Some think that separate lawsuits challenging the state's plans to save money with "furlough Fridays" could have an even bigger effect than the landmark Felix case that overhauled Hawaii's educational system in the 1990s.

A 1993 lawsuit filed on behalf of a disabled Maui student named Jennifer Felix alleged that the state failed to provide services required by the federal Individuals with Disabilities Education Act. The case dragged through U.S. District Court in Honolulu and the subsequent 1994 Felix Consent Decree dominated Hawaii's education agenda for a decade, revamped the state Department of Education and cost the state an estimated $1 billion.

Today, two of the same lawyers involved in the Felix case are leading legal teams that have filed separate lawsuits before the same judge who presided in the Felix case, U.S. District Judge David Ezra.

A hearing is scheduled today in federal court on the lawsuits filed by Carl M. Varady and Eric A. Seitz for an injunction to stop school furlough days scheduled for most Fridays through the end of the school year.

Their lawsuits on behalf of special education and other students and families could bring immediate changes to the DOE that will be more sweeping than what resulted from the Felix case, said state Rep. Lyla Berg, D-18th (Kuliouou, Niu Valley, Äina Haina), vice chairwoman of the House education committee.

"It's even bigger than Felix," Berg said. "It has huge ramifications. I would not be surprised if these lawsuits cause all of us really to look at the operations of the DOE and to become clearer on what the mission of public schools is."

Varady said the lawsuits have the potential to, "like a lens, bring into focus something that needs real attention and pretty much critical care."

"I'm hoping that something good can come out of it that's broader than the case we're bringing," Varady said. In the short term, "parents are scrambling in every which way to keep their lives together."

NEGATIVE PRESS

Furlough Fridays effectively cut teacher pay by 7.9 percent to help the state narrow a $1 billion budget deficit through June 2011. Teachers on a 10-month schedule are taking 17 "furlough Fridays" while those on a 12-month schedule are taking 21 furlough days.

The result would give Hawaii students only 163 days of instruction, the fewest in the nation.

The number of furlough days has been criticized by U.S. Secretary of Education Arne Duncan and will affect an estimated 170,000 public school students, including 19,793 special education students.

It was agreed to by Gov. Linda Lingle, the teachers union and a majority of the state's 13,500 teachers, who ratified the plan in a September vote. Lingle has since said that she regretted that the contract agreement took instructional days away from Hawaii students.

Because three of the scheduled "furlough Fridays" have already occurred, the current federal lawsuits bring more pressure for a decision than the Felix case, Berg said, especially because the furloughs are generating negative press for Hawaii while Honolulu-born President Obama is urging more classroom instruction days for U.S. schools, not fewer.

"Let's hope all of this national attention will provoke us to pay attention and to have immediate relief for this furlough situation," Berg said. "The children need to be back in class and the teachers need to be back in class, too."

The DOE referred questions to state Attorney General Mark Bennett, who said in an e-mailed statement that: "We continue to believe that the case lacks merit. We know that the plaintiffs claim there are similarities between this case and the Felix case, but we do not agree."

Bennett did not elaborate in his statement. He also did not comment on whether DOE officials are preparing contingency plans in case Varady or Seitz win injunctions blocking further teacher furlough days.

Schools superintendent Pat Hamamoto told the Board of Education last month that "a couple thousand or more" DOE employees could be laid off if the furloughs are blocked. The layoffs would primarily hit probationary teachers, administrators and others while sparing tenured and special education teachers, Hamamoto said.

FELIX CASE BENEFITS

The Felix case ended up overhauling the DOE for the benefit of all children, not just special education students, Seitz said.

The case ensured adequate staffing and training of teachers, aides and administrators to deal with special education students in mainstream classrooms, which ended up helping all students who share classes with special education children, Seitz said.

Old disciplinary practices aimed at special education students that were "clearly wrong and illegal" also ended up being standardized, which benefits all students who get in trouble, Seitz said.

The Felix case also overhauled the DOE's district system and brought in the current "complex" system that helped the DOE get rid of longtime administrators, said Seitz, whose son teaches at Farrington High School.

"We had lots of problems with reluctant principals and district superintendents who were recalcitrant," Seitz said. "As a result of Felix, we saw a whole new generation of principals come in who are better trained, more flexible and progressive in their commitments to public education — as opposed to some of the older people who were worn out. We needed to shake up the bureaucracy to make sure the education system worked better for everybody and we did that."

In a court hearing before Ezra last month, Bennett said the state faced dire budget problems, essentially making the same argument that state officials used in the 1990s to defend against the Felix suit.

Jeff Portnoy was the court-appointed special master in the Felix case and said the state's claim of budget problems had no merit then and has no merit today.

"I'm a little tired of the state of Hawaii claiming it has no money and is therefore exempt from federal law that applies to all 50 states," said Portnoy, a Honolulu attorney who also represents The Honolulu Advertiser. "It may be true they have no money, but unless they get the law changed, it is the law. It's clear from the entire Felix lawsuit and the years of litigation that the state's argument that it doesn't have the resources to comply with federal education laws has absolutely no merit and will continue to have no merit. You just have to find the money — now."

Varady included the history of the Felix case in court documents to show "these arguments have been made repeatedly for the past 15 years."

"We have to do something in this state to change education for the better instead of making the same excuses," Varady said. "If you look at our test scores, we're not doing well. How are we going to do better with fewer days? That makes no sense.

" We as a community have to figure out how to do better, rather than just saying, 'The DOE needs to figure it out' if we're going to have the kind of future here that we deserve and our kids deserve."

SPECIAL MASTER EZRA

Today's hearing on the request for a preliminary injunction to stop the furloughs is before 9th U.S. Circuit Court of Appeals Judge Wallace Tashima.

Ezra had been assigned to hear the two lawsuits but recused himself and was then appointed a special master by Tashima so Ezra could work with the parties on an out-of-court settlement.

Portnoy said Ezra's appointment as a special master is the first he's ever heard of involving a federal judge in Hawaii who was originally assigned to a case.

"Judge Ezra getting himself appointed as a special master is pretty darn unique and very interesting," Portnoy said.

Seitz, one of the lawyers arguing to keep Hawaii's schools open on Fridays, welcomed Ezra's appointment as a special master.

"To have a judge of his stature conducting settlement discussions I think is very significant," Seitz said. "If we have any chance of settling this litigation in the absence of a court proceeding, he's the best person to do that."

Varady's lawsuit focuses on the families of special needs children who say they need to continue being "mainstreamed" into their regular classrooms five days a week while learning alongside regular students.

Seitz's lawsuit also involves charter school, military and mainstream students who argue the loss of the Friday instructional days will harm their educations.

He hopes an injunction against the furloughs will bring the issue before the Legislature so lawmakers can come up with a longer-term solution for the rest of the school year.

Berg can't wait for the issue to come before her education committee in the Legislature.

"We — the total community — haven't gone down the road to explore the duplication, the waste within the DOE like every department needs," she said. "We can't wait one more year. We can't wait one more day."

Since court supervision of the Felix case ended in 2005, Seitz said, the handling of special education students by the DOE has slipped "dramatically backwards and our feeling about that is a great deal of sadness."

Before the lawsuits filed by Seitz and Varady, "a number of people gave lip service to how sad this is and how bad this is," Seitz said. "But until we filed these lawsuits, very few people in the system stood up to say, 'This is wrong.' "

And now state officials are making "the same time-worn, absolutely morally and legally bankrupt argument that we're a poor, small state," Seitz said. "It's a disgrace."