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The Honolulu Advertiser
Posted on: Wednesday, June 20, 2001

Special-ed student gains court victory

 •  Legislators subpoena Felix decree monitors

By David Waite
Advertiser Staff Writer

A federal judge's ruling this week could clear the way for parents of special-education students who have not gotten what they are entitled to under federal law from Hawai'i's public school system to sue the state for huge amounts of money, attorneys familiar with the case said yesterday.

But Charles Fell, a senior deputy state attorney general, said his office "has substantial reason to doubt" that parents of special-education students can sue for "punitive" damages, even when they prevail in court cases against the state Department of Education.

Federal Judge David Ezra ruled Monday that the state Department of Education demonstrated "deliberate indifference" toward the needs of a student with Down syndrome who attended public school on Moloka'i for 16 years, allowing for an award of damages.

Stanley Levin, a Honolulu attorney who represented the parents and the student, identified only as Aaron L., said the family alleged that Moloka'i's severe shortage of special-education teachers, speech therapists and educational aides resulted in Aaron's being denied the appropriate public education that he is entitled to under federal law.

School administrators, particularly at Moloka'i High School, were aware of the problems, Levin said, but did nothing to remedy them, leading Ezra to conclude that the public school system had treated the boy with deliberate indifference.

Greg Knudsen, spokesman for the state Department of Education, said department officials had not yet seen the ruling and could not comment on it.

At a press conference yesterday, Levin said tests have shown that Aaron, who is now 19, stopped progressing in school more than six years ago, and was essentially "warehoused" in a "self-contained classroom" during that time.

Instead of building on the boy's enthusiasm for sports and his participation in Special Olympics, no effort was made at Moloka'i High School to ensure that Aaron was able to travel from the special-education classroom to the gym class, Levin said.

The boy's mother discovered he wasn't participating in the class when she went to the school campus and found her son hiding in the bushes, crying, Levin said.

"The gym teacher didn't even know his name," Levin said.

Ezra on Monday granted a request on behalf of the boy and his parents for partial summary judgement in the case.

Levin said that means the only issue to be decided at trial, which is scheduled for September, is the amount of damages to be awarded to the boy and his family.

Levin declined to say how much the family will ask for, but said it could be substantial — in the hundreds of thousands of dollars.

The amount the state must pay the family could be offset by the DOE's willingness to provide the kinds of educational services that Aaron did not receive, Levin said. Services that were lacking included speech therapy, job skills instruction, a job coach and behavioral modification classes.

Levin said he defines "deliberate indifference" as "knowing there is a problem and not doing anything about it."

He said the boy's father, a firefighter, and mother, a social worker, didn't know what to ask for and were not told what services were required to be made available to Aaron until recently.

He said the ruling will not open a floodgate for other parents of special needs students to sue the sate.

"Every one of those families would have to show 'knowing indifference,'" Levin said. He has three other cases in which he will attempt to show indifference was the cause of the state failing to meet educational needs required under federal law.

Eric Seitz, an attorney in the so-called Felix v. Waihee civil lawsuit that aimed at making the state comply with federal standards for educating special-needs students, said he and others have warned state officials for years that parents of such students might someday successfully sue for large amounts, including punitive damages, unless substantial improvements were made.

"When we started this (lawsuit), we knew a lot of kids were not getting the services they were entitled to get," Seitz said.

He said the suit was filed in hopes the state would fix the system of education for special needs students, not in hopes of suing the state on behalf of each child who wasn't receiving appropriate services.

"We have said all along it is up to the individual parents to advocate for their children. The state has known all along that it is not in compliance," Seitz said.

"In my view, the amount the Legislature is complaining about having to spend to fix the system may be dwarfed by the amount the state has to pay out in damages," Seitz said.