FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

E.R.K., by his legal guardian R.K.;

R.T.D., through his parents R.D. and

M.D.; HAWAI’I DISABILITY RIGHTS

CENTER, in a representative capacity

on behalf of its clients and all others

similarly situated,

Plaintiffs-Appellants,

v.

STATE OF HAWAII DEPARTMENT OF

EDUCATION,

Defendant-Appellee.

No. 12-16063

D.C. No.

1:10-CV-00436-

DAE-KSC

OPINION

Appeal from the United States District Court

for the District of Hawaii

David A. Ezra, District Judge, Presiding

Argued and Submitted

June 12, 2013—Honolulu, Hawaii

Filed August 28, 2013

Before: Jerome Farris, Dorothy W. Nelson,

and Jacqueline H. Nguyen, Circuit Judges.

Opinion by Judge D.W. Nelson
2 E.R.K. V. STATE OF HAWAII DEP’T OF EDUC.

SUMMARY*

Individuals with Disabilities Education Act

Affirming in part and reversing in part the district court’s

judgment after a bench trial in a class action, the panel held

that a Hawaii statute violated federal law by establishing an

age limit on public education.

The Hawaii statute, dubbed “Act 163,” barred both

general-education students and students who received specialeducation services under the Individuals with Disabilities

Education Act from attending public school after the last day

of the school year in which they turned 20. The plaintiffs

alleged that the state violated the IDEA, the Americans with

Disabilities Act, and the Rehabilitation Act by denying public

education to special-needs students aged 20 to 21 while

offering it, in the form of a network of adult-education

schools called Community Schools for Adults, to students

without special needs. The Community Schools for Adults

were exempt from the strictures of Act 163.

The panel held that Act 163 violated the IDEA, which

restricts the power of states to establish age limits on specialeducation eligibility in certain circumstances. In an exception

to these restrictions, 20 U.S.C. § 1412(a)(1)(B)(i) provides

that a state’s duty to provide special education does not

extend to children aged 18 through 21 “to the extent that [the

duty’s] application to those children would be inconsistent

with State law or practice . . . respecting the provision of

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
E.R.K. V. STATE OF HAWAII DEP’T OF EDUC. 3

public education to children in those age ranges.” Referring

to the IDEA’s legislative history, the panel held that

§ 1412(a)(1)(B)(i) meant that Hawaii could not deny special

education to disabled students aged 18 through 21 if it in fact

provided “free public education” to nondisabled students in

that range of ages. The panel concluded that the diploma

programs offered by the Community Schools for Adults

constituted free public education because they were provided

at public expense, under public supervision and direction, and

without charge, and they involved secondary education. 

Accordingly, the panel reversed the district court’s judgment

for the State of Hawaii Department of Education on the IDEA

claim.

The panel affirmed the district court’s judgment for the

Department of Education on the plaintiffs’ disability

discrimination claims under the Americans with Disabilities

Act and the Rehabilitation Act, holding that the plaintiffs did

not establish the existence of reasonable accommodationsthat

would make the Community Schools for Adults generally

accessible to disabled students. The panel remanded the case

to the district court.
4 E.R.K. V. STATE OF HAWAII DEP’T OF EDUC.

COUNSEL

Paul Alston, Alston Hunt Floyd & Ing, Honolulu, Hawaii;

Jason H. Kim (argued), Schneider Wallace Cottrell Brayton

Konecky, LLP, San Francisco, California; Matthew C.

Bassett & Jennifer V. Patricio, Hawai’i Disability Rights

Center, Honolulu, Hawaii, for Plaintiffs-Appellants.

David M. Louie, Carter K. Siu (argued), and Holly T.

Shikada, Department of the Attorney General, Honolulu,

Hawaii, for Defendant-Appellee.

OPINION

NELSON, Senior Circuit Judge:

Are state-funded high school diploma programs for adults

who never graduated from high school a form of “public

education”? 20 U.S.C. § 1412(a)(1)(B)(i). We conclude that

they are. Accordingly, we hold that a Hawaii statute

establishing an age limit on public education violates federal

law, and reverse in part the district court’s entry of judgment

in favor of the Defendant-Appellee.

Background

In 2010, the Hawaii state legislature enacted a law,

dubbed “Act 163,” barring students from attending public

school after the last day of the school year in which they

turned 20:

No person who is twenty years of age or over

on the first instructional day of the school
E.R.K. V. STATE OF HAWAII DEP’T OF EDUC. 5

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.

Haw. Rev. Stat. § 302A-1134(c). The law applies to both

general-education students and students who receive specialeducation services under the Individuals with Disabilities

Education Act (“IDEA”), 20 U.S.C. § 1400 et seq.

The State of Hawaii Department of Education (“DOE”)

administers public education in the state. In addition to

conventional public high schools, the agency operates a

network of adult-education schools called the Community

Schools for Adults. DOE materials explain that the

Community Schools for Adults offer “Adult Secondary

Education” in the form of “tuition-free opportunities for

adults and out-of-school youth to earn a high school

diploma[.]” The DOE offers two diploma programs: the

General Education Development (“GED”) program and the

Competency Based program (“CB”).

The GED program prepares students to take the GED test,

a national standardized high school equivalency exam.

Students who achieve adequate scores on the GED test

qualify for a high school diploma if they have also completed

at least one semester of high school work at either an

accredited high school in Hawaii or a Community School for

Adults. A high school diploma earned via the GED program

permits students to seek admission to the University of

Hawaii system.
6 E.R.K. V. STATE OF HAWAII DEP’T OF EDUC.

The CB program is a three-semester life-skills program

designed to help students become “(1) Functionally literate

adults; (2) Productive and contributing citizens/community

members; (3) Effective family members; and (4) Productive

workers.” The program emphasizes skills like household

finance, civic participation, and health maintenance. To

obtain a high school diploma in the CB program, students

must complete all five CB courses, earn adequate scores on

the various CB exams, and complete at least one “Career

Goal,” such as finding a job or completing one credit of work

at an accredited postsecondary institution.

The Community Schools for Adults are exempt from the

strictures of Act 163. Both the GED and CB programs are

open to any student 18 or older who lacks a high school

diploma.1

These adult education programs have sparked litigation

because they do not offer IDEA services to disabled students.

Students who require special-education services to participate

in the classroom cannot pursue diplomas in the Community

Schools for Adults after aging out of public education under

Act 163. But students without special needs can and do

transition directly from Hawaii public high schools to the

Community Schools for Adults.2

1 Sixteen- and seventeen-year-old students are eligible to enroll in the

Community Schools for Adults if they have officially withdrawn from

high school.

2 Between 2010 and 2012, 113 general-education students became

ineligible for high school because of Act 163, and four enrolled in an adult

school.
E.R.K. V. STATE OF HAWAII DEP’T OF EDUC. 7

Soon after Act 163 became law, four disabled students

and their parents, together with the Hawaii Disability Rights

Center, filed a class-action complaint in federal district court.

The complaint asserted claims under the IDEA, the

Americans with Disabilities Act (“ADA”), and the

Rehabilitation Act, as well as an estoppel claim. The IDEA

claim alleged that Act 163 violated federal law by denying

public education to special-needs students aged 20 to 21

while offering it, in the form of the Community Schools for

Adults, to students without special needs. The claims under

the ADA and Rehabilitation Act alleged that the DOE’s

exclusion of disabled students from adult education

constituted disability discrimination under those statutes. The

estoppel claim is not at issue in this appeal.

The district court certified a class consisting of all

Hawaiian students entitled to special-education services but

made ineligible for public education by Act 163. The

Plaintiffs and the DOE filed cross-motions for summary

judgment. The district court granted summary judgment to

the DOE on the estoppel claim, but denied summary

judgment to both parties on the remaining claims.

The parties then tried the case in a one-day bench trial.

After trial, the district court ruled for the DOE on all three

claims at issue. On the IDEA claim, the court held that Act

163 was consistent with federal law because the Community

Schools for Adults did “not provide the equivalent of a

secondary school education to general education students,”

and because the DOE had no “systemic practice of offering

the same or equivalent education to general education

students who have aged out while eliminating education

services for special education students.” On the ADA and

Rehabilitation Act claims, the court held that the Plaintiffs
8 E.R.K. V. STATE OF HAWAII DEP’T OF EDUC.

had made a prima facie case of disability discrimination, but

did not meet their burden of identifying a reasonable

accommodation that would allow disabled students to benefit

meaningfully from the adult schools. The Plaintiffs3timely

appealed.

Analysis

1. IDEA claim.

We first must decide whether Act 163 runs afoul of the

IDEA, which restricts the power of states to establish age

limits on special-education eligibility in certain

circumstances. We hold that it does.

The IDEA requires states to provide a “free appropriate

public education” to all children with disabilities residing in

the state “between the ages of 3 and 21, inclusive[.]”

20 U.S.C. § 1412(a)(1)(A). As a result, a student’s eligibility

for IDEA services ordinarily ends on his twenty-second

birthday. See L.A. Unified Sch. Dist. v. Garcia, 669 F.3d 956,

959 (9th Cir. 2012). The statute creates an exception to the

age limit, however. A state’s duty to provide special

education to children with disabilities does not extend to

children aged 3 through 5 or 18 through 21 “to the extent that

[the duty’s] 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)(i).

 

3

 In the remainder of our opinion, we use “E.R.K.” to refer to the class

of Plaintiffs-Appellants as a whole. E.R.K., a class representative, is a

studentwith autismwho was receiving special-education services fromthe

DOE at Roosevelt High School at the time of trial.
E.R.K. V. STATE OF HAWAII DEP’T OF EDUC. 9

We have never interpreted this exception to the IDEA’s

default age limit, and the text is not completely pellucid.

What does it mean for the IDEA’s application to students

aged 18 to 21 to be “inconsistent with State law or

practice . . . respecting the provision of public education” in

a state? Id. The corresponding federal regulations are little

help, as they simply reiterate the statutory language in nearly

identical terms:

The obligation to make [a free and appropriate

public education] available to all children

with disabilities does not applywith respect to

. . . [c]hildren aged 3, 4, 5, 18, 19, 20, or 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 of

those ages.

34 C.F.R. § 300.102(a).

Happily, the IDEA’s legislative history sheds some light

on the exception’s meaning. See Jonah R. v. Carmona,

446 F.3d 1000, 1005 (9th Cir. 2006) (“If the statute’s terms

are ambiguous, we may use canons of construction,

legislative history, and the statute’s overall purpose to

illuminate Congress’s intent.”). The Senate Report

accompanying the 1975 statute4that created the exception

4 The legislation was enacted as the Education for All Handicapped

Children Act. See Pub. L. 94-142, 89 Stat. 773 (1975). That legislation

amended an earlier statute, the Education of the Handicapped Act. See

Pub. L. 91-230, 84 Stat. 175 (1970). In 1990, the statute was renamed the
10 E.R.K. V. STATE OF HAWAII DEP’T OF EDUC.

explains that states are free to elect not to provide special

education to disabled students between 18 and 21, but only if

they also elect not to provide “free public education” to

nondisabled students:

This exception with respect to handicapped

children aged three to five and aged eighteen

to twenty-one, inclusive [in 20 U.S.C.

§ 1412(a)(1)(B)(i)] is intended to exempt

states from the provisions of this Act

establishing a timetable for providing a free

appropriate public education in these age

groups in the following circumstances: . . .

(2) where a State does not in fact provide

or assure the provision of free public

education to handicapped children in these

age groups; . . . .

This exception shall not apply in the

following circumstances:

(1) where a state does now in fact provide

or assure the provision of free public

education to non-handicapped children in

these age groups . . . .

S. Rep. No. 94-168, 1442–43 (1975).

In light of this legislative history, we interpret

§ 1412(a)(1)(B)(i) to mean that Hawaii cannot deny special

Individuals with Disabilities Education Act. See Pub. L. 101-476

§ 901(a)(3), 104 Stat. 1103, 1142 (1990).
E.R.K. V. STATE OF HAWAII DEP’T OF EDUC. 11

education to disabled students aged 18 through 21 if it in fact

provides “free public education” to nondisabled students in

that range of ages.

The fate of Act 163 comes down to whether the diploma

programs offered by the Community Schools for Adults

constitute “free public education.” Act 163 makes some 20-

year-old and all 21-year-old students ineligible for public

education in Hawaii. For disabled students, the Act functions

as an age limit on eligibility for IDEA services. E.R.K. argues

that by providing the GED and CB programs to nondisabled

20- and 21-year-olds, Hawaii offers public education on

unequal terms. The DOE rejoins that the GED and CB

programs are not “free public education” as the IDEA uses

that term, so making them available to nondisabled 20- and

21-year-olds does not beget a concomitant obligation to

publicly educate disabled students of the same ages.

To determine whether the adult-education programs are

“free public education,” we naturally begin with the text of

the IDEA. See Dzyuba v. Mukasey, 540 F.3d 955, 956 (9th

Cir. 2008) (“[W]e construe the meaning of a given word by

reference to the context of a particular statutory regime.”);

see also Brown v. Gardner, 513 U.S. 115, 118 (1994)

(“[T]here is a presumption that a given term is used to mean

the same thing throughout a statute . . . .”). The IDEA does

not offer a statutory definition of “free public education,” but

it does explicitly define the closely related phrase “free

appropriate public education” as “special education and

related services” that:

(A) have been provided at public expense,

under public supervision and direction, and

without charge;
12 E.R.K. V. STATE OF HAWAII DEP’T OF EDUC.

(B) meet the 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). Once we strip out those aspects of this

definition that clearly relate to the education’s

“appropriateness,” as opposed to its “free” and “public”

character, we are left with a reliable index of what “free

public education” means in § 1412(a)(1)(B)(i). The second

and fourth criteria seem to delineate an education’s

appropriateness. (Surely an education can be both free and

public even if it is inappropriate because it fails to meet state

standards or to conform with an individualized education

program.) We are left with a bipartite definition: a “free

public education” is one that is 1) provided at public expense,

under public supervision and direction, and without charge;

and 2) involves preschool, elementary, or secondary

education.

The first prong of this definition is consistent with the

plain meaning of “free public education.” A “public”

institution is one that is “accessible . . . to all members of the

community” and which “provid[es]services to the people . . .

under some degree of civic or state control.” Webster’s Third

New International Dictionary 1836 (1968). “Free” means

“without charge.” Id. at 905. The second prong of the

definition—that “free public education” means preschool,
E.R.K. V. STATE OF HAWAII DEP’T OF EDUC. 13

elementary, or secondaryeducation—is not apparent from the

plain meaning of the phrase, but is derived from the IDEA’s

limited scope. Because the IDEA applies only to preschool,

elementary, or secondary education, see 20 U.S.C. § 1401(9),

we do not think § 1412(a)(1)(B)(i) refers to public education

outside those same categories.

The GED and CB programs clearly satisfy the first prong

of the definition. The district court found, and neither party

disputes, that the CommunitySchools for Adults are provided

at public expense and are free to students. Nor does the DOE

deny that the schools operate under its supervision and

direction as a public agency.

The GED and CB programs also satisfy the second prong

because they are programs of secondary school education.

The DOE’s own officers acknowledge that the GED and CB

high school diploma programs are designed “to ensure that

the graduates are prepared for transitions to post secondary

education[.]” If students are only able to pursue

“postsecondary” education after they earn a high school

diploma in the GED or CB programs, it stands to reason that

those programs constitute “secondary” education. The record

is replete with additional evidence that the DOE considers the

GED and CB programs to offer a secondary education for

adults. A section of the DOE’s website, titled “What are

Community Schools for Adults?”, enumerates the “wide

variety of courses” offered by the adult schools. The second

item reads: “Secondary education . . . courses to complete

your high school graduation requirements.” The DOE’s

characterization of the adult school programs comports with

the common-sense view that high school diploma programs

are quintessentially secondary education, whether they are

offered to teenagers or adults. Cf., e.g., 20 U.S.C. § 9201(3)
14 E.R.K. V. STATE OF HAWAII DEP’T OF EDUC.

(describing the purpose of the Adult Education and Family

Literacy Act of 1998 as “assist[ing] adults in the completion

of a secondary school education”); see also id.

§ 1001(a)(1)–(2) (noting that an “institution of higher

education” is one that “provide[s] a program of education

beyond secondary education” and only accepts students with

secondary-education diplomas).

Our conclusion that the GED and CBprograms are a form

of public secondary education is buttressed by the fact that

the Community Schools for Adults meet the IDEA’s

definition of “secondary school.” 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.

Id. § 1401(27). The record establishes that the Community

Schools for Adults are nonprofit day schools that do not

educate students beyond grade 12; only students who never

graduated from twelfth grade can pursue a GED or CB

diploma. And to the extent that Hawaii law substantively

defines “secondary education” at all, the GED and CB

programs seem to qualify. The state statute defining the

“scope of adult and community education programs offered”

in Hawaii states that “instructional programs shall be

initiated” in various fields, including 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.
E.R.K. V. STATE OF HAWAII DEP’T OF EDUC. 15

§ 302A-433. The GED and CBprograms obviously fulfill this

legislative mandate.5

We are therefore persuaded that the Community Schools

for Adults offer “secondary education”—and hence that the

state offers “free public education” to nondisabled students

over 18 and under 22.

The DOE makes three arguments that, in spite of the

statutory text, the Community Schools for Adults do not in

fact offer free public education. First, the DOE urges us to

distinguish “conventional” or “traditional” secondary

education offered in Hawaiian high schools from the less

demanding GED and CB programs. To earn an ordinary high

school diploma, the DOE points out, students must

accumulate 120 credit hours in various academic subjects.

The GED and CB diploma programs are structured

differently. The GED program consists of a series of targeted

preparatorycourses in the GED examination subjects, and the

CB program is largely nonacademic, focusing instead on

personal and vocational skill development. The differences

extend to postsecondary opportunities. Both the University of

5 Of course, the fact that the Community Schools for Adults meet the

definition of “secondary schools” under the IDEA does not mean that

Hawaii could comply with the IDEA simply by amending its laws to

exclude adult-education programs from the ambit of “secondary

education.” A state’s definition of “secondary education” determines

whether an institution qualifies as a “secondary school” under the IDEA.

20 U.S.C. § 1401(27). State law alone, however, does not dictate whether

a program is a form of secondary education—and, by extension, whether

it constitutes “free public education.” As we have explained, high school

diploma programs are paradigmatic examples ofsecondary education, and

Hawaii is not free to reclassify the GED and CB programs as

nonsecondary education in an effort to read them out of the definition of

free public education.
16 E.R.K. V. STATE OF HAWAII DEP’T OF EDUC.

Hawaii system and the military, for instance, favor students

with conventional high school diplomas over students with

the GED diploma.

The DOE urges that the differences between

“conventional” high schools in Hawaii and the Community

Schools for Adults are so substantial that both school systems

cannot offer secondary education. The district court made

much the same argument when it entered judgment in the

DOE’s favor: the district court held that the GED and CB

programs “do not provide the equivalent of a secondary

school education” because the “educational curriculum,

requirements, and experience of the adult programs are

dramatically different from those of a traditional public high

school.”

Nothing in the IDEA, however, supports the proposition

that a program constitutes “secondary education” or “free

public education” only if it is structurally identical to the

ordinary public high school curriculum offered to

nondisabled students. The DOE’s brief cites no cases or

statute in support of the interpretation it proposes. Instead, the

DOE asks us to contrive an atextual distinction between

authentic and ersatz secondary education and impose it on the

statutory text. It is particularly unlikely that the IDEA’s

definitions incorporate such a distinction because, as we have

noted, the statute construes education broadly. See 20 U.S.C.

§ 1401(29) (“The term ‘special education’ means specially

designed instruction, at no cost to parents, to meet the unique

needs of a child with a disability, including . . . instruction

conducted in the classroom, in the home, in hospitals and

institutions, and in other settings[.]”); see also, e.g., Seattle

Sch. Dist., No. 1 v. B.S., 82 F.3d 1493, 1500 (9th Cir. 1996)

(noting that the IDEA reflects a holistic concept of
E.R.K. V. STATE OF HAWAII DEP’T OF EDUC. 17

educational benefit, including “the handicapped child’s

academic, social, health, emotional, communicative, physical

and vocational needs” (internal quotation marks omitted)).

Education for high-school-aged students with disabilities

often differs dramatically from “conventional” secondary

education. See, e.g., Park ex rel. Park v. Anaheim Union High

Sch. Dist., 464 F.3d 1025, 1030–31 (9th Cir. 2006) (per

curiam) (involving an educational program for a high school

student that included a full-time special day class and

instruction in “buttoning, zipping and toilet training”). In

light of the variety of specialized secondary education the

IDEA makes available to disabled students, it is simply

implausible that the phrase “free public education” in the

§ 1412(a)(1)(B)(i) exception refers narrowly to a

“conventional” high school curriculum.6

Second, the DOE argues that an opinion letter from the

United States Department of Education establishes that GED

courses are not “secondary education.” The opinion letter

states that school districts are “not required to provide [IDEA

services to] students who have left traditional secondary

education programs and entered a GED test preparation

program” unless “the State considers the GED test

preparation program to be a part of an appropriate secondary

6 We are also skeptical that the differences between the diploma

programs are as significant as the DOE claims. The record contains a

flowchart, prepared by the DOE, which “illustrates the three methods by

which the high school diploma may be earned.” The flowchart shows that

all three paths—the “Credit Method,” the “GED Test Method,” and the

“[CB] Method”—lead to the same result: a “Hawaii Department of

Education High School Diploma.” Surely the programs’ common

characteristic—that they all lead to “the high school diploma”—is more

relevant to their status as “secondary education” than differences in

curriculum, structure, and rigor.
18 E.R.K. V. STATE OF HAWAII DEP’T OF EDUC.

education.” The letter does not alter our analysis, because

E.R.K. is not arguing that the Community Schools for Adults

must provide IDEA services. At most, the letter reflects the

United States Department of Education’s view that not all

GED preparation programs are necessarily part of an

“appropriate secondary education.” The letter sheds no light

at all on whether all GED preparation programs constitute

secondary education simpliciter. But we need not broach that

question, because we have already decided that Hawaii’s

GED diploma program is unambiguously a program of

secondary education.

Finally, the DOE argues that the IDEA’s definition of

“transition services,” which school districts must offer when

a student ages out of IDEA eligibility, proves that adult

education and secondary education are mutually exclusive.

The IDEA defines “transition services” as

a coordinated set of activities for a child with

a disability that . . . is focused on improving

the academic and functional achievement of

the child with a disability to facilitate the

child’s movement from school to post-school

activities, including post-secondaryeducation,

vocational education, integrated employment

(includingsupported employment), continuing

and adult education, adult services,

independent living, or community

participation . . . .

20 U.S.C. § 1401(34) (emphasis added). The DOE argues

that, by offering “adult education” as an example of a “postschool activity,” the IDEA’s drafters intended to distinguish

adult education from secondary education. But of course it is
E.R.K. V. STATE OF HAWAII DEP’T OF EDUC. 19

self-evident that “adult education” and “secondaryeducation”

are not coterminous. Hawaii’s adult schools offer adulteducation courses in parenting and sewing,

7

but it is unlikely

that these courses constitute secondary education. The use of

the phrase “adult education” in connection with transition

services does not imply mutual exclusivity between “adult

education” and “secondary education.”

None of the DOE’s arguments sway us from our

conclusion that the CommunitySchools for Adults offer “free

public education” to students who do not require IDEA

services. The DOE offers, at taxpayer expense, the

opportunity for nondisabled 20- and 21-year-olds to complete

their secondary educations and earn high school diplomas.

Providing IDEA services to disabled children of those ages

would therefore be consistent with “State law or practice . . .

respecting the provision of public education,” so the state

must do so. 20 U.S.C. § 1412(a)(1)(B)(i).

Our conclusion is unchanged by the district court’s

finding that the DOE does not “usher” or “steer” nondisabled

students into the GED and CB programs once they age out of

the conventional high schools. As the legislative history

makes clear, the question is whether a state “provide[s] or

assure[s] the provision of free public education to

non-[disabled] children.” S. Rep. No. 94-168, 1442–43. A

state’s duty to educate disabled children until they turn 22 is

only excused if free public education is foreclosed to disabled

7

See http://165.248.6.166/data/schoollist_csa.asp (noting that the

Community Schools for Adults offer “[h]omemaking and parenting”

courses”) (last visited August 1, 2013); http://www.waipahucs.k12.hi.us/

courses/2013/Summer%202013/WCSA%20Sum%202013.pdf (listing

three sections of a course called “Sewing”) (last visited August 1, 2013).
20 E.R.K. V. STATE OF HAWAII DEP’T OF EDUC.

and nondisabled students alike. Whether a state encourages

nondisabled students to take advantage of what free public

education is available is irrelevant.

Indeed, though their numbers are small—only3.5% of the

general education students affected by Act 163 between 2010

and 2012 transitioned to an adult diploma program—the fact

that any students at all transitioned directly to the GED and

CB programs after aging out of the state high school system

confirms that the state “provides” free public education to 20-

and 21-year-olds. Those students who made the transition

belie the district court’s finding that “the GED and CB

programs are not a continuation of a traditional high school

education.”

By passing the IDEA, Congress intended “to open the

door of public education to all qualified children[.]” Cedar

Rapids Cmty. Sch. Dist. v. Garret F. ex rel. Charlene F.,

526 U.S. 66, 78 (1999) (internal quotation marks and citation

omitted). If Hawaii legislators wish to shut the door to

students once they turn 20, that is their prerogative—but they

must shut them to all students, regardless of disability. Act

163 reinstates the benighted two-track system that prevailed

before the IDEA was passed, when disabled students were

often “totally excluded from schools[.]” Bd. of Educ. of

Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. v.

Rowley, 458 U.S. 176, 191 (1982) (internal quotation marks

and citation omitted). In Hawaii’s two-track system,

nondisabled students between the ages of 20 and 22 can

pursue the diplomas that eluded them in high school, but

students with special needs are simply out of luck.

The GED and CBprograms—unfettered bythe obligation

to address the needs of disabled students—are surely much
E.R.K. V. STATE OF HAWAII DEP’T OF EDUC. 21

cheaper to operate than a public-school system with a full

complement of special-education services. But the IDEA

stands for the principle that exclusion is a false economy

unbefitting a society committed to the complete integration of

its disabled citizens.

2. ADA and Rehabilitation Act claims.

E.R.K. next argues that the district court erred when it

ruled in the DOE’s favor on his disability discrimination

claims.

To establish a prima facie case of disability

discrimination under the ADA, a plaintiff must prove:

(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 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.

McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir.

2004) (alteration in original) (quoting Thompson v. Davis,

295 F.3d 890, 895 (9th Cir. 2002) (per curiam)) (internal

quotation marks omitted). A prima facie case under the

Rehabilitation Act is identical, except that the plaintiff must

also prove that the relevant program receives federal financial
22 E.R.K. V. STATE OF HAWAII DEP’T OF EDUC.

assistance. See Duvall v. Cnty. of Kitsap, 260 F.3d 1124,

1135 (9th Cir. 2001).

Under both statutes, a plaintiff who requires an

accommodation to meet a program’s essential eligibility

requirements can establish the “otherwise qualified” element

of the prima facie case only by producing “evidence of the

existence of a reasonable accommodation . . . .” See Zukle v.

Regents of the Univ. of Cal., 166 F.3d 1041, 1046–47 (9th

Cir. 1999) (emphasis added).

E.R.K.’s complaint identifies “[t]he DOE’s provision of

public education” as the “service, program, or activity” from

which he was allegedly excluded. But the only programs the

DOE provides on a discriminatory basis are the GED and CB

adult education programs; Act 163 forecloses all other publiceducation programs to disabled and nondisabled students

alike. Thus, the question is whether the GED and CB

programs are available to disabled individuals “who, with or

without reasonable accommodations, meet the essential

eligibility requirements to participate.” Pierce v. Cnty. of

Orange, 526 F.3d 1190, 1222 (9th Cir. 2008).

E.R.K. did not establish a prima facie case of disability

discrimination because he failed to produce “evidence of the

existence of a reasonable accommodation.” Zukle, 166 F.3d

at 1047. E.R.K. did not identify changes to the structure or

curriculum of the Community Schools for Adults that would

make them generally accessible to disabled students. Instead,

the accommodation he proposed was simply that the DOE

maintain disabled students’ special-education placements

until their twenty-second birthdays. That accommodation

would do nothing to help disabled students access the GED

and CB programs. Retaining students in their publicly funded
E.R.K. V. STATE OF HAWAII DEP’T OF EDUC. 23

special-education placements might be a reasonable

accommodation if E.R.K. were alleging that disabled students

are excluded from the Hawaiian public-education system as

a whole. But the accommodation would represent a

“fundamental” change to the Community Schools for Adults

in particular—and the DOE is not required to make

fundamental modifications to accommodate disabled

students. Alexander v. Choate, 469 U.S. 287, 300 (1985).

Conclusion

Through its Community Schools for Adults, the State of

Hawaii offers public education to nondisabled students

between the ages of 20 and 22. As long as it continues to do

so, the IDEA requires the state to continue to provide a free

and appropriate public education to disabled students who

have not yet obtained the age of 22. The Plaintiffs did not,

however, prove that the same result is necessary as a

reasonable accommodation. Accordingly, we affirm the

district court’s judgment for the DOE on the ADA and

Rehabilitation Act claims, and reverse the district court’s

judgment for the DOE on the IDEA claim.

Costs on appeal shall be awarded to Plaintiffs-Appellants.

AFFIRMED in part, REVERSED in part, and

REMANDED.