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The Honolulu Advertiser
Posted on: Tuesday, October 13, 2009

Hawaii parents may sue over furloughs

By Loren Moreno
Advertiser Education Writer

Hawaii news photo - The Honolulu Advertiser

Eric Seitz

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An attorney representing parents of special needs students may ask the court to stop public school teacher furloughs that are to begin Oct. 23.

Honolulu attorney Eric Seitz warned of the possible legal action in a letter to state Attorney General Mark Bennett last week, and the two will meet this week to discuss the plan to close schools on 17 Fridays this school year.

Seitz was the attorney from the landmark 1993 Felix class-action suit, which alleged the state was failing to provide necessary special education services under federal law.

Seitz said he is representing an unspecified number of parents of special needs students and regular education students.

In addition to their concern about special education cutbacks, Seitz's letter outlines several other potential reasons for filing a lawsuit:

• Concerns that students would face potential problems if they were to seek to transfer to a different school district.

• Loss of learning time would affect a child's standardized test scores and "adversely affect their future educational opportunities."

• Possible claims that reducing public education services "falls predominantly and has disparate impact upon low-income and local ethnic communities and single parents because they constitute the overwhelming utilizers of public education."

Seitz said he would prefer to resolve the issue through negotiations but only if the state agrees to postpone the "most imminent furlough days."

"We're not going to run out and file a lawsuit," Seitz said yesterday. "We're going to meet with them and explore every possibility."

Gov. Linda Lingle, the state Department of Education and the teachers union agreed last month to 17 furlough days, equal to a 7.9 percent pay cut, this school year and 24 next year to help resolve a nearly $1 billion budget shortfall.

In the letter to Bennett dated Oct. 8, Seitz writes that he has received a considerable number of requests for legal representation from people and organizations interested in a "Felix-like" lawsuit. Many of the inquiries have come from those concerned about the interruption of educational services to special needs children because of the Friday furlough days.

Under the Felix consent decree, spending on special education and other special needs programs has increased by more than $400 million since 1994, when the state settled a lawsuit by agreeing to the decree.

Some $530 million is spent per year on special education, or about 22 percent of the DOE's budget.

"In the event that we do initiate litigation, we will file a complaint on behalf of several proposed classes of plaintiffs including advocacy, service and professional organizations," Seitz said.

Advocacy organizations and parents have said that the state's plan to furlough teachers will make it more difficult to meet Individual Education Plans, federally mandated contractual agreements between parents of special needs children and the state.

The contracts, known commonly as IEPs, are drawn up on an individual basis for some 17,000 special education students, and typically specify the number of hours a student should receive therapeutic services, such as speech therapy, skills training, occupational therapy or counseling.

Bennett yesterday directed all questions to the state Department of Education and Superintendent Patricia Hamamoto.

Hamamoto said public school administrators and teachers are reviewing the individual plans for each special needs child. Schools have been directed to accommodate the services a child is supposed to receive within the shortened time frame.

"We are committed to providing the services outlined and recorded in the IEPs," Hamamoto said. "If that means things need to be rescheduled, or that we have to think about ways to get providers to children, we will."

Naomi Grossman, vice president of the Autism Society of Hawaii, said Seitz's willingness to take the furlough issue to litigation is encouraging for families with special needs children.

"It tells me that there is a hope that legally something can happen, but I would prefer to err on the side of caution," Grossman said.

She said many of the parents she has spoken with have been meeting with DOE officials regarding their child's IEP and have received vague responses to their questions regarding whether services could be curtailed.

"Under the IEP meetings, they're being told that (administrators) don't know what they can offer. It reeks of potential litigation," she said.