E.R.K. v. Department of Education

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Case Background

Case Background



Updated June 2017

ERK Lawsuit on Behalf of Young Adults in Special Education Excluded from School before Age 22

The Court closed the class in September 2016. The final list of eligible class members includes approximately 550 former students. We fought the DOE on objections to many class members, and those objections took some time to resolve. The Court has now turned its attention to the delivery of compensatory education to the class members. We are pushing the DOE to begin services soon, and the Court has stated that it wants services to begin this year. Plaintiffs' counsel and the DOE created a questionnaire for class members to fill out seeking information on the types of services class members are currently receiving and the types of services that they wish to receive. This will guide the services that will be offered. Questionnaires were due by February 17, 2017. If you have not completed a questionnaire, please fill one out here.

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

Act 163 unfairly harmed special education students aged 20 and 21.  Hawai`i provides free educational services to non-disabled individuals regardless of their age.  Even if non-disabled students “age out” of high school they are eligible to attend the Community Schools for Adults to continue their secondary education until they receive a high school diploma.  However, these adult schools have no programs or services for special education students, only general education students.  The effect of this is that non-disabled students can receive educational services until they are 22 (and older), but special education students could not. 

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

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

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

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

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

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

We recently conducted brief clarification interviews with a small group of class members and representatives from the DOE to get further details on the types of services the class members would like to receive.

When will class members begin receiving services?
We expect the DOE to begin rolling out offers of services to class members this summer with services beginning before the end of the year.




(808) 949-2922, (808) 441-6268
(800) 882-1057 (Voice/TTY)


Hawaii Disability Rights Center, 1132 Bishop St., Suite 2102
Honolulu, Hawaii  96813