Disabled Students Take Case to 9th Circuit

(CN) - The Hawaii Disability Rights Center went to the 9th Circuit this week to challenge a state law preventing disabled students from receiving special education services after turning 20.

Two related cases challenged Hawaii's Act 163, which bars any student from attending public school if they are 20 or older on the first day of the school year.

R.T.D. sued the Hawaii Department of Education in 2010, claiming that the law denied him the free appropriate public education he used to receive up to age 22. He later joined a class action filed the same year that made similar claims.

Non-disabled students can continue their education in General Education Development and competency-based diploma programs. But no such option was available to disabled students who require special education services.

R.T.D. asked the court to overturn rulings by administrative hearing officers who refused to extend special education services to plaintiffs at their public schools until they were 22.

U.S. District Judge David Alan Erza rejected the class claims in March 2012, under the Individuals with Disabilities Education Act (IDEA).

Erza found that the class failed to show that Hawaii has "a state law or practice whereby non-disabled students between the ages of 20 and 22 are being provided the functional equivalent of a secondary school education" in adult community schools.

Erza also sided with Hawaii on the plaintiffs' claims under the Americans with Disabilities Act and the Rehabilitation Act.

"Plaintiffs have not met their burden of producing evidence that there exists a reasonable accommodation that will allow plaintiffs to derive a meaningful benefit from adult education programs," Erza wrote.

A month later, U.S. District Judge Leslie Kobayashi relied on Erza's order to dismiss R.T.D.'s complaint against the Hawaii Department of Education.

This week, attorney Jason Kim, with the San Francisco law firm Schneider Wallace Cottrell Brayton Konecky, asked a three-judge panel of the 9th Circuit to overturn Erza's ruling.

Kim said Hawaii was offering what amounted to secondary public education for non-disabled students in community schools for adults. Continuing education programs should be made available to disabled students until they turn 22, the attorney said.

"The fact that they have chosen to offer secondary education through something that is innovative and different shouldn't affect their obligations under the IDEA because state law requires them to provide secondary education, elementary education, to adults," Kim said.

Judge Joseph Farris wondered if discrimination was the issue, if disabled students were not "precluded from entering" community schools.

"He is precluded not by anybody, but by whatever causes him to have whatever problems he's got from taking advantage of the program," Farris said of R.T.D. "But it's there, and otherwise he could do it, couldn't he? There's no barrier to his entering the second program, except his inability to take advantage of it."

Kim called that argument incompatible with the IDEA's mandate to "affirmatively provide services to ensure meaningful opportunity."

"It would be contrary to the IDEA if the result of this case is someone who is heavily disabled can go into one of those classrooms with no supportive services, and just sit there all day. That kind of conduct is exactly what the IDEA was enacted to prevent," Kim said.

What the case boils down to, Kim said, is that Act 163 is "an outright exclusion and a segregation."

"If you're a 21-year-old student in Hawaii who wishes to continue their public education but requires support services to do so, as a practical matter you can't," Kim said.

Deputy Attorney General Carter Siu said the court should affirm. He said the IDEA applied to secondary public education for children, not to adult classes in community schools.

Judges Dorothy Nelson and Jacqueline Nguyen questioned Siu's reasoning.

Nguyen asked: "Why doesn't that violate the IDEA, in that Hawaii has chosen to make available to non-disabled students this option of pursuing alternative programs through the community schools for adults, but for disabled children there's no similar provision; no ability to put an IEP [individualized education program] in place, or extend IEP type services?"

Siu said the state made clear that individualized education programs for community schools are not "appropriate," and that programs in those schools were for adults only.

Judge Nelson asked: "Isn't it true that in 2010 and 2011, four 20-year-old students transitioned straight from high school to the adult education degree programs? Isn't this proof that for at least some, although a few students, the adult schools are really a form of continuing education?"

Siu responded that there is "no transition" between high school and community school, and that it was an individual student's "choice."

"It's up to you to decide what your course in life is," Siu said.

He said only 4 percent of non-disabled high school students entered General Education Development programs at community schools.

"The IDEA applies to school-age children, within traditional secondary schools," Siu said. "They're for adults; they're totally separate programs, funded separately."

During rebuttal, Kim claimed that programs offered at community schools are public education under the IDEA.

"There's no way that the term 'public education' as used in the IDEA is limited to a conventional high school education, because the IDEA wouldn't make any sense," Kim said.

He urged the court to examine the IDEA on procedural, rather than substantive grounds.

In another 9th Circuit hearing before the panel, Deputy Attorney General Gary Suganuma challenged an October 2012 order granting a disabled student's request to stay at the school where he is receiving special education services.

John Dellera of Honolulu argued on behalf of his client, A.D.

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