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State failed Maui special-needs student, federal court says

By Nanea Kalani

LAST UPDATED: 6:40 p.m. HST, Jun 13, 2013

The Hawaii Department of Education failed to provide a Maui special-needs student with a free appropriate public education when it excluded the boy’s father from participating in a meeting that changed the student’s school placement for the first time in six years, a 9th U.S. Circuit Court of Appeals panel ruled today.

“The court generally said the Department of Education has a responsibility to ensure certain procedural rights and they can’t excuse not doing those things by saying it’s the parents’ fault,” said Honolulu attorney Keith Peck, who represented the student in the case.

Spencer Clark, now 18, was diagnosed with autism at age 2 and, as a result of his condition, is eligible to receive special education and other related services under the federal Individuals with Disabilities Education Act, or IDEA.

IDEA requires all special-needs children be given a free appropriate public education. Figuring out what services a student requires is done at so-called Individualized Education Program meetings, which help outline the services each student gets, along with their progress and benchmarks they should meet over a school year.

Beginning with the fifth grade, Spencer’s IEP placed him at a private special education facility — Horizons Academy of Maui — at the expense of the Department of Education.

The student’s father, Doug Clark, was unable to attend Spencer’s annual IEP meeting in 2010 due to scheduling conflicts and an illness. At that meeting, the DOE changed Spencer’s educational placement, moving him to a program at Maui High, his local public school.

Clark protested the move through a due process hearing, but loss that fight. A U.S. District Court judge upheld the decision, which Clark appealed.

The three-judge panel, which heard oral arguments in the case in October in Hawaii, said that “parental participation in the IEP and educational placement process is critical to the organization of the IDEA.”

Spencer’s parents have kept him enrolled at Horizons at their own expense. The panel has remanded the case back to state district court to determine if the Clarks are entitled to tuition reimbursement.

Deputy school superintendent Ronn Nozoe said, "We are carefully reviewing the 9th Circuit decision. The department intends to comply fully with the legal mandates on free and appropriate education."

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