May 2010

N.D. v. State of Hawaii Department of Education: 54 IDELR 111 (9th Cir. April 5, 2010): Furlough Days

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The story: The State of Hawaii is one large school district. Just as the State of Oregon implemented "furloughs" for state workers this year, Hawaii did the same for its teachers, reducing the school year by 17 days. Several parents of students with disabilities argued that the reduction resulted in a change in placement and that the students had the right to "stay put" pending the outcome of their due process hearing on the matter. If the parents were right, the State would not be permitted to implement the furlough days with regard to these children.

The ruling: The US District Court and Ninth Circuit Court of Appeals disagreed.

Both Courts ruled that the furlough days were not a change in placement triggering "stay put" because the purpose of the "stay put" provision was to prevent exclusion of students with disabilities. "...Congress did not intend for the IDEA to apply to system wide administrative decisions. Hawaii's furloughs affect all public schools and all students, disabled and non-disabled alike. An across the board reduction of school days such as the one here does not conflict with Congress's intent of protecting disabled children from being singled out." To rule otherwise would be "to give parents of disabled children veto power over a state's decisions regarding the management of its schools. The IDEA did not intent to strip administrative powers away from local school boards and give them to parents of individual children, and we do not read it as doing so."

The court also found that the four day week resulting from the furlough days did not result in a change in placement because the five day week had been reduced to a four day week. The court disagreed that the IEP assumed a five day week across the board, noting that state and federal holidays resulted in some four day weeks and the furlough days were no different.

Last, the court acknowledged that the parents could, in some cases, bring a Baker School District-type claim for material failure to implement the IEP, but this type of claim did not trigger the "stay put" provision in the IDEA.

The implications: Finally. Schools in Oregon and I'm sure elsewhere have struggled with this issue, not just with regard to furlough days or shortened school calendars, but also with school strikes, weather-related closures, and other district-wide or school-wide closures. What this means is that school districts do not need to provide continuing services to students with disabilities when the whole district is closed. However, there may be a need, on a case-by-case basis, to consider whether the closure results in a "material failure to implement the IEP" that would require compensatory education services. In some cases, school districts may want to provide some interim services to mitigate potential claims at the back end. But the Court suggests here that they are not compelled to do so. And the occasional Friday Furlough is not likely to meet the "material failure to implement" test.