Monday, December 22, 2014   Search

Current Articles | Archives | Search

Sunday, June 16, 2013
Ninth Circuit Court of Appeals Rules Hawaii Schools Can’t Pass-the-Buck
By Selected News Articles @ 10:10 PM :: 1755 Views :: Education K-12
 

Ninth Circuit Court of Appeals Rules That Schools Can’t Pass-the-Buck

by Keith H. Seth Peck, Esq. Lead Counsel, Doug C. v. State of Hawaii Dep’t. of Educ., (9th Cir. 2013).

On June 13, 2013, The Hawaii Department of Education came up short, again, in its efforts to blame parents for its own short-comings. In a watershed case, the Ninth Circuit Court of Appeals reaffirmed a longstanding rule that school districts are responsible for adherence to procedural safeguards and can’t blame parents for their own malfeasance. In a unanimous decision against the DOE reversing the United States District Court of Hawaii, a three judge panel agreed with Spencer Clark, a Maui child with autism. The facts of this case don’t really matter. As the Court states, the take-away from this ruling is that “…an agency cannot eschew its affirmative duties under the IDEA by blaming the parents.”

This case is about the seriousness with which school districts must treat the application of the procedural safeguards of the Individuals with Disabilities Education Act (“IDEA”) that are meant to ensure parental participation in the development of an individualized education program (“IEP”) for disabled children. This appeal seeks to reaffirm well-established Ninth Circuit case law that ardently protects the right of parents to participate in the IEP development process. -- Quote from Appellant Doug C.’s Opening Brief.

Time and time again, the DOE’s responsibility to adhere to the law has been shifted onto parents eroding the procedural protections afforded to children by Congress. The District Court has not sufficiently reined-in this charade. The administrative hearing process has become an opportunity for Hawaii’s school system to attack parents in order to excuse its own neglect and unlawful actions. After this ruling, such unscrupulous behavior by the DOE will be hard to justify.

In this case, the DOE claimed that they had rescheduled an IEP meeting 3 times for 13 staff in order to accommodate the parent’s schedule. The Court ruled that, “[E]ven if the Department’s theory of the case was supported by the facts...”, it cannot shift its legal responsibility onto parents. This is what we hope to teach our children about individual responsibility. Maybe the DOE can be taught this same lesson if lower courts will listen carefully to the Appellate Court’s analysis.

Additionally, the Court held that Spencer Clark was denied Free Appropriate Public Education (FAPE) due to lost educational opportunity when the DOE failed to sufficiently discuss Spencer’s needs. The Court explained that “A procedural error results in the denial of an educational opportunity where, absent the error, there is a ‘strong likelihood’ that alternative educational possibilities for the student ‘would have been better considered’.” The Court further explained that “…an IEP team’s failure to properly consider an alternative educational plan can result in a lost educational opportunity even if the student cannot definitively demonstrate that his placement would have been different but for the procedural error. “

This case marks the beginning of end for the Hawaii Department of Education’s cynical reign over the rights of children. Blaming a special-needs child’s parents for the Department’s own neglect and unlawful actions can now be halted if attorneys object to this process at the administrative level of the action. If hearings officers allow the DOE’s attorneys to continue their antics by blaming parents or if the District Court fails to recognize the import of this case, the Ninth Circuit will continue to reverse their holdings.

---30—

Keith H. Seth Peck is a Hawaii attorney that works on behalf of families with special-needs children denied their rights by the Hawaii Department of Education. He has done scores of cases over the past 20 years, forcing the DOE to fund private programs and service that are vastly superior to what the DOE is required to provide by law. Mr. Peck is a fierce advocate for his clients. “When it comes to litigation, ‘experience matters’, and your attorney shouldn’t be a wuss.”

Court Ruling: Doug C. v. State of Hawaii Dep’t. of Educ

Comments
LINKS:

TEXT "follow HawaiiFreePress" to 40404

ARCHIVES: Daily News Read

ARCHIVES: HawaiiFreePress

JOIN OUR EMAIL LIST

RSS FEED Latest 25 articles

TWITTER HawaiiFreePress

SoundCloud HawaiiFreePress

Register to Vote

2aHawaii

ABCDEF Group Samoa

ALEC

Alliance Defending Freedom

Aloha Conservative Alliance

Aloha Life Advocates

Aloha Chapter MOAA

Aloha Pregnancy Care Center

American Council of Trustees and Alumni

American Mothers of Hawaii

Angelaisms

AntiPlanner

Antonio Gramsci Reading List

A'ole Eradication

A Place for Women in Waipio

Atomic Monkey

Ballotpedia Hawaii

Better Hawaii

Broken Trust

CAFR Hawaii

Castaway Conservative

Catholic Homeschoolers of Hawaii

Children's Rights Institute

Choice is an Illusion

Christian Home Educators of Maui

Christian Homeschoolers of Hawaii

Citizens for Recall

Cliff Slater's Second Opinion

Coffee Break

Concerned Women For America Hawaii

Conservative Forum for Hawaii

CSIS Pacific Forum

Danny DeGracia Blog

December 7 Battlefields at risk

DefendOurKeiki.com

DVids Hawaii

Education Institute of Hawaii

E Māua Ola i Moku o Keawe

Farmers For Choice Hawaii

FIRE

Fix Oahu!

Follow the Money Hawaii

Frank in Hawaii

Friends of Lanai

Front Page Magazine

Frontline: The Fixers

Genetic Literacy Project

Get Off Your Butts!

God, Freedom, America

GoGoGMO!

Grassroot Blog

Grassroot Institute

Habele.org

Hadassah Hawaii

Hawaii Aganst Assisted Suicide

Hawaii Aquarium Fish Report

Hawaii Aviation Preservation Society

Hawaii Catholic TV

Hawaii Christian Coalition

Hawaii Cigar Association

Hawaii Concealed Carry

Hawaii Credit Union Watch

Hawaii Crop Improvement Association

Hawaii Debt Clock

Hawaii Defending Marriage

Hawaii Defense Foundation

Hawaii Families for Educational Choice

Hawaii Family Advocates

Hawaii Family Forum

Hawaii Farmers and Ranchers United

Hawaii Farmer's Daughter

Hawaii Federalist Society

Hawaii Federated Republican Women's Association

Hawaii Firearm Community

Hawaii Fishermen's Alliance

Hawaii Gathering of Eagles

Hawaii History Blog

Hawaii Homeschool Association

Hawaii Jihadi Trial

Hawaii Knights of Columbus

Hawaii March for Life

Hawaii Meth Project

Hawaii Public Charter School Network

HawaiiReporter.com

Hawaii Republicans for Life

Hawaii Rifle Association

Hawaii Right to Life -- Big Island

Hawaii Right to Life -- Oahu

Hawaii Senate Informer

Hawaii Shield Law Coalition

Hawaii Smokers Alliance

Hawaii State Data Lab

Hawaii Tropical Fish Association

Hawaii Votes

Hepsy's Kuleana

Heritage Foundation

HI Coalition Against Legalized Gambling

HIRA

Hiram Fong Papers

History Education Hawaii

Homeschool Legal Defense Hawaii

Honolulu Alliance

Honolulu College Republicans

Honolulu Navy League

Honolulu TEA Party

Honolulu Traffic

Horns of Jericho Blog

House Minority Blog

House Republican Caucus

House Republican Caucus YouTube

HPACC

Hump Day Report

I Aloha Molokai

I Vote Hawaii

If Hawaii News

Inouye-Kwock, NYT 1992

Inside the Nature Conservancy

Inverse Condemnation

Investigative Project on Terrorism

Iowa Meets Maui

Israel Day Hawaii

Jackson v Abercrombie

Jihad Watch

Judgepedia Hawaii

July 4 in Hawaii

Kahle v New Hope

Kahua Group

Kakaako Cares

Kau TEA Party

Kauai Co GOP

Keep Hawaii's Heroes

KeyWiki

Kona TEA Party

Land and Power in Hawaii

Legislative Committee Analysis Tool

Lessons in Firearm Education

Let's Lose LOST

Lingle Years

Malulani Foundation

Managed Care Matters -- Hawaii

Mauna Kea Recreational Users Group

MentalIllnessPolicy.org

Middle East Forum--The Legal Project

Mililani Conservatives for Change

Military Home Educators' Network Oahu

Minority Caucus YouTube

Missile Defense Advocacy

Muslim Brotherhood in America

NAMI Hawaii

NARTH

Natatorium.org

National Christian Foundation Hawaii

National Parents Org Hawaii

National Wind Watch

Native Hawaiian Grants Project

New Zeal

NFIB Hawaii News

No GMO Means No Aloha

No Hawaii Beverage Tax

Northwest Economic Policy Seminar

Not Dead Yet, Hawaii

Now What I Really Think

OHA Lies

Ohana Policy Group

Pacific Aviation Museum

Patients Rights Council Hawaii

Patriot Voices Hawaii

PEACE Hawaii

Perry and Price Show

Pritchett Cartoons

Rental by Owner Awareness Assn

Republican Party -- Hawaii State

Research Institute for Hawaii USA

Rick Hamada Show

Rightly POV

RJ Rummel

Robotics Organizing Committee

Save Hanalei Ridge

Save Our Doctors Hawaii

Save the Plastic Bag

School Choice in Hawaii

Senate Minority Blog

SenatorFong.com

SGLF

SIFE BYUH

SIFE HPU

SIFE Remington

SIFE W. Oahu

Smart About Marijuana--Hawaii

Smart Business Hawaii

St Damien

St Marianne Cope

State Budget Solutions Hawaii

State Policy Network

Stop SB2424

Stop the Maui Farming Ban

Student Veterans Oahu and Kauai

Tax Foundation of Hawaii

TEA Party Maui

The Harriet Tubman Agenda

The Long War Journal

The Real Hanabusa

The Verifiable Truth

The Voice of Kapolei

Tim Lussier HuffPo Hawaii

Truth About Trade & Technology - Hawaii

UCC Truths

Union Members Know Your Rights

United Veterans Hawaii

US Tax Foundation Hawaii Info

USO Hawaii

Valor in the Pacific

VAREP Honolulu

Vote No 113

Waagey.org

WAPNFFS

Watchdog Hawaii

West Maui Taxpayers Association

YAL UH Hilo


Maui TEA Party
Maui TEA Party