Court: DOE violated rights of autistic child

The state Department of Education violated the rights of an autistic Maui student by deciding to have him change schools at a meeting his parents could not attend due to illness, the U.S. 9th Circuit Court of Appeals ruled Thursday.

A three-judge panel of the court ruled that Spencer Clark, an 18-year-old autistic student from Kihei, was denied a “free and appropriate public education” and overturned a decision by the U.S. District Court in Hawaii.

“The court made a point about him transferring,” said Keith Peck, the Clark family’s attorney, in a phone interview Friday. “The legal issue is actually holding the meeting without the parents, so whether they changed (Clark’s) placement or not, it still would have been a violation.”

The federal Individuals with Disabilities Education Act requires all states to provide “a free and appropriate public education” (FAPE) to disabled children from ages 3 to 22. The act also requires public schools to create an Individualized Education Program for each student and to hold annual meetings that must be attended by a parent.

“Parental participation in the IEP and educational placement process is central to the IDEA’s goal of protecting disabled students’ rights and providing each disabled student with a FAPE,” 9th Circuit Judge Richard Paez wrote in his opinion for the three-judge panel. “We conclude that the department violated the IDEA’s explicit parental participation requirements.”

At the scheduled parental meeting in November 2010, the student’s parents, Doug and Cindy Clark, were absent due to the flu.

“First, my son had it, and then my husband and I caught it from him,” Cindy Clark said in a phone interview Friday. “In between throwing up and having the chills, Doug was doing everything he could to go to that meeting or reschedule it.

“But the DOE could (not) care less.”

According to the ruling, Doug Clark did not “affirmatively refuse to attend the meeting,” rather he “vigorously objected” to the department holding the meeting without him and asked that it be rescheduled.

“By denying (Doug Clark) the opportunity to participate in the IEP process, the department denied Spencer a FAPE,” Paez wrote.

Diagnosed with autism at age 2, Spencer Clark was placed in the private special education school, Horizons Academy of Maui, in the 5th grade at the Education Department’s expense. Cindy Clark said that her family has been fighting the department ever since.

“We’ve been going to hearings every year,” she said. “Ever since we got the judgment to go to Horizons, they’ve fought us the entire way. They’re just horrendous. They’re callous, and they’re for themselves.”

The kindergarden-to-12th grade Horizons Academy is the only one of its kind in Kihei, with an annual tuition of $23,000, its website said.

The DOE’s decision would have removed Spencer Clark from Horizons and put him into the Workplace Readiness Program at Maui High School.

Following the DOE decision, the Clarks filed the appeal and continued to send their son to the Kihei school at their own expense.

“They just don’t want to provide the services,” Cindy Clark said about the department. “We had to take out a loan to continue sending Spencer to Horizons, and now we’re like $45,000 in the hole.”

Following the reversal of the lower court ruling, the appeals court remanded the case back to U.S. District Court in Hawaii, which will consider reimbursement of tuition and other services to the parents.

“We are carefully reviewing the 9th Circuit decision,” Deputy Superintendent Ronn Nozoe said in an email Friday. “The department intends to comply fully with the legal mandates on free and appropriate education.”

Peck, who has been practicing special education law since 1998, called the ruling a “watershed case” and criticized the department and district court for eroding the standards of the disability act.

“This issue changes the landscape between the DOE and parents,” he said. “The 9th Circuit reaffirmed the seriousness that you can’t give the DOE a free-pass. There’s no longer the ability for the DOE to go into court and blame the parents.”

The defendants in the case were the state Department of Education and state schools Superintendent Kathryn Matayoshi.

* Chris Sugidono can be reached at