Monday, April 05, 2010

N.D. v. Hawaii Dep't of Education (9th Cir. - April 5, 2010)

Let me slightly critique this opinion by Judge Farris.

It's an interesting case, and a challenge I wouldn't have thought about on my own. Hawai'i (like many other states) is facing a downturn in tax revenue, and has decided to make up the shortfall by shutting down public schools on seventeen Fridays during the 2009-10 school year. One can debate the wisdom of this policy, but as a legal matter, as long as that policy is okay with the union (which has a CBA), that seems generally okay. Sure, the kids get 10 percent less education, but that's a policy dispute, not a legal one.

Plaintiffs, however, bring a creative lawsuit, and one which facially has some potential merit. The plaintiffs are parents of disabled kids, who are covered by an IEP pursuant to the IDEA. That plan for each kid essentially says that s/he is to receive X instruction -- a plan based upon Y number of school days -- and so shutting down the schools arguably violates both the plans as well as the "stay put" provisions of the IDEA, which generally provides that you can't change a plan once it's been approved.

So a good legal theory. Plaintiffs move for a preliminary injunction, but the district court denies it, holding that the public schools were making the best of a bad situation. The Ninth Circuit, on appeal, affirms, holding that the decision below was not an abuse of discretion because while the public interest factors on both sides were strong, the balance tipped in favor of the defendants because plaintiffs were not likely to win on the merits. "Generally applicable changes in policy" like the one at issue here, the panel concludes, are not governed by the "stay put" provisions of the IDEA.

A reasonable jurist could go either way, I think, as to the validity of this proposition. Particularly when the opinion concludes, in its final paragraph, with this important caveat: "Nor does our conclusion leave the parents of disabled children with no means of redress. N.D.’s claim is more properly characterized as a 'material failure to implement the IEP.' Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 822 (9th Cir. 2007). A school district’s failure to provide the number of minutes and type of instruction guaranteed in an IEP could support a claim of material failure to implement an IEP. The agency is required to address such a claim with a due process hearing, and full judicial review is available." That seems reasonable. Sure, that's a harder claim. But if such relief is available, I'm a fair piece more inclined to allow at least certain generalized changes past the stay put provisions than if no alternative avenue of attack was available.

The paragraph before this one, however, contains what I think is the weakest part of the opinion. That's where Judge Farris says: "Finally, plaintiffs argue that because their current IEPs are
their current educational placement and assume a five day school week, the reduction of the school week constitutes a change in the general educational program of the student. While they certainly assume some five day weeks, the IEPs also assume that there are some four day weeks when there are federal and state holidays. Those four day weeks are not mentioned explicitly in the IEPs. The four day weeks created by the furloughs are no different and do not constitute changes in N.D.’s educational program."

To me, that seems an incredibly specious response. After all, I'm sure the IEPs also assume and do not explicitly mention spring break and Christmas vacations either. So under the Ninth Circuit's theory, the plaintiffs' educational plan also wouldn't be changed if Hawai'i closed down the entire school system by declaring every week to be spring break -- or Christmas vacation to last eight months -- either. That just seems silly, and obviously wrong. The mere fact that X exists to a degree now doesn't mean that expanding X categorically isn't a change in a plan. It requires a qualitative judgment, perhaps. But that's different than what the opinion says, and in making short shrift of plaintiff's argument here, the opinion fails to offer a coherent response. At least in my view.

So an interesting case to start off the week.