A.H., A.K. & DISABILITY RIGHTS MONTANA v. SUSIE HEDALEN AND GOV. GREG GIANFORTE

Lawsuit Settled! Disability Rights Montana Doubles the Time Students with Disabilities Have to Complete High School, Up to Age 22

 

If you have a disability, you can now stay in high school with your IEP until age 22! This means more time to learn, grow, and prepare for your future. Don’t miss this opportunity! Check out this flier and this FAQ to learn more.

 

For Immediate Release – February 27, 2025

PDF of press release

Helena, MT – Two Montana high school students with disabilities and Disability Rights Montana have filed a class action lawsuit against Montana Superintendent of Public Instruction Susie Hedalen and Governor Greg Gianforte. The lawsuit challenges Montana’s policy of ending special education services for students with disabilities at age 18, despite federal law granting them a right to education until age 22.

“Education is not just about a diploma- it’s about gaining the skills to live independently and contribute to our communities,” said a parent representing the students involved in the case. “I am fighting for my child’s place in the community, and for all other students with disabilities who deserve recognition of their inherent value.”

Under the Individuals with Disabilities Education Act (IDEA), students with disabilities are entitled to a Free Appropriate Public Education (FAPE) until they reach age 22 or earn a regular high school diploma. However, under Montana law, most students lose their right to public education in the year they turn 18. Montana regulations allow schools to award students with disabilities diplomas based on meeting the goals in their Individualized Education Program (IEP) rather than meeting the same academic standards as their non-disabled peers.

“This case is about fundamental fairness and giving students with disabilities the time they need to prepare for further education, employment, and independent living” said Tal Goldin, Director of Advocacy at Disability Rights Montana and counsel for the Plaintiffs. “Montana provides publicly funded education to non-disabled adults beyond age 18 yet denies the same access to students with disabilities. This is exactly the kind of discrimination that, if eliminated, can strengthen our communities.”

The lawsuit seeks to ensure that students with disabilities in Montana receive the full education they are entitled to under the IDEA. Montana’s current law denies students with disabilities the chance to continue their education and develop critical life skills. Disability Rights Montana represents the plaintiffs along with national co-counsel Jason H. Kim of Schneider Wallace Cottrell Konecky, LLP, Gerald S. Hartman of the Barbara McDowell Social Justice Center, and Richmond, VA attorney James D. Jenkins. The complaint was filed with the U.S. District Court in Helena, MT.

Disability Rights Montana (DRMT) is a federally mandated protection and advocacy system for Montana. DRMT protects the human, civil, and legal rights of individuals with disabilities through advocacy, legal representation, and education. DRMT supports Montanans with disabilities in access to public services; independent living; education; employment; living free from abuse, neglect, exploitation, and discrimination, and in other areas. DRMT’s goal is to actualize full inclusion of disabled Montanans aiming toward an environment where all Montanans can live, work, and participate fully in their communities through self-determination. Disability Rights Montana is thankful for the contributions of national co-counsel in pursuing this important case. 

The Barbara McDowell Social Justice Center dedicates itself to advancing social justice through litigation, education, advocacy, and grantmaking and is gratified to have the opportunity to join with Disability Rights Montana and other counsel in a class action on behalf of disabled youths in Montana who have been denied the full opportunity for a FAPE under IDEA.

Schneider Wallace Cottrell Konecky LLP is a national litigation law firm founded in 1993 that handles complex legal claims. From offices in California, Texas, and Puerto Rico, its lawyers represent classes of individuals, businesses, institutions, and individuals in jurisdictions nationwide. The firms focus on class action, mass tort, and other complex commercial cases.

Court Documents

Press

    Questions and Answers About Disability Rights Montana’s Class Action Lawsuit to Enforce the Individuals with Disabilities Education Act (IDEA)

    Montana is the only state in the country that does not follow federal law about how long public schools must serve students with disabilities. Therefore, Disability Rights Montana filed a class-action lawsuit in Federal District Court to ensure students with disabilities can continue in school until age 22 in compliance with the federal Individuals with Disabilities Education Act (IDEA)1. This case is not about the money needed to provide these services—the Legislature already provided most of the funding in 2021. It’s about requiring a change to Montana law to make sure Montana students have the same rights as students across the country.

    120 U.S.C. §§ 1400, et seq.

    A class-action lawsuit is a case that seeks to protect the rights of a group of people (called a “class”) in the same situation through a single lawsuit, rather than bringing multiple separate lawsuits. Class-action lawsuits generally are more efficient and less expensive overall than bringing multiple individual cases.

    The people who potentially benefit from a class action are called “class members.” We have proposed that class members include:

    All individuals who turned 19 within four years before the filing of the case or will turn 19 while the case is pending who are eligible or were eligible for a Free Appropriate Public Education (FAPE) under the IDEA by any school district subject to the supervision and control of the Montana Office of Public Instruction and who, but for their granting of a diploma pursuant to Mont. Admin. R. §10.55.805 or their turning 19, would otherwise qualify or would have qualified for a FAPE because they have not or had not yet earned a regular high school diploma.

    The court needs to approve this proposed class.

    In class actions, the interests of class members are promoted by both the lawyers on the case and one or more individuals who are in the same situation and can represent the interests of the class. Those people are called “class representatives.” In this case the class representatives are two students with disabilities from different communities in Montana who both experience significant disabilities and need additional time in school to develop the skills needed to live independently, pursue more education, and work good paying jobs. The attorneys in this case are Tal M. Goldin and Michelle L. Weltman of Disability Rights Montana and our national co-counsel, Jason H. Kim of Schneider Wallace Cottrell Konecky, LLP; Gerald S. Hartman of the Barbara McDowell Social Justice Center; and Richmond, VA attorney James D. Jenkins. The complaint was filed with the U.S. District Court in Helena, MT.

    This case is trying to enforce the right of students with disabilities to get a free appropriate public education (FAPE) under a federal law called the Individuals with Disabilities Education Act (IDEA). When IDEA was passed in 1975, it was the first time in U.S. history that schools were required to ensure students with disabilities have the same chance as others to succeed in higher education, work, and living independently. Section 504 of the Rehabilitation Act of 1973, passed a few years before IDEA, prohibits disability discrimination in public schools and other federally funded programs and activities, but did not include the clear, affirmative obligations, or funding that IDEA contains.1

    Prior to IDEA, Montana law allowed the total exclusion from school of any child whose “intellectual ability, age, or behavior was not compatible with the class” as determined by the Superintendent of Public Instruction and defined certain students with disabilities as “not capable of profiting from” and excludable from school.2
    From the beginning, IDEA required states to make a “free appropriate public education” available to “all . . . children [with disabilities] between the ages of three and twenty-one.”3 50 years later, Montana still does not do this. Some states, like Michigan, even exceed this minimum requirement, allowing students with disabilities to receive services until age 25.4

    For years, Montana has operated under a “state law or practice” denying special education and related services to most students with disabilities in the year the student turns 18,5 regardless of whether the student has earned a regular high school diploma or still needs services to prepare the student for “further education, employment, and independent living.”6 Montana is the last state in the country that cuts public education off at age 18 for students with disabilities.7

    This lawsuit is being brought for the many students with disabilities who need more time to learn the academic and life skills they to succeed after high school. For some students, this means more time to learn how to read or learn enough math to achieve their career goals. For other students, it might mean they need more time to learn the basic skills to live independently, such as how to take care of their bodies or make their own meals. We want to make sure all students can maximize their learning in public schools, and those that need a little longer will have the time that IDEA allows so they are ready for further education, employment, and independent living after high school.

    1See 29 U.S.C. § 794.
    2See R.C.M. 75-7801 and -7812 (1971).
    3PL 94-142 § 612(2)(B) (Nov. 29, 1975). In later amendments to IDEA, the requirement was expanded to included students “through age 21” (i.e. up to the student’s 22 birthday). See 20 U.S.C. § 1412(a)(1).
    4See Mich. Admin. Code R. 340.1702.
    5Montana schools can voluntary provide more services, but most do not.
    6The primary purpose of IDEA is “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living[.]” 20 U.S.C. § 1400(d)(1)(A).
    7See https://www.ldonline.org/ld-topics/special-education/state-special-education-definitions-ages-served

    On November 29, 2025, the Individuals with Disabilities Education Act (IDEA) turns 50 years old. We’ve waited too long for Montana to start complying with IDEA. Bringing Montana into compliance with IDEA requires a change in Montana law that the state has not yet voluntarily made.

    For at least a decade,1 Disability Rights Montana and others have asked the state of Montana to change state law so that it follows IDEA and provides special education and related services to students with disabilities through age 21. We’ve written about it in the newspaper. We approached individual legislators and asked them to carry bills to change the law. We approached the Legislature’s Education Interim Committee and asked the committee to propose a bill to change the law. Attempts were made such as HB451 in 2015 and HB274 in 2017. But the law didn’t change. Finally in 2021, the Legislature passed HB233 allowing school districts to continue to collect funding for students with disabilities served after age 18. A few schools did,2 but HB233 did not require schools to serve these students.

    Almost 12 years ago, the U.S. Court of Appeals for the 9th Circuit determined that Hawaii’s law which, like Montana’s, cut off special education services earlier than IDEA violated IDEA.3 9th Circuit law applies to Montana, and we’ve been advocating to change the law since the Court decided that case, but Montana has failed to act to correct the problem, despite repeated requests from the disability community.

    Left without any choices, we now need to ask the Federal Court to intervene to protect the rights of students with disabilities to receive a free appropriate public education through age 21 (up to age 22) as IDEA requires. As Montana’s protection and advocacy system for people with disabilities, that’s our job.4

    1See McKracken, Pad, HB451:Extending State Funding for Special Education Students Age 19-21 (Mar. 2016) (legislative briefing reviewing history of attempts to expand education through 21 in Montana), available at https://archive.legmt.gov/content/Committees/Interim/2015-2016/School-Funding/Meetings/Apr-2016/HB451-background.pdf
    2The Billings School district eventually changed its policy following a public outcry and national advocacy. See https://www.fox5ny.com/news/teen-with-down-syndrome-allowed-to-stay-in-school-longer-to-graduate-despite-age
    3See E.R.K. ex rel. R.K. v. Hawaii Dept. of Educ., 728 F.3d 982 (2013).
    4See e.g., 42 U.S. Code § 15043 (requiring protection and advocacy system to “pursue legal, administrative, and other appropriate remedies or approaches to ensure the protection of, and advocacy for, the rights of [people with developmental disabilities].”).

    This page will continue to be updated with the latest information on the progress of this case.

    Contact our Director of Communications for inquiries and interview requests.

    Kona Franks-Ongoy
    kona@dr-mt.org

    PDF of question and answers

    It important for us to be able to identify the students who may benefit from this lawsuit and may be a part of the proposed class.  In addition to other reasons, this helps us notify people if there is a resolution of the case that will provide a benefit to the student.

    If you think you or someone you know may be part of the proposed class, please complete the form below, one form for each student.

    age 22 flier