K.L. v. RI Board of Education

United States Court of Appeals
For the First Circuit

No. 17-1517

K.L., THROUGH HER PARENT L.L. ON BEHALF OF A CLASS OF THOSE
SIMILARLY SITUATED

Plaintiff, Appellant,

v.

RHODE ISLAND BOARD OF EDUCATION; BARBARA S. COTTAM,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

[Hon. William E. Smith, Chief U.S. District Judge]

Before

Lynch and Lipez, Circuit Judges,
Ponsor, District Judge.

Jason H. Kim, with whom Sonja L. Deyoe and Paul Aston were on
brief, for appellant.
Paul Sullivan for appellees.

October 29, 2018


Of the District of Massachusetts, sitting by designation.
 LIPEZ, Circuit Judge. This case involves the alleged

failure of Rhode Island to provide a free appropriate public

education ("FAPE") to qualified students with disabilities, as

required by the Individuals with Disabilities Education Act

("IDEA"). Specifically, K.L., through her parent L.L., and on

behalf of a certified class of those similarly situated, asserts

that Rhode Island violates the IDEA because it provides "public

education" to individuals without disabilities between the ages of

21 and 22, but does not provide special education services to

qualifying individuals with disabilities of the same age.

At the core of this dispute is the meaning of "public

education" in a section of the IDEA specifying that a state need

not provide FAPE to qualified students aged 18 through 21 if doing

so "would be inconsistent with State law or practice . . .

respecting the provision of public education." 20 U.S.C.

§ 1412(a)(1)(B)(i). The IDEA does not define "public education,"

and we have not previously interpreted the phrase. The district

court concluded that the adult education programs Rhode Island

provides to non-disabled students beyond the age of 21 do not

constitute "public education" within the meaning of the IDEA, and,

therefore, Rhode Island does not discriminate against students

with disabilities by failing to provide FAPE to qualifying students

of the same age.

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 We disagree with the district court's narrow

interpretation of the term "public education." Accordingly, we

vacate the decision of the district court and remand the case for

entry of judgment in favor of K.L. and for remedial proceedings

consistent with this opinion.

I. Procedural History

K.L.'s original complaint and amended complaint were

filed on her own behalf and on behalf of a class of those similarly

situated. The district court granted K.L.'s motion for

certification of a statewide class that includes

[a]ll individuals who were over 21 and under 22 within
two years before the filing of this action or will turn
21 during the pendency of this action who are provided
or were provided a FAPE under the IDEA by any [Local
Education Agency] in the State of Rhode Island and who,
but for turning 21, would otherwise qualify or would
have qualified for a FAPE until age 22 because they have
not or had not yet earned a regular high school diploma
("the Class").

Following certification, the parties filed cross-motions for

summary judgment. The district court determined that the only

significant factual dispute concerned "the degree of public

supervision the Rhode Island Department of Education ("RIDE")

exercises over the state's adult education programs." Concluding

that this dispute was immaterial to the scope of the term "public

education," the court granted summary judgment for appellees on

the basis of its holding that Rhode Island's "adult education"

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services do not qualify as "public education" within the meaning

of the IDEA.

In this appeal, K.L. argues that, for purposes of the

IDEA, "public education" includes the adult education services

Rhode Island provides to persons up to age 22. Accordingly, she

argues that the IDEA obliges the state to provide FAPE to students

with disabilities up to age 22, which Rhode Island does not

currently do.

We review de novo the district court's ruling on the

parties' cross-motions for summary judgment. See AES P.R., L.P.

v. Trujillo-Panisse, 857 F.3d 101, 110 (1st Cir. 2017). In

assessing the competing views of Rhode Island's obligation, we

begin by determining the meaning of "public education" as used in

the IDEA. We then consider whether Rhode Island's adult education

services constitute "public education" within that meaning.

II. The Individuals with Disabilities Education Act

A. The Meaning of "Public Education"

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). Pursuant to this

mandate, all students "who are [otherwise] eligible for special

education services are entitled to continue receiving those

services until they turn twenty-two." L.A. Unified Sch. Dist. v.

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Garcia, 669 F.3d 956, 959 (9th Cir. 2012); see also St. Johnsbury

Acad. v. D.H., 240 F.3d 163, 168-69 (2d Cir. 2001).

Notwithstanding this general requirement, the IDEA permits an

exception to the applicable age range: "[t]he obligation to make

a free appropriate public education available to all children with

disabilities does not apply with respect to children . . . [aged]

18 through 21 in a State to the extent that its 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 [such] children[.]" 20 U.S.C. § 1412(a)(1)(B)(i).

In assessing the meaning of the phrase, "inconsistent

with State law or practice," the Ninth Circuit examined the IDEA's

legislative history. See E.R.K. ex rel. R.K. v. Haw. Dep't of

Educ., 728 F.3d 982, 986–87 (9th Cir. 2013). Citing the Senate

Report accompanying the 1975 statute that first created the

exception, the Ninth Circuit held that § 1412(a)(1)(B)(i) means

that a state may only deny FAPE to students with disabilities ages

18 through 21 to the extent it also abstains from providing "public

education" to students without disabilities of the same ages. See

id. at 987 (quoting S. Rep. No. 94–168, 1975 U.S.C.C.A.N. 1425,

1442–43 (1975) (explaining that the "exception shall not apply

. . . where a state does now in fact provide or assure the

provision of free public education to non-handicapped children in

these age groups")). We agree with this interpretation of

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§ 1412(a)(1)(B)(i). Appellees do not challenge it. Therefore, a

state's provision of "public education" for students from age 18

through age 21 triggers the IDEA's § 1412(a)(1)(A) FAPE mandate

for students with disabilities in the same age range.

The IDEA, however, does not include "public education"

among the three dozen terms for which the statute provides

definitions. See 20 U.S.C. § 1401. We infer from that absence

Congress's recognition that "public education" has a commonly

understood meaning accessible to courts if they must resolve

disputes involving the meaning of that phrase. See United States

v. Chuong Van Duong, 665 F.3d 364, 366 (1st Cir. 2012) ("We assume

that the words that Congress chose to implement its wishes, if not

specifically defined, carry their ordinary meaning and accurately

express Congress's intent." (quoting Boivin v. Black, 225 F.3d 36,

40 (1st Cir. 2000)); In re Hill, 562 F.3d 29, 32 (1st Cir. 2009)

(same). Appellees agree that the term "public education" should

"carr[y] its ordinary meaning," and, indeed, this ordinary meaning

assumption is a rule of necessity. Faced with a case that turns

on the meaning of an undefined statutory term, we cannot decline

to decide the lawsuit because Congress failed to provide a

definition. Instead, we draw on our awareness of ordinary usage,

as Congress would have understood it.

We begin with the two core attributes of "public

education" that are undisputed: (1) a significant level of state

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or local governmental funding, and (2) the public administration

or oversight of the educational services. Although appellees

advocate for a narrower conception of "public education" under the

IDEA, see infra Section II.B, they acknowledge that "public

education" is education that is "subject to and meeting state

standards" and provided "at public expense."

The view that "public education" is commonly understood

to involve government funding and administration or oversight is

confirmed by our review of multiple dictionary definitions.

Although dictionaries are not dispositive in interpreting

statutory language, they provide useful guidance on the common

meaning of words and phrases. United States v. Lachman, 387 F.3d

42, 51 (1st Cir. 2004) ("Dictionaries of the English language are

a fundamental tool in ascertaining the plain meaning of terms used

in statutes and regulations."); see also, e.g., Wis. Cent. Ltd. v.

United States, 138 S. Ct. 2067, 2071 (2018); Voisine v. United

States, 136 S. Ct. 2272, 2278 (2016). In this instance, for

example, the Oxford English Dictionary, considered "one of the

most authoritative on the English language," Taniguchi v. Kan Pac.

Saipan, Ltd., 132 S. Ct. 1997, 2003 (2012), defines public

education, in relevant part, as "education provided by the State,"

Oxford English Dictionary, http://www.oed.com (2018); see also The

Oxford English Dictionary 780 (2d ed. 1989) (stating that "public"

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means, inter alia, "provided or supported at the public expense,

and under public control: as in public elementary school").

Similarly, while the Random House Dictionary of the

English Language does not contain an entry for "public education,"

it defines "public" as being "maintained at the public expense and

under public control," and it defines "public school" as a place

"maintained at public expense for the education of the children of

a community or district and that constitutes a part of a system of

free public education commonly including primary and secondary

schools." The Random House Dictionary of the English Language

1562-63 (2d ed. 1987); see also Random House Webster's Unabridged

Dictionary 1562-63 (2d ed. 1997) (same). Ultimately, while exact

language is bound to differ among dictionaries, we find helpful

the shared dictionary focus on state funding and a degree of state

control for the confirmation it offers of our understanding of the

ordinary meaning of "public education."

Moreover, these two attributes are consistent with the

IDEA's definition of the related term "free appropriate public

education" -- the educational guarantee at the heart of the

statute. See Hernández-Miranda v. Empresas Díaz Massó, Inc., 651

F.3d 167, 171 (1st Cir. 2011) ("To determine ordinary meaning, we

may consult dictionary definitions . . . and the statutory context

in which the words are used."). The FAPE contemplated by the

statute is "provided at public expense, under public supervision

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and direction." 20 U.S.C. § 1401(9)(A).1 Therefore, the IDEA's

definition of FAPE is consistent with the two core attributes of

a "public education" that we identify.2

In one respect, however, we must supplement this

ordinary understanding of "public education" with an additional

attribute discernable from the way in which the IDEA uses the

phrase. The two core attributes we have identified could apply to

education at all levels, including post-secondary schooling. Yet

"public education" in the context of the IDEA is limited to

1 The full definition of FAPE is as follows:
The term "free appropriate public education"
means special education and related services
that --
(A) have been provided at public expense,
under public supervision and direction, and
without charge;
(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).
2 In E.R.K., the Ninth Circuit also grappled with the IDEA's
lack of a definition for "public education," and it extracted a
meaning for that term from the definition for "free appropriate
public education." See 728 F.3d at 987-88. We are unpersuaded by
that analysis, which uses FAPE, a term of art that applies to
"special education and related services," 20 U.S.C. § 1401(9), to
define the general term "public education." We look to the FAPE
definition only in the limited way noted above.

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educational opportunities only through the academic level

associated with completion of secondary school. We see this

endpoint in multiple provisions. For example, the IDEA defines a

type of services called "transition services" as activities

designed "to facilitate [a child with a disability's] movement

from school to post-school activities, including post-secondary

education[.]" 20 U.S.C. § 1401(34). The definition of "transition

services" implies that "public education" within the meaning of

the IDEA includes only education up through a "secondary

education." Similarly, the IDEA defines FAPE as including "an

appropriate preschool, elementary school, or secondary school

education." 20 U.S.C. §1401(9)(C). Since providing "public

education" triggers the FAPE requirement, it is logical that the

two terms apply to the same levels of schooling. We find further

confirmation of this scope in the IDEA's statement of purpose,

which likewise uses terminology commonly associated with

secondary-level achievement: "educational outcomes," § 1400(c)(9),

"educational results," § 1400(d)(3), and "graduation rates,"

§ 1400(c)(14).

Accordingly, beyond the two attributes of "public

education" at the core of that term's ordinary usage -- public

funding and public administration or oversight -- "public

education" within the meaning of the IDEA includes the objective

of educating students up to the level of academic proficiency

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associated with the completion of secondary school. Appellees do

not dispute that these three attributes characterize "public

education" within the meaning of the IDEA. However, they insist

that an additional limitation applies.

B. "Traditional Public Schools"

Specifically, appellees contend that the ordinary

meaning of "public education" is limited to education that is

provided at "traditional public schools." They state that "'public

education,' as used in the applicable IDEA limitation section, is

not separate from traditional public schools, but instead refers

to traditional, standards-based public school education." Since

the educational services at issue in this case are not delivered

at "traditional public schools," appellees claim that those

services are not "public education" within the meaning of the

IDEA.3

Appellees support their narrow reading of "public

education" by invoking various provisions of state and federal law

in a fashion that is incompatible with the IDEA's "wide-ranging

remedial purpose intended to protect the rights of children with

3
We note that appellees do not cite any support, legal or
otherwise, for their concept of a "traditional public school[]"
that provides a distinct method of educating students. Indeed, we
think it a matter of general knowledge that public school programs
have long included non-traditional educational formats, including
vocational or employment-related activities and opportunities to
earn high school credits at universities and community colleges.

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disabilities[.]" Avila v. Spokane Sch. Dist. 81, 852 F.3d 936,

943 (9th Cir. 2017); see also Diaz-Fonseca v. Puerto Rico, 451

F.3d 13, 29 (1st Cir. 2006) (discussing the IDEA's "remedial

structure"); E.M. v. N.Y.C. Dep't of Educ., 758 F.3d 442, 454 (2d

Cir. 2014) (discussing the IDEA's "remedial purpose"). Defining

"public education" only as education that is delivered at so-

called "traditional" public schools would significantly curtail

the number of students with disabilities -- particularly those

students ages 18 through 21 –- who would be entitled to FAPE under

the IDEA. Hence, we approach appellees' attempt to circumscribe

the IDEA's reach mindful of "the familiar canon of statutory

construction that remedial legislation should be construed broadly

to effectuate its purposes." Tcherepnin v. Knight, 389 U.S. 332,

336 (1967).4

1. Rhode Island State Law

Appellees cite numerous provisions of Rhode Island state

law in which they say the term "public education" refers to their

4 Reflecting appellees' argument, our dissenting colleague
acknowledges the IDEA's focus on "educational opportunities up
through secondary school," but treats "secondary school" as if the
IDEA's concern is the format in which the education is presented
rather than on educational content. The statute is necessarily
concerned with equal opportunities to gain the knowledge
associated with completion of secondary school. When such
opportunities are offered to students without disabilities through
state-funded and managed adult education programs, we should be
wary of adopting an interpretation of the IDEA that denies equal
access for students with disabilities -- in direct conflict with
the statute's objective. Indeed, IDEA itself emphasizes the need

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notion of "traditional" public schools. They assert that an

inquiry into Rhode Island law is appropriate because

§ 1412(a)(1)(B)(i) speaks of whether the provision of FAPE beyond

age 18 "would be inconsistent with State law or practice . . .

respecting the provision of public education." 20 U.S.C.

§ 1412(a)(1)(B)(i) (emphasis added).

We reject appellees' premise that Rhode Island law

should play any role in determining the meaning of "public

education" as used in § 1412(a)(1)(B)(i) of the IDEA. That section

does not delegate the definition of "public education" to the

states. The reference to "[s]tate law or practice" relates only

to whether a state discretionarily provides "public education" to

students aged 18 through 21. What constitutes "public education"

does not itself vary from state to state. Indeed, to allow each

state to define "public education" would not only result in fifty

different interpretations of the IDEA, but it would also permit

states to circumvent the FAPE requirement by characterizing any

educational services they provide to students aged 18 through 21

as something other than "public education." Even more

fundamentally, we find appellees' invocation of Rhode Island law

at odds with their position that the ordinary meaning of "public

to coordinate its requirements with other local, state, and federal
efforts to ensure that "special education can become a service for
[children with disabilities] rather than a place where such
children are sent." 20 U.S.C. § 1400(c)(5)(C).

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education" should apply in this case. Logically, it makes no sense

to assert that the ordinary meaning of a term, as Congress would

have understood it, depends on how an individual state uses that

term in its local statutes. Put simply, Rhode Island law is not

a proper guide to the meaning of "public education" under the IDEA.

2. Other Federal Code Provisions

Appellees also rely on 29 U.S.C. § 3272 of the Workforce

Innovation and Opportunity Act ("WIOA"), which defines the term

"adult education," and § 1401(34) of the IDEA, which defines the

term "transition services" and lists "adult education" as one such

service. Appellees contend that these provisions somehow reveal

Congress's intent to make "public education" and "adult education"

mutually exclusive categories -- i.e., if something is adult

education, it cannot also be public education. Starting from that

premise, appellees seemingly argue that the distinction between

the two categories depends on whether education is delivered at a

"traditional public school."

Neither provision supports the appellees' conception of

"public education." To start, their reliance on the definition of

"adult education" in § 3272 of the WIOA5 is misplaced. This

5 Section 3272 states: "The term 'adult education' means
academic instruction and education services below the
postsecondary level that increases an individual's ability to- (A)
read, write, and speak in English and perform mathematics or other
activities necessary for the attainment of a secondary school
diploma or its recognized equivalent[.]" 29 U.S.C. § 3272.

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definition became law nearly forty years after the relevant

portions of the IDEA, in the context of a workplace-focused, not

an education-focused, statute. By invoking the WIOA, appellees

appear to be relying on a version of the "whole code" canon of

statutory interpretation, "under which courts construe terms

across different statutes consistently." Abbe R. Gluck & Lisa

Schultz Bressman, Statutory Interpretation from the Inside -- an

Empirical Study of Congressional Drafting, Delegation, and the

Canons: Part I, 65 Stan. L. Rev. 901, 936 (2013). However, the

notion that Congress, acting on legislation separated by forty

years and addressing different subjects, would be attentive to the

consistent usage of a phrase, reflects a fanciful version of the

legislative drafting process. Indeed, there is little evidence

that treating the United States Code as a single body of consistent

law "reflects how Congress drafts or even how it tries to draft"

legislation. Id. In any event, given the differences in both

time and subject matter between the WIOA and the IDEA, we find

appellees' invocation of the WIOA wholly irrelevant to our inquiry.

As for § 1401(34) of the IDEA,6 the term "adult

education" is mentioned in a list of programs that may constitute

6 Section 1401(34) states:
The term "transition services" means a
coordinated set of activities for a child with
a disability that— (A) is designed to be
within a results-oriented process, that is
focused on improving the academic and

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"transition services." According to appellees, "Congress's use of

the term 'adult education' [in the definition of transition

services] demonstrates its intent to distinguish adult education

from public education." See Citizens Awareness Network, Inc. v.

United States, 391 F.3d 338, 346 (1st Cir. 2004) ("Congress's use

of differential language in various sections of the same statute

is presumed to be intentional.").

Other than another mechanical invocation of a canon of

statutory interpretation, appellees fail to offer any support for

this claim. The IDEA merely states in § 1401(34) that "adult

education" is a type of transition service when it is "focused on

improving the academic and functional achievement of [a] child

with a disability to facilitate the child's movement from school

to post-school activities."7 20 U.S.C. § 1401(34). The fact that

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).
7As discussed in greater detail in Section III, infra, Rhode
Island's system of "adult education" does not constitute
"transition services" within the meaning of the IDEA because it is
not part of "a coordinated set of activities for a child with a
disability." 20 U.S.C. § 1401(34).

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some forms of adult education constitute "transition services"

under the IDEA does not remotely suggest that adult education in

other forms is not "public education" within the meaning of the

IDEA. Appellees fail to confront this flaw in their argument. In

fact, when asserting that adult education is not "public

education," appellees do not even offer a definition for the term

"adult education" within the meaning of the IDEA. Ultimately,

then, appellees argue that we should take the term "public

education," which Congress did not define, and the term "adult

education," which Congress did not define, and summarily conclude

that Congress nevertheless designed them as mutually exclusive

categories of education. We reject this unsupportable view of

legislative drafting.8

3. IDEA Regulations

Lastly, appellees cite an IDEA regulation defining the

term "high school diploma" to support their claim that "public

8
The dissent attempts to support appellees' reading by
invoking a grammatical rule whose applicability is belied by the
statutory text. Our colleague asserts that the location in the
sentence of the words "adult education" means that Congress
considered adult education a "post-school activit[y]" and
therefore not "public education." Aside from the obvious point
made above that "adult education" covers a wide range of
educational programs -- some of which may be post-school activities
and some of which may be public education -- the inclusion of
"vocational education," long an aspect of public education, shows
that the listed items are part of the "coordinated set of
activities" that constitute transition services and not
exclusively "post-school activities."

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education" within the meaning of the IDEA can occur only at what

they deem "traditional" public schools. A provision of the Code

of Federal Regulations, 34 C.F.R. § 300.102, clarifies that "[t]he

obligation to make FAPE available to all children with disabilities

does not apply . . . [to] [c]hildren with disabilities who have

graduated from high school with a regular high school diploma,"

but, "the term regular high school diploma means the standard high

school diploma . . . [not] a recognized equivalent of a diploma,

such as a general equivalency diploma." 34 C.F.R.

§ 300.102(a)(3)(i),(iv). Appellees argue that if receipt of a

non-traditional high school diploma is insufficient to end FAPE

services, it should follow that publicly funded educational

services that help students obtain equivalency diplomas should

likewise not count as "public education."

Appellees misconstrue the IDEA regulation. Although an

equivalency diploma or other alternative credential may differ in

some respects from a regular high school diploma, it does not

follow that educational services which help students attain an

equivalency diploma are not "public education." Education is the

process by which students attain academic competency, not the

document memorializing that process. Indeed, the evident purpose

of the regulation is to prohibit states from terminating FAPE

services early by bestowing a potentially inferior "general

equivalency diploma, certificate of completion, certificate of

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attendance, or similar lesser credential." 34 C.F.R.

§ 300.102(a)(3)(iv) (emphasis added). In other words, the

regulation is aimed at preventing termination of FAPE services

before a student actually demonstrates the level of academic

achievement commensurate with receiving a regular high school

diploma. This regulation furthers the IDEA's remedial purpose of

protecting the educational rights of students with disabilities,

an objective at odds with appellees' reliance on it to curtail

access to special education services.

C. Summary

Since the IDEA does not define the term "public

education," we have turned, out of necessity, to its ordinary usage

as Congress would have understood it. Based on our understanding

of the phrase's ordinary meaning, which is consistent with both

dictionary definitions and the IDEA's definition of FAPE, the first

two attributes of "public education" are: (1) significant funding

from a public source and (2) public administration or oversight.

Mindful of the context of the IDEA, however, we supplement this

ordinary understanding of "public education" with a third

attribute: (3) the education of students to the academic competence

ordinarily associated with completion of secondary school.

Although appellees contend that "public education" is further

limited to education provided at "traditional public schools" --

a vague limitation that would impede the IDEA's remedial purpose

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-- their arguments in support of such an additional attribute are

meritless.9

Given this understanding of the three attributes of

"public education," we turn to whether Rhode Island provides such

education to individuals up to age 22 and, hence, must provide

FAPE to individuals with disabilities through that same age.

III. Rhode Island's System of Education

A. Background

The elements of Rhode Island's educational system,

including its provision of services for students with

disabilities, are almost entirely undisputed. We thus begin by

describing the relevant aspects of that system as revealed by the

factual record developed in the district court.

Rhode Island requires persons who have "not completed

eighteen (18) years of life [to] regularly attend some public day

school during all the days and hours that the public schools are

9 The dissent suggests that we have adopted an insupportably
broad definition of public education that goes beyond the
dictionary definitions we have quoted, noting, for example, our
acceptance of "significant" public funding as one of the core
attributes. However, even our colleague does not suggest that an
educational program may be characterized as state-funded, and,
hence, public education, only if it receives 100 percent of its
funds from the state. The term "significant" adequately reflects
the state's primary role in public education funding, consistently
with the dictionary definitions. Indeed, in light of our
obligation to construe the IDEA "broadly to effectuate its
purposes," we think it is our colleague who errs by construing the
provision too narrowly. Tcherepnin, 389 U.S. at 336.

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in session." R.I. Gen. Laws § 16-19-1(a). While school attendance

is not compulsory after age 18, there is no state law expressly

setting a maximum age for school attendance. The sixty-six Local

Education Agencies in Rhode Island have discretion in determining

whether to admit older students. In general, however, most

individuals stop attending public schools at or about the age of

18. Appellant does not contend on appeal that the possibility of

select, older individuals attending Rhode Island's public schools

is, on its own, sufficient to constitute a state "practice" of

providing public education to adult individuals.

Rhode Island law also states that "all citizens,

regardless of age, have a right to education." R.I. Gen. Laws §

16-63-2(a)(1). To accommodate this right, Rhode Island funds a

network of community-based organizations ("CBOs") to deliver adult

education to students who have aged-out of -- in practice if not

by law -- the state's public schools. Such services cover persons

between the ages of 21 and 22, in addition to persons of other

ages.

Rhode Island funds approximately thirty-four CBOs to

administer adult education services. These CBOs consist of

different types of entities, including homeless shelters, stand-

alone adult education centers, and community organizations run by

local municipalities. The services the CBOs provide include basic

education, secondary education, and education for English language

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learners. Some of the programs prepare students to take the GED

test, a national standardized high school equivalency exam.

The CBO model for adult education, which envisions a

variety of settings and educational content, inevitably differs in

form, to varying degrees, from the model offered in Rhode Island's

conventional brick-and-mortar public elementary and secondary

schools. For example, at the secondary level, students are

required to earn "20 credits, spanning six core academic areas,"

and the school year must extend "at least 180 days, with a minimum

of 6 hours per school day." The absence of these specific

requirements, however, does not release CBOs from the oversight of

the Rhode Island Department of Education. The Department's role

includes, at a minimum: providing funding, conducting oversight

through accountability measures, setting performance targets, and

withdrawing funding when performance is inadequate.

Rhode Island also has regulations governing the

provision of special education services. One directive states

that "free appropriate public education must be available to all

eligible children residing in the [Local Education Agency],

between the ages of 3 and 21, inclusive (until the child's twenty

first birthday or until the child receives a regular high school

diploma)." R.I. Bd. of Educ., Regulations Governing the Education

of Children with Disabilities, B § 300.101(a) (Oct. 9, 2013).

Although partially mirroring the language of the IDEA, Rhode Island

- 22 -
law differs by explicitly ending the required provision of FAPE

based on a person's twenty-first birthday.10 Hence, if Rhode Island

provides "public education" until a person turns 22, the ending of

FAPE for students with disabilities before that age would violate

the IDEA.

Thus, the question before us is whether the adult

education offered in Rhode Island possesses sufficient attributes

of "public education" to so qualify under the IDEA. That is,

consistent with our discussion above, does Rhode Island's system

of adult education possess the three attributes of "public

education" within the meaning of the IDEA: a significant measure

of public funding, public administration or oversight of the

services, and an objective to educate a population up to the

academic level sufficient to obtain a high school degree.

B. Evaluating Rhode Island's Adult Education Services

Whether Rhode Island's system of adult education

services qualify as "public education" within the meaning of the

IDEA has significant ramifications for the educational

opportunities offered to students with disabilities for the year

10
A June 2016 amendment to the Rhode Island General Laws
restates this age limitation, but it specifies that special
education services should extend to the end of the academic year
in which the student with a disability turns 21. See R.I. Gen.
Laws § 16-24-1(f). Even with this amendment, there is a period of
time between a student's twenty-first and twenty-second birthdays
when the provision of FAPE is not ensured, as is potentially
required by the IDEA.

- 23 -
between ages 21 and 22. At present, if a 21-year-old student in

Rhode Island does not complete high school for a non-disability

related reason -- say, because she was previously incarcerated

-- the state will provide her the services needed to attain a

secondary-school level of academic proficiency and a route to

obtain a high-school level degree. However, if the same 21-year-

old does not complete high school due to a qualifying disability,

the state currently does not offer her ability-appropriate

services to attain the same level of educational achievement.

Under Rhode Island's current system, students without disabilities

"can pursue the diplomas that eluded them in high school, but

students with special needs are simply out of luck." E.R.K., 728

F.3d at 992. To determine whether this educational disparity

violates the IDEA's FAPE requirement, 20 U.S.C. § 1412(a)(1)(A),

we consider each attribute of "public education" in turn.

1. Funding

Rhode Island provides approximately eighty percent of

the total costs of the CBO adult-education programs, and the

remaining fees for students are waived in some cases. In fact,

the use of such "public funds" to support the delivery of "adult

education" services is mandated by state law. See R.I. Gen. Laws

§ 16-63-2(b)(3). Moreover, the decisions whether to fund and how

much to fund adult education providers are decisions within the

- 24 -
discretion of the state's general assembly. See R.I. Gen. Laws

§ 16-63-14.

2. Administration or Oversight

RIDE -- the same state agency that oversees Rhode

Island's public school system generally -- also oversees the CBO

adult education providers. By law, adult education services must

be "integrated and coordinated" and "provided and maintained on a

statewide basis." R.I. Gen. Laws § 16-63-2(b)(2). RIDE monitors

adult education providers through the use of accountability

measures, including setting performance targets. See David V.

Abbott Dep., Doc. 52-4, K.S. v. R.I. Bd. of Educ., No. 1:14-cv-

00077-WES-LDA, Doc. 52-4, at 14 (stating that the Department

imposes performance standards on adult education programs and

"track[s] their compliance with performance expectations").11 In

addition, RIDE can sanction CBOs by withdrawing public funding if

their adult education performance is deemed inadequate. Moreover,

Rhode Island law authorizes adult education to be administered

through a variety of state agencies and organizations, including,

"(1) [t]he schools and other facilities maintained by local

11
Appellant contends that RIDE's oversight of adult education
amounts to the imposition of performance "standards," while
appellees claim that RIDE's oversight is the setting of
"performance targets." This dispute is immaterial to the legal
question in this case. Even the setting of "targets," accompanied
by the ability and willingness to withdraw public funds for the
failure to reach such targets, is an unmistakable indication of
public education.

- 25 -
education authorities . . . [,] (3) [t]he state operated

institutions of higher education . . . [, and] (7) [t]he state's

interrelated library system." R.I. Gen. Laws § 16-63-9(a).

Although adult education in Rhode Island is also administered at

other, non-public entities, it is notable that state law envisions

the delivery system for adult education to include public agencies

and institutions. In sum, there is a substantial level of public

involvement in Rhode Island's adult education services.

3. Educational Objective

Lastly, a primary objective of the Rhode Island adult

education program is to assist students in achieving a secondary-

education level of academic competence. Specifically, adult

education in Rhode Island, similar to appellees' notion of

traditional public schools, must, among other things, establish

"[p]rograms and services" that will "provide opportunities for

academic achievement up to grade twelve (12)." R.I. Gen. Laws

§ 16-63-5(1). Hence, Rhode Island's adult education system

provides for the education of students to the level of academic

proficiency needed to sit for and pass the GED exam or to complete

the National External Diploma Program ("NEDP"). Id. (defining a

basic education as including "preparation for the demonstration of

competencies to qualify for the adult high school diploma or for

- 26 -
examinations to earn the general educational development or high

school equivalency diploma").

Despite the comparable objectives, appellees seek to

draw significance from the differences between what they deem a

traditional secondary school setting and the contexts in which

individuals pursue studies toward successful completion of the GED

or the NEDP. For example, appellees claim that adult education

programs cannot be "public education" because they do not have the

comparable classroom hours and course credit requirements as the

other supposedly "traditional" public schools they consider the

norm. Appellees also note that the degrees awarded to students

who successfully pass the GED have the word "equivalency" written

on the diploma.

We, however, see no defensible rationale for

distinguishing among educational programs that have the attributes

of "public education" based solely on locale and method of

delivery. Indeed, even Rhode Island's regulations recognize the

educational parity of supposedly "traditional" public schools and

the adult equivalency programs by mandating that an "Equivalency

Diploma" is "of the same status as a regular high school diploma."

R.I. Dep't of Educ. and Secondary Educ., Regulations of the Board

- 27 -
of Education Governing the Rhode Island High School Equivalency

Program, 1.2 (2013).

In adopting in full the appellees' perspective, the

dissent states, in effect, that it is irrelevant that Rhode Island

offers students without disabilities the opportunity to achieve

high school diplomas or equivalency diplomas through adult

education programs. In our colleague's view, those programs are

not "the functional equivalent of secondary school for purposes of

the IDEA," and "they do not resemble preschool, elementary school,

or secondary school." But in so arguing, the appellees and our

colleague turn the IDEA on its head. They rely on language

intended to ensure that students with disabilities are provided

opportunities to learn in traditional school settings -- from which

they routinely had been excluded -- as a rationale for excluding

them from non-traditional forms of public education. In other

words, depicting IDEA as focused solely on so-called traditional

school settings misses the point. The pertinent question is not

where public education is provided to students without

disabilities who are beyond age 18, but whether it is provided to

them in some form.

Contrary to the dissent's contention, our interpretation of

the IDEA does not "impose[] on Rhode Island choices that the state

did not make" -- other than those that are the very purpose of the

IDEA. Rhode Island has made the choice to fund and oversee adult

- 28 -
education programs that are designed, in part, to help individuals

without disabilities, up to age 22, achieve secondary-level

competencies. That choice, under the IDEA, requires the state to

provide FAPE for students with disabilities of the same age. The

dissent warns that requiring parity between students with and

without disabilities through age 21 will have financial

consequences that may cause a reduction in services now provided

to other students, citing the statement of the Rhode Island Board

of Education at oral argument that a ruling for K.L. would impose

significant indirect costs on the state. The facts presented to

us, however, suggest otherwise. Rhode Island currently provides

special education services to the end of the academic year in which

the student with a disability turns 21. See supra note 10.

Accordingly, some students with disabilities already receive

special education services well into their twenty-second year. It

is thus difficult to see how a requirement to extend those services

to the student's twenty-second birthday would "significant[ly]"

increase costs such that Rhode Island would be deterred from

assisting young adults to achieve secondary-level educational

competence.

Moreover, the very purpose of the IDEA provision at issue

here is to ensure equivalent educational opportunities for

students with and without disabilities. It is simply not a

response to the requirement of equality to say that students with

- 29 -
disabilities may properly be afforded less education because equal

treatment will be too costly.12

In sum, as the foregoing assessment of the core

attributes demonstrates, the adult education services in Rhode

Island qualify as "public education" within the meaning of the

IDEA.13 Rhode Island provides the adult education CBOs with

significant public funding, the state's education department --

RIDE -- provides a substantial level of oversight for the adult

education programs, and Rhode Island's adult education services

share the objective of public schools generally to educate students

12 Nor can we reject the "public education" label for adult
education programs that teach secondary-level competencies, such
as Rhode Island's, on the ground that most students pay a portion
of the cost of such programs. Otherwise, states could escape the
obligation of parity for students with disabilities simply by
assessing a small fee for students without disabilities. Programs
that are both largely funded by the state -- 80 percent in Rhode
Island -- and largely free to students fall within the scope of
§ 1412(a)(1)(B)(i). Put another way, students without
disabilities who receive an eighty percent public subsidy for
secondary-level instruction are plainly receiving "public"
education.
13Appellees make several additional arguments that we do not
address. They contend that Rhode Island does not currently provide
public education, either by law or practice, to residents over the
age of 18 at public schools. As noted above, however, appellant
does not argue on appeal that Rhode Island does so. Moreover,
since Rhode Island's "adult education" services constitute "public
education" within the meaning of the IDEA, this argument is beside
the point. Appellees also make multiple arguments that respond to
the analysis of, or factually distinguish this case from, the Ninth
Circuit's decision in E.R.K., 728 F.3d 982. We do not adopt the
Ninth Circuit's approach to interpreting the IDEA, however, and we
therefore need not address those arguments.

- 30 -
to a secondary education level of academic achievement. Although

Rhode Island's so-called "traditional" public schools and its

adult education programs may, to various degrees, differ in their

formats and locations, they are both properly characterized as

"public education" for purposes of the IDEA.14

IV. Conclusion

For the reasons explained above, the IDEA's requirement

that states provide FAPE to students until their twenty-second

birthday is not inconsistent with Rhode Island's law or practice

"respecting the provision of public education," and, therefore,

the limitation set forth in § 1412(a)(1)(B)(i) does not apply.

Hence, to the extent that Rhode Island General Laws § 16-24-1(f)15

14Appellees asserted at oral argument that if we decide that
the Rhode Island adult education CBOs are providing "public
education" within the meaning of the IDEA, then the remedy in this
case must be that the CBOs have to provide the required FAPE-
compliant services to students with disabilities. They posited
that many of the CBOs are ill-equipped to do so. Appellees'
concern is unfounded. Nothing in the IDEA, nor in this opinion,
mandates that Rhode Island CBOs provide the required IDEA-
compliant special education services to students with
disabilities. Our conclusion that Rhode Island's provision of
adult education constitutes the provision of "public education" up
to the age of 22 means only that the state must likewise provide
FAPE to students with disabilities up to the age of 22. We leave
it to the parties, working with the court on remand, to decide the
appropriate setting for the provision of those services.
15 Section 16-24-1(f) states: "A child with a disability as
referenced in subsection (a) of this section shall have available
to them any benefits provided by this section up to their twenty-
first birthday, in accordance with the student's individualized
education program (IEP)." R.I. Gen. Laws § 16-24-1(f).

- 31 -
and Regulations Governing the Education of Children with

Disabilities § 300.101(a)16 are noncompliant with the mandate set

forth in § 1412(a)(1)(A), they are invalid. Accordingly, we vacate

the district court's judgment in favor of appellees, and direct

the court to enter judgment for appellant. We leave it to the

district court, working with the parties, to develop appropriate

remedies.

The district court's judgment is vacated, and the case

is remanded for entry of judgment in favor of appellant and

remedial proceedings consistent with this opinion.

So ordered. Costs to appellant.

-Dissenting Opinion Follows-

16"A free appropriate public education must be available to
all eligible children residing in the LEA, between the ages of 3
and 21, inclusive (until the child's twenty first birthday or until
the child receives a regular high school diploma)[.]" R.I. Bd. of
Educ., Regulations Governing the Education of Children with
Disabilities, B § 300.101(a) (Oct. 9, 2013).

- 32 -
 LYNCH, Circuit Judge, dissenting. With great respect

for my colleagues, I disagree with the majority's interpretation

of the IDEA's language concerning the provision of "public

education," and so disagree as to the majority's conclusion that

Rhode Island school systems are obliged to provide special

education to students until age twenty-two. The majority's

definition of "public education" as used in 20 U.S.C.

§ 1412(a)(1)(B)(i) is refuted by the text, is inconsistent with

the term's ordinary meaning and the statutory context, and is, I

believe, contrary to congressional intent.

The majority's conclusion is also a serious breach of

federal policy concerning local control of public school systems.

The majority opinion will impose, by judicial fiat, burdens on

local taxpayers and local educational agencies (LEAs), contrary to

the intent of Congress. The majority responds to my expression of

these concerns by speculating that there will be no such burden.

Not so. When, at oral argument, we posed the precise question to

the Rhode Island Board of Education, which actually knows what the

consequences of this decision will be, the answer was that a ruling

for K.L. would impose significant costs to be borne by LEAs, and

indirectly, by the state.

The IDEA was meant to ensure equal opportunities for

disabled and non-disabled students in the provision of "public

education." See id. "Public education" encompasses preschool,

- 33 -
elementary school, and secondary school that is free, paid for by

the state, and controlled by the state. This does not include

"adult education," which the IDEA classifies as a "post-school

activit[y]," and which the statute distinguishes from regular

"school." Id. § 1401(34)(A). Congress clearly intended that the

provision at issue provide flexibility to states, so long as they

do not discriminate (and Rhode Island does not) against disabled

students with regard to equivalent educational opportunities. See

id. § 1412(a)(1)(B)(i). The adult education programs offered in

Rhode Island do not meet Congress's definition of "public

education" because they are not free or paid for by the state, are

not controlled by the state, and most certainly do not resemble

preschool, elementary school, or secondary school, whether the

approach in those settings is traditional or innovative. By

expanding the meaning of "public education" through judicial

interpretation, the majority's decision overrides prerogatives

intended by Congress to be left to the states.

I.

The majority accepts K.L.'s argument that Rhode Island

has run afoul of the IDEA by declining to provide special education

to disabled students between the ages of twenty-one and twenty-

two, while making adult education available for students aged

twenty-one and older. There is no evidence that non-disabled

students may remain in public schools in Rhode Island until age

- 34 -
twenty-two. K.L.'s argument thus turns on the federal law question

of whether "public education," as used in the IDEA, encompasses

"adult education," and thus forces Rhode Island to extend special

education services to students until the age of twenty-two.

"It is a fundamental canon of statutory construction

that the words of a statute must be read in their context and with

a view to their place in the overall statutory scheme." Davis v.

Michigan Dep't of Treasury, 489 U.S. 803, 809 (1989). The IDEA's

purpose is to make the "public school system" able to effectively

teach and support students with disabilities. See 20 U.S.C.

§ 1400(c)(2)(A)-(D). Congressional findings memorialized in the

text of the IDEA focus on previous shortcomings of the "public

school system," as children with disabilities "were excluded

entirely from the public school system and from being educated

with their peers," and faced "a lack of adequate resources within

the public school system" that "forced families to find services

outside the public school system." Id. § 1400(c)(2)(B), (D).

Additionally, the IDEA emphasizes the need for disabled

students' access to "school" and the "regular classroom." See,

e.g., id. § 1400(c)(5)(A)-(F). The IDEA "was passed in response

to Congress'[s] perception that a majority of handicapped children

in the United States 'were either totally excluded from schools or

[were] sitting idly in regular classrooms awaiting the time when

they were old enough to 'drop out.'" Bd. of Educ. of Hendrick

- 35 -
Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 179 (1982)

(alterations in original) (quoting H.R. Rep. No. 94–332, p. 2

(1975)).

The IDEA's legislative history underscores that the IDEA

focuses on the public school system and only those educational

opportunities up through secondary school. A Senate Report

regarding the IDEA's 1975 predecessor states:

[t]he Committee points out . . . that a
handicapped child has a right to receive all
services normally provided a nonhandicapped
child enrolled in a public elementary or
secondary school. Thus, he or she has a right
to physical education services, health
screening, transportation services and all
other services which are provided to all
children within the school system, and a right
to as many options in curricula as are
available to all children.

S. Rep. No. 94-168, 1975 U.S.C.C.A.N. 1425, 1442-43 (1975).

The IDEA's findings, linguistic choices, and history

thus draw a parallel between the education provided to non-disabled

students and a free appropriate public education (FAPE) for

disabled students. This is reflected in the specific provision at

issue here, which states that a FAPE need not be provided to

eighteen to twenty-one year olds unless doing so would be

inconsistent with the provision of "public education" to non-

disabled students in that age range. 20 U.S.C. § 1412(a)(1)(B)(i).

Where non-disabled students receive "public education" through the

age designated by the statute, then, disabled students receive a

- 36 -
FAPE through that same age. See id. § 1412(a); id.

§ 1412(a)(1)(B)(i).

In turn, a FAPE must, in relevant part, be "provided at

public expense, under public supervision and direction, and

without charge," and "include an appropriate preschool, elementary

school, or secondary school education." Id. § 1401(9)(c).

"[S]econdary school," however, "does not include any education

beyond grade 12." Id. § 1401(27). Since the FAPE requirement is

meant to ensure that disabled students are receiving the same

opportunities that their non-disabled counterparts are receiving

between preschool and twelfth grade, it follows that "public

education" encompasses schooling from preschool to twelfth grade

that is free, paid for by the state, and controlled by the state.

The majority dismisses Rhode Island's argument that the

IDEA is focused on "traditional public schools," in part by

misapprehending Rhode Island's point and creating a straw man.

The majority says that "public school programs have long included

non-traditional educational formats, including vocational or

employment-related activities and opportunities to earn high

school credits at universities and community colleges." But the

majority mischaracterizes Rhode Island's argument. Rhode Island's

argument is not that this is a matter which turns on the setting

where "public education" is provided or on whether vocational or

other high school activities are education. Additionally, Rhode

- 37 -
Island's position is not, as the majority misapprehends, that the

test for what is "public education" turns on traditional versus

innovative education methods. The IDEA's use of terms like

"school," "public school system," and "classroom" emphasizes that

the statute only concerns instruction associated with public

preschool, elementary, and secondary school. See 20 U.S.C.

§ 1400(c)(2)(A)-(D); id. § 1400(c)(5)(A)-(D). The result here

cannot be cut loose from the moorings provided by that statutory

language.

Congress made it clear under the language of the IDEA

that "adult education" is not "public education," but something

else entirely.17 The IDEA defines "transition services" as

follows:

The term "transition services" means a
coordinated set of activities for a child with
a disability that--

(A) is designed to be within a results-
oriented process, 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;

17 Adult education is governed by 29 U.S.C. § 3111 et seq.,
whereas Title 20 covers preschool, elementary school, secondary
school, and special education.

- 38 -
 (B) is based on the individual child's needs,
taking into account the child's strengths,
preferences, and interests; and

(C) includes instruction, related services,
community experiences, the development of
employment and other post-school adult living
objectives, and, when appropriate,
acquisition of daily living skills and
functional vocational evaluation.

Id. § 1401(34) (emphasis added). Thus, the IDEA classifies "adult

education" as a "post-school activit[y]."18 Id. "Post-school

activities," as used here, are distinguished from "school." Id.

Preschool, elementary school, and secondary school, by contrast,

are quintessentially "school." "Transition services," in turn,

are the various activities that help a child advance from "school"

to "post-school activities." Id. Under this formulation mandated

by Congress, then, adult education cannot be both "school" and a

"post-school activity." To hold otherwise would collapse

Congress's deliberate choice of language into nothingness. It was

clearly not Congress's intent that "post-school activities" would

trigger the FAPE requirement for disabled students in "preschool,

elementary school, or secondary school." See id. § 1401(9)(C).

18 The majority incorrectly states that under this section,
"adult education" is classified as a "transition service[]." Under
the rule of the last antecedent, "a limiting clause or phrase . . .
should ordinarily be read as modifying only the noun or phrase
that it immediately follows." Lockhart v. United States, 136 S.
Ct. 958, 962 (2016) (quoting Barnhart v. Thomas, 540 U.S. 20, 26
(2003)). Here, "adult education" is part of the clause that
modifies the term "post-school activities," which immediately
precedes it. See 20 U.S.C. § 1401(34)(A).

- 39 -
 Given this statutory scheme, the majority's definition

of "public education" is unsupportable. It does not assist the

analysis to say that the IDEA is generally a remedial statute.

See Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 63 (1st Cir.

2002). The Supreme Court has made it clear that "courts must be

careful to avoid imposing their view of preferable educational

methods upon the States." Rowley, 458 U.S. at 207. The majority's

approach does not accord with Rowley. The majority also runs afoul

of the "'general framework of deference to state decision-makers'

that is dictated by the IDEA and by the Supreme Court's direction"

in Rowley, 458 U.S. at 207-08. Susan N. v. Wilson Sch. Dist., 70

F.3d 751, 758 (3d Cir. 1995) (quoting Fuhrmann ex rel. Fuhrmann v.

E. Hanover Bd. of Educ., 993 F.2d 1031, 1033 (3d Cir. 1993)). This

court has also stressed, in Murphy v. Timberlane Reg'l Sch. Dist.,

22 F.3d 1186 (1st Cir. 1994), that "[t]he IDEA invests expansive

discretion in the states to structure implementing procedures and

enforcement mechanisms, thereby constructively incorporating duly

promulgated state regulations." Id. at 1196; see 20 U.S.C.

§ 1400(c)(6) (stating that under the IDEA, states are "primarily

responsible for providing an education for all children with

disabilities").

If Congress had wanted states that provide adult

education to also provide a FAPE to disabled students up until

their twenty-second birthdays, it would have said so and done so

- 40 -
directly. Instead, Congress has left this decision to states, and

has consistently done so through multiple changes and

reauthorizations of the IDEA. Congress included the provision at

issue here in the IDEA's 1975 predecessor. See Education for All

Handicapped Children Act of 1975, Pub. L. No. 94-142, § 612, 89

Stat. 773 (1975). Congress also kept this provision when it

reorganized and recodified parts of the IDEA in 1997. See

Individuals with Disabilities Education Act Amendments for 1997,

Pub. L. No. 105-17, § 612(a)(1)(B)(i), 111 Stat 37 (1997). The

provision is clearly meant to preserve the role of states and local

communities in the provision of children's education.

The majority's broad interpretation as to Rhode Island's

adult education system could arguably raise questions about the

validity of other states' implementation of the IDEA provision at

issue here. The record suggests that at least one other state,

Maine, terminates special education for students with disabilities

before their twenty-second birthdays.19 There will be undeniable

financial consequences to requiring local school systems to extend

FAPE, including possibly the reduction in services now provided to

other students. The majority's interpretation is especially

inappropriate given the many variations in states' adult education

19By statute, Maine guarantees a FAPE only to disabled
children "at least 3 years of age and under 20 years of age," see
Me. Rev. Stat. Ann. tit. 20-A, § 7001(1-B)(B), and provides for
adult education, see id. §§ 8601, 8601-A, 8603.

- 41 -
programs. See, e.g., E.R.K. ex rel. R.K. v. Hawaii Dep't of Educ.,

728 F.3d 982, 985 (9th Cir. 2013) (noting that adult education in

Hawaii is administered by the state's department of education and

is "tuition-free").

Moreover, the majority's method of analysis and its

conclusion are based on error. The majority reasons that "public

education" has two core attributes, "significant funding from a

public source" and "public administration and oversight," and

pulls these from thin air. The statute does not say this. The

majority also asserts that the statutory context imposes a third

constraint, which is also unsupported. It says "public education"

is limited to "the education of students to the academic competence

ordinarily associated with completion of secondary school."

Not only is the majority's definition inconsistent with

the statutory terminology and context outlined above, but it does

not even align with the dictionary definitions that the majority

cites. These definitions, rather, support my view. The majority

states that the Oxford English Dictionary defines "public

education" as "education provided by the State." "Public

Education," Oxford English Dictionary Online (July 2018),

http://www.oed.com/view/Entry/154052#eid27762397 (last visited

Oct. 25, 2018). The majority also notes that "public" is "provided

or supported at the public expense, and under public control: as

in public elementary school." Oxford English Dictionary 780 (2d

- 42 -
ed. 1989). Random House Dictionary and Random House Webster's

Unabridged Dictionary, the majority notes, both define "public" as

"maintained at the public expense and under public control," and

"public school" as one "maintained at public expense for the

education of the children of a community or district and that

constitutes a part of a system of free public education commonly

including primary and secondary schools." The Random House

Dictionary of the English Language 1562-63 (2d ed. 1987); Random

House Webster's Unabridged Dictionary 1562-63 (2d ed. 1997).

These definitions do not support the majority's

definition, which encompasses programs so long as they receive

whatever a court decides is "significant" public funding,20 are

subject to some form of "public administration or oversight," and

entail "the education of students to the academic competence

ordinarily associated with completion of secondary school." The

majority provides no support for these glosses.

II.

The specific features of Rhode Island's adult education

system also clearly distinguish it from "public education." First,

adult education in Rhode Island is not free and is not provided

20 This expansion to any program which secures
"significant" public funding as determined by a court is not only
an improper judicial construct, but the majority then uses an
alternate term of "primary." Further, the majority's conclusion
that this "significant" test has been met on the facts here shows
its infirmity.

- 43 -
wholly at public expense. An enrollee in an adult education GED

class pays, on average, twenty percent of the cost of obtaining a

GED. The Rhode Island Department of Elementary and Secondary

Education covers the testing costs and fees only for certain low

income students who have received a passing score or higher on the

high school equivalency practice test, can prove financial

hardship, and are ineligible for other subsidies. The fact that

some low income applicants can, if approved, take the GED exam for

free if they make a showing of financial hardship and meet other

requirements for this state assistance does not mean that the GED

programs are free and paid for by the state. Rather, the contrary

is true. Additionally, K.L. has made no showing that any or all

of the costs associated with the National External Diploma Program

(NEDP) are borne by the state.

Second, the adult education programs are not controlled

by the state. The programs are offered through a network of

community-based organizations, or local non-governmental

organizations which are not directly affiliated with the state or

a local school district. The adult education programs are provided

by, for example, stand-alone adult education providers, homeless

shelters, and school libraries. The state does not administer the

adult education programs, set their curricula, or determine their

schedules. The state simply sets "performance targets" for these

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adult education programs. That there are funding penalties for

failure to meet such targets does not show control by the state.

K.L. argues that it is unimportant that community-based

organizations, and not state agencies, administer adult education

in Rhode Island, because the IDEA's definition of "secondary

school" encompasses schools that are not operated directly by the

state or a subdivision of the state. K.L. points out that 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." 20 U.S.C. § 1401(27) (emphasis added); see also id.

§ 1401(6) (defining "elementary school" as "a nonprofit

institutional day or residential school, including a public

elementary charter school, that provides elementary education, as

determined under State law") (emphasis added). The statute uses

the phrase "as determined by state law," and Rhode Island law

certainly does not define adult education as either secondary or

elementary school. And K.L. has provided no information that the

level of state involvement in and supervision of such charter and

residential schools equates to the minimum level of Rhode Island

regulation of adult education, even if that were an appropriate

test.

Third, the adult education programs do not resemble

preschool, elementary school, or secondary school. The GED program

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may be likened to test preparation courses for the national,

standardized GED exam. The NEDP program pairs a student with an

"assessor" who "can award credit for demonstrated skills and

knowledge a person has from their life experiences." The student

is thereafter awarded an "actual high school diploma" from one of

three LEAs. The NEDP program does not require any classroom time.

The fact that these programs help adult learners obtain high school

diplomas or high school equivalency diplomas does not make them

the functional equivalent of secondary school for purposes of the

IDEA.

Students completing secondary school in Rhode Island, by

contrast, must demonstrate "proficiency in 6 core areas (English

Language Arts, math, science, social studies, the Arts, and

technology)"; "successful completion of 20 courses (at a

minimum)"; and "completion of 2 performance assessments

(exhibitions, portfolios and/or comprehensive course

assessments)." The Council on Elementary and Secondary Education

has enacted extensive regulations regarding graduation

requirements, which do not apply to adult education programs. The

GED and NEDP programs do not require a graduation portfolio, do

not require the taking of state assessments, and are "of a

different rigor than those offered by the LEAs."

K.L. argues that the difference in content between the

adult education programs and the "traditional high school

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curriculum" should not matter because the IDEA does not require

any particular substantive curriculum for "secondary school." The

IDEA provides that the substantive curricula of elementary and

secondary schools are set by state law, however. See 20 U.S.C.

§ 1401(6), (27). Here, Rhode Island's curriculum requirements for

adult education differ significantly from those of secondary

school. By Rhode Island's substantive standards, then, adult

education programs also fail to qualify as secondary school.

Ultimately, by interpreting the IDEA's use of "public

education" so broadly as to encompass adult education programs in

Rhode Island, the majority has imposed on Rhode Island choices

that the state did not make. For over forty years, states have

been operating on the assumption that § 1412(a)(1)(B)(i) gives

them flexibility to offer a FAPE to children over the age of

eighteen. The majority upsets that expectation and does so without

having any basis in the text of the IDEA or the record.

I respectfully dissent.

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