Court Urged Not To Accept Spec. Ed. Funding Cases

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A deep split among federal courts over whether school districts must pay for special education services for children voluntarily enrolled in private schools has been resolved by the new federal special education law, the Clinton administration has told the U.S. Supreme Court.

The reauthorized Individuals with Disabilities Education Act "makes clear that it imposes no obligation on states and localities to spend their own money on services for such children," the Department of Justice states in a brief filed with the high court this month.

The court asked for the department's views on the issue last December, shortly after Congress adjourned without reaching agreement on what to include in a reauthorized version of the IDEA.

The department waited to submit its views until the new Congress passed the revised version of the IDEA, which President Clinton signed into law early this month. ("House, Senate Easily Approve Spec. Ed. Bill," May 21, 1997.)

At issue is an important legal question that has received less attention than hot-button disputes over disciplining students with disabilities and school district reimbursements to parents who place their children in private schools when their public school special education plans do not work out.

In three cases pending at the Supreme Court, the issue is whether districts were obligated under the IDEA to pay for auxiliary services for children with disabilities whose parents chose to enroll them in private schools. These services include sign language interpreters for hearing-impaired children and instructional aides for children with severe physical disabilities. The high court could announce this month whether it will hear the three cases.

No 'Individual Entitlement'

The Justice Department filed its brief in a case from Indiana called K.R. v. Anderson Community School Corp. (Case No. 96-323), but it essentially covers all three pending appeals. The department told the high court it should not accept any of the appeals because the new version of the IDEA now makes clear that disabled children enrolled voluntarily in private schools are entitled only to the amount of services covered by federal special education funding. While federal funding typically covers only 6 percent to 8 percent of a child's special education needs, state and local officials would not be obligated to cover the remaining costs of requested services.

"Because states and localities provide the overwhelming majority of public funding for special education services," the brief adds, the revised law "necessarily forecloses any claim ... that a disabled child placed by his or her parents in a private school has an individual entitlement to any particular special education service available to public school children."

The department further argues that this was the correct interpretation of the law even under the old version of the IDEA. If Congress had not clarified the matter, the high court would have needed to resolve the conflict among the federal appeals courts, the department said. But that is not necessary now, it said.

Last year, in K.R., the U.S. Court of Appeals for the 7th Circuit ruled that the IDEA does not give disabled students voluntarily enrolled in private schools an entitlement to the same services they would receive in public schools or if a district placed them in private schools. The court said the Anderson, Ind., district did not have to provide a full-time aide to a severely disabled girl enrolled by her parents in a private school.

However, three other federal appeals courts have ruled recently that the IDEA requires districts to provide essentially the same level of services to children voluntarily enrolled in private schools. Two of those rulings have also been appealed to the Supreme Court. In Board of Education v. Russman (No. 96-776), the U.S. Court of Appeals for the 2nd Circuit ruled that the Watervliet, N.Y., district must provide a teacher's aide for a severely disabled girl attending a Roman Catholic elementary school.

In Fowler v. Unified School District No. 259 (No. 96-1633), the U.S. Court of Appeals for the 10th Circuit ruled that the IDEA compels school districts to pay for special education services for children in private schools up to their average costs for providing the same services in public schools.

At most, the Supreme Court may wish to vacate and return to the 2nd Circuit and 10th Circuit rulings that upheld the requirement for equal services for children enrolled in private school, Justice Department officials said in their brief.

Delinquency Case

In a separate action, the high court last week declined to hear an IDEA-related appeal from a Tennessee school district.

The Knox County district asked the court to review a federal appellate ruling that said school officials could not report delinquent behavior by a learning-disabled child to juvenile authorities without first following the procedures for a change of placement under the special education law.

Without comment, the high court declined to hear the case of Morgan v. Chris L. (No. 96-1681).

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