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Judge Backs E.D. Move To Cut Off Funds to County

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Washington--A federal judge has refused to stop the Education Department from cutting off funds to the DeKalb County, Ga., schools, whose officials are challenging the department's authority to investigate certain special-education complaints as alleged civil-rights violations.

The cutoff order, which became effective Sept. 4, would cost the district at least $7 million per year in federal education aid. (See Education Week, Sept. 26, 1990.)

In a Sept. 20 ruling here, U.S. District Court Judge Louis F. Oberdorfer said the school district had not proved that it would be ''irreparably injured" if a temporary restraining order were not granted, because the impact of the cutoff would not be felt until next year.

In his decision, the judge said the district could obtain a more permanent preliminary injunction or even a decision on the merits of the case by then. He noted that department officials had agreed not to distribute funds earmarked for DeKalb to other recipients before the case is decided. Charles Weatherly, DeKalb's attorney, said last week that this year's programs would not suffer only because the district would provide services it had already committed to through deficit spending, setting up a financial disaster later on. Furthermore, he noted, if the cutoff were to stay in place, the district could not apply for any federal funds it is not entitled to by formula.

However, Judge Oberdorfer also said it was not clear that the district would win the complicated case, and that this uncertainty also argued against an injunction.

Choice of Court

The judge has asked each side to present further arguments as to the appropriate venue of the case, but said he would likely agree with the Education Department's argument that the district's complaint should have been filed in the federal courts in Georgia. He said "there are emanations of forum shopping in the plaintiffs' decision to file in this court rather than in the court which has familiarity with this action."

In an earlier incarnation of the case, the U.S. Court of Appeals for the 11th Circuit, based in Atlanta, ruled that the district had to exhaust its administrative appeals be fore filing suit.

Mr. Weatherly said he filed the suit in Washington because the courts here are more familiar with the regulatory issues in dispute and because he thought it would be easier here to obtain and carry out a court order forcing the department to produce documents he has been unable to get through the Freedom of Information Act.

"Most of the information is located in Washington, the lawyers are there, the courts are more familiar with agency regulations," he said.

Mr. Weatherly said he had not yet decided what his next move will be, noting that the district can now appeal the denial of a temporary re straining order, continue to argue the remaining issues before the district court in Washington and seek a preliminary injunction here, or refile the suit in Atlanta.

The case involves complaints by DeKalb parents about the district's refusal to place their handicapped children in residential facilities.

The district says that the Education of the Handicapped Act is the sole vehicle through which parents may contest the placement of disabled students. It argues that the Education Department's office for civil rights may not properly investigate such parental complaints as civil-rights violations under Section 504 of the Rehabilitation Act of 1973, which bars discrimination against disabled people in federally funded programs.

DeKalb further argues that it does not have to cooperate with a probe that it believes oversteps the o.c.r.'s jurisdiction.

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