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Tuesday, September 30, 2014
1,400 Older Special Ed Students May Benefit from Class Action Lawsuit Victory
By News Release @ 5:35 AM :: 5031 Views :: Education K-12


E.R.K. v. Department of Education Civ. No. 10-00436 SOM/KSC

Court:  United States District Court for the District of Hawaii

Judge:  Hon. Susan Oki Mollway

What is this lawsuit about?

This lawsuit challenged Act 163, a Hawai`i law passed in 2010.  Act 163 barred students from attending public school if they were at least twenty years old on the first day of school.  The plaintiffs, special education students who were adversely affected by the law and the Hawai`i Disability Rights Center, filed suit on July 27, 2010, a few weeks after the law became effective.

Act 163 unfairly harmed special education students aged 20 and 21.  Hawai`i provides free educational services to non-disabled individuals regardless of their age.  Even if non-disabled students “age out” of high school they are eligible to attend the Community Schools for Adults to continue their secondary education until they receive a high school diploma.  However, these adult schools have noprograms or services for special education students, only general education students.  The effect of this is that non-disabled students can receive educational services until they are 22 (and older), but special education students could not.

In August 2013, the Ninth Circuit ruled that this double standard violated the Individuals with Disabilities Education Act (IDEA), which requires that states provide a “free appropriate public education” to all children with disabilities residing in the state who are under age 22.

What’s happening now?

The law no longer prevents older special education students from receiving services.  After the Ninth Circuit ruled that Hawaii’s law violated the IDEA, the legislature amended the language of the law so that it does not apply to special education students.  Now, special education students may receive special education and related services until they get their high school diploma or reach the age of 22.

Restoring services to older special education students is particularly important.  Under the IDEA, the education plans that are created each year for older special education students include individualized goals for their lives after high school (such as further education, training, employment, and independent living skills), and set up a plan to provide the transition services and activities needed for the students to pursue and reach these goals, be it college, work, or their own individual path.

Some former students can get free services.  The law did not change until 2014, and the DOE did not begin to send 20- and 21-year-olds a notification of their right to continued IDEA services until 2014.  During that time, many disabled individuals left school early without receiving all of the services they were entitled to.  Others who were affected include disabled individuals who dropped out or left school before 2010, but were not properly notified of their right to return because of Act 163.  These persons are now between 22 and 26 years old.  On August 22, 2014, the court ruled that these individuals are entitled to free services from the DOE called “compensatory education.”

The services will be provided in a setting suitable for the former students’ age and needs, such as a community college, a work program, or some other place.  We will oppose any effort by the DOE to offer classes in a high school setting.  Individuals will have a say in what services the DOE must provide to them.

Can I get free services?

On September 29, 2014, class counsel mailed out letters to individuals we are aware of who were affected by Act 163.  If you received a yellow letter, and you are interested in receiving services, or would like more information, please contact us using one of the methods below.

In addition, there may be other people whose names and addresses we do not have who are entitled to free services because they were affected by Act 163.  If you think you may know someone who received special education and related services, left school without receiving a high school diploma, and is between 22 and 26 years old, please encourage him or her, or a family member or guardian, to contact us or our co-counsel, the Hawaii Disability Rights Center.

Class members and those assisting them will pay nothing out of pocket for our legal services.

  • Email:
  • Phone: (808) 949-2922, (808) 441-6268 (800) 882-1057 (Voice/TTY)
  • Mail: Hawaii Disability Rights Center, 1132 Bishop St., Suite 2102 Honolulu, Hawaii  96813

Documents related to this case



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