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The Honolulu Advertiser
Posted on: Thursday, February 11, 2010

School furloughs back in court

By Loren Moreno
Advertiser Education Writer

The 9th U.S. Circuit Court of Appeals yesterday took up a case that seeks to halt "furlough Fridays" for special-education students in Hawai'i's public schools.

Meeting in Honolulu, Circuit Judge Carlos T. Bea of San Francisco and Senior Circuit Judges Jerome Farris of Seattle and Dorothy W. Nelson of Pasadena listened to arguments from lawyers who seek to overturn a November ruling that rejected their original request to stop the furlough days, on behalf of families of special-education students.

The appellate court did not rule yesterday, but judges did refer to the state's budget crunch as well as concerns about creating a "slippery slope," where changes in a public school system could be overridden based on their effect on a narrow group of students.

Ninth U.S. Circuit Court Judge A. Wallace Tashima originally ruled Nov. 9 that while special-education students might suffer "irreparable harm" because of the state's decision to eliminate 17 classroom instruction days, ordering schools to reopen would cause more harm than good to the overall public interest.

Attorney Carl Varady yesterday asked the appellate court to reinstate schooling on furlough Fridays on behalf of seven families with special-education students in five Hawai'i schools. Varady argued that the 17 furlough days a school year under the current teachers union contract violates the Individual Education Plans for disabled students.

He did not request that the court order the state to reinstate furloughs for all of Hawai'i's public schools.

"What we're asking is they enforce the IEPs that were conceived for this school year that include 17 more instructional days. We want those days back," Varady said.

IEPs are federally mandated contractual agreements between parents of special-needs children and the state. The contracts 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 of therapeutic services, such as speech therapy, skills training, occupational therapy or counseling.

Varady said he believed that those IEPs are not being met for the families he represents, since those contracts were drawn up prior to furlough Fridays starting in October.

State Attorney General Mark Bennett argued otherwise. He told the court that IEPs do not specify the number of days in a school year.

"Nothing in an IEP specifically says a student gets to come to school on Friday," Bennett told the judges. He said he believes the state Department of Education continues to meet its obligations to each individual special-needs student.

Bennett said services a student would have received at school on a furlough day are sometimes being provided to students when they are at home, or they are asked to go to an outside provider at an off-school site.

"We are not denying the children special-education services entitled to them. We are rescheduling them," Bennett said.

Since furlough Fridays began Oct. 23, a total of 10 class days have been cut as a result of the mandatory unpaid days off for teachers. The 11th furlough day is scheduled for tomorrow.

Farris quoted Tashima's original finding that furlough Fridays represent "the best of a number of bad alternatives."

"It wasn't to save money, it was because (the state) didn't have the money," Farris said. "They are doing this because we don't have the money."

Nelson said she was "worried about the slippery slope," where systemic changes to public schools could be overridden based on arguments that they don't fit with special-education IEPs. She noted that furloughs affect all public school students.

"Is (an IEP) intended to give them veto power over every decision that affects them?" Nelson asked.

Varady's case deals with only seven specific families. Honolulu attorney Eric Seitz's class-action lawsuit to put a halt to furlough Fridays was also denied by Tashima on Nov. 9. Seitz said he decided against appealing Tashima's ruling.

Varady's partner, attorney Susan Dorsey, said that while their lawsuit affects only seven families, most of those students have "mainstreaming" provisions in their education plans, which require special-education students to receive a certain number of minutes per day or per week in a regular education class. Furloughs have affected those opportunities for disabled students, she said.