Tuesday, September 3, 2013
A panel of the Ninth Circuit ruled on August 28 that Hawaii violated the Individuals with Disabilities Education Act by eliminating special education eligibility for 20 and 21 year olds when general education students of those ages could attend free GED and competency based education programs. E.R.K. v. Hawaii Department of Education reversed a decision of the district court that had upheld a Hawaii statute, Act 163, barring students from attending public school after the last day of the school year in which they turn twenty. The statute applies to all students, whether covered by IDEA or not. The Hawaii Department of Education, however, operates a network of adult education schools called the Community Schools for Adults. These schools offer free programs by which general education students can earn a high school diploma either under a GED program or a competency based programs, and are open to students eighteen or older who do not have a high school diploma. They do not offer IDEA services to students with disabilities.In the E.R.K. case, a class of Hawaii students otherwise entitled to special education services but made ineligible by Act 163 challenged the law as contrary to the IDEA provision that guarantees a free, appropriate public education to all children with disabilities between the ages of thee and twenty-one, inclusive, except to the extent that application of the age range to children aged three through five or eighteen through twenty-one would be inconsistent with state law or practice regarding provision of public education in those age ranges. The court found the provision’s language “not completely pellucid” and the regulations no help, so it turned to the legislative history of the federal law, which made it clear that the age exceptions apply only when the state does not provide free public education to students without disabilities in the relevant age groups. Hawaii’s Community Schools for Adults offer free public education consistent with the definition of that term in IDEA to non-disabled students, so the state violated the federal law. The court dismissed Hawaii’s arguments that the GED and competency based programs were not really secondary education, saying that the state was asking the court “to contrive an atextual distinction between authentic and ersatz secondary education and impose it on the statutory text.” The court rejected the plaintiffs’ challenge to the state statute based on the Americans with Disabilities Act and Rehabilitation Act, however, saying that maintaining eligibility in special education programs for the students above the age range did not qualify as a reasonable accommodation with regard to the Community Schools program. The court did not discuss any of the regulations under the Rehabilitation Act pertaining to secondary education, and it is unclear how fully the Rehabilitation Act claim was developed by the parties.
Advocates for children with disabilities had viewed Hawaii’s cutback in age eligibility with some alarm, and were distressed when the District of Hawaii upheld the law in the decision that has now been overturned, R.P.K. v. Department of Education, No. 10-00436 DAE, 2012 WL 1082250 (D. Haw. Mar. 30, 2012). The decision of the court of appeals should allay their concerns.