IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-31045
_____________________
CHARLES TONY CEFALU, JR., Behalf of
his minor son rpi Charles Tony Cefalu, III,
Plaintiff-Appellee,
versus
EAST BATON ROUGE PARISH SCHOOL BOARD;
STATE OF LOUISIANA, Through the
Department of Education,
Defendants-Appellants.
_________________________________________________________________
Appeal from the United States District Court for the
Middle District of Louisiana, Baton Rouge
_________________________________________________________________
January 3, 1997
Before POLITZ, Chief Judge, and JOLLY and BARKSDALE, Circuit
Judges.
E. GRADY JOLLY, Circuit Judge:
The single question presented by this appeal is whether, under
the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C.
§ 1400 et seq., a school board is legally obligated to provide a
sign language interpreter to a disabled student voluntarily
enrolled in private school. The district court found that the IDEA
required the school board to provide the on-site interpreter, and
the school board appeals. We vacate the decision of the district
court and remand this case for further consideration in the light
of our opinion.
I
Charles Tony Cefalu, III ("Cefalu") has suffered from a
hearing impairment since birth. Cefalu attended public schools
until the conclusion of the 1992-93 school year. Cefalu's
individualized education program ("IEP"), prepared in accordance
with the requirements of the IDEA, included the services of a sign
language interpreter.
In June 1993, the Supreme Court held that a public school
district did not violate the Establishment Clause by providing
services under the IDEA to students voluntarily attending parochial
schools. Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1
(1993). Thereafter, Cefalu's parents withdrew their consent from
a previously devised IEP, which included a sign language
interpreter at a public school, and enrolled Cefalu at Redemptorist
High School, a private school. The Cefalus then requested that a
sign language interpreter be provided at Redemptorist. The school
board refused the Cefalus' request and again offered a sign
language interpreter at the public school. The Cefalus refused to
consent and requested an IDEA due process hearing. See 20 U.S.C.
§ 1415(b)(2).
In October 1993, the administrative hearing officer ruled that
the school board was not obligated to provide Cefalu with an
interpreter while at Redemptorist, because the offer to provide an
interpreter at the public school provided Cefalu with an
opportunity for a free appropriate public education. The decision
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of the hearing officer was affirmed on appeal to the state level
review commission. See 20 U.S.C. § 1415(c). Cefalu then sought
review in federal court. See 20 U.S.C. § 1415(e)(2).
The federal district court heard cross-motions for summary
judgment. Based upon the record, consisting of the administrative
record and a joint stipulation, the court granted Cefalu's motion
and ordered the school board to provide a sign language interpreter
at Redemptorist. The court denied the board's motion to stay the
judgment pending appeal. The board did not seek a stay from this
court.
II
A
We review the district court's grant of summary judgment de
novo, using the standard utilized by the district court. See,
e.g., Brock v. Chater, 84 F.3d 726, 727 (5th Cir. 1996). In
conducting judicial review of an IDEA administrative decision, the
court "shall receive the records of the administrative proceedings,
shall hear additional evidence at the request of a party, and,
basing its decision on the preponderance of the evidence, shall
grant such relief as the court determines is appropriate." 20
U.S.C. § 1415(e)(2).
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B
(1)
This appeal requires us to interpret the IDEA and its
regulations. The IDEA provides federal grants to states, which in
turn provide funds to local school districts to establish special
education and related services for children with disabilities.
States that accept the funds are required to adopt a policy and a
plan that "assures all children with disabilities the right to a
free appropriate public education." 20 U.S.C. § 1412. The IDEA
defines a "free appropriate public education” to include
Special education and related services that--
(A) have been provided at public
expense, under public supervision and
direction, and without charge,
(B) meet the standards of the State
educational agency,
(C) include an appropriate preschool,
elementary, or secondary school education in
the State involved, and
(D) are provided in conformity with the
individualized education program required
under section 1414(a)(5) of this title.
20 U.S.C. § 1401(18). "The word 'public' is a term of art which
refers to 'public expense,' whether at public or private schools."
Dreher v. Amphitheater Unified Sch. Dist., 22 F.3d 228, 233 n.10
(9th Cir. 1994) (citing Florence County Sch. Dist. Four v. Carter,
114 S.Ct. 361, 365 (1993)).
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Local school districts receiving funds under the IDEA are
required to prepare an IEP for each disabled student, whether in
public or private school. The IEP must identify the special
education and related services that are necessary to meet that
student's needs, and the district must offer to provide those
services at public expense. 20 U.S.C. §§ 1412(4), 1414(a)(1),
1414(a)(5). If the district is unable to provide the necessary
services to the disabled student, then the student must be placed
in a private school that can address the student’s needs at public
expense. 20 U.S.C. § 1413(a)(4)(B). These mandatory private
school students are distinguished under the IDEA and its
regulations from students, such as Cefalu, who voluntarily are
enrolled in private schools.
Students voluntarily attending private schools are addressed
by the provision requiring each state's plan to
set forth policies and procedures to assure--
(A) that, to the extent consistent with the number
and location of children with disabilities in the State
who are enrolled in private elementary and secondary
schools, provision is made for the participation of such
children in the program assisted or carried out under
this subchapter by providing for such children special
education and related services.
20 U.S.C. § 1413(a)(4)(A). The school district is not required to
pay a student's private school tuition if he is voluntarily
enrolled in private school; however, the district "shall make
services available to the child as provided” by other regulations
enacted pursuant to the IDEA. 34 C.F.R. § 300.403.
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The other regulations referenced above require each local
educational agency to "provide special education and related
services designed to meet the needs of private school children with
disabilities residing in the jurisdiction of the agency." 34
C.F.R. § 300.452. Additionally, local agencies are to ensure that,
"[t]o the extent consistent with their number and location in the
State, provision is made for the participation of private school
children with disabilities in the program assisted or carried out
under this part by providing them with special education and
related services." 34 C.F.R. § 300.451(a). Local education
agencies are also charged with "provid[ing] students enrolled in
private schools with a genuine opportunity for equitable
participation" and "provid[ing] that opportunity to participate in
a manner that is consistent with the number of eligible private
school students and their needs." 34 C.F.R. § 76.651(a)(1) & (2).
The local agency is required to consult with private school
students' representatives regarding which students will receive
benefits, how the students' needs will be identified, what benefits
will be provided, and how benefits will be provided. 34 C.F.R. §
76.652(a). Local educational agencies are to determine the needs
of private school students, the number of private school students
to be participants in a project, and the benefits that the agency
will provide to those students using a "basis comparable to that
used . . . in providing for participation of public school
students." 34 C.F.R. § 76.653. Finally, "[t]he program benefits
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that [an agency] provides for students enrolled in private schools
must be comparable in quality, scope, and opportunity for
participation to the program benefits that the [agency] provides
for students enrolled in public schools." 34 C.F.R. § 76.654(a).
It is clear, therefore, that the IDEA differentiates among
three categories of disabled students: (1) those attending public
schools; (2) those placed in private schools by local school
districts; and (3) those attending private schools voluntarily.
With respect to public school students, the IDEA requires that all
children with disabilities receive a free appropriate public
education that covers the expense of special education and related
services. 20 U.S.C. §§ 1412(1), 1412(2)(B), 1412(4), 1414(a)(5).
Students placed in private schools by local school districts are to
receive the same benefits as those attending public schools. 20
U.S.C. § 1413(a)(4)(B). The regulations require that students
voluntarily attending private schools be provided with an
"equitable opportunity for participation" in the program "to the
extent consistent with the number and location" of such students.
34 C.F.R. § 1413(a)(4)(A). Today, we are required to address the
application of the IDEA only as it relates to this third category
of disabled students.
(2)
When an attempt is made to apply the foregoing statutory
provisions and regulations to specific cases involving disabled
students voluntarily attending private school, we see that the IDEA
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and its implementing regulations are amorphous in design and
imprecise in message. By necessity, therefore, the statute and
regulations must be regarded as affording considerable discretion
to educational agencies because their terms are to be applied in
sundry factual situations. Such flexibility for local officials,
however, comes with attendant costs. The IDEA and the
corresponding regulations seldom provide a road map to local
educational agencies regarding the extent of their obligations
under the Act and the manner in which those obligations must be
fulfilled, thus leaving a considerable area open to dispute.
In attempting to glean the essence of the statute and
regulations, however, certain points are salient as they relate to
the question before us. First, and fundamental, the drafters of
the IDEA plainly intended that students voluntarily enrolled in
private schools be active participants in and beneficiaries of the
program. See 20 U.S.C. § 1413(a)(4)(A) (West 1990). Such students
are entitled to "a genuine opportunity for equitable participation"
in programs and services provided under the IDEA. 34 C.F.R. §
76.651. It is clear that the statute does not mandate that
services for students voluntarily enrolled at private schools be
provided on-site at the private school. However, the refusal to
provide services on-site implicates the student's right to
"equitable participation."
It is implicit in the statute and the regulations that
educational agencies must be afforded the broadest discretion to
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design special programs in the light of the finite funds that are
available. The regulations support the proposition that these
limited resources must be distributed in a manner that allows the
provision of necessary services to the greatest number of qualified
students within in the relevant district, when all other
appropriate criteria in the decision-making process have been
considered. The regulations address this concern by stating that
the average amount spent per pupil should not vary according to
whether the student attends public or private school but, instead,
should vary only according to the cost required to fulfill the
special education needs of the student. 34 C.F.R. § 76.655. It is
in this context that the obligation of the agency arises to "set
forth policies and procedures to assure that, to the extent
consistent with the number and location of handicapped children in
the State who are enrolled in private elementary and secondary
schools, provision is made for the participation of such children
in the program assisted or carried out under this subchapter by
providing for such children special education and related
services." 20 U.S.C.A. § 1413(a)(4)(A) (West 1990) (emphasis
added). This provision, which is also reflected in the
regulations, allows the educational agency to exercise discretion
in determining the manner in which services are to be provided to
disabled children in public and private schools. This discretion
is to be exercised in a way that assures the private school student
a "genuine opportunity for equitable participation" in the program,
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but, that also considers the "number of eligible private school
students and their needs." 34 C.F.R. § 76.651. The word
"equitable," certainly in the context of the finite funds
available, means fair to all concerned, not simply fair to the
private school student; in this context, it means not unfair to
others depending on the same pool of money for services and
benefits.
Thus, we arrive at our second point that is plain from the Act
and regulations: although private school students are eligible to
receive benefits under the program, they are not entitled to a
greater share of benefits, nor of the funds providing those
benefits, per student, than similarly-situated students in public
schools.
The statute and regulations, therefore, lead to the following
rule to apply in disputed cases in the posture of the one before
us: The private school student must make an initial showing of a
genuine need for on-site services, based upon more than mere
convenience. Upon such showing, the agency must provide on-site
services unless it presents a justifiable reason, either economic
or non-economic, for its denial of on-site services. The student
then bears the burden of showing that the agency’s position is
inconsistent with the IDEA and its regulations, or is not
rationally supportable, or is otherwise arbitrary.
The general application of this rule will ensure that
educational agencies fulfill their obligation to provide private
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school students with a "genuine opportunity for equitable
participation" in IDEA services. Under this general approach,
private school students usually will, absent justifiable non-
economic considerations, be provided comparable services on-site to
the extent that such services can be provided on-site at the same
approximate cost as that incurred in providing the services at
other sites.1 See Russman v. Sobol, 85 F.3d 1050, 1056-57 (2d Cir.
1996). The rule will also ensure that disproportionately large
sums of scarce money are not required to be spent to benefit a
reduced number of students.
III
Finally, we come to the question whether the school board here
is obligated to provide Cefalu an interpreter on-site at
Redemptorist. In this connection, there is no evidence in the
record that indicates the basis of the school board's decision.
1
The Seventh Circuit in K.R. v. Anderson Community Sch. Corp.,
81 F.3d 673 (7th Cir. 1996), held that educational agencies had
broad discretion in determining what services to provide to
students enrolled in private schools. K.R., 81 F.3d at 679. We
agree that the agency has broad discretion in determining what
services to provide generally; in other words, the agency has broad
discretion in formulating an IEP for a student. The IDEA and the
regulations grant discretion to the educational agency to determine
what services to provide to an individual student, but, once that
decision is made, and the student has made a showing of genuine
need for on-site services, those services should be provided on-
site at the private school, absent justification as noted above. If
such justification is demonstrated, nothing in our opinion should
be construed as precluding the agency and the affected parties from
voluntarily negotiating a solution to their dispute that may result
in services less than comparable to the services provided to a
public school student.
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Absent such evidence, we are unable to determine whether the denial
of services under the IDEA was appropriate.2 For that reason, we
VACATE the judgment of the district court and REMAND for further
consideration and action in the light of this opinion.3
VACATED and REMANDED.
2
The dissent charges that we are deciding more than is at
issue in this appeal, pointing out that the stipulated issue is
whether the school board is legally obligated to provide the
subject service to Cefalu. With due respect, our view of the case
is that we cannot answer this question because we do not know the
basis upon which the school board made its decision. The dissent
acknowledges that the school board’s discretion to deny on-site
services to private school students is limited. There is nothing
in the record to tell us whether the school board exceeded that
limit; therefore, we conclude that this case must be remanded for
further development on this point.
Neither do we understand how the dissent concludes that our
interpretation of the IDEA and its regulations is inconsistent with
the interpretation of the United States Department of Education.
There is nothing in this opinion that suggests that the local
agency is automatically required to pay for Cefalu’s education at
Redemptorist. Our opinion emphasizes, as do the regulations, that
the private school student is entitled to a genuine opportunity for
equitable participation and that the agency must “provide that
opportunity to participate in a manner that is consistent with the
number of eligible private school students and their needs.” There
is nothing in our opinion that holds that an individual private
school student is automatically entitled to receive on-site
services comparable to those that he would receive at a public
school. Furthermore, there is nothing in this opinion that can be
read to favor the private school setting over the public school
setting when only one service can be provided. Thus, we
respectfully differ with the dissent’s position that this opinion
somehow conflicts with the interpretations promulgated by the
Department of Education.
3
For the first time in its reply brief, the State Department
of Education requests that the Cefalus be required to reimburse it
for the costs of the interpreter that the district court ordered it
to provide during the pendency of this appeal. As noted, the
appellants did not seek a stay pending appeal. In any event, we do
not address the issue because it was first raised in a reply brief.
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RHESA HAWKINS BARKSDALE, Circuit Judge, dissenting:
I respectfully dissent: (1) the issue presented is much more
narrow than that seized by the majority; (2) its interpretation of
the statute and regulations is inconsistent with the interpretation
of the United States Department of Education, to which we should
defer; and (3) its allocation of the burden of proof is not
supported by the statute and regulations, and is inconsistent with
our precedent. In order to develop these points, it is necessary
to replow much of the ground turned already by the majority.
I.
Charles Tony Cefalu, III, who has had a hearing impairment
since birth, was educated in public schools through the end of the
1992-93 school year. As required by the IDEA, he received special
education and related services, including sign language interpreter
services, pursuant to an individualized education plan (IEP).
In March 1993, an IEP for the 1993-94 school year was approved
by Cefalu’s parents. It specified that his special education
program would include the services of an interpreter at a public
middle school. In June, the Supreme Court held that a public
school district did not violate the Establishment Clause by
providing such services to a student attending a private school
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voluntarily. Zobrest v. Catalina Foothills School District, 509
U.S. 1 (1993).
That summer, Cefalu’s parents withdrew their consent to the
1993-94 IEP, enrolled Cefalu at Redemptorist High School, a private
school, and requested a new IEP which would provide him with an
interpreter there. At an IEP conference in August, school system
officials refused the request and offered an IEP essentially
identical to that of March 1993. The Cefalus refused to consent to
the August 1993 IEP, and requested an IDEA due process hearing,
pursuant to 20 U.S.C. § 1415(b)(2).
In October 1993, the administrative hearing officer ruled that
the School Board was not obligated to provide Cefalu with an
interpreter while at Redemptorist, because it had offered him a
free appropriate public education in the public school system. On
appeal to the state level review commission, 20 U.S.C. § 1415(c),
the hearing officer’s decision was affirmed. Cefalu then sought
judicial review in federal court, as provided for by the IDEA, 20
U.S.C. § 1415(e)(2).
After hearing cross-motions for summary judgment, for which
the record consisted of the administrative record and a joint
stipulation, the district court granted Cefalu’s, and ordered the
Board to provide him with a sign language interpreter at
Redemptorist. The court denied the Board’s motion to stay the
judgment pending appeal; it did not seek a stay from our court.
II.
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The stipulated, sole issue before the district court was
“whether the School Board is legally obligated to provide [Cefalu]
with the related service of a sign language interpreter while he
attends a private school in which he was unilaterally placed by his
parents who rejected the offer of the School Board to provide
appropriate services to [Cefalu], including an educational
interpreter, in the public school system”. That same question is
presented here; needless to say, it is much more narrow than that
seized by the majority.
Cefalu contends only that the statute and regulations give the
School Board no discretion whatsoever to deny providing an
interpreter at his private school. He does not contend,
alternatively, that, if the School Board has discretion, it abused
it. Accordingly, that is why, as the majority notes, “there is no
evidence in the record that indicates the basis of the school
board’s decision”. I disagree with its decision to remand for
further consideration of whether the School Board’s denial of
services under the IDEA was appropriate, because that issue was not
presented to us.
It goes without saying that the summary judgment is reviewed
de novo, using the standard utilized by the district court. E.g.,
Brock v. Chater, 84 F.3d 726, 727 (5th Cir. 1996). In conducting
judicial review of an IDEA administrative decision, the court
“shall receive the records of the administrative proceedings, shall
hear additional evidence at the request of a party, and, basing its
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15
decision on the preponderance of the evidence, shall grant such
relief as the court determines is appropriate”. 20 U.S.C. §
1415(e)(2). At issue is interpretation of the IDEA and regulations
promulgated under it.
The IDEA provides federal grants to States, which in turn
provide funds to local school districts, for assistance in
providing special education and related services to children with
disabilities. States that accept such grants are required to have
in effect a policy that “assures all children with disabilities the
right to a free appropriate public education” and a plan that
assures the availability of such an education to such students. 20
U.S.C. § 1412. The IDEA defines a “free appropriate public
education” as
special education and related services that--
(A) have been provided at
public expense, under public
supervision and direction, and
without charge,
(B) meet the standards of the
State educational agency,
(C) include an appropriate
preschool, elementary, or secondary
school education in the State involved,
and
(D) are provided in conformity
with the individualized education
program required under section
1414(a)(5) of this title.
20 U.S.C. § 1401(18). “The word ‘public’ is a term of art which
refers to ‘public expense,’ whether at public or private schools.”
Dreher v. Amphitheater Unified School Dist., 22 F.3d 228, 233 n.10
--16--
16
(9th Cir. 1994) (citing Florence County School Dist. Four v.
Carter, 510 U.S. 7, 114 S. Ct. 361, 365 (1993)).
Local school districts receiving funds under the IDEA are
required to prepare an IEP for each disabled student; the IEP must
identify the special education and related services that are
necessary to meet that student’s needs; and the district must offer
to provide those services at public expense. 20 U.S.C. §§ 1412(4),
1414(a)(1), (5). And, if the district is unable to provide the
necessary services in a public school, the district must place the
student in a private school at public expense. 20 U.S.C. §
1413(a)(4)(B).
But, for students such as Cefalu, attending private schools
voluntarily, the IDEA requires that each state’s plan
set forth policies and procedures to assure--
(A) that, to the extent consistent with
the number and location of children with
disabilities in the State who are enrolled in
private elementary and secondary schools,
provision is made for the participation of
such children in the program assisted or
carried out under this subchapter by providing
for such children special education and
related services ....
20 U.S.C. § 1413(a)(4)(A). Along that line, regulations
promulgated by the United States Department of Education provide
that, if parents place their child in a private school voluntarily,
“the public agency is not required ... to pay for the child’s
education at the private school or facility. However, the public
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17
agency shall make services available to the child as provided under
§§ 300.450-300.452.” 34 C.F.R. § 300.403.
One of these referenced sections, § 300.452, states that
“[e]ach [local educational agency] shall provide special education
and related services designed to meet the needs of private school
children with disabilities residing in the jurisdiction of the
agency.” 34 C.F.R. § 300.452. Another, § 300.451, requires the
local agency to ensure that, “[t]o the extent consistent with their
number and location in the State, provision is made for the
participation of private school children with disabilities in the
program assisted or carried out under this part by providing them
with special education and related services ....” 34 C.F.R. §
300.451(a).
Section 300.451 also requires local educational agencies to
satisfy the requirements of 34 C.F.R. §§ 76.651-76.662. 34 C.F.R.
§ 300.451(b). Those cross-referenced regulations address
conditions that the State and the subgrantees (local public
schools) must meet with respect to private school students. Under
those regulations, local educational agencies “shall provide
students enrolled in private schools with a genuine opportunity for
equitable participation”, and “shall provide that opportunity to
participate in a manner that is consistent with the number of
eligible private school students and their needs.” 34 C.F.R. §
76.651(a)(1) and (2). The local agency is required to consult with
private school students’ representatives regarding which students
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18
will receive benefits, how the students’ needs will be identified,
what benefits will be provided, and how benefits will be provided.
34 C.F.R. § 76.652(a). And, the local agency is required to
determine the following “on a basis comparable to that used ... in
providing for participation of public school students”:
(a) The needs of students enrolled in
private schools.
(b) The number of those students who
will participate in a project.
(c) The benefits that the [agency] will
provide under the program to those students.
34 C.F.R. § 76.653. Finally, “[t]he program benefits that [an
agency] provides for students enrolled in private schools must be
comparable in quality, scope, and opportunity for participation to
the program benefits that the [agency] provides for students
enrolled in public schools.” 34 C.F.R. § 76.654(a).
The district court adopted the opinion in K. R. v. Anderson
Community School Corp., 887 F. Supp. 1217 (S.D. Ind. 1995). The K.
R. district court relied on § 76.654(a)’s requirement of
“comparable” benefits; it reasoned that, because K. R. would
receive an instructional assistant in the public school, she was
entitled to one in the private school, because there was no other
“comparable” alternative. 887 F. Supp. at 1225.
But, after the district court rendered its decision in the
case at hand, the Seventh Circuit reversed the K. R. district
court. K. R. v. Anderson Community School Corp., 81 F.3d 673 (7th
Cir. 1996). The Seventh Circuit held that the district court erred
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19
by focusing only on one section of the statutory and regulatory
provisions, and that its interpretation of § 76.654 was
contradicted by the conventional understanding of the IDEA and its
regulations.
I would hold, consistent with the Seventh Circuit, that the
district court erred. The IDEA differentiates among three
categories of disabled students: (1) those attending public
schools; (2) those placed in private schools by local school
districts; and (3) those attending private schools voluntarily.
For public school students, the IDEA requires that all children
with disabilities receive a free appropriate public education that
covers the expense of all special education and related services.
20 U.S.C. §§ 1412(1) and (2)(B), 1412(4), 1414(a)(5). Students
placed in private schools by local school districts are to receive
the same benefits as those attending public schools. 20 U.S.C. §
1413(a)(4)(B). But, the provision governing students placed in
private schools voluntarily requires only that, “to the extent
consistent with the number and location” of such students,
“provision is made for the participation of such children” in the
local IDEA program. 20 U.S.C. § 1413(a)(4)(A).
The regulations are consistent with the IDEA and, read as a
whole, demonstrate that local educational agencies have discretion
to determine what services to provide disabled students attending
private school voluntarily. Consistent with the IDEA, the
regulations differentiate among the same three categories of
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20
students. They require that all disabled children receive a free
appropriate public education, 34 C.F.R. §§ 300.121, 300.126; but
they address separately the requirements for disabled children
placed in, as opposed to attending voluntarily, private schools.
34 C.F.R. §§ 300.400-300.487.
Students placed in private schools by the local school
district have “all of the rights of a child with a disability who
is served by a public agency”. 34 C.F.R. § 300.401(b). Students
attending private school voluntarily, however, are governed by
different regulations. The local agency is not required to pay for
the student’s education, but “shall make services available to the
child as provided under §§ 300.450-300.452.” 34 C.F.R. §
300.403(a).
For such students, the state educational agency must ensure
that provision is made for participation of disabled children
attending private school voluntarily, but only “to the extent
consistent with their number and location in the State”. 34 C.F.R.
§ 300.451(a). And, the state educational agency also must ensure
that the requirements of 34 C.F.R. §§ 76.651-76.662 are met. 34
C.F.R. § 300.450(b).
As stated, those regulations require a local educational
agency to determine, on a basis comparable to that used in
providing for participation by public school students, the needs of
students enrolled in private schools, the number of those students
who will participate in a project, and the benefits that will be
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21
provided to those students. 34 C.F.R. § 76.653. Local educational
agencies are required to “provide students enrolled in private
schools with a genuine opportunity for equitable participation”,
and must “provide that opportunity to participate in a manner that
is consistent with the number of eligible private school students
and their needs.” 34 C.F.R. § 76.651(a)(1) and (2). Finally, the
“program benefits that a [local educational agency] provides for
students enrolled in private schools must be comparable in quality,
scope, and opportunity for participation to the program benefits
that the [agency] provides for students enrolled in public
schools.” 34 C.F.R. § 76.654(a).
The distinctions drawn in the IDEA and regulations make it
clear that disabled students attending private schools voluntarily
are not automatically entitled to receive services totally
comparable to what they would receive if enrolled in public
schools. If Congress had intended to require the provision of the
same benefits to all disabled students, there would have been no
need to differentiate among the three categories of students.
Obviously, we should assume that Congress intended for each of the
provisions to have meaning, and should not treat as surplusage the
separate provisions for children attending private school
voluntarily. See, e.g., Bailey v. United States, ___ U.S. ___, 116
S. Ct. 501, 506-07 (1995).
The cross-referenced regulations, 34 C.F.R. §§ 76.651-76.662,
do not undermine this conclusion. The local educational agency
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need only provide “a genuine opportunity for equitable
participation”, 34 C.F.R. § 76.651(a)(1); and it must consult with
representatives of the student to determine, among other things,
which children will receive benefits, and what benefits will be
provided. 34 C.F.R. § 76.652.
Only § 76.654(a), relied on by the district court, suggests
that disabled students attending private school voluntarily must
receive services comparable to those provided to students in public
school. It states that the “program benefits that [an agency]
provides for students enrolled in private schools must be
comparable in quality, scope, and opportunity for participation to
the program benefits that the [agency] provides for students
enrolled in public schools”. 34 C.F.R. § 76.654(a). I agree with
the Seventh Circuit’s interpretation of § 76.654(a):
[R]ead in light of the statutory scheme ...
and the other regulations, which precisely
track the statutory division of public and
private school students, the only reasonable
interpretation of Section 76.654(a) is that
the comparability requirement is limited to
the “program benefits that [an agency]
provides.” Sections 76.651 and 76.652
explicitly give the public school discretion
over what benefits to provide; however, when
benefits are provided, Section 76.654 requires
that they be comparable to benefits for public
school students. Section 76.654 is not by its
terms a mandate that private school students
shall receive full benefits.
K. R., 81 F.3d at 679 (quoting 34 C.F.R. § 76.654(a)).
The Seventh Circuit’s interpretation is supported by the
Department of Education’s consistent interpretation of its
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regulations as giving discretion in providing benefits to students
attending private school voluntarily. See Letter to Livingston, 17
Educ. for Handicapped L. Rep. 523 (1991) (if a free appropriate
public education has been made available for a child with a
disability, and the parents choose to place the child in a private
school, the public agency is not required to pay for the child’s
education at the private school or to make a free appropriate
public education available to the child at the private school);
Letter to Metlink, 18 Individuals with Disabilities Educ. L. Rep.
276 (1991) (public agency may choose not to serve every parentally-
placed private school student with disabilities); Letter to
Schmidt, 20 Individuals with Disabilities Educ. L. Rep. 1224
(Zobrest decision did not change agency interpretation that
parentally-placed children with disabilities do not have an
individual entitlement to services); OSEP Memorandum 94-17, 20
Individuals with Disabilities Educ. L. Rep. 1440 (1994) (children
with disabilities placed in private schools by their parents do not
have an individual entitlement to services, but private school
children as a group must be afforded a genuine opportunity for
equitable participation in special education programs conducted by
local school districts); Letter to McConnell, 22 Individuals with
Disabilities Educ. L. Rep. 369 (1994) (school districts generally
must provide parentally-placed private school students with genuine
opportunity for equitable participation in special education
programs they conduct).
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The majority’s new rule is far more than an “interpretation”
of the statute and existing regulations; indeed, it establishes a
new rule which is not consistent with the interpretation of those
regulations by the United States Department of Education (the
agency that promulgated them). Unlike the majority, the DOE has not
interpreted the IDEA and regulations as requiring that local
educational agencies “must provide on-site services” to disabled
students attending private schools voluntarily unless they justify
the denial with “rationally supportable” or not “otherwise
arbitrary” reasons. In that the DOE’s “interpretation of its own
regulations is” neither “plainly erroneous [n]or inconsistent with
the regulations”, it is “entitled to substantial deference”. K.
R., 81 F.3d at 680 (citing Thomas Jefferson Univ. v. Shalala, 512
U.S. 504, 114 S. Ct. 2381, 2386 (1994)). Because the DOE’s
interpretation is reasonable, the majority errs by failing to give
deference to it, even if the majority might think a different
interpretation is also reasonable. In short, we should leave the
promulgation of additional regulations to the agency entrusted with
that responsibility.
In Goodall v. Stafford County School Bd., 930 F.2d 363, 367
(4th Cir.), cert. denied, 502 U.S. 864 (1991), the Fourth Circuit
held, inter alia, that, where a school district offered to provide
an interpreter to a hearing-impaired student at a public school,
the IDEA’s predecessor, the Education of the Handicapped Act, did
not require the district to make that service available to the
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student at a private school. Very recently, in Russman v. Sobol,
85 F.3d 1050 (2d Cir. 1996), cited by the majority as support for
its new rule, the Second Circuit viewed Goodall as unpersuasive, 85
F.3d at 1055, and stated that the Seventh Circuit’s decision
“accorded excessive discretion to school authorities to deny the
on-site provision of services to disabled students in private
schools”, id. at 1056. But, it agreed with the Seventh Circuit
that “the rights accorded disabled students in public schools
differ from those accorded such students voluntarily placed in
private schools”. Id.
The Second Circuit interpreted the statutory language limiting
the obligation of States to provide special education and related
services to private school students “to the extent consistent with
the number and location” as giving school districts “discretion to
deny on-site provision of services at private schools where
economies of scale in providing the services at one place exist”.
Id. It reasoned that, “[w]here the cost of special services does
not vary with where they are provided, the IDEA and regulations
regarding voluntary private school students make little sense if
such services may be made available only in public schools.” Id.
Because the school district’s denial of services for Russman at a
private school was based only on its view that the Establishment
Clause prohibited the provision of such services at a parochial
school (a contention the court rejected post-Zobrest), and the
school district made no claim that the provision of such services
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at the private school was significantly more expensive than
providing them at the public school, the court held that the school
district had to provide the services at the private school. Id. at
1057.
Seizing on this recent decision, Cefalu asserted at oral
argument that Russman supports his position, claiming that the
Board’s offer to provide him an interpreter at any public school in
the district except the two magnet schools foreclosed it from
contending that providing an interpreter at Redemptorist would
create an economic hardship. Although Cefalu made a similar
contention in the administrative proceedings and in the district
court, he did not do so in his appellate brief. Moreover, the
record does not contain any evidence as to the number of hearing-
impaired students in other public schools in the district.
Accordingly, we do not know, for example, whether the offer to
provide services to Cefalu at another public school would have
entailed providing them on a one-to-one basis, or to a group of
hearing-impaired students, including him. Despite the bare record,
and Cefalu’s failure to brief the issue of economic (or non-
economic) feasibility, the majority nevertheless reaches out to
decide it.
The majority’s decision to remand for further development of
the record and application of its new rule is facilitated by its
adoption of a new “burden-shifting” approach: if a voluntary
private school student makes an initial showing of a genuine need,
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based upon more than mere convenience, for services to be provided
on-site, the school district must provide them, unless it presents
a justifiable reason, either economic or non-economic, for its
denial of on-site services. If it does, the student then bears the
burden of showing that the agency’s position is inconsistent with
the IDEA and regulations, or is not rationally supportable, or is
otherwise arbitrary. This approach is inconsistent with our
court’s precedent, which the majority does not even mention, much
less distinguish. That precedent places “the burden of
demonstrating the inappropriateness” of the educational placement
provided for in an IEP on the party attacking it. See Salley v.
St. Tammany Parish School Board, 57 F.3d 458, 467 (5th Cir. 1995).
We are required to follow it.
In addition, among other things, I am concerned that such an
allocation of the burden of proof will further strain school
districts’ resources, by forcing them to hire economists,
accountants, psychologists, educational administrators, or other
experts to furnish evidence concerning the economic or non-economic
feasibility of providing services to disabled students attending
private schools voluntarily. As the Supreme Court noted in Rowley,
the IDEA was enacted pursuant to the spending clause; when
legislating under that clause, if Congress intends to impose a
condition on the grant of federal funds, it must do so
unambiguously. 458 U.S. at 204 n.26 (citing Pennhurst State School
& Hosp. v. Halderman, 451 U.S. 1, 17 (1981)). The IDEA does not
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unambiguously condition the State’s receipt of federal funds on its
proving the infeasibility of providing services to disabled
students attending private school voluntarily.
In sum, the earlier quoted stipulated sole issue should be
answered as follows: the school district was not “legally
obligated” (required) to provide Cefalu with an interpreter at his
private school; under the IDEA, it had discretion to decline to do
so. On the other hand, again consistent with the IDEA, that
discretion is not unlimited; it is restrained by the above
discussed statutory provisions and regulations, especially 20
U.S.C. § 1413(a)(4)(A) (“special education and related services” to
be provided children with disabilities parentally-placed in private
schools “to the extent consistent with [the children’s] number and
location”). It may well be that factors such as economies of
scale, not addressed by this record, will compel the provision of
such services at a private school, and that to not so provide them
will be outside the discretion accorded the school district under
the IDEA. But, again, that issue is not presented in this case.
III.
For the foregoing reasons, I would reverse the judgment,
vacate the injunction, and render judgment for the appellants.
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