Judge sees progress in Hawai'i's special education
By Jennifer Hiller
Advertiser Education Writer
A federal judge ruled yesterday that the state has reached substantial compliance with the Felix consent decree, the agreement that has imposed federal court oversight on Hawai'i's system of special education for nearly a decade.
The ruling was the first formal indication that the Department of Education and Department of Health could be released from the watch of the federal court system that has cost the state hundreds of millions of dollars and dominated the education agenda here since 1994.
For the first time, U.S. District Judge David Ezra said that the state has come far enough as of June in improving its special-education programs so it can now begin working to sustain the system it has built.
Despite the progress that has been made, though, he said he has reservations about the ability of the state to sustain services to children, and said the court will continue to monitor the DOE and DOH for the next 18 months at the same level it does now.
A lower level of monitoring and eventual release from the decree could begin as early as March 2004.
The court gave the state and the plaintiffs' attorneys 90 days to submit a mutually acceptable plan for how the system of special education will be sustained.
The system has been under the federal court's watch since the state signed the Felix consent decree in 1994.
The consent decree ended a 1993 lawsuit by the families of Maui student Jennifer Felix and other children, which had charged that state's special-education services were abysmal and did not meet federal law.
Ezra said that in the early days of the consent decree the state had a special-education program in name only and did little more than warehouse children.
"The system had essentially no effective special-education system when this case began," Ezra said yesterday.
In 1994, just 6 percent of the state's students were considered eligible for special education, a rate far below the national average, and the state spent $115 million a year.
Today 11.53 percent of students are eligible and the state's special-education budget has grown to $340 million. More than 95 percent of the students in the state attend schools recommended for full compliance with the consent decree.
Ezra said there are troubling signs that show there is still a need for court monitoring.
Parents in increasing numbers have had to resort to due-process hearings to get services for their children, while those complaints should be decreasing, he said. The Legislature has not demonstrated a willingness to provide all the money needed for education and health services, according to the judge. And a number of Mainland experts who were brought to Hawai'i to work on building the special-education system have since left, Ezra said.
"The court has no interest in stepping away from this case," Ezra said.
For years, Ezra has exchanged barbs with state officials over the Felix case and he has questioned the way in which the issue of special education has become politicized.
Lawmakers are in their second year of a special investigation of Felix-related spending, trying to determine where state money went and whether it reached the children for whom it was intended.
The attorney general's office also has made allegations that the special-education system is riddled with fraud. One person who worked for a special-education service provider has been convicted of falsely billing $1,800.
Ezra said the court is concerned only with its commitment to provide money for special education. The judge also said it would be impossible to satisfy all parents because the federal law provides only for appropriate services — not the best services money can buy — even though he would like to see the best special-education system possible.
"The state of Hawai'i cannot now nor will it ever be able to afford for special education children the very best," Ezra said. "That's a harsh reality."
Parents of special-needs children who attended the hearing said they were disappointed with those comments.
Naomi Grossman, president of the Autism Society of Hawai'i, said she is concerned that the department is reducing the level of services for special-education students.
"This isn't about having a Cadillac," she said. "This is about keeping the basic level of services we have now."
The state failed for several years to make satisfactory progress toward fulfilling the consent decree, and court monitor Ivor Groves in 1999 developed a set of 141 benchmarks that outlined a plan for the state to improve its special-education services. The benchmarks require tracking everything from student discipline to the number of qualified teachers in the classroom.
The DOE will continue to track those benchmarks and provide monthly reports to the court on its progress for now.
Special court master Jeff Portnoy said he will review the special-education system every six months to make sure there is no backsliding in the level of services provided.
The judge's decision yesterday came as no surprise to plaintiff's attorneys, parents or state officials. Ezra stuck closely to the recommendations he has received during the spring and summer from Groves and Portnoy.
Groves is stepping down from his position as court monitor, but will continue to work with the court as a consultant when needed. Portnoy said the court is looking for someone to fill the position of court monitor.
Meanwhile, Superintendent Pat Hamamoto said her department has been working for months with health officials to design a sustainability plan, but still needs to work with plaintiff's attorneys on the agreement.
The school complexes that have not come into compliance with Felix — Lana'i, Pahoa and Wai'anae — will go through testing in the next few months to make sure they have met the requirements, she said.
Reach Jennifer Hiller at jhiller@honoluluadvertiser.com or 525-8084.
