K.S. v. Rhode Island Board of Education et al

Filing 58

OPINION AND ORDER denying 52 Motion for Summary Judgment; granting 55 Motion for Summary Judgment- So Ordered by Chief Judge William E. Smith on 5/9/2017. (Barletta, Barbara)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
)
K.S. and K.L., through her parent )
L.L., on behalf of a class of
)
those similarly situated,
)
)
Plaintiffs,
)
)
v.
)
)
R.I. BOARD OF EDUCATION, by and
)
through its chair, Barbara S.
)
Cottam, in her official capacity, )
)
Defendant.
)
___________________________________)

C.A. No. 14-077 S

OPINION AND ORDER
WILLIAM E. SMITH, Chief Judge.
In this case the Court must decide whether the Rhode Island
Board of Education’s practice permitting local education agencies
to terminate special-education services to disabled children at
age 21 violates the Individuals with Disabilities Education Act
(“IDEA”),

20

U.S.C.

§

1400

et

seq.

Before

the

Court

are

Plaintiffs’ Motion for Summary Judgment and Defendant’s CrossMotion for Summary Judgment.

For the reasons set forth below, I

find that the Rhode Island statutory and regulatory scheme does
not violate the IDEA.
Judgment

is

DENIED

Judgment is GRANTED.

Therefore, Plaintiffs’ Motion for Summary
and

Defendant’s

Cross-Motion

for

Summary

I.

Background
Plaintiffs

are

a

certified

statewide

class

of

disabled

individuals who, “but for turning 21, would otherwise qualify or
would have qualified for a [free appropriate public education]
until age 22 because they have not or had not yet earned a regular
high school diploma.” 1

Plaintiffs claim that § 300.101 of Rhode

Island’s Regulations Governing the Education of Children with
Disabilities, permitting local education agencies (“LEAs”) 2 to
terminate disabled students’ special-education services at age 21,
violates their IDEA right to a free appropriate public education
(“FAPE”) between the ages of 21 and 22.

1

The full definition of the statewide class is as follows:

All individuals who were over 21 and under 22 within two
years before the filing of this action or will turn 21
during the pendency of this action who are provided or
were provided a FAPE under the IDEA by any [Local
Education Agency] in the State of Rhode Island and who,
but for turning 21, would otherwise qualify or would
have qualified for a [free appropriate public education]
until age 22 because they have not or had not yet earned
a regular high school diploma (“the Class”).
(3/17/16 Order 2, ECF No. 50.)
2

Rhode Island education regulations define a local education
agency as a “public board of education/school committee or other
public authority legally constituted within the State for either
administrative control or direction of one or more Rhode Island
public elementary schools or secondary schools.” R.I. Admin. Code
21-2-46:L-6-1.0.
2

Defendant Rhode Island Board of Education (“Board”) oversees
the state’s elementary, secondary, and higher education systems,
including special education. 3

The Board argues that § 300.101 is

consistent with the IDEA because the LEAs’ obligation to provide
a FAPE to disabled children ages 18 through 21 applies only if it
does not conflict with state law or practice concerning the
provision of public education to non-disabled children. 4
A. Statutory and Regulatory Framework
The IDEA and accompanying regulations require states that
receive federal funding for education to provide a FAPE to all
children

with

inclusive.” 5

disabilities

“between

the

ages

of

3

and

21,

A plain reading of this requirement suggests that

children with disabilities are entitled to receive FAPE services
up to the day they turn 22. 6

However, the obligation to provide

a FAPE to children with disabilities ages 18 through 21 applies
only if it does not conflict with state law or practice. 7

3
4
5

R.I. Gen. Laws §§ 16-24-1, 16-97-1, 16-97-4.
See 20 U.S.C. § 1412(a)(1)(B)(i).
20 U.S.C. § 1412(a)(1)(A); 34 C.F.R. § 300.102(a).

6

St. Johnsbury Academy v. D.H., 240 F.3d 163, 168-69 (2d Cir.
2001); but see Monahan v. School Dist. No. 1, 229 Neb. 139, 143
(1988) and Natrona Cty. Sch. Dist. No. 1 v. Ryan, 764 P.2d 1019,
1033-34 (Wyo. 1988) (interpreting the IDEA’s FAPE requirement to
end upon a student’s 21st birthday).
3

Rhode Island law mandates that all eligible children with
disabilities receive a FAPE. 8

However, pursuant to R.I. Gen. Laws

§ 16-24-1(f), the LEAs’ obligation to make a FAPE available to all
children with disabilities ends upon a student’s 21st birthday. 9

7

Section 1412 of the IDEA provides, in pertinent part, that:

The obligation to make a [FAPE] available to all children
with disabilities does not apply with respect to
children . . . (i) aged . . . 18 through 21 in a State
to the extent that its application to those children
would be inconsistent with State law or practice . . .
respecting the provision of public education to children
in [that age group].
20 U.S.C. § 1412(a)(1)(B).
8

R.I. Gen. Laws § 16-24-1(a) provides, in relevant part,

that:
In any city or town where there is a child with a
disability within the age range as designated by the
regulations of the [Board], . . . the school committee
of the city or town where the child resides shall provide
the type of special education that will best satisfy the
needs of the child with a disability . . . .
See also R.I. Admin. Code 21-2-54:B § 300.101.
9

The General Assembly added paragraph (f), effective June
28, 2016, providing that:
A child with a disability as referenced in subsection
(a) of this section shall have available to them any
benefits provided by this section up their twenty-first
birthday. Provided, in the event such a child with a
disability
is
enrolled
in
a
post-secondary
or
transitional educational program as part of the services
provided to the child by the school committee or local
education agency (LEA), and such child reaches twentyone (21) years of age during a school or program year,
then the school committee's or LEA’s obligation to pay
4

Section

300.101

of

Rhode

Island’s

Regulations

Governing

the

Education of Children with Disabilities provides, in relevant
part, that “[a] [FAPE] must be available to all eligible children
residing in the LEA, between the ages of 3 and 21, inclusive (until
the child’s twenty first birthday or until the child receives a
regular high school diploma).” 10
Rhode

Island

does

not

impose

a

similar

age

cap

on

the

provision of public education to non-disabled, general education
students.

While

R.I.

Gen.

Laws

§

16-19-1(a),

the

state’s

compulsory education statute, generally requires school attendance
up to age eighteen, LEAs have discretion to place “reasonable upper
age limitations [on] student admissions.” 11

for the post-secondary or transitional program shall
continue through to the conclusion of the school or
program’s academic year. Students who require more
extensive care will remain under the direction of the
department of rehabilitative services and will be
transitioned through the individual education plan prior
to reaching age twenty-one (21).
P.L. 2016, ch. 185, § 1; P.L. 2016, ch. 173, § 1.
10

R.I. Admin. Code 21-2-54:B § 300.101.

11

See e.g., John C.Q. Doe v. Middletown Sch. Comm., decision
of the Commissioner of Education 7 n.5, Jan. 7, 1998 (citing
Concerned Parents and Teachers v. Exeter-West Greenwich Reg’l Sch.
Dist., decision of the Commissioner of Education, Aug. 24, 1989).
5

In addition, Rhode Island’s Adult Education Act, R.I. Gen.
Laws § 16-63-1 et seq., provides that “all citizens, regardless of
age, have the right to education.” 12

Rhode Island’s state-wide

system of adult education is primarily delivered to adult students
through an informal network of community-based organizations. 13
Rhode Island’s adult education programs include basic education,
vocational training, higher education, continuing education in
professional

and

technological

occupations,

general

personal

development, public service education, and supportive services. 14
This law makes no distinction between disabled and non-disabled
citizens.
II.

Summary Judgment Standard
Pursuant

to

Rule

56(a)

of

the

Federal

Rules

of

Civil

Procedure, summary judgment shall be granted “if 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.” “Cross-motions
for summary judgment do not alter the basic Rule 56 standard, but
rather simply require [the court] to determine whether either of
the parties deserves judgment as a matter of law on facts that are

12
13
14

R.I. Gen. Laws § 16-63-2.
Dep. of David V. Abbot 36:9-15, ECF No. 55-5.
R.I. Gen. Laws § 16-63-5(1)-(7).
6

not disputed.” 15

“A dispute is genuine if the evidence about the

fact is such that a reasonable jury could resolve the point in the
favor of the non-moving party.” 16

“A fact is material if it has

the potential of determining the outcome of the litigation.” 17
III.

Discussion
A. Summary Judgment
The only significant factual dispute between the parties is

the degree of public supervision the Rhode Island Department of
Education (“RIDE”) exercises over the state’s adult education
programs.

Plaintiffs

contend

that

RIDE

imposes

performance

“standards” on adult education providers and monitors compliance
with those standards; the Board contends that RIDE merely monitors
adult

education

determine
funding.

the

providers’

performance

community-based

against

organizations’

“targets”

eligibility

to
for

The question before the Court, however, does not turn on

the degree of public supervision that RIDE has over the state’s

15

Adria Int’l Grp., Inc. v. Ferré Dev. Inc., 241 F.3d 103,
107 (1st Cir. 2001) (citing Wightman v. Springfield Terminal Ry.
Co., 100 F.3d 228, 230 (1st Cir. 1996)).
16

Prescott v. Higgins, 538 F.3d 32, 40 (1st Cir. 2008)
(quoting Thompson v. Coca-Cola Co., 522 F.3d 168, 175 (1st Cir.
2008)).
17

Id. (quoting Maymi v. Puerto Rico Ports Auth., 515 F.3d 20,
25 (1st Cir. 2008)).
7

adult education programs.

Therefore, this factual dispute is not

material to the resolution of the issue of statutory interpretation
that is before the Court and this case is appropriate for summary
judgment.
B. Statutory Interpretation Arguments
At the core of the parties’ dispute is how the IDEA’s statelaw

based

limitation

to

the

FAPE

requirement

§ 1412(a)(1)(B)(i)) should be interpreted.

(20

U.S.C.

Plaintiffs argue that,

because § 300.101 allows the LEAs to terminate disabled students’
FAPE services at 21 but state law does not impose a similar age
cap on the provision of public education to non-disabled general
education students, § 300.101 is more generous to the state’s nondisabled students and, accordingly, violates the IDEA.

Moreover,

Plaintiffs further contend that Rhode Island also provides “public
education” to non-disabled, general education students between
ages 21 and 22 through its adult education programs and, therefore,
must also provide FAPE services to disabled special-education
students up to 22.
The Board proposes a fundamentally different interpretation
of the statutory and regulatory scheme. It contends that, although
Rhode Island has no age cap on the provision of public education
to non-disabled, general education students, school attendance is
mandatory only until age 18; therefore, in practice, “public
8

education

for

Additionally,

non-disabled
the

Board

students
argues

ends

that

prior

the

to

only

age

21.”

reasonable

interpretation of “public education” under § 1412(a)(1)(B)(i) of
the IDEA is “an education provided by the LEAs, subject to and
meeting state standards, at a public school, at public expense.” 18
Adult education, the Board argues, is not synonymous with “public
education” under federal or state law, and thus the state does not
actually provide “public education” to students over age 21 because
adult education is not included within the definition of public
education.

The Board contends that terminating FAPE services to

disabled, special education students at age 21 is therefore not
inconsistent with state law or practice regarding the provision of
public education to non-disabled, general education students.
C.

Statutory Interpretation Framework

“[A] statute ordinarily will be construed according to its
plain meaning.” 19

Courts “examin[e] the plain meaning of the

statutory language and consider[ ] the language in the context of
the whole statutory scheme.” 20

18

Accordingly, in discerning the

Mem. in Supp. of Def.’s Cross-Mot. for Summ. J. 17, ECF No.

55-1.
19

In re Thinking Mach. Corp., 67 F.3d 1021, 1024–25 (1st
Cir. 1995).
20

Gen. Motors Corp. v. Darling’s, 444 F.3d 98, 108 (1st Cir.
2006) (citations omitted).
9

meaning

of

the

IDEA’s

(§ 1412(a)(1)(B)(i)),

exception

this

Court

to

the

first

FAPE

examines

requirement
the

“plain

meaning” of the statute’s text within the context of the IDEA
statutory scheme.
The clear and unambiguous language of the IDEA makes clear
that a state’s obligation to make a FAPE available to all children
with disabilities ages 18 through 21 does not apply if it conflicts
with the state’s provision of public education to non-disabled,
general education students of the same age. 21

The first question

then is what “public education” is provided to non-disabled,
general education students in the State of Rhode Island.
In Rhode Island, public education for non-disabled general
education students in a public school over the age of 18 is not a
legal right. 22

While there is no state law prohibiting adult

attendance

in

a

regular

discretion

to

impose

public

high

“reasonable

school,

upper

age

the

LEAs

limitations”

have
on

attendance and have withheld permission for a non-disabled adult
student to attend. 23

For example, in an administrative decision

RIDE upheld a LEA’s decision to deny a 19-year-old admission to a

21

20 U.S.C. § 1412(a)(1)(B)(i).

22

See R.I. Gen. Laws § 16-19-1(a) (providing that compulsory
school attendance ends at age 18); John C.Q. Doe at 7 n.5.
23

See John C.Q. Doe at 5, 7 n.5.
10

public high school because, among other reasons, he required a
“substantial number of credits” before he could receive a high
school diploma and he was older than all of the students in his
class. 24

In

contrast

to

their

non-disabled

peers,

disabled

students are entitled to receive a FAPE up to age 21 under both
state and federal law. 25
The

discretionary

admission

policies

for

non-disabled

students over the age of 18 and the administrative decisions issued
by RIDE permit the reasonable inference that the LEAs do not in
fact admit students over the age of 21 to public schools, and no
evidence

provided

Accordingly,

the

by
Court

the

Plaintiffs

concludes

that

is

to

Rhode

the

Island

contrary.
does

not

guarantee that it will provide public education for non-disabled
students

in

public

schools

between

the

ages

of

21

and

22.

Furthermore, § 300.101 imposes only a minimum obligation on LEAs.
It may also be inferred, therefore, that the LEAs have discretion
to continue FAPE services for disabled, special education students

24 Id.
25

at 7-8.

Rhode Island’s requirement to provide a FAPE does not apply
to all disabled children up to age 21, for example those who have
graduated with a regular high school diploma. R.I. Admin. Code 212-54:B § 300.102(1)(i).
Similarly, if a non-disabled, general
education student graduates with a regular high school diploma
before age 18, the state’s obligation to provide a free public
education would end.
11

over age 21 just as they have discretion to admit non-disabled,
general education students over 21.
Plaintiffs

argue

in

the

alternative

that

Rhode

Island

provides “public education” to non-disabled, general education
students between ages 21 and 22 through its adult education
programs

and,

therefore,

must

also

provide

FAPE

disabled, special education students up to age 22.

services

to

Plaintiffs

rely on an opinion from the Ninth Circuit interpreting public
education in Hawaii to include adult education. 26
At issue in E.R.K. was a Hawaiian statute that established an
upper age limit of 20 on the provision of public education to both
general

and

special

education

students. 27

Hawaii,

though,

continued to provide adult education to “any student 18 or older
who lack[ed] a high school diploma” in Community Schools for
Adults, a “network of adult-education schools” operated by the
Hawaii Department of Education. 28

These adult education programs,

however, “d[id] not offer IDEA services to disabled students” who,
as a result, were not able to “pursue diplomas in the Community
Schools for Adults after aging out of [the] public education

26

See E.R.K. v. State of Hawaii Dep’t of Educ., 728 F.3d 982
(9th Cir. 2013).
27

Id. at 984-85.

28

Id. at 985.
12

[system].” 29

The plaintiffs filed a class-action suit against the

Hawaii Department of Education alleging, in part, that the statute
violated their federal right to a FAPE. 30
The Ninth Circuit held that the Hawaiian statute violated the
IDEA because it created a “two-track system” where “nondisabled
students between the ages of 20 and 22 c[ould] pursue the diplomas
that eluded them in high school, but students with special needs
[were] simply out of luck.” 31 The court concluded that “[a] state’s
duty to educate disabled children until they turn 22 is only
excused if free public education is foreclosed to disabled and
nondisabled students alike.” 32

The court determined that the

IDEA’s

requirement

exception

subsequently

to

the

underwent

an

FAPE

extensive

was

analysis

ambiguous

of

legislative history to discern Congress’s intent. 33

the

and

relevant

It examined

the Senate Report that “accompan[ied] the 1975 statute that created
the [IDEA’s] exception [to the FAPE requirement],” which explained
that the exception did not apply “where a state does now in fact

29

Id.

30

Id.

31

Id. at 992.

32

Id. at 991.

33

Id. at 987-88.
13

provide or assure the provision of free public education to nonhandicapped children in [the same] age groups.” 34
The

court

ultimately

defined

“free

public

education”

as

education that “is provided at the public expense, under public
supervision and direction, and without charge; and . . . involves
preschool, elementary or secondary education.” 35
concluded

that

the

high

school

equivalency

The court then

diploma

programs

offered by Hawaii’s Community Schools for Adults qualified as “free
public education” because the programs were a form of “secondary
education 36”

provided

in

“nonprofit

day

schools”

at

“public

expense.” 37
While E.R.K. is instructive, I respectfully disagree with the
Ninth Circuit’s interpretation of the IDEA’s exception to the FAPE
requirement.

The wording of § 1412(a)(1)(B)(i), in the context of

the statute as a whole, leads me to conclude that, for purposes of
the IDEA, Congress did not intend the term “public education” to

34

Id. at 987.

35

Id. at 988.

36

The IDEA defines “secondary school” as a “nonprofit
institutional day or residential school, including a public
secondary charter school, that provides secondary education, as
determined under State law, except that it does not include any
education beyond grade 12.” 20 U.S.C. § 1401(27).
37

Id. at 988-89.
14

include all adult education programming, regardless of its form
and delivery.

For example, in § 1401 of the IDEA, Congress uses

the specific term “adult education” in its definition of transition
services to disabled children. 38

Congress’s use of the term “adult

education” there demonstrates its intent to distinguish adult
education from public education. 39
the

statute

assigns

a

meaning

Plaintiffs’ interpretation of
to

public

education

that

is

unsupported by the text of the IDEA itself.
In addition, throughout the U.S. Code, “adult education” is
distinguished from other types of education. For example, the
statutes regulating the provision of adult education are located
in subchapter two of the Workforce Innovation and Opportunity Act,
29 U.S.C. § 3111, and not in title 20 of the U.S. Code, which
governs elementary, secondary, and special education.

Pursuant to

§ 3272 of the Workforce Innovation and Opportunity Act, “adult
education” means:
[A]cademic instruction and education services below the
postsecondary level that increase an individual’s
ability to (A) read, write, and speak in English and
perform mathematics or other activities necessary for
38
39

20 U.S.C. § 1401(34)(A).

See United States v. Roberson, 459 F.3d 39, 54 (1st Cir.
2006) (quoting Citizens Awareness Network, Inc. v. United States,
391 F.3d 338, 348 (1st Cir. 2004) (“The principle is clear that
Congress’s use of differential language in various sections of the
same statute is presumed to be intentional and deserves
interpretative weight.”)).
15

the attainment of a secondary school diploma or its
recognized equivalent; (B) transition to postsecondary
education and training; and (C) obtain employment. 40
The Ninth Circuit concluded that Hawaii’s adult education programs
were “quintessentially secondary education” because their purpose
was to help students earn a high school diploma. 41

The Workforce

Innovation and Opportunity Act’s definition of adult education,
though, acknowledges that adult education includes education below
the postsecondary level, specifically stating that it includes
instruction “necessary for the attainment of a secondary school
diploma.”
materia,

While these two statutes may not be considered in pari
Congress’s

definition

of

“adult

education”

in

the

Workforce Innovation and Opportunity Act is further evidence that
adult education is a term that connotes a specific meaning and not
one that is generally associated with public education. 42
Furthermore, the IDEA provides that state law determines what
constitutes elementary or secondary education. See e.g., 20 U.S.C.

40

29 U.S.C. § 3272.

41

E.R.K., 728 F.3d at 988.

42

See 2B Sutherland Statutory Construction § 51:3 (7th ed.
2016) (“Statutes are in pari materia—pertain to the same subject
matter—when they relate to the same person or thing, to the same
class of persons or things, or have the same purpose or object.”).
16

§ 1401(6) 43, (27) 44.
define

Although Rhode Island law does not expressly

“elementary”

or

“secondary”

public

education,

its

regulations pertaining to adult education are found in a separate
chapter

than

statutes. 45

the

elementary

and

secondary

public

education

In construing statutes, there is a presumption that

“[w]here . . . one term [is used] in one place, and a materially
different term in another, . . . the different term denotes a
different idea.” 46

It is clear that the Rhode Island legislature

did not intend adult education to be coterminous with elementary
or secondary public education.

I agree with Plaintiffs that there

is a right to adult education under R.I. Gen. Laws § 16-63-2 and
that this right must be made available to disabled and non-disabled
students alike; but, this right is distinct from the public
education

referred

to

in

the

IDEA’s

exception

to

the

FAPE

requirement.

43

The IDEA defines “elementary school” as a nonprofit
institutional day or residential school, including a public
elementary charter school, that provides elementary education, as
determined under State law.” 20 U.S.C. § 1401(6).
44

See n.36, supra.

45

Compare R.I. Gen. Laws § 16-63-5 (describing the programs
and services constituting adult education) with R.I. Gen. Laws
§ 16-1-5 (providing that it is the duty of the commissioner of
elementary and secondary education to develop instructional
standards for elementary and secondary schools).
46

Antonin Scalia & Bryan A. Garner, Reading Law 170 (2012).
17

Moreover, if the plain meaning of the statute’s language were
not enough, E.R.K. is factually distinguishable as well.

The

Hawaii Department of Education operated a network of non-profit
Community Day Schools for Adults that excluded disabled students
who had aged out of the public school system because they did not
provide IDEA services. 47

Adult education in Rhode Island, in

contrast, is primarily provided by thirty-four community-based
organizations that are typically not directly affiliated “with the
state or a local school district” and include “stand-alone adult
education

providers,”

“homeless

shelters,”

and

“community

offshoots that are run by municipalities [and] school libraries.” 48
In addition, there is no evidence that disabled individuals are
excluded from these programs—rather, the claim is that because
they do not offer special education services such as Individualized
Education Plans (IEPs) and the like, that LEAs must step up and
provide a FAPE through age 22.

This argument simply stretches the

Rhode Island adult education scheme beyond recognition and must be
rejected.
The long and short of it is that Rhode Island’s public
education scheme requires only that public education is mandatory

47

E.R.K., 728 F.3d at 985.

48

Dep. of David V. Abbot 36:9-23, ECF No. 55-5.
18

until age 18 for non-disabled students and thereafter is wholly
discretionary with the LEAs. And while adult education is provided
by community-based organizations, it is not public education as
that term is used in Rhode Island statutes.

Therefore, Rhode

Island’s practice of providing a FAPE only through the 21st
birthday is not inconsistent with Rhode Island law or practice
concerning public education of non-disabled students; conversely,
requiring it to do so would be.
IV.

Conclusion
For these reasons alone, I find that § 300.101 does not

violate the IDEA and that Defendant is entitled to judgment as a
matter of law.

Plaintiffs’ Motion for Summary Judgment is DENIED

(ECF No. 52) and Defendant’s Cross-Motion for Summary Judgment is
GRANTED (ECF No. 55).

Judgment shall enter in favor of Defendant.

IT IS SO ORDERED.

_
William E. Smith
Chief Judge
Date: May 9, 2017

19