Case 1:20-cv-00154-RT-NONE Document 1 Filed 04/13/20 Page 1 of 14

KEITH H.S. PECK

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6825

LEGALACTION ALC
116 Desert Lotus
Irvine, CA 92618
Telephone: (877) 570-7333
Facsimile: (877) 570-1233
E-mail: supervising@advocacy-project.com
Attorney for Plaintiffs
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI'I

W.G., individually and as guardian ad
litem to, A.G.,
R.S., individually and as guardian ad
litem to, H.S.,

Civ. No. ______________

COMPLAINT

D.T., individually and as guardian ad
litem to, S.K.,
R.K., individually and as guardian ad
litem to T.K.,
on behalf of themselves and all other
similarly situated,
Plaintiffs,
vs.
CHRISTINA KISHIMOTO, in her official
capacity as Superintendent of the State of
Hawaii, Department of Education,
Defendants,

COMPLAINT

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INTRODUCTION
This complaint is meant to facilitate the resolution of what could otherwise
be thousands of individual claims for compensatory education that may come at
significant financial cost to the taxpayer and school-system in Hawaii. This claim
is not meant to further burden Defendant but to lift the burden of defining an
equitable remedy for the denial of Plaintiffs’ and class members’ rights.
Plaintiffs’ counsel will provide 100 hours of pro bono services to class members
to effectuate the post-decision resolution of these issues.
The announced ad hoc approach Defendant anticipates using whenever that
chance occurs for an individual determination of a student’s needed
compensatory remedy would not result in a data-driven, equitable remedy and
would create contention between the school system and families. That approach
would be taken many months in the future where evidence of regression and the
recoupments that occurred in the interim would not be realistically measurable
and Plaintiffs’ recourse would be inhibited by lack of evidence. Plaintiffs
recognize Defendant’s difficult situation but wish to protect their interests and
that of the class by establishing a violation of their rights and a set of parameters
and procedures for determining the lost educational opportunity class members
have and will sustain.

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Clearly, Students have and will be subject to periods where there is a
material failure in the implementation of their educational programs designed to
provide them meaningful access and/or meet their educational needs as adequate
as Defendant provided for the needs of non-disabled children. Even during times
that test our commitment to the civil and statutory rights of a minority or a
protected class, we must strive towards a fair and meaningful remedy for
violations of those rights.
1.

Plaintiffs R.S., W.G., D.T., and R.K. (“Guardians”) bring this Complaint

on behalf of themselves and on behalf of their wards H.S., A.G., S.K., and T.K.
(“Students” collectively “Plaintiffs”) and on behalf of Hawai`i children and
young adults (“Declaratory Relief Class” otherwise “DRC”) and
(“Compensatory Education Sub-Class” otherwise “CESC”) eligible for
protection under the Individuals with Disabilities Education Act (20 U.S.C.
§1400 et seq.) (“IDEA”) and/or Section 504 of the Rehabilitations Act of 1974
(“Section 504”) through an Individualized Education Program (“IEP”) and/or
Modification Plan (“MP”) and under the theory of a ‘Class of One’ claim.
2.

Defendant is required to implement Students’ IEPs in order to meet its

legal obligations to provide Students a free appropriate public education
(“FAPE”) but are failing to do so in violation of federal and state laws.
3.

Defendant’s actions have caused and continue to cause harm to Plaintiffs
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by materially failing to provide FAPE and by disparate impact caused by such
action against Plaintiffs.
4.

Students have experienced a material failure of their educational and/or

related services specified in their IEPs and/or MPs.
5.

Students have sustained lost educational opportunity where the DOE has

materially failed to implement their IEP’s and/or MPs.
6.

Defendant discriminate against Students based on their disability by

depriving them of the services and supports deemed necessary for FAPE in their
IEPs and/or MPs while providing students educational services to students who
are ineligible for Section 504 and/or IDEA protections.
7.

Defendant continues to cause harm to Plaintiffs by its actions and

inactions.
8.

As a result of Defendant’s illegal and/or discriminatory policies, thousands

of Students are being deprived of critical services in violation of their civil and
statutory rights.
9.

Plaintiffs seeks declaratory relief which will allow Plaintiffs the right to

pursue individual remedies for compensatory education in collateral actions
against Defendant at the administrative level using collateral estoppel in order to
efficiently seek relief for Plaintiffs and the numerous DRC members.
10.

Plaintiffs also seek an order directing Defendant to develop an equitable
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means of remedying Plaintiffs’ and DRC and/or CESC members lost
educational opportunity by establishing criterion and procedures that involve,
among other things, Plaintiffs’, DRC and CESC Guardians, data,
standardization, categorization and formula to efficiently and fairly apply said
determination.
JURISDICTION AND VENUE
11.

This Court has jurisdiction over this case under 28 U.S.C. §1331 (federal

question) and 28 U.S.C. §1343 (civil rights).
12.

Venue is proper in the District of Hawai`i pursuant to 28 U.S.C.

§1391(b) because the events giving rise to Plaintiff’s claims all occurred in this
District.
THE PARTIES
13.

Plaintiffs bring this action on behalf of themselves and in a representative

capacity on behalf of Hawai`i children and young adults eligible between the
ages of 3 and 22 (where there was a material failure to implement their IEP
and/or MP at times during the spring of 2020, or where there was disparate
educational impact caused by Defendant’s policies), and on behalf of their
parents and/or Guardians; DRC.
14.

Plaintiffs also bring this action on behalf of a sub-class of members of the

DRC that have sustained lost educational opportunity and/or financial expense
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and/or obligations due to the allegations made against Defendant; CESC.
15.

Defendant CHRISTINA KISHIMOTO is the current Superintendent of the

State of Hawai`i, Department of Education (“DOE” otherwise “Defendant”).
She is sued in her official capacity.
16.

DOE is the government agency responsible for administration of the

public education system and Part B of the IDEA and Section 504, in Hawai`i.
17.

Defendant has acted and continues to act at all times relevant in their

official capacity under color of state law.
PLAINTIFF’S FACTUAL ALLEGATIONS
18.

FAPE is meant to provide eligible student’s with access to a publicly

funded education.
19.

Under the IDEA, FAPE has been described as a “basic floor of

opportunity” and more recently an education reasonably calculated to enable
them to "make progress appropriate in light of the child's circumstances,".
20.

Under the IDEA, FAPE is defined as an educational program that is

individualized to a specific child, that meets that child's unique needs, provides
access to the general curriculum, meets the grade-level standards established by
the state, and from which the child receives educational benefit.
21.

FAPE, under the IDEA, must be provided in conformity with the IEP

required under section 1414(d) of the IDEA.
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22.

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A student’s IEP is designed to provide an eligible child with meaningful

access to a public education.
23.

Under Section 504, FAPE consists of the provision of regular or special

education and related aids and services designed to meet the student's individual
educational needs as adequately as the needs of nondisabled students are met.
24.

A MP provides a student eligible under Section 504 with the supports

necessary to create a level of parity of access with non-disable students’ access
to their education.
25.

If a student is receiving extended school year (“ESY”) services they have

met additional eligibility standards, in addition to those necessary to be eligible
under the IDEA.
26.

There was a material failure to implement spring 2020 ESY services and

supports for Students who were eligible for these services.
27.

There was a material failure to implement schoolyear IEP services and/or

supports for Students who are eligible for IDEA protections and have an IEP,
since on or about March of 2020.
28.

There was a material failure to implement MPs services and/or supports

for Students who are eligible for Section 504 protections and have an MP, since
about March of 2020.
29.

DOE is required to provide Hawai`i student eligible under the IDEA with
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FAPE.
30.

DOE receives federal funds and is required to provide meaningful access

to a public education by the provision of regular or special education and related
aids and services designed to meet the student's individual educational needs as
adequately as the needs of nondisabled students are met with disabilities,
pursuant to Section 504 of the Rehabilitation Act. 29 U.S.C. § 701 et seq.
31.

DOE’s failure to implement eligible student’s IEP while providing

educational access to students who are not eligible under the IDEA and/or
Section 504 is discrimination based on their disability.
32.

Defendant’s actions have failed and continue to fail to provide children

and young adults with the mandated access the law requires.
33.

Defendant’s failures to coordinate and ensure FAPE is being provided to

eligible students is a systemic failure of the State, resulting in thousands of
violations of civil rights day after day.
34.

A determination by this Court is needed so that Plaintiffs can seek

individual determinations of the type and amount of compensatory education that
is equitable.
35.

Plaintiffs bring this action to challenge the State’s systemic policies that

violate their rights and those of the DRC; no exhaustion of remedies is required.
Plaintiffs
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36.

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Student H.S. is an eligible student under the IDEA and/or Section 504.

R.S. is the legal guardian of H.S. The DOE has materially failed to implement
H.S.’s IEP since on or about March of 2020. H.S. has experienced dramatic
behavioral, academic and educationally related regression, areas of concern
addressed in his IEP. H.S. was eligible for ESY services, but the DOE materially
failed to implement those services. He sustained lost educational opportunity
where the DOE has materially failed to implement their IEP’s and/or MPs. He
has been disparately impacted by the educational policies of Defendant.
37.

Student A.G. is an eligible student under the IDEA and/or Section 504.

W.G. is the legal guardian of A.G. The DOE has materially failed to implement
A.G.’s IEP since on or about March of 2020. A.G. has experienced academic
and educationally related regression, areas of concern addressed in his IEP. A.G.
was eligible for ESY services, but the DOE materially failed to implement those
services. He sustained lost educational opportunity where the DOE has
materially failed to implement their IEP’s and/or MPs. He has been disparately
impacted by the educational policies of Defendant.
38.

Student S.K. is an eligible student under the IDEA and/or Section 504.

D.T. is the legal guardian of S.K. The DOE has materially failed to implement
S.K.’s IEP since on or about March of 2020. S.K. has experienced academic,
behavioral and educationally related regression, areas of concern addressed in
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her IEP. S.K. was eligible for ESY services, but the DOE materially failed to
implement those services. She sustained lost educational opportunity where the
DOE has materially failed to implement their IEP’s and/or MPs. She has been
disparately impacted by the educational policies of Defendant.
39.

Student T.K. is eligible student under Section 504. R.K. is the legal

Guardian of T.K. The DOE has materially failed to provide T.K. with his
accommodations in his MP since on or about March of 2020. T.K. has
experienced academic and educationally related regression, areas of concern
addressed in his MP. T.K. has sustained lost educational opportunity. He has
been disparately impacted by the educational policies of Defendant.
COUNT I
VIOLATION OF CIVIL RIGHTS (42 U.S.C. § 1983) SECTION 504
REHABILITATION ACT (29 U.S.C. § 701)
40.

Plaintiffs incorporates each and every allegation above as though fully set

forth herein.
41.

Plaintiffs are qualified individuals with a disability under Section 504 of

the Rehabilitation Act in that their disabilities are a physical or mental
impairment that substantially limits one or more major life activities.
42.

Defendant receives federal financial assistance for the relevant programs.

43.

Defendant has violated the civil rights of these Plaintiffs secured by

Section 504 by failing implement their IEPs or Section 504 MPs while
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providing educational services to students that are ineligible under the IDEA
and/or Section 504.
44.

Defendant has violated the civil rights Plaintiffs eligible or with eligible

wards under Section 504 by utilizing criteria and methods of administration of
educational services that subject them to discriminatory effect.
45.

Defendant has violated the civil rights of these constituents secured by

Section 504 by not affording them as adequately as afforded non-disabled
students.
46.

Defendant has violated the civil rights Students secured by Section 504

by not making reasonable accommodations, and denying meaningful access to a
public benefit, where that benefit was provided to non-disabled Students.
47.

As the result of the DOE policies, Students’ access to educational

services has been impacted more significantly then their non-disabled peers.
48.

Plaintiffs are suffering ongoing harm by Defendant violations.
COUNT II
VIOLATION OF CIVIL RIGHTS (42 U.S.C. § 1983)
IDEA (20 U.S.C. §1400)

49.

Plaintiffs incorporate each and every allegation above as though fully set

forth here.
50.

DOE has violated, and is continuing to violate, the IDEA by materially

failing to implement Student’s IEPs.
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51.

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As the result of the DOE policies, Students’ access to educational

services has been impacted more significantly then their non-disabled peers.
52.

Students’ access to educational services are defined by their IEPs, which

the DOE has materially failed to implement, while providing access to
educational services for non-disabled students.
COUNT III
VIOLATION OF CIVIL RIGHTS (42 U.S.C. § 1983)
‘CLASS OF ONE’ CLAIM
53.

The DOE deprives Plaintiffs of equal protection under the color of state

law in violation of 42 U.S.C. § 1983 by the disparate impact its actions have had
on their access to educational services.
WHEREFORE, PLAINTIFFS pray that this Court:
A.

Certify the Declaratory Relief Class as a class action pursuant to Rule
23(b)(2) as defined above, and at such time as the Court deems proper,
certify the Compensatory Education Relief Sub-Class as a class
action pursuant to Rule 23(b)(3) as defined above;

B.

Enter declaratory judgement for Plaintiffs and the Declaratory Relief
Class as set forth herein that:
i.

DOE’s materially failure to implement Students’ and DRC’s
IEP and/or MP under the IDEA and/or Section 504 was a
failure to meet Students’ needs as adequately as the needs of
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nondisabled students and discriminatory under Section 504
and this violation entitles Plaintiffs and DRC to relief under
42 U.S.C. § 1983 for civil rights violations;
ii.

DOE’s materially failure to implement Students’ and
DRC’s IEP and/or MP under the IDEA and/or Section 504
denied them a FAPE and violates the IDEA and/or Section
504 and this violation entitles Plaintiffs and DRC to relief
under 42 U.S.C. § 1983 for civil rights violations;

iii.

DOE’s provision of alternative means to provide students
educational benefits during school facility closures disparity
impacted access to educational benefits to Students and
DRC in violation to the Fourteenth Amendment’s Equal
Protection clause and this violation entitles Plaintiffs’ and
DCR to relief under 42 U.S.C. § 1983 for civil rights
violations;

C.

Order Defendant to develop an equitable means of
remedying Plaintiffs’ and DRC members lost educational
opportunity by establishing criterion and procedures that
involve Plaintiffs’ and DRC and CESC Guardians, data,
standardization, categorization and formula to efficiently
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and fairly apply said determination.
D.

If it is just and necessary, appoint a special master to
coordinate and monitor Defendants’ compliance with any
settlement between the parties or Orders of this Court;

E.

Award Plaintiffs its reasonable attorneys’ fees, costs, and
expenses under any applicable law; and

F.

Grant such other and further relief as this Court deems just
and proper.

DATED: Honolulu, Hawai`i, April 13, 2020.
/s/ Keith H.S. Peck
KEITH H.S. PECK
Attorney for Plaintiffs

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