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E.D. Ordered To Release Va. Special-Education Funds

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Washington

A federal appeals court has ordered the Education Department to release nearly $59 million in special-education funds it had been withholding from the state of Virginia because of a dispute over disciplinary policies for students with disabilities.

The U.S. Court of Appeals for the Fourth Circuit ruled late last month that because the federal agency had not offered to hold a hearing on the matter, it cannot withhold the funds.

The department had begun withholding the funds last year, when Virginia refused to adopt a policy that would have guaranteed educational services for students with disabilities who were expelled for disciplinary reasons, even if there was no causal relationship between a student's disability and the behavior that led to expulsion. (See Education Week, March 9, 1994).

Many school officials nationwide have criticized the federal department's insistence on such a policy, which stems from the mandate in the Individuals with Disabilities Education Act that all disabled students are entitled to a "free, appropriate public education.''

Virginia is the first state to jeopardize its funding by challenging the rule. Virginia officials argued that the policy sends the message that students with disabilities can bring guns or drugs to school and not be disciplined like other students.

The state filed suit in March, asking that the funds be released while administrative proceedings on the issue continue.

In granting that request, the appellate court said that the state must assume responsibility for the education of any disabled students who are expelled or suspended for long periods until the dispute is resolved. The Virginia education department had offered to do so before the dispute landed in court, in an effort to persuade federal officials to give up the funds.

State officials planned to send a memorandum to districts late last week asking that they inform the state education department when they were considering expelling or suspending a disabled student.

Although a specific plan had not been devised for serving those students as of last week, James Foudriat, a spokesman for the Virginia education department, said that the state would hire contractors to provide services that meet such students' individualized education plans.

"This preserves the local school boards' options to expel or suspend for a long time students whose behavior is unrelated to their disability,'' Mr. Foudriat said.

Federal officials will not appeal the decision. They plan to conduct a hearing as ordered, but a date had not been set as of last week.

In a related matter, the Education Department has indicated that students with disabilities will also receive special consideration as schools implement a provision of the Goals 2000: Educate America Act that mandates a minimum one-year expulsion for students caught bringing guns to school.

Discretion on Gun Rule

After requiring school districts to adopt that policy, the Goals 2000 law states that "such policy may allow the chief administering officer of the [district] to modify such expulsion requirement for a student on a case-by-case basis.''

Steven Y. Winnick, the department's deputy general counsel for program services, said that the agency has interpreted that to mean that administrators could use that case-by-case discretion to keep disabled students in school without losing federal funds under the anti-gun rule.

"We maintain that the [I.D.E.A.] statute requires that a free, appropriate education'' be granted to every disabled student, including those who are subject to disciplinary action and those who are incarcerated, Mr. Winnick said.

Students with disabilities who are expelled for possessing guns would enjoy the same right to alternative educational services as disabled students expelled for other disciplinary reasons.

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