E. K. v. State of Hawaii Department Of

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

E.R.K., by his legal guardian R.K.; No. 12-16063
R.T.D., through his parents R.D. and
M.D.; HAWAI’I DISABILITY RIGHTS D.C. No.
CENTER, in a representative capacity 1:10-CV-00436-
on behalf of its clients and all others DAE-KSC
similarly situated,
Plaintiffs-Appellants,
OPINION
v.

STATE OF HAWAII DEPARTMENT OF
EDUCATION,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Hawaii
David A. Ezra, District Judge, Presiding

Argued and Submitted
June 12, 2013—Honolulu, Hawaii

Filed August 28, 2013

Before: Jerome Farris, Dorothy W. Nelson,
and Jacqueline H. Nguyen, Circuit Judges.

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

SUMMARY*

Individuals with Disabilities Education Act

Affirming in part and reversing in part the district court’s
judgment after a bench trial in a class action, the panel held
that a Hawaii statute violated federal law by establishing an
age limit on public education.

The Hawaii statute, dubbed “Act 163,” barred both
general-education students and students who received special-
education services under the Individuals with Disabilities
Education Act from attending public school after the last day
of the school year in which they turned 20. The plaintiffs
alleged that the state violated the IDEA, the Americans with
Disabilities Act, and the Rehabilitation Act by denying public
education to special-needs students aged 20 to 21 while
offering it, in the form of a network of adult-education
schools called Community Schools for Adults, to students
without special needs. The Community Schools for Adults
were exempt from the strictures of Act 163.

The panel held that Act 163 violated the IDEA, which
restricts the power of states to establish age limits on special-
education eligibility in certain circumstances. In an exception
to these restrictions, 20 U.S.C. § 1412(a)(1)(B)(i) provides
that a state’s duty to provide special education does not
extend to children aged 18 through 21 “to the extent that [the
duty’s] application to those children would be inconsistent
with State law or practice . . . respecting the provision of

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 E.R.K. V. STATE OF HAWAII DEP’T OF EDUC. 3

public education to children in those age ranges.” Referring
to the IDEA’s legislative history, the panel held that
§ 1412(a)(1)(B)(i) meant that Hawaii could not deny special
education to disabled students aged 18 through 21 if it in fact
provided “free public education” to nondisabled students in
that range of ages. The panel concluded that the diploma
programs offered by the Community Schools for Adults
constituted free public education because they were provided
at public expense, under public supervision and direction, and
without charge, and they involved secondary education.
Accordingly, the panel reversed the district court’s judgment
for the State of Hawaii Department of Education on the IDEA
claim.

The panel affirmed the district court’s judgment for the
Department of Education on the plaintiffs’ disability
discrimination claims under the Americans with Disabilities
Act and the Rehabilitation Act, holding that the plaintiffs did
not establish the existence of reasonable accommodations that
would make the Community Schools for Adults generally
accessible to disabled students. The panel remanded the case
to the district court.
4 E.R.K. V. STATE OF HAWAII DEP’T OF EDUC.

COUNSEL

Paul Alston, Alston Hunt Floyd & Ing, Honolulu, Hawaii;
Jason H. Kim (argued), Schneider Wallace Cottrell Brayton
Konecky, LLP, San Francisco, California; Matthew C.
Bassett & Jennifer V. Patricio, Hawai’i Disability Rights
Center, Honolulu, Hawaii, for Plaintiffs-Appellants.

David M. Louie, Carter K. Siu (argued), and Holly T.
Shikada, Department of the Attorney General, Honolulu,
Hawaii, for Defendant-Appellee.

OPINION

NELSON, Senior Circuit Judge:

Are state-funded high school diploma programs for adults
who never graduated from high school a form of “public
education”? 20 U.S.C. § 1412(a)(1)(B)(i). We conclude that
they are. Accordingly, we hold that a Hawaii statute
establishing an age limit on public education violates federal
law, and reverse in part the district court’s entry of judgment
in favor of the Defendant-Appellee.

Background

In 2010, the Hawaii state legislature enacted a law,
dubbed “Act 163,” barring students from attending public
school after the last day of the school year in which they
turned 20:

No person who is twenty years of age or over
on the first instructional day of the school
 E.R.K. V. STATE OF HAWAII DEP’T OF EDUC. 5

year shall be eligible to attend a public school.
If a person reaches twenty years of age after
the first instructional day of the school year,
the person shall be eligible to attend public
school for the full school year.

Haw. Rev. Stat. § 302A-1134(c). The law applies to both
general-education students and students who receive special-
education services under the Individuals with Disabilities
Education Act (“IDEA”), 20 U.S.C. § 1400 et seq.

The State of Hawaii Department of Education (“DOE”)
administers public education in the state. In addition to
conventional public high schools, the agency operates a
network of adult-education schools called the Community
Schools for Adults. DOE materials explain that the
Community Schools for Adults offer “Adult Secondary
Education” in the form of “tuition-free opportunities for
adults and out-of-school youth to earn a high school
diploma[.]” The DOE offers two diploma programs: the
General Education Development (“GED”) program and the
Competency Based program (“CB”).

The GED program prepares students to take the GED test,
a national standardized high school equivalency exam.
Students who achieve adequate scores on the GED test
qualify for a high school diploma if they have also completed
at least one semester of high school work at either an
accredited high school in Hawaii or a Community School for
Adults. A high school diploma earned via the GED program
permits students to seek admission to the University of
Hawaii system.
6 E.R.K. V. STATE OF HAWAII DEP’T OF EDUC.

The CB program is a three-semester life-skills program
designed to help students become “(1) Functionally literate
adults; (2) Productive and contributing citizens/community
members; (3) Effective family members; and (4) Productive
workers.” The program emphasizes skills like household
finance, civic participation, and health maintenance. To
obtain a high school diploma in the CB program, students
must complete all five CB courses, earn adequate scores on
the various CB exams, and complete at least one “Career
Goal,” such as finding a job or completing one credit of work
at an accredited postsecondary institution.

The Community Schools for Adults are exempt from the
strictures of Act 163. Both the GED and CB programs are
open to any student 18 or older who lacks a high school
diploma.1

These adult education programs have sparked litigation
because they do not offer IDEA services to disabled students.
Students who require special-education services to participate
in the classroom cannot pursue diplomas in the Community
Schools for Adults after aging out of public education under
Act 163. But students without special needs can and do
transition directly from Hawaii public high schools to the
Community Schools for Adults.2

1
Sixteen- and seventeen-year-old students are eligible to enroll in the
Community Schools for Adults if they have officially withdrawn from
high school.
2
Between 2010 and 2012, 113 general-education students became
ineligible for high school because of Act 163, and four enrolled in an adult
school.
 E.R.K. V. STATE OF HAWAII DEP’T OF EDUC. 7

Soon after Act 163 became law, four disabled students
and their parents, together with the Hawaii Disability Rights
Center, filed a class-action complaint in federal district court.
The complaint asserted claims under the IDEA, the
Americans with Disabilities Act (“ADA”), and the
Rehabilitation Act, as well as an estoppel claim. The IDEA
claim alleged that Act 163 violated federal law by denying
public education to special-needs students aged 20 to 21
while offering it, in the form of the Community Schools for
Adults, to students without special needs. The claims under
the ADA and Rehabilitation Act alleged that the DOE’s
exclusion of disabled students from adult education
constituted disability discrimination under those statutes. The
estoppel claim is not at issue in this appeal.

The district court certified a class consisting of all
Hawaiian students entitled to special-education services but
made ineligible for public education by Act 163. The
Plaintiffs and the DOE filed cross-motions for summary
judgment. The district court granted summary judgment to
the DOE on the estoppel claim, but denied summary
judgment to both parties on the remaining claims.

The parties then tried the case in a one-day bench trial.
After trial, the district court ruled for the DOE on all three
claims at issue. On the IDEA claim, the court held that Act
163 was consistent with federal law because the Community
Schools for Adults did “not provide the equivalent of a
secondary school education to general education students,”
and because the DOE had no “systemic practice of offering
the same or equivalent education to general education
students who have aged out while eliminating education
services for special education students.” On the ADA and
Rehabilitation Act claims, the court held that the Plaintiffs
8 E.R.K. V. STATE OF HAWAII DEP’T OF EDUC.

had made a prima facie case of disability discrimination, but
did not meet their burden of identifying a reasonable
accommodation that would allow disabled students to benefit
meaningfully from the adult schools. The Plaintiffs3 timely
appealed.

Analysis

1. IDEA claim.

We first must decide whether Act 163 runs afoul of the
IDEA, which restricts the power of states to establish age
limits on special-education eligibility in certain
circumstances. We hold that it does.

The IDEA requires states to provide a “free appropriate
public education” to all children with disabilities residing in
the state “between the ages of 3 and 21, inclusive[.]”
20 U.S.C. § 1412(a)(1)(A). As a result, a student’s eligibility
for IDEA services ordinarily ends on his twenty-second
birthday. See L.A. Unified Sch. Dist. v. Garcia, 669 F.3d 956,
959 (9th Cir. 2012). The statute creates an exception to the
age limit, however. A state’s duty to provide special
education to children with disabilities does not extend to
children aged 3 through 5 or 18 through 21 “to the extent that
[the duty’s] application to those children would be
inconsistent with State law or practice, or the order of any
court, respecting the provision of public education to children
in those age ranges.” 20 U.S.C. § 1412(a)(1)(B)(i).

3
In the remainder of our opinion, we use “E.R.K.” to refer to the class
of Plaintiffs-Appellants as a whole. E.R.K., a class representative, is a
student with autism who was receiving special-education services from the
DOE at Roosevelt High School at the time of trial.
 E.R.K. V. STATE OF HAWAII DEP’T OF EDUC. 9

We have never interpreted this exception to the IDEA’s
default age limit, and the text is not completely pellucid.
What does it mean for the IDEA’s application to students
aged 18 to 21 to be “inconsistent with State law or
practice . . . respecting the provision of public education” in
a state? Id. The corresponding federal regulations are little
help, as they simply reiterate the statutory language in nearly
identical terms:

The obligation to make [a free and appropriate
public education] available to all children
with disabilities does not apply with respect to
. . . [c]hildren aged 3, 4, 5, 18, 19, 20, or 21 in
a State to the extent that its application to
those children would be inconsistent with
State law or practice . . . respecting the
provision of public education to children of
those ages.

34 C.F.R. § 300.102(a).

Happily, the IDEA’s legislative history sheds some light
on the exception’s meaning. See Jonah R. v. Carmona,
446 F.3d 1000, 1005 (9th Cir. 2006) (“If the statute’s terms
are ambiguous, we may use canons of construction,
legislative history, and the statute’s overall purpose to
illuminate Congress’s intent.”). The Senate Report
accompanying the 1975 statute4 that created the exception

4
The legislation was enacted as the Education for All Handicapped
Children Act. See Pub. L. 94-142, 89 Stat. 773 (1975). That legislation
amended an earlier statute, the Education of the Handicapped Act. See
Pub. L. 91-230, 84 Stat. 175 (1970). In 1990, the statute was renamed the
10 E.R.K. V. STATE OF HAWAII DEP’T OF EDUC.

explains that states are free to elect not to provide special
education to disabled students between 18 and 21, but only if
they also elect not to provide “free public education” to
nondisabled students:

This exception with respect to handicapped
children aged three to five and aged eighteen
to twenty-one, inclusive [in 20 U.S.C.
§ 1412(a)(1)(B)(i)] is intended to exempt
states from the provisions of this Act
establishing a timetable for providing a free
appropriate public education in these age
groups in the following circumstances: . . .

(2) where a State does not in fact provide
or assure the provision of free public
education to handicapped children in these
age groups; . . . .

This exception shall not apply in the
following circumstances:

(1) where a state does now in fact provide
or assure the provision of free public
education to non-handicapped children in
these age groups . . . .

S. Rep. No. 94-168, 1442–43 (1975).

In light of this legislative history, we interpret
§ 1412(a)(1)(B)(i) to mean that Hawaii cannot deny special

Individuals with Disabilities Education Act. See Pub. L. 101-476
§ 901(a)(3), 104 Stat. 1103, 1142 (1990).
 E.R.K. V. STATE OF HAWAII DEP’T OF EDUC. 11

education to disabled students aged 18 through 21 if it in fact
provides “free public education” to nondisabled students in
that range of ages.

The fate of Act 163 comes down to whether the diploma
programs offered by the Community Schools for Adults
constitute “free public education.” Act 163 makes some 20-
year-old and all 21-year-old students ineligible for public
education in Hawaii. For disabled students, the Act functions
as an age limit on eligibility for IDEA services. E.R.K. argues
that by providing the GED and CB programs to nondisabled
20- and 21-year-olds, Hawaii offers public education on
unequal terms. The DOE rejoins that the GED and CB
programs are not “free public education” as the IDEA uses
that term, so making them available to nondisabled 20- and
21-year-olds does not beget a concomitant obligation to
publicly educate disabled students of the same ages.

To determine whether the adult-education programs are
“free public education,” we naturally begin with the text of
the IDEA. See Dzyuba v. Mukasey, 540 F.3d 955, 956 (9th
Cir. 2008) (“[W]e construe the meaning of a given word by
reference to the context of a particular statutory regime.”);
see also Brown v. Gardner, 513 U.S. 115, 118 (1994)
(“[T]here is a presumption that a given term is used to mean
the same thing throughout a statute . . . .”). The IDEA does
not offer a statutory definition of “free public education,” but
it does explicitly define the closely related phrase “free
appropriate public education” as “special education and
related services” that:

(A) have been provided at public expense,
under public supervision and direction, and
without charge;
12 E.R.K. V. STATE OF HAWAII DEP’T OF EDUC.

(B) meet the standards of the State
educational agency;

(C) include an appropriate preschool,
elementary school, or secondary school
education in the State involved; and

(D) are provided in conformity with the
individualized education program required
under section 1414(d) of this title.

20 U.S.C. § 1401(9). Once we strip out those aspects of this
definition that clearly relate to the education’s
“appropriateness,” as opposed to its “free” and “public”
character, we are left with a reliable index of what “free
public education” means in § 1412(a)(1)(B)(i). The second
and fourth criteria seem to delineate an education’s
appropriateness. (Surely an education can be both free and
public even if it is inappropriate because it fails to meet state
standards or to conform with an individualized education
program.) We are left with a bipartite definition: a “free
public education” is one that is 1) provided at public expense,
under public supervision and direction, and without charge;
and 2) involves preschool, elementary, or secondary
education.

The first prong of this definition is consistent with the
plain meaning of “free public education.” A “public”
institution is one that is “accessible . . . to all members of the
community” and which “provid[es] services to the people . . .
under some degree of civic or state control.” Webster’s Third
New International Dictionary 1836 (1968). “Free” means
“without charge.” Id. at 905. The second prong of the
definition—that “free public education” means preschool,
 E.R.K. V. STATE OF HAWAII DEP’T OF EDUC. 13

elementary, or secondary education—is not apparent from the
plain meaning of the phrase, but is derived from the IDEA’s
limited scope. Because the IDEA applies only to preschool,
elementary, or secondary education, see 20 U.S.C. § 1401(9),
we do not think § 1412(a)(1)(B)(i) refers to public education
outside those same categories.

The GED and CB programs clearly satisfy the first prong
of the definition. The district court found, and neither party
disputes, that the Community Schools for Adults are provided
at public expense and are free to students. Nor does the DOE
deny that the schools operate under its supervision and
direction as a public agency.

The GED and CB programs also satisfy the second prong
because they are programs of secondary school education.
The DOE’s own officers acknowledge that the GED and CB
high school diploma programs are designed “to ensure that
the graduates are prepared for transitions to post secondary
education[.]” If students are only able to pursue
“postsecondary” education after they earn a high school
diploma in the GED or CB programs, it stands to reason that
those programs constitute “secondary” education. The record
is replete with additional evidence that the DOE considers the
GED and CB programs to offer a secondary education for
adults. A section of the DOE’s website, titled “What are
Community Schools for Adults?”, enumerates the “wide
variety of courses” offered by the adult schools. The second
item reads: “Secondary education . . . courses to complete
your high school graduation requirements.” The DOE’s
characterization of the adult school programs comports with
the common-sense view that high school diploma programs
are quintessentially secondary education, whether they are
offered to teenagers or adults. Cf., e.g., 20 U.S.C. § 9201(3)
14 E.R.K. V. STATE OF HAWAII DEP’T OF EDUC.

(describing the purpose of the Adult Education and Family
Literacy Act of 1998 as “assist[ing] adults in the completion
of a secondary school education”); see also id.
§ 1001(a)(1)–(2) (noting that an “institution of higher
education” is one that “provide[s] a program of education
beyond secondary education” and only accepts students with
secondary-education diplomas).

Our conclusion that the GED and CB programs are a form
of public secondary education is buttressed by the fact that
the Community Schools for Adults meet the IDEA’s
definition of “secondary school.” The IDEA defines
“secondary school” as a

nonprofit institutional day or residential
school, including a public secondary charter
school, that provides secondary education, as
determined under State law, except that it
does not include any education beyond grade
12.

Id. § 1401(27). The record establishes that the Community
Schools for Adults are nonprofit day schools that do not
educate students beyond grade 12; only students who never
graduated from twelfth grade can pursue a GED or CB
diploma. And to the extent that Hawaii law substantively
defines “secondary education” at all, the GED and CB
programs seem to qualify. The state statute defining the
“scope of adult and community education programs offered”
in Hawaii states that “instructional programs shall be
initiated” in various fields, including a program of “secondary
education for those adults who, in youth, left school or for
some reason had their education curtailed and who now
desire to continue their education . . . .” Haw. Rev. Stat.
 E.R.K. V. STATE OF HAWAII DEP’T OF EDUC. 15

§ 302A-433. The GED and CB programs obviously fulfill this
legislative mandate.5

We are therefore persuaded that the Community Schools
for Adults offer “secondary education”—and hence that the
state offers “free public education” to nondisabled students
over 18 and under 22.

The DOE makes three arguments that, in spite of the
statutory text, the Community Schools for Adults do not in
fact offer free public education. First, the DOE urges us to
distinguish “conventional” or “traditional” secondary
education offered in Hawaiian high schools from the less
demanding GED and CB programs. To earn an ordinary high
school diploma, the DOE points out, students must
accumulate 120 credit hours in various academic subjects.
The GED and CB diploma programs are structured
differently. The GED program consists of a series of targeted
preparatory courses in the GED examination subjects, and the
CB program is largely nonacademic, focusing instead on
personal and vocational skill development. The differences
extend to postsecondary opportunities. Both the University of

5
Of course, the fact that the Community Schools for Adults meet the
definition of “secondary schools” under the IDEA does not mean that
Hawaii could comply with the IDEA simply by amending its laws to
exclude adult-education programs from the ambit of “secondary
education.” A state’s definition of “secondary education” determines
whether an institution qualifies as a “secondary school” under the IDEA.
20 U.S.C. § 1401(27). State law alone, however, does not dictate whether
a program is a form of secondary education—and, by extension, whether
it constitutes “free public education.” As we have explained, high school
diploma programs are paradigmatic examples of secondary education, and
Hawaii is not free to reclassify the GED and CB programs as
nonsecondary education in an effort to read them out of the definition of
free public education.
16 E.R.K. V. STATE OF HAWAII DEP’T OF EDUC.

Hawaii system and the military, for instance, favor students
with conventional high school diplomas over students with
the GED diploma.

The DOE urges that the differences between
“conventional” high schools in Hawaii and the Community
Schools for Adults are so substantial that both school systems
cannot offer secondary education. The district court made
much the same argument when it entered judgment in the
DOE’s favor: the district court held that the GED and CB
programs “do not provide the equivalent of a secondary
school education” because the “educational curriculum,
requirements, and experience of the adult programs are
dramatically different from those of a traditional public high
school.”

Nothing in the IDEA, however, supports the proposition
that a program constitutes “secondary education” or “free
public education” only if it is structurally identical to the
ordinary public high school curriculum offered to
nondisabled students. The DOE’s brief cites no cases or
statute in support of the interpretation it proposes. Instead, the
DOE asks us to contrive an atextual distinction between
authentic and ersatz secondary education and impose it on the
statutory text. It is particularly unlikely that the IDEA’s
definitions incorporate such a distinction because, as we have
noted, the statute construes education broadly. See 20 U.S.C.
§ 1401(29) (“The term ‘special education’ means specially
designed instruction, at no cost to parents, to meet the unique
needs of a child with a disability, including . . . instruction
conducted in the classroom, in the home, in hospitals and
institutions, and in other settings[.]”); see also, e.g., Seattle
Sch. Dist., No. 1 v. B.S., 82 F.3d 1493, 1500 (9th Cir. 1996)
(noting that the IDEA reflects a holistic concept of
 E.R.K. V. STATE OF HAWAII DEP’T OF EDUC. 17

educational benefit, including “the handicapped child’s
academic, social, health, emotional, communicative, physical
and vocational needs” (internal quotation marks omitted)).
Education for high-school-aged students with disabilities
often differs dramatically from “conventional” secondary
education. See, e.g., Park ex rel. Park v. Anaheim Union High
Sch. Dist., 464 F.3d 1025, 1030–31 (9th Cir. 2006) (per
curiam) (involving an educational program for a high school
student that included a full-time special day class and
instruction in “buttoning, zipping and toilet training”). In
light of the variety of specialized secondary education the
IDEA makes available to disabled students, it is simply
implausible that the phrase “free public education” in the
§ 1412(a)(1)(B)(i) exception refers narrowly to a
“conventional” high school curriculum.6

Second, the DOE argues that an opinion letter from the
United States Department of Education establishes that GED
courses are not “secondary education.” The opinion letter
states that school districts are “not required to provide [IDEA
services to] students who have left traditional secondary
education programs and entered a GED test preparation
program” unless “the State considers the GED test
preparation program to be a part of an appropriate secondary

6
We are also skeptical that the differences between the diploma
programs are as significant as the DOE claims. The record contains a
flowchart, prepared by the DOE, which “illustrates the three methods by
which the high school diploma may be earned.” The flowchart shows that
all three paths—the “Credit Method,” the “GED Test Method,” and the
“[CB] Method”—lead to the same result: a “Hawaii Department of
Education High School Diploma.” Surely the programs’ common
characteristic—that they all lead to “the high school diploma”—is more
relevant to their status as “secondary education” than differences in
curriculum, structure, and rigor.
18 E.R.K. V. STATE OF HAWAII DEP’T OF EDUC.

education.” The letter does not alter our analysis, because
E.R.K. is not arguing that the Community Schools for Adults
must provide IDEA services. At most, the letter reflects the
United States Department of Education’s view that not all
GED preparation programs are necessarily part of an
“appropriate secondary education.” The letter sheds no light
at all on whether all GED preparation programs constitute
secondary education simpliciter. But we need not broach that
question, because we have already decided that Hawaii’s
GED diploma program is unambiguously a program of
secondary education.

Finally, the DOE argues that the IDEA’s definition of
“transition services,” which school districts must offer when
a student ages out of IDEA eligibility, proves that adult
education and secondary education are mutually exclusive.
The IDEA defines “transition services” as

a coordinated set of activities for a child with
a disability that . . . is focused on improving
the academic and functional achievement of
the child with a disability to facilitate the
child’s movement from school to post-school
activities, including post-secondary education,
vocational education, integrated employment
(including supported employment), continuing
and adult education, adult services,
independent living, or community
participation . . . .

20 U.S.C. § 1401(34) (emphasis added). The DOE argues
that, by offering “adult education” as an example of a “post-
school activity,” the IDEA’s drafters intended to distinguish
adult education from secondary education. But of course it is
 E.R.K. V. STATE OF HAWAII DEP’T OF EDUC. 19

self-evident that “adult education” and “secondary education”
are not coterminous. Hawaii’s adult schools offer adult-
education courses in parenting and sewing,7 but it is unlikely
that these courses constitute secondary education. The use of
the phrase “adult education” in connection with transition
services does not imply mutual exclusivity between “adult
education” and “secondary education.”

None of the DOE’s arguments sway us from our
conclusion that the Community Schools for Adults offer “free
public education” to students who do not require IDEA
services. The DOE offers, at taxpayer expense, the
opportunity for nondisabled 20- and 21-year-olds to complete
their secondary educations and earn high school diplomas.
Providing IDEA services to disabled children of those ages
would therefore be consistent with “State law or practice . . .
respecting the provision of public education,” so the state
must do so. 20 U.S.C. § 1412(a)(1)(B)(i).

Our conclusion is unchanged by the district court’s
finding that the DOE does not “usher” or “steer” nondisabled
students into the GED and CB programs once they age out of
the conventional high schools. As the legislative history
makes clear, the question is whether a state “provide[s] or
assure[s] the provision of free public education to
non-[disabled] children.” S. Rep. No. 94-168, 1442–43. A
state’s duty to educate disabled children until they turn 22 is
only excused if free public education is foreclosed to disabled

7
See http://165.248.6.166/data/schoollist_csa.asp (noting that the
Community Schools for Adults offer “[h]omemaking and parenting”
courses”) (last visited August 1, 2013); http://www.waipahucs.k12.hi.us/
courses/2013/Summer%202013/WCSA%20Sum%202013.pdf (listing
three sections of a course called “Sewing”) (last visited August 1, 2013).
20 E.R.K. V. STATE OF HAWAII DEP’T OF EDUC.

and nondisabled students alike. Whether a state encourages
nondisabled students to take advantage of what free public
education is available is irrelevant.

Indeed, though their numbers are small—only 3.5% of the
general education students affected by Act 163 between 2010
and 2012 transitioned to an adult diploma program—the fact
that any students at all transitioned directly to the GED and
CB programs after aging out of the state high school system
confirms that the state “provides” free public education to 20-
and 21-year-olds. Those students who made the transition
belie the district court’s finding that “the GED and CB
programs are not a continuation of a traditional high school
education.”

By passing the IDEA, Congress intended “to open the
door of public education to all qualified children[.]” Cedar
Rapids Cmty. Sch. Dist. v. Garret F. ex rel. Charlene F.,
526 U.S. 66, 78 (1999) (internal quotation marks and citation
omitted). If Hawaii legislators wish to shut the door to
students once they turn 20, that is their prerogative—but they
must shut them to all students, regardless of disability. Act
163 reinstates the benighted two-track system that prevailed
before the IDEA was passed, when disabled students were
often “totally excluded from schools[.]” Bd. of Educ. of
Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. v.
Rowley, 458 U.S. 176, 191 (1982) (internal quotation marks
and citation omitted). In Hawaii’s two-track system,
nondisabled students between the ages of 20 and 22 can
pursue the diplomas that eluded them in high school, but
students with special needs are simply out of luck.

The GED and CB programs—unfettered by the obligation
to address the needs of disabled students—are surely much
 E.R.K. V. STATE OF HAWAII DEP’T OF EDUC. 21

cheaper to operate than a public-school system with a full
complement of special-education services. But the IDEA
stands for the principle that exclusion is a false economy
unbefitting a society committed to the complete integration of
its disabled citizens.

2. ADA and Rehabilitation Act claims.

E.R.K. next argues that the district court erred when it
ruled in the DOE’s favor on his disability discrimination
claims.

To establish a prima facie case of disability
discrimination under the ADA, a plaintiff must prove:

(1) he is an individual with a disability; (2) he
is otherwise qualified to participate in or
receive the benefit of some public entity’s
services, programs, or activities; (3) he was
either excluded from participation in or
denied the benefits of the public entity’s
services, programs, or activities, or was
otherwise discriminated against by the public
entity; and (4) such exclusion, denial of
benefits, or discrimination was by reason of
[his] disability.

McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir.
2004) (alteration in original) (quoting Thompson v. Davis,
295 F.3d 890, 895 (9th Cir. 2002) (per curiam)) (internal
quotation marks omitted). A prima facie case under the
Rehabilitation Act is identical, except that the plaintiff must
also prove that the relevant program receives federal financial
22 E.R.K. V. STATE OF HAWAII DEP’T OF EDUC.

assistance. See Duvall v. Cnty. of Kitsap, 260 F.3d 1124,
1135 (9th Cir. 2001).

Under both statutes, a plaintiff who requires an
accommodation to meet a program’s essential eligibility
requirements can establish the “otherwise qualified” element
of the prima facie case only by producing “evidence of the
existence of a reasonable accommodation . . . .” See Zukle v.
Regents of the Univ. of Cal., 166 F.3d 1041, 1046–47 (9th
Cir. 1999) (emphasis added).

E.R.K.’s complaint identifies “[t]he DOE’s provision of
public education” as the “service, program, or activity” from
which he was allegedly excluded. But the only programs the
DOE provides on a discriminatory basis are the GED and CB
adult education programs; Act 163 forecloses all other public-
education programs to disabled and nondisabled students
alike. Thus, the question is whether the GED and CB
programs are available to disabled individuals “who, with or
without reasonable accommodations, meet the essential
eligibility requirements to participate.” Pierce v. Cnty. of
Orange, 526 F.3d 1190, 1222 (9th Cir. 2008).

E.R.K. did not establish a prima facie case of disability
discrimination because he failed to produce “evidence of the
existence of a reasonable accommodation.” Zukle, 166 F.3d
at 1047. E.R.K. did not identify changes to the structure or
curriculum of the Community Schools for Adults that would
make them generally accessible to disabled students. Instead,
the accommodation he proposed was simply that the DOE
maintain disabled students’ special-education placements
until their twenty-second birthdays. That accommodation
would do nothing to help disabled students access the GED
and CB programs. Retaining students in their publicly funded
 E.R.K. V. STATE OF HAWAII DEP’T OF EDUC. 23

special-education placements might be a reasonable
accommodation if E.R.K. were alleging that disabled students
are excluded from the Hawaiian public-education system as
a whole. But the accommodation would represent a
“fundamental” change to the Community Schools for Adults
in particular—and the DOE is not required to make
fundamental modifications to accommodate disabled
students. Alexander v. Choate, 469 U.S. 287, 300 (1985).

Conclusion

Through its Community Schools for Adults, the State of
Hawaii offers public education to nondisabled students
between the ages of 20 and 22. As long as it continues to do
so, the IDEA requires the state to continue to provide a free
and appropriate public education to disabled students who
have not yet obtained the age of 22. The Plaintiffs did not,
however, prove that the same result is necessary as a
reasonable accommodation. Accordingly, we affirm the
district court’s judgment for the DOE on the ADA and
Rehabilitation Act claims, and reverse the district court’s
judgment for the DOE on the IDEA claim.

Costs on appeal shall be awarded to Plaintiffs-Appellants.

AFFIRMED in part, REVERSED in part, and
REMANDED.