Editorial
Frustration masks objections to Felix decree

The preliminary draft of a report released by the joint Senate-House investigative committee on compliance with the so-called Felix consent decree is a litany of frustration that masks a lack of clarity about its purpose.

Several times since the joint committee began its hearings in June, we have expressed our own concerns about its intentions. As we said in this space just last Sunday, before release of its draft report:

"We continue to wonder, for instance, whether state lawmakers now investigating the Felix effort are trying to make it more accountable even as they properly lend it full support, or whether they want to find a way around the obligation imposed by federal law as interpreted by Judge Ezra."

Trying an end run?

There's language in the draft report to suggest the committee is intent on the latter course:

"The committee has authorized taking court action to reverse Judge Ezra's rulings," the draft says. "The committee seeks to have him disqualified based on his conflict of interest in ruling on his own appointees and in making statements intended to bolster his own credibility and that of his appointees. His public comments have raised questions about his impartiality."

To lean on an overused cliche, it appears the committee is blinded to the forest due to its abundance of concern for the trees. A partial list of the trees discussed in the draft report:

• Unclear Felix compliance requirements.
• Poor fiscal management by the departments of Education and Health.
• Difficulties encountered by the committee to obtain information.
• Conflicts of interest and abuses of court-ordered "super powers."
• Too much money going to plaintiffs' attorneys.
• An "environment of waste and profiteering" engendered by the Felix decree.
• A "lack of concern" about potential fraud.

And much more.

These are indeed troublesome matters that should be dealt with if they are substantiated. But the draft report falls far short of this.

But the "big picture" surrounding the Felix decree has been and continues to be that the state all but ignored the Individuals with Disabilities Education Act when it was passed in 1975.

Finally, in 1994, it entered into a consent agreement to upgrade special education services after it was successfully sued by students who had been denied services required by law. But the court has found that the state to did little to honor its promises until Paul LeMahieu became schools superintendent in 1998.

Reasons ignored

The committee is correct to be concerned by the mushrooming cost of Felix compliance — from $181 million in 1994-95 to $302 million last year. But it fails to note the two basic reasons for the surge in spending:

• The number of children in the Felix class has grown from 2,894 at the outset to 11,842 last year. Experts tell us that this higher number of children is proportionally comparable to other states. That means that before Ezra took action, thousands of afflicted children were falling through the cracks in Hawai'i.
• The state's prolonged failure to comply with the law forced Ezra to threaten, cajole and set deadlines. He found the state to be in contempt of court, and at last he ordered implementation of special education programs on a crash basis.

Yes, that's the most expensive way to do it, but the state had 25 years to comply in any more cost-effective way it chose, and did not.

In no way does all of this suggest that the Legislature should forego its responsibility to ensure that money is properly spent, policies well managed and laws are complied with. The draft reports contain numerous intimations of impropriety; where they can be verified, they should be corrected and even prosecuted if warranted.

Basic obligation

The bottom line here, however, appears to be that at least some lawmakers are frustrated by their inability to find sufficient revenues to fund other needed state activities, and the $300 million going annually to special education is the biggest piece of discretionary funding in sight.

Lawmakers can — and wherever possible, should — reduce that figure by insisting on strict accounting and verification. But they cannot honorably duck the basic obligation it represents.

The state has been wrong on Felix for many years; correcting that wrong is not an option.