July 27, 2010

The Hawaii Disability Rights Center, represented by staff attorneys and the Honolulu law firm of Alston Hunt Floyd & Ing, today filed a class action complaint against the Department of Education that would require it to provide special education services until a student becomes 22 years of age. The suit, brought in U.S. District Court, would enjoin the State from enforcing a law passed by the Legislature during the last session. The law, Act 163, provides that no person who is 20 years of age or over on the first instructional day of the school year shall be eligible to attend a public school.

Until recently, Hawaii was one of only two States (the other being Maine) that terminated special education for students with disabilities when they reached 20 years of age. Most states follow federal law, which extends special education to age 22, but States may reduce the maximum age if they do so for all students, disabled as well as non-disabled.

In 2009, HDRC won a case in federal court by proving that Hawaii had ended public education for disabled students at age 20, while allowing non-disabled students to continue after that age. In a 24-page opinion issued in July 2009, Federal Judge David Alan Ezra found that "what emerges is a picture of blatant discrimination" in violation of two federal laws, the Individuals With Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act of 1973.

Judge Ezra based his decision on a section of Hawaii law that limited admission to the ninth and tenth grades, but not to grades eleven and twelve. He concluded there was no age limit on admission to the eleventh and twelfth grades and commended the State "for recognizing there are instances where it is necessary to allow a student age 20 or above the opportunity to complete his or her public education." The Court also found that the law allowed school principals to waive age requirements in individual cases, but the DOE seems to have approved "every single overage general education student and barred almost every single overage special education student."

In January 2010, Rep. Roy Takumi introduced legislation supported by the Department of Education that attempts to reverse Judge Ezra's ruling by ending high school admissions at age 20 for everyone, disabled as well as non-disabled. Sen. Norman Sakamoto supported the measure in the Senate, and it was passed by the Legislature and signed into law by Gov. Lingle as Act 163 on June 3, 2010. The law took effect on July 1, 2010.

In the lawsuit filed today, HDRC and four students with disabilities aged 20 and 21 contend that Hawaii continues to discriminate against disabled students over 20 because it denies them a meaningful educational opportunity while allowing nondisabled students who are 20 or 21 to pursue their secondary education in the adult education program. Special education services are not provided in adult education.

The suit asks the federal court to rule that the Department of Education must extend special education to students who are 20 and 21. Such a ruling would give disabled residents of Hawaii the same rights that are possessed by over 99% of the disabled high school students throughout the United States.

FURTHER INFORMATION CONTACT:

John P. Dellera, Executive Director, HDRC
(808) 949-2922

Paul Alston, Jason Kim, Alston Hunt Floyd & Ing
(808) 524-1800


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