at 17. at 598 ("The present dispute grows out of the efforts of [school officials] to expel two emotionally disturbed children from school indefinitely for violent and disruptive conduct related to their disabilities." at 12-13, 23, 101 S. Ct. at 1537-38, 1543. Congress, in Virginia's view, intended that an exception be made for disabled students who have been expelled or suspended long-term due to misbehavior that is unrelated to their disabilities. This committee upheld the long-term suspension, First level hearing officer found no causal connection, Second level hearing officer also found no causal connection, The incident occurred when the student was 15 and, despite the IDEA-B stringent time-lines, the due process appeals took eight months. at 1544. at 604-05. 2d 1069 (1974). v. Halderman, 451 U.S. 1, 17, 101 S. Ct. 1531, 1540, 67 L. Ed. This court has no desire to interfere with the complex administration of a federal grant program. However, as Chief Justice Rehnquist, on behalf of the Court, recently reminded in South Dakota v. Dole, 483 U.S. 203, 107 S. Ct. 2793, 97 L. Ed. 1413 makes no mention of conditional approval. at 3043, one million out of eight million of whom had been excluded from school systems across the country because of their disabilities, id. § 1416(a) (Supp.1996). The Secretary stated that the Department's position on the discipline of disabled children, although not formally published as a regulation, had been publicly circulated as early as 1989. (rejecting the argument that, in order to demand educational services under the Act, a child must show that he or she would benefit from such services; because the Act is unequivocal and "is permeated with the words 'all handicapped children' ... the Act in its entirety makes clear that a 'zero-reject' policy is at the core of the Act"), cert. An agency of the federal government has attempted to discontinue funding to Virginia, a participant in a federal-state grant program, without affording Virginia the most basic elements of due process. See 20 U.S.C. See 20 U.S.C. The withholding of almost $60 million from the State and from the 128,000 disabled students who have responsibly availed themselves of their educational opportunity, simply because the State refuses to yield to the federal demands as to the 126 students who have abused their rights, begins to resemble impermissible coercion, see Dole, 483 U.S. at 211, 107 S. Ct. at 2798, if not forbidden regulation in the guise of Spending Clause condition, as well, see id. 484 U.S. at 308, 108 S.Ct. An agency issues an "interpretive rule" when it "simply states what [it] thinks the statute means, and only reminds affected parties of existing duties." Additionally, in order for the USDOE to withhold any of Virginia's FY 1995 funds, it must first hold an administrative hearing in accordance with the plain provisions of Sec. The USDOE attempts to avoid the straightforward application of Sec. 2d 686 (1988), in a portion of its opinion notably left undisturbed by the Supreme Court in Honig:3. According to one local school division, IDEA funds are needed to support 155 special education personnel positions in that division alone. Williams School of Law; Virginia School Boards Association; Fairfax County School Board, Amici Curiae. The specific provision at issue in Honig v. Doe--the Act's so-called "stay put" provision, discussed supra--also confers unique rights upon disabled children. of Justice, Washington, DC, argued (Helen F. Fahey, U.S. 1416(a) of the statute, it is entitled to notice and a hearing prior to being deprived of its FY 1994 funds. The relevant provision of the IDEA does not require that the States have in effect "a policy that assures all handicapped children a free appropriate public education"--a condition which, in my view, still would not require the States to provide education to handicapped children expelled for misconduct having nothing whatever to do with their disabilities. In Pennhurst, the Court reviewed the provisions of the Developmentally Disabled Assistance and Bill of Rights Act of 1975, then codified at 42 U.S.C. 1416, however, depends on the existence of prior payments or allocations under the state plan, not on the plan's "level" of approval.C. Instead, the Court reasoned as follows: We think it clear ... that Congress very much meant to strip schools of the unilateral authority they had traditionally employed to exclude disabled students, particularly emotionally disturbed students, from school. Smith v. Robinson (1984) Schools must pay for necessary placements. (emphasis added). The principal issue in the instant case is therefore this: When Congress stated that all states receiving IDEA-B funds must have "in effect a policy that assures all children with disabilities the right to a free appropriate public education," did it clearly indicate that states receiving IDEA-B funds could not deprive a disabled student of all educational services, even if the student had been expelled or suspended due to conduct unrelated to his or her disability? The Seventh Circuit ruled in favor of the Department of Education. Id. The Act's unqualified language is therefore sufficiently clear to have enabled Virginia authorities to perceive that they would have to adjust their disciplinary policies for disabled students if they wished to participate in the IDEA-B program. Rather, the procedures required by Sec. According to counsel for the Department of Education, requiring the States to continue to provide educational services to handicapped students expelled for reasons unrelated to their handicaps "make[s] sense, as a matter of policy, in light of the broad purposes of the statute[,] ... [and] allow[ing] individual school districts in their sole discretion to decide whether or not to deny services to this significant number of children with disabilities ... would ... inflict lasting harm on these children." We agree that this solution will "preserve all interests before the Court," and we have acted on the assumption that Virginia will comply with its representation and that USDOE will release the disputed funds and provide Virginia a prompt hearing. 1531, 67 L.Ed.2d 694 (1981). 2d 694 (1984)); cf. Whether the majority's interpretation of the statute or that which I believe Congress intended is the better, however, is not even the question. First, to the extent that Pennhurst is analogical authority in support of Virginia's position (as Virginia contends that it is), that case is easily distinguished. While we do not doubt for a moment that the loss of those funds would be sharply felt, we cannot say that the federal government is providing such a significant proportion of the funds needed by Virginia that the state has no choice but to comply with the conditions attached to receiving the federal dollars. at 1542. 1984). 1416. at 9. When a child's misbehavior does not result from his handicapping condition, there is simply no justification for exempting him from the rules, including those regarding expulsion, applicable to other children.
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