Ninth Circuit Holds Hawaii Must Provide FAPE to Kids Over 20

Last week, the Ninth Circuit issued an opinion in E.R.K. v. Hawaii Department of Education.  The case presented a challenge to a 2010 Hawaii statute, which barred students from attending public school after the last day of the school year in which they turned 20.  The plaintiffs, a class of Hawaiian students who were otherwise eligible for special education but over 20, challenged that statute as in conflict with the Individuals with Disabilities Education Act. The IDEA provides that states must provide a free appropriate public education (FAPE) to all children with disabilities through age 21. The IDEA does, however, contain a provision that allows a state not to provide special education to individuals age 18 through 21 if doing so "would be inconsistent with State law or practice, or the order of any court, respecting the provision of public education to children in those age ranges."  The state argued that its 2010 statute, which denied access to the public schools to all individuals who had turned 20 before the beginning of the school year, entitled it to the benefit of that exemption.  But the plaintiffs noted that, although the state denied students over 20 access to the public schools, it did provide them free access to the state-operated Community Schools for Adults, which provided GED and life-skills courses but did not provide special education.  The plaintiffs argued that if the state was going to provide this form of public education to students who had turned 20 before the beginning of the school year, that it must provide a FAPE, including special education and related services, to students with disabilities through age 21.  The Ninth Circuit agreed with that argument.