A pair of federal lawsuits filed on behalf of special education and other students have the potential to keep some public schools open tomorrow despite the state's plan to furlough teachers on 17 Fridays, attorneys for the plaintiffs said yesterday.

The attorneys for nine families of special education students on Oahu, Maui and the Big Island who want their children in school and around their classmates for the "furlough Fridays" hope to get a hearing today before Judge David Ezra in U.S. District Court seeking a temporary injunction.

A hearing has been set for this afternoon before Ezra on a request for a temporary restraining order in a separate lawsuit filed by attorney Eric A. Seitz on behalf of regular, special education and charter school students.

"We don't believe that the lawsuits have merit and we're going to defend against them," state Attorney General Mark Bennett said in a statement.

A state Department of Education spokeswoman said education officials had not seen either lawsuit and would not comment.

Today's court hearing could prove pivotal in the state's effort to save money and help close a budget deficit by furloughing teachers on Fridays. The planned four-day weeks have made headlines across the country, upset parents and educators worried about the lost instructional time and prompted debate about whether more money should be found for education.

Barring court action today, the state's regular public schools will be closed tomorrow for an estimated 170,000 public school students.

The special-education students benefit from remaining in their schools and around their classmates but the state Department of Education has not proposed suitable alternatives for his clients when the furloughs take effect tomorrow, attorney Carl M. Varady said yesterday.

"Right now it's a meat ax approach — one size fits all — and it's not consistent with what is required under federal or state law and that's what we're trying to stop," Varady said.

Varady said that disrupting the normal, five-day-a-week routine for his clients could mean "behaviors that have been under control and modulated go off. The social skills are lost. Language skills are further delayed. Sometimes when that window closes, it does not reopen."

The DOE did offer a non-DOE affiliated curriculum off campus — on Sundays — for a special-education student who is not one of Varady's clients, he said.

But for many of the plaintiffs in his lawsuit, Varady said, "you cannot develop social language and social skills in a room by yourself. You need to be in an environment where you can do that."

And that would mean returning the special-education students to their normal schools around their usual classmates on scheduled furlough Fridays, Varady said.

DISADVANTAGE CITED

With the furloughs, according to the Seitz lawsuit, "Hawaii now has the shortest school calendar in the nation. ... The furloughs will substantially disadvantage Hawaii's students in relation to their peers nationwide and on a global scale due to the comparative shortfall in instructional days."

Seitz's lawsuit alleges similar potential harm to special-education students included in the lawsuit filed by Varady, Stanley Levin and Susan Dorsey.

But Seitz's other clients include a mother of a regular school student who worries that her daughter will fall behind in her studies by missing classes on the 17 teacher furlough days, jeopardizing her chances of enrolling in a private high school or a college or university.

Asked whether the timing of the lawsuits could further complicate the uncertainty surrounding tomorrow's first scheduled teacher furlough day, attorney Dorsey said, "I don't think it's possible to muck this up any further than it's already been done."

SPECIAL SESSION

Garrett Toguchi, the chairman of the state Board of Education, said the lawsuits may help keep the discussion about adequate funding for public education alive. Toguchi and others have urged the state Legislature to return in special session to tap the Hurricane Relief Fund and restore some of the classroom instruction time lost to furloughs.

State House and Senate leaders have said there are no plans for a special session. Gov. Linda Lingle has also said she does not expect to call lawmakers into special session.

"It shows that people are still passionate about wanting to make sure our kids have a public education system that's fully funded and fully operational," Toguchi said of the lawsuits. "I think it also helps bring out the importance of the need to continue providing needed special education services for kids that require year-round services and year-round education."

U.S. Rep. Neil Abercrombie, D-Hawaii, said he has met with U.S. Secretary of Education Arne Duncan about whether federal stimulus money might be used to pay for some of the classroom instruction time lost to furloughs. State lawmakers have already included federal stimulus money meant for education in the two-year budget approved last session but now out of balance because of declining state tax collections.

Abercrombie said Hawaii is one of the few school districts in the country that has not used federal stimulus money to lengthen or strengthen instructional time.

"Hawaii is in the midst of an acute education crisis," the congressman said in a statement. "We are about to rob 17 days from our children's school year — days they will never get back, days they need to be in school. "