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

Filing 79

ORDER: (1) DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT WITHOUT PREJUDICE 57 ; (2) GRANTING IN PART AND DENYING IN PART WITHOUT PREJUDICE DEFENDANT'S MOTION TO DISMISS, OR IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT 60 ; AND (3) DENYING P LAINTIFFS' RENEWED MOTION FOR A PRELIMINARY INJUNCTION WITHOUT PREJUDICE 59 . Signed by JUDGE DAVID ALAN EZRA on 9/19/2011. [Order follows hearing on motions held 9/12/2011. Minutes of hearing: 76 ]. (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

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
On September 12, 2011, the Court heard Plaintiffs’ Motion for
Summary Judgment, Defendant’s Motion to Dismiss, or in the alternative, for
Summary Judgment (“Defendant’s Motion”), and Plaintiffs’ Renewed Motion for a
Preliminary Injunction (“Plaintiffs’ Injunction Motion”). Jason H. Kim, Esq.,
Matthew C. Basset, Esq., and Lou Erteschik, Esq., appeared at the hearing on
behalf of Plaintiffs; Deputy Attorney General Carter K. Siu appeared at the hearing
on behalf of Defendant Department of Education (“Defendant” or “DOE”). After
reviewing the motions as well as the supporting and opposing memoranda, the

Court: DENIES WITHOUT PREJUDICE Plaintiffs’ Motion for Summary
Judgment (Doc. # 57); GRANTS IN PART AND DENIES IN PART
WITHOUT PREJUDICE Defendant’s Motion to Dismiss, or in the alternative,
for Summary Judgment (Doc. # 60); and DENIES WITHOUT PREJUDICE
Plaintiffs’ Motion for a Preliminary Injunction (Doc. # 59).
BACKGROUND
The named Plaintiffs in this case—excluding Plaintiff Hawaii
Disability Rights Center (“HDRC”)—are disabled individuals who are or had been
eligible for special education under the Individuals with Disabilities Education Act
(“IDEA”). In this litigation Plaintiffs are challenging the validity of Act 163 of the
Session Laws of Hawaii for 2010 (“Act 163”), arguing it is an invalid attempt at
circumventing this Court’s holdings in B.T. v. Dep’t of Educ., 637 F. Supp. 2d 856
(D. Haw. 2009), B.T. v. Dep’t of Educ., 2009 WL 4884447 (D. Haw. Dec. 17,
2009) (hereinafter “B.T. II”), and B.T. v. Dep’t of Educ., 2008 WL 3891867 (D.
Haw. Aug. 21, 2008) (hereinafter “B.T. III”) and therefore violates the IDEA.
Plaintiffs also allege violations of Title II of the Americans with Disabilities Act
(“ADA”) as well as Section 504 of the Rehabilitation Act (“Rehab Act”). Finally,
Plaintiffs contend that principles of judicial estoppel should preclude Defendant
from denying Plaintiffs a special education per the IDEA.
2

I.

B.T. and Act 163
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 determined that federal
eligibility for special education and related services therefore ends on a student’s
twenty-second birthday. B.T. I, 637 F. Supp. 2d at 863–64 n.9. States, however,
may impose different age restrictions provided those same limitations are applied
broadly to general education students as well. 20 U.S.C. § 1412(a)(1)(B) (“The
obligation to make [FAPE] available to all children with disabilities does not apply
with respect to children . . . 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 . . . .”); see also B.T. I, 637 F. Supp. 2d at 863 (“The State is only allowed
to deviate from the requirements of the IDEA if there is a clear State law that says
otherwise.”).
In B.T., Plaintiff B.T. was a severely autistic twenty-year-old. B.T. I,
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 Court agreed. Specifically, the Court focused on
3

the “nature of the practice of Hawaii’s schools toward students 20 years or older”
and found that “Defendant has approved every single overage general education
student and barred almost every single overage special education student.” Id. at
865. Accordingly, “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. The Court
subsequently granted summary judgment, in part, for Plaintiff B.T. B.T. II, 2009
WL 4884447, at *9. The state of Hawaii did not appeal this Court’s ruling.
Since then, however, Hawaii has passed Act 163 which amended
Haw. Rev. Stat § 302A-1134(c) to impose a twenty year age limit on all
admissions to public high school. See Haw. Rev. Stat. § 302A-1134(c).
Specifically, the statute states:
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.
Id. Plaintiffs assert that while Act 163 imposes an age limit of twenty for
attendance at a public school, the DOE continues to provide a public education to
students over the age of twenty through the CB (competency-based) and GED
4

(General Education Development) high school equivalency programs (collectively
“adult education programs”). A special education student, according to Plaintiffs,
cannot therefore be denied a FAPE on the grounds that he or she has “aged-out” of
IDEA eligibility per Act 163 because general education students may continue
their studies in these adult education programs.
II.

Procedural History
On July 17, 2010, Plaintiffs filed their Class Action Complaint for

Declaratory and Injunctive Relief. (“Compl.,” Doc. # 1.) On September 24, 2010,
Plaintiffs filed a Motion to Certify Class. (Doc. # 15.) On March 15, 2011, the
Court issued an Order Granting in Part and Denying in Part Plaintiffs’ Motion for
Class Certification.1 (Doc. # 31.) On June 23, 2011, the Plaintiffs filed a Motion
for Preliminary Injunction. (Doc. # 44.) On July 12, 2011, the Court denied

1

Specifically, the Court certified the following class:

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.
(Doc. # 31 at 2.)
5

Plaintiffs’ Motion for a Preliminary Injunction without prejudice (“July Order”).
(“July Order,” Doc. # 53.) In its July Order the Court held that in order to prevail:
Plaintiffs must demonstrate that the DOE uses Act 163 as a means of
denying special education students a FAPE beyond the age of twenty
while simultaneously ushering general education students of the same
age into adult education programs to complete their secondary
education.
(Id. at 7.) The Court went on to deny the Motion for Preliminary Injunction
finding that
While Plaintiffs have demonstrated that Act 163 is used to deny
special education students a FAPE beyond the age of twenty, there is
no evidence yet on the record to suggest that the DOE has adopted a
practice whereby general education students of the same age are
allowed to continue their secondary education in adult education
programs with regularity. See B.T., 637 F. Supp. 2d at 865–66
(focusing on the “nature of the practice of Hawaii’s schools towards
students 20 years or older” and finding that “Defendant has approved
every single overage general education student and barred almost
every single overage special education student”). Without this
evidence, the Court cannot conclude that Plaintiffs have satisfied their
heavy burden with respect to their Motion for a Preliminary
Injunction. Specifically, Plaintiffs have not demonstrated a likelihood
of success on the merits.
(Id. at 8–9.) The Court, however, invited Plaintiffs to refile the Motion for
Preliminary Injunction once further discovery had taken place. (Id. at 9.)
On August 1, 2011, Plaintiffs filed their Motion for Summary
Judgment. (“Ps’ Mot.,” Doc. # 57.) Plaintiffs also filed a Renewed Motion for

6

Preliminary Injunction. (“Ps’ Injunction Mot.,” Doc. # 59.) Also on August 1,
2011, Defendant filed its Motion. (“D’s Mot.,” Doc. # 60.)
On August 22, 2011, Plaintiffs filed their Opposition to Defendant’s
Motion. (“Ps’ Opp’n,” Doc. # 63.) The same day, Defendant filed its Opposition
to Plaintiffs’ Motion for Summary Judgment. (“D’s Opp’n,” Doc. # 65.)
Defendant also filed an Opposition to Plaintiffs’ Injunction Motion. (“D’s
Injunction Opp’n,” Doc. # 67.) On August 29, 2011, Defendant filed its Reply in
support of its Motion. (“D’s Reply,” Doc. # 69.) The same day, Plaintiffs filed a
consolidated Reply in support of both their Motion for Summary Judgment as well
as their Injunction Motion. (“Ps’ Reply,” Doc. # 71.)
STANDARD OF REVIEW
I.

Motion for Summary Judgment
Federal Rule of Civil Procedure (“Rule”) 56 requires summary

judgment to be granted when “the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); see also Porter v. Cal. Dep’t of Corr., 419 F.3d 885, 891 (9th
Cir. 2005); Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). A
main purpose of summary judgment is to dispose of factually unsupported claims
and defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986).
7

Summary judgment must be granted against a party that fails to
demonstrate facts to establish what will be an essential element at trial. See id. at
323. Before granting summary judgment, however, a non-moving party must have
a “‘full and fair opportunity to ventilate the issues [related to] the . . . claims.’”
Norse v. City of Santa Cruz, 629 F.3d 966, 972–73 (9th Cir. 2010) (quoting Greene
v. Solano Cnty. Jail, 513 F.3d 982, 990 (9th Cir. 2008)).
A moving party without the ultimate burden of persuasion at
trial—usually, but not always, the defendant—has both the initial burden of
production and the ultimate burden of persuasion on a motion for summary
judgment. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th
Cir. 2000). The burden initially falls upon the moving party to identify for the
court those “portions of the materials on file that it believes demonstrate the
absence of any genuine issue of material fact.” T.W. Elec. Serv., Inc. v. Pac. Elec.
Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp., 477
U.S. at 323). This assertion must be supported by citations “to particular parts of
materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations, . . . admissions, interrogatory
answers, or other materials,” or by demonstrating “that the materials cited do not

8

establish the absence or presence of a genuine dispute, or that an adverse party
cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c).
Once the moving party has carried its burden under Rule 56, the
nonmoving party “must set forth specific facts showing that there is a genuine
issue for trial” and may not rely on the mere allegations in the pleadings. Porter,
419 F.3d at 891 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
(1986)). In setting forth “specific facts,” the nonmoving party may not meet its
burden on a summary judgment motion by making general references to evidence
without page or line numbers. S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885,
889 (9th Cir. 2003); Local Rule 56.1(f) (“When resolving motions for summary
judgment, the court shall have no independent duty to search and consider any part
of the court record not otherwise referenced in the separate concise statements of
the parties.”). “[A]t least some ‘significant probative evidence’” must be
produced. T.W. Elec. Serv., 809 F.2d at 630 (quoting First Nat’l Bank of Ariz. v.
Cities Serv. Co., 391 U.S. 253, 290 (1968)). “A scintilla of evidence or evidence
that is merely colorable or not significantly probative does not present a genuine
issue of material fact.” Addisu, 198 F.3d at 1134. Further, the Ninth Circuit has
“refused to find a ‘genuine issue’ where the only evidence presented is
‘uncorroborated and self-serving’ testimony.” Villiarimo v. Aloha Island Air, Inc.,
9

281 F.3d 1054, 1061 (9th Cir. 2002) (citing Kennedy v. Applause, Inc., 90 F.3d
1477, 1481 (9th Cir. 1996)). “Conclusory allegations unsupported by factual data
cannot defeat summary judgment.” Rivera v. Nat’l R.R. Passenger Corp., 331 F.3d
1074, 1078 (9th Cir. 2003). If a party fails to properly support an assertion of fact
or fails to properly address another party’s assertion of fact, a court may either give
the party an opportunity to support or address the fact, consider the fact undisputed
for purposes of the motion and grant or deny summary judgment accordingly, or
issue any other appropriate order. Fed. R. Civ. P. 56(e).
When “direct evidence” produced by the moving party conflicts with
“direct evidence” produced by the party opposing summary judgment, “the judge
must assume the truth of the evidence set forth by the nonmoving party with
respect to that fact.” T.W. Elec. Serv., 809 F.2d at 631. In other words, evidence
and inferences must be construed in the light most favorable to the nonmoving
party. Porter, 419 F.3d at 891. The court does not make credibility determinations
or weigh conflicting evidence at the summary judgment stage. Id.; see also Nelson
v. City of Davis, 571 F.3d 924 (9th Cir. 2009) (“[C]redibility determinations, the
weighing of the evidence, and the drawing of legitimate inferences from the facts
are jury functions, not those of a judge.”) (citations omitted). However, inferences
may be drawn from underlying facts not in dispute, as well as from disputed facts
10

that the judge is required to resolve in favor of the nonmoving party. T.W. Elec.
Serv., 809 F.2d at 631.
II.

Motion to Dismiss
A motion to dismiss under Rule 12(b)(6) “tests the legal sufficiency of

a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A complaint may
be dismissed as a matter of law for two reasons: (1) lack of a cognizable legal
theory or (2) insufficient facts alleged to support a cognizable theory. Id. (citing
Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)). Because a
Rule 12(b)(6) motion to dismiss focuses on the sufficiency of a claim statement,
review is generally limited to the face of the complaint. Lee v. City of Los
Angeles, 250 F .3d 668, 688 (9th Cir. 2001) (citation omitted); Clegg v. Cult
Awareness Network, 18 F.3d 752, 754 (9th Cir. 1994) (citations omitted). The
Court must accept all allegations of material fact as true and construe them in a
light most favorable to the nonmoving party. Sprewell v. Golden State Warriors,
266 F.3d 979, 988 (9th Cir. 2001). The Court, however, need not accept as true
conclusory allegations of law, unwarranted deductions of fact, and unreasonable
inferences. Id.
As to a plaintiff’s pleading burden, the Supreme Court has held that
while a complaint “does not require ‘detailed factual allegations,’ . . . it demands
11

more than an unadorned, the defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). “Factual allegations must be enough to raise
a right to relief above the speculative level.” Twombly, 550 U.S. at 555. Thus, to
survive a Rule 12(b)(6) motion to dismiss, a complaint must contain “enough facts
to state a claim to relief that is plausible on its face.” Id. at 570. A claim is
plausible on its face “when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556). If a court
dismisses the complaint or portions thereof, it must consider whether to grant leave
to amend. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (finding that leave
to amend should be granted “if it appears at all possible that the plaintiff can
correct the defect” (quotations and citations omitted)).
III.

Preliminary Injunction
“[I]njunctive relief is an extraordinary remedy that may only be

awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter
v. Natural Res. Def. Council, Inc., 129 S. Ct. 365, 376 (2008). To obtain a
preliminary injunction, the moving party must demonstrate “that he is likely to
succeed on the merits, that he is likely to suffer irreparable harm in the absence of
12

preliminary relief, that the balance of equities tips in his favor, and that an
injunction is in the public interest.” Id. at 365 (citing Munaf v. Geren, 128 S. Ct.
2207, 2218–19 (2008); Amoco Prod. Co. v. Gambell, 480 U.S. 531, 542 (1987);
Weinberger v. Romero-Barcelo, 456 U.S. 305, 311–12 (1982)); see also Stormans,
Inc. v. Selecky, 586 F.3d. 1109, 1126–27 (9th Cir. 2009) (applying heightened
standard mandated by Winter). “‘[S]erious questions going to the merits’ and a
hardship balance that tips sharply towards the plaintiff can [also] support issuance
of an injunction, so long as the plaintiff also shows a likelihood of irreparable
injury and that the injunction is in the public interest.” Alliance for Wild Rockies
v. Cottrell, 622 F.3d 1045, 1053 (9th Cir. 2010). A district court has great
discretion in determining whether to grant or to deny a temporary restraining order
or a preliminary injunction. See Wildwest Inst. v. Bull, 472 F.3d 587, 589–90 (9th
Cir. 2006); see also Lopez v. Heckler, 713 F.2d 1432, 1435 (9th Cir. 1983) (“At
one end of the continuum, the moving party is required to show both a probability
of success on the merits and the possibility of irreparable injury. At the other end
of the continuum, the moving party must demonstrate that serious legal questions
are raised and that the balance of hardships tips sharply in its favor.”) (internal
citations omitted).

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DISCUSSION
Plaintiffs’ Motion for Summary Judgment addresses only the first
count of the Complaint. (Ps’ Mot. at 1.) Similarly, Plaintiffs’ Injunction Motion
“addresses only Plaintiffs’ likelihood of success on their IDEA claims” and does
not address the other counts of the Complaint. (Ps’ Injunction Mot. at 13 n.3.)
Defendant’s Motion, on the other hand, addresses each count of the Complaint.
I.

Count I: Violation of the IDEA
Both parties move for summary judgment on count one of the

Complaint. The Court finds that both motions are premature.
A.

Statutory Interpretation
The statutory provision at issue in this count of the Complaint

provides as follows:
(a) In general
A State is eligible for assistance under this subchapter for a fiscal year
if the State submits a plan that provides assurances to the Secretary
that the State has in effect policies and procedures to ensure that the
State meets each of the following conditions:
(1) Free appropriate public education
(A) In general
A free appropriate public education is available to all
children with disabilities residing in the State between
the ages of 3 and 21, inclusive, including children with
14

disabilities who have been suspended or expelled from
school.
(B) Limitation
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). As outlined, this Court has held that in general federal
eligibility for special education and related services ends on a student’s twentysecond birthday per this subsection. B.T. I, 637 F. Supp. 2d at 863–64 n.9.
According to § 1412(a)(1)(B)(i), however, a state may lower this age limit to as
little as eighteen, provided it is done consistent with “the provision of public
education” made available to all students of that age. Id. (emphasis added). What
Congress meant by “public education” in this age governing provision of the IDEA
is the precise question raised in this count of the Complaint. Specifically, this
Court is here called upon to determine whether Hawaii’s adult education programs
qualify as “public education” such that Defendant cannot rely upon Act 163 as a

15

justification for denying special education students aged twenty and twenty-one a
FAPE.
To determine, however, whether the adult education programs qualify
as “public education,” this Court must first determine what Congress meant by
“public education” as used in 20 U.S.C. § 1412(a)(1)(B)(i).
Congress did not define “public education” in the IDEA, and there is a
complete dearth of authority interpreting this provision. “Without a
definition . . . in the statute or any binding precedent, [a court] must ‘find that
interpretation which can most fairly be said to be imbedded in the statute, in the
sense of being most harmonious with its scheme and with the general purposes that
congress manifested.” N.D. v. Haw. Dep’t of Educ., 600 F.3d 1104, 1114 (9th Cir.
2010) (quoting United States v. Alghazouli, 600 F.3d 1104, 1184 (9th Cir. 2008)).
The Court finds that neither interpretation proffered by the parties is
particularly persuasive. Plaintiffs simply assume in their papers that the adult
education programs qualify as “public education.” (Ps’ Mot. at 11 (“[I]t is
undisputed that the DOE has a practice of providing a public education to general
education students over the age of twenty, just as it did at the time of this Court’s
opinions in B.T.”).). As the Court expressed at the Hearing, however, Plaintiffs
assume to much. Under this interpretation Congress would have had to intend for
16

a state to terminate all educational 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 construction leads to illogical results. To lower the age
limit per this subsection, Hawaii, for instance, 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, before recommencing them for
students aged twenty-two and older.2 Further, not only would adult education
programs be affected, but any public education service would have to be
terminated for students aged twenty and twenty-one as well. The Court cannot
conclude that Congress intended for the age governing provision to have this effect
on all of a state’s education services.3

2

Alternatively, Hawaii could simply abandon its adult education programs
for students until they turn twenty-two. This result is inconsistent with the
statutory scheme established by the IDEA as discussed infra.
3

Indeed, one open question would be the effect a public university had on a
state’s decision to change the upper age limit at which a special education student
is entitled to a FAPE. By Plaintiffs’ logic, the existence of a public university that
provides an education to students aged twenty and twenty-one (such as the
University of Hawaii) might suffice to trigger the IDEA’s requirement that special
education students be provided a FAPE until the age of twenty-two. Plaintiffs
argued at the Hearing that in contrast to the adult education programs, public
universities have acceptance standards and are not free. In making this argument,
however, Plaintiffs necessarily concede that there must be some sort of implicit
restriction on the term “public education.”
17

Defendants, on the other hand, argue that the IDEA by its own terms
is limited only to “Hawaii’s preschools, elementary, and secondary schools.” (D’s
Opp’n at 7.) This construction is also unpersuasive. A state could simply pass a
law terminating all secondary education at the age of eighteen, but transfer general
education students who would have otherwise “aged out” to an “adult education”
program to continue their studies and ultimately receive a high school diploma or
its functional equivalent. This would be grossly inconsistent with the underlying
purposes of the IDEA. Indeed, as the Ninth Circuit recently discussed:
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., 600 F.3d at 1115. Defendant’s proposed construction would create a
loophole inconsistent with Congress’s intent “to prevent the isolation and
exclusion of disabled children, and provide them with a classroom setting as
similar to non-disabled children as possible.” Id. The Court therefore rejects
Defendant’s proposed construction as well.

18

Instead, the Court begins its interpretation of the provision with an
analysis of its plain terms. While the dictionary definition of “public education” is
not helpful, the Court notes that in 20 U.S.C. § 1412(a)(1) the term “public
education” appears five times. In each instance, with the exception of the
subsection at issue, it appears as a part of the phrase “free appropriate public
education.” See id. The IDEA defines “free appropriate public education” as
special education and related services that . . . include an appropriate preschool,
elementary school, or secondary school education in the state involved.” 20 U.S.C.
§ 1401(9)(C) (emphasis added). This suggests to the Court that the term “public
education” relates closely to “secondary school education” as the term “free
appropriate public education” is defined, in part, as “secondary school education.”
The Court is cognizant, however, of the purposes underlying the
IDEA. Construing “public education” to mean simply a “secondary education”
could run afoul of the purposes behind the IDEA as discussed.4 Instead, Congress,
likely aware that a state might try to unfairly constrict the age range in which a
special education student is entitled to a FAPE, deliberately used the unqualified

4

Indeed, as noted, this is Defendant’s proposed construction. (D’s Opp’n at

7.)
19

term “public education” in the age governing provision rather than simply restating
“free appropriate public education.” This ensured Congress’s “overarching goal of
the IDEA[,] to prevent the isolation and exclusion of disabled children” was not
frustrated based solely on a state’s rigid definition of “secondary education.” See
N.D., 600 F.3d at 1115. Accordingly, although “public education” relates closely
to “secondary school education,” Congress intended the term to encompass more to
ensure states would not deprive special education students a FAPE by terminating
“secondary education” at the age of eighteen but providing a functional equivalent
to general education students under the guise of a program with a different name.
The Court therefore concludes that the term “public education” as
used in the age governing provision of the IDEA, 20 U.S.C. § 1412(a)(1)(B)(i),
means an educational program which in practice provides a secondary education or
its functional equivalent to students. Importantly, it does not mean any and all
educational opportunities provided by a state to students. Nor, however, is it
limited to a state’s definition of “secondary education.”
With this definition of “public education” in hand, the age operating
provision of the IDEA is much clearer. To determine whether a state has validly
changed the age range in which a special education student is entitled to a FAPE

20

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. See 20 U.S.C. § 1412(a)(1)(B)(i). If there are no such programs, the
state has validly changed the age range. If such programs exist, the state has
violated the IDEA and will be precluded from changing the age range.
Applying these principles to the case before it, the Court finds that to
prevail on their IDEA claim, Plaintiffs must demonstrate: (1) the adult education
programs provide the functional equivalent of a high school diploma and (2) that
students are “ushered” with regularity from a general education to adult education
programs.5

5

This latter requirement stems from the age operating provision’s
requirement that a court consider, in part, a state’s “practice.” 20 U.S.C.
§ 1412(a)(1)(B)(i). If students are not shuffled with regularity between high school
and adult education programs, the state cannot be said to have a regular “practice”
of providing general education students beyond the age of twenty with a high
school diploma or its functional equivalent. See B.T., 637 F. Supp. 2d at 865–66
(focusing on the “nature of the practice of Hawaii’s schools towards students 20
years or older” and finding that “Defendant has approved every single overage
general education student and barred almost every single overage special education
student”).
21

B.

Motions for Summary Judgment
Plaintiffs’ Motion for Summary Judgment with respect to count one of

the Complaint is based upon relatively few undisputed facts:
•

The DOE provides adult education programs, the goal of which
is to “ensure that the graduates are prepared for transitions to
post secondary education and have the necessary skills to
become productive members of Hawaii’s economic workforce.”
(“PSCSF,” Doc. # 58, Ex. A; id. Ex. B at 19:18–21:3, 67:9–20;
id. Ex. F.)

•

As of the effective date of Act 163, 646 students between the
ages of twenty-one and twenty-two were enrolled in adult
education programs. (Id. Ex. C at 5:19–23.) Specifically, 125
were in the GED program, 231 were in the CB diploma
program. The remainder were in an English as a Second
Language program or remedial programs. (Id.)

•

Act 163 had no impact on the adult education programs. (Id.
Ex. B at 15:20–16:1.)

22

•

There are minimal qualifications required to participate in the
GED or CB programs.6 (Id. Ex. B at 24:10–25:2, 25:22–26:17,
31:8–33:19; id. Ex. E.)

•

Despite some nominal fees, the DOE’s adult education
programs is nearly entirely funded by state and federal money.
(See id. Ex. B at 38:6–39:12, 42:6–25.)

•

On a “case-by-case” basis, Guidance counselors advise students
when it is “appropriate” to continue their education in the
DOE’s adult education programs. (Id. Ex. C at 18:11–20:24.)

•

There are no IDEA or special education services available in
the adult education program. (Id. Ex. B at 62:2–19, 65:18–25.)

Plaintiff argues that these facts alone are sufficient to warrant judgment in their
favor on count one of the Complaint. The Court disagrees.
The Court has been clear throughout these proceedings. To prevail on
count one of the Complaint, Plaintiffs will have to demonstrate that the DOE uses
Act 163 as a means of denying special education students a FAPE beyond the age

6

The DOE does administer screening tests when a student applies, but no
student is prevented from participating in the programs because of a low score.
Further, those with lower than optimal scores have the option of entering a
remedial class. (PCSF Ex. B at 24:10–25:2, 25:22–26:17, 31:8–33:19; id. Ex. E.)
23

of twenty while simultaneously engaging in a practice of providing general
education students of the same age an adult education as a means of completing
their secondary education. The Court has qualified this statement by noting that
the shuffling of general education students from secondary schools to adult
education programs must be done with “regularity.” (July Order at 8.)
In B.T., for instance, Defendant’s practice was “to require overage
general education and special education eligible students to obtain the permission
of the principal to attend school.” 637 F. Supp. 2d at 864. The evidence before the
Court demonstrated that collectively the principals had “approved every single
overage general education student and barred almost every single overage special
education student.” Id. at 865. As a result, “a picture of blatant discrimination
[emerged] in violation of the IDEA” and B.T. was entitled to summary judgment.
Id. Plaintiffs have not made a similar showing here.
Plaintiffs’ primary shortcoming is that the number of students aged
twenty-one and twenty-two enrolled in adult education programs without any
context does not illustrate that Defendant “ushers” general education students into
adult education programs with regularity. The number 646 may or may not
statistically relevant. If thousands upon thousands of general education students
age out every year per Act 163 and only a few hundred pursue adult education, it
24

cannot be said that Defendant is placing general education students into adult
education programs with regularity as a means of continuing their secondary
education. Conversely, if only a few hundred general education students age out
per Act 163 on a yearly bases, the number 646 becomes much more statistically
relevant.
Further, as Defendant points out, Hawaii makes its adult education
programs available to the public generally. The number 646 may include students
who dropped out of high school when they were sixteen, moved to Hawaii from
another state or country after turning twenty, or perhaps have been in adult
education from the time they were eighteen or nineteen.7 (D’s Opp’n at 6.) The
number 646, by itself, is simply not probative of whether Defendant is ushering
students who age out per Act 163 into adult education with regularity.
In Reply, Plaintiffs argue that the “IDEA’s age eligibility rule, 20
U.S.C. § 1412(a)(1)(b), in no way depends on the length of that student’s residence
in the state in which he or she seeks IDEA services or on whether that student was

7

Plaintiffs complain in their Reply that the “DOE could easily determine
from its records precisely how many of these 646 students were not previously
enrolled in a DOE high school. The fact that it has chosen not to . . . speaks for
itself.” (Ps’ reply at 4 n.2.) However, this is the Plaintiffs’ case to prosecute. It
was Plaintiffs’ obligation to seek this information in discovery. Defendant is under
no obligation to volunteer this information or help Plaintiffs prosecute this action.
25

previously enrolled in that state’s public education system.” (Reply at 5.)
Plaintiffs misconstrue Defendant’s argument. The larger point is that many of the
646 students currently enrolled in adult education may not be general education
students who would have “aged out” pursuant to Act 163 but were purportedly
ushered into adult education programs. This alone is sufficient grounds to deny
Plaintiffs’ Motion for Summary Judgment.
The Court also finds that neither Plaintiffs nor Defendant have
provided undisputed facts which describe the qualitative nature of the education
students receive in the adult education programs.
Plaintiffs point out that Hawaii state law requires Defendant, by
statute, to establish a “program of secondary education for those adults who, in
youth, left school or for some reason had their education curtailed and who now
desire to continue their education.” Haw. Rev. Stat. § 302A-433(3). Plaintiffs
contend that the DOE has provided no evidence that it operates any program to
provide secondary education for adults other than the adult education programs at
the heart of this litigation which the DOE now claims are distinct from secondary
education. (Ps’ Opp’n at 18–19.) Defendant does not refute this point. Moreover,
Plaintiffs have provided this Court evidence which suggests that Defendant, at a

26

minimum, advertises to the public that its adult education programs provide a high
school diploma or its functional equivalent. (See Doc. # 64-2.)
Defendants, however, provide arguments and evidence to this Court
which suggests that the education which students receive in the adult education
programs are completely distinct. (D’s Mot. at 14–23.) For instance, Hawaii
Revised Statutes § 317-1 defines secondary school students as those in grades
seven to twelve. See Haw. Rev. Stat. § 317-1. By contrast, there are no grade
levels in the adult education system. (“Naguwa Decl.,” Doc. # 61-3, ¶ 6.)
Defendant has also provided evidence which suggests that the courses provided in
adult education programs “do not provide students with credits that can be applied
towards a high school diploma or college credits.” (Id. ¶ 11.) Moreover, credits
achieved in high school cannot be transferred to adult education programs.8 (Doc.
# 61-9 at 21:12–29:24; 30:17–31:6.)
Absent more facts, the Court cannot conclude that either party is
entitled to summary judgment on their IDEA claim. Plaintiffs’ evidence is
insufficient with respect to whether general education students are being

8

Defendant also presents evidence which suggests that the military views
adult education diplomas as distinct from high school diplomas and that the rigors
associated with obtaining a high school diploma are different from those associated
with obtaining an adult education program diploma. (D’s Mot. at 19.)
27

intentionally shuffled into adult education programs with regularity.9 With respect
to the type of education provided in the adult education classes, it appears to the
Court on the record before it that there may exist a dispute of material fact.
Plaintiff has provided evidence which demonstrates, at least superficially, that the
adult education programs are effectively the equivalent of high school education.
Defendants, on the other hand, have proffered evidence which suggests they are
distinct.
In sum, the Court simply cannot grant either motion based on the facts
before it. As the Court alluded at the Hearing, however, further discovery may
9

Plaintiffs’ remaining arguments are not persuasive. For instance, even
assuming guidance counselors advise students on a “case-by-case” basis to
continue their studies in adult education programs, if it is not done with regularity,
Plaintiffs cannot demonstrate that there has been a violation of the IDEA.
Moreover, the Court is skeptical that a guidance counselor suggesting adult
education programs as one of many possible “next-steps” to a student about to age
out per Act 163 qualifies as actively placing general education students into adult
education programs in violation of the IDEA. Indeed, it appears to the Court that
the evidence demonstrates that guidance counselors discuss a wide variety of
options with students about to age out per Act 163. As discovery revealed:
The DOE . . . counsels every student at the high school [about]
wherever they [are] going. If it is to post secondary, if it’s to a job, if
it’s to a trade school, if it’s to a community school, wherever they
go . . . even without a diploma, they’re counseled. And . . . the
schools help [students] find their niche. That has not changed in
DOE.
(PCSF, Ex. C at 18:11–20:24.)
28

illustrate that Defendant regularly encourages general education students who
would otherwise “age out” per Act 163 to pursue continued education in adult
education courses. Further discovery may also illustrate the extent to which the
adult education programs and Hawaii’s secondary education program are similar in
nature. Accordingly, the Court DENIES WITHOUT PREJUDICE both
Plaintiffs’ Motion for Summary Judgment and Defendant’s Motion with respect to
count one.
II.

Counts II and III: Violations of Title II of the ADA and the Rehab Act
In count two of the Complaint Plaintiffs allege that Defendant violated

Title II of the ADA by allowing nondisabled adults to continue their “public
education” through the adult education programs beyond the age of twenty while
simultaneously denying special education students a similar opportunity. (Compl.
¶¶ 37–41.) Plaintiffs make the same factual allegations in their third claim for
relief where they allege Defendant violated Section 504 of the Rehab Act. (Id.
¶¶ 42–46)
In order to state a claim under Title II of the ADA, a plaintiff must
allege:
(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
29

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.’

O’Guinn v. Lovelock Correctional Ctr., 502 F.3d 1056, 1060 (9th Cir. 2007)
(quoting McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004)).
Similarly, to state a claim under the Rehab Act, a plaintiff must allege “(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).10
Here, Defendant “concedes that Plaintiffs are disabled and that the
[adult education programs] receive federal funds and/or is a public entity.” (D’s
Opp’n at 28.) Defendant disputes, however, that Plaintiffs have properly pled the
remaining prima facie requirements. (Id. at 29.) The Court disagrees.
The first of the remaining requirements, whether Plaintiffs are
“otherwise qualified” for the adult education programs or a public education, is

10

Given the close similarities between alleging a cause of action per § 504 of
the Rehab Act and Title II of the ADA, an analysis of Plaintiffs’ Complaint with
respect to these two counts can be combined. See Wong v. Regents University of
Cal., 192 F.3d 807, 816 (9th Cir. 1999).
30

plainly alleged in the Complaint. (Compl. ¶ 40 ( “Plaintiffs, and the members of
the Class, are qualified individuals with disabilities.”).) Moreover, the DOE’s
adult education programs have no meaningful prerequisites for admission. (PCSF,
Ex. B at 24:10–25:2, 25:22–26:17, 31:8–33:19; id. Ex. E.) Defendant proffers no
argument on this point aside from baldly stating it has been insufficiently pled.
The second of the remaining pleading requirements, whether Plaintiffs
have been denied benefits of the program based solely by reason of their disability,
has also been adequately pled. As the Complaint states:
Plaintiffs, and the members of the Class, have been excluded from,
denied the benefits of, or otherwise discriminated against with respect
to the DOE’s provision of public education to those who reach the age
of twenty on or before the first instructional day of the school year. A
general education student of the same age may continue his public
education through Hawai’i’s adult education program. Plaintiffs and
the members of the Class do not have this option, as the adult
education program is not equipped to educate all students who reach
the age of twenty on or before the first instructional day of the school
year through the age of twenty-two whose disabilities previously
qualified them for a FAPE under the IDEA.
(Id. ¶ 41.) The Court finds this more than suffices as an allegation that Plaintiffs
have been denied benefits of the program based solely by reason of their disability.
For summary judgment purposes under these Acts, a plaintiff “bears
the initial burden of producing evidence both that a reasonable accommodation
exists and that this accommodation would enable [plaintiff] to meet the educational
31

institution’s eligibility requirements.” Wong, 192 F.3d 807, 816–17 (internal
quotation marks omitted). As discussed, Plaintiffs are plainly qualified for the
adult education programs given their virtually nonexistent prerequisites for
admission. (PCSF, Ex. B at 24:10–25:2, 25:22–26:17, 31:8–33:19; id. Ex. E.)
What is still unclear to the Court, however, is whether Plaintiffs have demonstrated
there exists a reasonable accommodation such that Plaintiffs will derive a
meaningful benefit from continued education.
“A public entity must ‘make reasonable modifications 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
v. Regents University of Cal, 166 F.3d 1041, 1046 (9th Cir. 1999). These Acts,
however, do not require an academic institution “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
the program’s standards.” Id. (citing Crowder v. Kitagawa, 81 F.3d 1480, 1486
(9th Cir. 1996)).
32

Plaintiffs argue that they have “proven” a reasonable accommodation
exists. Specifically, they contend that “the continuation of their FAPEs under the
IDEA until they reach the age of 22” is a reasonable accommodation. (Ps’ Opp’n
at 22.) The Court disagrees. In B.T., B.T. claimed that Defendant violated both
the IDEA and Section 504 of the Rehab Act. 637 F. Supp. 2d at 865. The Court
agreed with B.T., concluding that Defendant’s practice of approving “every single
overage general education student” while barring “almost every single overage
special education student without the commencement of legal action,” resulted in a
violation of Section 504 of the Rehab Act. Id. (“What emerges is a picture of
blatant discrimination in violation of the IDEA and Section 504 of the
Rehabilitation Act of 1973.” (emphasis added)).
Here, Plaintiffs have not yet made a similar showing. Considering the
facts and circumstances of this case as well as the close relationship between these
claims and Plaintiffs’ IDEA claim, the Court finds it is not automatically
“reasonable” per Title II and the Rehab Act for the DOE to continue to provide
FAPEs to each of the Plaintiffs as Plaintiffs suggest.11 Instead, to show that
continuing to provide a FAPE to Plaintiffs is a “reasonable accommodation” per

11

This is especially so given the large costs related to providing a FAPE to
Plaintiffs for two additional years.
33

the Acts, Plaintiffs first must demonstrate a pattern which suggests Defendant is
discriminating against special education students by actively moving students who
would otherwise “age out” per Act 163 from secondary school to adult education.
See B.T., 637 F. Supp. 2d at 865. Plaintiffs must also demonstrate, as discussed
supra, that the adult education programs provide the functional equivalent of a high
school education to adult education students. As discussed, Plaintiffs have not yet
proffered evidence which suggests Defendant is engaging in this sort of conduct.
As with count one of the Complaint, however, further discovery may reveal
otherwise. Defendant’s Motion is therefore premature.
Accordingly, the Court DENIES WITHOUT PREJUDICE
Defendant’s Motion with respect to counts two and three of the Complaint.12
III.

Count IV: Judicial Estoppel
In Plaintiffs’ fourth claim for relief, they allege that Defendant should

be estopped from asserting that a student’s special education and related services
end at age twenty because Defendant allegedly misrepresented to the United States

12

Plaintiffs also complain in Opposition that they allege a “disparate impact”
claim under the ADA and RA. (Ps’ Opp’n at 25–26.) The Court disagrees. It has
reviewed the Complaint carefully and Plaintiffs plainly have not alleged a disparate
impact claim under either statute. A Court’s review under a Motion to Dismiss is
limited to the contents of the Complaint. Clegg v. Cult Awareness Network, 18
F.3d 752, 754 (9th Cir. 1994). Plaintiffs may not now add claims in its Opposition.
34

Department of Education that special education and related services are provided
through age twenty-one. (See Compl. ¶¶ 47–50.)
In response to this allegation, Defendant has proffered deposition
testimony which establishes that Defendant made clear to the United States
Department of Education that Hawaii limits the provision of FAPE to children in
public K-12 schools until age twenty. (See Doc. # 61-13, 62:19–63:17;
66:3–67:6.) Plaintiffs present no evidence to contradict this assertion, and, indeed,
seemingly concede that the United States Department of Education was aware of
this limitation. (Ps’ Opp’n at 28.) Plaintiffs nonetheless contend that judicial
estoppel should apply because Defendant was required to “provide reasonable
opportunities for the participation by . . . representatives of the class of individuals
affected . . . and other interested individuals in planning for the use of the IDEA
funds and to publish its plan for the funds with an opportunity for public
comment.” (Id.) The theory seems to be that Defendant effectively misrepresented
on a form submitted to the United States Department of Education that it provided
a FAPE to special education students until their twenty-second birthday. As a
result, according to Plaintiffs, affected members of the public were denied the
opportunity to comment on the change in law.

35

Judicial estoppel is “the principle that a litigant may not benefit by
making directly contradictory arguments regarding the same dispute in different
tribunals.” Poweragent v. Electronic Data Sys., 358 F.3d 1187 (9th Cir. 2004). It
precludes a party from gaining an advantage in one case by taking a particular
position, and then “taking a clearly inconsistent position in either the same
litigation or a different case concerning the same dispute.” Id. (citing Hamilton v.
State Farm Fire & Cas. Co., 270 F.3d 778, 782–83 (9th Cir. 2001).
Even assuming, as Plaintiffs suggest, that judicial estoppel is not
limited to cases where inconsistent positions are taken in judicial proceedings, the
Court nonetheless concludes that the DOE made no misrepresentation which would
justify estopping it from denying Plaintiffs a FAPE beyond the age of twenty. The
document in which Plaintiffs claim Defendant misrepresented the age at which
special education students “age out” is a state application for federal funding for
the Federal Fiscal Year of 2010. (Doc. # 64-8, at 1.) The Federal Government
provides each state with this form which the state must fill out to receive federal
funding. (See id. at 1–2.) Section II of the form contains five rows with
enumerated assurances that a state must give before it is entitled to federal funding.
(Id. at 3.) A state must either mark “yes” or “no” beside each assurance; there is no

36

space in this part of the form for explanation or qualification. One such assurance
listed in section II provides as follows:
A free appropriate public education is available to all children with
disabilities residing in the State between the ages of 3 and 21,
inclusive, including children with disabilities who have been
suspended or expelled, in accordance with 20 U.S.C. 1412(a)(1); 34
C.F.R. §§ 300.109–300.110.
(Id.) Defendant marked “yes” next to this assurance. (Id.) This is the
misrepresentation which Plaintiffs suggest should estop Defendant from denying
them a FAPE beyond the age of twenty. The Court disagrees.
As a preliminary matter, the form did not provide Defendant with the
opportunity to explain that it had lowered the age limit as permitted by the IDEA in
section II of the form. Defendant either had either to check “yes” or not receive
federal funding. That the form does not contemplate a state’s statutory right to
lower the age limit is not Defendant’s fault.13 In any event, the last clause of this
assurance states “in accordance with 20 U.S.C. 1412(a)(1).” (Id. (emphasis
added).) Included within this subsection is the age governing clause at issue in the
instant litigation. Specifically 20 U.S.C. § 1412(a)(1)(B)(ii) provides that “[t]he
obligation to make [FAPE] available to all children with disabilities does not apply

13

Moreover, as will be discussed, Defendant explained elsewhere in the
form that a FAPE was denied beyond the age of twenty.
37

with respect to children . . . 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 . . . .” Accordingly, Defendant did not make a misrepresentation, it
accurately represented that it provides FAPEs to special education children in
accordance with 20 U.S.C. § 1412(a)(1) which by default establishes an age range
of three to twenty-one but also provides that a state may constrict the age range to a
minimum of five to eighteen. Hawaii’s purported decision not to provide any
student (including special education students) a secondary education beyond the
age of twenty is therefore consistent with this assurance. Accordingly, by checking
“yes” next to this assurance, Defendant did not make a misrepresentation.
Further, in section IV of the form, Defendant explicitly states that
FAPEs are not provided beyond the age of twenty. Specifically, section IV
provides:
State requirements include eligibility criteria to implement the IDEA2004 eligibility categories. The following may be construed as
providing State-imposed mandates that are not required by IDEA2004:
•
General eligibility criteria for the occurrence of birthdays for
children at age three and age twenty to implement the
applicable age ranges in the State of Hawaii.
(Id. at 5.) Although not a model of clarity, Defendant here fully discloses that
general eligibility criteria are contingent upon a student being between the ages of
38

three and twenty. Without a misrepresentation on the form, and in light of this
disclosure, the Court finds the doctrine of judicial estoppel does not require
Defendant to provide Plaintiffs a FAPE beyond the age of twenty.
Accordingly, the Court GRANTS Defendant’s Motion with respect to
count four of the Complaint.
IV.

Preliminary Injunction
As discussed, Plaintiffs seek a Preliminary Injunction as to count one

of the Complaint only. (Ps’ Injunction Motion at 13 n.3.) Plaintiffs posit that the
same arguments and evidence proffered in support of their Motion for Summary
Judgment also demonstrate that they are likely to succeed the merits. (Id. at
13–16.) Specifically, Plaintiffs contend that they have demonstrated a likelihood
of success on the merits because over six hundred people aged twenty-one and
twenty-two are enrolled in adult education and because in “appropriate” cases
guidance counselors will encourage students to continue their studies in the adult
education programs. (Id.) The Court, however, has already considered these
arguments and rejected them. As outlined supra, Plaintiffs have failed to show that
Defendant transfers general education students who would otherwise “age out” per
Act 163 from secondary education to adult education programs with any sort of
regularity. Similarly, Plaintiffs have not demonstrated a likelihood of success in
39

showing that the education offered by adult education programs the functional
equivalent of the education provided in Hawaii’s secondary schools. Without
more, the Court cannot conclude that Plaintiffs have satisfied their heavy burden
with respect to their Motion for a Preliminary Injunction. Specifically, Plaintiffs
have not demonstrated a likelihood of success on the merits.
Accordingly, the Court DENIES WITHOUT PREJUDICE
Plaintiffs’ Injunction Motion. Plaintiffs are again invited to refile a request for a
preliminary injunction once their theories of liability are supported by evidence.
CONCLUSION
For these reasons the Court: DENIES WITHOUT PREJUDICE
Plaintiffs’ Motion for Summary Judgment (Doc. # 57); GRANTS IN PART AND
DENIES IN PART WITHOUT PREJUDICE Defendant’s Motion to Dismiss, or
in the alternative, for Summary Judgment (Doc. # 60); and DENIES WITHOUT
PREJUDICE Plaintiffs’ Motion for a Preliminary Injunction (Doc.

40

# 59). The parties are hereby directed to report to United States Magistrate Judge
Kevin S.C. Chang for an amended Rule 16 scheduling order.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, September 19, 2011.

_____________________________
David Alan Ezra
United States District Judge

R.P.-K, et al.. v. Department of Education, Civ. No. 10-00436 DAE-KSC;
ORDER: (1)DENYING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
WITHOUT PREJUDICE; (2) GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION TO DISMISS, OR IN THE ALTERNATIVE, FOR
SUMMARY JUDGMENT; AND (3) DENYING PLAINTIFFS’ RENEWED
MOTION FOR A PRELIMINARY INJUNCTION WITHOUT PREJUDICE

41