KGMB Channel 9 aired a clip Thursday night showing the exuberant support by Greece Athena High School students and faculty in Rochester, N.Y., when student Jason McElwain came off the bench for the first time ever and shot 20 points for his team during the last 4 minutes of the game.

Intense shouts of glee from the audience each time Jason scored represented the wholehearted support and encouragement of the community for the 15-year-old boy with autism.

This heart-warming scene brought tears to even the newscaster’s eyes and affirmed the belief that children, as well as adults, have the capacity to love and support one another unconditionally, even if the other person is "different." In stark contrast to the scene that played out in New York, an 8-year-old boy in a public elementary school in Hilo, Hawaii, who had been physically and verbally abused by his former caregiver, found himself at the mercy of a teacher who singled him out for humiliation and punishment in front of his entire class because of his special education status. The details of the case, as described by his foster mother, brought tears and outrage to those who talked with her about the situation.

She wasn’t the only parent to complain about how her special needs child is being treated at school -- three different parents last week told Hawaii Reporter how school personnel have refused services for the neediest of children, and treated the children with disdain. The parents did not know where to turn for help.

At the same time, Hawaii State Senators added amendments to a bill that originally intended to help parents seeking an appropriate education for their children. The bill comes on the heels of the state emerging from 10 years of federal supervision under the Felix Consent Decree under which the state was ordered to provide mental health services and education to children.

SB 2733 acknowledged that children with disabilities in Hawaii are entitled to protections under the Individuals with Disabilities Education Act (IDEA). One of those procedural safeguards is the right to a due process hearing to determine if the student is receiving an appropriate education from the public school system or if the child should be sent to a private school at the expense of the state.

Now SB 2733-SD2, as proposed, places the burden of proof on parents during any appeals process. This means that the state may challenge parents to prove appropriate placement to obtain a special education voucher, forcing the parents to go through the whole process again of meetings with the state attorneys, therapists and other professionals and public school officials. This requirement would exist despite a hearing officer's finding that the DOE did not offer an appropriate placement to the child.

The problem with this approach is the DOE is notorious for ignoring due process judgements and non-payment and then parents usually have to hire a lawyer and go through an extensive process to get the DOE to comply with the law that says if the state does not provide an appropriate education, the state must fund private tuition for that student to an appropriate school.

These amendments ignore federal law outlined under 20 U.S.C. § 1415 -- Procedural Safeguards that allow parents to "remove their children from damaging public school placements and seek reimbursement for the private school placement." The current educational placement after the hearing decision is made is the placement ordered, even if the case is appealed. (20 U.S.C. § 1412)

SB2733-SD2, as proposed, also allows only a 90-day statute of limitations for special needs parents to file for reimbursement instead of the statewide 2-year statute. Not one other state in the United States places this limitation on parents.

If SB2733 SD2 is passed by the Hawaii State Legislature in its current form, there likely will be a costly class action legal challenge to the state. Even more seriously, the law will mean that the neediest of students in Hawaii’s public school system will be stuck without access to a meaningful education.

Certainly, children would be better served if parents were able to choose the appropriate program for their children without having to go through months of torment, endless meetings and hearings at great expense to all parties.

Critics of the Legislature’s most recent attempt to squash parents’ right to obtain an adequate education for their children say that it reveals the hypocrisy of those who say their actions are guided by what is "good for our keiki." Instead, it is obvious that laws are made to benefit lawyers, many of whom work right there at the Capitol.

The Judiciary and Hawaiian Affairs committee will hear the measure on

Feb. 27, 2006, at 9 a.m. in conference room 229.

References:

http://tinyurl.com/ny37u

http://www.wrightslaw.com

http://www.capitol.hawaii.gov/sessioncurrent/bills/sb2733_sd2_proposed_.htm

Laura Brown is the education reporter and researcher for HawaiiReporter.com and the education policy analyst for the Grassroot Institute of Hawaii.