Suit against state over autism case is reinstated

A federal appeals court reinstated a lawsuit yesterday by the parents of two autistic daughters seeking money for what they say was the Department of Education's failure to provide them with appropriate special-education services.

The family's lawyers said the decision is important because it recognizes that the parents can seek recovery under the federal Rehabilitation Act when their kids are the victims of "deliberate indifference" by the department in failing to provide the services.

"This is a very far-ranging decision that clearly articulates the standards and opens the door to recover damages," said Susan Dorsey, managing attorney of the Levin Education Access Project.

State attorneys could not immediately be reached for comment.

The unanimous decision by a three-judge panel of the 9th U.S. Circuit Court of Appeals overturned a decision by visiting U.S. District Judge Manuel Real, who had granted the state's request to throw out the lawsuit. Hawaii's federal appeals Judge Richard Clifton was on the panel.

The lawsuit filed by the parents alleges that the department failed to provide the two children with services as a result of "deliberate indifference" during the girls' formative years in the 1990s. The girls, now teenagers, were diagnosed as autistic when they were 2 and 3, can hardly speak and have limited ability to interact with people, according to the opinion.

The state later provided services, but the family contends the girls would have made much more progress if they had been provided the services sooner.

Attorney Michael Livingston, who represented the family along with lead attorney Stanley Levin, said the girls were permanently damaged as a result of the "lost opportunity."

Dorsey said the case involves "substantial damages" for the girls, who he said were "stripped of any opportunity" to be independent and will have to be cared for for the rest of their lives.