Delaware Unlawfully Ends Disabled Students’ Free Public Education After Age 21, Lawsuit Alleges

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A proposed class action claims the Delaware Department of Education (DDOE) has unlawfully failed to provide students with a free appropriate public education up until the age of 22.

The 15-page lawsuit alleges the DDOE instead terminates students’ right to receive a free appropriate public education at the end of the school year in which they turn 21. Per the case, this practice affects “some of Delaware’s most impaired students” and violates the federal Individuals with Disabilities Education Act (IDEA).

The suit was filed by two pseudonymous plaintiffs with disabilities who the case claims have been or will be deprived of their right to receive a free appropriate public education up until the age of 22 and would “meaningfully benefit” from special education and related services as provided under the IDEA.

The lawsuit explains that because the DDOE receives funds under the IDEA for special education, the defendant is obligated to ensure that Delaware residents receive appropriate special education services until they reach the age of 22. Though the IDEA allows states to limit the age eligibility for special education students, they may do so only if the limit applies to public education generally, and not just to special education services, the suit relays. Because Delaware regulations require, and the state provides, a free public education for adults, the state is not permitted to impose an age limitation on qualified individuals with disabilities that is earlier than the IDEA’s limit of 22 years, the lawsuit argues.

The DDOE nevertheless has a practice of terminating students’ eligibility for a free appropriate public education after the school year in which they turn 21, according to the case.

The suit says one of the plaintiffs, who has been diagnosed with autism spectrum disorder and a moderate intellectual disability, was “exited” from special education services in October 2020, after the last day of the school year during which he turned 21. The other plaintiff, who has been diagnosed with ADHD, a seizure disorder and a mild intellectual disability, will be denied a free appropriate public education after August 2024 because he will have turned 21 during the prior school year, according to the complaint.

Per the case, students like the plaintiffs have been or will be deprived of months and up to a year of “valuable educational opportunities” as a result of the DDOE’s practice of ending their eligibility to receive a free appropriate public education after the age of 21.

The lawsuit looks to represent anyone who was over 21 and under 22 within two years before the filing of the case or who will turn 21 while the case is proceeding and is or was provided a free appropriate public education under the IDEA by a local education agency in Delaware and who, but for turning 21, would otherwise qualify or would have qualified for a free appropriate public education up until age 22 because they have not yet received a regular high school diploma.

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