Posted on: Friday, September 7, 2001

LeMahieu may ask court to intervene in contract stalemate

By Alice Keesing
Advertiser Education Writer

State schools chief Paul LeMahieu yesterday said he is exploring the possibility of asking the federal court to help implement the teachers contract.

LeMahieu made the comments after a status conference in which the court's special master, Jeffrey Portnoy, laid out exactly what the state must do to avoid the appointment of a receiver over the special-education system. In setting the deadlines, Portnoy instructed Department of Education and Department of Health to immediately apprise the court of any impediments they face in achieving the court's deadlines.

Given recent statements that the unsigned teachers contract is hindering state efforts to recruit and retain teachers, LeMahieu said that may be something for which he will ask for the court's assistance. The court is requiring that the state increase the number of licensed or certified special-education teachers to 85 percent by Nov. 1.

Currently 67 percent of special-education teachers are licensed or certified, and the department estimates it can reach 70 percent by November.

LeMahieu said he is not sure if 85 percent is "humanly possible" given that Hawai'i is trying to attract teachers during a growing nationwide shortage. In addition, he told the court that the Department of Education has lost a higher-than-usual number of teachers to resignations and retirements.

And he suggested that the "turmoil and anguish" created by the unsettled teachers contract may have "encouraged some number of folks to just throw up their hands and walk away."

LeMahieu said 148 teachers either resigned or retired from the DOE in July, compared with 94 in the same month last year. That number could be inflated because some teachers had delayed their retirement while they waited for the new contract, he said.

Portnoy agreed the loss of qualified teachers is a concern. However, he said it's unclear if the federal court has the power to intervene in the contract dispute.

The contract, which was intended to help the DOE's recruitment efforts, remains unsigned while the state and teachers union argue over whether a professional bonus was intended to be paid for one or two years. The dispute is before the Hawai'i Labor Relations Board.

Portnoy also laid out what else the state must do to comply with the Felix consent decree. 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.

The state has missed other deadlines set by the court, and U.S. District Judge David Ezra has said that this is the last chance the state will be given. Portnoy repeated the court's warning that it will begin the process of appointing a receiver over the special-education system if the state misses any of the deadlines.

"There will be no extensions of any date — none," he said.

Among the requirements:

• By Nov. 1, the DOE must have 27 of its 41 school complexes pass the intensive service testing that measures how well they are helping special needs children. So far, 32 complexes have passed the test.

• By Dec. 15, all 27 of those complexes must pass the second stage of full compliance, which involves a presentation to court monitor Ivor Groves. Nine complexes already have met this benchmark.

• By March 31, the DOE must have 90 percent of its special-education teachers licensed or certified statewide. Individual schools should have 75 percent licensed or certified teachers.

The deadlines are challenging, Portnoy said, but "doable."

"The court is convinced that, absent significant interference, which the court will not tolerate, the DOH and DOE will get to where they need to be," he said.

During yesterday's conference, Portnoy signaled the court's continuing concern over the Legislature's investigation into the Felix consent decree, asking if the investigation is having a negative effect on the departments' work.

The investigation has had an impact, replied court monitor Groves, although it is difficult to quantify. LeMahieu added that while he does not question the Legislature's right to conduct such an investigation, it has not been done in a spirit of collaboration or openness.