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Nobodys child By Robert M. Rees

Judge David Ezra mulls whether to let the Lingle administration roll back federal protection for Felix students

February 18-24, 2004

It appears the administration of Governor Linda Lingle wants to halt the hard-won progress that resulted from the Felix consent decree of 1994. It was the decree, the result of a class-action lawsuit, along with the prodding and cajoling of chief judge David Ezra of Hawai‘i’s U.S. district court, that forced Hawai‘i into reluctant and still less-than-full compliance with the Individuals with Disabilities Education Act, the federal law that requires the state to educate all its children.

On January 27, in a heated conference called by court master Jeffrey Portnoy, state attorney general Mark Bennett asked for an end to federal court oversight of Hawai‘i’s public schools. Bennett’s proposal was dismaying but not surprising. The Lingle administration seems to have adopted the policy of indifference toward special needs children that characterized previous administrations and boards of education. If the state can eliminate federal oversight, it will be free to implement proposed changes to the school system without the scrutiny of a federal court keen on appropriate education for all.

Bennett correctly asserted that progress has been made. In 1994, only six percent of all public school students in Hawai‘i were deemed in need of special education. Today, 23,000 students, or 12 percent, are in special education, which is close to the national average.

Attorneys for the Felix class of children at the court conference took strong exception to Bennett’s conclusions that statistics tell the story, however. Eric Seitz, the attorney who first sued on behalf of Jennifer Felix and then joined in a class action with attorney Shelby Anne Floyd, said there are signs that the state Department of Education is backsliding.

On hand to support Bennett’s request was state schools superintendent Pat Hamamoto. The following day, when Hamamoto addressed the state legislature, she concluded by challenging lawmakers “to live up to our obligation to the young people of our islands.”

Yet it was Hamamoto who tried to put a gag order in Department of Education contracts with health providers to keep them from advocating for special needs students. And it was Hamamoto who urged U.S. Representative Ed Case to put an amendment in the reauthorization bill for the Individuals with Disabilities Education Act—the Case Amendment - providing that attorneys’ fees for successful litigants in Felix cases be awarded differently than in all other civil cases. Under the Case Amendment, fees would be awarded not by courts but by a potential defendant, the state governor. If the amendment passes, it could discourage attorneys from taking Felix cases.

Parents of special needs students who do not have attorneys are more vulnerable, particularly when Individual Education Programs (IEPs) are developed for each child. Naomi Grossman, president of the Autism Society of Hawaii, says the IEP process withholds expensive but essential diagnostic and therapeutic tools. Parents who object are often intimidated, Grossman says, by threats to report them as unfit parents to the state Department of Human Services. Parents might be left “with the feeling the school doesn’t believe them,” says neuropsychologist Peggy Murphy-Hazzard of the Learning Disabilities and Attention Deficit Hyperactive Disorder Center of Hawaii, and as a result exhibit symptoms of Post Traumatic Stress Disorder.

If federal court oversight is ended, parents of special needs students could have little recourse. The state’s house-senate Felix Investigative Committee seems more interested in exposing isolated cases of theft by suppliers than addressing fundamental flaws in special education. The federal No Child Left Behind Act ultimately might not help, either. Already there are proposals to exclude from it the six million special education students nationwide.

For now, Judge Ezra is the bulwark between Hawai‘i’s special needs students and the state. Federal oversight has been the only motivating factor in getting the state to comply with the Individuals with Disabilities Education Act, says attorney Jerel Fonseca. On April 8, Ezra will hold hearings on whether to end it.

This article was originally published in the Honolulu Weekly, February 18-24 Issue.