K.L. v. RI Board of Education , 907 F.3d 639 ( 2018 )

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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