Posted on: Friday, June 1, 2001

Special education takeover sought

By Alice Keesing
Advertiser Education Writer

In the wake of a federal court ruling that clears the way for families to sue the state for services, attorneys today will file a motion asking the court to take over Hawai'i's special education system.

The motion is an indication that events may be coming to a head in the long-running Felix case, which orders the state to improve special education services.

Seven years after he issued the Felix consent decree, U.S. District Judge David Ezra has said he is running out of options. He already has found the state in contempt for not meeting an earlier deadline. And he fought a war of words with legislators recently, warning he would step in if they did not stop playing politics with Felix financing.

And now, arguing that the teachers' strike has made it impossible to meet the court's December deadline, the state wants another six months to get the job done.

But the plaintiff attorneys in the Felix case argue the state was already out of compliance before the strike and has repeatedly failed to meet the court's deadlines. Although there has been significant progress in the past two years, attorneys say students still are denied services, and they want a receiver to take over.

"(An) important aspect that we think the court has to reckon with is the Legislature is deliberately sabotaging the efforts to achieve compliance, and there is no way to protect the progress we have made, and any future progress, without a receiver," said attorney Shelby Floyd.

The Legislature delayed financing requests from the departments of Education and Health while lawmakers scrutinized the millions of dollars being spent on Felix. Legislators have said they want to be sure the money is spent wisely and reaches the children who need it.

State schools super intendant Paul LeMahieu believes the Department of Education can finish the job by June 2002, and points to Ezra's recent comments praising the progress of the departments of education and health.

Ezra will hear the motions June 22. If a receiver is appointed, that person would have all the powers of the federal court to bring Hawai'i into compliance with federal special education law. Ezra also has the power to fine the state or require it to find the money needed to improve services.

"A receiver could create, in essence, a firewall between the departments and the Legislature or the executive branch — anybody who was intending to put the brakes on progress," Floyd said.

Meanwhile, another related ruling by Ezra this week could put even more pressure on the state and expose it to million-dollar lawsuits.

Ezra ruled that a family can sue to force the state to pay for therapy for their autistic daughter. He also said the parents can seek punitive damages for the emotional distress they may have suffered while trying to get services for their 6-year-old daughter.

"That can get conceivably expensive," Floyd said. "That's the potentially big numbers. I think this is a major arrow in the quiver of parents as far as getting services to kids."

The state had argued that lawsuits by individual families should be barred because the state already is subject to the Felix consent decree. It also said the state should be immune based on a recent Supreme Court ruling in relation to the Americans with Disabilities Act.

But Ezra disagreed, dismissing the state's arguments and allowing the case brought by Guy and Patricia Nahale to proceed.

Guy Nahale, who is a Honolulu Police Department sergeant, called the ruling fair.

"I think we're on our way to making things right," he said. "What we would like to see out of this is a system where special-needs children will get the services that are needed. It's not about money. It's about getting the services to the children."

Nahale said he made repeated requests to the state since 1997 to finance his daughter's education, but received no response. Patricia Nahale quit her job to care for her daughter, and the family sold her car, held garage sales and borrowed thousands of dollars from family and friends to help pay for services for their daughter.

In an earlier settlement offer, the Nahale's asked the state for $1.8 million. Their case is scheduled to begin June 19.

In court documents, the state argued that allowing emotional distress damages in such cases "without carefully circumscribed standards, will adversely affect the State of Hawaii's ability to provide special education programs to the thousands of students in the state who need such services."

Attorney Jeff Portnoy, the court-appointed master in the Felix case, said while the ruling gives Felix-class parents a right to pursue claims, it "does not open the floodgates" for every parent to successfully bring a damage action against the state. A plaintiff must prove "deliberate indifference," meaning the state showed either bad faith or gross misjudgment in handling a case, Portnoy said.

The Department of Education is working to create the system that will help prevent situations such as Nahale's, LeMahieu said. And he hopes the ruling does not undercut that effort.

"The award of punitive or compensatory damages may provoke recourse to the courts well in advance of the system handling its problems," LeMahieu said. "That would be too bad."

Advertiser staff writer Brandon Masuoka contributed to this report.