Hawaii law barring students from attending public school after age 20 violates the IDEA

E.R.K. v. State of Hawaii Dep’t of Educ., No. 12-16063 (9th Cir. Aug. 28, 2013)

Abstract: A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit (CA, OR, WA, AZ, MT, ID, NV, AK, HI, GU, MP) has ruled that Hawaii’s law barring students from attending public school after reaching the age of 20 violates the Individuals with Disabilities Education Act (IDEA) provision that guarantees disabled students a free appropriate public education until their 22nd birthday. The panel concluded that the IDEA’s exception to its default age limit, which allows for state laws that do not provide free public education beyond the age of 18, did not apply because the denial of free public education must apply equally to non-disabled and disabled students. The panel found that because Hawaii maintained an adult diploma program for non-disabled students over the state age limit, the state provided a free public education for non-disabled students above the age limit, but not for disabled students.

Facts/Issues: A Hawaii statute, Act 163, barred students from attending public school after the last day of the school year in which they turned 20. Hawaii provided education for students older than 20 to earn a high school equivalency diploma by enrolling in one of the state’s ten Community Schools for Adults (adult diploma program), but it did not provide special education services for students over 20.

Four disabled students filed a class action suit in federal district court against the Hawaii Department of Education (HDE) alleging that Act 163 violated federal law by denying public education to special needs students aged 20 to 21 while offering it, in the form of the Community Schools for Adults, to students without special needs. The students raised claims under the IDEA, the Americans with Disabilities Act (ADA), and the Rehabilitation Act (Section 504).

The IDEA claim alleged that Act 163 violated federal law by denying public education to special needs students aged 20 to 21 while offering it, in the form of the adult diploma program, to students without special needs. The claims under the ADA and Section 504 alleged that HDE’s exclusion of disabled students from adult education constituted disability discrimination under those statutes.

The district court ruled for HDE on all three claims at issue. On the IDEA claim, it held that Act 163 was consistent with federal law because the adult diploma program did “not provide the equivalent of a secondary school education to general education students,” and because HDE had no “systemic practice of offering the same or equivalent education to general education students who have aged out while eliminating education services for special education students.” On the ADA and Section 504 claims, the court held that the students had made a prima facie case of disability discrimination, but did not meet their burden of identifying a reasonable accommodation that would allow disabled students to benefit meaningfully from the adult schools.

Ruling/Rationale: The Ninth Circuit panel reversed the district court’s ruling on the IDEA claim. However, it affirmed the district court’s holdings as to the ADA and Section 504 claims that the students had failed to establish the existence of reasonable accommodations that would make the adult diploma program generally accessible to disabled students.

In regard to the IDEA claim, the panel framed the issue as: “[W]hether Act 163 runs afoul of the IDEA, which restricts the power of states to establish age limits on special-education eligibility in certain circumstances.” Based on the legislative history of the IDEA and the statutory language of Act 163, it answered in the affirmative.

The panel pointed out that the IDEA requires states to provide a “free appropriate public education to all children with disabilities residing in the state “between the ages of 3 and 21, inclusive.” So, as a result, a student’s eligibility for services under IDEA terminates on the student’s twenty-second birthday. However, it noted that the law contains an exception to the age limit:

A state’s duty to provide special education to children with disabilities does not extend to children aged 3 through 5 or 18 through 21 to the extent that [the duty’s] application to those children would be inconsistent with State law or practice, or the order of any court, respecting the provision of public education to children in those age ranges.

The panel acknowledged that the Ninth Circuit has never interpreted the IDEA exception and that the “federal regulations are little help, as they simply reiterate the statutory language in nearly identical terms.”

However, the panel found that the IDEA’s legislative history provided insight into the exception’s meaning. In particular, a 1975 Senate report stated that “states are free to elect not to provide special education to disabled students between 18 and 21, but only if they also elect not to provide ‘free public education’ to nondisabled students.” Based on this legislative history, the panel interpreted the exception to mean that “Hawaii cannot deny special education to disabled students aged 18 through 21 if it in fact provides ‘free public education’ to nondisabled students in that range of ages.”

As a result, the panel stated that the determining factor as to whether Act 163 ran afoul of IDEA was whether the adult diploma program constitutes “free public education.” In order to answer that question, it looked at IDEA’s definition of the closely related phrase “free appropriate public education.” After stripping out those aspects of the definition that clearly relate to the education’s “appropriateness,” as opposed to its “free” and “public” character, the panel found a reliable index of what “free public education” means under the IDEA.

Based on its truncating of the IDEA’s four criteria for a “free appropriate public education,” the panel concluded: “[A] ‘free public education’ is one that is 1) provided at public expense, under public supervision and direction, and without charge; and 2) involves preschool, elementary, or secondary education.” Examining the adult diploma program provided under Act 163, it concluded that the program satisfied both prongs of the definition. It also found the program met the IDEA’s definition of “secondary school.” The panel, therefore, concluded that the “state offers ‘free public education’ to nondisabled students over 18 and under 22.”

The panel rejected HDE’s arguments that the adult diploma program does not offer free public education. It was not persuaded by HDE’s first argument that the “conventional” or “traditional” secondary education offered in Hawaiian high schools can be distinguished from the less demanding diploma program. The panel found unavailing HDE’s contention that the differences between “conventional” high schools in Hawaii and the diploma program are so substantial that both school systems cannot offer secondary education.

The panel countered: “Nothing in the IDEA, however, supports the proposition that a program constitutes ‘secondary education’ or ‘free public education’ only if it is structurally identical to the ordinary public high school curriculum offered to nondisabled students.” It continued, “In light of the variety of specialized secondary education the IDEA makes available to disabled students, it is simply implausible that the phrase ‘free public education’ in the § 1412(a)(1)(B)(I) exception refers narrowly to a ‘conventional’ high school curriculum.”

The panel found no merit in HDE’s second argument that “an opinion letter from the United States Department of Education establishes that GED courses are not ‘secondary education.’” It concluded:

The letter does not alter our analysis, because E.R.K. is not arguing that the [adult diploma program] must provide IDEA services. At most, the letter reflects the United States Department of Education’s view that not all GED preparation programs are necessarily part of an “appropriate secondary education.”

As to HDE’s argument that “IDEA’s definition of ‘transition services,’ which school districts must offer when a student ages out of IDEA eligibility, proves that adult education and secondary education are mutually exclusive,” the panel responded: “The use of the phrase ‘adult education’ in connection with transition services does not imply mutual exclusivity between ‘adult education’ and ‘secondary education.’” In sum, the panel determined that none of HDE’s arguments swayed it from the conclusion that the adult diploma program “offer ‘free public education’ to students who do not require IDEA services.”

The panel also was undeterred by “the district court’s finding that [HDE] does not ‘usher’ or ‘steer’ nondisabled students into the GED and CB programs once they age out of the conventional high schools.” It stated:

A state’s duty to educate disabled children until they turn 22 is only excused if free public education is foreclosed to disabled and nondisabled students alike. Whether a state encourages nondisabled students to take advantage of what free public education is available is irrelevant….  In Hawaii’s two-track system, nondisabled students between the ages of 20 and 22 can pursue the diplomas that eluded them in high school, but students with special needs are simply out of luck.

Turning to the ADA and Section 504 claims, the panel agreed with the district court that the plaintiffs had failed to establish a prima facie case of disability discrimination because they failed to produce “evidence of the existence of a reasonable accommodation.” The panel found the plaintiffs had “not identif[ied] changes to the structure or curriculum of the [adult diploma program] that would make them generally accessible to disabled students.” It pointed out that the accommodation identified by the plaintiffs, i.e., that HDE maintain disabled students’ special-education placements until their twenty-second birthdays, “would do nothing to help disabled students access” the diploma program.

E.R.K. v. State of Hawaii Dep’t of Educ., No. 12-16063 (9th Cir. Aug. 28, 2013)

[Editor's Note: In August 2010, Legal Clips summarized a decision by a three-judge panel of the U.S. Court of Appeals for the Third Circuit (PA, NJ, DE, VI) in Ferren C. v. School District of Philadelphia, which ruled that a special education student is entitled to have the school district issue annual individualized educational plans (IEP), and serve as her local education agency (LEA) during her three-year compensatory education period, even though she had reached her twenty-first birthday. The panel held that she was entitled to such services as equitable relief under the IDEA for prior violations of the IDEA.]

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