Cefalu v. East Baton Rouge Parish School Board

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 95-31045

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CHARLES TONY CEFALU, JR., Behalf of

his minor son rpi Charles Tony Cefalu, III,

Plaintiff-Appellee,

versus

EAST BATON ROUGE PARISH SCHOOL BOARD;

STATE OF LOUISIANA, Through the

Department of Education,

Defendants-Appellants.

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Appeal from the United States District Court for the

Middle District of Louisiana, Baton Rouge

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July 3, 1997

ON PETITION FOR REHEARING

Before POLITZ, Chief Judge, and JOLLY and BARKSDALE, Circuit

Judges.

E. GRADY JOLLY, Circuit Judge:

The petitions for panel rehearing are granted.

On January 3, 1997, the opinion in this case issued, vacating

the judgment of the district court in favor of the plaintiff and

remanding the case for further consideration in the light of our

opinion. 103 F.3d 393 (5th Cir. 1997). All parties filed

petitions for rehearing. We then asked the United States

Department of Education, the agency in charge of administering the

Individuals with Disabilities Education Act (“IDEA”), to submit an

amicus curiae brief to assist us in interpreting this vague and

difficult statute as it applies to the obligation of the school

district to provide the plaintiff with an on-site sign language

interpreter at a parochial school in which he was voluntarily

enrolled by his parents.

The Department of Education took the position that the statute

imposed no obligation on the school district to provide the

services on-site so long as an appropriate free public education

had been made available to the student. The Department noted that

only a small percentage of the cost of the special education

services was derived from the federal grants under IDEA and that

the remainder of the costs were paid through the use of local and

state funds. Under the Department’s interpretation, the IDEA does

not require a school district to expend its non-federal funds for

the provision of special education services to students voluntarily

enrolled in private schools. Instead, the agency must make a free

appropriate public education available to all disabled students and

shall provide a proportionate share of federal funds to students

voluntarily enrolled in private schools. In short, the Department

concluded that the result reached in the dissenting opinion was

correct.

Furthermore, after we issued our opinion, Congress recognized

the difficulty arising from judicial efforts to interpret the IDEA

and enacted clarifying amendments in order to “resolve . . . the

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subject of an increasing amount of litigation in the last few

years.” S. Rep. No. 17, 105th Cong., 1st Sess. 13 (1997). These

amendments specifically state that an agency is required only to

provide students voluntarily enrolled in private schools with a

proportionate share of federal funds under the IDEA and is not

required to pay for the cost of the special education services.

See IDEA Amendments Act of 1997, Pub. L. No. 105-17, 111 Stat. 37

(June 4, 1997), at § 612(a)(10).1

In the light of this background, on rehearing, we withdraw our

earlier opinion. As we noted in our opinion, “[t]he single

question presented by this appeal is whether, under the Individuals

with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq.,

a school board is legally obligated to provide a sign language

interpreter to a disabled student voluntarily enrolled in private

school.” Cefalu, 103 F.3d at 394-95. We now bow to the view of

Congress, the Department of Education and the dissenting opinion of

Judge Barksdale. We therefore hold unambiguously that the

defendants were not legally obligated to provide an on-site sign

language interpreter to the plaintiff at the private school. The

plaintiff was offered an individualized education program (“IEP”)

1

The amendments “specify that the total amount of money that

must be spent to provide special education and related services to

children in the state with disabilities who have been place[d] by

their parents in private schools is limited to a proportional

amount (that is, the amount consistent with the number and location

of private school children with disabilities in the State) of the

Federal funds available under part B.” S. Rep. No. 17, 105th

Cong., 1st Sess. 13 (1997).

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at the public schools, which all parties agreed was appropriate

until the plaintiff transferred from the public school where the

services were to be provided to the private school he now attends.

Having offered to the plaintiff a free appropriate public

education, the local educational agency was not required to provide

the on-site interpreter to the plaintiff. We therefore reverse the

district court and render judgment for the defendants.

Further, in view of the recognized vagueness of this statute

and the numerous conflicting decisions interpreting its provisions,

each party shall bear its own costs.

REVERSED and RENDERED.

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