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
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
DECEMBER 5, 2017
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CAAP-15-0000520; CIV. NO. 14-1-2438-11). RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, WILSON, JJ.
I. Introduction
This case concerns whether the Hawaiʻi Civil Rights Commission (“HCRC“) has jurisdiction under Hawaiʻi Revised Statutes (“HRS“)
We hold the HCRC lacks jurisdiction over the HCRC complaint because the legislature intended
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“),
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 . . . .”
Therefore, Section 504 regulations promulgated by the U.S. Department of Education contain both general provisions prohibiting discrimination, see, e.g.,
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
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 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
B. Procedural Safeguards
The IDEA requires local educational agencies that receive federal assistance to “establish and maintain procedures in accordance” with
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.
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
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 learning environment. Parent challenged that recommendation and requested a due process hearing before an impartial hearing officer pursuant to the IDEA,
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 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 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
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 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 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.
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
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
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
The HCRC decision characterized the dispute as one in which Parent sought a disability accommodation for Student, but was denied:
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
The HCRC deemed it unnecessary to do so but nevertheless went on to examine the legislative history of
The HCRC decision did not address whether any federal remedies interacted with
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:
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
The HCRC also asserts Section 504 does not preempt
The HCRC acknowledges it lacks jurisdiction over student complaints under the IDEA and/or accommodations relating to IEPs because neither
The Academy and the DOE concede in their answering brief that public charter schools are “state agencies,” but argue
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 Hawai‘i 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 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 Hawai‘i 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 Hawai‘i 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 public interest and is “capable of repetition yet evading review.” Okada Trucking Co. v. Bd. of Water Supply, 99 Hawai‘i 191, 196, 53 P.3d 799, 804 (2002) (citations omitted). Accordingly, even if mootness
HCRC asserts that provision of services to the disabled for school placement examinations is a “non-academic” accommodation over which it has jurisdiction under
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
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 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
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
Act 386 amended
Act 386 also created “Remedies” for the HCRC (now Part II of Chapter 368), including
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
Act 387 also added what is now codified as
(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 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
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 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 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.” 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
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. . . . 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
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
5. The above legislative history shows that HRS § 368-1.5 was intended to be gap-filling.
This legislative history demonstrates the legislature intended
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.”
We conclude
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 Hawai‘i Civil Rights Commission‘s Decision and Order, Filed October 28, 2014.”
Livia A. Wang and Lowell K.Y. Chun-Hoon for appellant Hawai‘i Civil Rights Commission
Douglas S. Chin, Holly T. Shikada, Carter S. Siu, and Gregg M. Ushiroda for appellees Hawai‘i Technology Academy and the Department of Education, State of Hawai‘i
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
Notes
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.
(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.
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[.]