P.-K. et al v. Department of Education, State of Hawai'i

Filing 123

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DECISION. Signed by JUDGE DAVID ALAN EZRA on 3/30/2012. ~ Excerpt of Conclusion: "Defendant's Rule 50 motion for judgment as a matter of law is DENIED. The Cour t finds and concludes that Plaintiffs have failed to show by a preponderance of the evidence that pursuant to Act 163, Defendant violated the IDEA, Title II of the ADA, or § 504 of the Rehab Act. Judgment shall be entered in favor of Defendant a s to Counts I, II, and III of Plaintiffs' Complaint. All parties shall bear their own costs of suit." ~ (afc)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
R.P.-K., through his parent C.K., et
al.,

)
)
)
Plaintiffs,
)
)
vs.
)
)
DEPARTMENT OF EDUCATION, )
STATE OF HAWAII,
)
)
Defendant.
)
_____________________________ )

Civ. No. 10-00436 DAE-KSC

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DECISION
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”).1 (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

1

Plaintiffs also brought a fourth claim arguing that the doctrine of judicial
estoppel precludes Defendant from denying Plaintiffs a special education under the
IDEA. On September 19, 2011, the Court granted summary judgment in favor of
Defendant on Plaintiffs’ estoppel claim.
2

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)).
I.

FINDINGS OF FACT
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
3

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.)

4

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.)

5

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.)
6

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.)

7

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 a
student take the GED preparation course before they take the GED test. (Pl. Ex. 6;
TR 19:1–9.)
15.

The GED preparation course offered at the Community Schools for

Adults provides an overview of subjects covered on the exam and test-taking
strategies. (Pl. Ex. 10; TR at 37:22–38:3, 71:9–14.) The program does not offer
separate classes for particular subjects such as math or science, but rather provides
a single test preparation class that is more akin to an SAT prep course where
students learn to take and pass the test. (TR at 37:22–38:3, 71:12–22.) The class
meets twice a week and lasts approximately three months. (Pl. Ex. 10.) The prep
course provides a review of basic reading, math, and writing skills. (Pl. Ex. 10.)
The substantive content, level of detail, and overall difficulty of the prep course is
nowhere near that of academic courses offered at regular public high schools. (TR
at 38:4–15.) The prep course is also standardized, and therefore a student who has
finished his/her 11th year of high school would take the same course as someone
8

who has never attended high school. (TR at 76:16–19.) In short, the prep course is
strictly designed to help individuals pass the GED test. (Pl. Ex. 6.)
16.

In order to obtain a high school GED diploma through the GED

program, an applicant must: (1) successfully complete at least one semester at an
accredited school in Hawaii or one of the Community Schools for Adults and (2)
pass the GED test with an average standard score of 450 for the combined five
subtests with no individual sub test score below 410. (Pl. Ex. 4, 6, 10.)
17.

The CB program is a program unique to Hawaii that focuses on life

skills and does not overlap or relate to the GED program in any way. (TR at
21:11–18, 109:16–19.) The CB program is not based on any kind of academic
standard, but rather on Hawaii content and performance standards. (TR at 71:5–8.)
It is designed to enable adult learners “to become (1) [f]unctionally literate adults;
(2) [p]roductive and contributing citizens/community members; (3) [e]ffective
family members; and (4) [p]roductive workers.” (Pl. Ex. 11; TR at 71:5–8.) The
program focuses on the following five subject areas: community resources,
consumer economics, government and law, health, and occupational knowledge.
(Pl. Ex. 11.) Some of the topics covered in CB classes are money management,
consumer decision-making, meal planning, and job search strategies. (Pl. Ex. 11.)
Notably, none of the subjects covered in the CB program are the same as the core
9

subject areas in which students must earn credits to graduate from a traditional
public high school. (Pl. Exs. 4, 11.) For example, the CB program does not offer
any courses in English, Social Studies, Mathematics, and Science. (Pl. Ex. 11.)
18.

In order to obtain a high school CB diploma through the CB program,

a student must: (1) pass all five units and score 70% or better on the CB cumulative
test and (2) complete one credit of work at an accredited post secondary institution,
be employed, obtain or possess a marketable skill, or demonstrate home or life
management skills. (Pl. Ex. 11.)
19.

The traditional secondary education program offered in public high

schools is significantly different from the Community Schools for Adult programs.
(TR at 70:7–16.) The education provided in public high schools is based on state
standards and involves substantially more rigor. (TR at 38:4–15, 70:8–16,
107:17–118:5.) In order to graduate from a public high school, a student must earn
24 credits. (Pl. Ex. 4.) The credits must be earned in certain core subject areas, as
outlined below:
CREDIT REQUIREMENTS
SUBJECT
English
4
Social Studies
4
Mathematics
3
Science
3
World Language
2
Physical Education
1
10

Health
Pers/Trans Plan
Electives

½
½
6

(Pl. Ex. 4.) Each credit amounts to approximately 120 hours of class instruction
time. None of the courses in the Community Schools for Adults earn students
credits that can be applied toward a traditional high school diploma. (TR at
73:24–74:1.) Additionally, the classes offered in traditional middle and high
schools are not available in the Community Schools for Adults. (TR at 73:1–20.)
20.

Each diploma identifies the specific school where the diploma was

earned. For example, a high school CB diploma from the Farrington adult school
would say “awarded by Farrington Community School for Adults.” (TR at
21:25–22:6.)
21.

In the absence of a traditional high school diploma, University of

Hawaii at Manoa (“UHM”) and other Hawaii colleges will accept and use the GED
test scores to determine admissibility. (TR at 43:12–21; Pl. Ex. 9.) On the other
hand, many colleges, including UHM, do not accept or recognize the CB high
school diploma. (TR at 22:12–14, 118:1–10.) However, a high school diploma is
not necessary to obtain an Associate’s Degree from a community college. (TR at
118:6–9.) The military does not consider the GED to be a functional equivalent of
a high school diploma for enlistment purposes. (Df. Exs. 502–504.)
11

22.

Some of the educational options available to adults over the age of

twenty without a high school diploma include the GED and CB programs in the
Community Schools for Adults, community college, Job Corps, or trade school.
(TR at 96:4–95:2.)
23.

At the conclusion of the 2009-2010 school year, fifty-one (51) general

education students were ineligible to continue their public high school education
because of Act 163. (TR at 62:4–63:5; Pl. Ex. 15.) One (1) out of the fifty-one
(51) aged-out students enrolled in a program at a Community School for Adults for
the 2010-2011 school year. (TR at 80:8–17; Pl. Ex 15.)
24.

At the conclusion of the 2010-2011 school year, sixty-two (62)

general educations were ineligible to continue their public high school education
because of Act 163. (TR at 80:18–20; Pl. Ex. 15.) Three (3) out of the sixty-two
(62) aged-out students enrolled in a program at a Community School for Adults for
the 2011-2012 school year. (TR at 80:20–23; Pl. Ex. 15.)
25.

It is therefore clear that virtually every person enrolled in the GED

and CB programs is not a student coming directly from a public high school, but
rather an adult returning to enroll in these programs. It is also clear that the GED
and CB programs are not a continuation of a traditional high school education, nor
are they the functional equivalent of a traditional high school education.
12

II.

CONCLUSIONS OF LAW

A.

Rule 50 Motion

26.

Federal Rule of Civil Procedure 50(a) provides:
(1) If a party has been fully heard on an issue during a jury trial and
the court finds that a reasonable jury would not have a legally
sufficient evidentiary basis to find for the party on that issue, the court
may:
(A) resolve the issue against the party; and
(B) grant a motion for judgment as a matter of law against the
party on a claim or defense that, under the controlling law, can
be maintained or defeated only with a favorable finding on that
issue.

Fed. R. Civ. Proc. 50(a).
27.

Because the claims at issue were tried to the Court in a bench trial, Rule 50,

which applies to jury trials, is not applicable. Therefore, Defendant’s Rule 50
motion is denied.
B.

IDEA Claim (Count I)
28.

The IDEA requires each state to provide a free appropriate public

education (“FAPE”) to “all children with disabilities . . . between the ages of 3 and
21, inclusive . . . .” 20 U.S.C. § 1412(a). This Court previously determined that
federal eligibility for special education and related services therefore ends on a
student’s twenty-second birthday. B.T. v. Dep’t of Educ., 637 F. Supp. 2d 856,
863–64 n.9 (D. Haw. 2009). States, however, may impose different age
13

restrictions, provided those limitations are applied broadly to general education
students as well. The statute provides that:
The obligation to make a free appropriate public education available
to all children with disabilities does not apply with respect to
children–
(i) aged 3 through 5 and 18 through 21 in a State to the extent that its
application to those children 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.
20 U.S.C. § 1412(a)(1)(B). Pursuant to this exception, a state may lower the age
limit for FAPE eligibility to as little as eighteen, provided that it is done in a
manner consistent with the State’s “provision of public education” to all children
of that age.
29.

The Ninth Circuit has explained the underlying purposes of the IDEA

as follows:
Congress has been very clear about stating its overarching goals in
relation to the IDEA. Part of Congress’s concern was that “children
were excluded entirely from the public school system and from being
educated with their peers.” 20 U.S.C. § 1400(c)(2)(B) (2006). To
alleviate that, disabled children were to have “access to the general
education curriculum in the regular classroom, to the maximum extent
possible.” § 1400(c)(5)(A). We extract from the statute that the
overarching goal of the IDEA is to prevent the isolation and exclusion
of disabled children, and provide them with a classroom setting as
similar to non-disabled children as possible.
N.D. v. Haw. Dep’t of Educ., 600 F.3d 1104, 1115 (9th Cir. 2010).
14

30.

On September 19, 2011, this Court issued an Order: (1) Denying

Plaintiffs’ Motion for Summary Judgment Without Prejudice; (2) Granting in Part
and Denying in Part Without Prejudice Defendant’s Motion to Dismiss, or in the
Alternative, for Summary Judgment; and (3) Denying Plaintiffs’ Renewed Motion
for a Preliminary Injunction Without Prejudice. (Doc. # 79.) In that Order, the
Court held that the term “public education” as used in the age governing provision
of the IDEA, 20 U.S.C. § 1412(a)(1)(B)(i), refers to an educational program which
in practice provides a secondary education or its functional equivalent to students.
(Id. at 20.) The Court explained that:
To determine whether a state has validly changed the age range in
which a special education student is entitled to a FAPE per the age
governing provision, a court must look at state law or practice and
determine whether there are any educational programs which provide
the functional equivalent of a secondary education to non-disabled
students with regularity.
(Id. at 20–21.)
31.

In the B.T. case, Plaintiff B.T. was a severely autistic twenty-year-old.

B.T., 637 F. Supp. 2d at 859. He argued that extending a FAPE to the age of
twenty-two was consistent with Hawaii law and that the DOE’s policy of
terminating special education services at the age of twenty was invalid given the
practice of the State of Hawaii. See id. at 862–65. The DOE’s practice was “to

15

require overage general education and special education eligible students to obtain
the permission of the principal to attend school.” Id. at 864. The evidence before
the Court demonstrated that the principals had “approved every single overage
general education student and barred almost every single overage special education
student.” Id. at 865. In light of this blatant discrimination, this Court held that
“Hawaii [had denied] these students a meaningful education” and violated the
IDEA and Rehab Act. Id. at 865–66. Hawaii therefore was “enjoined from
implementing a per se rule denying special education services based solely on [the
students] attaining the age of 20.” Id. at 866. In other words, this Court found that
the State could not lower the age limit for FAPE eligibility since doing so was not
consistent with the State’s practice of admitting every single overage general
education student who sought permission to attend a public high school.
32.

The facts of this case are readily distinguishable from B.T. Hawaii

state law, as set forth in Act 163, imposes a blanket age limit of twenty on all
admissions to public high schools. Haw. Rev. Stat. § 302A-1134(c). Unlike in
B.T., the evidence before this Court does not establish that the DOE had a practice
of providing a secondary school education to overage general education students.
33.

Specifically, based on the factual findings set forth above, the Court

concludes that the GED and CB programs offered within the Community Schools
16

for Adults do not provide the equivalent of a secondary school education to general
education students. Although the DOE describes those programs as a form of
“secondary education,” the evidence presented at trial demonstrates that the
educational curriculum, requirements, and experience of the adult programs are
dramatically different from those of a traditional public high school. Therefore, a
diploma earned through one of the adult education programs represents the
completion of an education very different from that of a public high school
diploma. This is in sharp contrast to the B.T. case, where general education
students were being admitted to the exact same public high schools that they had
otherwise aged out of.
34.

The evidence also shows that an extremely small number of students

who have aged out of public high school as a result of Act 163 are enrolling in the
Community Schools for Adults. Thus, unlike in the B.T. case, the DOE has not
engaged in a systemic practice of offering the same or equivalent education to
general education students who have aged out while eliminating education services
for special education students. 2
2

Under Plaintiffs’ argument, if the State provides one general education
student over the age of twenty with a GED preparation course, then that triggers
the State’s obligation to spend substantial amounts of money to provide a FAPE to
all special education students between the ages of twenty and twenty two. This
(continued...)
17

35.

It is also significant that the adult education programs, unlike

traditional public high schools, do not have a maximum age limit. Under
Plaintiffs’ argument, Congress would have had to intend for states to terminate
GED programs and other adult education services for students beyond the age
restriction established by the state–in this case, the age of twenty–until a student
attains the age of twenty-two. This would lead to an absurd outcome. In order to
qualify for the exception provided in the IDEA, Hawaii could offer adult education
programs to students from the age of eighteen to twenty, but would have to stop the
programs for students aged twenty and twenty-one, and then recommence them for
students aged twenty-two and older.3 The Court cannot conclude that Congress
intended for the age governing provision of the IDEA to have this effect on all of a
state’s adult education services.
36.

As to Count I of Plaintiffs’ Complaint, the Court finds in favor of

Defendant. Plaintiffs have not demonstrated that the DOE has a state law or
practice whereby non-disabled students between the ages of twenty and twenty-two

2

(...continued)
simply could not have been the result intended by Congress.
3

Alternatively, Hawaii could simply abandon its adult education programs
for students until they turn twenty-two. This result, however, is inconsistent with
the statutory scheme established by the IDEA.
18

are being provided the functional equivalent of a secondary school education.
Therefore, lowering the age limit for FAPE eligibility to twenty pursuant to Act
163 is consistent with the State’s law and practice respecting the provision of
public education to general education students over the age of twenty.4 In short,
Plaintiffs have not established a violation of the IDEA.
C.

ADA and Rehab Act Claims (Counts II and III)
37.

To establish a prima facie case of discrimination under Title II of the

ADA, a plaintiff must show that:
(1) he is an individual with a disability; (2) he is otherwise qualified to
participate in or receive the benefit of some public entity’s services,
programs, or activities; (3) he was either excluded from participation
in or denied the benefits of the public entity’s services, programs, or
activities, or was otherwise discriminated against by the public entity;
and (4) such exclusion, denial of benefits, or discrimination was by
reason of [his] disability.
Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1021 (9th Cir. 2010) (quoting
McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004)).
4

The Court notes that in light of Hawaii’s unique circumstances, this may be
a case of first impression. Nonetheless, this Court may not rewrite the law or
otherwise engage in an exercise of judicial legislation. The Court must carefully
limit itself to finding the facts as presented to this Court and applying those facts to
the law as it understands Congress intended. A federal judge may never interpose
his or her personal preferences in interpreting the law as it is the role of Congress
to legislate and make policy decisions. Where, as in the case of the IDEA,
Congress has given the State of Hawaii some discretion in implementing the law,
the exercise of that discretion is reserved to the Governor and the State Legislature.
19

38.

Similarly, to establish a prima facie case of discrimination under

§ 504 of the Rehab Act, a plaintiff must show: “(1) he is an individual with a
disability; (2) he is otherwise qualified to receive the benefit; (3) he was denied the
benefits of the program solely by reason of his disability; and (4) the program
receives federal financial assistance.” Duvall v. Cnty of Kitsap, 260 F.3d 1124,
1135 (9th Cir. 2001); see also O’Guinn, 502 F.3d at 1060 (same).5
39.

A plaintiff alleging discrimination in violation of these Acts bears the

initial burden of producing evidence of a reasonable accommodation. See Zukle v.
Regents Univ. of Cal., 166 F.3d 1041, 1047 (9th Cir. 1999).
40.

The Court concludes that Plaintiffs have established a prima facie case

of discrimination under the ADA and Rehab Act. First, it is undisputed that
Plaintiffs are disabled and that the Community Schools for Adults receives federal
funds and constitutes a public entity. Second, since the adult education programs
have virtually no prerequisites for admission, Plaintiffs are otherwise qualified to
participate in those programs. Third, Plaintiffs are effectively denied the benefits

5

Given the close similarities between a cause of action per § 504 of the
Rehab Act and Title II of the ADA, the analysis with respect to these two counts
can be combined. See Wong v. Regents Univ. of Cal., 192 F.3d 807, 816 (9th Cir.
1999).
20

of the Community Schools for Adults by reason of their disabilities because those
schools do not provide IDEA services.
41.

However, Plaintiffs have not met their burden of producing evidence

that there exists a reasonable accommodation that will allow Plaintiffs to derive a
meaningful benefit from adult education programs. Specifically, Plaintiffs have
not demonstrated that continuing to provide Plaintiffs a FAPE until the age of
twenty-two is a “reasonable accommodation” under the Acts.
42.

In order to avoid discrimination prohibited by the ADA and the Rehab

Act, “[a] public entity must ‘make reasonable modifications6 in policies, practices,
or procedures when the modifications are necessary to avoid discrimination on the
basis of disability.’” Wong, 192 F.3d at 818 (quoting Zukle, 166 F.3d at 1046).
These Acts, however, do not require a public entity “to make fundamental or
substantial modifications to its programs or standards.” Id. (citing Se. Comm.
Coll. v Davis, 422 U.S. 397, 413 (1979). Indeed, “[b]ecause the issue of
reasonableness depends on the individual circumstances of each case, this
determination requires a fact-specific, individualized analysis of the disabled
individual’s circumstances and the accommodations that might allow him to meet
6

Although Title II of the ADA uses the term “reasonable modification,”
rather than “reasonable accommodation,” these terms create identical standards.
See McGary, 386 F.3d at 1266 n.3 (citing Wong, 192 F.3d 807, 816 n.26).
21

the program’s standards.” Id. (citing Crowder v. Kitagawa, 81 F.3d 1480, 1486
(9th Cir. 1996)).
43.

In this Court’s September 19, 2011 Order, the Court observed that

there is a close relationship between Plaintiffs’ ADA and Rehab Act claims and
their IDEA claim. The Court also noted that this case does not involve the kind of
blatant discrimination that was established in the B.T. case. In light of the facts
and circumstances of the case as well as the nature of Plaintiffs’ claims, the Court
held that in order to show that continuing to provide Plaintiffs a FAPE constitutes a
reasonable accommodation under the Acts, Plaintiffs must establish, inter alia, that
the adult education programs at issue provide the functional equivalent of a high
school education to adult general education students. (Doc. # 79 at 33–34.)
a.

As discussed supra, this Court finds that the Community Schools for
Adults do not provide the functional equivalent of a high school
education to general education students.

b.

Plaintiffs did not proffer any evidence at trial establishing the
reasonableness of the requested accommodation.

44.

Accordingly, as to Counts II and III of Plaintiffs’ Complaint, the

Court finds in favor of the Defendant. Plaintiffs have not established that the DOE
failed to provide reasonable accommodations necessary to avoid discrimination on
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the basis of a disability in violation of Title II of the ADA and § 504 of the Rehab
Act.
III.

CONCLUSION
For the foregoing reasons, Defendant’s Rule 50 motion for judgment

as a matter of law is DENIED. The Court finds and concludes that Plaintiffs have
failed to show by a preponderance of the evidence that pursuant to Act 163,
Defendant violated the IDEA, Title II of the ADA, or § 504 of the Rehab Act.
Judgment shall be entered in favor of Defendant as to Counts I, II, and
III of Plaintiffs’ Complaint. All parties shall bear their own costs of suit.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, March 30, 2012.

_____________________________
David Alan Ezra
United States District Judge
R.P.-K, et al.. v. Department of Education, Civ. No. 10-00436 DAE-KSC; FINDINGS OF
FACT, CONCLUSIONS OF LAW, AND DECISION

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