at Stake in Court
Larry Geller, The Honolulu Advertiser, July 24, 2005
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Imagine that a
child who cannot hear is abandoned in a regular classroom
without assistance and expected to learn.
Imagine that a child who does not yet speak is denied the
services that have benefited other children with autism. What
parent does not want their child to succeed?
In Hawai'i, often enough, the only recourse a parent has to get
legally required services from the schools is to ask for a
A 30-page amicus curiae (friend of the court) brief just filed
by our state attorney general with the U.S. Supreme Court
threatens parents of special-needs children in Hawai'i and
across the nation with loss of access to that important
procedural safeguard in special-education disputes.
Hawai'i has not been a hospitable place for special-needs
children, but recently there is hope. U.S. District Judge David
Ezra last month released the state from federal oversight under
the Felix consent decree.
Gov. Linda Lingle appeared to set a new tone for her
administration by testifying in person at the 2003 Legislature
in favor of a bill to provide insurance coverage of certain
While the previous administration had gone to the Supreme Court
seeking to overturn the Americans With Disabilities Act, perhaps
this governor would be sympathetic instead of hostile.
It was disappointing to find Hawai'i back at the Supreme Court,
this time with an amicus brief opposing the interests of parents
of special-needs children.
Hawai'i's brief in Schaffer v. Weast asks the court to decide
that the burden of proof in disputes over the adequacy of a
special-needs child's education should rest with the parents and
not with the school districts.
This sounds esoteric, but it is critical to whether parents will
be able to effectively repair an educational process that has
gone badly wrong.
Last year 183 impartial hearings were requested in Hawai'i and
most settled or were decided for the parents, demonstrating that
even with the Felix consent decree in effect, many parents were
forced to resort to a hearing to set things right for their
The attorney general's brief argues that schools have greater
expertise and access to information, so their judgment as to a
child's educational program should be entitled to more
deference, and the burden of proof to show otherwise should rest
with the parents.
The large number of hearings demonstrates that this argument is
false. While the 184th hearing would be a piece of cake for the
DOE, it is usually a daunting experience for an individual
parent, and having to bear the burden of proof would scare many
away, with a disastrous impact on the children's future.
A win in this case would encourage schools to cut back on
services, knowing that challenges would be rare. Down the road
this could mean no college education for these children, or loss
of the chance to live independently.
Twenty disability organizations joined in an amicus brief in
this case supporting the parents. Connecticut, Illinois, Kansas,
Minnesota, Nevada, Rhode Island, Washington and Wisconsin signed
on to a Virginia amicus brief that also supports the parents.
Hawai'i's attorney general circulated his brief seeking other
states' support. At the same time, advocates' e-mails were
flying urging parents to call their state's attorneys general to
demand that they not join with Hawai'i.
Perhaps because of these calls, of the 41 remaining states and
the eligible territories, only three, Oklahoma, Alaska and Guam,
Two school district associations and the U.S. Department of
Justice (reversing its position under President Clinton) filed
briefs in support of the school districts.
So there are two teams and these are the players. The battle
will be watched very closely, because historically very few of
these cases ever make it to the Supreme Court.
The administration clearly hopes to reap economic benefit if its
view prevails. If not, why would the attorney general spend
taxpayer money on this action? If Hawai'i's position wins out,
it will be at the expense of children throughout the country.
The stakes in this case are exceedingly high, and this
administration's action has once more placed Hawai'i on the
wrong side of a disabilities issue.
To read the amicus brief presented by the state of Hawai'i, see
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