N. D. v. Reykdal

102 F.4th 982

N. D.; T. D., on behalf of a class of those similarly situated, Plaintiffs-Appellants, v. Chris REYKDAL, in his capacity as the Superintendent of Public Instruction;Office of the Superintendent of Public Instruction,a Washington State Agency, Defendants-Appellees.

No. 23-35580

United States Court of Appeals, Ninth Circuit

Argued and Submitted March 25, 2024 Seattle, Washington

Filed May 22, 2024

Appeal from the United States District Court for the Western District of Washington, Lauren J. King, District Judge, Presiding, D.C. No. 2:22-cv-01621-LK-MLP

Ian B. Crosby (argued), Susman Godfrey LLP, Seattle, Washington; Lara R. Hruska and Alexander F. Hagel, Cedar Law PLLC, Seattle, Washington; for Plaintiffs-Appellants.

Brian H. Rowe (argued) and Stephen T. Sipe, Assistant Attorneys General; Robert W. Ferguson, Attorney General; Office of the Attorney General, Seattle, Washington; for Defendants-Appellees.

Before: Kim McLane Wardlaw, William A. Fletcher, and Eric D. Miller, Circuit Judges.

OPINION

MILLER, Circuit Judge:

The Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq., requires States that receive certain federal grants to provide special education to disabled students until their 22nd birthday, but it permits a State to discontinue services as early as age 18 if providing special education to older students "would be inconsistent with State law or practice . . . respecting the provision of public education to children" of the same age. 20 U.S.C. § 1412(a)(1)(B)(i). The State of Washington cuts off special education services at the end of the school year in which a student turns 21. Although its public schools also cut off eligibility for nondisabled students at age 21, Washington offers certain adult-education programs to 21-year-olds. This case presents the question whether the availability of those adult-education programs triggers an obligation under the IDEA to provide special education to disabled 21-year-olds. We conclude that it does. We vacate the district court's order denying a preliminary injunction and remand for further proceedings.

I

The IDEA provides federal funds to States to pay for special education and related services for children with disabilities. In exchange, a State must comply with certain conditions. See Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1, 580 U.S. 386, 390, 137 S.Ct. 988, 197 L.Ed.2d 335 (2017). One such condition is that the State make a "free appropriate public education" (FAPE) available to all children with disabilities. 20 U.S.C. § 1412(a)(1)(A). A FAPE must include the special education and related services "reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances." Endrew F., 580 U.S. at 399, 137 S.Ct. 988; see 20 U.S.C. §§ 1412(a)(4), 1414(d); Board of Educ. v. Rowley, 458 U.S. 176, 200-03, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982).

In general, the IDEA requires a State to provide a FAPE "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). That means that "a student's eligibility for IDEA services ordinarily ends on his twenty-second birthday." E.R.K. ex rel. R.K. v. Hawaii Dep't of Educ., 728 F.3d 982, 986 (9th Cir. 2013). But the statute contains an exception: The obligation to provide a FAPE does not apply to children "aged 3 through 5 and 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 children in those age ranges." 20 U.S.C. § 1412(a)(1)(B)(i). In other words, a State need not provide a FAPE to disabled students between the ages of 18 and 21 if the State does not provide a public education to nondisabled students in that same age range.

Washington, which accepts IDEA funding, requires each school district in the State to ensure "an appropriate educational opportunity for all children with disabilities between the ages of three and twenty-one, but when the twenty-first birthday occurs during the school year, the educational program may be continued until the end of that school year." Wash. Rev. Code § 28A.155.020; see also Wash. Admin. Code § 392.172A.02000(2)(c); id. § 392.121.031 (defining a school year as "the annual period commencing on the first day of September of one calendar year and ending the last day of August of the ensuing calendar year"). Thus, under Washington law, disabled students lose their eligibility for special education upon the end of the school year in which they turn 21; they do not continue to receive such services all the way to their 22nd birthday.

That provision of Washington law is consistent with the State's general age limit for public schools. In Washington, public schools are not open to nondisabled 21-year-olds. See Wash Rev. Code § 28A.225.160(1) ("[I]t is the general policy of the state that the common schools shall be open to the admission of all persons who are five years of age and less than 21 years residing in that school district."); id. § 28A.150.220(5)(a).

Although Washington public schools do not provide education to 21-year-olds, the State does offer two educational programs for students of that age. Washington has created a system of community and technical colleges, see Wash. Rev. Code § 28B.50.010 et seq., which, as relevant here, offer two adult-education programs: High School + and General Education Development (GED) preparation. The High School + program, open to those who are at least 18 years old, allows students who demonstrate competency in specified subjects to receive a high-school diploma that is equivalent to those awarded by Washington secondary schools. The GED preparation classes prepare adults who are at least 16 years old to take the GED exam; most colleges and employers accept a GED certificate as equivalent to a high-school diploma.

Community and technical colleges charge tuition of $25 per quarter for the High School + and GED programs, but that fee can be waived based on inability to pay. Between 2019 and 2022, approximately 40 percent of students received a waiver and thus paid no tuition. Nothing in the record suggests that either the High School + or the GED program provides special education to students with disabilities.

N.D. and E.A. (collectively, the students) are Washington students. Each of them has been diagnosed with autism and is a "child with a disability" under the IDEA. 20 U.S.C. § 1401(3)(A) (defining "child with a disability"). In November 2022, N.D. brought this action, through his parents and guardians, against the Office of Superintendent of Public Instruction—the primary agency responsible for overseeing public K-12 education in Washington—and Chris Reykdal, its Superintendent (collectively, the Superintendent). In April 2023, N.D. filed an amended complaint, the operative pleading here, adding E.A. as a plaintiff and seeking injunctive and declaratory relief as well as compensatory education. The complaint alleges that the students have been denied access to a FAPE "solely because [they] . . . have exceeded the age cutoff the State of Washington has established."

The students sought provisional class certification and a preliminary injunction. The provisional class was to be composed of all disabled students in Washington "at risk of prematurely 'aging out' of their special education programs," while the preliminary injunction would have required the Superintendent to "keep those students in those programs during the pendency of this litigation until they reach the age of twenty-two." The Superintendent opposed both an injunction and class certification. He argued that providing special education to 21-year-old disabled students "would be inconsistent with State law or practice . . . respecting the provision of public education to children in those age ranges." 20 U.S.C. § 1412(a)(1)(B)(i). The students conceded that Washington secondary schools are not open to 21-year-olds but argued that the High School + and GED programs—which are open to 21-year-olds—mean that it is consistent with state law to provide public education to students of that age.

The district court denied a preliminary injunction. The court held that the students had not carried "their burden to demonstrate that they will suffer irreparable harm absent an injunction." The court acknowledged a declaration from E.A.'s mother stating "that when E.A.'s education was interrupted by the COVID-19 pandemic, he experienced mental health issues, lost social skills, and regressed academically," and predicting that he would experience "similar outcomes when his special education services end." But the court reasoned that the students had "not shown that E.A.—or any student—is likely to experience the same effects from a long-planned end to their special education services as they experienced from the unexpected and sudden school closures during the pandemic." It concluded that "there is a dearth of evidence in the record regarding the harms the students are expected to suffer and whether compensatory education services, if later granted, would be sufficient to remedy them." Having denied a preliminary injunction, the court denied the students' motion for class certification as moot.

The students moved for reconsideration, which the district court denied in relevant part. The court adhered to its conclusion that the students had not shown irreparable harm but added that they also could not show a likelihood of success on the merits. The district court stated that this court's decision in E.R.K. defined a "free public education" as "one that is . . . provided at public expense, under public supervision and direction, and without charge." 728 F.3d at 988 (emphasis added). Because the High School + and GED programs charge tuition of $25 per quarter, the district court concluded that the students...