Ex-special ed students are being sought for a lawsuit

Attorneys representing special-education students in a 2010 class action lawsuit against the state are still trying to track down about 800 former students who “aged out” of Hawaii’s public school system at 20 years old under a state law that was later overturned.

A federal judge in 2014 ruled that the affected students — about 1,200 altogether who will be between 23 and 28 years old this year — are entitled to free educational services to make up for the two years they were denied schooling as allowed under federal law. The additional services would not involve re-enrolling the former students in high school, but could include such services as tutoring, counseling, job training, college courses, occupational or physical therapy, and independent life skills training.

U.S. District Senior Judge Susan Oki Mollway is giving attorneys for the plaintiffs until Sept. 19 to find the roughly 800 missing class members; after that date no one else may be added to the suit to participate in a settlement. In the meantime families say they are anxiously awaiting services for their children as the lawsuit crawls through the legal system.

“It’s drawn on and on and on. It’s been well over a year,” said Bill Pulliam, whose son Matthew is among 400 class members to join the class action suit so far. “He’s now 22, going on 23, and we should’ve already had these services, basically.”

He said Matthew, who is autistic and bipolar, has benefited from on-the-job training in the automotive field in the years since attending King Kekaulike High School on Maui, where he took three years of auto shop.

“One of the things he would not be able to do on his own is become a certified mechanic, because he just couldn’t handle the academic part of it on his own,” Pulliam said, citing challenges with reading and math. “We’re thinking maybe this lawsuit will help him get what he missed out in school and help him with his life work, so to speak.”

Law overturned

Special-needs students represented by the Hawaii Disability Rights Center and Hono­lulu law firm Alston Hunt Floyd & Ing in 2010 challenged a state law enacted that year that cut off public education at age 20, arguing that the state allows nondisabled students older than 20 to complete secondary education programs under the state-run Community Schools for Adults.

A 9th U.S. Circuit Court of Appeals panel in 2013 found that Hawaii’s law banning students older than 20 from public schools “runs afoul” of the federal Individuals With Disabilities Education Act, which entitles disabled children to a free appropriate public education until they turn 22. The case was sent back to federal court in Hawaii to determine how to implement the decision.

The case has been drawn out in part because of disagreements over which students should be eligible to participate in the lawsuit, how to obtain current contact information and how much time to allow attorneys for the plaintiffs to try to contact as many of these former students as possible.

The parties have since agreed that former special-education students born between July 1, 1988, and Aug. 5, 1993, are eligible.

“It’s people who were eligible for special education who left school and they weren’t able to graduate with a diploma, so it could be somebody got a certificate or dropped out, exited early for some reason — all of those folks would have been eligible to come back until they graduated with a diploma or until age 22,” said Michelle Comeau, one of the attorneys for the plaintiffs.

The Department of Education in 2014 turned over names and addresses of about 1,800 former students who may have been affected by the overturned law.

“Since that time we’ve been working with the information that we got, and it turned out that a lot of the information was stale, old, because it was their last known contact information” on file with the DOE, Comeau said. “Through our effort since then, we’ve got in the range of 400 people who are interested class members right now, which is a great number. There’s about 325 or so that are interested and eligible, then another 75 we know are incarcerated. In addition to that, we’re still looking for about 800 what we call ‘missing’ class members — we know their names, but we haven’t been able to reach them at all.”

Finding plaintiffs

Under court order, the attorneys recently obtained birth dates of the former students, as well as names and contact information of parents or relatives listed in their electronic student records. The court is allowing the data to be used to obtain current contact information through the state Department of Human Service’s Med-QUEST Division (the state’s version of Medicaid) and the city’s Division of Motor Vehicles and Licensing.

“Our hope is that we can get better ways to contact the folks we’re looking for through those avenues,” Comeau said.

U.S. Magistrate Judge Kevin Chang, who was assigned to settle any disputes over the identification of class members, had ordered that the class be closed in February, writing in a Feb. 18 order that “the final identification of interested class members is long overdue and now is the time to proceed to the compensatory education phase of this process.”

Chang added, “At times, overzealous and overreaching advocacy has resulted in unnecessary delay, lack of cooperation, and undeniably interfered with the orderly progress and efficient resolution of this action.”

Attorneys for the plaintiffs appealed his decision, and Mollway, the district senior judge, ultimately extended the deadline until September.

The state’s lawyers have said in court filings that “the department will likely need to know the number of class members before it will be able to obtain settlement authority to resolve this matter.”

Mollway agreed, writing in a May 19 order, “To permit a coordinated approach to providing compensatory services, the DOE is not being required to begin providing compensatory services until after the final list of class members has been submitted and the court and the parties have determined how to proceed. The court anticipates that discussion of how to proceed will occur in September 2016.”

The lawsuit is E.R.K. et al. v. Department of Education.

———

For more information go to hawaiiclassaction.com/erk.