D. et al v. Department of Education, State of Hawai'i

Filing 38

ORDER AFFIRMING THE HEARINGS OFFICER'S OCTOBER 26, 2010 ORDER GRANTING RESPONDENT'S MOTION TO DISMISS OR IN THE ALTERNATIVE FOR SUMMARY JUDGMENT. Signed by JUDGE LESLIE E. KOBAYASHI on 4/30/2012. (afc)CERTIFICATE O F 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.T.D., by and through his
parents, R.D. and M.D.,

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

CIVIL NO. 10-00641 LEK-RLP

ORDER AFFIRMING THE HEARINGS OFFICER’S
OCTOBER 26, 2010 ORDER GRANTING RESPONDENT’S MOTION
TO DISMISS OR IN THE ALTERNATIVE FOR SUMMARY JUDGMENT
Before the Court is an appeal by Plaintiff R.T.D., by
and through his parents, R.D. and M.D. (“R.T.D.”), of the
Administrative Hearings Officer’s (“Hearings Officer”) Order
Granting Respondent’s Motion to Dismiss or in the Alternative for
Summary Judgment (“Decision”), filed on October 26, 2010.
Plaintiff filed his Opening Brief on October 24, 2011.

Defendant

the Department of Education, State of Hawai`i (“Defendant” or
“the DOE”) filed its Answering Brief on November 14, 2011, and
Plaintiff filed his Reply Brief on November 28, 2001.
heard oral argument in this matter on January 3, 2012.

The Court
Appearing

on behalf of Plaintiff was Jennifer Patricio, Esq., and appearing
on behalf of Defendant was Kris Murakami, Esq.

Pursuant to this

Court’s order, the parties submitted supplemental briefing after
United States District Judge David Alan Ezra issued his decision

in R.P.-K., et al. v. Department of Education, Civ. No. 10-00436
DAE-KSC (“the Class Action”).

Plaintiff filed his supplemental

brief on April 6, 2012, and Defendant filed its supplemental
brief on April 13, 2012.

After careful consideration of the

parties’ submissions, the arguments of counsel, and the relevant
legal authority, the Decision is HEREBY AFFIRMED because this
Court agrees with Judge Ezra’s decision in the Class Action.
BACKGROUND
I.

Factual and Administrative Background
On November 5, 2010, R.T.D. filed his Complaint for

Declaratory and Injunctive Relief (“Complaint”) appealing from
the Hearing Officer’s Decision.

R.T.D. is a student eligible for

services under the Individuals with Disabilities Education Act of
2004 (“IDEA”), 20 U.S.C. § 1400 et seq., because he has been
diagnosed with Down Syndrome, Mental Retardation, Autism Spectrum
Disorder, Mental Illness, Hearing Impairment, Vision Impairment,
and Speech and Language Disorder.

[Complaint at ¶¶ 1, 7.]

The Complaint alleges, in pertinent part:
10. R.T.D. has been a student at Kalaheo
High School since 2005.
11. R.T.D. turned 20 years of age on
June 24, 2010.
12. On or about June 28, 2010 Defendant
issued a Prior Written Notice advising that R.D.
and M.D.’s request for continued special education
and related services beyond the 2009-2010 school
year was denied based on Act 163 of the 2010
Hawaii Session Laws [(“Act 163”)] which prohibits
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any student aged 20 or over on the first
instructional day of the school year from
attending public school.
13. Plaintiffs filed a due process complaint
on or about June 30, 2010 raising the following
issues:
a.

Whether Defendant’s refusal to
continue to provide R.T.D. with
special education and related
services until his 22nd birthday is
a denial of a [free appropriate
public education (“FAPE”)] in
violation of IDEA;

b.

Whether Defendant’s refusal to
continue to provide R.T.D. with
special education and related
services until his 22nd birthday
while allowing non-disabled
students over 20 to pursue a CB or
GED high school equivalency diploma
is a denial of FAPE in violation of
IDEA; and,

c.

Whether Defendant should be
estopped from claiming that it can
refuse to provide R.T.D. special
education and related services when
in its application for IDEA funding
it represented that it provided a
FAPE to all students with
disabilities until they become 22
years of age.

14. Act 163 of the 2010 Session Laws of
Hawaii was signed into law on June 3, 2010 and
became effective July 1, 2010.
15. Defendant offers non-disabled students
beyond the age of 20 an opportunity to continue
their education by attending adult education
classes in pursuit of CB (competency-based) or a
GED (General Education Development) high school
equivalency diplomas.

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16. In its application for IDEA funding,
Defendant represented that a free and appropriate
public education is available to all children with
disabilities residing in the State until age 22.
17. Defendant has acknowledged that R.T.D.
continues to need special education and related
services in order to receive a meaningful
educational opportunity.
18. Defendant’s administrative rules
terminate eligibility for special education and
related services when a student reaches 20 years
of age before the first instructional day of the
school year.
19. R.T.D. would benefit from further
education with appropriate special education and
related services. Defendant’s denial of FAPE is
based solely on the fact that he is 20 years of
age.
[Complaint at pgs. 3-5.]
The Complaint alleges the following claims: the
Hearings Officer erred in determining that he lacked jurisdiction
over the issues in the due process complaint; the Hearings
Officer erred in applying the age-eligibility rule in Act 163
instead of the IDEA requirement that the provision of FAPE
extends to age twenty-two; refusal to provide R.T.D. special
education and related services until his twenty-second birthday
while allowing non-disabled students to pursue CB or GED diplomas
violates Title II of the Americans with Disabilities Act (“ADA”);
Defendant’s actions violate Section 504 of the Rehabilitation Act
of 1973 (“Rehab Act”); and Defendant should be estopped from
terminating the offer of FAPE at age twenty because it

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represented to the federal government in its applications for
IDEA funding that it provided FAPE to students ages three to
twenty-one, inclusive.
II.

Plaintiff’s Opening Brief
In his Opening Brief, Plaintiff contends that the

Hearings Officer’s Decision is not entitled to deference because
it was cursory and erroneous.

In particular, the Hearings

Officer: found that students with disabilities could enroll in
the DOE’s continuing education program, but he ignored the fact
that students with disabilities would not be able to benefit from
the program without the necessary services; and failed to
consider whether offering high school equivalency courses to nondisabled students ages twenty and twenty-one is consistent with
denying a FAPE to disabled students of the same age.
Plaintiff argues:
Defendant’s eligibility for federal funds
under IDEA is conditioned on its having policies
and procedures in effect ensuring that a . . .
[FAPE] is available to students “between the ages
of 3 and 21, inclusive.” 20 U.S.C.
§ 1412(a)(1)(A). States are exempted from the
obligation to make FAPE available to children 18
through 21, however, if:
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). According to the
legislative history, the exception from IDEA’s age
eligibility rule:
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shall not apply . . . (1) where a State does
in fact provide or assure the provision of
free public education to non-handicapped
children in these age groups.
S. Rep. No. 94-168 at 19, reprinted at 2 U.S.
Code, Cong., Adm. News (1975) at 1443 (italics in
original).
Providing FAPE to disabled students in
Hawai`i aged 18 to 22 is not inconsistent with
Hawai`i law regarding the provision of public
education generally. Students between 20 and 22
may enroll in one of two high school equivalency
programs that Defendant offers without limitation.
See Haw. Rev. Stat. § 302A-433(3) (2007). Those
programs constitute “public education” as the term
is used in 20 U.S.C. § 1412(a)(1)(A). . . .
[Opening Brief at 12-13 (footnotes omitted).]

Plaintiff

therefore argues that providing services to students with
disabilities would not be inconsistent with state law and would
be consistent with the long standing State practice of providing
the adult education programs to students over twenty.

Plaintiff

also argues that this district court’s ruling in B.T. ex rel.
Mary T. v. Department of Education, State of Hawaii, 637 F. Supp.
2d 856 (D. Hawai`i 2009), enjoining the State of Hawai`i from
denying special education services based solely on a student’s
attaining the age of twenty, is evidence that the State’s
practices under Act 163 violate the IDEA and discriminate against
disabled students.

The State legislature enacted Act 163 in

response to B.T., but Plaintiff argues that Act 163 itself
violates the IDEA and discriminates against disabled students.
Plaintiff argues that there is some uncertainty about B.T.
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because Defendant has interpreted the case as requiring students
with disabilities over age twenty to prove that they would
benefit from further education, but Plaintiff argues that this
interpretation is not warranted.

Plaintiff asks this Court to

clarify the issue.
Finally, Plaintiff argues that he has proven his prima
facie case under the ADA and the Rehab Act.
III. Defendant’s Answering Brief
In its Answering Brief, Defendant emphasizes that not
all of the issues which Plaintiff raises in the Opening Brief
were raised in the administrative due process proceeding.
Defendant contends that the only issues before this Court are:
did the Hearings Officer err in ruling that he did not have
jurisdiction over the case; does the IDEA require that Defendant
provide Plaintiff with services through age twenty-two in spite
of Act 163; and is the DOE estopped from claiming that the upper
age limit to qualify for services under the IDEA is twenty?
Defendant contends that the Hearings Officer properly
ruled that he did not have jurisdiction because the due process
complaint did not meet the requirements of Haw. Admin. R. § 8-6061(a)(1), which is consistent with 34 C.F.R. § 300.507.

Even

assuming, arguendo, that the Hearings Officer had jurisdiction
over the due process complaint, Defendant contends that the
Hearings Officer was still required to dismiss the due process

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complaint because 20 U.S.C. § 1412(a)(1)(B) does not obligate the
DOE to provide a FAPE to students between the ages of twenty to
twenty-one inclusive, and Act 163 addressed the flaw identified
in the B.T. decision.
Defendant also argues that the DOE allows all adults
over the age of eighteen to participate in the CB program or the
GED program.

Defendant notes that the IDEA is not an anti-

discrimination statute; it is an entitlement program with
specific eligibility requirements, including age.

In contrast,

the Rehab Act is an anti-discrimination statute, but it does not
require educational institutions to disregard students’
disabilities, to modify their programs to allow disabled students
to participate, or to lower or modify their standards to
accommodate disabled students.

Further, Defendant argues that

R.T.D. has no standing to challenge the adult education programs
because there is no evidence that he applied for and was denied
admission or access to any adult education program because of his
disability.
As to the judicial estoppel claim, Defendant contends
that this argument is precluded under the summary judgment order
in the Class Action.

See R.P.-K. v. Dep’t of Educ., Haw., 817 F.

Supp. 2d 1182, 1199-201 (D. Hawai`i 2011).
As to Plaintiff’s argument regarding the B.T. decision,
Defendant emphasizes that Plaintiff did not raise this in the due

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process complaint.

Further, the issues that were raised in B.T.

are distinct from those in the instant case, and Plaintiff cannot
overcome the fact that Plaintiff does not have standing because
there is no actual case in controversy and no actual injury.
Finally, Defendant argues that Plaintiff has not
established a prima facie case for his ADA claim or his Rehab Act
claim for the reasons stated in the Class Action summary judgment
order.
IV.

See R.P.-K., 817 F. Supp. 2d at 1196-99.

Plaintiff’s Reply Brief
In his Reply Brief, Plaintiff largely reiterates the

arguments that he raised in the Opening Brief.

Plaintiff

emphasizes that the adult education program, while theoretically
open to everyone, would have little or no value to disabled
students without the necessary services.

Thus, the program is

discriminatory.
STANDARDS
I.

IDEA Overview
“The IDEA is a comprehensive educational
scheme, conferring on disabled students a
substantive right to public education.” Hoeft v.
Tucson Unified Sch. Dist., 967 F.2d 1298, 1300
(9th Cir. 1992) (citing Honig v. Doe, 484 U.S.
305, 310, 108 S. Ct. 592, 98 L. Ed. 2d 686
(1988)). The IDEA ensures that “all children with
disabilities have available to them a free
appropriate public education that emphasizes
special education and related services designed to
meet their unique needs and prepare them for
further education, employment, and independent
living.” 20 U.S.C. § 1400(d)(1)(A). According to
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the IDEA, a FAPE is
special education and services that—(A) have
been provided at public expense, under public
supervision and direction, and without
charge; (B) meet the school standards of the
State educational agency; (C) include an
appropriate preschool, elementary school or
secondary school education in the State
involved; and (D) are provided in conformity
with the individualized education program
required under section 1414(d) of this title.
20 U.S.C. § 1401(9). To provide a FAPE in
compliance with the IDEA, a state educational
agency receiving federal funds must evaluate a
student, determine whether that student is
eligible for special education and services,
conduct and implement an [individualized
educational program (“IEP”)], and determine an
appropriate educational placement of the student.
20 U.S.C. § 1414.
Student’s FAPE must be “tailored to the
unique needs of the handicapped child by means of
an ‘individualized educational program’ (IEP).”
Hendrick Hudson Cent. Sch. Dist. Bd. of Educ. v.
Rowley, 458 U.S. 176, 181, 102 S. Ct. 3034, 73 L.
Ed. 2d 690 (1982) (“Rowley”) (citing 20 U.S.C. §
1401(18)). The IEP, which is prepared at a
meeting between a qualified representative of the
local educational agency, the child’s teacher, the
child’s parents or guardian, and, where
appropriate, the child, consists of a written
document containing
(A) a statement of the present levels of
educational performance of such child, (B) a
statement of annual goals, including
short-term instructional objectives, (C) a
statement of the specific educational
services to be provided to such child, and
the extent to which such child will be able
to participate in regular educational
programs, (D) the projected date for
initiation and anticipated duration of such
services, and (E) appropriated objective
basis, whether instructional objectives are
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being achieved.
20 U.S.C. § 1401(19). Local or regional
educational agencies must review, and where
appropriate revise, each child’s IEP at least
annually. 20 U.S.C. §§ 1414(a)(5),
1413(a)(11). . . .
J.W. ex rel. J.E.W. v. Fresno Unified Sch. Dist., 626 F.3d 431,
432 (9th Cir. 2010).
II.

Standard of Review
The standard for district court review of an

administrative decision under the IDEA is set forth in 20 U.S.C.
§ 1415(i)(2)(C), which provides:
In any action brought under this paragraph, the
court –
(i) shall receive the records of the
administrative proceedings;
(ii) shall hear additional evidence at the
request of a party; and
(iii) basing its decision on the
preponderance of the evidence, shall grant
such relief as the court determines is
appropriate.
This standard requires that the district court give “‘due
weight’” to the administrative proceedings.

L.M. v. Capistrano

Unified Sch. Dist., 556 F.3d 900, 908 (9th Cir. 2009) (citations
omitted).

The district court, however, has the discretion to

determine the amount of deference it will accord the
administrative ruling.

J.W., 626 F.3d at 438 (citing Gregory K.

v. Longview Sch. Dist., 811 F.2d 1307, 1311 (9th Cir. 1987)).

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In

reaching that determination, the court should consider the
thoroughness of the hearings officer’s findings, increasing the
degree of deference where said findings are “‘thorough and
careful.’”

L.M., 556 F.3d at 908 (quoting Capistrano Unified

Sch. Dist. v. Wartenberg, 59 F.3d 884, 892 (9th Cir. 1995)).

The

district court should give “substantial weight” to the hearings
officer’s decision when the decision “evinces his careful,
impartial consideration of all the evidence and demonstrates his
sensitivity to the complexity of the issues presented.”

Cnty. of

San Diego v. Cal. Special Educ. Hearing Office, 93 F.3d 1458,
1466-67 (9th Cir. 1996) (citation and quotation marks omitted)).
Such deference is appropriate because “if the district court
tried the case anew, the work of the hearing officer would not
receive ‘due weight,’ and would be largely wasted.”
59 F.3d at 891.

Wartenberg,

“[T]he ultimate determination of whether an IEP

was appropriate,” however, “is reviewed de novo.”

A.M. ex rel.

Marshall v. Monrovia Unified Sch. Dist., 627 F.3d 773, 778 (9th
Cir. 2010) (citing Wartenberg, 59 F.3d at 891).
A court’s inquiry in reviewing IDEA administrative
decisions is twofold:
“First, has the State complied with the procedures
set forth in the Act? And second, is the
individualized educational program developed
through the Act’s procedures reasonably calculated
to enable the child to receive educational
benefits?” [Rowley, 458 U.S. at 206-07]
(footnotes omitted). “If these requirements are
met, the State has complied with the obligations
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imposed by Congress and the courts can require no
more.” Id. at 207.
J.L. v. Mercer Island Sch. Dist., 592 F.3d 938, 947 (9th Cir.
2010) (some citations omitted).
The burden of proof in an IDEA appeal proceeding is on
the party challenging the administrative ruling.

Hood v.

Encinitas Union Sch. Dist., 486 F.3d 1099, 1103 (9th Cir. 2007)
(citations omitted).

The challenging party must show, by a

preponderance of the evidence, that the hearing decision should
be reversed.

J.W., 626 F.3d at 438 (citations omitted).
DISCUSSION

In the Class Action, Judge Ezra granted summary
judgment in favor of the DOE on the plaintiffs’ judicial estoppel
claim, because the DOE “fully discloses that general eligibility
criteria are contingent upon a student being between the ages of
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.”

R.P.-K., 817 F.

Supp. 2d at 1201.
Judge Ezra presided over a bench trial in the Class
Action.

In his Findings of Fact, Conclusions of Law, and

Decision (“Class Action Decision”), Judge Ezra ruled in favor of
the DOE on the plaintiffs’ IDEA claim.

Judge Ezra found:

Plaintiffs have not demonstrated that the DOE has
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a state law or practice whereby non-disabled
students between the ages of twenty and twenty-two
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. In short, Plaintiffs have
not established a violation of the IDEA.
R.P.-K. ex rel. C.K. v. Dep’t of Educ., Haw., Civ. No. 10-00436
DAE-KSC, 2012 WL 1082250, at *8 (D. Hawai`i Mar. 30, 2012)
(footnote omitted).
Judge Ezra also ruled in favor of the DOE on the
plaintiffs’ ADA and Rehab Act claims, finding that the plaintiffs
did “not establish[] that the DOE failed to provide reasonable
accommodations necessary to avoid discrimination on the basis of
a disability in violation of Title II of the ADA and § 504 of the
Rehab Act.”

Id. at *9.

This Court directed R.T.D. and Defendant to file
supplemental briefs addressing the relevance of the Class Action
Decision to the instant case.

[Dkt. no. 34.]

Although stating

his disagreement with the Class Action Decision, R.T.D.
recognizes that, if this Court were to follow the Class Action
Decision, “the DOE would likely prevail in this appeal because
identical issues are raised in both cases.”
at 2.]

[Pltf.’s Suppl. Br.

Similarly, Defendant recognizes that the issues raised in

the Class Action were identical to the issues raised in R.T.D.’s
appeal.

Defendant urges the Court to follow the Class Action
14

Decision and affirm the Hearings Officer’s Decision.

[Defs.’

Suppl. Br. at 2-3.]
This Court agrees with the parties that the issues
raised in R.T.D.’s appeal are identical to the issues that Judge
Ezra ruled upon in the Class Action.

Further, this Court agrees

with Judge Ezra’s summary judgment order and the Class Action
Decision.

This Court therefore finds in favor of Defendant on

all claims in R.T.D.’s Complaint.
CONCLUSION
On the basis of the foregoing, the Hearings Officer’s
October 26, 2010 Order Granting Respondent’s Motion to Dismiss or
in the Alternative for Summary Judgment is HEREBY AFFIRMED.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, April 30, 2012.

/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

R.T.D., EX REL R.D. V. DEPARTMENT OF EDUCATION; CIVIL NO. 1000641 LEK-RLP; ORDER AFFIRMING THE HEARINGS OFFICER’S OCTOBER 26,
2010 ORDER GRANTING RESPONDENT’S MOTION TO DISMISS OR IN THE
ALTERNATIVE FOR SUMMARY JUDGMENT

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