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E.D. Moves To Halt Aid to Georgia District, State Agency

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WASHINGTON--The Education Department has moved to cut off federal funding to the DeKalb County, Ga., schools and the Georgia Department of Education in a case that may set precedents involving special-education law and the U.S. department's authority to investigate civil-rights complaints.

The decision last month to move for a funding cutoff, which will take effect this week if it is not appealed, is the first since 1982, a spokesman for the federal department's office for civil rights said.

The action was inevitable, because the district and state officials in Georgia have made it clear they do not want to settle the case. Instead, they want a decision from the federal courts on whether the OCR has the authority to investigate certain special-education complaints, and whether the district can refuse to cooperate with a probe it believes oversteps the agency's jurisdiction.

The case was launched in 1984, when parents began to complainDeKalb County's refusal to pay for private residential placements for handicapped children.

The parents could have appealed those decisions under the Education of the Handicapped Act--which requires a "free, appropriate public education" for disabled students.

But they instead filed complaints with the O.C.R. under Section 504 of the Rehabilitation Act of 1973, a civil-rights law barring discrimination against disabled people in federally funded programs. Regulations under that law, which predates the corresponding protections in the E.H.A. by two years, also require appropriate educational services for handicapped children and specifically discuss residential placement.

The educational mandate is similar in the two laws, but the consequences of noncompliance are different. While the EHA enables parents to individually contest their children's placements and is monitored by the Education Department's special-education office, Section 504 empowers the office for civil rights to take action against offendhool districts through its civil-rights\enforcement process.

The DeKalb County district and the state of Georgia are contending that the Education Department's Section 504 regulations are invalid because they go beyond the scope of the statute--which is itself tersely worded and simply bars discrimination--and that the E.H.A. is the vehicle through which claims related to special education should be pursued.

They extensively cite the U.S. Supreme Court's 1984 ruling in Smith v. Robinson, which held that parents could not recover attorney's fees spent in E.H.A. proceedings by simultaneously filing claims under Section 504, which allowed payment of fees.

The Court also ruled that "Congress intended [the E.H.A.] to be the exclusive avenue through which a plaintiff may assert an equal-protection claim to a publicly financed special education." (See Education Week, Aug. 22, 1984.)

The office for civil rights has no proper jurisdiction to investigatees over the educational placement of handicapped children, the Georgia officials argue, and therefore the district does not have to allow the agency access to its records, despite separate regulations requiring that the O.C.R. be given information necessary to assure compliance with the laws it enforces.

The state became a defendant when its officials also refused the OCR's request for information.

"Let one part of the agency enforce [these] issues and not have it coming from two directions and immobilizing you," said Charles Weatherly, a lawyer representing the DeKalb district. "They are using termination threats to force you to take affirmative action."

"This is not a case of a district raising this to try to deny handicapped children services," Mr. Weatherly added. "What we are asking is simple: will someone please answer the question of 'What is O.C.R.'s authority?"'

Diane Lipton, a lawyer who specializes in special education at the Disability Rights Education and Defense Fund, said invalidation of education-related Section 504 rules would be disastrous, as they cover many students and situations that are not protected under the Education of the Handicapped Act.

That law covers only students with specified disabilities and only requires education-related services, she explained, while Section 504 covers anyone with a handicap--including conditions such as drug adn or attention-deficit disorder, which are not listed under the E.H.A--and can mandate access to school programs that are not specifically educational.

In addition, Ms. Lipton said, the E.H.A.'s purpose "is strictly individual, and does not deal with how whole classes of kids are treated.''

The agency argues that the Section 504 regulations are "reasonably related" to the Rehabilitation Act's purpose and therefore valid, that the Congress intended the two laws to operate simultaneously, and that in any case the agency has broad auy to investigate complaints, even those that may ultimately be dismissed for lack of jurisdiction.

The agency notes that the Congress passed legislation in 1986 to overturn the Smith decision and allow parents to collect attorneys' fees in E.H.A. proceedings. The Handicapped Children's Protection Act also stated that the E.H.A. was not intended to restrict remedies available under other laws.

But an effort to write the Section 504 regulations into permanent law as part of the Handicapped Children's Protection Act failed, and federal have not yet defined how that law should be applied in cases where Section 504 and the E.H.A. overlap.

In a 1987 ruling on a procedural issue in the DeKalb case, a district court judge specifically stated that this was an unresolved issue.

That ruling came in a lawsuit the district filed seeking to bar the O.C.R. from investigating the complaints.

In 1989, the U.S. Court of Appeals for the 11th Circuit affirmed the district court's decision that DeKalb County must exhaust its appeals within the Education Department's administrative process before bringit in federal court.

That process had been moving on a parallel track, and on May 1 an administrative-law judge issued a ruling that stands as the final decision in that process.

The administrative judge did not rule on the broader legal disputes, but decided that the O.C.R. had the authority to investigate the complaint involved. If the district refused to cooperate, the judge held, it was in violation of Section 504 for that reason and therefore ineligible for federal funds.

Mr. Weatherly said the district would file an appeal this week, thereby setting up another trip through federal court.

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