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's Children With Disabilities Act of 1973 required school districts and the state to provide free public education to children with disabilities. The statute defined a "child with a disability" as someone "between three (3) and twenty-one (21) years of age" with one or more specified disabilities. The Commissioner of the Arkansas Department of Education asked the AG which of two readings was correct: "3 to 21" (eligibility ends when the student turns 21) or "3 through 21" (eligibility continues throughout the year the student is 21).

The AG acknowledged that "between" was genuinely ambiguous in this context. Used about time, "between 4:00 and 6:00" ends at 6:00, not at 6:59 or 7:00, which supports the "3 to 21" reading. But when someone is 21 years and 11 months old, we still call them "21 years old," which supports the "3 through 21" reading. The Arkansas Code did not define the phrase, no Arkansas appellate court had construed it, and federal IDEA law allowed states to choose where to draw the upper limit between ages 18 and 21.

Faced with that ambiguity, the AG turned to administrative deference. The Department of Education had reported to the U.S. Department of Education from at least 2004 onward that Arkansas eligibility ended when a student became 21. The agency had administered the law that way consistently. Under settled Arkansas administrative-law doctrine, a long-standing agency interpretation of an ambiguous statute receives considerable deference and is not disregarded unless clearly wrong. The Eighth Circuit had also read the parallel compulsory-attendance phrase in § 6-18-202(b)(1) (between five and twenty-one) as ending at age 21 in Birmingham v. Omaha School District (2000).

The AG therefore concluded that a court would defer to the Department's "3 to 21" reading. The Department could continue to apply the Act on the assumption that eligibility ends when the student becomes 21 years old.

The AG also addressed a separate question implied in the request: whether a student who turns 21 mid-school-year may finish the academic year. The Act did not require services to continue after the day the student turned 21, but did not prohibit continuation either. Article 14, § 1 of the Arkansas Constitution permits public expenditure on education of persons over 21. The matter was left to the discretion of the Department and the responsible school districts.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

The federal Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400 et seq., conditions federal special-education funding on states providing a free appropriate public education to children with disabilities. The statute speaks of children "between the ages of 3 and 21, inclusive," but allows states to exclude children "18 through 21" under state law or practice. The result is that each state sets its own upper age limit somewhere between 18 and 21.

The U.S. Department of Education annually circulated a chart asking each state to confirm its understanding of its own upper age limit. The chart in effect when this opinion was written ("Year of Age Cohort (for years of age 3 through 21) for Which FAPE is Ensured (10/15/14)") reflected Arkansas's reported limit. The federal agency's understanding of state law in these matters drew on each state's representations, not on independent federal interpretation. Arkansas had reported "eligibility ends when the student becomes 21" from at least 2004 forward.

The statutory deference principles the AG relied on came from Arkansas Supreme Court cases including Matter of Sugarloaf Mining Co. (1991) (administrative interpretations receive considerable deference), Greene Acres Nursing Homes (1988) (same), and Pledger v. Boyd (1990) (long-standing administrative readings command particular weight). Leathers v. W.S. Compton Co. (1994) added that deference is strongest when the statute itself is ambiguous.

The Eighth Circuit's reading in Birmingham v. Omaha School District (2000) construed Ark. Code Ann. § 6-18-202(b)(1), the parallel compulsory-attendance statute requiring public education "between five (5) and twenty-one (21) years of age." The Birmingham court read that as mandating education "to the age of twenty-one or until [the student] complete[s] the secondary education program." That same construction supported the AG's conclusion that the Department's "3 to 21" interpretation was consistent with how federal courts had been reading the parallel Arkansas language.

Federal courts were not uniform on the federal-law side of the question. The same Eighth Circuit said in Smith v. Special School District No. 1 (1999) that under IDEA, "FAPE must be made available through twenty-first year of age," which suggests the more expansive reading. Birmingham v. Omaha School District (2002), again from the Eighth Circuit, said "IDEA entitles [one] to education until she is age 21." The AG noted the tension but did not need to resolve it, because federal law expressly permitted states to exclude the 18-21 cohort if state law so provided.

Common questions

Did this opinion say Arkansas had to end services when a student turned 21?
No. The AG said the statute was ambiguous, and the Department's long-standing reading (services end at age 21) was entitled to deference, but the Department had discretion. The Department could choose to continue services through age 21 if it so determined.

What about a student who turns 21 mid-year? Did the AG say the school had to stop services immediately?
No. The Act did not require continuation past the 21st birthday, but did not prohibit it either. Whether to let a student finish the academic year was up to the Department and the local district.

Did federal IDEA law require services through age 21?
No. Federal law required services "between the ages of 3 and 21, inclusive" but expressly allowed states to exclude the 18-21 cohort if state law or practice did so. Each state set its own upper limit between 18 and 21.

Did the AG resolve the underlying ambiguity in the word "between"?
The AG did not. The opinion treated the phrase as genuinely ambiguous and used administrative deference to give the Department's interpretation legal force.

How does the related compulsory-attendance statute fit in?
Ark. Code Ann. § 6-18-202(b)(1) used the same "between [age X] and twenty-one (21) years of age" formulation for general public education. The Eighth Circuit had read it to mean education up to age 21, not through age 21. That parallel reading supported the AG's conclusion in the special-education context.

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