Does Arkansas's special-education eligibility statute for 'children with disabilities, between three and twenty-one years of age' cover students until they turn 21, or through the year they are 21?

Plain-English summary

Arkansas Education Commissioner Tony Wood asked whether the state law describing children with disabilities as “between three (3) and twenty-one (21) years of age” meant eligibility to age 21 or through the entire year at age 21. Attorney General Leslie Rutledge found the wording equivocal. “Between” can mark an interval ending at the upper point, but a person aged 21 years and 11 months is ordinarily still called 21 years old.

The AG concluded that the Arkansas Department of Education may continue its existing “3 to 21” interpretation, under which eligibility ends when a student becomes 21. The Department had represented that interpretation to the U.S. Department of Education since at least 2004. The opinion says courts give considerable deference to a responsible agency's longstanding interpretation of an ambiguous statute unless it is clearly wrong. On that basis, the AG expected a court to defer to the Department's reading. She also cited Birmingham v. Omaha School Dist. for a similar reading of a separate Arkansas education provision.

The opinion addresses a narrower question about a student who turns 21 during an academic year. The Act did not require services after that birthday, but also did not prohibit them. The AG said whether to let the student finish that academic year appeared to be within the discretion of the Department and responsible school districts. She did not authorize a general statewide eligibility rule covering the entire year a person is 21.

The federal funding law discussed in the opinion did not preclude Arkansas's “3 to 21” reading. It allowed states to exclude some children ages 18 through 21 under state law or practice. The AG used that point to explain why the Department's interpretation was compatible with the federal framework.

Currency note

This opinion was issued in 2015. Current special-education law, agency practice, and court decisions may differ. Families and districts should verify today's eligibility rules before making a service decision.

Common questions

Did the AG decide that eligibility must continue throughout age 21?
No. She said the statutory phrase was ambiguous and that the Department could continue interpreting it as ending when the student becomes 21.

Must services stop on the 21st birthday?
The AG said the Act did not require continuation beyond that day, but did not prohibit it. She specifically considered whether a student who turns 21 midyear may finish that academic year and left that matter to the Department and responsible school districts.

Did the AG permit a general “through age 21” policy?
The opinion does not address such a policy. Its discretionary discussion is confined to finishing the academic year in which the student turns 21.

Why did the Department's interpretation matter?
The AG said a court would give considerable weight to the Department's longstanding interpretation of the ambiguous Act, particularly because the Department had reported that reading to the federal education agency for years.

Background and statutory framework

The Children With Disabilities Act of 1973 required state and district provision of free public education to children with disabilities. The opinion reproduces its age phrase but does not reproduce a numbered citation for that provision in the stored text.

The opinion cites Birmingham v. Omaha School Dist., 220 F.3d 850, 853 (8th Cir. 2000), which interpreted Ark. Code Ann. § 6-18-202(b)(1)'s similar wording in another education context. It also quotes Ark. Const. art. 14, § 1 as permitting public funds for education of persons over 21 when discussing continuation within an academic year.

Citations

• Ark. Code Ann. § 6-18-202(b)(1) (parallel age wording discussed in the opinion)
• Ark. Const. art. 14, § 1 (public education spending beyond 21)
• Birmingham v. Omaha School Dist., 220 F.3d 850, 853 (8th Cir. 2000)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2015-027
June 11, 2015

Tony Wood, Commissioner
Arkansas Department of Education
#4 Capitol Mall
Little Rock, Arkansas 72201-1019

Dear Mr. Wood:

I am writing in response to your request for my opinion concerning your question about the period during which a disabled child is eligible under state law to receive free public education. You ask whether the statutory language "between three (3) and twenty-one (21) years of age" means "3 to 21" or "3 through 21."

RESPONSE

In my opinion, existing law is equivocal on the question, but the Arkansas Department of Education (the "Department") may continue to apply the law as if it reads "3 to 21."

DISCUSSION

The Children With Disabilities Act of 1973 (the "Act") requires "school districts and the state to provide free public education for children with disabilities ...." It defines "child with a disability" as a person "between three (3) and twenty-one (21) years of age" with one or more specified disabilities.

The meaning of "between three (3) and twenty-one (21) years of age" is not necessarily obvious. The word "between" means "[i]n the interval separating (two points of time, events, etc.)." So "between 4:00 and 6:00" ends at 6:00, not at 6:59 or 7:00. On the other hand, we commonly refer to a person aged 21 years, 11 months, as being "21 years old," so the phrase might reasonably be interpreted to include the entire year during which a person is "21 years old."

Federal law provides for financial assistance to the states to provide free appropriate public education ("FAPE") to disabled children. Assistance is available to any state that provides FAPE to children with disabilities "between the ages of 3 and 21, inclusive," but permits states to exclude children "18 through 21" under state law or practice. Federal law does not, therefore, preclude an interpretation of Arkansas law to the effect that eligibility for FAPE ends when a person becomes 21 years old.

In connection with awarding assistance to the states under the Individuals with Disabilities Education Act ("IDEA"), the United States Department of Education ("USDE") annually restates its understanding of each state's upper age limit for FAPE and asks each state to correct USDE's understanding if wrong or if the state has changed its law or practice. USDE's understanding of state law and practice in this regard appears to be based on each state's representations to USDE not on USDE's own interpretation of state law and practice.

As early as 2004 and each following year, USDE has restated its understanding that Arkansas law provides that eligibility for FAPE ends when a person becomes 21 years old. That understanding is based on the Department's representation of Arkansas law to USDE.

Accordingly, the Department has consistently interpreted the Act to mean "3 to 21," at least in connection with its dealings with USDE regarding IDEA.

When a regulatory agency responsible for administering and enforcing a statute has interpreted it to mean a certain thing, the courts will give that interpretation considerable deference. This is particularly true where the administrative interpretation is of long standing, or where the statute is ambiguous. In such a case, the administrative interpretation will not be disregarded unless it is clearly wrong.

Here, the Act is susceptible of two or more reasonable interpretations, and the Department has held to one of them for a significant period of time. It is, therefore, my opinion that a court would defer to the Department's interpretation that the language at issue means "3 to 21." The Department accordingly may continue to apply the Act as though it expressly so provided.

Additionally, the Department's interpretation comports with that of the United States Circuit Court of Appeals for the Eighth Circuit interpreting another Arkansas statute with language identical in relevant part. See Birmingham v. Omaha School Dist., 220 F.3d 850, 853 (8th Cir. 2000) ("Arkansas law mandates that school districts educate persons either to the age of twenty-one or until they complete the secondary education program") (interpreting Ark. Code Ann. § 6-18-202(b)(1), which requires public education for persons "between five (5) and twenty-one (21) years of age").

Your request also alluded to the question whether the Act should be interpreted to permit a person to finish the academic year during which he becomes 21 years old. The law states no clear rule in this regard. While the Act does not require FAPE to continue beyond the day on which a person becomes 21 years old, neither does it prohibit continuance. See also Ark. Const. art. 14, § 1 ("the General Assembly and/or public school districts may spend public funds for the education of persons over twenty-one (21) years of age ...."). The matter appears to be left to the discretion of the Department and the responsible school districts.

Assistant Attorney General J.M. Barker prepared this opinion, which I approve.

Sincerely,

LESLIE RUTLEDGE
Attorney General
LR/JMB:cyh