By Marion M. Walsh, Esq.

Last month, a New York state court ruled that students with disabilities in New York are not legally entitled to extended eligibility until age 22 under state law. This decision has created confusion as it goes against a July 2023 formal opinion from the Office of Counsel of New York State Education Department (NYSED) recommending this extended eligibility.

As background, this summer, the Office of Counsel of NYSED opined that students with disabilities in New York State who had not received a high school diploma should have an extended year of eligibility until age 22. In the guidance, the Opinion acknowledged that a 2021 Second Circuit decision, A.R. v. Connecticut Board of Education, which required extended eligibility in Connecticut, also required that public schools in New York provide special education and related services to resident students until age 22, or the day before the student’s 22nd birthday, provided they have not graduated, as New York also provides many adult education programs to individuals older than 21.

New York State Supreme Court Ruling

In the recent case, initially, parents of a student with a disability sought an additional year of eligibility for their son after he turned 21 in February 2022, as well as compensatory services. The school district denied this, and the parents filed a NYSED State Complaint. In August 2023, NYSED found that the student remained eligible to receive services through February 2023 because the IDEA guaranteed him the right to a FAPE until he turned 22. In reaching its conclusion, NYSED, in accordance with the 2023 opinion and A.R., found that the IDEA requires public schools in New York to provide special education to students who have not yet earned a high school diploma until they turn 22.

The school district filed an Article 78 proceeding, which is a challenge to state action, to reverse the NYSED decision. The New York State Supreme Court indeed reversed it and ruled that in New York the right to a FAPE terminates once a student reaches the age of 21. As the student turned 21 years old in February of 2022, the court reasoned, New York state law mandated that the school district provide him with a FAPE only until the conclusion of the 2021-2022 school year.

New York State Decision not Final

The New York state court decision is not final and is subject to appeal to the New York Court of Appeals, the highest court in the state. Based on news reports, NYSED is appealing. A careful read of the New York state court decision shows many errors that could be raised on appeal.

In general, a careful analysis could show that the court erred in finding that the reasoning of the A.R. case did not apply in New York. In A.R., the Second Circuit held that “public education” as used in IDEA included adult education programs offered outside of the actual public school system. It noted that, as adult education classes in Connecticut were available to students 18 through their 21st year, the Court held that the Connecticut had unlawfully discriminated against students with disabilities between the ages of 21 and 22 by not also entitling them to a free public education. The court distinguished the New York Law from the Connecticut Law at issue in A.R., claiming that New York Education Law expressly limits the right to a FAPE in New York State to students under the age of 21. 

In this regard, a review of both laws shows that New York state law and Connecticut law at the time of the A.R. decision were essentially indistinguishable, as Connecticut law at the time indeed limited the right to special education to students under age 21. In addition, as the NYSED Formal Opinion noted, New York, like Connecticut, offers publicly funded adult education programs to non-disabled students over 21. Unfortunately, it appeared that the court did not fully review New York’s adult education programs as, for example, contrary to what the court stated, in New York, regulations do allow adults over 21 to earn high school equivalency preparation programs (see 8 NYCRR 100.7(h)(2)(iii)).

Finally, it is perplexing why the state court did not give more deference to NYSED, the agency in New York charged with oversight of all educational programs. Typically, state courts give deference to state administrative agencies and will not overturn decisions unless they are “arbitrary and capricious” or unlawful. The court used a less deferential standards as it viewed NYSED as lacking institutional expertise to interpret state law on special education eligibility.

What Parents Should Do

If your child with a disability is turning 21 this year and has not earned a diploma and you believe they need a year of extended eligibility until age 22, advocate with your school district. Until there is a final decision in the state, it is wise to base this advocacy on the student’s need for compensatory services and to document this. If the school district mentions the state court decision, you can note that it is not final. However, given the legal complexities, it is wise to discuss with an attorney experienced in special education law.

If you run into obstacles, it’s a good idea to consult with an attorney who focuses on special education law.