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R.P.-K., Through His Parent C.K., et al v. Department of Education

March 30, 2012


The opinion of the court was delivered by: David Alan Ezra United States District Judge


The Court tried this case without a jury on February 28, 2012. Jason H. Kim, Esq., Matthew C. Basset, Esq., and Louis Erteschik, Esq., appeared at the hearing on behalf of Plaintiffs; Deputies Attorney General Carter K. Siu and Gary Suganuma appeared at the hearing on behalf of Defendant Department of Education, State of Hawaii ("Defendant" or "DOE"). At the close of Plaintiffs' case in chief, Defendant made an oral motion for judgment as a matter of law pursuant to Rule 50 of the Federal Rules of Civil Procedure and the Court took the matter under advisement. (Trial Transcript ("TR") at 89:10--14.)

The instant class action lawsuit was filed on July 27, 2010 by Plaintiffs the Hawaii Disability Rights Center ("HDRC"), R.P.-K. through his parent C.K., and R.T.D. through his parents R.D. and M.D. against the DOE for injunctive and declaratory relief. Plaintiffs are challenging the validity of Act 163 of the Session Laws of Hawaii for 2010 ("Act 163"), arguing that it violates the Individuals with Disabilities Education Act ("IDEA"), Section 504 of the Rehabilitation Act ("Rehab Act"), and Title II of the Americans with Disabilities Act ("ADA").*fn1 (Doc. # 1.)

This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 because Plaintiffs' claims arise under federal law. Venue is proper pursuant to 28 U.S.C. § 1391 because the DOE resides in the District of Hawaii and the events and omissions giving rise to Plaintiffs' claims occurred within this District.

This Court has considered the evidence submitted, made determinations as to relevance and materiality, assessed the credibility of the witnesses and evidence, and ascertained the probative significance of the evidence presented. Upon consideration of the above, the Court finds the following facts by a preponderance of the evidence, and in applying the applicable law to such factual findings, makes the following conclusions of law. To the extent any findings of fact as stated may also be deemed to be conclusions of law, they shall also be considered conclusions of law; similarly, to the extent any conclusions of law as stated may be deemed findings of fact, they shall also be considered findings of fact. See Ratanasen v. State of Cal., Dep't of Health Servs., 11 F.3d 1467, 1469 (9th Cir. 1993) (citing In re Bubble Up Delaware, Inc., 684 F.2d 1259, 1262 (9th Cir. 1982)).


1. The HDRC is a Hawaii non-profit corporation based in Honolulu, Hawaii. ("Stipulation," Doc. # 114 ¶ 1.) It is the designated Protection and Advocacy organization for Hawaii. (Id.) Its mission -- defined by federal law (29 U.S.C. § 794e and 42 U.S.C. §§ 10801 et seq. and 15001 et seq.) and state law (Haw. Rev. Stat. § 333F-8.5) -- is to defend and enforce the legal rights of people with disabilities. (Id.) It serves disabled persons throughout the State. (Id.)

2. The HDRC is pursuing this action to protect and advocate for the rights and interests of individuals with a "developmental disability" and other individuals with disabilities, as those terms are defined in 42 U.S.C. § 15002 and 29 U.S.C. § 794e. (Id. ¶ 3.) The individuals are the HDRC's constituents. (Id.) These constituents have a significant developmental disability or other impairment that substantially limits one or more major life activities, including personal care, working, and sleeping. (Id.) They are therefore individuals with disabilities for purposes of the ADA and RA. (Id.) The HDRC's constituents are represented on the HDRC's Board of Directors and PAIMI Advisor Counsel and have the right to exercise a grievance procedure to assure that they have access to the Protection and Advocacy system, pursuant to 29 U.S.C. § 794e(f)(6), 42 U.S.C. § 10805(c)(1)(B), and 42 U.S.C. § 10805(a)(6)(B-C). (Id. ¶ 2.)

3. R.T.D. was born on June 24, 1990. He has been diagnosed with Downs Syndrome, mental retardation, Autism Spectrum Disorder, and Obsessive Compulsive Disorder. (Id. ¶¶ 7--8.) R.T.D. is also hearing and vision impaired, has limited communication skills, and requires constant supervision in his daily activities to avoid harming himself or others. (Id. ¶ 8.)

4. R.T.D. attended Kaleheo High School from 2005 through the end of 2011 and received special education services from the DOE there. (Id. ¶ 9.) On June 28, 2010, the DOE advised R.T.D.'s father, R.D., that special education services would cease after July 30, 2010 because R.T.D. was over 20 years old. (Id. ¶ 10.) R.D. subsequently filed a Request for Due Process Hearing on behalf of R.T.D. (Id. ¶11.)

5. E.R.K. was born on January 29, 1992. (Id. ¶ 13.) He has been diagnosed with Autism Spectrum Disorder and is currently receiving special education services from the DOE at Roosevelt High School. (Id. ¶¶ 14--15.) Pursuant to Act 163, the DOE will deem E.R.K. to be ineligible for continuing special education after the last day of the 2011-12 extended school year, which ends July 2012. (Id. ¶ 15.) E.R.K. and his legal guardians wish for E.R.K. to continue to receive special education services until he reaches the age of 22. (Id. ¶ 16.)

6. On March 15, 2011, the Court granted in part Plaintiffs' Motion for Class Certification and certified the following class:

All individuals residing in the State of Hawaii who over the age of 20 on or before the first day of the school year (or who will imminently be over the age of 20 on that date) but under the age of 22 who are entitled to receive special education and related services from Defendant the Hawaii Department of Education under the Individuals with Disabilities Act. (Doc. # 31.) The Court approved R.P.-K., R.T.D., and the HDRC to serve as class representatives. (Id.) On February 27, 2012, the parties stipulated that E.R.K., by and through his legal guardian R.K., would be added as a plaintiff and class representative and that R.P.-K., by and through his parent C.K., would be dismissed as a plaintiff and class representative. (Stipulation at 2.)

7. The DOE is the agency responsible for Hawaii's public school system. (TR at 9:13--15.) The DOE receives federal funding for some of its programs and activities. (TR at 16--18.)

8. In 2010, the State of Hawaii enacted Act 163, which provides, in relevant part, as follows:

No person who is twenty years of age or over on the first instructional day of the school year shall be eligible to attend a public school. If a person reaches twenty years of age after the first instructional day of the school year, the person shall be eligible to attend public school for the full school year.

Haw. Rev. Stat. § 302A-1134(c).

9. The DOE has not interpreted Act 163 to impose a maximum age for enrollment in its Community Schools for Adults. (TR at 10:18--25.) Therefore, students at the Community Schools for Adults have not been disqualified from participating in the adult education programs on account of their age as a result of Act 163. (TR at 11:1--10.)

10. The DOE offers two programs in its Community Schools for Adults:

(1) the General Education Development test ("GED") program, and (2) the Competency-Based ("CB") diploma program. (TR at 12:12--18.) In addition to these two programs, the Community Schools for Adults offer review classes for people who want to be refreshed on certain subjects. (TR at 25:1--19.)

11. IDEA services are not offered in the GED and CB programs. (TR at 28:4--7.)

12. Generally speaking, an individual must be over eighteen to enroll in the GED and CB programs but there is no maximum age limitation. (TR at 26: 2--13.) There are essentially no prerequisites for admission other than that a student not have a high school diploma. (TR at 26:11--27:10.) Although students are charged nominal fees for books, testing, and other miscellaneous expenses, the programs are tuition free and almost entirely funded by state and federal funds. (TR at 24:10--20.)

13. In communications to the general public and the United States Department of Education, the DOE describes the GED and CB programs as constituting a secondary education. (Pl Exs. 2--5, 6, 10, 12; TR at 13:24--14:3, 52:12--53:11.) The DOE considers these programs to fall under the overall umbrella term of "secondary education" because it constitutes a form of education after one's primary education. (TR at 67:15--23.) However, the substance of the education and the credits earned in the Community Schools for Adults are very different from that of a conventional secondary education in a regular high school. (TR at 67:15--68:2.)

14. The GED program is designed to prepare students for the GED test, a national standardized exam created by the GED Testing Service. (TR at 110:2--3; Pl. Ex. 8.) The GED Testing Service establishes the passing standards and grades the tests. (Id.) The DOE merely administers the GED test and offers the GED preparation course. (TR at 78:12--13.) However, there is no requirement that ...

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