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IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---oOo---

________________________________________________________________

HAWAIʻI TECHNOLOGY ACADEMY and the DEPARTMENT OF EDUCATION,

STATE OF HAWAIʻI, Appellants-Appellees,

vs.

L.E., Appellee-Appellant,

and

HAWAIʻI CIVIL RIGHTS COMMISSION, Appellee-Appellant.

________________________________________________________________

SCAP-15-0000520

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT

(CAAP-15-0000520; CIV. NO. 14-1-2438-11)

DECEMBER 5, 2017

RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, WILSON, JJ. 

OPINION OF THE COURT BY McKENNA, J.

I. Introduction

This case concerns whether the Hawaiʻi Civil Rights 

Commission (“HCRC”) has jurisdiction under Hawaiʻi Revised 

Electronically Filed

Supreme Court

SCAP-15-0000520

05-DEC-2017

08:06 AM
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Statutes (“HRS”) § 368-1.5 (1993)

1 over claims that a child

(“Student”) was subjected to disability discrimination and 

improper denial of reasonable accommodations and modifications2

to take an on-line grade-level placement examination required of 

homeschooled students applying for entrance to Hawaiʻi Technology 

Academy (“the Academy”) (“HCRC complaint”). The Academy is a 

public charter school within Hawaii’s statewide school district

and is part of the State of Hawaiʻi Department of Education 

(“DOE”).

 

1 HRS § 368-1.5 (1993) provides:

Programs and activities receiving state financial

assistance. (a) No otherwise qualified individual in the 

State shall, solely by reason of his or her disability, be 

excluded from the participation in, be denied the benefits 

of, or be subjected to discrimination by state agencies, or 

under any program or activity receiving state financial 

assistance.

 (b) As used in this section, the term “disability” 

means the state of having a physical or mental impairment 

which substantially limits one or more major life 

activities, having a record of such an impairment, or being 

regarded as having such an impairment.

 (c) As used in this section, “state financial 

assistance” means grants, purchase-of-service contracts, or 

any other arrangement by which the State provides or 

otherwise makes available assistance in the form of funds 

to an entity for the purpose of rendering services on 

behalf of the State. It does not include procurement 

contracts, state insurance or guaranty contracts, licenses, 

tax credits, or loan guarantees to private businesses of 

general concern that do not render services on behalf of 

the State. 

2 Student’s parent, L.E. (“Parent”), asked for a different day Student 

could take the test in a room without other students with the 

assistance of an adult, time for a snack break, to take the test in the 

same manner he had taken the test at home the year prior (with approved 

accommodations of taking the test at home with Parent over a period of 

a few days), or for the school to use test scores from the test taken 

the year prior. 
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We hold the HCRC lacks jurisdiction over the HCRC complaint

because the legislature intended HRS § 368-1.5 to provide the 

HCRC with jurisdiction over disability discrimination claims 

only when Section 504 of the federal Rehabilitation Act of 1973

does not apply, and Section 504 does apply to the HCRC 

complaint. We therefore affirm the circuit court’s final 

judgment. 

II. Background

To provide context, we begin with a brief overview of

federal laws protecting a child’s access to a free appropriate 

public education (“FAPE”) before discussing the factual and 

procedural background in this matter. 

A. Free Appropriate Public Education (“FAPE”)

Both the Individuals with Disabilities Education Act 

(“IDEA”), 20 U.S.C. § 1400, et. seq., (previously known as the 

Education for All Handicapped Children Act), and the 

implementing regulations of Section 504 of the Rehabilitation 

Act of 1973 (“the Act”), 21 U.S.C. § 701, et. seq., 34 C.F.R. 

Part 104, Subpart D, ensure that children with disabilities have

access to a FAPE. The IDEA and the Section 504 regulations

differ, however, regarding what constitutes a FAPE and who is 

entitled to one.
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The “core guarantee” of the IDEA3 is “to ensure that all 

children with disabilities have available to them a [FAPE] that 

emphasizes special education and related services designed to 

meet their unique needs and prepare them for further education, 

employment, and independent living.” 20 U.S.C. § 1400(d)(1)(A). 

Under the IDEA, “special education” means “specially designed 

instruction, at no cost to parents, to meet the unique needs of 

a child with a disability.” 20 U.S.C. § 1401(29). A “child 

with a disability”4 is a child with at least one disability on an 

enumerated list,5 and “who, by reason thereof, needs special 

education and related services.” 20 U.S.C. § 1401(3)(A). A 

“FAPE” means “special education and related services” that, 

among other things, “are provided in conformity with the 

individualized education program [(“IEP”)] required under 

section 1414(d) of this title.” 20 U.S.C. § 1401(9)(D).6 A 

 

3 Fry v. Napoleon Cmty. Schs., 580 U.S. ___, 137 S.Ct. 743, 748 (2017).

4 The IDEA provides a different definition of a “child with a disability” for 

a child aged 3 through 9, which is not applicable to Student. See 20 U.S.C. 

§ 1401(3)(B).

5 The list includes: “intellectual disabilities, hearing impairments 

(including deafness), speech or language impairments, visual impairments 

(including blindness), serious emotional disturbance (referred to in this 

chapter as ‘emotional disturbance’), orthopedic impairments, autism, 

traumatic brain injury, other health impairments, or specific learning 

disabilities.” 20 U.S.C. § 1401(3)(A)(i). See also 34 C.F.R. § 300.8 

(adding “deaf-blindness” and “multiple disabilities” to the list). 

6 The definition of FAPE in the implementing regulations of the IDEA, see 34

C.F.R. § 300.17, is taken directly from the Act, and is therefore not 

separately discussed. See 71 Fed. Reg. 46,582 (Aug. 14, 2006) (discussing 

the regulatory definition of FAPE).
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team comprised of a student’s parents and educators determine a 

student’s IEP. See 20 U.S.C. § 1414(d)(1)(B).

In contrast, Section 504 of the Act generally prohibits 

disability discrimination: “No otherwise qualified individual 

with a disability in the United States . . . shall, solely by 

reason of her or his disability, be excluded from the 

participation in, be denied the benefits of, or be subjected to 

discrimination under any program or activity receiving Federal 

financial assistance . . . .” 29 U.S.C. § 794(a). Thus, 

Section 504 applies to other programs in addition to educational 

institutions. However, because the Act was not intended to be 

self-executing, see, e.g., Cherry v. Mathews, 419 F. Supp. 922, 

924 (U.S.D.C. 1976), relevant federal agencies, such as the U.S. 

Department of Education, were mandated to promulgate regulations 

tailored to the particular recipients of that agency’s programs. 

See Nancy Lee Jones, Section 504 of the Rehabilitation Act of 

1973: Prohibiting Discrimination Against Individuals with 

Disabilities in Programs or Activities Receiving Federal 

Assistance, at 4 (Congressional Research Service 2009),

http://www.llsdc.org/assets/sourcebook/crs-rl34041.pdf; see also

29 U.S.C. § 794(a); 34 C.F.R. § 104.1 (“The purpose of this part 

is to effectuate section 504 of the Rehabilitation Act of 1973 . 

. . .”). 
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Therefore, Section 504 regulations promulgated by the U.S. 

Department of Education contain both general provisions 

prohibiting discrimination, see, e.g., 34 C.F.R. § 104.4(b),7 as 

well as provisions specific to preschool, elementary, and 

secondary education, in Subpart D. See 34 C.F.R. Part 104, 

Subpart D. 

 

7

Under the Section 504 regulations, a recipient of Federal financial 

assistance may not: 

(i) Deny a qualified handicapped person the opportunity to 

participate in or benefit from the aid, benefit, or 

service;

(ii) Afford a qualified handicapped person an opportunity 

to participate in or benefit from the aid, benefit, or 

service that is not equal to that afforded others;

(iii) Provide a qualified handicapped person with an aid, 

benefit, or service that is not as effective as that 

provided to others;

(iv) Provide different or separate aid, benefits, or 

services to handicapped persons or to any class of 

handicapped persons unless such action is necessary to 

provide qualified handicapped persons with aid, benefits, 

or services that are as effective as those provided to 

others;

(v) Aid or perpetuate discrimination against a qualified 

handicapped person by providing significant assistance to 

an agency, organization, or person that discriminates on 

the basis of handicap in providing any aid, benefit, or 

service to beneficiaries of the recipients program or 

activity;

(vi) Deny a qualified handicapped person the opportunity to 

participate as a member of planning or advisory boards; or

(vii) Otherwise limit a qualified handicapped person in the 

enjoyment of any right, privilege, advantage, or

opportunity enjoyed by others receiving an aid, benefit, or 

service.

34 C.F.R. § 104.4(b).
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Subpart D requires, among other things, that each qualified 

handicapped person within the jurisdiction of a public 

elementary or secondary education program or activity receiving 

federal financial assistance be provided a FAPE by that program 

or activity. See 34 C.F.R. § 104.33(a). Under Section 504 

regulations, a FAPE is defined as the “regular or special 

education and related aids and services that . . . are designed 

to meet individual educational needs of handicapped persons as 

adequately as the needs of nonhandicapped persons are met.” 34 

C.F.R. § 104.33(b)(1) (emphasis added). Because Section 504 

regulations define a “qualified handicapped person”8 more broadly 

than a “child with a disability” under the IDEA, children who 

may not be covered by the IDEA may be covered by Section 504. 

In sum, coverage of students under the IDEA may be more 

limited in scope than coverage under Section 504. However, for 

those students who are covered by the IDEA, the IDEA provides 

 

8

A “handicapped person” is “any person who (i) has a physical or mental 

impairment which substantially limits one or more major life activities, (ii) 

has a record of such an impairment, or (iii) is regarded as having such an 

impairment.” 34 C.F.R. § 104.3(j). A “qualified handicapped person” with 

respect to public elementary or secondary educational services, means:

a handicapped person (i) of an age during which 

nonhandicapped persons are provided such services, (ii) of 

any age during which it is mandatory under state law to 

provide such services to handicapped persons, or (iii) to 

whom a state is required to provide a free appropriate 

public education under section 612 of the Education of the 

Handicapped Act[.] 

34 C.F.R. § 104.3(l)(2). 
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broader protections than Section 504 as the IDEA requires that 

specialized instruction “meet the unique needs of a child with a 

disability,” whereas Section 504 requires only that the 

individual educational needs of handicapped persons be met “as 

adequately as the needs of nonhandicapped persons are met.”

Because of the IDEA’s additional protections, providing a FAPE 

under the IDEA meets the standards of providing a FAPE under 

Section 504. See 34 C.F.R. § 104.33(b)(1). 

B. Procedural Safeguards

The IDEA requires local educational agencies that receive 

federal assistance to “establish and maintain procedures in 

accordance” with 20 U.S.C. § 1415 “to ensure that children with 

disabilities and their parents are guaranteed procedural 

safeguards with respect to the provision of a [FAPE] by such 

agencies.” 20 U.S.C. § 1415(a). Specific required procedures 

include, but are not limited to, providing parents an 

opportunity to examine a student’s records, written notification 

to the parents regarding any changes as to how FAPE would be 

provided to a student, and an opportunity for mediation or to 

file a due process complaint notice for an impartial due process 

hearing conducted by the State educational agency. See 

generally 20 U.S.C. § 1415.
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Similarly, the Section 504 regulations pertaining to 

schools also require procedural safeguards:

A recipient that operates a public elementary or 

secondary education program or activity shall establish and 

implement, with respect to actions regarding the 

identification, evaluation, or educational placement of 

persons who, because of handicap, need or are believed to 

need special instruction or related services, a system of 

procedural safeguards that includes notice, an opportunity 

for the parents or guardian of the person to examine 

relevant records, an impartial hearing with opportunity for 

participation by the person’s parents or guardian and 

representation by counsel, and a review procedure.

34 C.F.R. § 104.36. These standards can be met by compliance 

with the procedural safeguards requirements of the IDEA. See

id.

C. Factual Background

Student, who was thirteen years old in 2014, was born with 

Trisomy 21, also known as Down syndrome. Student has mild 

bilateral hearing loss, wears corrective lenses to read, and has

also been diagnosed with Attention Deficit Hyperactivity 

Disorder (“ADHD”), hypotonia (low muscle tone), and dysphagia 

(swallowing disorder). The DOE found Student eligible for 

special education services in 2003.

Student attended the Academy from 2008 to 2012 and received 

special education and related services. In May 2011, Student’s 

IEP team recommended that Student be placed at a public 

elementary school offering daily face-to-face classes, which 

contrasted with the Academy’s hybrid face-to-face and on-line 
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learning environment. Parent challenged that recommendation and 

requested a due process hearing before an impartial hearing 

officer pursuant to the IDEA, 20 U.S.C. § 1415(f)(1)(A), 

(f)(3)(a)(i). Student remained at the Academy for the 2011–2012 

school year during the administrative proceedings. On May 21, 

2012, an administrative hearing officer affirmed the May 2011 

decision by Student’s IEP team. 

Ten days later, on May 31, 2012, the Academy sent Parent a 

letter stating that the Academy would be implementing the May 

2011 IEP and advised Parent to enroll Student at Heʻeia

Elementary, Student’s geographic home school. By letter dated 

June 12, 2012, the Academy notified Parent that Student would no 

longer be able to attend the Academy as of June 18, 2012, the 

Academy’s school-wide withdrawal date. On June 15, 2012, Parent 

hand-delivered to the Academy and the DOE a revocation of her 

consent for special education and related services to Student. 

Parent also sent an e-mail to the Academy and the DOE stating 

that as a consequence of her revocation, she expected Student to 

remain at the Academy as a “regular education student.” 

The Academy, however, withdrew Student from enrollment on June 

18, 2012. 

On June 20, 2012, the same date as Parent’s deadline for 

appealing the administrative hearing officer’s decision, the 
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Academy issued a written notice stating that Student’s special 

education and related services would be terminated upon Parent’s 

receipt of the notice. Parent received the written notice on 

June 22, 2012. By letter dated July 25, 2012, the Academy 

stated that Parent’s revocation of special education and related 

services did not take effect until June 20, 2012, the date of 

the written notice.

Parent then applied Student for enrollment as a general 

education student for the 2012–2013 academic year. Student was 

permitted to take the required grade-level placement test at 

home with Parent over several days in September 2012. Student 

was ultimately waitlisted, and Parent homeschooled Student for 

the 2012-13 school year. 

Parent again applied Student for admission to the Academy 

for the 2013–2014 academic year. Parent requested 

accommodations or modifications to the Academy’s grade-level 

placement test requirement, such as allowing use of the previous 

year’s test scores, allowing Student to take the test at home as 

he had done the previous year, allowing Student to take the test 

alone in a room with an adult, or providing Student additional 

time for a snack break. 

Parent took Student to the Academy campus during scheduled 

test times in May 2013 and July 2013. Parent was informed by 
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the Academy’s director that because Parent had revoked consent 

to the IDEA and the IEP, the Academy would not be able to give 

Student any accommodations or supports. Student was unable to 

complete the test. Specifically, according to Parent, Student 

needed help being focused and directed question by question, but 

he was not given a one-to-one aide during the test. As a 

result, Student was unable to complete the test because he was 

distracted and ended up going on the internet instead. 

According to Parent, Student’s enrollment application was 

discarded as insufficient because he was not able to take the 

test due to his disabilities; his application was therefore not 

processed.

Student was again homeschooled during the 2013–2014 

academic year. In July 2014, when Student would have 

chronologically been a ninth grader, Parent and the Academy 

agreed to enroll Student as a sixth grade general education 

student, where he received some services through a Section 504 

plan. By June 2015, Student was given a new IEP that placed him 

at a different school. Parent thereafter withdrew Student from 

the Academy. 

D. IDEA and Section 504 Claims in United States District Court

Meanwhile, on June 20, 2012, two days after the Academy’s 

schoolwide withdrawal date and the termination date for 
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Student’s special education services based on Parent’s 

revocation of consent, as deemed by the Academy, and after 

exhausting administrative remedies, Parent filed an IDEA

complaint in the United States District Court for the District 

of Hawaiʻi, arguing the May 2012 decision of the administrative 

hearing officer — that Student’s appropriate placement to 

receive a FAPE was at Heʻeia Elementary, not the Academy — should 

be reversed. See Jason E. v. Dep’t of Educ., Civ. No. 12-00354 

ACK-BML. By order dated February 14, 2013, the federal district 

court ruled the complaint moot because Parent had revoked 

consent for Student to continue receiving IDEA special education 

services. However, the court permitted Parent to amend the 

complaint to reflect her intent for Student to be treated as a 

general education student at the Academy. 

Parent filed a first amended complaint on March 19, 2013, 

reflecting that intent. Parent’s May 10, 2013 second amended 

complaint asserted that she revoked consent for the continued 

provision of special education and related services to determine

whether Student would benefit from a general education program 

at the Academy with or without Section 504 reasonable 

modifications. On May 7, 2014, Parent filed a third amended 

complaint, alleging in part: (1) the DOE and the Academy should 

have honored the revocation of consent by treating Student as a 
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general education student and continuing his enrollment at the 

Academy; and (2) the DOE and the Academy violated Section 504 

and Title II of the Americans with Disabilities Act of 1990 when 

Student, by reason of his disability, was released as a student 

and no longer had access to the general education curriculum at 

the Academy. At a hearing before the federal district court, 

Parent clarified that the relief sought was for Student to 

receive a FAPE at the Academy as a general education student. 

By order dated November 20, 2014, the federal district 

court granted the defendants’ motion to dismiss the third 

amended complaint. The court deemed the third amended complaint 

moot because Student was already enrolled as a general education 

student at the Academy and because the Academy had provided

Student a FAPE through a Section 504 Plan. In the alternative, 

on the merits, the court ruled in part that federal regulations

do not expressly require that a disabled student remain at the 

same school after a parent revokes IDEA consent; rather, the 

regulations leave open the possibility that a student may be 

placed in a different school as a general education student. 

The federal district court also concluded Parent only provided 

conclusory statements that the accommodations she requested for 

Student were reasonable or that the Section 504 Plan was 

deficient. 
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E. Pre-complaint Questionnaire and Petition for Declaratory 

Relief

While Student was still being homeschooled during the 2013-

2014 school year after not being able to complete the Academy’s 

placement examination, on January 14, 2014, Parent submitted a 

pre-complaint questionnaire to the HCRC alleging disability 

discrimination based on the Academy’s alleged failure to provide 

reasonable accommodations for the examination. On February 10, 

2014 the HCRC’s Executive Director ruled the HCRC lacked

jurisdiction over Parent’s claim. By letter dated April 21, 

2014, Parent submitted a petition to the HCRC, asserting the 

HCRC has jurisdiction to review her complaint alleging 

disability discrimination when Student’s application to the 

Academy for the 2013–2014 school year was denied based on his 

inability to complete the grade level placement test; Parent

alleged the Academy denied Student reasonable accommodations or 

modifications required based on Student’s disability. On July 

25, 2014, the Executive Director submitted a memorandum in 

opposition. For purposes of addressing jurisdiction, the 

Executive Director assumed that Student was “an otherwise 

qualified individual with a disability and that he was unable to 

complete the required test because of his disability.” The 

Executive Director opined, however, that because publicly funded 

educational institutions are not “public accommodations,” the 
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HCRC lacked jurisdiction under HRS § 368-1 (Supp. 2011).

9 The 

Academy and the DOE also opposed the petition based on lack of 

subject matter jurisdiction. 

The HCRC held an oral argument on August 18, 2014, after 

Student had been re-enrolled at the Academy. Parent focused on

Student’s need to learn effective communication through sign 

language. She explained that the Academy’s grade-level

placement test requires communication skills and the ability to 

be seated, which was something Student could not master. Parent 

argued that despite her revocation of special education and 

related services, Student was entitled to disability 

accommodations and supports during the placement test. 

Parent conceded the Academy had already eliminated its 

grade-level admission test policy and that Student was then 

currently attending the Academy. However, neither the Executive 

Director nor the Academy and DOE argued mootness. Instead, the 

Executive Director focused on the legislative purpose behind HRS 

§ 368-1.5, and argued that for two reasons, it was necessary to 

examine the legislative history of HRS § 368-1.5. According to 

the Executive Director, first, nothing in Chapter 368 defines

 

9 HRS § 368-1 states in relevant part: “The legislature finds and declares 

that the practice of discrimination because of race, color, religion, age, 

sex, including gender identity or expression, sexual orientation, marital 

status, national origin, ancestry, or disability in employment, housing, 

public accommodations, or access to services receiving state financial 

assistance is against public policy.” HRS § 368-1. 
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“program or activity” or “state agency.” Second, as the 

legislature had opted to leave out language from HRS § 368-1.5 

that was present in Section 504, it was unclear whether the 

manner in which Section 504 and its implementing regulations 

define those same terms should apply to HRS § 368-1.5. The 

Executive Director also argued that the legislature did not 

supplant or supplement existing University of Hawaiʻi and DOE 

procedures for handling discrimination claims, and that if the 

HCRC did indeed have jurisdiction over claims such as those in 

the petition, extensive rulemaking would be required to not 

wreak havoc on the current system. 

The Academy and the DOE argued the petition was essentially 

a special education matter under the IDEA. They further argued 

the DOE had extensive administrative rules governing IDEA and 

Section 504 claims, and that HRS § 368-1.5 does not require the 

State to implement Section 504. Counsel also argued that if an

HRS § 368-1.5 violation provided the HCRC with jurisdiction over 

any disability discrimination claim, then language specifically 

identifying the areas of the HCRC’s jurisdiction — employment, 

real estate, and public accommodations — would be superfluous. 

The HCRC decision characterized the dispute as one in which 

Parent sought a disability accommodation for Student, but was 

denied: 
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During the application process, [Parent] sought an 

accommodation from [the Academy] in the form of extra time 

for [Student], who was otherwise qualified for admission to 

[the Academy], to complete a grade-level placement exam. 

[The Academy] denied the requested accommodation, and 

because [Student] did not complete the placement assessment 

in the time provided, [the Academy] denied his application 

for admission.

In its Decision and Order dated October 28, 2014, the HCRC

determined it lacked jurisdiction under HRS § 368-1 over 

Student’s claim regarding the denial of reasonable 

accommodations, as the Academy was not a “place of public 

accommodation.” The HCRC then determined, however, that it

nevertheless had jurisdiction over Parent’s claim under HRS § 

368-1.5, as the Academy was a state agency or a “program or 

activity receiving state financial assistance.” The HCRC

examined the plain language of various sections of Chapter 368, 

and noted HRS § 368-17(a)(3) provides a remedy of “[a]dmission 

of persons to a public accommodation or an educational 

institution,” and ruled the existence of the remedy of admission 

to educational institutions would be absurd without the 

existence of a right under HRS § 368-1.5. Moreover, the HCRC

asserted that if HRS § 368-1.5 did not apply to public schools, 

then families whose children were excluded from or otherwise 

discriminated against by public schools would be unable to file 

complaints of discrimination with the HCRC. Further, according 

to the HCRC, if the HCRC cannot accept the complaint, it cannot 

issue a right to sue letter and if a person cannot get a right 
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to sue letter, she cannot file suit in state court — or in any 

court — to obtain the remedies provided in HRS § 368-17 for the 

discriminatory exclusion.

The HCRC deemed it unnecessary to do so but nevertheless

went on to examine the legislative history of HRS § 368-1.5. It 

asserted that despite the legislature’s intent to model HRS § 

368-1.5 on Section 504, the legislative history of Section 504 

did not bear on the legislative purpose in enacting HRS § 368-

1.5. Rather, according to the HCRC, the legislative history 

behind subsequent amendments to HRS § 368-1.5 reflected the 

legislature’s intent to vest the HCRC with enforcement authority 

over all cases under HRS § 368-1.5, which the HCRC characterized 

as Hawaii’s “Section 504 analog.” 

The HCRC decision did not address whether any federal 

remedies interacted with HRS § 368-1.5 or whether the HCRC’s 

jurisdiction would be affected by federal law or existing DOE 

complaint procedures.

F. Circuit Court Proceedings

The Academy and the DOE timely appealed to the circuit 

court. After the parties submitted their briefs, oral argument 

was held. 

The circuit court reversed the HCRC decision, ruling as 

follows:
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After carefully reviewing the entire record on appeal 

and considering the written submissions and arguments of 

the parties, the Court finds and concludes that pursuant to 

Hawaiʻi Revised Statutes §91-14(g)(2), the Hawaiʻi Civil 

Rights Commission acted in excess of its statutory 

authority and/or jurisdiction under Hawaiʻi Revised Statute 

§368-1.5 by asserting jurisdiction over [Parent’s] 

discrimination claim against the Department of Education 

and Hawaiʻi Technology Academy.

G. The Current Appeal

The HCRC timely filed its notice of appeal with the ICA; 

the appeal was then transferred to this court. The HCRC argues

in its opening brief that public charter schools, such as the 

Academy, are “state agencies” or “programs or activities

receiving state financial assistance” under HRS § 368-1.5. The 

HCRC also argues the legislature did not intend to exclude 

public educational institutions from HRS § 368-1.5’s coverage. 

It asserts HRS § 368-1.5 is the state counterpart to Section 

504, which at the time of § 368-1.5’s enactment covered public 

educational institutions, and which required such institutions 

to make reasonable accommodations. The HCRC emphasizes 

legislative history stating HRS § 368-1.5 was “intended to 

extend the protection provided by Section 504 to State financed 

programs” in the areas of “employment, housing, education, 

access to services, and public accommodations.” (quoting H. 

Stand. Comm. Rep. No. 819, in 1989 House Journal, at 1140 and 

citing an attachment to the testimony of Nancy S. Partika, 

Director of the Governor’s Committee on AIDS). 
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The HCRC also asserts Section 504 does not preempt HRS § 

368-1.5 because nothing in Section 504 prohibits states from 

enacting state laws to prohibit disability discrimination by 

state agencies or state-funded programs and because compliance 

with and enforcement of both Section 504 and HRS § 368-1.5 is

possible. Further, it argues the HCRC would not evaluate the 

content of “pure Section 504 academic special education 

instructional plans and related accommodations.” According to 

the HCRC, its enforcement of HRS § 368-1.5 would only overlap 

with the DOE’s enforcement of non-academic accommodations under 

Section 504. 

The HCRC acknowledges it lacks jurisdiction over student 

complaints under the IDEA and/or accommodations relating to IEPs 

because neither HRS § 368-1.5 nor its legislative history 

indicate it was meant to apply to benefits and programs provided 

under the IDEA. The HCRC argues, however, that there is nothing 

that prevents a student from pursuing remedies under both the 

IDEA and HRS § 368-1.5. The HCRC also observes that there is no 

conflict between HRS § 368-1.5 and statutes governing Hawaiʻi 

public charter schools or the DOE’s administrative rules 

governing its “Civil Rights Policy and Complaint Procedure.” 

The Academy and the DOE concede in their answering brief 

that public charter schools are “state agencies,” but argue HRS 
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§ 368-1.5 does not apply to state agencies that also receive

federal funds. The Academy and the DOE interpret the statement 

in the House Standing Committee Report that “[t]his measure is 

intended to extend the protection provided by Section 504 to 

State financed programs,” to mean that “the Legislature intended 

to provide Section 504-type protections only to those state 

agencies that were not already covered by Section 504.” 

(emphasis added). 

In addition, the Academy and the DOE also note that within 

the educational context, there is no bright line distinction 

between a “non-academic” and “academic” modification, 

accommodation, or service, because the failure to provide a 

student with a necessary modification, accommodation, or service 

pursuant to Section 504 directly impacts the student’s ability 

to receive a FAPE.

III. Standards of Review

A. Interpretation of a Statute

Statutory interpretation is a question of law reviewable de

novo. See Citizens Against Reckless Dev. v. Zoning Bd. of 

Appeals, 114 Hawaiʻi 184, 193, 159 P.3d 143, 152 (2007) (citation 

omitted). When construing statutes, the court is governed by 

the following rules:

First, the fundamental starting point for statutory 

interpretation is the language of the statute itself. 

Second, where the statutory language is plain and 
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unambiguous, our sole duty is to give effect to its plain 

and obvious meaning. Third, implicit in the task of 

statutory construction is our foremost obligation to 

ascertain and give effect to the intention of the 

legislature, which is to be obtained primarily from the 

language contained in the statute itself. Fourth, when 

there is doubt, doubleness of meaning, or indistinctiveness 

or uncertainty of an expression used in a statute, an 

ambiguity exists.

When there is ambiguity in a statute, the meaning of 

the ambiguous words may be sought by examining the context, 

with which the ambiguous words, phrases, and sentences may 

be compared, in order to ascertain their true meaning. 

Moreover, the courts may resort to extrinsic aids in 

determining legislative intent, such as legislative history, 

or the reason and spirit of the law.

114 Hawaiʻi at 193-94, 159 P.3d at 152-53 (citations omitted).

B. Administrative Agency Appeals

Ordinarily, deference will be given to decisions of 

administrative agencies acting within the realm of their 

expertise. The rule of judicial deference, however, does 

not apply when the agency’s reading of the statute 

contravenes the legislature’s manifest purpose. 

Consequently, we have not hesitated to reject an incorrect 

or unreasonable statutory construction advanced by the 

agency entrusted with the statute’s implementation.

Coon v. City & Cnty. of Honolulu, 98 Hawaiʻi 233, 245, 47 P.3d 

348, 360 (2002) (citations and brackets omitted).

IV. Discussion

A. Preliminary Issues

Preliminarily, we note that Student was admitted to and reenrolled at the Academy for the 2014–2015 academic year. Parent 

subsequently voluntarily withdrew Student by July 2015. 

Possible mootness was not, however, argued by the Academy or 

DOE. In any event, the question of whether the HCRC has 

jurisdiction over the HCRC complaint is one that affects the 
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public interest and is “capable of repetition yet evading 

review.” Okada Trucking Co. v. Bd. of Water Supply, 99 Hawaiʻi

191, 196, 53 P.3d 799, 804 (2002) (citations omitted). 

Accordingly, even if mootness had been raised, the 

jurisdictional question raised presents an exception to the 

mootness doctrine and we proceed to address the issue.

HCRC asserts that provision of services to the disabled for 

school placement examinations is a “non-academic” accommodation 

over which it has jurisdiction under HRS § 368-1.5. Whether an 

accommodation is “academic” or “non-academic,” as those terms 

are used by the HCRC, may not affect whether that accommodation 

is necessary to a FAPE under Section 504. For example, the HCRC 

provides the following illustrations of “non-academic” 

accommodations: “if a public high school student with a mobility 

impairment requested additional time to get to his or her next 

class,” “if a child needs a ramp,” or “if a child . . . needs 

materials in large print.” These accommodations, however, also 

relate to the provision of a FAPE under Section 504, and 

therefore concern a student’s education or academics. See 34 

C.F.R. § 104.33(b)(1) (defining a FAPE under Section 504 as the 

“regular or special education and related aids and services that 

. . . are designed to meet individual educational needs of 

handicapped persons as adequately as the needs of nonhandicapped 
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persons are met.”). Thus, it is not clear whether the 

distinction made by the HCRC has merit. In any event, based on 

the analysis in the next section, any distinction along these 

lines is irrelevant.

B. The legislature intended for HRS § 368-1.5 to apply to 

schools only when Section 504 is inapplicable. 

We hold that based on the following analysis of the 

legislative history of HRS Chapter 368 and HRS § 368-1.5, the 

legislature did not intend the HCRC to have jurisdiction over 

disability discrimination claims if Section 504 protections are 

applicable. In this case, because Section 504 protections apply

to the HCRC complaint, the HCRC lacks jurisdiction. 

1. Formation of the HCRC 

The HCRC was formed by Act 219 of 1988 to “establish a 

civil rights commission to enforce the State’s laws which 

prohibit discrimination on the basis of race, color, religion, 

age, sex, marital status, national origin, ancestry, physical 

handicap, or medical condition in employment, housing, or public 

accommodation.” H. Stand. Comm. Rep. No. 387-88, 1988 House 

Journal, at 991. The legislature explained the need for a 

commission focused solely on discrimination complaints: 

Presently, statutorily mandated enforcement

responsibilities for the State’s discrimination laws are 

divided primarily among several agencies within the 

department of labor and industrial relations and the 

department of commerce and consumer affairs. Enforcement 

of discrimination laws is only one of many other important 
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functions of these departments and the enforcement programs 

must compete with other departmental programs for priority 

status. Typically, the enforcement agencies are hampered 

in their delivery of services because of limited fiscal and 

personnel resources.

H. Stand. Comm. Rep. No. 660-88, 1988 House Journal, at 1081; 

see Conf. Comm. Rep. No. 165-88, in 1988 House Journal, at 845, 

1988 Senate Journal, at 717. Act 219 created HRS Chapter 368 

and the “General Provisions” governing the HCRC (now Part 1 of 

Chapter 368). See 1988 Haw. Sess. Laws Act 219, § 1 at 386-88. 

The General Provisions included HRS § 368-1 (Purpose and 

intent), HRS § 368-2 (Civil rights commission established), HRS 

§ 368-3 (Powers and functions of commission), HRS § 368-4 

(Records; reporting requirements), and HRS § 368-5 (Penalties). 

See id.

Act 219 directed the State Legislative Auditor to “conduct 

a review of all state discrimination laws and the current 

policies, procedures, and staffing of the respective state 

departments and agencies” and report to the legislature with its 

findings and recommendations. 1988 Haw. Sess. Laws Act 219, § 3 

at 388. 

2. 1989 Amendments through Act 386

In early January 1989, the State Legislative Auditor 

submitted a report to the Governor and the legislature entitled, 

“A Study on Implementation of the Civil Rights Commission for 

the State of Hawaii.” The report provided an initial analysis 
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of the HCRC and made several recommendations for creating a 

uniform procedure for enforcement. The legislature then passed 

Act 386 “to implement Chapter 368, Hawaii Revised Statutes, 

which created a civil rights commission to provide a uniform 

procedure for handling all types of discrimination complaints, 

to provide funding[] and staffing authorization necessary for 

the civil rights commission to begin operations as intended by 

the 1988 Legislature, and to more effectively enforce the 

State’s discrimination laws.” H. Stand. Comm. Rep. No. 1064, 

1989 House Journal, at 1226. 

Act 386 amended HRS Chapter 378 (Employment Practices), HRS 

Chapter 489 (Discrimination in Public Accommodations), and HRS 

Chapter 515 (Discrimination in Real Property Transactions) to 

give the HCRC authority to handle discrimination complaints 

under those chapters. See 1989 Haw. Sess. Laws Act 386, §§ 2-4, 

8-26 at 1105-13. HRS §§ 368-2, -3, and -4 were amended to 

reflect this new authority. See 1989 Haw. Sess. Laws Act 386, §

5-7 at 1106-07. 

Act 386 also created “Remedies” for the HCRC (now Part II

of Chapter 368), including HRS § 368-11 (Complaint against

unlawful discrimination); HRS § 368-12 (Notice of right to sue); 

HRS § 368-13 (Investigation and conciliation of complaint); HRS 

§ 368-14 (Commission hearings); HRS § 368-15 (Compliance 
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review); HRS § 368-16 (Appeals; de novo review; procedure); and 

HRS § 368-17 (Remedies). See 1989 Haw. Sess. Laws Act 386, § 1 

at 1102-05. 

3. 1989 Amendments through Act 387 

In 1989, the legislature also passed Act 387. Act 387 

added “access to services” to the purpose and intent under HRS § 

368-1: “The legislature finds and declares that the practice of 

discrimination because of race, color, religion, age, sex, 

marital status, national origin, ancestry, or handicapped status 

in employment, housing, public accommodations, or access to 

services receiving state financial assistance is against public 

policy.” 1989 Haw. Sess. Laws Act 387, § 1 at 1114.

Act 387 also added what is now codified as HRS § 368-1.5,

the subject of this appeal, using language very similar to 

Section 504: 

(a) No otherwise qualified individual in the [S]tate shall, 

solely by reason of his or her handicapped status, be 

excluded from the participation in, be denied the benefits 

of, or be subjected to discrimination by State agencies, or 

under any program or activity receiving State financial 

assistance.

(b) As used in this section, the term “handicapped status”

means the state of having a physical or mental impairment 

which substantially limits one or more major life 

activities, having a record of such an impairment, or being 

regarded as having such an impairment.

(c) As used in this section, “State financial assistance”

means grants, purchase-of-service contracts, or any other 

arrangement by which the State provides or otherwise makes 

available assistance in the form of funds to an entity for 

the purpose of rendering services on behalf of the State. 

It does not include procurement contracts, state insurance 

or guaranty contracts, licenses, tax credits, or loan 
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guarantees to private businesses of general concern that do 

not render services on behalf of the State.

1989 Haw. Sess. Laws Act 387, § 2 at 1114-15. 

a. Standing Committee Reports on Act 387

The Senate Standing Committee Report contains little 

discussion regarding the intended scope of the HCRC’s 

jurisdiction under HRS § 368-1.5, but does clarify that Act 387 

was not meant to extend to private businesses receiving no state 

funding. See S. Stand. Comm. Rep. No. 1326, 1989 Senate 

Journal, at 1304. The House Standing Committee Report, however,

elucidates that Act 387 was intended to provide the HCRC with 

jurisdiction only in areas not covered by Section 504: 

The purpose of this bill is to extend civil rights 

guarantees to handicapped individuals impacted by programs 

receiving state funds. . . . Additionally, the practice of 

discrimination in access to public services is added to the 

list of acts declared to be contrary to public policy. 

Your Committee received favorable testimony from the 

Governor’s Committee on AIDS, the State Planning Council on 

Developmental Disabilities, the Hawaii Center for 

Independent Living, the Department of Health and the 

Commission on the Handicapped. 

Your Committee finds that Section 504 of the Federal 

Rehabilitation Act prohibits discrimination under any 

program or activity receiving federal financial assistance. 

This measure is intended to extend the protection provided 

by Section 504 to State financed programs, and establishes 

investigation and enforcement mechanisms within the State 

Civil Rights Commission. 

H. Stand. Comm. Rep. No. 819, 1989 House Journal, at 1140. 

The concern identified in the report is the lack of 

“protection provided by Section 504 to State financed programs.” 

Additionally, nothing in the report indicates that State 
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protection is needed for federally funded programs. Therefore, 

“extend” can only mean to provide coverage to, and was not meant 

to also encompass federally funded programs already subject to 

Section 504. The testimony cited to in the report also reflects 

this understanding of the Act. See infra Part IV.B.3.b.. 

b. Testimony regarding Act 387

The House Judiciary Committee, the House Committee on 

Health and Human Services, and the Senate Judiciary Committee 

received testimony regarding H.B. 932, later enacted as Act 387. 

All of the testimony was in support of H.B. 932. Much of the 

testimony demonstrated a basic understanding that H.B. 932 would 

“extend” the protection provided by Section 504, and would only 

apply when Section 504 did not. The testimony conflicts with 

the HCRC’s interpretation that the legislature intended to 

create “Hawaii’s § 504 analog” that would also encompass Section 

504 claims. 

For example, testimony from the Director of the Governor’s 

Committee on AIDS, relied on by the HCRC to support its 

position, stated: 

Currently, Section 504 prohibits discrimination under any 

program or activity receiving federal financial assistance. 

This applies to all State government programs, and to 

private agencies receiving federal funds through a State 

program, as well as to private agencies receiving federal 

funds directly from the federal government. It is not 

clear, however, that private agencies receiving only State 

financial assistance are subject to the nondiscrimination 

provisions of Section 504. State contracts using solely 

State funds do not include the nondiscrimination language 
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of Section 504. HB 932, HD 1 will clearly extend the 

concept of not tolerating discrimination by reason of 

handicap to any program receiving State funds, and 

establishes investigation and enforcement mechanisms at the 

State level.

(emphases added). 

 

The Director’s comment that “[i]t is not clear . . . that 

private agencies receiving only State financial assistance are 

subject to the nondiscrimination provisions of Section 504” is 

critical to understanding the testimony’s use of “extend.”

The concern regarding lack of remedies against state 

agencies or programs and activities that do not receive federal 

funds (and therefore not subject to Section 504) was reiterated 

in testimony to House and Senate Committees from multiple 

parties. For example, as the Department of Health testified 

before the Senate Committee: 

We note that programs and activities of the State and 

of other agencies which receive Federal financial 

assistance currently must provide services or opportunities 

without excluding people also on the basis of their race, 

color, national origin, or age, in addition to handicap. 

For some, sex is also a protected factor.

The creation of Chapter 368 last year clearly 

indicated that it is against public policy to discriminate 

because of race, color, religion, age, sex, marital status, 

national origin, ancestry, handicapped status, or medical 

condition in employment, public accommodations, and 

housing. . . . 

Therefore, we propose that HB 932, HD 2, be amended 

to clarify and reflect this public policy in State programs 

and activities and in programs and activities receiving 

State financial assistance. . . . 

In other testimony before the House Judiciary Committee, the 

Department of Health stated, “We support these extensions.” 
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Similarly, before the House Health and Judiciary Committees, the 

Department of Health explained, “The additions use the phrasing 

found in Section 504 of the federal Rehabilitation Act of 1973 

and in Section 504 implementing regulation. As such we are 

familiar with its meaning and agree that it would be a 

significant addition to the protections against discrimination.” 

(emphasis added). 

As another example, the Protection and Advocacy Agency of 

Hawaii’s testimony stated, “According to 29 U.S.C [§] 794, 

individuals with handicapping conditions shall not be 

discriminated against because of their handicap in services, 

programs or activities receiving Federal financial assistance. 

This bill would ensure the same guarantees to disabled 

individuals in all programs and services receiving state 

financial assistance.” (emphasis added). The ACLU of Hawaii’s 

testimony echoed this view: “[A]s state government increasingly 

contracts for services with private agencies, there are an 

increasing number of agencies that do not receive any federal 

funds but whose programs are funded in large part by state 

grants.” So, too, did the testimony by the Commission on the 

Handicapped: 

The federal [Section 504] law applies to programs and 

activities which receive federal financial assistance and 

precludes those programs and activities from discriminating 

against qualified handicapped individuals. . . . 
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We believe that it is of prime importance for the 

State of Hawaii to demonstrate the same commitment to 

equality for persons with disabilities by adopting similar 

language in State law. This law would bind recipients of 

state financial assistance to the same standards as current 

recipients of federal financial assistance.

In sum, this testimony reflects the House Committee 

Report’s intention that Act 387 was meant to provide protection 

for disability discrimination only when federal Section 504

protections did not apply. There is no mention of providing 

overlapping jurisdiction between Act 387 and Section 504 or 

offering an additional state remedy to those who are already 

protected by Section 504.

4. 1991 Amendments through Act 252

Act 252 of 1991 clarified the provisions of Chapter 368 

that relate to contested case hearings and appeal procedures, 

explaining: 

The legislature has established the Hawaii civil rights 

commission to create a mechanism which would provide a 

uniform procedure for the enforcement of the state’s laws

prohibiting discrimination in employment, housing, and 

public accommodations. The legislature finds that in 

implementing its legislative mandate, there are ambiguous 

and inconsistent provisions.

1991 Haw. Sess. Laws Act 252, § 1 at 549. Act 252 was not 

intended to substantively change chapter 368 or increase or 

decrease the rights provided under HRS chapters 489 and 515 and 

part I of chapter 378. See id.
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5. The above legislative history shows that HRS § 368-1.5 

was intended to be gap-filling.

 

This legislative history demonstrates the legislature 

intended HRS § 368-1.5 to provide the HCRC with jurisdiction 

over disability discrimination complaints only when federal 

protections under Section 504 do not apply. The committee 

reports and testimony regarding Act 387 were concerned with 

scenarios in which disabled individuals lacked legal protections 

from discrimination, but that concern is not present where 

Section 504 applies. Moreover, there is no suggestion in the 

legislative history that the legislature wanted to provide an 

alternative state remedy in situations where federal remedies 

already existed. In other words, HRS § 368-1.5 was designed to 

be gap-filling, rather than to offer overlapping state and 

federal protection against disability discrimination. 

Based on the legislative history, we infer the legislature 

intended to extend this gap-filling protection to “state 

agencies” in addition to “any program or activity receiving 

state financial assistance.” HRS § 368-1.5. By 1989, when Act 

387 was enacted, it was clear that Section 504 applied to any 

entity receiving federal funding, including state agencies. 

Thus, the same rationale for extending Section 504 protections 

would apply to state agencies not receiving federal funding. 
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This interpretation of HRS § 368-1.5 is also compatible 

with the inclusion of language regarding “[a]dmission of persons 

to . . . an educational institution” in HRS § 368-17(a)(3). HRS 

§ 368-17 provides remedies for all of the enumerated types of 

discrimination in HRS § 368-1, not just disability. 

Accordingly, the HCRC’s assertion that the remedy in HRS § 368-

17(a)(3) would be superfluous if it did not imply that HRS § 

368-1.5 provides coverage to educational institutions receiving 

both federal and state financial assistance, lacks merit. 

Without HRS § 368-17(a)(3), a person who is denied admission to 

a school on the basis of race, color, religion, age, etc., would 

be without a remedy. Thus, contrary to the HCRC’s position, HRS 

§ 368-17(a)(3) is not superfluous.

10

We conclude HRS § 368-1.5 was intended to be a gap-filling 

measure. Here, Parent’s petition asserts that when Student took 

the 2013 grade-level placement exam, Student was deprived of 

accommodations or modifications that would have allowed him to 

take the same test given to nonhandicapped students, which is 

subject to Section 504. See 34 C.F.R. § 104.33(a), (b)(1)

(stating that a child with a disability is entitled to “regular 

 

10 Because the issue is not before us, we do not address whether HRS § 368-

1.5 provides the HCRC with jurisdiction over disability discrimination claims 

against educational institutions when Section 504 does not apply, such as 

state agencies not receiving federal funding that may provide educational 

services or private schools receiving state financial assistance that do not 

receive federal funds.
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or special education and related aids and services that . . . 

are designed to meet individual educational needs of handicapped 

persons as adequately as the needs of nonhandicapped persons are 

met”). Accordingly, the HCRC lacks jurisdiction over the 

petition because the Academy is administered by the DOE, which 

receives federal funds and is therefore subject to Section 504.11 

V. Conclusion

For the foregoing reasons, we hold the HCRC lacks 

jurisdiction over the Petition. We therefore affirm the circuit 

court’s Final Judgment dated July 6, 2015, entered pursuant to 

its July 6, 2015 “Order Reversing the Hawaiʻi Civil Rights 

Commission’s Decision and Order, Filed October 28, 2014.” 

Livia A. Wang and Lowell K.Y. /s/ Mark E. Recktenwald

Chun-Hoon for appellant 

Hawaiʻi Civil Rights Commission /s/ Paula A. Nakayama

Douglas S. Chin, Holly T. /s/ Sabrina S. McKenna

Shikada, Carter S. Siu, and

Gregg M. Ushiroda for /s/ Richard W. Pollack

appellees Hawaiʻi Technology

Academy and the Department of /s/ Michael D. Wilson 

Education, State of Hawaiʻi 

 

 

11 The Academy and the DOE had also argued before the HCRC and the circuit 

court that the HCRC lacked jurisdiction over L.E.’s petition because the 

petition was essentially a special education matter under the IDEA. That 

argument was not specifically addressed below, and the issue is not now 

before this court. In any event, the U.S. Supreme Court has already issued 

some guidance for analyzing whether the gravamen of a complaint seeks relief 

for the denial of a FAPE. See Fry v. Napoleon Cmty. Schs., 580 U.S. ___, 137 

S.Ct. 743, 748 (2017).