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District Court Ruling Extends Age of Eligibility for Special Education to Twenty-Two

On June 10, the United States District Court for the District of Connecticut issued a ruling regarding the age limitation for special education and related services which has significant implications for local and regional boards of education.  Connecticut General Statutes Section 10-76d(b), and Regulation 10-76d-1(a)(4) currently provides that a school district’s obligation to provide a free appropriate public education (“FAPE”) terminates at the end of the school year in which the student turns 21 years of age, if they have not already graduated with a regular high school diploma.    The District Court, however, ruled that the statute violates the Individuals with Disabilities Education Act (“IDEA”), and that as long as the state provides “public education” to nondisabled students over age twenty-one, it must also provide a FAPE to students with disabilities under age twenty-two in order to comply with the federal IDEA requirements.

A.R. v. Conn. State Bd. of Ed., 2020 WL 3086032 (D. Conn. 2020) began in 2018 as a class action filed on behalf of  special education students who were over age twenty-one, but under twenty-two within two years before the filing of the lawsuit (which occurred in 2016), as well as students who would turn twenty-one at some point during the litigation.  None of the lead plaintiff students had earned a regular high school diploma, which would have ended their eligibility for special education under state law.

The plaintiff students argued that the Connecticut State Board of Education (“SBE”), the entity responsible for supervising and controlling the educational interests of the State, violated the IDEA by failing to provide special education to students between the ages of twenty-one and twenty-two, while providing nondisabled students in that age range with adult education programs which allow them to earn high school diplomas.  The plaintiffs asked the District Court to enjoin (prevent) the SBE from terminating the provision of a FAPE to the students who have not yet turned twenty-two.  The plaintiffs also asked the District Court to award compensatory education to those students whose special education had been terminated based on the state law.

According to the Court, the legality of the Connecticut statute turns on whether Connecticut provides “public education” to individuals over the age of 21 years, and defined “public education”  as an education that is provided:

(1) at public expense through significant state or local governmental funding;

(2) under the administration, supervision or oversight of state educational agencies; and

(3) with the objective of educating students up to the level of academic proficiency associated with the completion of secondary school.

The District Court examined several adult education programs available in the State, including the General Educational Development Program (“GED”), National External Diploma Program (“NEDP”), and the Adult High School Credit Diploma Program (“AHSCD”).  The Court determined that each program was publicly funded, administered, supervised or overseen by the State, and allowed students to earn their high school diplomas.  Those adult education programs, therefore, constituted “public education” under the IDEA.

Since the State, “as a matter of law and practice,” provides public education to nondisabled students over the age of twenty-one, it must also provide a FAPE to students with disabilities who have not yet turned twenty-two.  The SBE’s enforcement of the State laws permitting school districts to terminate special education at the end of the school year during which students reached age twenty-one, therefore, violated the IDEA.

Although, as of this posting, the Court has not yet entered its Order to implement this decision, such an Order would require the State to provide FAPE to all students with disabilities until their 22nd birthday, unless they first earn a high school diploma and are exited from special education as a result of earning that diploma.  The State would also be required to provide compensatory education to those students who are members of the plaintiff class whose eligibility was wrongfully terminated at the end of the school year in which they turned 21, prior to their 22nd birthday.  The process of identifying the members of the plaintiff class and determining what compensatory education services are due has been referred to a Magistrate Judge for further proceedings.

On June 19, shortly after the District Court’s ruling, the Connecticut State Department of Education (“SDE”) issued a Letter to Superintendents of Schools stating that once the District Court’s decision is implemented by Court Order, that Order will supersede any prior guidance issued by the SDE,  unless the decision is stayed pending an appeal by the SBE.  The SDE advised school districts to direct specific questions regarding the effects of the decision to counsel.

School districts should look out for an appeal of the ruling in the coming days or weeks, which could potentially delay or stop its implementation.  If the ruling is either not appealed or is  appealed and the plaintiffs prevail on appeal,  school districts will need to prepare to spend significant time and resources on the provision of compensatory services to students in this class of plaintiffs.

Attorneys at Berchem Moses PC are available to consult schools and school districts regarding regular and special education matters in the State of Connecticut, including matters pertaining to the provision of special education and related services to transition-aged students with disabilities.  For further information, please contact Attorney Michelle Laubin at [email protected]