The Hawaii Department of Education is being sued in federal court on behalf of students with special needs who are allegedly being denied a free and appropriate public education due to school closures spurred by the coronavirus crisis.

The lawsuit was filed Monday in U.S. District Court for Hawaii by LegalAction, a law firm with a presence in both California and Hawaii that has handled more than 80% of the special education cases filed in Hawaii, according to its website.

The complaint seeks to represent a class of roughly 30,000 children in Hawaii with special needs between the ages of 3 and 22 who are eligible for services under the federal Individuals with Disabilities Education Act and Section 504 of the Rehabilitation Act of 1974.

Of the more than 179,000 students impacted by the DOE’s shutdown, roughy 12% include kids with special needs.

April Estrellon/Civil Beat

“These kids are supposed to be getting their services in school, and they’re not. That’s a material violation of their IEP (Individualized Education Program),” said Keith Peck, an attorney with LegalAction who brought the case.

Peck is quick to note he is not blaming the DOE for closing its schools due to a situation that was unavoidable.

The purpose of the lawsuit, he said, is to prompt a court-ordered process that makes it easier for parents, once schools do reopen, to determine the compensatory education their child needs to make up for the months of lost educational services during this time of school shutdowns.

Otherwise, the DOE and court system could see a flood of due process suits from parents after this crisis passes, he said.

“I’m anticipating the difficulty that my clients and the class of people similar to them would be facing if we wait many unknown months for the DOE to assess their remedies,” he said.

“I’m saying we need to come up with a better way to do that.”

The lawsuit seeks to compel the DOE to come up with certain parameters now that it will apply down the road to determine what compensatory educational services a child with an IEP will need once schools resume.

That should be informed by data-driven evidence or a formula that can be hammered out in one afternoon, according to Peck.

“This is the cleanest way to do it,” he said. “It will relieve (the DOE) of 30,000 conversations for children — of being sued hundreds and hundreds of times.”

DOE spokeswoman Lindsay Chambers said the department could not comment on pending litigation. She said in a statement that “when school resumes in its traditional manner, Individualized Education Program (IEP) and Section 504 teams will meet to determine any loss of skills as a result of the extended school closure and the child’s need for compensatory education.”

In the wake of the COVID-19 spread, Hawaii’s public schools have been closed ever since spring break during the week of March 16.

Schools will remain closed through April 30, although that date is tentative given the DOE’s most recent guidance on when it might be safe to reopen schools. One metric was no evidence of new coronavirus cases in the state over a 4-week period. The state as of Tuesday recorded a total 517 coronavirus cases, up 13 from the day before.

Many Hawaii schools have moved to distance or remote learning, although the wide gap in accessing technology or internet among kids makes virtual learning inconsistent across the board.

Among the most impacted students are those with special needs — roughly 12% of the DOE’s total student population of 179,000 students.

Although their needs vary, many require the full-time assistance of a paraprofessional during the course of a regular school day.

That includes the kindergartener son of a Maui mother who is a plaintiff in the lawsuit, where she is identified only by her initials. Her child has an IEP through his school and several diagnoses of a disability.

Between the hours of 7 a.m. and 2:20 p.m., the son typically has a registered behavior technician with him to implement a development intervention plan, she said.

“He gets many services through the school. That has now all been changed,” she told Civil Beat. The woman requested anonymity because she didn’t want her son’s school identified.

Gaining instructional control is very difficult through the computer screen, especially with a child with severe autism.”

Read the complaint here:

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