Special-education students who exceed the state’s cutoff age for services can continue to receive free public education while challenging that age limit, a 9th U.S. Circuit Court of Appeals panel ruled Wednesday.
The opinion stems from a lawsuit filed against the state Department of Education by a special-education student whose state-funded tuition at a private school in Honolulu was stopped in 2011 when he turned 20.
The decision "reserves the rights of disabled students to litigate questions … and not sacrifice their education in the process," said attorney John Dellera, who represented the student, identified by the initials A.D., in the case. "I’m pleased by the court’s decision and the reasoning."
UNDER THE federal Individuals with Disabilities Education Act, or IDEA, a disabled child is entitled to a free public education until he or she turns 22. But states can choose to lower the age limit to match the cutoff for general-education students. In 2010 Hawaii lawmakers set that age at 20.
The law has been called discriminatory because nondisabled students older than 20 can continue their education in General Education Development or adult-education programs through public schools.
(A separate class-action lawsuit challenging Hawaii’s lower age cutoff is on appeal to the 9th Circuit. The suit was filed in 2010 on behalf of students with disabilities who were about to turn 20.)
A.D.’s lawsuit claims the state law violates federal law and that he was entitled to remain at Loveland Academy in Makiki — where he attended school since age 7 at public expense — until he turned 22.
He challenged the termination of his services in June 2011 through an administrative hearing. The case was denied. He appealed to federal district court, where the denial was reversed.
The Education Department then appealed, arguing the student wasn’t entitled to remain at Loveland during his challenge to the cutoff age, set in Hawaii’s Act 163.
At issue was whether A.D. should have been able to continue schooling throughout the dispute. The court concluded the student was "fully entitled" to stay at Loveland Academy during the challenge to Act 163.
A department spokeswoman referred comment to the state attorney general’s office, where spokeswoman Anne Lopez said attorneys are still reviewing the decision.
"After we’ve had a chance to fully review the decision and brief our client, the Department of Education, then we can make a decision on how to proceed," Lopez said.
Although A.D. has already turned 22, the court said the issue remained relevant for other special-needs students challenging the state law.
"It is reasonable to expect that the DOE will face more challenges to the law," the opinion said.
SPECIAL-EDUCATION students make up about 11 percent of Hawaii public school students, or more than 19,000 children. Dellera, the attorney, estimates anywhere from a few hundred to as many as 1,000 of them are in the 20-to-22 age range.
The court pointed to an automatic "stay put" protection under IDEA that allows a disabled child to stay in his current educational placement during any pending proceedings under the act. It described the provision as "protecting students from changes to their educational programs when there is a dispute over the lawfulness of the changes."
The three-judge panel, which heard oral arguments in the case in June in Honolulu, said the federal law is clear: "When a dispute exists about whether a special education eligibility criterion is lawful … stay put preserves the student’s eligibility until the dispute is resolved."
It added, "A decision in the DOE’s favor would be an open invitation to school districts or legislatures to declare students ineligible for IDEA services as a means of stripping students of their rights."
In a separate case, Dellera said A.D.’s family recently was awarded compensation for the months the department didn’t make tuition payments. A.D. will be in school until July, he said.
