Monday, September 23, 2013
Just last week, I posted on a Connecticut court rejecting a student's cause of action under the state's anti-bullying statute. In contrast, the Old Bridge School Board in New Jersey settled an anti-bullying case for 60,000 last week. New Jersey's anti-bullying law is considered the toughest in the nation. It was a response to the public outcry over the suicide of Tyler Clementi, a freshman at Rutgers University, in 2010. The explicit mandates and clarity of the New Jersey law seems to have made all the difference.
This clarity has a huge upside statewide. Knowing the risks of litigation, districts will respond quicker and more effectively to bullying. Those who do not will suffer the consequences. The trouble is discerning what amounts to "bullying" around the margins. All "bullying" is serious and I, in no way, mean to minimize it. Schools should be held accountable for the failure to stop it. But some schools overreact and punish behavior that is not bullying. From many schools' perspective, it is better to be safe (as in not get sued) than sorry. This is the same approach we saw schools take with zero tolerance policies on weapons and drugs, which has lead to the expulsion of children with finger clips, butter knives in their lunch boxes, and tylenol in their purse. New Jersey has apparently already seen some potential overreactions/over-broad applications with bullying. None of this is to find flaw in the law, but to point out the potential serious downside of applying laws without a good dose of common sense and judgment. Unfortunately, those dreaded professional development workshops might be of some use here.
Friday, September 20, 2013
In 2002, the Connecticut Legislature enacted an anti-bullying statute that directed schools to come up with policies and procedures to address and prevent bullying. In the wake of high profile bullying incidents that led to the victims' suicide or other serious harm, Connecticut reenacted and strengthened the statute in 2011. The current statute broadly defines bullying and harassment and provides that "Each local and regional board of education shall develop and implement a safe school climate plan to address the existence of bullying in its schools." Conn. Gen. Statute 10-222d. It further specifies 17 different responsibilities, structures, and procedures that must be included in the plan and complied with. Id. The statute does not include an explicit cause of action.
Some prior courts had addressed the existence of cause of action under the old version of the statute, but Mazzo v. Town of Fairfield Bd. of Educ., 2013 WL 4872203 (Sup. Ct. of Conn. 2013), appears to be a case of first impression regarding the newly enacted version of the statute. Plaintiff's primary argument appeared to be that Conn. Gen. Statute 10-222l evidences intent to create of cause of action because, while that section speaks to immunity, it conditions that immunity on good faith compliance with the statute. In other words, plaintiff argues that a basic failure to attempt to comply with the Act is not granted immunity and, thus, is actionable under the act.
Thursday, September 19, 2013
For those who dug a little deeper on the special education case I posted yesterday, Horton v. Boone Cnty. Sch. Dist., 2013 WL 4875025 (E.D. Kentucky 2013), you may have noticed an oddity. The plaintiff's claim was about the failure to properly implement the student's Rehabilitation Act Section 504 plan, but the court dismissed the claim for failure to exhaust IDEA administrative remedies. This struck me as odd and irrelevant, but I did not address it in my post because I was not sure of the right answer and I did notice that the plaintiff had cited to some Kentucky regulations, which looked to be IDEA implementing regulations. In other words, maybe there was an IDEA claim there and I just did not see it.
Mark Weber was nice enough to clarify the issue for me and point out what is another significant issue in cases of this sort. He offered the following:
Wednesday, September 18, 2013
Is Pursuing Administrative Relief Futile After Graduation for Special Education Students? Court Says No
Dakota Horton enrolled in a new school in the fall of 2008. In his prior school, he had received services pursuant to a Section 504 plan, but when he enrolled in Boone County Schools, his 504 plan was never reviewed, notwithstanding his parents requests. In his senior year, he encountered problems in math and requested an accommodation. He did not receive it, did not pass the course, and was unable to graduate with his class in May of 2012. He did, however, graduate that summer. Apparently, this delayed graduation and the course structure affected his subsequent college opportunities and requirements.
He filed a claim against the district under Section 504 of the Rehabilitation Act of 1973 and IDEA. The district court dismissed his case for failure to exhaust his administrative remedies. Horton asserted that his administrative remedies were futile because he had already graduated from high school, but the district court in Horton v. Boone Cnty. Sch. Dist., 2013 WL 4875025 (E.D. Kentucky 2013), disagreed, finding that he still could have sought compensatory services from the district after the fact.
Tuesday, September 17, 2013
When I first posted on DOJ's motion to enjoin vouchers in Louisiana until the district court could determine whether they had the effect of violating standing court ordered desegregation, I assumed that no one but the few remaining desegregation junkies and the few students affected by it would pay it much attention. DOJ's motion was standard fare for a desegregation case and, in comparison to other current desegregation battles, is of relatively small importance. I seriously underestimated the politics of this case, which explains why I am a law professor.
I have no doubts on the law here, but what is becoming increasingly clear is that no one else really cares what the law is. All that seems to matter are the politics and, rather than a story dies quickly, this one has legs due to the ratcheting up of the politics. Two cases in point. The Chicago Tribune issued a stinging editorial on Sunday titled United States v. minority children. Now, former Governor Jeb Bush, U.S. Senator Tim Scott, and the Foundation for Excellence in Education are joining Governor Jindal in hosting a press conference at the National Press Conference tomorrow to discuss the lawsuit. Earlier, House Majority Leader, Eric Cantor, asked why Obama wants to keep poor kids out of good schools.
Maybe, the escalating politics suggest a new answer to the question in my second post: why is Louisiana seeking to delay the hearing in this case? The new answer may be that it gives the state more time to turn up the politics and distract the district court from the legal question, which is a slightly different game--albeit still a game--than the one I posited earlier.
Several states like Nebraska, Wyoming, Tennessee and Wyoming, to name just a few, have seen school finance litigation on behalf of rural districts. Other states like North Carolina have included rural districts as a distinct class of disadvantaged districts within broader litigation. Notwithstanding these examples, it is sometimes easy to miss the plight of rural districts, particularly in states that are not rural. In states like New York and New Jersey, the neediest districts and students find their homes in the same places as school finance litigators: large urban centers. Advocates and reasearchers do not have to look far to find obvious and gross inequity.
A new article by Kyle E. Gruber, Bringing Home the Bacon: A Case for Applying the New Jersey Urban School Funding Remedy from Abbott v. Burke to Poor Rural School Districts, 2 Colum. J. Race & L. Rev. 167 (2012), highlights how rural districts have been overlooked in New Jersey, the home of the strongest school finance precedent in the nation. Litigants filed suit and apparently established constitutional violations 15 years ago, but unlike urban districts, have yet to receive a remedy.
Rob Garda offers the following:
The Third Circuit recently held that a student who is not an eligible “child with a disability” cannot seek redress under the IDEA for misplacement in special education. S.H. v. Lower Merion School District, 2013 WL 4752015 (May 23 2013). LaJuana Davis summarized the facts and the holding of the S.H. case on this blog here. The key holding - that the plain language of the IDEA permits only a “child with a disability” to bring claims under the statute – does not hold up under scrutiny. The Court relied on the general introductory language of Section 1415(a), requiring that states establish procedures to protect “children with disabilities,” to conclude all the remaining specific procedural safeguards in Section 1415 apply only to eligible children. But in identifying who may bring a due process claim, the IDEA allows “any party to present a complaint with respect to any matter relating to the identification, evaluation or educational placement of the child . . .” 20 U.S.C. 1415(b)(6) (emphasis mine). The Third Circuit’s presumption that the introductory language of subsection (a) limits the specific procedural rights listed under subsection (b) is wrong because many of the subsection (b) rights distinguish between “child with disabilities” and simply “child.” For example, only a “child with disability” may inspect records, 1415(b)(1), but any “child” is entitled to notice when the school proposes to initiate an identification or evaluation. 1415(b)(3). Many procedural rights are granted to children that are not eligible and the right to file for due process is one of them. Further, the mediation and due process subsections make no mention of being procedures available to only eligible children. 1415(e) and (f). While the Third Circuit purports to apply the plain language of the IDEA, it apparently ignores that “any party” may contest “any matter” relating to the evaluation and placement of a child, which is exactly what S.H. did in the case.
The Third Circuit’s conclusion that IDEA eligibility is a jurisdictional prerequisite to bringing a due process claim also ignores a long line of cases permitting students to contest eligibility determinations. Courts and hearing officers are often asked to determine whether evaluation procedures were followed in eligibility determinations or whether the substantive eligibility determinations were correct. For articles discussing the eligibility cases see here and here. Many of these courts and hearing officers conclude that the child is not eligible under the IDEA, but none of them question the child’s right to contest eligibility in a due process hearing.
Maybe a jurisdictional line can be drawn between parents contesting denial of eligibility, as occurs in most cases, and misplacement into special education, as happened in this case. But the Third Circuit did not draw such a line, nor should it. As counsel for S.H. pointed out, the IDEA is equally concerned with non-placement and misplacement into special education, particularly for minority students.
Monday, September 16, 2013
The district court in E.H. v. Mississippi Dept. of Educ., 2013 WL 4787354 (S.D. Mississippi 2013), issued its first opinion last week in a class action claim against the Mississippi Department of Education for its failure to force Jackson Public School District to comply with the IDEA's mandate of a Free Appropriate Public Education (FAPE). In September 2010, the first plaintiff filed an administrative complaint with the Mississippi Department of Education. The Department investigated the complaint and found that Jackson was, in fact, violating IDEA and ordered the district implementa a remedy. In follow up monitoring of the district, the Department found that Jackson had not remedied its violations of IDEA. The Department set November 1, 2012 as a deadline for compliance and indicated that failure to comply would result in the state stripping the district of its accreditation. But when November 1 arrived, the district was still non-compliant. Rather than take action against the district, the state extended the deadline (and did so again later). The deadline as it currently stands is February 28, 2014.
Special Education Teacher Who Objected to School’s Inclusion Plan Failed to State Valid Retaliation Claim Under § 504 or First Amendment
The Tenth Circuit has rejected a former special education teacher’s § 504 and First Amendment retaliation claims based on her reassignment to a general education classroom in Duvall v. Putnam City Sch. Dist. No. 1. The federal circuit court found that the teacher’s reassignment, after she protested her school’s special education policies, was supported by a legitimate reason and that her statements were made as part of her official duties, for which she was subject to employer discipline under the Garcetti/Pickering test. The teacher, Louise M. Duvall, was a special education teacher in Oklahoma when she protested her school’s decision to adopt a “full inclusion” model for providing special education services in the 2007-2008 school year. The full inclusion model integrates special education students into general classrooms by having special education teachers co-teach in those classrooms. Duvall was concerned that this inclusion model would not allow her to provide special education services such as “pull-out services”– one-on-one or small group instruction for special education students away from general education classrooms. She voiced her concerns that the inclusion model did not comply with federal disability education laws. Duvall also dissented to most of the IEPs with which she was involved during the school year and asked state agencies for information about “services for children.” She believed that those acts got her into trouble with school administrators. The next school year, the principal reassigned Duvall to a first-grade classroom, because he “believed she would be happier and more comfortable in that position and that such a move would greatly benefit her, her students, and the school.” Duvall protested the move, saying that she did not want to lose the extra five percent of pay that she received as a special education teacher. Duvall then resigned and sued the Putnam City School District and the school’s administrators under the Rehabilitation Act and the First Amendment, claiming that her reassignment to teaching first-grade was in retaliation for her opposition to the inclusion model. The Western District of Oklahoma granted summary judgment in favor of the school district on all of Duvall’s claims.
On appeal, the Tenth Circuit agreed that while Duvall’s reassignment was an adverse employment action, Duvall did not prove that the district’s stated reason for reassigning her was illegitimate or pretextual under McDonnell Douglas. Given that the school district was committed to a special education model to which Duvall was strongly opposed, the district’s stated reason for reassigning her—because the move would benefit her and the school—was not unworthy of belief, the circuit court found. The Tenth Circuit also found that Duvall’s letters and IEP dissents were not protected speech that was insulated from employer discipline under the First Amendment. The circuit court, applying Garcetti/Pickering, found that Duvall’s duties as a special education teacher included ensuring compliance with state and federal law, and thus her speech about the district’s meeting those obligations was undertaken in the course of her official duties. The Tenth Circuit further found that Duvall could not show that her statements to the State Department of Education about the full inclusion model caused her reassignment, because she failed to show that her direct employers were aware of the content of her views about the full inclusion model. Read the full opinion in Duvall v. Putnam City Sch. Dist. No. 1, No. 11-6250 (10th Cir. Aug. 5, 2013) here.
Friday, September 13, 2013
Emily Gold Waldman shared this analysis with us:
When the Supreme Court held in Garcetti v. Ceballos that public employees do not have First Amendment protection for speech that they utter pursuant to their official duties – even if that speech is on a matter of public concern – it created a special carve-out. Responding to a concern raised in Justice Souter’s dissent about professors’ academic freedom, the majority explicitly stated that it was not deciding “whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.” Since then, lower courts have had to grapple with two questions: (1) how does Garcetti apply to K-12 teachers’ job-related speech? and (2) how does Garcetti apply to university professors’ job-related speech?
So far, the circuits have been unanimous that Garcetti indeed applies to K-12 teachers’ job-related speech (essentially their classroom speech, the main aspect of their job). See, e.g., Johnson v. Poway Unified School District, 658 F.3d 954 (9th Cir. 2011); Evans-Marshall v. Board of Education, 624 F.3d 33d (6th Cir. 2010); Mayer v. Monroe County, 474 F.3d 477 (7th Cir. 2007). In other words, once the court finds that the teacher was speaking in her capacity as an employee rather than as a private citizen, the teacher loses her First Amendment claim.
By contrast, circuits are starting to hold that Garcetti does not apply to university professors’ job-related speech (i.e., their teaching and writing). The Fourth Circuit so held in 2011, see Adams v. Trustees of the University of North Carolina-Wilmington, 640 F.3d 550 (4th Cir. 2011), and the Ninth Circuit reached the same conclusion last week in Demers v. Austin, 2013 WL 4734033 (9th Cir. 2013). Both circuits reasoned that the Garcetti Court had explicitly reserved judgment on this sort of speech, and that applying the Garcetti framework to the teaching and writing of public university professors would imperil their academic freedom. (Indeed, they would have no First Amendment protection for such speech; their only protection would depend on their contractual arrangements with their universities.)
This distinction makes sense, and I think other circuits will probably follow the trend of holding that Garcetti applies to K-12 public school teachers’ classroom speech, but not to public university professors’ teaching and writing. The one odd thing about Demers is that the Ninth Circuit used such broad language in several places– stating that “there is an exception to Garcetti for teaching and academic writing” – that it almost could be read to encompass K-12 teachers as well as university professors. If it weren’t for the Ninth Circuit’s earlier decision in Johnson v. Poway – where it specifically applied Garcetti to a high-school teacher’s classroom speech – I’d really be wondering about this. In any event, it will be interesting to see how other circuits – and ultimately the Supreme Court? – weigh in on these questions.
Thursday, September 12, 2013
Alabama State University was awarded $1.54 million grant from the National Institutes of Health on Monday, which makes ASU’s other recent newsworthy event—in the form of a scalding opinion from the 11th Circuit Court of Appeals—all the more embarrassing. In Weatherly, et al. v. Alabama State University, released last week, the circuit court upheld a hostile work environment and retaliation verdict for over $1 million against the university. You know that a case will be bad when it opens with a statement that it “should greatly concern every taxpaying citizen of the State of Alabama, especially because it involves a public institution largely funded with tax dollars.” Three ASU female employees alleged that they were racially abused and sexually harassed while working for two ASU administrators: Dr. John Knight, Jr., Executive Vice President and Chief Operating Officer, and LaVonette Bartley, an associate executive director. The plaintiffs—two of whom are black and one is biracial—were repeatedly called racial slurs by Bartley. Bartley once called one of the women’s sons, a 7-year-old, a racial epithet in his presence. Bartley also routinely commented on the women’s bodies, touching them and pressing against them at their desks. When one of the women complained to Knight about Bartley’s conduct, Knight said that he “was not going to walk on eggshells around [his] office" and that no one was going to tell him “ how to run his office.” (Knight also allegedly made sexual and inappropriate comments to one of the plaintiffs.) Knight warned employees that if they contacted the EEOC, they would be terminated. He made good on that promise by terminating two of the plaintiffs shortly after they filed EEOC complaints. ASU appealed the trial verdict, raising three issues: that the district court abused its discretion by denying ASU’s motion to sever, that the district court erred in finding that the women were entitled to front pay; and that the district court should have granted ASU’s (untimely) motion for judgment as a matter of law timely, or in the alternative, its 60(b) motion. The Eleventh Circuit disposed of these appellate claims on procedural grounds. (Quite frankly, given that ASU did not timely raise its claims below, it probably should not have bothered to appeal at all. Experts estimate that after attorneys’ fees, court costs and interest are added to the plaintiffs’ recovery, ASU’s bill could be more than $3 million.) The circuit court closed its opinion with a blistering indictment:
We are left to speculate who is in charge at ASU. Regardless, however, we are unnerved by the apparent acquiescence to, if not outright condoning of, the abusive work environment created by its high-level employees. Such conduct simply has no place in a work environment, especially at a publicly funded university.Read the opinion in Weatherly, et al. v. Alabama State University here.
Wednesday, September 11, 2013
The over-identification of low-income and students of color in special education classes has been a problem for decades. But do children who are misidentified and placed in special education have a cause of action under the Individuals with Disabilities Education Act? No, according to the Third Circuit in a decision released last week in S.H. v. Lower Merion School District. S.H. is an African-American student who received Title I remedial instruction services from first grade to her sophomore year in high school. After testing in high school, several experts and the school district concluded that S.H. had been misdiagnosed as disabled. The experts found that while S.H. had underperformed on proficiency tests in her early education, earlier assessments that S.H. was learning disabled may have failed to consider the impact of a family tragedy that deeply affected S.H. in third-grade, when a murder-suicide took the lives of five of her relatives, and of the accidental death of one of S.H.’s best friends four years later. S.H. told her teachers that she did not think that she belonged in special education and protested her placement by refusing to attend speech therapy. In the 5th grade, her reading scores showed proficiency, and she made the honor roll in 7th and 8th grades. While S.H. was in special education, there was not time in her schedule to take some core courses such as eighth-grade science and Spanish. When S.H. was reevaluated in high school, evaluators concluded that she was not, and likely never was disabled. S.H. was removed from special education in her last two years of high school. She sued the school district for compensatory education and damages under the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act, and the Americans with Disabilities Act (ADA). The district court dismissed the IDEA claim outright for failing to state a claim and granted the school district’s summary judgment motion on the § 504 and ADA claims.
The Third Circuit found that the protections and remedies of the IDEA extend do not extend beyond children with disabilities. The Court interpreted the plain language of the IDEA to apply only to “children with disabilities and their parents” that does not include “children who are mistakenly identified as disabled, but who are, in fact, not disabled.” But S.H.’s § 504 and ADA claims were not barred by the statutes’ plain language because those laws protect disabled persons and persons who who are “regarded as” having a disability. The Third Circuit then turned to another issue of first impression: which standard of intentional discrimination to apply to S.H.’s claims. The court adopted the majority of circuits’ view that the deliberate indifference standard “is better suited to the remedial goals of [Section 504] and the ADA than is the discriminatory animus alternative.” However, the circuit court upheld the district court’s grant of summary judgment, finding that S.H. could not show that the school district knew of or was deliberately indifferent to her misdiagnosis before S.H.'s evaluation in 2010. Read the opinion in S.H. v. Lower Merion School District here.
Monday, September 9, 2013
The litigation in DOJ's suit over Louisiana's voucher program is moving fast. For the state, it is a little too fast. Two weeks ago, I posted on DOJ's claim that Louisiana's voucher program impermissibly interfered with standing desegregation orders. The district court quickly set a hearing for September 16. Now the state has responded that it wants to delay the hearing until November 15, claiming there is no rush because the new voucher applications will not start arriving until January. Louisiana's motivations for the delay are unclear. Maybe, the state is not prepared for the hearing. Maybe, it has ulterior motives.
Thursday, September 5, 2013
District Court Allows Unique Special Education and Negligence Claims to Proceed in Student Suicide Case
Like so many cases I have posted on recently, Moore v. Hamilton Southeastern Sch. Dist., 2013 WL 4607228 (S.D. Ind. 2013), involves an incredibly tragic set of facts. During his sixth grade year, the plaintiff, Jamarcus Bell, began experiencing disciplinary problems at school, which continued for the next two years. “[H]e was cited for 36 separate disciplinary infractions in less than two years. His misbehavior usually consisted of inappropriate physical contact with other students, such as slapping, spitting, punching, kicking, or placing gum in another student's hair.” On several occasions, however, it appears “Jamarcus was punished for acts of retaliation he perpetrated against other students who had provoked him,” although the school gave his parents the impression that he was the instigator.
In his seventh grade year, Jamarcus wrote in an essay “that he had ‘cut himself,’ run away from home, and attempted to overdose on pills.” That same year, he made an apparent suicide attempt in a closet at school. After the suicide attempt, Jamarcus was treated at a hospital and by a psychiatrist, who diagnosed him with attention deficit hyperactivity disorder (ADHD), major depressive disorder, and oppositional defiant disorder. The school subsequently evaluated him for special education but determined he was not eligible for services, largely due to the fact that his C grades showed he could be “’successful’ in the normal environment and was not suffering an adverse educational impact from his behavioral problems.” Jamarcus’s disciplinary problems, however, continued, as did harassment of him, including harassing racial and sexual orientation comments, theft and physical violence. He ultimately committed suicide at his parents' home on October 20, 2010, during the school's fall break.
The legal claims against the school in regard to negligence and the IDEA, however, are of particular interest for their novelty (at least to me).
Wednesday, September 4, 2013
The 9th Circuit affirmed a summary judgment ruling last week against a Nevada high school student who was expelled for off-campus speech. Landon Wynar, then a high school sophomore, was expelled for sending instant messages threatening to shoot certain classmates, bragging that he would “take out” people. After his expulsion, Wynar and his father sued the school district, arguing that it violated Wynar’s civil and First Amendment rights by expelling him for messages sent while off-campus. The 9th Circuit found that the school reasonably regarded Wynar’s messages as a threat, and it did not have to wait until that threat materialized. The court stated, “The messages presented a real risk of significant disruption to school activities and interfered with the rights of other students. Under the circumstances, the school district did not violate Landon’s rights to freedom of expression of due process.” Read the court’s opinion in Wynar v. Douglas County School District here.
Tuesday, September 3, 2013
The Second Circuit in KF ex rel CF v. Monroe Woodbury Central School Dist, 2013 WL 4525209 (2d Cir. 2013), held that the school district was not deliberately indifferent to two years of peer-on-peer bullying, which included two instances of sexual assault. The victim became extremely anxious and began harming herself. The key fact in avoiding liability was that the young woman kept the incidents to herself. Thus, the school was not on notice of them and could not have been deliberately indifferent under controlling Supreme Court precedent. Assuming the court recounted the facts correctly in its opinion and that the school did not obtain notice through some means unknown to the court and the girl's parents, the court probably got this one right. The question then is why this case was brought.
A state court has ruled that the Grandview, WA school district violated federal law when it failed to provide an appropriate education for a deaf student. Last Friday, Yakima County Superior Court Judge Robert Lawrence-Berrey ordered the school district to pay for four years of private education for the student, José Garcia. The Individuals with Disabilities Act (IDEA) requires schools develop an Individualized Education Plan (IEP) for students with special needs, but that appears to have happened only intermittently for Garcia. Garcia was educated in the Grandview, WA district from pre-school to 12th grade. Garcia is profoundly deaf but the school district failed to assign him an interpreter or an amplification system, so he missed much of what was going on in class. The district decided not to provide a sign language interpreter because of concerns that it would make Garcia self-conscious. When later teachers realized Garcia had a severe hearing impairment, he was cycled between general education, "resource rooms," and self-contained special education classes. The IDEA also requires that students' parents have meaningful access to information about their children's education. The state superior court found that the district failed to meet IDEA's requirements by conducting Garcia's IEP meetings in English, which left his mother, who cannot speak or read English, with little understanding about her son’s education. His mother, Maria Sanchez, thought that her son was doing well because he brought home A’s and B’s on his report cards. She did not realize that he was attaining those grades in special education classes. When Garcia reached the 12th grade at Grandview High School, he could not graduate because he was barely literate and his math skills were at a third grade level.
With supports, a federal court concluded in 2011, Garcia could function at his age level. Now that he is 20 years old, Garcia will get that opportunity, as the Grandview district must provide him with four years of private education at an estimated cost of nearly $1 million. The 2011 federal court decision is Sanchez, et al. v. Grandview School District No. 200, No. CV-10-3118-EFS, 2011 WL 10649281 (E.D. Wash. February 28, 2011) (granting plaintiffs’ motion for injunctive relief).
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.
Monday, September 2, 2013
Earlier this summer, we covered three cases before the 9th Circuit that would decide if a Hawaii law ending special education services for students at age 20 violated federal disability laws, when general education students could attend state-funded community schools up to age 22. On August 28, the 9th Circuit ruled that Hawaii’s state-funded high school diploma programs for adults is free public education, so the state must provide the same opportunity for students who need special education services up to age 22. The Individuals with Disabilities Act restricts the power of states to establish age limits on special education eligibility until age 22, but exempts states that do not provide general education services after age 18 from that restriction. 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, but it did not provide special education services for students over 20. Four plaintiffs sued 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 Ninth Circuit held that the Hawaii law setting the age limit on public education violated the IDEA and reversed in part the district court’s entry of judgment in favor of the state. Read the court’s opinion in E.R.K. v. Hawaii Dep’t of Education here.