F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

E.R.K., by

his leg al g uardian R.K.; R.T.D., throug h his parents R.D. and M.D.; H AW

A I ’ I D I S A B I L I T Y R I G H T S C E N T E R , in a representative capacity on behalf of its clients and all others similarly situated,

Plaintiffs-Appellants

,

v

.

S T A T E O F H AW

A I I D E P A R

T M E N T O F E D U C A T I O N , Defendant-Appellee

. N o. 12-16063

D.C. No. 1:10-CV-00436- DAE-KSC

OPI NI ON

Appeal from the United States District Court for the District of Hawaii David A. Ez ra, District J udg e, Presiding

Arg ued and Submitted J une 12, 2013—Honolulu, Hawaii

F iled Aug ust 28, 2013

B efore: J erome F arris, Dorothy W . Nelson, and J acqueline H. Ng

uy en, Circuit J u d g es.

Opinion by

J udg e D.W

. NelsonE.R.K. V

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SUMMARY *

Individuals w ith Disabilities Education Act

Affirming in part and r eversing in part the district court’s judg ment after a bench trial in a class action, the p a n e l h eld that a Hawaii st a t u te violated federal law by establishing an ag e limit on public education.

The Hawaii statute, d

u b b ed “Act 163,” barred both
g e n e r a l

- e d

u cation students and students who recei v e d s p e c i a l

education services under the I ndividuals with Disabi l ities Education Act from attending public school after the last day of t h e school y ear in which they turned 20. The plaintiffs alleg ed that the state violated the I DEA, the Americans with Disabilities Act, and the Rehabilitation Act by denying public education to special-needs students ag ed 20 t o 2 1 while offering it, in the form of a network of adult

- e d u c ation schools called Community Schools for Adults, to s t u dents without special needs. The Community Schools for Ad u lts

were ex empt from the strictures of Act 163.

The p anel held that A c t 1 6 3 violated the I D EA, which restricts the power of states to establish ag e limits on specialeducation elig ibility in certain circumstances. I n an ex c eption
to these restr ictions, 20 U.S.C. § 1412(a)(1)(B )(i) provides that a state’s duty to provide special education does n o t

ex tend to children ag e d 18 throug h 21 “to the ex tent that [ the duty ’s] applicat i o n t o those children would be inconsistent with State law or p ractice

. . . respecting the provis i o n o f

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co urt staf

f f o r th e co n v en i en ce o f

th e read er.E.R.K. V

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public education to children in those ag e rang e s.” Referring
to the I DEA’s leg islative history

, t h e panel h eld that § 1412(a)(1)(B )(i) meant that Hawaii could not deny special education to disabled students ag ed 1 8 throug h 21 if it in fact provided “free public edu cation” to nondisabled students in that rang e o f ag es. The p a n e l concluded that the diploma
prog r ams offered by the Community S c h o o l s for Adults constituted free public education because they were provided
at public ex p ense, under p ublic supervision and direction, a nd without charg e, and they involved seco n d a ry education. According ly

, the panel reversed the district court’s judg ment for the State of Hawaii Department of Education o n the I DEA claim.

The panel affirmed the dist ri ct court’s judg ment for the Department of Education o n t h e plaintiffs’ d isability discrimination claims under the Americans w ith Disabilities Act and the Rehabilitation Act, holding that the plaintiffs did

n o t e s t a b lish the ex istence of reasonable a ccommodatio n s t h a t would make t he Community Schools for Adults g enerally accessible to disabled students. The panel remanded the case to the district court.E.R.K. V

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COUNSEL

Paul Alston, Alst o n Hunt F loy d & I ng , Honolulu, Hawaii; J ason H. Kim (arg

ued), S chneider W allace Cottrell B ray ton Konecky

, L L P, San F rancisco, California; Matt h e w C. B assett & J ennifer V. Pat r i c i o, Hawai’i Disability Rig hts Center, Honolulu, Hawaii, for Plaintiffs-Appellants.

David M

. L o uie, Carter K. Siu (arg ued), and Holly T. Shikada, Department of the Attorney General, Honolulu, Hawaii, for Defendant-Appellee.

OP INION

NEL SON, Senior Circuit J udg e:

Are state-funded hig h school diploma prog rams for adults

w h o n e v er g r aduated from hig h school a form of “ public education”? 2 0 U.S.C. § 1412(a)(1)(B )(i). W e c onclude that they are. A ccording ly

, we h old that a Hawaii statute establishing an ag e limit on public education violates federal law, and reverse in part the district court’s entry of judg ment in favor of the Defendant-Appellee.

Background

I n 2010, the H a waii state leg islature enacted a law, dubbed “ Act 163,” ba r r ing students from attending public school after the last day of the sc h ool y ear in which they turned 20:

No person who is twenty y ears of ag e or over

on the first instructional day of the s c hoolE.R.K. V

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y ear shall be elig ible to attend a public school. I f a p erson r e aches twenty y ears of ag e a fter the first instructional day of the school y ear, the person shall b e el ig ible to attend public school for the full school y ear.

Haw. Rev. Stat. § 302A-1134(c). The law applies to both
g eneral-education students and students who receive specialeducation services under the I ndividuals with Dis a bilities Education Act (“I DEA”), 20 U.S.C. § 1400 et seq.

The State o f Hawaii Department of E d u c ation ( “DOE”) administers public education in t h e s tate. I n addition to conventional publ i c h i g h schools, the ag ency operates a network of adult-educa t i o n schools called the Community Schools for Adults. DOE materials ex plain t h a t the C o mmunity Schools for Adults o ffer “Adult Second a r y Education” in the form of “tuition-fr ee opportunities for adults a nd o u t-of-school y outh to e arn a hig h school diploma[ .] ” The DOE o f fe rs two diploma prog rams: the General E ducation Development (“GED”) prog ram and the Competency

B ased prog ram (“CB ”).

The GED prog ram prepares students to take the GED test,

a n a t ional standardiz e d h ig h school equivalency ex am. Students who achieve adequate scores on the GED test qualify for a hig h school d iploma if they have also completed
at l east one semester of hig h school work at either an accredited hig h school in Hawaii or a Community School for Adults. A hig h school diploma earned via the GED prog ram permits students to seek admission to the Unive rsity o f Hawaii sy stem.E.R.K. V

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The CB prog ram is a three-sem ester life-skills prog ram desig ned to help students become “ ( 1) F unctionally literate adults; (2) Productive a

n d contributing citiz ens/community members; ( 3) Effective family members; and (4) Productive

wor k ers.” The prog ram emphasiz es skills like h ousehold finance, c ivic participation, and health maintenance. T o obt a in a h ig h school diploma in the CB prog ram, students
must c omplete all five CB courses, earn adequate s cores on the various CB ex ams, and complete at least one “Career Goal,” such as finding a job o r completing one credit o f work at an accredited postsecondary institution.

The Community Schools for Adults are ex empt from the strictures of Act 1 6 3

. B oth the GED and CB prog rams a re open to any student 18 or older who lacks a hig h school diploma. 1

These adult education prog rams have spar k e d litig ation because they d o not offer I D EA services to disabled students. Students who require special-education services to par t i c i p a te in the classroom cannot pursue diplomas in th e C ommunity Schools for Adults after ag ing out of public education under Act 163. B ut students w ithout special needs can and do transition directly from Hawaii pu b l i c h ig h schools to the Community Schools for Adults. 2

1 S i xt e en

- an d s ev en teen

- y ear- o l d stu d en ts are elig ib le to en ro l l in th e Co m m u n ity S ch o o ls f

o r A d u lts if th ey h av e o f fi c i a l l y w i th d raw

n f ro m h ig h sch o o l.

2 B etw een 2 0 10 an d 2 01 2
, 1 1 3 g en eral- ed u catio n s tu d en ts b ecam e in elig i b le f

o r h ig h sch o ol becau s e o f A ct 1 6 3
, an d f o u r en ro lled in an ad u l t sch o o l.E.R.K. V

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S o on after Act 163 became law, four disabled studen t s and their parents, tog e ther with the Hawaii Disability Rig hts Center, filed a class-action complaint in federal district court. The complaint asserted claims under the I DE A
, t h e Americans with Disabilities Act (“ADA”), and the Rehabilitation Act, as well a s an estoppel claim. T h e I DEA claim alleg e d that Act 163 violated federal law by d enying public education to special-needs students ag ed 20 to 21 while offerin g i t , i n the form o f the Community Schools for Adults, to students without special n eeds. The claims under the ADA and Rehabilitation Act alle ge d that the DOE’s

ex c lusion of disabled students fro m adult education constituted disability discrimination under those statutes. The estoppel claim is not at issue in this appeal.

The district court certifi e d a class consisting of all Hawaiian students entitled to special-education services b u t

m ade inelig ible for public education by A ct 163. The Plaintiffs a

nd the DOE filed cross-motions for s u m mary judg ment. The district court g ranted summary judg ment to the DOE on the estoppel claim, but den i e d summary judg ment to both parties on the remaining claims.

The parties then tried the c ase in a one-da y b e n ch trial. After trial, the district court ruled for the DOE on all three claims at issue. On t h e I DEA c laim, the court held that A ct 163 was consistent with federal law because the Community Schools for Adults did “not prov i d e t h e equivalent of a secondary school education to general e ducation students,” and because the DOE had no “sy stemic practice of offering the same or equivalent education to g eneral education students who have ag ed out whi l e eliminating education services for special educ ation students.” On the A DA a nd Rehabilita tion Act claims, the c ourt held that the PlaintiffsE.R.K. V

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had made a prima facie case of disability discrimination, but did not m e e t their burden of identify ing a reasonable accommodation that would allow d isabled students to benefit meaning fully from the adult schools. The Plaintiffs 3 timely appealed.

Analysis

1. IDEA claim

.

W e first must decide whether Act 163 runs afo u l o f t he I DEA, w hich restricts the power of states to e s t a b lish ag e l i m i t s o n s p e c i a l

- e d u c a t i o n e l i g i b i l i t y i n c e r t a i n circumstances. W e hold that it does.

The I DEA requires states to p r o vide a “free appropriate public education” to all children with disabilities residing in the state “between the ag es o f 3 and 21, i n c l u s ive[ .] ” 20 U.S.C. § 1412(a)(1)(A). As a result, a student’s elig ibility for I DEA services o rdinarily ends on his twenty -second birthday

. See L.A. Unified Sch. Dist. v. Garcia
, 669 F .3d 956, 959 (9th Cir. 2012). The statute c r eates an ex ception to the
ag e limit, however. A state’s duty to p r o v ide special education to children with disabil i t ies does n ot e x tend to children ag e d 3 throug h 5 or 18 throug h 21 “to the ex tent that [ the duty ’s] a p p l ication to those c hildren would be inconsi s t e n t w ith State law o r practice, or the order o f any court, respecting the provision of public education to children in those ag e rang es.” 20 U.S.C. § 1412(a)(1)(B )(i).

3 In th e rem ain der o f

o ur o p in io n , w e u se “ E.R.K.” to ref er to th e class

o f P l a i n tif

f s- A p p ellan ts as a w

h o le. E.R.K., a class rep resen tativ e, i s a stu d en t w ith au tism w

h o w as receiv in g s p ecial- ed u catio n serv ices f ro m th e DOE at Ro o sev elt Hig h

Sch o ol at th e tim e o f

trial.E.R.K. V

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W e have never interpreted thi s e x ception to the I DEA’s default ag e limit, and the tex t is not completely pellucid. W h at does it mean for the I DEA’s application to s t u d e n ts ag ed 18 to 21 to be “ inconsisten t w i t h State law o r practice

. . . respecting the provision of public education” in

a state? Id. The corresponding federal reg u lations are little help, as they simply reiterate the statutory lang uag e in nearly identical terms:

The oblig ation to make [ a free and appropriate
p u b lic education] available to all children with d isabilities does not apply with respect to

. . . [ c] hildren ag ed 3, 4, 5, 18, 19, 20, or 21 in

a State to the ex tent that its application to those c hild r en would be inconsistent with State la w o r practice

. . . respecting the provision of p u blic e ducation to children o f those ag es.

34 C.F .R. § 300.102(a).

Happily , the I DEA’s leg islative history sheds some lig ht

on the ex c eption’s meaning

. See Jonah R. v. Carmona
, 446 F .3d 1000, 1005 (9th Cir. 2006) (“I f the statute’s terms

are ambi g uous, we may use canons of construction, leg islative h istory

, and the statute’s overall purpose to illumin at e Cong ress’s intent.”). The Senate Report
accompany

ing th e 1975 statute 4 that created the ex c eption

4 T h e leg islatio n w as en acted as t h e Ed u catio n f o r A ll Han d icap ped Ch ild ren A ct. S

ee P u b

. L

. 9 4

- 1 4 2
, 8 9 S tat. 7 73 (1 9 7 5). T h at leg i s l a t i o n

am en d ed an earlier s t a t u t e , t h e Ed u catio n o f th e Han d icap p ed A ct. S ee P u b

. L

. 9 1- 23 0
, 8 4 Stat. 1 7 5 (1 9 7 0 ). In 1 99 0
, th e statu te w as ren am ed th eE.R.K. V

. S T A T E O F H A W A I I D E P ’ T O F E D U C

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e x plains that states are free to elect n ot to provide spec i al education to disabled students between 18 and 21, but o nly if they also elect n o t to p rovide “free public education” to nondisabled students:

This e x ception with respect to handicapped ch i l d ren ag ed three to five and ag ed eig hteen
to t we nty -one, inclusive [ in 20 U.S.C. § 1412(a)(1)(B )(i) ] is intended to e x empt states f r o m the provisions of this A ct establishing a timetable for providing a free appropriate public education in the s e ag e g roups in the following circumstances: . . .

(2) where a State does not in fact provide

or assure the provision o f free public education to handicap p e d c hildren in these
ag e g roups; . . . .

T h i s e x ception shall not a p ply in t h e following circumstances:

(1) where a state does now in fact provide

or assure the prov ision o f free public education to non-handicapped children in these ag e g roups . . . .

S. Rep. No. 94-168, 1442–43 (1975).

I n l i gh t of this leg islative history

, we interpret § 1412(a)(1)(B )(i) to mean t h at Hawaii cannot deny special

In d iv id u als w i th Disab i lities Ed u catio n A ct. S ee P u b

. L

. 1 0 1

- 4 7 6 § 9 0 1 (a)(3 ), 1 0 4 Stat. 1 1 0 3 , 1 1 42 (1 9 9 0 ).E.R.K. V

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education to disabled students ag ed 1 8 throug h 21 if it in fact provides “ free public education” t o n o n disabled students in that rang e of ag es.

The fate of Act 163 comes down to whether the diploma
prog r ams offered by the C o m m u nity Schools for Adults constitute “free public e d ucation.” Act 163 makes s o m e 20-
y ear-old and a ll 21-y ear-old students inelig ible for public education in Hawaii. F or disabled students, the Act functions

as a n ag e limit on elig ibility for I DEA services. E.R.K. arg ues that by providing the GED and CB prog rams to nondisabled 20- and 2 1-y ear-olds, Hawaii offers public education on unequal terms. The DOE rejoins that the G ED and CB
prog r ams a

re not “free public edu c a tion” as the I DEA u ses that term, so making them available to nond i s a bled 20- a nd 21-y ear-olds d oes not beg et a concomitant oblig ation to publicly educate disabled students of the same ag es.

T o d e termine whether the adult-education prog rams a re “free public education,” we naturally beg i n with the tex t o f the I DEA. See Dzyuba v. Mukasey

, 540 F .3d 955, 956 (9th Cir. 2008) (“[ W] e c onstrue the meaning of a gi v en word b y reference to the contex t o f a particular statutory reg ime.”);

see also Brown v. Gardner

, 5 13 U.S. 1 1 5
, 118 (1994) (“[ T] here is a presumption that a g iven term is used to mean the same thi ng throug hout a statute

. . . .”). The I DEA does
not offer a statutory definition of “free public education,” but it does e x plicitly d efine the c l o s e ly r elated p hrase “free appropriate public education” as “spe c i a l education a nd related services” that:

(A) have been provided at p u b lic ex pense, under public supervision and directio n , a nd without charg e;E.R.K. V

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(B ) meet the standards of the State educational ag ency ;

(C) include an appropriate preschool,

e lementary school, or secondary school education in the State involved; and

(D) are provided in conformity wi th the individualiz ed edu c a tion prog r am r equired under section 1414(d) of this title.

20 U.S.C. § 1401(9). Once we strip out those aspects of this d e f i n i t i o n t h a t c l e a r l y r e l a t e t o t h e e d u c a t i o n ’ s “appropriateness,” as op p o s e d to its “ free” and “public” character, we are left with a reliable inde x of w hat “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 ca n b e both free a nd public even if it is inappropriate b ecause it fails to meet state standards or to conform with a n individual i z e d education
prog r am.) W e are left w ith a bipartit e definition: a “free public education” is one that is 1) provided a t public ex pense, under public supervision and d irection, and without charg e; and 2 ) involves preschool, elementary

, o r secondary education.

The first prong of this definition is consiste n t with the plain m ea ning of “free public education.” A “public” institution is one that is “accessible

. . . to all members of the community ” a

nd which “provid[ es] services to the people

. . . under some deg ree of c ivic or state control.” W ebster’s Third New I n ternational Dictionary 1836 (1968). “F ree” means “without charg e.” Id. a t 9 0 5. T he second prong of the definition—that “free public education” means preschool,E.R.K. V

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elementary

, or secondary education—is not apparent from the plain meaning of the phrase, but is derived from the I DEA’s limited scope. B ecause the I DEA a p plies only to prescho o l, elementary

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

we d o not think § 1412(a)(1)(B )(i) refers to public education outside those same categ ories.

The GED and CB prog rams clearly satisfy the first prong of the d efinition. The distri ct court found, and n either party disputes, that the Community Schools f or Adults are provided
at public ex pense a

n d are free to students. Nor does the DOE deny th at the schools operate under its supervision a nd direction as a public ag ency

.

The GED and CB prog r ams also satisfy the second prong because they are prog rams of s e c ondary school education. The DOE’s own officers acknowledg e that the GED and CB hig h school diploma prog rams are desi gn ed “to ensure that the g raduates are prepared for transitions to p ost secondary education[ .] ” I f stud e n t s are only able to pursue “postsecondary

” education after they earn a hig h sch o ol diploma in the GED o r CB prog rams, it stands to r eason that those prog rams constitute “ secondary ” e ducation. The record is replete w ith additional evidence that the DOE considers the GED and CB prog rams to offer a seco n d a r y education for adul t s

. A section of the DOE’s website, titled “W hat a re Community Schools for Adults? ”, enumerates the “wide

va ri ety of courses” offered by the a d ult schools. The second item reads: “Secondary e d ucat ion

. . . courses to complete
y our hig h school g raduation r e q uirements.” The DOE’s characteriz ation of the adult school p rog rams comports with
t he common-sense view that hig h school diploma prog r a m s

are quintessentially seco ndary education, whether they a re offered to teenag ers or adults. Cf., e.g. , 2 0 U.S.C. § 9201(3)E.R.K. V

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(describing the purp o s e o f the Adult Education and F amily L iteracy Act of 1998 as “ assist[ ing ] adults in the completion

o f a s ec o n d ary school education”); se e a l s o i d

. § 1001(a)(1)–(2) (noti n g that a n “institution of hig her education” is one that “ p r ovide[ s] a prog ram o f education bey ond secondary education” and o nly accepts students with secondary

- education diplomas).

Our conclusion that the GED and CB prog rams are a form of public secondary education is buttressed by the fact that the Community S c hools f or Adults meet the I DEA’s definition of “secondary school.” The I DEA defines “secondary

school” as a

nonprofit ins titutional day or residential school, including a public sec ondary charter school, that provides secondary education, as determined under State law, ex cept that it does not include a

n y education bey ond g rade 12.

Id. § 1 401(27). The record establishes th a t t he Community Schools for Adults are nonprofit day schools that d o not educate students bey ond g rade 1 2; only stud ents who never g raduated f

rom twelfth g r ade can pursue a G E D or C B diploma. And to the ex tent that H awaii law s u b s t an t ively defines “secondary education” a t all, the GED a n d CB
prog r ams s e e m t o q

ualify

. The state statute defining the “scope of adult and community education prog rams offered” in Hawaii states t h a t “instructional prog r ams shall be initiated” in v arious fields, including a prog ram of “ secondary education f

or those adults who, in y outh, l e f t s c hool or for

some reason had their education curtailed and who n ow d e sire to continue their education

. . . .” Haw. Rev. St a t

.E.R.K. V

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§ 302A-433. The GED and CB prog rams obviously fulfill this leg islative mandate. 5

W e are therefore persuaded that the Community Schools for Adults offer “second a ry education”—and hence that the
state offers “free public e d ucation” to nondisabled s t u d ents over 18 and under 22.

The DOE makes three a rg uments that, in spite o f t h e statutory tex t, the Community Schools for Adults d o not in fact offer free public educ a t i on. F irst, the DOE urg es us to disting uish “conventional” or “traditional” s econdary education offered in H awaiian hig h schools from the less demanding GED and CB prog r ams. T o earn an ordinary hig h school diploma, the D OE points out , s t u d ents must accumulate 120 credit hours in various academic subjects. The GED and CB diploma prog rams are structured differently

. The G ED prog ram consists of a series of targ eted preparatory courses in the GED ex amination subjects, and the C B p rog ram is larg ely n onacademic, focusing instead on personal and vocational skill develop m e n t

. The differences

ex tend to postsecondary opportunities. B oth the University o f

5 Of co urse, th e f

act th at t h e C o m m u n i ty Sch o o ls f

o r A d u l ts m eet th e d ef in i tio n o f “ s eco n d ary sch o o ls” un d er t h e IDEA d o es n o t m ean th at Haw aii co u ld co m

p ly w ith th e IDEA sim

p ly b y am en d in g i t s law s to

ex clu d e ad u lt-e d u catio n p ro g ram s f ro m th e am

b i t o f “ s eco n d ary ed u catio n .” A state’ s d ef in itio n of “s eco n d ary ed u catio n ” d eterm in es

w h eth er an in s titu tio n q u alif ies as a “ seco n d ary sch o o l” un d er th e IDEA

. 2 0 U.S.C. § 14 0 1 (2 7 ). State law alo n e, h o w ev er, d o es n o t d ictate w h eth er

a p ro g ram is a f

orm o f seco n d ary ed u catio n —an d

, b y ex ten sio n , w

h eth er it co n stitu tes “ f ree p u b lic ed u catio n .” A s w e h av e ex p lain ed

, h ig h sch oo l d ip lo m a p ro g ram s are p arad ig m atic ex am p les o f s eco n d ary ed u catio n , an d Haw aii is n o t f

ree to reclassif

y th e GED an d CB p ro g ra m s as

n o n seco n d ary

ed u catio n

inan ef f o rt to read th em

o u t o f th e d ef in itio n o f f ree p u b lic ed u catio n

.E.R.K. V

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Hawaii sy stem and the military

, for instance, favor students with conventional high school d iplomas over students with the GED diploma.

T h e DOE urg es that the differences betw e e n “conventional” h ig h schools in H awaii and the Community Schools for Adults a

re so substantial that both school sy stems cannot offer secondary education. The district court made much the same arg ument when it e ntered judg ment in the DOE’s favor: t h e district court held that the GED a nd CB
prog r ams “do not provide the equivalent of a s e c o ndary

s chool education” b ecause the “educational curriculu m , requi r e m e nts, and ex p erience of the adult prog rams a re dramatically different from those of a traditional public hig h school.”

Nothing in the I DEA, however, supports the proposition that a prog ram constitutes “ secondary e ducation” or “free public education” only if it is structurally identical t o the ordinary public hig h s c h o ol c urriculum offered to nondisabled students. The DOE’s brief cites no cases o r statute in support of the interpretation it proposes. I nstead, the DOE ask s u s to c ontrive an atex tual distinction b etween authentic and ersatz secondary education and impose it on the statutory tex t. I t is pa r t i c ularly u nlikely that the I DEA’s definitions incorporate such a distinction because, as w e have noted, the statute construes education b roadly

. See 20 U .S.C. § 1401(29) ( “The term ‘special education’ means specially desig ned instruction, at no cost to parents, to meet the unique needs of a c hild w i t h a disability

, including

. . . instruction conducted in the c lassroom, in the home, in hospit a ls a nd institutions, and in other setting s[

. ] ”) ; s ee also, e.g. , Seattle Sch. D ist., No. 1 v

. B.S.
, 82 F .3d 1493, 1500 (9th Cir. 1 996) (noting that the I D E A reflects a holistic concept o fE.R.K. V

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educati o n a l benefit, including “ the handicapped child’s academic, social, health, emotional, c ommunicative, phy sical and vocational needs” (internal quotation marks omitted ) ). Education f

or hig h-scho o l -ag ed students with d isabilities often differs dramatically from “conventional” secondary education. See, e.g. , Park ex rel. P ark v. Anaheim Union High Sch. Dist.
, 464 F .3d 1025, 1030–31 (9 t h C i r. 2006) (per curiam) (involving an e ducational prog ram for a hig h school student that included a full-time special day c l a ss a nd instruction in “buttoning

, z ippi n g a nd toilet training ”). I n lig ht o f t h e variety o f specializ ed secondary education the I DEA makes available to disabled students, it is simply implausible that the phrase “free public educ ation” in the § 1 4 1 2 ( a ) ( 1 ) ( B) ( i ) e x c e p t i o n r e f e r s n a r r o w l y t o a “conventional” hig h school curriculum. 6

Second, the DOE arg ues that an op i n i on letter f rom the United States D epartment of Education establishes that GED

courses a re not “secondary education.” T h e opinion letter
states that school districts are “not required to provide [I DEA services to] students who h ave left trad i t i o nal secondary education prog rams and entered a GED test preparation
prog r am” unless “the State considers the GED test preparation p rog ram to be a p art of an appropriate secondary

6 W e are also sk ep tical th at th e d i f f eren ces b etw een th e d ip lo m a p ro g ram s are as sig n if

ican t as t h e D O E claim s. T h e reco rd co n t ain s a f lo w ch art, p rep ared b y

th e D OE, w

h ich“ i llu strates th e th ree m eth od s b y

w h ich t h e h ig h sch o o l d ip lo m a m ay b e earn ed .” T h e f lo w ch art s h o w s th at all th ree path s—th e “ Cred it Meth o d,” th e “ GED T es t Meth od ,” an d th e

“ [CB ] Meth o d ”—lead to th e sam e resu lt: a “ Haw aii De p a r t m en t of Ed u catio n Hig h Sc h o o l D ip lo m a.” Su rely th e p ro g ram s’ co m m on ch aracteristic—th at th ey all l ead to “ th e h ig h s ch o o l dip lo m a”

— i s m o re relev an t to th eir s t atu s as “ seco n d ary ed u catio n ” th an d if f eren ces in

cu rricu lu m , stru ctu re, an d rig or.E.R.K. V

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education.” The letter does not alter o u r a naly sis, because E.R.K. is not arg uing that the Community Schools for Adults
must p r o v i de I DEA services. At most, the letter reflects the United States Departmen t o f Education’s view that not all GED preparation prog rams are necessarily part o f an

“ appropriate secondary education.” The letter sheds no lig ht
at all on whether all GED p r e paration prog rams constitute secondary education simpliciter

. B ut we need not broach that question, because we have already decided that H a w a i i’s GED diploma prog ram is unambig uously a prog r a m o f secondary education.

Fi nally

, the DOE arg ues that the I DEA’s definition of “transition services,” which school districts must offer when

a student ag es out o f I DEA elig ibi l i ty , proves that adult education and secondary e ducation a r e mutually ex c lusive. The I DEA defines “transition services” as

a coordinated set of activities for a child with

a d isability that

. . . is focused o n i m p r oving the academic and functional achieveme n t o f the c hild with a disability to facilitate the child’s movement f

rom school to post-school

a c tivities, including post

- s e c o n d a r y e d u c a t i o n , vocational education, integ rated employ ment ( i n c l u d i n g s u

p p o r t e d e m p l o y ment), co n t i n u i n g

a n d a d u l t e d u c a t i o n , a d u l t s e r v i c e s , i n d e p e n d e n t l i v i n g , o r c o m m u n i t y participation . . . .

20 U

. S

. C

. § 1401(34) (emphasis added). The DOE arg ues that, by offering “adult education” as a n ex ample of a “postschool activity ,” the I DEA’s drafters intended to disting uish adult education from secondary e ducation. B ut of course it isE.R.K. V

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s e l f

- evident that “ adult education” and “secondary educati o n ”

are n ot coterminous. H awaii’s adult schools o f fer a dulteducation courses in parenting and sewing

, 7 but it is unlikely that these courses constitute secondary education. The use o f the phrase “adult education” in connection with trans i t i on services does not imply m utual ex clusivity between “adult education” and “secondary education.”

None of the DOE’s arg umen t s s w a y us from our conclusion that the Community Schools f or Adults o ffer “free public education” to students who d o not require I DEA services. The D OE offers, at tax p ay er ex pense, the opportunity for nondisabled 20- and 21-y ear-olds to complete their secondary e ducations and ea r n h i g h school diplomas. Providing I DEA services to disabled childre n of those ag e s would therefore be consistent with “State law or practice

. . . respecting the provision of public education,” s o the state must do so. 20 U.S.C. § 1412(a)(1)(B )(i).

Our conclusion is unchang ed by the d i s t r ict court’s finding that the DOE does not “ u sher” or “steer” nondisabled students into the GED and CB prog rams once they ag e out o f the c onventional h ig h schools. A s the leg i s l at i ve history makes clear, the question i s w h e ther a state “provide[ s] o r

a s sure[ s] the provision of free p ublic education t o

non- [ d i s abled] children.” S. Rep. No. 94-168, 1 442–43. A state’s duty

to educate disabled children until they turn 22 is only ex cused if free public education is foreclosed to disabled

7 See h t t p ://1 6 5 .2 4 8 .6 .1 6 6 /d ata/sch o o l list_ csa.asp (n o tin g th at th e Co m m u n it y S ch o o ls f

o r A d u lts o f

f er “ [h ]o m em ak in g an d p aren tin g ”

co urses”) (last v isited Au g u st 1
, 2 0 1 3 ); h ttp : //w w w .w aip ah u cs.k 1 2 .h i.u s/

co urses/2 0 1 3 /Sum

m er%2 0 20 13 /W CSA %2 0 Su m %2 0 2 0 1 3 .p df (listin g th ree sectio n s o f a co urse called “ Sew in g ”) (last v isited A u g u st 1
, 2 0 1 3 ).E.R.K. V

. S T A T E O F H A W A I I D E P ’ T O F E D U C

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a n d nondisabled students a like. W hether a state e ncourag e s

n o n disabled students to take advantag e of what free publ i c education is available is irrelevant.

I ndeed, thoug h their numbers are small—only 3 .5% of the
g eneral education students affected b y Act 163 between 2010 and 2012 transitioned to an adult diploma prog ram—the fact that any s t u d e n ts a t a ll transitioned directly to the GED a nd CB prog rams after ag ing o u t of the state hig h school sy stem confirms that the state “provides” free public education to 20- and 2 1-y ear-old s

. Those students who made the transition belie t h e district court’s finding that “the GED and CB
prog r ams are not a continuation of a traditional hig h school education.”

B y passing the I D EA, Cong ress inten d e d “ to open the door of public education to all qualified children[ .] ” Ce dar Rapids Cmty. Sch. Dist. v. Garret F. e x rel. Charlene F

. , 526 U .S. 6 6, 78 (1999) (internal quotation marks and citation omitted). I f Hawaii leg islators wish to sh u t t h e door to students once they turn 20, that is their prerog ative—but they
must shut them to all students, r e g a r d less o f d isability

. A ct 163 reinstates the benig hted two-track sy stem that prevailed before the I DEA was p assed, when disabled students were often “totally ex cluded from schools[

. ] ” Bd. o f Educ. of Hendrick Hudson Cent. S ch. Dist., W

estches t e r Cnty. v

. Rowley , 458 U.S. 176, 191 (1982) (internal quotation marks and c i tation omitted). I n Hawaii’s two-track sy stem, nondisabl e d s t u dents between the ag es of 20 and 22 can pursue the diplomas that e luded them in hig h school, but students with special needs are simply out of luck.

The GED and CB prog r ams—unfettered by the oblig ation
t o address the needs of disabled students—are surely m u c hE.R.K. V

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cheaper to operate than a public-school sy stem with a full complement of special-education serv ices. B ut the I DEA stands for the principle that ex clusion is a false econ omy unbefitting a society committed to the complete integ r ation o f its disabled citiz ens.

2. ADA and Rehabilitation Act claim s.

E.R.K. ne x t a rg ues that the district court erred when it ruled in the DOE’s favor o n h i s d i s ability discrimination claims.

To establish a p rima facie c ase o f d isability discrimination under the ADA, a plaintiff must prove:

(1) he is a n individual w ith a disability ; (2) he is otherwise q

u alified to participate in o r receive the benefit o f some publ i c entity ’s services, prog rams, o r activities; (3) he was either ex cluded from p a rticipation in o r denied the b enefits of the p ublic ent i ty ’s services, p r og rams, or activities, or was otherwise discriminated ag ainst by the public entity ; and ( 4) such e x clusion, denial o f benefits, o r discrimination was by reason o f [ his] disability

. McGary v. City of Portland

, 3 86 F .3d 1259, 1265 (9 th Cir. 2004) (alteration in orig inal ) (quoting Thompson v. Davis
, 295 F .3d 890, 895 (9th Cir. 2 002) (per curiam)) ( i n t e r nal quotation marks omitted ). A prima f acie case under the Rehabilitation Act is identical, ex cept that the plaintiff must also prove that the relevant prog ram receives federal financialE.R.K. V

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a s sistance. See Duvall v. Cnty. of Kitsap
, 260 F

. 3d 1124
, 1135 (9th Cir. 2001).

Under b oth statutes, a pla i n t i ff who requires an accommodation to meet a pro g ram’s essential elig ibility requirements can establish the “otherwise qualified” element

o f the prima facie case o nly b y producing “evidence o f t h e

ex istence of a reasonable accommodation

. . . .” See Zukle v

. Regents of the Univ. of Cal.

, 1 6 6 F .3d 1041, 1046–47 (9th Cir. 1999) (emphasis added).

E.R.K.’ s complaint identifies “[ t] he DOE’s provision o f public education” a s the “service, prog ram, or activity ” from which he was alleg edly ex cluded. B ut the only prog rams the DOE provides on a discriminatory basis are the GED and CB adult education prog rams; Act 163 forecloses all other publiceducation prog rams to disabled and nondisabled students alike. Thu s , t h e question is whether the GED a nd CB
prog r ams are available to d isabled individuals “who, w ith o r without r e asonable accommodations, meet the essential elig ibility requirements to p articipa t e .” Pierce v. Cnty. of Orange , 526 F .3d 1190, 1222 (9th Cir. 2008).

E.R.K. did not establish a prima facie case o f d isability discrimination because he failed to p roduce “evidence of the

ex istence of a reasonable accommodation.” Zuk l e , 166 F .3d
at 1047

. E.R.K. did n ot identify chang es to the structure o r curriculum of the Community Schools for Adults that would make them g enerally accessible to d isabled students. I nstead, the accommodation h e proposed was simply that t h e D OE maintain disabled s tudents’ special-education placements

u ntil their twenty -second birthday s. That accommodat i o n would do nothing to help disabled students access th e GED and CB prog r ams. Retaining students in their publicly fundedE.R.K. V

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special-education p lacements mig ht be a reasonable accommodatio n i f E.R.K. were alleg ing that disabled students

are ex cluded from the H awaiian public-education sy stem a s

a whole. B ut the accommoda t i o n would represent a “fundamental” chang e to the Community Schools for Adults in particular—and the DOE is n o t required to make fundamental modifications to accommodate disa b led students. Alexander v. Choate

, 469 U.S. 287, 300 (1985).

Conclusion

Throug h its Community Schools f or Adults, the State of Hawai i o f

fers public education to nondisabled students between the ag es of 20 and 22. As long as it continues to do
so, the I DEA requires the state to continue to p rovide a free and appropriate public education to disabled students w ho h a v e n o t y et obtained the ag e of 22. T he Plaintiffs did n o t , however, prove that the same result is necess a r y as a reasonable a c c ommodation. According ly

, w e affirm the district court’s judg m e nt for the DOE on the ADA a nd Rehabilitation Act claims, and rever se the district court’s judg ment for the DOE on the I DEA claim.

Costs on appeal shall be awarded to Plaintiffs-Appellants.

A F F IRMED in part, REVERSED in p art, a n d REMANDED

.