K. v. Department of Education, State of Hawaii

Filing 18

ORDER DENYING PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION WITHOUT PREJUDICE 4 . Signed by JUDGE DAVID ALAN EZRA on 8/16/2011. [Order follows hearing held 8/3/2011 on M/PI. Minutes of hearing: docket entry no. 13 ] (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
K.K., by and through his parents and )
co-guardians C.K. and W.K.,
)
)
Plaintiffs,
)
)
vs.
)
)
DEPARTMENT OF EDUCATION, )
STATE OF HAWAII,
)
)
Defendant.
)
_____________________________ )

Civ. No. 11-00444 DAE-RLP

ORDER DENYING PLAINTIFF’S MOTION FOR A PRELIMINARY
INJUNCTION WITHOUT PREJUDICE
On August 3, 2011, the Court heard Plaintiff K.K., by and through his
parents and co-guardians C.K. and W.K.’s (collectively, “Plaintiff”) Motion for a
Preliminary Injunction (“Motion”). Jason H. Kim, 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 motion as well as the supporting and opposing memoranda, the
Court DENIES WITHOUT PREJUDICE Plaintiff’s Motion for a Preliminary
Injunction. (Doc. # 4.)

BACKGROUND
I.

K.K.
Plaintiff K.K. is a twenty year-old student diagnosed with severe

developmental delay, cerebral palsy, limited vision, seizure disorder, and other
medical diagnoses. (Doc. # 1.) He is currently enrolled at Leilehua High School.
(“JK Decl.,” Doc. # 44-13, ¶ 3.) His most recent Individualized Education
Program (“IEP”) provides for ESY because, as determined by the IEP team, he will
regress behaviorally and otherwise if he is not provided an education for more than
ten consecutive days. (Id. ¶ 6.)
At an IEP meeting on February 25, 2011, K.K.’s parents requested
that he be allowed to continue his education until he turns twenty-two. (Id. ¶ 4.)
The request was rejected by the DOE “because under the law no student can stay in
school beyond age 20.” (Id.) K.K.’s education and related services were
scheduled to end on July 14, 2011. (Id.) On May 31, 2011, K.K. filed a request
for due process seeking an order that would continue his special education and
related services to age twenty-two. (Id. ¶ 5.)
Not withstanding his request for a due process hearing, “Defendant
has refused to allow K.K. to remain in his educational placement at Leilehua High
School in violation of 20 U.S.C. § 1415(j) and terminated all special education and
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related services it had been providing to him on July 14, 2011.” (Compl. ¶ 11.)
Plaintiff requests that this Court order Defendant “to immediately restore special
education and related services to Plaintiff” per 20 U.S.C. § 1415(j). (Id. at 4.)
II.

R.P.-K. Proceedings
Plaintiff is a member of a class in a parallel proceeding, R.P.-K., et al.

v. Department of Education, Civ. No. 10-00436 DAE/KSC. In R.P.-K., the class is
challenging the validity of Act 163 of the Session Laws of Hawaii for 2010 (“Act
163”). Act 163 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. § 302A1134(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. The plaintiffs in R.P.-K. argue that Act 163 impermissibly denies special needs
students above the age of twenty an education.1 Plaintiffs filed a motion for a
preliminary injunction in R.P.-K.,which this Court denied as premature on July 12,

1

The Court assumes the parties’ familiarity with the R.P.-K. litigation as all
parties in the instant case are also parties in R.P.-K..
3

2011 (“July Order”). (See “July Order,” Civ. No. 10-00436 DAE/KSC, Doc.
# 53.)
Six days later, on July 18, 2011, Plaintiff filed his Complaint in the
instant action.2 (Doc. # 1.) With the Complaint, Plaintiff also filed a Motion for
Temporary Restraining Order and Preliminary Injunction. (“Mot.,” Doc. # 4.) The
same day the Court converted the Motion for Temporary Restraining Order and
Preliminary Injunction into the instant Motion for a Preliminary Injunction. (See
Doc. # 5.) On July 25, 2011, Defendant filed its Opposition. (“Opp’n,” Doc.
# 11). On July 29, 2011, Plaintiff filed his Reply. (“Reply,” Doc. # 12.) On
August 5, 2011, the Court issued an Order directing the parties to file supplemental
briefing. (Doc. # 14.) Specifically, the Court directed the parties to address
“whether and to what extent the validity of Act 163 is at issue in the instant
proceedings.” (Id. at 8.) On August 8, 2011, Plaintiff filed his Supplemental Brief.
(“P’s Supp. Br.,” Doc # 17.) The same day Defendant filed its Supplemental Brief.
(“D’s Supp. Br.,” Doc. # 16.)

2

Plaintiff here was actually one of the class members that sought the
injunction in R.P.-K..
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STANDARD OF REVIEW
“[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
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
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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).
DISCUSSION
Plaintiff argues he is entitled to continued Individuals with Disability
Education Act (“IDEA”) benefits during the pendency of his due process appeal
pursuant to 20 U.S.C. § 1415(j), commonly known as the “stay put” provision of
the IDEA. “Stay put” provides:
Except as provided in subsection (k)(4), during the pendency of any
proceeding conducted pursuant to this section, unless the State or
local educational agency and the parents otherwise agree, the child
shall remain in the then-current educational placement of the child, or,
if applying for initial admission to a public school, shall, with the
consent of the parents, be placed in the public school program until all
such proceedings have been completed.
Id. Because Plaintiff is challenging his IEP team’s decision to terminate his
services pursuant to Act 163 in a due process hearing, Plaintiff argues he should be
entitled to continued placement at Leilehua High School during the pendency of
the appeal. The Court concludes that at this time Plaintiff has not demonstrated a
likelihood of success on the merits. See Winter, 129 S. Ct. at 365.
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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. v. Dep’t of Educ., 637 F. Supp. 2d 856, 863 n.9 (D.
Haw. 2009). “Stay put” is plainly a part of the IDEA. See 20 U.S.C. § 1415(j).
Accordingly, placement under a “stay put” order generally terminates with all other
automatic IDEA benefits on a student’s twenty-second birthday.
Although IDEA education benefits, including placement under “stay
put,” generally terminate at a child’s twenty-second birthday, a state may impose
different age restrictions provided those same limitations are applied 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 passing Act 163, Defendant has attempted to change the upper age
limit at which Defendant must provide educational services per the IDEA. Act
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163, as discussed, provides that “[n]o 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.” See Haw. Rev. Stat. § 302A-1134(c).
Plaintiff’s claim that he is entitled to IDEA services under “stay put”
therefore rises and falls with the validity of Act 163. If Act 163 is invalid, Plaintiff
is entitled to “stay put” up until his twenty-second birthday. If Act 163 is valid,
Plaintiff is no longer entitled to any benefits under the IDEA—including placement
at Leilehua High School per “stay put.” Accordingly, the dispositive question with
respect to the instant Motion is whether Plaintiff is likely to succeed in
demonstrating Act 163 is invalid.
In his Supplemental Briefing, Plaintiff argues that “the validity of Act
163 is not at issue in the instant proceedings because the sole relief Plaintiff[] [is]
seeking is a ‘stay put’ order pursuant to 20 U.S.C. § 1415(j) while the validity of
Act 163 is being litigated in Plaintiff[’s] concurrent due process proceeding before
the [DOE].” (P’s Supp. Br. at 2.) Plaintiff urges the Court to “look at the
likelihood of prevailing on the stay put claim itself—not the likelihood of
prevailing on the issues in dispute in the underling due process proceeding or
appeal form such proceeding.” (Id. at 2–3.) The Court agrees that at issue is

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Plaintiff’s likelihood of prevailing on the “stay put” claim itself, but is not
persuaded that Plaintiff has demonstrated a likelihood of success on the merits.
Plaintiff has not addressed the specific issue the Court outlined in its
Order directing the parties to submit supplemental briefing. As it did supra, the
Court outlined specifically how “stay put” is intertwined with the validity of Act
163. “Stay put” is a benefit under the IDEA, and a state may lower the maximum
age limit that a disabled student is entitled to IDEA benefits, including “stay put,”
provided it is done uniformly with respect to both special and general education
students. Thus, for Plaintiff to demonstrate he is entitled to “stay put,” he must
show that general education students continue to receive a secondary education
beyond the age of twenty while the state uses Act 163 as a pretense to deny special
education students that same opportunity. In other words, Plaintiff must show a
likelihood of success on the merits in demonstrating Act 163 is invalid. Absent
such a showing, Plaintiff is not entitled to “stay put.”
The Ninth Circuit’s decision in N.D. v. Haw. Dep’t of Educ., 600 F.3d
1104 (9th Cir. 2010), supports this conclusion. There, the district court declined to
issue an injunction enforcing “stay put” while the parties litigated the validity of

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Hawaii’s decision to implement “furlough Fridays” with respect to general and
special education students in Hawaii. The Ninth Circuit affirmed, holding as
follows:
When Congress enacted the IDEA, Congress did not intend for the
IDEA to apply to system wide administrative decisions. Hawaii’s
furloughs affect all public schools and all students, disabled and
non-disabled alike. An across the board reduction of school days such
as the one here does not conflict with Congress’s intent of protecting
disabled children from being singled out. In comparison to cases in
which a child is singled out in relation to her peers, the furlough days
do not remove the plaintiffs from the regular classroom setting
anymore than they do the other children. Disabled children are not
singled out for furlough days. To the extent possible under the new
school calendar, the disabled children are still “mainstreamed” with
regular children at school. To allow the stay-put provisions to apply
in this instance would be essentially to give the parents of disabled
children veto power over a state’s decisions regarding the
management of its schools. The IDEA did not intend to strip
administrative powers away from local school boards and give them
to parents of individual children, and we do not read it as doing so.
Id. at 1116–17. Accordingly, the district court did not err when it declined to issue
a preliminary injunction. Id. Similar to the “furlough Fridays” at issue in N.D.,
Act 163 is plainly a system-wide administrative decision which, if implemented
appropriately, does not remove Plaintiff from the regular classroom setting
anymore than general education students. Moreover, an across the board age
reduction as the one here does not conflict with Congress’s intent of protecting

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disabled children from being singled out as outlined in N.D.. Under these
circumstances, and as in N.D., Plaintiff is not entitled to “stay put.”
It may be, however, that Act 163 does impermissibly prevent special
education children from receiving a FAPE because the DOE allows general
education students to continue their studies through adult education programs
beyond the age of twenty. In that scenario, Plaintiff would be entitled to “stay put”
as well as all other IDEA benefits.3 As in R.P.-K., however, Plaintiff has not yet
presented evidence which suggests that this conduct has taken place. As the Court
explained in its July Order:
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. I, 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.

3

This is the precise question the Court is called upon to address in the R.P.K. litigation.
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(July Order at 8–9.) Similarly here, there is no evidence yet on the record to
suggest that the DOE has adopted a practice whereby general education students
over the age of twenty are allowed to continue their secondary education in adult
education programs with any sort of regularity. Without this evidence, the Court
simply cannot find that Plaintiff is likely to succeed in demonstrating Act 163 is
invalid. The Court cannot therefore yet conclude Plaintiff has demonstrated a
likelihood of success on the merits with respect to the instant Motion.
In its July Order, the Court also stated that
the parties represented to the Court that depositions will be conducted
by the end of the month which should reveal the number of general
education students enrolled in adult education between the ages of
twenty and twenty-two. Once concluded, Plaintiffs are invited to
refile the instant Motion if their theories of liability are supported by
evidence. Accordingly, the Court DENIES WITHOUT
PREJUDICE Plaintiffs’ Motion for a Preliminary Injunction.
Similarly here, once there is evidence on the record which demonstrates Plaintiff is
likely to succeed on the merits, Plaintiff is invited to refile the instant Motion.4
Accordingly, the Court DENIES WITHOUT PREJUDICE Plaintiff’s Motion for
a Preliminary Injunction.

4

The Court notes, however, that under these circumstances such a motion
may very well be moot. If the Court grants injunctive relief in R.P.-K. and
Plaintiff is a class member in that litigation, there would be no need to seek
identical relief in these proceedings.
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CONCLUSION
For these reasons, the Court the Court DENIES WITHOUT
PREJUDICE Plaintiff’s Motion for a Preliminary Injunction. (Doc. # 4.)
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, August 16, 2011.

_____________________________
David Alan Ezra
United States District Judge

K.K., et al.. v. Department of Education, Civ. No. 11-00444 DAE-RLP; ORDER
DENYING PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION
WITHOUT PREJUDICE

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