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The Honolulu Advertiser
Posted on: Monday, May 10, 2010

3 claim furloughs caused harm

By Jim Dooley
Advertiser Staff Writer

Hawaii news photo - The Honolulu Advertiser

Carl Varady

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Three autistic public-school students who lost a federal court challenge last year to the state's "furlough Friday" program have suffered educational and behavioral setbacks because of the school closures, according to newly filed federal court records.

Hearings officers who reviewed the effect of school closures on the special education students noted that services provided to the children on furlough days lacked the "structure and routine (that) is very important in teaching children with autism."

The students were not able to interact with peers in structured settings and did not receive the supervision and educational services that the state Department of Education had agreed to provide them under Individual Education Programs reached earlier with the children's parents, a hearings officer said.

Federal law requires development and implementation of such programs for children with special needs.

For one 7-year-old student, "the lack of structure and routine on furlough days has negatively impacted his behavior," hearings officer Haunani Alm wrote in a decision issued April 3.

"Student has problems maintaining attention and focus and has great difficulty returning to school on Mondays after furlough days," Alm wrote.

Another student's "negative and/or self-injurious behaviors significantly increased after school breaks, including furlough days," Alm found.

The most significant increase in self-injurious behavior occurred after "a four-day break that included a furlough day and the Martin Luther King Jr. holiday," according to Alm.

That student regressed in reading and math skills, Alm said. When his cousins visit his home, "he is barely able to tolerate them, much less interact with them as he previously did," the hearings officer said.

Alm pointed out that she lacked the authority to order the schools to reconvene on furlough days, but said the students are entitled to "compensatory education" from the DOE.

Carl Varady, attorney for two students, said most of the children already receive special education services in the summer months that can be augmented to accommodate the hearings officer's findings.

"Programs can be created and designed not just for maintenance but also to give them more educational content and more interaction with their peers in the community," Varady said.

Varady said two other cases that have gone through the hearings process were decided in favor of the state.

The attorney general's office has filed appeals of the adverse decisions and did not respond to a request for comment last week.

The state asked that the appeals be decided by U.S. 9th Circuit Court of Appeals Judge A. Wallace Tashima, who last year dismissed Varady's suit that sought to block DOE furlough days.

In dismissing the Varady suit and another brought by attorney Eric Seitz, Tashima said the lawyers had demonstrated that their clients would be "irreparably harmed" by the furlough days.

But he said that, on balance, ordering schools to be reopened to accommodate them would do more harm than good.

"The public interest certainly doesn't favor shutting down schools," Tashima said.

"But what else are you going to do? Fire teachers and increase class sizes? Is that better?" the judge said.