if they pull out all stops and get out of the box and do what needs to be done that there is a possibility that they can do it," Groves said. However, it likely will mean increasing manpower, some of which may have to come from the Mainland, he said.
Seitz believes that the state's prospect of success is "iffy."
"That's going to be very hard," he said, pointing out that the complexes most likely to succeed were tested first.
"The ones that are remaining are the ones in which there are very low expectations," he said.
Credentials goal
In addition to bringing the complexes into compliance, the state must meet about eight other benchmarks by Nov. 1. Those involved with the case agree the most difficult will be bringing the number of licensed special-ed teachers up to 85 percent.
About 77 percent of special ed teachers are now licensed or credentialed. Seitz believes the fracas over the unsigned teachers contract will lower morale and contribute to the state's difficulties in attracting and keeping teachers in the classrooms.
"I cannot for the life of me understand why the governor and the attorney general and anybody else involved in that has allowed that situation to get to the point that it has," he said. "Unless they do a major turnaround and exercise appropriate leadership, it's not going to happen and we will have a receiver."
If the dispute affects efforts to comply with the consent decree in the next few weeks, Seitz said he will again ask Ezra to step in.
The governor declined to respond to Seitz' comments, but earlier in the day he said the state has made good progress in meeting conditions of the consent decree.
"I think that it would be a mistake for the federal government to take control over the education system, and I don't think Judge (Ezra) wants to do that," he said. "I think that if we're able to have an atmosphere of calm in the federal court, then he will see that there has been progress made, notwithstanding all of the controversy that we've seen."
Although Ezra did not spell out what the powers of a receiver would be, Seitz said there is general agreement among the parties that the person would have to have the power over personnel and money, among other things.
LeMahieu said his worry is that a receiver could be focused only on special education programs, to the detriment of the rest of the school system.
"To have access to resources and to have authority over the system but to be responsible for only part of it is a very dangerous formula," he said. "So if somebody comes in who feels no obligation to the well-being of the system as a whole, the potential to do harm so that they can succeed in this one area is a real concern."
Nearly half not in compliance
By Nov. 1, the Department of Education must show that 27 of its 41 school complexes are providing services to special-needs children as required by federal law. Only 9 complexes have reached full compliance. Another 12 are in provisional compliance, leaving 20 (or 49 percent) that still have not met the grade.
A complex demonstrates provisional compliance by scoring at least 85 percent on a test that measures how well it delivers services to special-needs children. The complex then must make a final presentation to attain full compliance.
A complex consists of a high school and its feeder intermediate and elementary schools.
In full compliance
• Windward district: Castle
• Leeward district: Nanakuli, Waipahu
• Honolulu district: Farrington
• Central district: 'Aiea
• Hawai'i district: Waiakea
• Kaua'i district: Central Kaua'i, East Kaua'i, West Kaua'i
In provisional compliance
(Passed service testing, but require a final presentation)
• Windward district: Kailua, Kalaheo
• Leeward district: Campbell, Pearl City
• Honolulu district: Kaimuki, Kalani, McKinley, Kaiser
• Central district: Leilehua, Moanalua, Radford
• Hawai'i district: Hilo/Laupahoehoe
Not in compliance
• Windward district: Kahuku
• Leeward district: Wai'anae
• Honolulu district: Roosevelt
• Central district: Waialua, Mililani, Kapolei
• Hawai'i district: Konawaena, Kealekehe, Ka'u, Kohala, Pahoa, Honoka'a, Kea'au
• Maui district: Baldwin, Maui High, Moloka'i, Lana'i, Hana, King Kekaulike, Lahainaluna
