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Hawai'i Technology Academy v. L.E.

Supreme Court of Hawaii

December 5, 2017

HAWAI'I TECHNOLOGY ACADEMY and the DEPARTMENT OF EDUCATION, STATE OF HAWAI'I, Appellants-Appellees,
v.
L.E., Appellee-Appellant, and HAWAI'I CIVIL RIGHTS COMMISSION, Appellee-Appellant.

         APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CAAP-15-0000520; CIV. NO. 14-1-2438-11)

          Livia A. Wang and Lowell K.Y. Chun-Hoon for appellant Hawaiʻi Civil Rights Commission

          Douglas S. Chin, Holly T. Shikada, Carter S. Siu, and Gregg M. Ushiroda for appellees Hawaiʻi Technology Academy and the Department of Education, State of Hawaiʻi

          RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, WILSON, JJ.

          OPINION

          McKENNA, J.

         I. Introduction

         This case concerns whether the Hawai'i Civil Rights Commission ("HCRC") has jurisdiction under Hawai'i Revised Statutes ("HRS") § 368-1.5 (1993)[1] over claims that a child ("Student") was subjected to disability discrimination and improper denial of reasonable accommodations and modifications[2]to take an on-line grade-level placement examination required of homeschooled students applying for entrance to Hawai'i Technology Academy ("the Academy") ("HCRC complaint"). The Academy is a public charter school within Hawaii's statewide school district and is part of the State of Hawai'i Department of Education ("DOE") .

         We hold the HCRC lacks jurisdiction over the HCRC complaint because the legislature intended HRS § 368-1.5 to provide the HCRC with jurisdiction over disability discrimination claims only when Section 504 of the federal Rehabilitation Act of 1973 does not apply, and Section 504 does apply to the HCRC complaint. We therefore affirm the circuit court's final judgment.

         II. Background

         To provide context, we begin with a brief overview of federal laws protecting a child's access to a free appropriate public education ("FAPE") before discussing the factual and procedural background in this matter.

         A. Free Appropriate Public Education ("FAPE")

         Both the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400, et. seq., (previously known as the Education for All Handicapped Children Act), and the implementing regulations of Section 504 of the Rehabilitation Act of 1973 ("the Act"), 21 U.S.C. § 701, et. seq., 34 C.F.R. Part 104, Subpart D, ensure that children with disabilities have access to a FAPE. The IDEA and the Section 504 regulations differ, however, regarding what constitutes a FAPE and who is entitled to one.

         The "core guarantee" of the IDEA[3] is "to ensure that all children with disabilities have available to them a [FAPE] that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living." 20 U.S.C. § 1400(d)(1)(A). Under the IDEA, "special education" means "specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability." 20 U.S.C. § 1401(29). A "child with a disability"[4] is a child with at least one disability on an enumerated list, [5] and "who, by reason thereof, needs special education and related services." 20 U.S.C. § 1401(3)(A). A "FAPE" means "special education and related services" that, among other things, "are provided in conformity with the individualized education program [("IEP")] required under section 1414(d) of this title." 20 U.S.C. § 1401(9)(D).[6] A team comprised of a student's parents and educators determine a student's IEP. See 20 U.S.C. § 1414(d) (1) (B) .

         In contrast, Section 504 of the Act generally prohibits disability discrimination: "No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . ." 29 U.S.C. § 794(a). Thus, Section 504 applies to other programs in addition to educational institutions. However, because the Act was not intended to be self-executing, see, e.g., Cherry v. Mathews, 419 F.Supp. 922, 924 (U.S.D.C. 1976), relevant federal agencies, such as the U.S. Department of Education, were mandated to promulgate regulations tailored to the particular recipients of that agency's programs. See Nancy Lee Jones, Section 504 of the Rehabilitation Act of 1973: Prohibiting Discrimination Against Individuals with Disabilities in Programs or Activities Receiving Federal Assistance, at 4 (Congressional Research Service 2009), http://www.llsdc.org/assets/sourcebook/crs-rl34 041.pdf; see also 29 U.S.C. § 794(a); 34 C.F.R. § 104.1 ("The purpose of this part is to effectuate section 504 of the Rehabilitation Act of 1973 . .") .

         Therefore, Section 504 regulations promulgated by the U.S. Department of Education contain both general provisions prohibiting discrimination, see, e.g., 34 C.F.R. § 104.4(b), [7] as well as provisions specific to preschool, elementary, and secondary education, in Subpart D. See 34 C.F.R. Part 104, Subpart D.

         Subpart D requires, among other things, that each qualified handicapped person within the jurisdiction of a public elementary or secondary education program or activity receiving federal financial assistance be provided a FAPE by that program or activity. See 34 C.F.R. § 104.33(a). Under Section 504 regulations, a FAPE is defined as the "regular or special education and related aids and services that . . . are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met." 34 C.F.R. § 104.33(b)(1) (emphasis added). Because Section 504 regulations define a "qualified handicapped person"[8] more broadly than a "child with a disability" under the IDEA, children who may not be covered by the IDEA may be covered by Section 504.

         In sum, coverage of students under the IDEA may be more limited in scope than coverage under Section 504. However, for those students who are covered by the IDEA, the IDEA provides broader protections than Section 504 as the IDEA requires that specialized instruction "meet the unique needs of a child with a disability, " whereas Section 504 requires only that the individual educational needs of handicapped persons be met "as adequately as the needs of nonhandicapped persons are met." Because of the IDEA'S additional protections, providing a FAPE under the IDEA meets the standards of providing a FAPE under Section 504. See 34 C.F.R. § 104.33(b)(1).

         B. Procedural Safeguards

         The IDEA requires local educational agencies that receive federal assistance to "establish and maintain procedures in accordance" with 20 U.S.C. § 1415 "to ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of a [FAPE] by such agencies." 20 U.S.C. § 1415(a). Specific required procedures include, but are not limited to, providing parents an opportunity to examine a student's records, written notification to the parents regarding any changes as to how FAPE would be provided to a student, and an opportunity for mediation or to file a due process complaint notice for an impartial due process hearing conducted by the State educational agency. See generally 20 U.S.C. § 1415.

         Similarly, the Section 504 regulations pertaining to schools also require procedural safeguards:

A recipient that operates a public elementary or secondary education program or activity shall establish and implement, with respect to actions regarding the identification, evaluation, or educational placement of persons who, because of handicap, need or are believed to need special instruction or related services, a system of procedural safeguards that includes notice, an opportunity for the parents or guardian of the person to examine relevant records, an impartial hearing with opportunity for participation by the person's parents or guardian and representation by counsel, and a review procedure.

34 C.F.R. § 104.36. These standards can be met by compliance with the procedural safeguards requirements of the IDEA. See id.

         C. Factual Background

         Student, who was thirteen years old in 2014, was born with Trisomy 21, also known as Down syndrome. Student has mild bilateral hearing loss, wears corrective lenses to read, and has also been diagnosed with Attention Deficit Hyperactivity Disorder ("ADHD"), hypotonia (low muscle tone), and dysphagia (swallowing disorder). The DOE found Student eligible for special education services in 2003.

         Student attended the Academy from 2008 to 2012 and received special education and related services. In May 2011, Student's IEP team recommended that Student be placed at a public elementary school offering daily face-to-face classes, which contrasted with the Academy's hybrid face-to-face and on-line learning environment. Parent challenged that recommendation and requested a due process hearing before an impartial hearing officer pursuant to the IDEA, 20 U.S.C. § 1415(f)(1)(A), (f)(3)(a)(i). Student remained at the Academy for the 2011-2012 school year during the administrative proceedings. On May 21, 2012, an administrative hearing officer affirmed the May 2011 decision by Student's IEP team.

         Ten days later, on May 31, 2012, the Academy sent Parent a letter stating that the Academy would be implementing the May 2011 IEP and advised Parent to enroll Student at He'eia Elementary, Student's geographic home school. By letter dated June 12, 2012, the Academy notified Parent that Student would no longer be able to attend the Academy as of June 18, 2012, the Academy's school-wide withdrawal date. On June 15, 2012, Parent hand-delivered to the Academy and the DOE a revocation of her consent for special education and related services to Student. Parent also sent an e-mail to the Academy and the DOE stating that as a consequence of her revocation, she expected Student to remain at the Academy as a "regular education student." The Academy, however, withdrew Student from enrollment on June 18, 2012.

         On June 20, 2012, the same date as Parent's deadline for appealing the administrative hearing officer's decision, the Academy issued a written notice stating that Student's special education and related services would be terminated upon Parent's receipt of the notice. Parent received the written notice on June 22, 2012. By letter dated July 25, 2012, the Academy stated that Parent's revocation of special education and related services did not take effect until June 20, 2012, the date of the written notice.

         Parent then applied Student for enrollment as a general education student for the 2012-2013 academic year. Student was permitted to take the required grade-level placement test at home with Parent over several days in September 2012. Student was ultimately waitlisted, and Parent homeschooled Student for the 2012-13 school year.

         Parent again applied Student for admission to the Academy for the 2013-2014 academic year. Parent requested accommodations or modifications to the Academy's grade-level placement test requirement, such as allowing use of the previous year's test scores, allowing Student to take the test at home as he had done the previous year, allowing Student to take the test alone in a room with an adult, or providing Student additional time for a snack break.

         Parent took Student to the Academy campus during scheduled test times in May 2013 and July 2013. Parent was informed by the Academy's director that because Parent had revoked consent to the IDEA and the IEP, the Academy would not be able to give Student any accommodations or supports. Student was unable to complete the test. Specifically, according to Parent, Student needed help being focused and directed question by question, but he was not given a one-to-one aide during the test. As a result, Student was unable to complete the test because he was distracted and ended up going on the internet instead. According to Parent, Student's enrollment application was discarded as insufficient because he was not able to take the test due to his disabilities; his application was therefore not processed.

         Student was again homeschooled during the 2013-2014 academic year. In July 2014, when Student would have chronologically been a ninth grader, Parent and the Academy agreed to enroll Student as a sixth grade general education student, where he received some services through a Section 504 plan. By June 2015, Student was given a new IEP that placed him at a different school. Parent thereafter withdrew Student from the Academy.

         D. IDEA and Section 504 Claims in United States District Court

         Meanwhile, on June 20, 2012, two days after the Academy's schoolwide withdrawal date and the termination date for Student's special education services based on Parent's revocation of consent, as deemed by the Academy, and after exhausting administrative remedies, Parent filed an IDEA complaint in the United States District Court for the District of Hawai'i, arguing the May 2012 decision of the administrative hearing officer - that Student's appropriate placement to receive a FAPE was at He'eia Elementary, not the Academy - should be reversed. See Jason E. v. Dep't of Educ, Civ. No. 12-00354 ACK-BML. By order dated February 14, 2013, the federal district court ruled the complaint moot because Parent had revoked consent for Student to continue receiving IDEA special education services. However, the court permitted Parent to amend the complaint to reflect her intent for Student to be treated as a general education student at the Academy.

         Parent filed a first amended complaint on March 19, 2013, reflecting that intent. Parent's May 10, 2013 second amended complaint asserted that she revoked consent for the continued provision of special education and related services to determine whether Student would benefit from a general education program at the Academy with or without Section 504 reasonable modifications. On May 7, 2014, Parent filed a third amended complaint, alleging in part: (1) the DOE and the Academy should have honored the revocation of consent by treating Student as a general education student and continuing his enrollment at the Academy; and (2) the DOE and the Academy violated Section 504 and Title II of the Americans with Disabilities Act of 1990 when Student, by reason of his disability, was released as a student and no longer had access to the general education curriculum at the Academy. At a hearing before the federal district court, Parent clarified that the relief sought was for Student to receive a FAPE at the Academy as a general education student.

         By order dated November 20, 2014, the federal district court granted the defendants' motion to dismiss the third amended complaint. The court deemed the third amended complaint moot because Student was already enrolled as a general education student at the Academy and because the Academy had provided Student a FAPE through a Section 504 Plan. In the alternative, on the merits, the court ruled in part that federal regulations do not expressly require that a disabled student remain at the same school after a parent revokes IDEA consent; rather, the regulations leave open the possibility that a student may be placed in a different school as a general education student. The federal district court also concluded Parent only provided conclusory statements that the accommodations she requested for Student were reasonable or that the Section 504 Plan was deficient.

         E. Pre-complaint Questionnaire and Petition for Declaratory Relief

         While Student was still being homeschooled during the 2013- 2014 school year after not being able to complete the Academy's placement examination, on January 14, 2014, Parent submitted a pre-complaint questionnaire to the HCRC alleging disability discrimination based on the Academy's alleged failure to provide reasonable accommodations for the examination. On February 10, 2014 the HCRC's Executive Director ruled the HCRC lacked jurisdiction over Parent's claim. By letter dated April 21, 2014, Parent submitted a petition to the HCRC, asserting the HCRC has jurisdiction to review her complaint alleging disability discrimination when Student's application to the Academy for the 2013-2014 school year was denied based on his inability to complete the grade level placement test; Parent alleged the Academy denied Student reasonable accommodations or modifications required based on Student's disability. On July 25, 2014, the Executive Director submitted a memorandum in opposition. For purposes of addressing jurisdiction, the Executive Director assumed that Student was "an otherwise qualified individual with a disability and that he was unable to complete the required test because of his disability." The Executive Director opined, however, that because publicly funded educational institutions are not "public accommodations, " the HCRC lacked jurisdiction under HRS § 368-1 (Supp. 2011).[9] The Academy and the DOE also opposed the petition based on lack of subject matter jurisdiction.

         The HCRC held an oral argument on August 18, 2014, after Student had been re-enrolled at the Academy. Parent focused on Student's need to learn effective communication through sign language. She explained that the Academy's grade-level placement test requires communication skills and the ability to be seated, which was something Student could not master. Parent argued that despite her revocation of special education and related services, Student was entitled to disability accommodations and supports during the placement test.

         Parent conceded the Academy had already eliminated its grade-level admission test policy and that Student was then currently attending the Academy. However, neither the Executive Director nor the Academy and DOE argued mootness. Instead, the Executive Director focused on the legislative purpose behind HRS § 368-1.5, and argued that for two reasons, it was necessary to examine the legislative history of HRS § 368-1.5. According to the Executive Director, first, nothing in Chapter 368 defines "program or activity" or "state agency." Second, as the legislature had opted to leave out language from HRS § 368-1.5 that was present in Section 504, it was unclear whether the manner in which Section 504 and its implementing regulations define those same terms should apply to HRS § 368-1.5. The Executive Director also argued that the legislature did not supplant or supplement existing University of Hawai'i and DOE procedures for handling discrimination claims, and that if the HCRC did indeed have jurisdiction over claims such as those in the petition, extensive rulemaking would be required to not wreak havoc on the current system.

         The Academy and the DOE argued the petition was essentially a special education matter under the IDEA. They further argued the DOE had extensive administrative rules governing IDEA and Section 504 claims, and that HRS § 368-1.5 does not require the State to implement Section 504. Counsel also argued that if an HRS § 368-1.5 violation provided the HCRC with jurisdiction over any disability discrimination claim, then language specifically identifying the areas of the HCRCs jurisdiction - employment, real estate, and public accommodations - would be superfluous.

         The HCRC decision characterized the dispute as one in which Parent sought a disability accommodation for Student, but was denied:

During the application process, [Parent] sought an accommodation from [the Academy] in the form of extra time for [Student], who was otherwise qualified for admission to [the Academy], to complete a grade-level placement exam. [The Academy] denied the requested accommodation, and because [Student] did not complete the placement assessment in the time provided, [the Academy] denied his application for admission.

         In its Decision and Order dated October 28, 2014, the HCRC determined it lacked jurisdiction under HRS § 368-1 over Student's claim regarding the denial of reasonable accommodations, as the Academy was not a "place of public accommodation." The HCRC then determined, however, that it nevertheless had jurisdiction over Parent's claim under HRS § 368-1.5, as the Academy was a state agency or a "program or activity receiving state financial assistance." The HCRC examined the plain language of various sections of Chapter 368, and noted HRS § 368-17(a)(3) provides a remedy of "[a]dmission of persons to a public accommodation or an educational institution, " and ruled the existence of the remedy of admission to educational institutions would be absurd without the existence of a right under HRS § 368-1.5. Moreover, the HCRC asserted that if HRS § 368-1.5 did not apply to public schools, then families whose children were excluded from or otherwise discriminated against by public schools would be unable to file complaints of discrimination with the HCRC. Further, according to the HCRC, if the ...


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