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In the wake of signing a 1994 court decree promising to provide education and appropriate mental health services to children with disabilities, Hawaii’s school system allowed two young sisters in dire need to slip through the cracks. No longer able to rely on a faulty federal judge who backed its negligence, the state Department of Education should seek reasonable settlement of the court dispute and take steps to prevent similar lapses.
The 9th U.S. Circuit Court of Appeals has questioned the school system’s defense of its conduct, overturning a ruling by visiting District Judge Manuel L. Real of California. A three-judge panel including Hawaii’s Richard R. Clifton ordered the case to be put before a judge other than 86-year-old Real, whose objectivity has been questioned in the recent past by appeals judges. The panel noted that this was the second time that Real had been reversed in this case at the 9th Circuit level.
Hawaii’s school system promised in 1994 to expand programs for special-needs students, in compliance with the federal Individuals with Disabilities Act, to end a lengthy class-action lawsuit filed in the name of Jennifer Felix. That same year, Hawaii’s DOE found a 3-year-old girl named Michelle and her 2-year-old sister Natalie to be eligible for special education services because of autism.
The girls’ family accuses the DOE of violating the 1973 Rehabilitation Act, which requires state services for the disabled. Children with autism need teaching that includes repetition, routine and behavioral reinforcement, according to Dr. Daniel B. LeGoff, a psychologist and consultant to the state Department of Health.
Instead, the girls’ family maintains that from 1994 to 1999 they "were warehoused and put in a classroom with somebody who sat on the other side of the room and did very little." In 1994, at least three Department of Health autism specialists were available and providing for the needs of public school children with the disorder, according to LeGoff.
When Michelle and Natalie first were diagnosed as autistic, their family maintains, they were capable of "learning effective speech and communications skills" through appropriate teaching. Today, the court panel observed, "The girls are essentially non-verbal and have a limited ability to have meaningful interactions with others."
The 9th Circuit panel agreed that the evidence supports the family’s allegation that the DOE "was on notice" that the girls needed autism-specific services that were made available to other children. The appeals court ruled in 2004 and reiterated last week that the family should win its lawsuit if it can prove that the school system violated federal law "intentionally or with deliberate indifference."
This case has been in court for a full decade, costing untold tax dollars to prolong an argument that should have ended once it became clear that the state broke its promise to fill a need required by federal law. That is long enough.
