concurring. I concur in the Court’s judgment, but I write separately to express my view that DSW’s legal position justifying withholding of ANFC benefits was frivolous, caused a waste of judicial resources, and unfairly placed the unnecessary burden of litigation on plaintiffs.
The facts were not in dispute. DSW admitted that the children were disabled, did not meet the graduation requirement solely because of their disabilities, and met every other eligibility criteria for ANFC benefits. Obviously, graduation - unlike residence, age, financial need, and deprivation of parental support or care, see 33 V.S.A. § 1101 - was not an “essential” element of the ANFC program. DSW simply did not contest that the regulation in issue discriminated against plaintiffs. Its defense was the mere existence of the regulation. In a flurry of rhetoric, DSW ceded its case and argued that a regulation that undeniably discriminated against disabled children had to be followed. DSW contended it was exempt from the mandates of the Rehabilitation Act and the ADA. The question is why?
The answer lies in a statement made in DSW’s brief to this Court. “[DSW] cannot make an independent determination that the federal law conflicts with § 504 or the ADA and still participate in the federal program. If a state fails to adhere to provisions of the federal program, it loses federal financial participation.” (Emphasis added). In other words, DSW would not follow the law if it meant losing federal receipts. Yet, as a public entity that receives federal funding, DSW is required to “make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability.” 28 C.F.R. § 35.130(b)(7) (federal regulations promulgated by Department of Justice implimenting ADA and governing nondiscrimination on basis of disability in state and local government services).
This disturbing posture was maintained even though DSW in light of the ADA, did nothing to determine the availability of federal funds. At oral argument counsel for DSW confirmed its lack of inquiry.
Justice Gibson: Has the Secretary made any effort to determine whether federal funds would be available if the [18]-year-old disabled were to be compensated?
*124Counsel: I think it’s fairly clear within the statute and the [regulations] that you set up your state plan according to the regulations and only state plans that have been approved, that those are the benefits you are going to get.
Justice Gibson: I take it your answer is no.
Justice Gibson: . . . [H]ow can the Secretary deny benefits without checking with the federal government as to its interpretation?
Counsel: This is a fairly straight-forward statute ....
It is most regrettable that an issue as predictable as the one here would reach this Court without any effort by DSW to resolve it with the applicable federal agency. Because DSW made no effort to determine the availability of federal funds, this Court cannot be sure that any actual conflict exists.
It seems that this case was an effort to steer an imagined funding problem to the judiciary. Rather than the judiciary being the “court of last resort” to resolve a real dispute, it was the first stop to resolve a funding dilemma in difficult fiscal times. DSW’s failure to take initiative created a hardship on the three families involved in this appeal, as well as unnecessary litigation. This hardship and waste of resources might have been avoided with a telephone call early on to the United States Department of Health and Human Services.