Special Education Case Law Update – October 14, 2013
E.R.K. v. State of Hawaii Department of Education, 728 F.3d 982 (9th Cir. Sept. 19, 2013) (corrected opinion) (state GED “Community Schools” operated for 20-21 year old non-disabled students violated IDEA when no equivalent option available to special needs students of same ages).
In this appellate opinion, the Ninth Circuit concluded that Hawaii state law offering secondary education opportunities for able-bodied students, while denying those opportunities to special education students. violated the IDEA. The dispute involved Hawaii’s “Act 163,” which barred students from attending public school after the last day of the school year in which the student turned 20 and applied to both general and special education students. However, in addition to conventional public high schools, the state operated a network of Community Schools for Adults that offered tuition-free opportunities to earn a high school diploma. The Community Schools were exempted from Act 163 – they allowed 20 and 21 year old students to attend. The Community Schools did not offer IDEA services to disabled students. A class of students entitled to IDEA services sued the state pursuant to the IDEA, the Americans with Disabilities Act (ADA), and the Rehabilitation Act.
The IDEA, in most circumstances, requires states to provide a free appropriate public education to all children with disabilities residing in the state between the ages of 3 to 21 inclusive. The IDEA does, however, provide an exception to the age requirements: a state has no duty to provide special education to children with disabilities to ages 3-5 or 18-21 to the extent providing that service would be inconsistent with other state law or practice. The Ninth Circuit had previously construed this to mean that states are free not to provide special education to any student between 18 and 21, but only if the state elects not to provide “free public education” to non-disabled students of the same ages.
In this case, the Ninth Circuit reasoned that whether the Community Schools violated the IDEA depended on whether the Community Schools constituted “free public education.” The Court found that the Community School programs were provided at public expense and were free to students; additionally the schools operated under supervision and direction of the Department of Education. The Court further found that the Community Schools were programs of “secondary school education” as that term is defined in the IDEA. For these reasons, the Court found that the Community Schools offer a free public education to non-disabled students aged 20 to 21. Because the state did not offer any equivalent education for special needs students of the same ages, the state was in violation of the IDEA. On plaintiffs’ ADA and Rehabilitation Act claims, the Court held that the plaintiffs did not identify any reasonable changes to the structure or curriculum of the Community Schools to make them accessible to disabled students. The Court rejected a proposal that the state maintain disabled student placements until their 22nd birthdays as an ineffective remedy to help students access the Community School’s programs. For these reasons, the Court dismissed the ADA and Rehabilitation Act claims, but remanded to the district court to find for plaintiffs on the IDEA violation.