Though conceding it was a close call, a federal judge refused to halt Hawaii's teacher furloughs, and called on the state and lawyers for parents who filed two lawsuits to quickly reach an out-of-court settlement.
The decision by senior U.S. judge Wallace Tashima on Monday to deny a preliminary injunction allows the state Department of Education to close schools for 14 more Fridays during the current school year. Three furlough days have already passed.
Carl Varady, one of the two lead attorneys for parents who had sued to stop the forced unpaid days off, said he will appeal to the 9th U.S. Circuit Court of Appeals.
Tashima acknowledged before announcing his ruling that autistic and other special education students were suffering irreparable harm by losing 17 school days this year, said lawyer Carl Varady.
"So for him to say that even in light of that we're not likely to prevail puzzles me," Varady added. "Because I don't see how if we've been irreparably harmed, we would not be likely to prevail on the merits."
But Attorney General Mark Bennett hailed the decision as an appropriate balancing act between the needs of special education pupils and the state's significant budget woes.
"The Department of Education does not take pleasure in furloughs," he said after the hearing. "But the Department of Education acted legally in response to what Judge Tashima found is this horrendous budget crisis. (The department) did not violate the law."
Varady's lawsuit, on behalf of eight sets of parents of special education students, contended that furloughs violate federal special education requirements. A second suit, a class action filed by lawyer Eric Seitz, sought to end furloughs on behalf of all Hawaii public school students.
Varady and Seitz argued that federal law, called the Individuals with Disabilities Education Act, bars school administrators from changing the instructional patterns of special education pupils without consulting parents. They said that without careful preparation, such alterations can cause behavioral shifts and educational regression.
"It's not just a mechanical process of adding a few minutes here, a few minutes there," Seitz told Tashima. Categories of other students _ such as those from military or low-income families _ also would be harmed by losing 17 days of instruction, the attorney asserted.
"What the state is saying is ...'We are not going to educate you because we don't have the money' and that is an unacceptable explanation," Seitz added.
But Bennett told Tashima the state in fact does not have the funds to restore the furlough days. If forced to drop furloughs by the court, school officials would have to resort to mass layoffs, he warned.
Moreover, administrators already are trying to provide special education services at other times during the week, the attorney general said, adding that furloughs affect all students, not just those with special education needs.
"There is nothing obviously illegal (about the furlough plan) under IDEA," Bennett said. "We are doing our best to deal with this."
Tashima said he faced an "unfortunate collision" between trying to protect the rights of special education students and the state's shrinking budget.
Some special education pupils are suffering irreparable harm, but halting furloughs would require cutting spending elsewhere, Tashima said. Further, the judge said he agreed with Bennett that furloughs were not aimed only at special education pupils.
"There is no easy choice here," Tashima said before ruling that he did not think the parents' lawsuit will prevail at trial, a prerequisite to granting a preliminary injunction.
The judge urged the parties to continue private talks with U.S. District Judge David Ezra. Ezra initially handled the lawsuits but Tashima tapped him to oversee the negotiations.
Tashima is a senior 9th Circuit judge from Pasadena, Calif., who presided over the lawsuits as would a trial court judge.