Class Action Filed Against Hawaii Department of Education for Discrimination Against Disabled Students

News Release from LegalAction, April 8, 2020

HONOLULU – The AdvocacyProject of LegalAction, a law corporation has filed a prospective class action today against the Hawaii Department of Education on behalf of children and young adults between the ages of 3 and 22, enrolled in the public school system and eligible for services under the Individuals with Disabilities Education Act and/or Section 504 of the Rehabilitation Act of 1974. The lawsuit was filed in the United States District Court of Hawaii and seeks Declaratory Judgment that the DOE has denied eligible students a free appropriate public education or FAPE.

The lawsuit also seeks an Order to the Hawaii Department of Education to follow a definitive and fair process for establishing compensatory education for effected student.

Keith H.S. Peck is lead counsel for the Plaintiffs. Mr. Peck believes that a class action is the best way to address what could otherwise be hundreds of individual administrative cases that would bog-down the administrative process established to address disputes and result in poor remedies for the effected students as well as hundreds of thousands of dollars in attorneys’ fees to family attorneys that the State may have to pay. “Without this action, thousands of families will have no suitable means to determine an equitable amount of compensatory educational services for which their children are entitled. By the time the schools hold a meeting to determine the amount of regression and the rate of recoupment sometime in the fall semester there will be no baseline data to use. The DOE will be able to claim, at that time, that little or no regression is evident, and that the student has already recouped what they may have lost. By establishing and efficient and fair process and to determine an equitable remedy upfront the costs will be minimized for the State of Hawaii.”

The Introduction to the class action complaint reads:

This complaint is meant to facilitate the resolution of what could otherwise be thousands of individual claims for compensatory education that may come at significant financial cost to the taxpayer and school-system in Hawaii. This claim is not meant to further burden Defendant but to lift the burden of defining an equitable remedy for the denial of Plaintiffs’ and class members’ rights. Plaintiffs’ counsel will provide 100 hours of pro bono services to class members to effectuate the post-decision resolution of these issues.

The announced ad hoc approach Defendant anticipates using, whenever that chance occurs, for an individual determination of a student’s needed compensatory remedy would not result in a data-driven, equitable remedy and would create contention between the school-system and families. That approach would be taken many months in the future where evidence of regression and the recoupments that occurred in the interim would not be realistically measurable and Plaintiffs’ recourse would be inhibited by lack of evidence. Plaintiffs recognize Defendant’s difficult situation but wish to protect their interests and that of the class by establishing a violation of their rights and a set of parameters and procedures for determining the lost educational opportunity class members have and will sustain.

Clearly, Students have and will be subject to periods where there is a material failure in the implementation of their educational programs designed to provide them meaningful access and/or meet their educational needs as adequate as Defendant provided for the needs of non-disabled children. Even during times that test our commitment to the civil and statutory rights of a minority or a protected class, we must strive towards a fair and meaningful remedy for violations of those rights.

Key to obtaining an equitable remedy would be for all families with children having an IEP or 504 Plan to video their children working on skills that they have already attained. Using the IEP Objectives and following the protocols listed in the Objectives section of the IEP is a good way to demonstrate a baseline for future comparative purposes.

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PDF: Complaint

LegalAction is a domestic professional law corporation with its main headquarters in Irvine, California. Keith Peck is its President. He has been helping families with disabled children for 24 years. His firm, LegalAction, a law corp. usually does not charge attorney’s fees to the families he represents.

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