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

Filing 422

ORDER DETERMINING CLASS - Signed by JUDGE SUSAN OKI MOLLWAY on 10/18/2016. (emt, )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
E.R.K, et al.,

)
)
Plaintiffs,
)
)
vs.
)
)
DEPARTMENT OF EDUCATION,
)
State of Hawaii,
)
)
Defendant.
)
_____________________________ )
)

CIVIL NO. 10-436 SOM/KSC
ORDER DETERMINING CLASS

ORDER DETERMINING CLASS
This class action concerns whether the State of Hawaii
Department of Education (“DOE”) wrongfully denied services under
the Individuals with Disabilities Education Act (“IDEA”) to
individuals that the DOE viewed as having “aged out” of being
eligible to receive services.

On August 28, 2013, the Ninth

Circuit reversed a decision by another judge of this court,
ruling that the DOE’s reliance on a Hawaii statute, Act 163, to
deny services under the IDEA was improper, and that individuals
had not “aged out” as calculated by the DOE.
The class in this action was previously defined as:
All individuals residing in the State of
Hawai`i 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 Hawai`i
Department of Education under the Individuals
with Disabilities Education Act.

ECF No. 31 at 2, PageID # 685.

On December 15, 2014, however the

parties agreed to modify the class definition to the following:
All IDEA eligible persons who turned age 20
after 7/1/10 and were made ineligible by Act
163 and all IDEA eligible persons who were
over age 20, but under age 22, on 7/1/10 and
made ineligible by Act 163.
ECF No. 213-1, PageID # 3299.
On May 20, 2016, the court ordered Plaintiffs to file
under seal no later than September 19, 2016, a list of all
individuals included in the class, stating that, after September
19, 2016, no individual may be added to the class.
388, PageID # 6859.
2016.

See ECF No.

Plaintiffs filed that list on September 19,

See ECF No. 414.

On October 11, 2016, the DOE submitted

objections to some of the individuals identified by Plaintiffs.
See ECF No. 420.
objections.

Plaintiffs subsequently responded to the

See ECF No. 421.

The court now determines that, with the exceptions
stated below, the individuals identified by Plaintiffs in their
filing of September 19, 2016, are the only individuals included
in the class.

The court also closes the class.

No further

efforts should be undertaken to identify or contact additional
individuals for the purpose of adding them to the class.
The court excludes from the class individuals who were
“too young” to have been affected by Act 163.

In its order of

May 20, 2016, this court stated that the class will not include
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“any ‘too young’ individuals other than those already expressly
included in the class by the Magistrate Judge.”
PageID # 6859.

The DOE objects to five individuals it says are

“too young” to be included in the class.
# 7000.

ECF No. 388,

See ECF No. 420, PageID

Although Plaintiffs claim it is “impossible to say

whether the DOE has used the correct birthdates” for these
individuals, ECF No. 421, PageID # 7006, these five individuals
are excluded from the class.

If it turns out that these five

individuals are not actually “too young,” the parties are ordered
to meet and confer regarding a possible stipulation that adds the
individuals to the class.
The DOE objects to numerous individuals on the ground
that they left school before age 20.

The court overrules this

objection and includes these individuals in the class.

These

individuals fall within the range of individuals described in the
class definition as having been “made ineligible by Act 163.”
Even if they left school before age 20, they could have returned
and received services had Act 163 not been in effect.

An

individual who left school before age 20 may find the benefits
awarded in this lawsuit affected by that prior leaving, but that
goes to the remedy, not to class inclusion.
The DOE also objects to the inclusion of individuals it
lists as allegedly ineligible for special education services,
having withdrawn from school, or having declined a Free
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Appropriate Public Education (“FAPE”).

Because the record is not

clear that the individuals were in fact ineligible for special
education services, that they withdrew from school, or that they
declined FAPE, the court overrules the objections to these
individuals and includes them in the class.

The court also

questions whether withdrawing from school in one year or
declining FAPE in one year necessarily renders an individual
thereafter eternally ineligible under the IDEA.

Again, however,

individuals may find their available remedies affected by their
prior actions.

The parties are ordered to meet and confer with

respect to the individuals subject to these objections to discuss
the appropriate remedies for these individuals.
The court excludes from the class individuals who
“exited after Act 107 was repealed,”1 or “aged out at 22.”

These

individuals were not made ineligible by Act 163.
With respect to any individual who “earned enough
credits to receive [a] diploma,” the DOE should consider awarding
the individual his or her diploma.

Until the court receives

proof the individual has graduated from high school, the
individual shall remain part of the class, as the court will
assume for purposes of this motion that there was some impediment

1

The court assumes that, in citing the repeal of “Act 107,”
the DOE is referring to the repeal of Act 163.
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to the awarding of the diploma and that the individual therefore
remained eligible to receive special education services.
To the extent the DOE objects to individuals as “not
found in the DOE system,” the court overrules the objection and
allows the individuals to remain in the class.

However, the

parties must meet and confer in good faith with respect to
whether the individuals were provided special education services
through the DOE.

The court expects the parties to stipulate to

the dismissal of individuals from the class when appropriate.
This court will not entertain any motion for
reconsideration of this order absent a certification that the
parties have met and conferred in good faith regarding the basis
or bases on which reconsideration is sought.

Any meet-and-confer

obligation imposed by this order may be satisfied by a telephone
conversation.

IT IS SO ORDERED.
DATED: Honolulu, Hawaii, October 18, 2016.

/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge

R.P.-K, et al. v. Dep’t of Educ., State of Hawaii, Civ. No. 10-00436 SOM/KSC; ORDER
DETERMINING CLASS

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