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Hawaii Age Limit on Special Education Struck Down

Cross-posted from the School Law Blog

The state of Hawaii may not restrict special education to students age 20 and younger, a federal appeals court ruled Wednesday, because the state provides general secondary education diploma programs to adults.

The federal Individuals with Disabilities Education Act generally requires states to provide a free, appropriate public education to students with disabilities from age 3 to 21, inclusive. But the federal law provides an exception for ages 3 through 5 and 18 through 21 when a state law or practice limits education services for those age groups.

Hawaii passed a law in 2010, known as Act 163, that bars students from attending public schools after the last day of the school year in which they turn 20. The law applied to general students and those in special education.

Soon after Act 163 was adopted, four students with disabilities and their families filed a class action in federal district court on behalf of all 20- and 21-year-old special needs students who were barred from public education because of the state law. They alleged that Act 163 violated their rights under the IDEA, as well as claims under the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973.

The plaintiffs pointed to a network of Community Schools for Adults operated by the Hawaii Department of Education, which is the state's lone school district. The community schools offer GED and competency-based secondary school programs that are open to any student 18 or older who lack high school diplomas. The programs do not provide special education services.

The lawsuit said Hawaii violated IDEA and the other federal laws by denying special education to 20- and 21-year-olds while offering to general education students in the Community Schools. A federal judge ruled for the state on the claims under all three federal laws.

In its Aug. 28 decision in E.R.K. v. Hawaii Department of Education, a three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, ruled unanimously for the plaintiffs on the IDEA claim only.

"The fate of Act 163 comes down to whether the diploma programs offered by the Community Schools for Adults constitute 'free public education'" as defined by the IDEA, the court said.

The panel held that the Community Schools' diploma programs constituted free public education because they were provided at public expense, under public supervision and direction, and without charge, and they involved secondary education.

"The [Hawaii education department] offers, at taxpayer expense, the opportunity for nondisabled 20- and 21-year-olds to complete their secondary educations and earn high school diplomas," the 9th Circuit court said. Therefore, providing special education services to students with disabilities of those ages be would consistent with the IDEA's language about "state law or practice ... respecting the provision of public education," the court added, "so the state must do so."

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