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The Honolulu Advertiser
Posted on: Sunday, July 24, 2005

Special needs at stake in court

By Larry Geller

Kilohana Elementary School on Moloka'i includes special-education classes. In Hawai'i, a request by parents for a hearing is often the only recourse available to them when they are seeking legally required school services for a special-needs child.

Advertiser library photo | September 1997



To read the amicus brief presented by the state of Hawai'i, see www.harbor houselaw.com/law/plead /schaffer.hawaii.pdf.


To read the amicus brief presented by the state of Hawai'i, see www.harbor houselaw.com/law/plead /schaffer.hawaii.pdf.

Imagine that a child who cannot hear is abandoned in a regular classroom without assistance and expected to learn.

Imagine that a child who does not yet speak is denied the services that have benefited other children with autism. What parent does not want their child to succeed?

In Hawai'i, often enough, the only recourse a parent has to get legally required services from the schools is to ask for a hearing.

A 30-page amicus curiae (friend of the court) brief just filed by our state attorney general with the U.S. Supreme Court threatens parents of special-needs children in Hawai'i and across the nation with loss of access to that important procedural safeguard in special-education disputes.

Hawai'i has not been a hospitable place for special-needs children, but recently there is hope. U.S. District Judge David Ezra last month released the state from federal oversight under the Felix consent decree.

Gov. Linda Lingle appeared to set a new tone for her administration by testifying in person at the 2003 Legislature in favor of a bill to provide insurance coverage of certain mental illnesses.

While the previous administration had gone to the Supreme Court seeking to overturn the Americans With Disabilities Act, perhaps this governor would be sympathetic instead of hostile.

It was disappointing to find Hawai'i back at the Supreme Court, this time with an amicus brief opposing the interests of parents of special-needs children.

Hawai'i's brief in Schaffer v. Weast asks the court to decide that the burden of proof in disputes over the adequacy of a special-needs child's education should rest with the parents and not with the school districts.

This sounds esoteric, but it is critical to whether parents will be able to effectively repair an educational process that has gone badly wrong.

Last year 183 impartial hearings were requested in Hawai'i and most settled or were decided for the parents, demonstrating that even with the Felix consent decree in effect, many parents were forced to resort to a hearing to set things right for their children.

The attorney general's brief argues that schools have greater expertise and access to information, so their judgment as to a child's educational program should be entitled to more deference, and the burden of proof to show otherwise should rest with the parents.

The large number of hearings demonstrates that this argument is false. While the 184th hearing would be a piece of cake for the DOE, it is usually a daunting experience for an individual parent, and having to bear the burden of proof would scare many away, with a disastrous impact on the children's future.

A win in this case would encourage schools to cut back on services, knowing that challenges would be rare. Down the road this could mean no college education for these children, or loss of the chance to live independently.

Twenty disability organizations joined in an amicus brief in this case supporting the parents. Connecticut, Illinois, Kansas, Minnesota, Nevada, Rhode Island, Washington and Wisconsin signed on to a Virginia amicus brief that also supports the parents.

Hawai'i's attorney general circulated his brief seeking other states' support. At the same time, advocates' e-mails were flying urging parents to call their state's attorneys general to demand that they not join with Hawai'i.

Perhaps because of these calls, of the 41 remaining states and the eligible territories, only three, Oklahoma, Alaska and Guam, signed on.

Two school district associations and the U.S. Department of Justice (reversing its position under President Clinton) filed briefs in support of the school districts.

So there are two teams and these are the players. The battle will be watched very closely, because historically very few of these cases ever make it to the Supreme Court.

The administration clearly hopes to reap economic benefit if its view prevails. If not, why would the attorney general spend taxpayer money on this action? If Hawai'i's position wins out, it will be at the expense of children throughout the country.

The stakes in this case are exceedingly high, and this administration's action has once more placed Hawai'i on the wrong side of a disabilities issue.