E.R.K. v. State of Hawaii Dep’t of Educ.

Under the Individuals with Disabilities Education Act, a state may not prevent disabled students aged 18 to 21 from attending public school if that state provides free public education to nondisabled students in that same age range.

Four disabled students and the Hawaii Disability Rights Center filed a complaint after Hawaii passed Act 163, a law barring students from attending a public school after the last day of school the year the student turned 20. Exempt from Act 163 were the Community Schools for Adults, which allow students to obtain high school diplomas. The complaint alleged the statute violated the Individuals with Disabilities Education Act (“IDEA”) and discriminated against disabled students under the Rehabilitation Act because Act 163 denied public education to special needs students ages 20 to 21, while students without special needs could join the Community Schools for Adults. The district court held that Act 163 was consistent with the IDEA, and the burden of identifying a reasonable accommodation was not met on the discrimination claim. The Ninth Circuit held that Act 163 violated the IDEA. Looking to the legislative history of the IDEA, the panel found that while the federal statute has an age limit, an exception exists that requires a state to provide free public education to special education children aged 18 to 21 if the state also provides free public education to nondisabled students in that age range. Free public education is: 1) provided without charge at public expense while under public supervision and direction; and 2) involves preschool, elementary, or secondary education. Because the Community Schools for Adults satisfy both prongs of that definition, the panel held that the state offers free public education to nondisabled students aged 18 to 22. The panel upheld the district court’s determination that there was not a prima facie case of discrimination because there was no evidence presented at trial of the existence of a reasonable accommodation the Community Schools for Adults could make for disabled students. AFFIRMED in part, REVERSED in part, and REMANDED.