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                                                                Electronically Filed
                                                                Supreme Court
                                                                SCAP-15-0000520
                                                                05-DEC-2017
                                                                08:06 AM




             IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                            ---oOo---
________________________________________________________________

        HAWAIʻI TECHNOLOGY ACADEMY and the DEPARTMENT OF EDUCATION,
                STATE OF HAWAIʻI, Appellants-Appellees,

                                      vs.

                        L.E., Appellee-Appellant,

                                      and

         HAWAIʻI CIVIL RIGHTS COMMISSION, Appellee-Appellant.

________________________________________________________________

                              SCAP-15-0000520

         APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
              (CAAP-15-0000520; CIV. NO. 14-1-2438-11)

                              DECEMBER 5, 2017

   RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, WILSON, JJ.

                  OPINION OF THE COURT BY McKENNA, J.

                              I.   Introduction

     This case concerns whether the Hawaiʻi Civil Rights

Commission (“HCRC”) has jurisdiction under Hawaiʻi Revised
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Statutes (“HRS”) § 368-1.5 (1993)1 over claims that a child

(“Student”) was subjected to disability discrimination and

improper denial of reasonable accommodations and modifications2

to take an on-line grade-level placement examination required of

homeschooled students applying for entrance to Hawaiʻi Technology

Academy (“the Academy”) (“HCRC complaint”).             The Academy is a

public charter school within Hawaii’s statewide school district

and is part of the State of Hawaiʻi Department of Education

(“DOE”).

1
      HRS § 368-1.5 (1993) provides:

             Programs and activities receiving state financial
             assistance. (a) No otherwise qualified individual in the
             State shall, solely by reason of his or her disability, be
             excluded from the participation in, be denied the benefits
             of, or be subjected to discrimination by state agencies, or
             under any program or activity receiving state financial
             assistance.
                  (b) As used in this section, the term “disability”
             means the state of having a physical or mental impairment
             which substantially limits one or more major life
             activities, having a record of such an impairment, or being
             regarded as having such an impairment.
                  (c) As used in this section, “state financial
             assistance” means grants, purchase-of-service contracts, or
             any other arrangement by which the State provides or
             otherwise makes available assistance in the form of funds
             to an entity for the purpose of rendering services on
             behalf of the State. It does not include procurement
             contracts, state insurance or guaranty contracts, licenses,
             tax credits, or loan guarantees to private businesses of
             general concern that do not render services on behalf of
             the State.


2
   Student’s parent, L.E. (“Parent”), asked for a different day Student
could take the test in a room without other students with the
assistance of an adult, time for a snack break, to take the test in the
same manner he had taken the test at home the year prior (with approved
accommodations of taking the test at home with Parent over a period of
a few days), or for the school to use test scores from the test taken
the year prior.

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       We hold the HCRC lacks jurisdiction over the HCRC complaint

because the legislature intended HRS § 368-1.5 to provide the

HCRC with jurisdiction over disability discrimination claims

only when Section 504 of the federal Rehabilitation Act of 1973

does not apply, and Section 504 does apply to the HCRC

complaint.       We therefore affirm the circuit court’s final

judgment.

                                II.   Background

       To provide context, we begin with a brief overview of

federal laws protecting a child’s access to a free appropriate

public education (“FAPE”) before discussing the factual and

procedural background in this matter.

A.     Free Appropriate Public Education (“FAPE”)

       Both the Individuals with Disabilities Education Act

(“IDEA”), 20 U.S.C. § 1400, et. seq., (previously known as the

Education for All Handicapped Children Act), and the

implementing regulations of Section 504 of the Rehabilitation

Act of 1973 (“the Act”), 21 U.S.C. § 701, et. seq., 34 C.F.R.

Part 104, Subpart D, ensure that children with disabilities have

access to a FAPE.        The IDEA and the Section 504 regulations

differ, however, regarding what constitutes a FAPE and who is

entitled to one.




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       The “core guarantee” of the IDEA3 is “to ensure that all

children with disabilities have available to them a [FAPE] that

emphasizes special education and related services designed to

meet their unique needs and prepare them for further education,

employment, and independent living.”             20 U.S.C. § 1400(d)(1)(A).

Under the IDEA, “special education” means “specially designed

instruction, at no cost to parents, to meet the unique needs of

a child with a disability.”         20 U.S.C. § 1401(29).       A “child

with a disability”4 is a child with at least one disability on an

enumerated list,5 and “who, by reason thereof, needs special

education and related services.”             20 U.S.C. § 1401(3)(A).       A

“FAPE” means “special education and related services” that,

among other things, “are provided in conformity with the

individualized education program [(“IEP”)] required under

section 1414(d) of this title.”             20 U.S.C. § 1401(9)(D).6       A

3
    Fry v. Napoleon Cmty. Schs., 580 U.S. ___, 137 S.Ct. 743, 748 (2017).
4
   The IDEA provides a different definition of a “child with a disability” for
a child aged 3 through 9, which is not applicable to Student. See 20 U.S.C.
§ 1401(3)(B).
5
   The list includes: “intellectual disabilities, hearing impairments
(including deafness), speech or language impairments, visual impairments
(including blindness), serious emotional disturbance (referred to in this
chapter as ‘emotional disturbance’), orthopedic impairments, autism,
traumatic brain injury, other health impairments, or specific learning
disabilities.” 20 U.S.C. § 1401(3)(A)(i). See also 34 C.F.R. § 300.8
(adding “deaf-blindness” and “multiple disabilities” to the list).
6
   The definition of FAPE in the implementing regulations of the IDEA, see 34
C.F.R. § 300.17, is taken directly from the Act, and is therefore not
separately discussed. See 71 Fed. Reg. 46,582 (Aug. 14, 2006) (discussing
the regulatory definition of FAPE).

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team comprised of a student’s parents and educators determine a

student’s IEP.     See 20 U.S.C. § 1414(d)(1)(B).

    In contrast, Section 504 of the Act generally prohibits

disability discrimination: “No otherwise qualified individual

with a disability in the United States . . . shall, solely by

reason of her or his disability, be excluded from the

participation in, be denied the benefits of, or be subjected to

discrimination under any program or activity receiving Federal

financial assistance . . . .”        29 U.S.C. § 794(a).      Thus,

Section 504 applies to other programs in addition to educational

institutions.    However, because the Act was not intended to be

self-executing, see, e.g., Cherry v. Mathews, 419 F. Supp. 922,

924 (U.S.D.C. 1976), relevant federal agencies, such as the U.S.

Department of Education, were mandated to promulgate regulations

tailored to the particular recipients of that agency’s programs.

See Nancy Lee Jones, Section 504 of the Rehabilitation Act of

1973: Prohibiting Discrimination Against Individuals with

Disabilities in Programs or Activities Receiving Federal

Assistance, at 4 (Congressional Research Service 2009),

http://www.llsdc.org/assets/sourcebook/crs-rl34041.pdf; see also

29 U.S.C. § 794(a); 34 C.F.R. § 104.1 (“The purpose of this part

is to effectuate section 504 of the Rehabilitation Act of 1973 .

. . .”).


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      Therefore, Section 504 regulations promulgated by the U.S.

Department of Education contain both general provisions

prohibiting discrimination, see, e.g., 34 C.F.R. § 104.4(b),7 as

well as provisions specific to preschool, elementary, and

secondary education, in Subpart D.           See 34 C.F.R. Part 104,

Subpart D.


7
   Under the Section 504 regulations, a recipient of Federal financial
assistance may not:

             (i) Deny a qualified handicapped person the opportunity to
             participate in or benefit from the aid, benefit, or
             service;

             (ii) Afford a qualified handicapped person an opportunity
             to participate in or benefit from the aid, benefit, or
             service that is not equal to that afforded others;

             (iii) Provide a qualified handicapped person with an aid,
             benefit, or service that is not as effective as that
             provided to others;

             (iv) Provide different or separate aid, benefits, or
             services to handicapped persons or to any class of
             handicapped persons unless such action is necessary to
             provide qualified handicapped persons with aid, benefits,
             or services that are as effective as those provided to
             others;

             (v) Aid or perpetuate discrimination against a qualified
             handicapped person by providing significant assistance to
             an agency, organization, or person that discriminates on
             the basis of handicap in providing any aid, benefit, or
             service to beneficiaries of the recipients program or
             activity;

             (vi) Deny a qualified handicapped person the opportunity to
             participate as a member of planning or advisory boards; or

             (vii) Otherwise limit a qualified handicapped person in the
             enjoyment of any right, privilege, advantage, or
             opportunity enjoyed by others receiving an aid, benefit, or
             service.

34 C.F.R. § 104.4(b).


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      Subpart D requires, among other things, that each qualified

handicapped person within the jurisdiction of a public

elementary or secondary education program or activity receiving

federal financial assistance be provided a FAPE by that program

or activity.      See 34 C.F.R. § 104.33(a).        Under Section 504

regulations, a FAPE is defined as the “regular or special

education and related aids and services that . . . are designed

to meet individual educational needs of handicapped persons as

adequately as the needs of nonhandicapped persons are met.”                 34

C.F.R. § 104.33(b)(1) (emphasis added).            Because Section 504

regulations define a “qualified handicapped person”8 more broadly

than a “child with a disability” under the IDEA, children who

may not be covered by the IDEA may be covered by Section 504.

      In sum, coverage of students under the IDEA may be more

limited in scope than coverage under Section 504.              However, for

those students who are covered by the IDEA, the IDEA provides

8
   A “handicapped person” is “any person who (i) has a physical or mental
impairment which substantially limits one or more major life activities, (ii)
has a record of such an impairment, or (iii) is regarded as having such an
impairment.” 34 C.F.R. § 104.3(j). A “qualified handicapped person” with
respect to public elementary or secondary educational services, means:

             a handicapped person (i) of an age during which
             nonhandicapped persons are provided such services, (ii) of
             any age during which it is mandatory under state law to
             provide such services to handicapped persons, or (iii) to
             whom a state is required to provide a free appropriate
             public education under section 612 of the Education of the
             Handicapped Act[.]

34 C.F.R. § 104.3(l)(2).


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broader protections than Section 504 as the IDEA requires that

specialized instruction “meet the unique needs of a child with a

disability,” whereas Section 504 requires only that the

individual educational needs of handicapped persons be met “as

adequately as the needs of nonhandicapped persons are met.”

Because of the IDEA’s additional protections, providing a FAPE

under the IDEA meets the standards of providing a FAPE under

Section 504.       See 34 C.F.R. § 104.33(b)(1).

B.     Procedural Safeguards

       The IDEA requires local educational agencies that receive

federal assistance to “establish and maintain procedures in

accordance” with 20 U.S.C. § 1415 “to ensure that children with

disabilities and their parents are guaranteed procedural

safeguards with respect to the provision of a [FAPE] by such

agencies.”       20 U.S.C. § 1415(a).        Specific required procedures

include, but are not limited to, providing parents an

opportunity to examine a student’s records, written notification

to the parents regarding any changes as to how FAPE would be

provided to a student, and an opportunity for mediation or to

file a due process complaint notice for an impartial due process

hearing conducted by the State educational agency.               See

generally 20 U.S.C. § 1415.




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       Similarly, the Section 504 regulations pertaining to

schools also require procedural safeguards:

                    A recipient that operates a public elementary or
              secondary education program or activity shall establish and
              implement, with respect to actions regarding the
              identification, evaluation, or educational placement of
              persons who, because of handicap, need or are believed to
              need special instruction or related services, a system of
              procedural safeguards that includes notice, an opportunity
              for the parents or guardian of the person to examine
              relevant records, an impartial hearing with opportunity for
              participation by the person’s parents or guardian and
              representation by counsel, and a review procedure.

34 C.F.R. § 104.36.         These standards can be met by compliance

with the procedural safeguards requirements of the IDEA.                See

id.

C.     Factual Background

       Student, who was thirteen years old in 2014, was born with

Trisomy 21, also known as Down syndrome.             Student has mild

bilateral hearing loss, wears corrective lenses to read, and has

also been diagnosed with Attention Deficit Hyperactivity

Disorder (“ADHD”), hypotonia (low muscle tone), and dysphagia

(swallowing disorder).         The DOE found Student eligible for

special education services in 2003.

       Student attended the Academy from 2008 to 2012 and received

special education and related services.             In May 2011, Student’s

IEP team recommended that Student be placed at a public

elementary school offering daily face-to-face classes, which

contrasted with the Academy’s hybrid face-to-face and on-line


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learning environment.      Parent challenged that recommendation and

requested a due process hearing before an impartial hearing

officer pursuant to the IDEA, 20 U.S.C. § 1415(f)(1)(A),

(f)(3)(a)(i).    Student remained at the Academy for the 2011–2012

school year during the administrative proceedings.            On May 21,

2012, an administrative hearing officer affirmed the May 2011

decision by Student’s IEP team.

     Ten days later, on May 31, 2012, the Academy sent Parent a

letter stating that the Academy would be implementing the May

2011 IEP and advised Parent to enroll Student at Heʻeia

Elementary, Student’s geographic home school.           By letter dated

June 12, 2012, the Academy notified Parent that Student would no

longer be able to attend the Academy as of June 18, 2012, the

Academy’s school-wide withdrawal date.          On June 15, 2012, Parent

hand-delivered to the Academy and the DOE a revocation of her

consent for special education and related services to Student.

Parent also sent an e-mail to the Academy and the DOE stating

that as a consequence of her revocation, she expected Student to

remain at the Academy as a “regular education student.”

The Academy, however, withdrew Student from enrollment on June

18, 2012.

     On June 20, 2012, the same date as Parent’s deadline for

appealing the administrative hearing officer’s decision, the


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Academy issued a written notice stating that Student’s special

education and related services would be terminated upon Parent’s

receipt of the notice.      Parent received the written notice on

June 22, 2012.     By letter dated July 25, 2012, the Academy

stated that Parent’s revocation of special education and related

services did not take effect until June 20, 2012, the date of

the written notice.

    Parent then applied Student for enrollment as a general

education student for the 2012–2013 academic year.            Student was

permitted to take the required grade-level placement test at

home with Parent over several days in September 2012.             Student

was ultimately waitlisted, and Parent homeschooled Student for

the 2012-13 school year.

    Parent again applied Student for admission to the Academy

for the 2013–2014 academic year.          Parent requested

accommodations or modifications to the Academy’s grade-level

placement test requirement, such as allowing use of the previous

year’s test scores, allowing Student to take the test at home as

he had done the previous year, allowing Student to take the test

alone in a room with an adult, or providing Student additional

time for a snack break.

    Parent took Student to the Academy campus during scheduled

test times in May 2013 and July 2013.          Parent was informed by


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the Academy’s director that because Parent had revoked consent

to the IDEA and the IEP, the Academy would not be able to give

Student any accommodations or supports.             Student was unable to

complete the test.        Specifically, according to Parent, Student

needed help being focused and directed question by question, but

he was not given a one-to-one aide during the test.               As a

result, Student was unable to complete the test because he was

distracted and ended up going on the internet instead.

According to Parent, Student’s enrollment application was

discarded as insufficient because he was not able to take the

test due to his disabilities; his application was therefore not

processed.

       Student was again homeschooled during the 2013–2014

academic year.        In July 2014, when Student would have

chronologically been a ninth grader, Parent and the Academy

agreed to enroll Student as a sixth grade general education

student, where he received some services through a Section 504

plan.      By June 2015, Student was given a new IEP that placed him

at a different school.         Parent thereafter withdrew Student from

the Academy.

D.     IDEA and Section 504 Claims in United States District Court

       Meanwhile, on June 20, 2012, two days after the Academy’s

schoolwide withdrawal date and the termination date for


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Student’s special education services based on Parent’s

revocation of consent, as deemed by the Academy, and after

exhausting administrative remedies, Parent filed an IDEA

complaint in the United States District Court for the District

of Hawaiʻi, arguing the May 2012 decision of the administrative

hearing officer — that Student’s appropriate placement to

receive a FAPE was at Heʻeia Elementary, not the Academy — should

be reversed.     See Jason E. v. Dep’t of Educ., Civ. No. 12-00354

ACK-BML.    By order dated February 14, 2013, the federal district

court ruled the complaint moot because Parent had revoked

consent for Student to continue receiving IDEA special education

services.    However, the court permitted Parent to amend the

complaint to reflect her intent for Student to be treated as a

general education student at the Academy.

     Parent filed a first amended complaint on March 19, 2013,

reflecting that intent.      Parent’s May 10, 2013 second amended

complaint asserted that she revoked consent for the continued

provision of special education and related services to determine

whether Student would benefit from a general education program

at the Academy with or without Section 504 reasonable

modifications.     On May 7, 2014, Parent filed a third amended

complaint, alleging in part: (1) the DOE and the Academy should

have honored the revocation of consent by treating Student as a

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general education student and continuing his enrollment at the

Academy; and (2) the DOE and the Academy violated Section 504

and Title II of the Americans with Disabilities Act of 1990 when

Student, by reason of his disability, was released as a student

and no longer had access to the general education curriculum at

the Academy.    At a hearing before the federal district court,

Parent clarified that the relief sought was for Student to

receive a FAPE at the Academy as a general education student.

    By order dated November 20, 2014, the federal district

court granted the defendants’ motion to dismiss the third

amended complaint.     The court deemed the third amended complaint

moot because Student was already enrolled as a general education

student at the Academy and because the Academy had provided

Student a FAPE through a Section 504 Plan.          In the alternative,

on the merits, the court ruled in part that federal regulations

do not expressly require that a disabled student remain at the

same school after a parent revokes IDEA consent; rather, the

regulations leave open the possibility that a student may be

placed in a different school as a general education student.

The federal district court also concluded Parent only provided

conclusory statements that the accommodations she requested for

Student were reasonable or that the Section 504 Plan was

deficient.


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E.     Pre-complaint Questionnaire and Petition for Declaratory
       Relief

       While Student was still being homeschooled during the 2013-

2014 school year after not being able to complete the Academy’s

placement examination, on January 14, 2014, Parent submitted a

pre-complaint questionnaire to the HCRC alleging disability

discrimination based on the Academy’s alleged failure to provide

reasonable accommodations for the examination.              On February 10,

2014 the HCRC’s Executive Director ruled the HCRC lacked

jurisdiction over Parent’s claim.            By letter dated April 21,

2014, Parent submitted a petition to the HCRC, asserting the

HCRC has jurisdiction to review her complaint alleging

disability discrimination when Student’s application to the

Academy for the 2013–2014 school year was denied based on his

inability to complete the grade level placement test; Parent

alleged the Academy denied Student reasonable accommodations or

modifications required based on Student’s disability.                On July

25, 2014, the Executive Director submitted a memorandum in

opposition.       For purposes of addressing jurisdiction, the

Executive Director assumed that Student was “an otherwise

qualified individual with a disability and that he was unable to

complete the required test because of his disability.”                The

Executive Director opined, however, that because publicly funded

educational institutions are not “public accommodations,” the

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HCRC lacked jurisdiction under HRS § 368-1 (Supp. 2011).9                  The

Academy and the DOE also opposed the petition based on lack of

subject matter jurisdiction.

      The HCRC held an oral argument on August 18, 2014, after

Student had been re-enrolled at the Academy.             Parent focused on

Student’s need to learn effective communication through sign

language.      She explained that the Academy’s grade-level

placement test requires communication skills and the ability to

be seated, which was something Student could not master.               Parent

argued that despite her revocation of special education and

related services, Student was entitled to disability

accommodations and supports during the placement test.

      Parent conceded the Academy had already eliminated its

grade-level admission test policy and that Student was then

currently attending the Academy.            However, neither the Executive

Director nor the Academy and DOE argued mootness.              Instead, the

Executive Director focused on the legislative purpose behind HRS

§ 368-1.5, and argued that for two reasons, it was necessary to

examine the legislative history of HRS § 368-1.5.              According to

the Executive Director, first, nothing in Chapter 368 defines

9
   HRS § 368-1 states in relevant part: “The legislature finds and declares
that the practice of discrimination because of race, color, religion, age,
sex, including gender identity or expression, sexual orientation, marital
status, national origin, ancestry, or disability in employment, housing,
public accommodations, or access to services receiving state financial
assistance is against public policy.” HRS § 368-1.

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“program or activity” or “state agency.”          Second, as the

legislature had opted to leave out language from HRS § 368-1.5

that was present in Section 504, it was unclear whether the

manner in which Section 504 and its implementing regulations

define those same terms should apply to HRS § 368-1.5.             The

Executive Director also argued that the legislature did not

supplant or supplement existing University of Hawaiʻi and DOE

procedures for handling discrimination claims, and that if the

HCRC did indeed have jurisdiction over claims such as those in

the petition, extensive rulemaking would be required to not

wreak havoc on the current system.

     The Academy and the DOE argued the petition was essentially

a special education matter under the IDEA.          They further argued

the DOE had extensive administrative rules governing IDEA and

Section 504 claims, and that HRS § 368-1.5 does not require the

State to implement Section 504.        Counsel also argued that if an

HRS § 368-1.5 violation provided the HCRC with jurisdiction over

any disability discrimination claim, then language specifically

identifying the areas of the HCRC’s jurisdiction — employment,

real estate, and public accommodations — would be superfluous.

     The HCRC decision characterized the dispute as one in which

Parent sought a disability accommodation for Student, but was

denied:


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           During the application process, [Parent] sought an
           accommodation from [the Academy] in the form of extra time
           for [Student], who was otherwise qualified for admission to
           [the Academy], to complete a grade-level placement exam.
           [The Academy] denied the requested accommodation, and
           because [Student] did not complete the placement assessment
           in the time provided, [the Academy] denied his application
           for admission.

In its Decision and Order dated October 28, 2014, the HCRC

determined it lacked jurisdiction under HRS § 368-1 over

Student’s claim regarding the denial of reasonable

accommodations, as the Academy was not a “place of public

accommodation.”     The HCRC then determined, however, that it

nevertheless had jurisdiction over Parent’s claim under HRS §

368-1.5, as the Academy was a state agency or a “program or

activity receiving state financial assistance.”           The HCRC

examined the plain language of various sections of Chapter 368,

and noted HRS § 368-17(a)(3) provides a remedy of “[a]dmission

of persons to a public accommodation or an educational

institution,” and ruled the existence of the remedy of admission

to educational institutions would be absurd without the

existence of a right under HRS § 368-1.5.          Moreover, the HCRC

asserted that if HRS § 368-1.5 did not apply to public schools,

then families whose children were excluded from or otherwise

discriminated against by public schools would be unable to file

complaints of discrimination with the HCRC.           Further, according

to the HCRC, if the HCRC cannot accept the complaint, it cannot

issue a right to sue letter and if a person cannot get a right
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to sue letter, she cannot file suit in state court — or in any

court — to obtain the remedies provided in HRS § 368-17 for the

discriminatory exclusion.

       The HCRC deemed it unnecessary to do so but nevertheless

went on to examine the legislative history of HRS § 368-1.5.                  It

asserted that despite the legislature’s intent to model HRS §

368-1.5 on Section 504, the legislative history of Section 504

did not bear on the legislative purpose in enacting HRS § 368-

1.5.       Rather, according to the HCRC, the legislative history

behind subsequent amendments to HRS § 368-1.5 reflected the

legislature’s intent to vest the HCRC with enforcement authority

over all cases under HRS § 368-1.5, which the HCRC characterized

as Hawaii’s “Section 504 analog.”

       The HCRC decision did not address whether any federal

remedies interacted with HRS § 368-1.5 or whether the HCRC’s

jurisdiction would be affected by federal law or existing DOE

complaint procedures.

F.     Circuit Court Proceedings

       The Academy and the DOE timely appealed to the circuit

court.      After the parties submitted their briefs, oral argument

was held.

       The circuit court reversed the HCRC decision, ruling as

follows:


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                    After carefully reviewing the entire record on appeal
              and considering the written submissions and arguments of
              the parties, the Court finds and concludes that pursuant to
              Hawaiʻi Revised Statutes §91-14(g)(2), the Hawaiʻi Civil
              Rights Commission acted in excess of its statutory
              authority and/or jurisdiction under Hawaiʻi Revised Statute
              §368-1.5 by asserting jurisdiction over [Parent’s]
              discrimination claim against the Department of Education
              and Hawaiʻi Technology Academy.

G.     The Current Appeal

       The HCRC timely filed its notice of appeal with the ICA;

the appeal was then transferred to this court.              The HCRC argues

in its opening brief that public charter schools, such as the

Academy, are “state agencies” or “programs or activities

receiving state financial assistance” under HRS § 368-1.5.                  The

HCRC also argues the legislature did not intend to exclude

public educational institutions from HRS § 368-1.5’s coverage.

It asserts HRS § 368-1.5 is the state counterpart to Section

504, which at the time of § 368-1.5’s enactment covered public

educational institutions, and which required such institutions

to make reasonable accommodations.            The HCRC emphasizes

legislative history stating HRS § 368-1.5 was “intended to

extend the protection provided by Section 504 to State financed

programs” in the areas of “employment, housing, education,

access to services, and public accommodations.”              (quoting H.

Stand. Comm. Rep. No. 819, in 1989 House Journal, at 1140 and

citing an attachment to the testimony of Nancy S. Partika,

Director of the Governor’s Committee on AIDS).

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     The HCRC also asserts Section 504 does not preempt HRS §

368-1.5 because nothing in Section 504 prohibits states from

enacting state laws to prohibit disability discrimination by

state agencies or state-funded programs and because compliance

with and enforcement of both Section 504 and HRS § 368-1.5 is

possible.    Further, it argues the HCRC would not evaluate the

content of “pure Section 504 academic special education

instructional plans and related accommodations.”            According to

the HCRC, its enforcement of HRS § 368-1.5 would only overlap

with the DOE’s enforcement of non-academic accommodations under

Section 504.

        The HCRC acknowledges it lacks jurisdiction over student

complaints under the IDEA and/or accommodations relating to IEPs

because neither HRS § 368-1.5 nor its legislative history

indicate it was meant to apply to benefits and programs provided

under the IDEA.     The HCRC argues, however, that there is nothing

that prevents a student from pursuing remedies under both the

IDEA and HRS § 368-1.5.      The HCRC also observes that there is no

conflict between HRS § 368-1.5 and statutes governing Hawaiʻi

public charter schools or the DOE’s administrative rules

governing its “Civil Rights Policy and Complaint Procedure.”

     The Academy and the DOE concede in their answering brief

that public charter schools are “state agencies,” but argue HRS


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§ 368-1.5 does not apply to state agencies that also receive

federal funds.        The Academy and the DOE interpret the statement

in the House Standing Committee Report that “[t]his measure is

intended to extend the protection provided by Section 504 to

State financed programs,” to mean that “the Legislature intended

to provide Section 504-type protections only to those state

agencies that were not already covered by Section 504.”

(emphasis added).

       In addition, the Academy and the DOE also note that within

the educational context, there is no bright line distinction

between a “non-academic” and “academic” modification,

accommodation, or service, because the failure to provide a

student with a necessary modification, accommodation, or service

pursuant to Section 504 directly impacts the student’s ability

to receive a FAPE.

                          III.    Standards of Review

A.     Interpretation of a Statute

       Statutory interpretation is a question of law reviewable de

novo.      See Citizens Against Reckless Dev. v. Zoning Bd. of

Appeals, 114 Hawaiʻi 184, 193, 159 P.3d 143, 152 (2007) (citation

omitted).       When construing statutes, the court is governed by

the following rules:

              First, the fundamental starting point for statutory
              interpretation is the language of the statute itself.
              Second, where the statutory language is plain and
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              unambiguous, our sole duty is to give effect to its plain
              and obvious meaning. Third, implicit in the task of
              statutory construction is our foremost obligation to
              ascertain and give effect to the intention of the
              legislature, which is to be obtained primarily from the
              language contained in the statute itself. Fourth, when
              there is doubt, doubleness of meaning, or indistinctiveness
              or uncertainty of an expression used in a statute, an
              ambiguity exists.

                    When there is ambiguity in a statute, the meaning of
              the ambiguous words may be sought by examining the context,
              with which the ambiguous words, phrases, and sentences may
              be compared, in order to ascertain their true meaning.
              Moreover, the courts may resort to extrinsic aids in
              determining legislative intent, such as legislative history,
              or the reason and spirit of the law.

114 Hawaiʻi at 193-94, 159 P.3d at 152-53 (citations omitted).

B.     Administrative Agency Appeals

                    Ordinarily, deference will be given to decisions of
              administrative agencies acting within the realm of their
              expertise. The rule of judicial deference, however, does
              not apply when the agency’s reading of the statute
              contravenes the legislature’s manifest purpose.
              Consequently, we have not hesitated to reject an incorrect
              or unreasonable statutory construction advanced by the
              agency entrusted with the statute’s implementation.

Coon v. City & Cnty. of Honolulu, 98 Hawaiʻi 233, 245, 47 P.3d

348, 360 (2002) (citations and brackets omitted).

                                IV.   Discussion

A.     Preliminary Issues

       Preliminarily, we note that Student was admitted to and re-

enrolled at the Academy for the 2014–2015 academic year.                Parent

subsequently voluntarily withdrew Student by July 2015.

Possible mootness was not, however, argued by the Academy or

DOE.       In any event, the question of whether the HCRC has

jurisdiction over the HCRC complaint is one that affects the

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public interest and is “capable of repetition yet evading

review.”   Okada Trucking Co. v. Bd. of Water Supply, 99 Hawaiʻi

191, 196, 53 P.3d 799, 804 (2002) (citations omitted).

Accordingly, even if mootness had been raised, the

jurisdictional question raised presents an exception to the

mootness doctrine and we proceed to address the issue.

    HCRC asserts that provision of services to the disabled for

school placement examinations is a “non-academic” accommodation

over which it has jurisdiction under HRS § 368-1.5.            Whether an

accommodation is “academic” or “non-academic,” as those terms

are used by the HCRC, may not affect whether that accommodation

is necessary to a FAPE under Section 504.          For example, the HCRC

provides the following illustrations of “non-academic”

accommodations: “if a public high school student with a mobility

impairment requested additional time to get to his or her next

class,” “if a child needs a ramp,” or “if a child . . . needs

materials in large print.”       These accommodations, however, also

relate to the provision of a FAPE under Section 504, and

therefore concern a student’s education or academics.             See 34

C.F.R. § 104.33(b)(1) (defining a FAPE under Section 504 as the

“regular or special education and related aids and services that

. . . are designed to meet individual educational needs of

handicapped persons as adequately as the needs of nonhandicapped


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persons are met.”).         Thus, it is not clear whether the

distinction made by the HCRC has merit.             In any event, based on

the analysis in the next section, any distinction along these

lines is irrelevant.

B.     The legislature intended for HRS § 368-1.5 to apply to
       schools only when Section 504 is inapplicable.

       We hold that based on the following analysis of the

legislative history of HRS Chapter 368 and HRS § 368-1.5, the

legislature did not intend the HCRC to have jurisdiction over

disability discrimination claims if Section 504 protections are

applicable.       In this case, because Section 504 protections apply

to the HCRC complaint, the HCRC lacks jurisdiction.

       1.     Formation of the HCRC

       The HCRC was formed by Act 219 of 1988 to “establish a

civil rights commission to enforce the State’s laws which

prohibit discrimination on the basis of race, color, religion,

age, sex, marital status, national origin, ancestry, physical

handicap, or medical condition in employment, housing, or public

accommodation.”        H. Stand. Comm. Rep. No. 387-88, 1988 House

Journal, at 991.        The legislature explained the need for a

commission focused solely on discrimination complaints:

                    Presently, statutorily mandated enforcement
              responsibilities for the State’s discrimination laws are
              divided primarily among several agencies within the
              department of labor and industrial relations and the
              department of commerce and consumer affairs. Enforcement
              of discrimination laws is only one of many other important

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           functions of these departments and the enforcement programs
           must compete with other departmental programs for priority
           status. Typically, the enforcement agencies are hampered
           in their delivery of services because of limited fiscal and
           personnel resources.

H. Stand. Comm. Rep. No. 660-88, 1988 House Journal, at 1081;

see Conf. Comm. Rep. No. 165-88, in 1988 House Journal, at 845,

1988 Senate Journal, at 717.       Act 219 created HRS Chapter 368

and the “General Provisions” governing the HCRC (now Part 1 of

Chapter 368).    See 1988 Haw. Sess. Laws Act 219, § 1 at 386-88.

The General Provisions included HRS § 368-1 (Purpose and

intent), HRS § 368-2 (Civil rights commission established), HRS

§ 368-3 (Powers and functions of commission), HRS § 368-4

(Records; reporting requirements), and HRS § 368-5 (Penalties).

See id.

    Act 219 directed the State Legislative Auditor to “conduct

a review of all state discrimination laws and the current

policies, procedures, and staffing of the respective state

departments and agencies” and report to the legislature with its

findings and recommendations.        1988 Haw. Sess. Laws Act 219, § 3

at 388.

    2.     1989 Amendments through Act 386

    In early January 1989, the State Legislative Auditor

submitted a report to the Governor and the legislature entitled,

“A Study on Implementation of the Civil Rights Commission for

the State of Hawaii.”      The report provided an initial analysis
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of the HCRC and made several recommendations for creating a

uniform procedure for enforcement.         The legislature then passed

Act 386 “to implement Chapter 368, Hawaii Revised Statutes,

which created a civil rights commission to provide a uniform

procedure for handling all types of discrimination complaints,

to provide funding[] and staffing authorization necessary for

the civil rights commission to begin operations as intended by

the 1988 Legislature, and to more effectively enforce the

State’s discrimination laws.”        H. Stand. Comm. Rep. No. 1064,

1989 House Journal, at 1226.

    Act 386 amended HRS Chapter 378 (Employment Practices), HRS

Chapter 489 (Discrimination in Public Accommodations), and HRS

Chapter 515 (Discrimination in Real Property Transactions) to

give the HCRC authority to handle discrimination complaints

under those chapters.      See 1989 Haw. Sess. Laws Act 386, §§ 2-4,

8-26 at 1105-13.     HRS §§ 368-2, -3, and -4 were amended to

reflect this new authority.       See 1989 Haw. Sess. Laws Act 386, §

5-7 at 1106-07.

    Act 386 also created “Remedies” for the HCRC (now Part II

of Chapter 368), including HRS § 368-11 (Complaint against

unlawful discrimination); HRS § 368-12 (Notice of right to sue);

HRS § 368-13 (Investigation and conciliation of complaint); HRS

§ 368-14 (Commission hearings); HRS § 368-15 (Compliance


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review); HRS § 368-16 (Appeals; de novo review; procedure); and

HRS § 368-17 (Remedies).        See 1989 Haw. Sess. Laws Act 386, § 1

at 1102-05.

    3.      1989 Amendments through Act 387

    In 1989, the legislature also passed Act 387.              Act 387

added “access to services” to the purpose and intent under HRS §

368-1:    “The legislature finds and declares that the practice of

discrimination because of race, color, religion, age, sex,

marital status, national origin, ancestry, or handicapped status

in employment, housing, public accommodations, or access to

services receiving state financial assistance is against public

policy.”    1989 Haw. Sess. Laws Act 387, § 1 at 1114.

    Act 387 also added what is now codified as HRS § 368-1.5,

the subject of this appeal, using language very similar to

Section 504:

            (a) No otherwise qualified individual in the [S]tate shall,
            solely by reason of his or her handicapped status, be
            excluded from the participation in, be denied the benefits
            of, or be subjected to discrimination by State agencies, or
            under any program or activity receiving State financial
            assistance.

            (b) As used in this section, the term “handicapped status”
            means the state of having a physical or mental impairment
            which substantially limits one or more major life
            activities, having a record of such an impairment, or being
            regarded as having such an impairment.

            (c) As used in this section, “State financial assistance”
            means grants, purchase-of-service contracts, or any other
            arrangement by which the State provides or otherwise makes
            available assistance in the form of funds to an entity for
            the purpose of rendering services on behalf of the State.
            It does not include procurement contracts, state insurance
            or guaranty contracts, licenses, tax credits, or loan
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           guarantees to private businesses of general concern that do
           not render services on behalf of the State.

1989 Haw. Sess. Laws Act 387, § 2 at 1114-15.

           a.    Standing Committee Reports on Act 387

    The Senate Standing Committee Report contains little

discussion regarding the intended scope of the HCRC’s

jurisdiction under HRS § 368-1.5, but does clarify that Act 387

was not meant to extend to private businesses receiving no state

funding.   See S. Stand. Comm. Rep. No. 1326, 1989 Senate

Journal, at 1304.     The House Standing Committee Report, however,

elucidates that Act 387 was intended to provide the HCRC with

jurisdiction only in areas not covered by Section 504:

                 The purpose of this bill is to extend civil rights
           guarantees to handicapped individuals impacted by programs
           receiving state funds. . . . Additionally, the practice of
           discrimination in access to public services is added to the
           list of acts declared to be contrary to public policy.

                 Your Committee received favorable testimony from the
           Governor’s Committee on AIDS, the State Planning Council on
           Developmental Disabilities, the Hawaii Center for
           Independent Living, the Department of Health and the
           Commission on the Handicapped.

                 Your Committee finds that Section 504 of the Federal
           Rehabilitation Act prohibits discrimination under any
           program or activity receiving federal financial assistance.
           This measure is intended to extend the protection provided
           by Section 504 to State financed programs, and establishes
           investigation and enforcement mechanisms within the State
           Civil Rights Commission.

H. Stand. Comm. Rep. No. 819, 1989 House Journal, at 1140.

    The concern identified in the report is the lack of

“protection provided by Section 504 to State financed programs.”

Additionally, nothing in the report indicates that State
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protection is needed for federally funded programs.            Therefore,

“extend” can only mean to provide coverage to, and was not meant

to also encompass federally funded programs already subject to

Section 504.    The testimony cited to in the report also reflects

this understanding of the Act.        See infra Part IV.B.3.b..

           b.    Testimony regarding Act 387

    The House Judiciary Committee, the House Committee on

Health and Human Services, and the Senate Judiciary Committee

received testimony regarding H.B. 932, later enacted as Act 387.

All of the testimony was in support of H.B. 932.            Much of the

testimony demonstrated a basic understanding that H.B. 932 would

“extend” the protection provided by Section 504, and would only

apply when Section 504 did not.        The testimony conflicts with

the HCRC’s interpretation that the legislature intended to

create “Hawaii’s § 504 analog” that would also encompass Section

504 claims.

    For example, testimony from the Director of the Governor’s

Committee on AIDS, relied on by the HCRC to support its

position, stated:

           Currently, Section 504 prohibits discrimination under any
           program or activity receiving federal financial assistance.
           This applies to all State government programs, and to
           private agencies receiving federal funds through a State
           program, as well as to private agencies receiving federal
           funds directly from the federal government. It is not
           clear, however, that private agencies receiving only State
           financial assistance are subject to the nondiscrimination
           provisions of Section 504. State contracts using solely
           State funds do not include the nondiscrimination language
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           of Section 504. HB 932, HD 1 will clearly extend the
           concept of not tolerating discrimination by reason of
           handicap to any program receiving State funds, and
           establishes investigation and enforcement mechanisms at the
           State level.

(emphases added).

    The Director’s comment that “[i]t is not clear . . . that

private agencies receiving only State financial assistance are

subject to the nondiscrimination provisions of Section 504” is

critical to understanding the testimony’s use of “extend.”

    The concern regarding lack of remedies against state

agencies or programs and activities that do not receive federal

funds (and therefore not subject to Section 504) was reiterated

in testimony to House and Senate Committees from multiple

parties.   For example, as the Department of Health testified

before the Senate Committee:

                 We note that programs and activities of the State and
           of other agencies which receive Federal financial
           assistance currently must provide services or opportunities
           without excluding people also on the basis of their race,
           color, national origin, or age, in addition to handicap.
           For some, sex is also a protected factor.

                 The creation of Chapter 368 last year clearly
           indicated that it is against public policy to discriminate
           because of race, color, religion, age, sex, marital status,
           national origin, ancestry, handicapped status, or medical
           condition in employment, public accommodations, and
           housing. . . .

                 Therefore, we propose that HB 932, HD 2, be amended
           to clarify and reflect this public policy in State programs
           and activities and in programs and activities receiving
           State financial assistance. . . .

In other testimony before the House Judiciary Committee, the

Department of Health stated, “We support these extensions.”

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Similarly, before the House Health and Judiciary Committees, the

Department of Health explained, “The additions use the phrasing

found in Section 504 of the federal Rehabilitation Act of 1973

and in Section 504 implementing regulation.           As such we are

familiar with its meaning and agree that it would be a

significant addition to the protections against discrimination.”

(emphasis added).

    As another example, the Protection and Advocacy Agency of

Hawaii’s testimony stated, “According to 29 U.S.C [§] 794,

individuals with handicapping conditions shall not be

discriminated against because of their handicap in services,

programs or activities receiving Federal financial assistance.

This bill would ensure the same guarantees to disabled

individuals in all programs and services receiving state

financial assistance.”      (emphasis added).      The ACLU of Hawaii’s

testimony echoed this view:       “[A]s state government increasingly

contracts for services with private agencies, there are an

increasing number of agencies that do not receive any federal

funds but whose programs are funded in large part by state

grants.”   So, too, did the testimony by the Commission on the

Handicapped:

           The federal [Section 504] law applies to programs and
           activities which receive federal financial assistance and
           precludes those programs and activities from discriminating
           against qualified handicapped individuals. . . .


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                 We believe that it is of prime importance for the
           State of Hawaii to demonstrate the same commitment to
           equality for persons with disabilities by adopting similar
           language in State law. This law would bind recipients of
           state financial assistance to the same standards as current
           recipients of federal financial assistance.

    In sum, this testimony reflects the House Committee

Report’s intention that Act 387 was meant to provide protection

for disability discrimination only when federal Section 504

protections did not apply.       There is no mention of providing

overlapping jurisdiction between Act 387 and Section 504 or

offering an additional state remedy to those who are already

protected by Section 504.

    4.     1991 Amendments through Act 252

    Act 252 of 1991 clarified the provisions of Chapter 368

that relate to contested case hearings and appeal procedures,

explaining:

           The legislature has established the Hawaii civil rights
           commission to create a mechanism which would provide a
           uniform procedure for the enforcement of the state’s laws
           prohibiting discrimination in employment, housing, and
           public accommodations. The legislature finds that in
           implementing its legislative mandate, there are ambiguous
           and inconsistent provisions.

1991 Haw. Sess. Laws Act 252, § 1 at 549.          Act 252 was not

intended to substantively change chapter 368 or increase or

decrease the rights provided under HRS chapters 489 and 515 and

part I of chapter 378.      See id.




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    5.     The above legislative history shows that HRS § 368-1.5
           was intended to be gap-filling.

    This legislative history demonstrates the legislature

intended HRS § 368-1.5 to provide the HCRC with jurisdiction

over disability discrimination complaints only when federal

protections under Section 504 do not apply.           The committee

reports and testimony regarding Act 387 were concerned with

scenarios in which disabled individuals lacked legal protections

from discrimination, but that concern is not present where

Section 504 applies.      Moreover, there is no suggestion in the

legislative history that the legislature wanted to provide an

alternative state remedy in situations where federal remedies

already existed.     In other words, HRS § 368-1.5 was designed to

be gap-filling, rather than to offer overlapping state and

federal protection against disability discrimination.

    Based on the legislative history, we infer the legislature

intended to extend this gap-filling protection to “state

agencies” in addition to “any program or activity receiving

state financial assistance.”       HRS § 368-1.5.      By 1989, when Act

387 was enacted, it was clear that Section 504 applied to any

entity receiving federal funding, including state agencies.

Thus, the same rationale for extending Section 504 protections

would apply to state agencies not receiving federal funding.



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       This interpretation of HRS § 368-1.5 is also compatible

with the inclusion of language regarding “[a]dmission of persons

to . . . an educational institution” in HRS § 368-17(a)(3).                  HRS

§ 368-17 provides remedies for all of the enumerated types of

discrimination in HRS § 368-1, not just disability.

Accordingly, the HCRC’s assertion that the remedy in HRS § 368-

17(a)(3) would be superfluous if it did not imply that HRS §

368-1.5 provides coverage to educational institutions receiving

both federal and state financial assistance, lacks merit.

Without HRS § 368-17(a)(3), a person who is denied admission to

a school on the basis of race, color, religion, age, etc., would

be without a remedy.         Thus, contrary to the HCRC’s position, HRS

§ 368-17(a)(3) is not superfluous.10

       We conclude HRS § 368-1.5 was intended to be a gap-filling

measure.      Here, Parent’s petition asserts that when Student took

the 2013 grade-level placement exam, Student was deprived of

accommodations or modifications that would have allowed him to

take the same test given to nonhandicapped students, which is

subject to Section 504.         See 34 C.F.R. § 104.33(a), (b)(1)

(stating that a child with a disability is entitled to “regular
10
   Because the issue is not before us, we do not address whether HRS § 368-
1.5 provides the HCRC with jurisdiction over disability discrimination claims
against educational institutions when Section 504 does not apply, such as
state agencies not receiving federal funding that may provide educational
services or private schools receiving state financial assistance that do not
receive federal funds.


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or special education and related aids and services that . . .

are designed to meet individual educational needs of handicapped

persons as adequately as the needs of nonhandicapped persons are

met”).      Accordingly, the HCRC lacks jurisdiction over the

petition because the Academy is administered by the DOE, which

receives federal funds and is therefore subject to Section 504.11

                                 V.   Conclusion

       For the foregoing reasons, we hold the HCRC lacks

jurisdiction over the Petition.           We therefore affirm the circuit

court’s Final Judgment dated July 6, 2015, entered pursuant to

its July 6, 2015 “Order Reversing the Hawaiʻi Civil Rights

Commission’s Decision and Order, Filed October 28, 2014.”



Livia A. Wang and Lowell K.Y.             /s/ Mark E. Recktenwald
Chun-Hoon for appellant
Hawaiʻi Civil Rights Commission           /s/ Paula A. Nakayama

Douglas S. Chin, Holly T.                 /s/ Sabrina S. McKenna
Shikada, Carter S. Siu, and
Gregg M. Ushiroda for                     /s/ Richard W. Pollack
appellees Hawaiʻi Technology
Academy and the Department of             /s/ Michael D. Wilson
Education, State of Hawaiʻi


11
   The Academy and the DOE had also argued before the HCRC and the circuit
court that the HCRC lacked jurisdiction over L.E.’s petition because the
petition was essentially a special education matter under the IDEA. That
argument was not specifically addressed below, and the issue is not now
before this court. In any event, the U.S. Supreme Court has already issued
some guidance for analyzing whether the gravamen of a complaint seeks relief
for the denial of a FAPE. See Fry v. Napoleon Cmty. Schs., 580 U.S. ___, 137
S.Ct. 743, 748 (2017).

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