Virginia Department of Education v. Riley

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

COMMONWEALTH OF VIRGINIA

DEPARTMENT OF EDUCATION,

Petitioner,

v.

RICHARD W. RILEY, United States

No. 95-2627

Secretary of Education; UNITED

STATES DEPARTMENT OF EDUCATION,

Respondents.

VIRGINIA SCHOOL BOARDS

ASSOCIATION,

Amicus Curiae.

On Petition for Review of an Order

of the United States Department of Education.

(94-76-0)

Argued: December 4, 1996

Decided: February 5, 1997

Before WILKINSON, Chief Judge, and RUSSELL, WIDENER,

HALL, MURNAGHAN, ERVIN, WILKINS, NIEMEYER,

HAMILTON, LUTTIG, WILLIAMS, MICHAEL, and MOTZ,

Circuit Judges, sitting en banc.

_________________________________________________________________

Reversed by published per curiam opinion. Chief Judge Wilkinson

and Judges Russell, Widener, Ervin, Wilkins, Niemeyer, Hamilton,

Luttig, Williams, Michael, and Motz voted to reverse. Judges

Murnaghan and Hall voted to affirm.

_________________________________________________________________

COUNSEL

ARGUED: William Henry Hurd, Deputy Attorney General, OFFICE

OF THE ATTORNEY GENERAL, Richmond, Virginia, for Peti-

tioner. Leslie A. Simon, UNITED STATES DEPARTMENT OF

JUSTICE, Washington, D.C., for Respondents. ON BRIEF: James S.

Gilmore, III, Attorney General, Paul J. Forch, Senior Assistant Attor-

ney General, Joan W. Murphy, Assistant Attorney General, C. Tabor

Cronk, Assistant Attorney General, OFFICE OF THE ATTORNEY

GENERAL, Richmond, Virginia, for Petitioner. Deval L. Patrick,

Assistant Attorney General, Dennis J. Dimsey, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for Respondents.

D. Patrick Lacy, Jr., Kathleen S. Mehfoud, HAZEL & THOMAS,

P.C., Richmond, Virginia, for Amicus Curiae.

_________________________________________________________________

OPINION

PER CURIAM:

Part B of the Individuals with Disabilities Education Act ("IDEA"),

20 U.S.C. §§ 1411-20 (Supp. 1996), affords federal financial assis-

tance to state and local education agencies for the education of dis-

abled students. In order to qualify for funds under the IDEA, a state

must submit a plan describing the policies and procedures governing

the expenditure of the federal funds to the Office of Special Education

Programs ("OSEP") for approval, and must meet certain additional

requirements. One of these additional requirements is that the state

"assure[ ] all children with disabilities the right to a free appropriate

public education." 20 U.S.C. § 1412(1) (Supp. 1996). The Secretary

of Education is directed to suspend all IDEA payments to a state if,

after notice and opportunity for a hearing, the Secretary determines

that the state has failed to substantially comply with any of IDEA's

additional requirements. See id. at § 1416(a).

In August of 1992, the Commonwealth of Virginia submitted to

OSEP its IDEA plan governing fiscal years 1993-95. The plan was

conditionally approved and the Commonwealth received IDEA fund-

ing for 1993. The United States Department of Education subse-

2

quently learned that the State had in effect a policy -- like that the

State maintains for its non-disabled students -- pursuant to which it

could cease providing free education to disabled students who are

expelled or suspended long-term for behavior unrelated to their dis-

abilities. Invoking IDEA's requirement that states assure all disabled

children "the right to a free appropriate education," the Department

threatened to withhold Virginia's entire $60 million annual IDEA

grant for fiscal years 1994 and 1995 unless Virginia amended its poli-

cies to provide private educational services to each of the State's 126

disabled students who had been expelled for reasons wholly unrelated

to their disabilities.

Virginia refused to so amend its policy, maintaining that IDEA

does not prevent school officials from discontinuing educational ser-

vices to disabled students so long as those students are suspended or

expelled for reasons unrelated to their disabilities. Virginia petitioned

this court for interlocutory review, and we ordered the Secretary of

Education to conduct an evidentiary hearing. See Commonwealth v.

Riley, 23 F.3d 80 (4th Cir. 1994). The United States persisted in its

position after the hearing, and on July 3, 1995, the Secretary issued

a final ruling, providing in effect that, unless Virginia amended its

disciplinary policy so it was no longer possible to discontinue the

education of disabled students, the federal government could cut off

all funding to Virginia under the IDEA.

Virginia appealed, claiming inter alia that, in order to condition a

state's receipt of federal funds, Congress must clearly manifest

through the language of the statute an unambiguous intent to do so,

and that the IDEA included no such clear statement. On appeal, a

divided panel of this court affirmed the Department of Education's

construction of the IDEA and administrative ruling. See Common-

wealth of Virginia v. Riley, 86 F.3d 1337 (4th Cir. 1996). Judge Luttig

dissented. See id. at 1347-58. On October 11, 1996, the court granted

Virginia's petition for rehearing en banc.

After reviewing the record and briefs, and following oral argument,

Chief Judge Wilkinson and Judges Russell, Widener, Wilkins, Luttig,

and Williams voted to reverse the ruling of the United States Depart-

ment of Education and to adopt as their own the dissenting panel

3

opinion of Judge Luttig, Commonwealth v. Riley, 86 F.3d 1337, 1347-

1358 (4th Cir. 1996), which holds as follows:

1. In order for Congress to condition a state's receipt of federal

funds, Congress must do so clearly and unambiguously. See South

Dakota v. Dole, 483 U.S. 203, 207 (1987). Language which, at best,

only implicitly conditions the receipt of federal funding on the fulfill-

ment of certain conditions is insufficient to impose on the state the

condition sought.

2. Title 20, U.S.C. § 1412(1) guarantees that all children with dis-

abilities be provided "the right" to a free public education; this section

does not purport to require that every disabled child be provided a

free public education regardless of state disciplinary policies govern-

ing the provision of educational opportunities to disabled students

expelled or suspended for criminal or other serious misconduct

wholly unrelated to their disabilities. Since the plain language of the

IDEA does not, even implicitly, condition the receipt of IDEA fund-

ing on the continued provision of educational services to disabled stu-

dents who are expelled or suspended long-term due to serious

misconduct wholly unrelated to their disabilities, the United States

Department of Education was without authority to condition the Com-

monwealth of Virginia's receipt of IDEA funding on the continued

provision of free education to such students.

3. A substantial constitutional question under the Tenth Amend-

ment would be presented were the Secretary of Education's interpre-

tation of the IDEA upheld, as the withholding of the Com-

monwealth's entire IDEA funding allotment because of its refusal to

provide private tutors to the 126 disabled students expelled or sus-

pended for serious misconduct wholly unrelated to their disabilities

resembles impermissible coercion, if not forbidden regulation in the

guise of Spending Clause condition.

Judge Niemeyer wrote a separate opinion concurring only in Part

I of Judge Luttig's dissenting panel opinion and in the judgment.

Judge Hamilton wrote a separate opinion concurring only in Part I of

Judge Luttig's dissenting panel opinion and in the judgment, which

was joined by Judge Ervin. Judge Michael wrote a separate opinion

concurring in the judgment. Judge Motz wrote a separate opinion con-

4

curring in the judgment. Judge Murnaghan wrote a dissent, which was

joined by Judge Hall. Judge Hall wrote a dissenting opinion.

Copies of Judge Luttig's dissenting panel opinion, and all other

opinions filed in this case, are attached.

REVERSED

_________________________________________________________________

LUTTIG, Circuit Judge, dissenting:

For misconduct wholly unrelated to their disabilities, the Common-

wealth of Virginia disciplines its handicapped students in the identical

manner that it does its non-handicapped students. Believing that stu-

dents -- handicapped or not -- who so completely disrupt the class-

room as to prevent the educational process to continue or who

actually commit serious crimes against society forfeit by their own

misconduct their right to a free education, the Commonwealth expels

such students from its classrooms until such time as they are willing

to conform their behavior to that necessary for education to occur.

During the period of expulsion, as part of the State's overall program

for discipline in its public schools, the State allows its local school

boards to suspend educational services to the expelled students. That

is, for neither expelled handicapped nor expelled non-handicapped

students does the Commonwealth require its local school boards to

provide private tutors or other educational alternatives following

expulsion, whether the expelled student finds himself in prison, in

detention, or at home. Explaining its reasons for this policy, the State

says: "[A] caring public school organization . . . applies this discipline

as a last resort `wake-up' call of accountability." Br. at 9. And, within

the Commonwealth, this disciplinary tool has proven to be one of the

most effective means of instilling a sense of personal responsibility

and accountability in the few obstinately antisocial among the State's

youths. Indeed, the experience of the State is that"it is rare for an

expelled student, when readmitted [which most are], to be expelled

again." Id. at 11.

Bringing the full weight of the Federal Government to bear against

the Commonwealth's educational policy decision not to require pri-

5

vate tutors in prisons and elsewhere for students who have committed

serious crimes or otherwise so disrupted the educational process as to

require their expulsion, the Department of Education has, in the first

such enforcement action ever against a state, withheld Virginia's

entire $60 million annual Individuals with Disabilities Education Act

("IDEA") grant until the Commonwealth capitulates to the Depart-

ment's demands that it provide private educational services to these

expelled handicapped students, 126 in number. This, notwithstanding

that the State continues to provide education to the some 128,000

handicapped students who have not abused the educational opportu-

nity provided them through the cooperative efforts of the Common-

wealth and the United States, including those handicapped students

whose misconduct warrants expulsion but who are not expelled

because their misconduct relates to their disabilities.

In an argument that only the Federal Government could make, and

which the majority uncritically accepts, the Department of Education

and the Department of Justice contend that the State's refusal to pro-

vide private tutors for handicapped students expelled for criminal or

other serious misconduct unrelated in any way to their disabilities vio-

lates the condition on Virginia's receipt of IDEA funds to "assure[ ]

[to] all students with disabilities the right to a free appropriate public

education." According to the Departments of Justice and Education,

both the statute and sound policy require the States to provide private

tutors, at taxpayer's expense, even to convicted murderers:

THE COURT: Does the Department of Education take the

view that if a disabled young person commits a felony mur-

der and is incarcerated, then the State is still obligated to

provide that person with an education?

COUNSEL: Yes, I believe that the statute specifically

contemplates the provision of special education services

even in institutions . . . .

THE COURT: So the State has to go in and provide a

tutor to this felony murderer. That's the Department of Edu-

cation's view?

COUNSEL: Yes.

6

Oral argument, April 4, 1996.

In order to require the States to provide private education to stu-

dents expelled for reasons unrelated to their handicaps, and thus com-

mandeer from the States their core function of ensuring order and

discipline in their schools, Congress would have had to have spoken

in affirmative and unambiguous terms, so that there could be no ques-

tion whatsoever of its intent. Not only did the Congress not unam-

biguously require the States to provide the continuing education at

issue, it all but codified the common sense proviso that such an edu-

cation need not be extended to such students.

Because the majority, in holding that the States must yield to the

Department of Education's demands, places this court's imprimatur

on what I believe to be an unauthorized, if not unconstitutional, exer-

cise of federal authority over matters peculiarly within the province

of the States and reserved to them by the Tenth Amendment to the

Constitution, I dissent.

I.

A.

The Secretary of Education and the Assistant Attorney General

acknowledge, as they must, that IDEA at most only implicitly condi-

tions the States' receipt of funds upon the continued provision of edu-

cational services to students expelled for misconduct unrelated to

their handicaps. See Decision of the Secretary, Proposed Withholding

Proceeding, Docket No. 94-76-0, at 5 (July 3, 1995) ("[T]he IDEA

does not contain explicit language which precludes the cessation of

education services for disabled children who are suspended long-term

or expelled for misconduct unrelated to their disability."); Respon-

dent's Br. at 34, 35 n.11 (conceding that the condition the Secretary

seeks to impose is only "implicit"). Because we are here concerned

with a congressional conditioning of the States' receipt of federal

funds, this acknowledgment is itself sufficient basis upon which to

reject the Federal Government's argument that the States are required

to continue providing educational services to these expelled students,

as I discuss infra. For, in order for the States to be bound by a condi-

tion upon the receipt of federal monies, the Congress must have affir-

7

matively imposed that condition in clear and unmistakable statutory

terms. An adjustment to the critical balance of power between the

Federal Government and the States cannot be authorized implicitly.

But, before turning to the question of whether IDEA satisfies the

heightened standard applicable to federal statutes that affect the distri-

bution of power between the Federal Government and the States, it

should be understood that IDEA does not impose, implicitly or other-

wise, the condition for which the Federal Government argues, under

even ordinary standards of statutory construction. The relevant provi-

sion of the IDEA does not require that the States have in effect "a pol-

icy that assures all handicapped children a free appropriate public

education" -- a condition which, in my view, still would not require

the States to provide education to handicapped children expelled for

misconduct having nothing whatever to do with their disabilities.

Rather, it requires that, in order to qualify for federal special educa-

tion funds, the States "ha[ve] in effect a policy that assures all chil-

dren with disabilities the right to a free appropriate public education."

20 U.S.C. § 1412(1) (emphasis added). Thus, as the Supreme Court

has repeatedly observed, see discussion infra, the statute only requires

that the States provide handicapped children with access to such an

education. And, as with any other right, that right of access to educa-

tional services may be forfeited by criminal or other conduct antitheti-

cal to the right itself. A state, accordingly, no more fails to satisfy the

statute's condition when it refuses to continue educational services to

a student who has forfeited his right to such services, than when it

does not provide an education to a student who chooses not to avail

himself of the opportunity at all.

The majority errs in its interpretation of the statute precisely

because it ignores the key phrase "the right to," and instead focuses

exclusively upon the word "all." See, e.g., ante at 16 n.13 ("Virginia

has concentrated on the interpretation of the phrase`all children,' but

we have concluded that `all' means `all' and that concentration should

more appropriately be focussed on the statutory requirement of `a free

appropriate public education.'"). In doing so, of course, the majority

entirely begs the question we must decide in order to resolve this

case. It is indisputable that, as a condition to receipt of the special

education funds, the States must have in place a policy that assures

"all" handicapped children something; the question is, what is that

8

something. And it could not be clearer from the face of the statute that

that something is only "the right to" a free appropriate public educa-

tion. If this were not evident from the statute's language, then it

should be evident from the derisible result that follows upon the alter-

native interpretation -- that the States are required, at taxpayers'

expense, to dispatch to prisons, jails, and personal residences, private

tutors to instruct those students who have so disrupted the classroom

that their own instruction and that of their fellow students was ren-

dered impossible.

Of course, the Commonwealth of Virginia has in effect the precise

policy required by the statute. Virginia extends to every handicapped

school-age child within the Commonwealth the right to a free public

education appropriate to his disabilities. What it does not do -- and

understandably -- is require that local school boards discipline their

handicapped students (for conduct unrelated to their disabilities) dif-

ferently from their non-handicapped students, and provide educational

services even to those handicapped youths who have forfeited the

right to a free education by wilfully engaging in contumacious con-

duct so serious as to warrant the ultimate discipline of expulsion. See

Regulations Governing Special Education Programs for Children with

Disabilities in Virginia, § 3.3(B)(11)(b)(4) ("If there is no causal con-

nection [between the misconduct and the disability] and if the child

was appropriately placed at the time of the misconduct, the child may

be disciplined the same as a nondisabled child.").1 And nothing in the

_________________________________________________________________

1 Because of the procedural requirements IDEA imposes upon the

States before any change in placement of a disabled student can be

effected, including the requirement that the States prove that the mis-

conduct was wholly unrelated to the student's disability, expulsion of a

disabled student actually is, as a practical matter, considerably more dif-

ficult than expulsion of a non-handicapped student. See, e.g., 20 U.S.C.

§§ 1415(b)(1)(D), 1415(b)(1)(E), 1415(b)(2), 1415(c), 1415(e)(2); Board

of Educ. v. Rowley, 458 U.S. 176, 182 (1982) ("[T]he Act imposes exten-

sive procedural requirements upon States receiving federal funds under

its provisions.").

As the Commonwealth recounts the process attending the expulsion of

one handicapped student:

1. Student with Attention Deficit/Hyperactivity Disorder

"ADHD" brought knife to school hidden in his boot. The knife

9

language of IDEA even purports to condition the Commonwealth's

receipt of IDEA's special education funds upon the State's submis-

sion to the Federal Government's inexplicable demand that it now do

so.

Nor does anything in the purpose of IDEA suggest that the State

is required to succumb to the Federal Government's demands. The

express, codified purpose of the IDEA is "to assure that all children

with disabilities have available to them . .. a free appropriate public

education which emphasizes special education and related services

designed to meet their unique needs . . . [and] to assist States and

localities to provide for the education of all children with disabilities.

. . ." 20 U.S.C. § 1400(c) (emphasis added). As the Supreme Court

_________________________________________________________________

was reported by a female student who alleged he had brought the

knife on other occasions and had threatened to stab her. When

questioned he denied having the knife, refused to untie his boot,

told officials they had no right to search him, but eventually sur-

rendered the knife. The student knew the consequences of being

discovered would probably be expulsion.

2. The first causality committee concluded there was no causal

connection between the conduct and the disability.

3. The parents sought reconsideration and a second causality

committee was convened. It concluded there was no causal rela-

tionship.

4. A discipline review committee was then held to review the

recommended long-term suspension. This committee upheld the

long-term suspension.

5. Parents sought a "due process" hearing.

6. First level hearing officer found no causal connection.

7. Second level hearing officer also found no causal connec-

tion.

8. The incident occurred when the student was 15 and, despite

the IDEA-B stringent time-lines, the due process appeals took

eight months.

Petitioner's Br. at 36 n.21. Even after these procedural steps were taken,

the parents and the disabled student still had the right to challenge the

disciplinary action in state or federal court. See 20 U.S.C. § 1415(e)(2).

10

has recognized, the statute's purpose was to ensure that disabled stu-

dents are not denied access to a free public education because of their

disabilities, or because of misconduct related to their disabilities. See

Board of Educ. v. Rowley, 458 U.S. 176 (1982) (referring repeatedly

to the purpose of the Act as one giving handicapped children access

to public education); id. at 214 (White, J., dissenting) ("[T]he Act

intends to give handicapped children an educational opportunity com-

mensurate with that given other children.");2 Honig v. Doe, 484 U.S.

305 (1988). The statute was enacted "to open the door of public edu-

cation" to handicapped students, Rowley, 458 U.S. at 192, one million

out of eight million of whom had been excluded from school systems

across the country because of their disabilities, id. at 189, many

through the pretextual use of discipline, see Honig, 484 U.S. at 324.

Not only is there nothing in this laudable purpose of IDEA that

would require the continued provision of educational services to

handicapped students expelled for reasons unrelated to their handicap,

the statutory purpose is fully achieved by interpreting the language so

as not to require such, thereby reserving to the States, in the manner

urged by the Commonwealth, their historical responsibility for the

discipline of their schoolchildren. As even the Ninth Circuit held in

Doe v. Maher, 793 F.2d 1470 (9th Cir. 1986), aff'd as modified sub

nom., Honig v. Doe, 484 U.S. 305 (1988), in a portion of its opinion

notably left undisturbed by the Supreme Court in Honig:3

_________________________________________________________________

2 See also Rowley, 458 U.S. at 199 (referring to caselaw upon which

Congress expressly relied in enacting IDEA as enunciating a "right of

access to free public education"); id. at 200 ("[N]either the Act nor its

history persuasively demonstrates that Congress thought that equal pro-

tection required anything more than equal access."); id. ("Desirable

though [the goal of maximizing each handicapped child's potential]

might be, it is not the standard that Congress imposed upon States which

receive funding under the Act. Rather, Congress sought primarily to

identify and evaluate handicapped children, and to provide them with

access to a free public education.").

3 Although the Department of Justice maintains that Honig effectively

decided the question we confront, the Secretary of Education, as does

even the majority, recognizes that it did not. See Decision of the Secre-

tary, supra, at 6 (noting that an expulsion for conduct unrelated to dis-

ability is "the circumstance left unaddressed by Honig"); ante at 17

11

If the child's misbehavior is properly determined not to be

a manifestation of his handicap, the handicapped child can

be expelled. This conclusion does not conflict with the

[IDEA]. When a child's misbehavior does not result from

his handicapping condition, there is simply no justification

for exempting him from the rules, including those regarding

expulsion, applicable to other children. Therefore, when a

handicapped child is properly expelled, the school district

may cease providing all education services -- just as it

could in any other case. To do otherwise would amount to

asserting that all acts of a handicapped child, both good and

bad, are fairly attributable to his handicap. We know that

that is not so.

Id. at 1482 (emphasis added, footnote and citations omitted); see also

Doe v. Board of Educ., 1996 WL 79411, at *3-4 (N.D. Ill. Feb. 16,

1996);4 Doe v. Koger , 480 F. Supp. 225, 229 (N.D. Ind. 1979).

_________________________________________________________________

("[U]pholding the Secretary's decision in the case at bar is consistent

with the Supreme Court's ruling in Honig v. Doe." (emphasis added));

see also Metropolitan School District v. Davila, 969 F.2d 485, 493 (7th

Cir. 1992) ("Honig did not reach this issue."), cert. denied, 507 U.S. 949

(1993). The Court in Honig addressed only the question of whether

school districts could unilaterally change the placement of disabled stu-

dents for "dangerous or disruptive conduct growing out of their disabili-

ties." 484 U.S. at 308; see also id. at 312 ("The present dispute grows out

of the efforts of [school officials] to expel two emotionally disturbed

children from school indefinitely for violent and disruptive conduct

related to their disabilities." (emphasis added)). To the extent that the

Court's opinion can be read to speak to the issue now before us, it sug-

gests, given the Ninth Circuit's holding quoted above, that the States are

not required to continue to provide educational services to students

expelled for conduct unrelated to their handicaps. Id. at 328.

4 The district court in Doe subsequently agreed to reconsider its deci-

sion, noting that the Department of Education's contrary interpretation of

the statute, of which it had only recently become aware, was entitled to

deference. See 1996 WL 197690, at *2 (N.D. Ill. Apr. 22, 1996). As I

explain infra, because of the applicability of the "clear statement" rule,

the deference that we ordinarily afford agency interpretations of ambigu-

ous statutes is inapplicable in a case such as this. Thus, I would expect

the district court's original decision to be reaffirmed.

12

That the Department of Justice, in what is emerging as a pattern of

deceptively selective quotation that threatens to undermine in this

court and others the traditional respect accorded the Department, see,

e.g., Thomasson v. Perry, 80 F.3d 915, 939-41 (4th Cir. 1996) (Luttig,

J., concurring), believes it necessary to omit the phrase "the right to"

on virtually every occasion when it recites the statute's requirement

that the States "assure[ ] all children with disabilities the right to a

free appropriate public education,"5 only confirms that it likewise

understands that Congress has not conditioned the States' receipt of

federal funds upon the continued provision of education to expelled

students, or, at the very least, that it understands Congress has not

done so with the clarity required for the appropriation of a core state

function. There would be no other reason for such intentional omis-

sion of these three manifestly relevant (even if, in one's view, not dis-

positive) words from the short, thirteen-word provision before us.

B.

Whether the majority's interpretation of the statute or that which

I believe Congress intended is the better, however, is not even the

_________________________________________________________________

5 In the first substantive sentence of its "Summary of Argument," for

example, the Assistant Attorney General writes that,"[t]he IDEA unam-

biguously requires participating states, as a condition of receiving federal

funds, to assure that a free appropriate public education is provided to

`all children with disabilities.'" Respondent's Br. at 15 (selectively quot-

ing 20 U.S.C. § 1412(1)). In the first sentence of its "Argument," the

Assistant Attorney General, again selectively quoting from section

1412(1), claims that "[t]he language of the IDEA is unambiguous: partic-

ipating states must assure that a free appropriate public education is

available to `all children with disabilities.'" Id. at 17. And throughout the

Department's submissions, the same omission is made. See id. at 16

("[T]he statute mandates provision of special educational services to `all'

children with disabilities."); id. at 25 ("[Congress] has declined to over-

ride the IDEA's mandate that special education services be provided to

all children with disabilities."); id. at 34 ("[The condition] is necessarily

implicit in the IDEA's requirement that a free appropriate public educa-

tion be provided to all children with disabilities."); id. at 36 ("The

requirement that states provide special education services to all children

with disabilities, including those under disciplinary suspension or expul-

sion, is clear and specific.").

13

question. The question is whether, in unmistakably clear terms, Con-

gress has conditioned the States' receipt of federal funds upon the

provision of educational services to those handicapped students

expelled for misconduct unrelated to their handicap:"[I]f Congress

desires to condition the States' receipt of federal funds, it `must do so

unambiguously . . . .'" South Dakota v. Dole, 483 U.S. 203, 207

(1987) (quoting Pennhurst State Sch. & Hosp. v. Halderman, 451

U.S. 1, 17 (1981)).6 Indeed, the Supreme Court itself invoked

Pennhurst's clear statement rule in addressing the identical provision

of the IDEA at issue here, reasoning that it is a"fundamental proposi-

tion that Congress, when exercising its spending power, can impose

no burden upon the States unless it does so unambiguously." Rowley,

458 U.S. at 190 n.11 (citing Pennhurst, 451 U.S. at 17). If Congress

has not unequivocally conditioned receipt of federal funds in the man-

ner claimed by the Department of Education, and by the Department

of Justice on its behalf, then our inquiry is at an end.

Insistence upon a clear, unambiguous statutory expression of con-

gressional intent to condition the States' receipt of federal funds in a

particular manner is especially important where, as here, the claimed

condition requires the surrender of one of, if not the most significant

of, the powers or functions reserved to the States by the Tenth

Amendment -- the education of our children. See, e.g., Honig, 484

U.S. at 309 ("[E]ducation [is] `perhaps the most important function of

_________________________________________________________________

6 Cf. Will v. Michigan Dep't of State Police, 491 U.S. 58, 65 (1989)

(describing as an "ordinary rule of statutory construction" the principle

that "if Congress intends to alter the `usual constitutional balance

between the States and the Federal Government,' it must make its inten-

tion to do so `unmistakably clear in the language of the statute.'" (quot-

ing Atascadero State Hosp. v. Scanlon , 473 U.S. 234, 242 (1985), and

citing Pennhurst, 465 U.S. at 99)); Gregory v. Ashcroft, 501 U.S. 452,

460 (1991) ("[Where] [c]ongressional interference [with a core state

function] would upset the usual constitutional balance of federal and

state powers[,] . . . `it is incumbent upon the federal courts to be certain

of Congress' intent before finding that federal law overrides' this bal-

ance." (quoting Atascadero, 473 U.S. at 243, and citing Pennhurst, 465

U.S. at 99)); Torcasio v. Murray, 57 F.3d 1340, 1344-46 (4th Cir. 1995)

(holding that "Congress must speak unequivocally before [courts] will

conclude that it has `clearly'" intruded upon core state functions), cert.

denied, 116 S. Ct. 772 (1996).

14

state and local governments.'" (quoting Brown v. Board of Educ., 347

U.S. 483, 493 (1954))); Milliken v. Bradley, 418 U.S. 717, 741 (1974)

("No single tradition in public education is more deeply rooted than

local control over the operation of schools . . . ."); United States v.

Lopez, 115 S. Ct. 1624, 1632 (1995) ("[Education is an area] where

States historically have been sovereign."). In this context, we in the

judiciary labor under a special obligation to "assure[ ] that the legisla-

ture has in fact faced, and intended to bring into issue, the critical

matters involved in the judicial decision." United States v. Bass, 404

U.S. 336, 349 (1971); see also, e.g., Gregory, 501 U.S. at 461 (quot-

ing Bass); Will, 491 U.S. at 65 (same); Torcasio, 57 F.3d at 1344

(same).

The Department of Justice argues, in what I understand as a con-

cession, and the majority accepts, in what I understand as an admis-

sion, that in the event of ambiguity in the IDEA provision at issue,

we defer to a reasonable interpretation by the agency, as if we were

interpreting a statute which has no implications for the balance of

power between the Federal Government and the States. 7 We do not.

It is axiomatic that statutory ambiguity defeats altogether a claim by

the Federal Government that Congress has unambiguously condi-

tioned the States' receipt of federal monies in the manner asserted. As

the Court stated in Gregory v. Ashcroft :

[I]nasmuch as this Court in Garcia[v. San Antonio Metro.

Transit Auth., 469 U.S. 528 (1985)] has left primarily to the

political process the protection of the States against intrusive

exercises of Congress' Commerce Clause powers, we must

be absolutely certain that Congress intended such an exer-

cise. "[T]o give the state-displacing weight of federal law to

mere congressional ambiguity would evade the very proce-

dure for lawmaking on which Garcia relied to protect states'

interests."

_________________________________________________________________

7 See ante at 8 n.4 (citing Chevron U.S.A. Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837, 843-45 (1984)); cf. Respondent's

Br. at 26 ("Even if the statute were ambiguous on this point, however,

the Secretary's interpretation of the statute's requirements is reasonable

and entitled to substantial deference."); id . at 16 ("The only issue is

whether the Secretary's interpretation of [section 1412(1)] is reason-

able.").

15

501 U.S. 452, 464 (1991) (quoting L. Tribe, American Constitutional

Law § 6-25, p. 480 (2d ed. 1988)).

Applying the clear statement rule with the required solicitude for

the rights of the States in our federalist system, it is apparent that

Congress has not spoken through the IDEA with anywhere near the

clarity and the degree of specificity required for us to conclude that

the States' receipt of special education funds is conditioned upon their

continued provision of education to handicapped students expelled for

criminal activity or other misconduct unrelated to their disabilities.

The majority is unable to cite to a single word from the statute or

from the legislative history of IDEA evidencing that Congress even

considered such a condition, much less that it confronted the possibil-

ity of such a condition and its implications for the sovereignty of the

States, and determined to condition the States' funds in this manner.

As the Departments of Education and Justice themselves acknowl-

edge, at most the statute implicitly conditions the receipt of funds in

the manner they contend. And, as I explain above, it does not even

do this; indeed, the better interpretation of the statutory language is

that Congress only required the States to provide handicapped chil-

dren with access to an education, reserving to the States -- intention-

ally or otherwise -- the authority to discipline handicapped students

as they deem appropriate, for criminal actions and misconduct unre-

lated in any way to those students' disabilities.

The majority appears to believe that merely because section 1412

indisputably sets forth conditions on the States' receipt of IDEA

funds, see 20 U.S.C. § 1412 ("In order to qualify for assistance under

this subchapter in any fiscal year, a State shall demonstrate to the Sec-

retary that the following conditions are met: . . ." (emphasis added)),

Congress has ipso facto spoken sufficiently clearly to satisfy the clear

statement requirement. However, in Gregory, the Supreme Court

rejected this very understanding of the clear statement requirement in

a holding that should control the disposition of the case before us.

There, the Court held that the Age Discrimination in Employment

Act, which covered employees of "a State or political subdivision of

a State," 29 U.S.C. § 630(b)(2) -- a provision that under today's

majority opinion would seem unambiguously to cover state judges,

did not apply to state judges because the provision did not unambigu-

ously reveal that Congress intended such a result. In reaching this

16

conclusion, the Court reasoned that a clear statement is required not

simply in determining whether a statute applies to the States, but also

in determining whether the statute applies in the particular manner

claimed. Gregory, 501 U.S. at 460-70. In fact, Justices White and Ste-

vens declined to join the "clear statement" discussion in Justice

O'Connor's opinion for the Court because it adopted the position

urged by the Commonwealth and rejected by the majority in this case:

[T]he majority nevertheless imposes upon Congress a "plain

statement" requirement. The majority claims to derive this

requirement from the plain statement approach developed in

our Eleventh Amendment cases . . . . The issue in those

cases, however, was whether Congress intended a particular

statute to extend to the States at all. . . . In the present case,

by contrast, Congress has expressly extended the coverage

of the ADEA to the States and their employees. Its intention

to regulate age discrimination by States is thus"unmistak-

ably clear in the language of the statute." Atascadero, [473

U.S.] at 242. . . . The only dispute is over the precise details

of the statute's application. We have never extended the

plain statement approach that far . . . .

Id. at 475-76 (White, J., concurring in part, dissenting in part, and

concurring in the judgment); cf. id. at 493 (Blackmun, J., joined by

Justice Marshall, dissenting) (arguing that Chevron deference, rather

than clear statement rule, was appropriate).

Since neither the text of section 1412(1), the legislative history, nor

the purpose of the IDEA even suggests, much less mandates with the

clarity necessary to confirm that the Congress actually confronted and

deliberately decided, that a state must continue to provide education

services to disabled children after expulsion for misconduct unrelated

to their disabilities, I would reject the Department of Education's new

interpretation to the contrary as ultra vires .8 I would hold that the

_________________________________________________________________

8 The Department of Education did not even arrive at the interpretation

of section 1412(1) that it advances in this litigation until 1989, fifteen

years after passage of IDEA. See, e.g., Virginia Dep't of Educ. v. Riley,

23 F.3d 80, 85-86 (4th Cir. 1994) (describing the Department's 1989

17

Commonwealth of Virginia fulfills its statutory obligations under sec-

tion 1412(1) by affording all disabled students the right to a free

appropriate public education -- a right that disabled students, like

non-disabled students, can forfeit by criminal activity or serious mis-

conduct unrelated to their disabilities.9 While the States are free, in

Faustian fashion, to surrender unto the Federal Government that

which separately defines them as powers autonomous from that Gov-

ernment, it is plain that they have not done so in this instance. Nor,

for that matter, has the Congress sought to exact such an abnegation

from them. Indeed, I would be astonished if the Congress of the

United States was even aware that the Departments of Education and

Justice are contending otherwise before this court.

II.

Because I interpret section 1412(1) of IDEA so as not to impose

_________________________________________________________________

interpretation as a "new condition" on funding); Decision of the Secre-

tary, supra, at 1 n.1 (referring to the 1989 interpretation as a "`new con-

dition' of compliance"); id. ("The Hearing Officer also found that the

Department's enforcement of IDEA-B, while neither uniform nor cons-

tant, was not arbitrary or capricious . . . ." (emphasis added)).

9 I would categorically reject the Department's byzantine alternative

argument, which it briefed but abandoned at oral argument, that the pol-

icy outlined in the Department's interpretive letter has itself been incor-

porated into the statute by virtue of section 314(b) of the Improving

America's Schools Act of 1994, Pub. L. 103-382, reprinted in 20 U.S.C.

§ 8921 note. That uncodified section provides that the stay-put provision

of the IDEA "shall be interpreted in a manner that is consistent with the

Department's final guidance concerning State and local responsibilities

under the Gun-Free Schools Act of 1994." 20 U.S.C. § 8921 note. The

portion of the guidance memorandum upon which the United States

relies, interprets other provisions of the IDEA, not the stay-put provision.

See U.S. Dep't of Educ., Guidance Concerning State and Local Respon-

sibilities Under the Gun-Free Schools Act of 1994, at 3, reprinted in J.A.

at 219 ("[T]he IDEA requires that educational services must continue,

although they may be provided in another setting, for students with dis-

abilities who are properly expelled."). Accordingly, this portion of the

Department of Education's memorandum has not been elevated to statu-

tory law.

18

upon the States the condition that they provide private tutors and

other alternative educational services to handicapped students

expelled for egregious conduct unrelated to their disabilities, I need

not resolve the Tenth Amendment issue that is presented upon the

contrary reading of the statute. Suffice it to say, however, that I regard

that issue as considerably more substantial than does the majority,

which all but rejects it out of hand.

I recognize that the Court has not invalidated an Act of Congress

under the Spending Clause since United States v. Butler, 297 U.S. 1

(1936), over half a century ago. But cf. United States v. Lopez, 115

S. Ct. 1624 (1995); Seminole Tribe v. Florida, 116 S. Ct. 1114

(1996). However, as Chief Justice Rehnquist, on behalf of the Court,

recently reminded in South Dakota v. Dole, 483 U.S. 203 (1987),

"[the Court's] decisions have recognized that in some circumstances

the financial inducement offered by Congress might be so coercive as

to pass the point at which `pressure turns into compulsion,'" id. at 211

(quoting Steward Machine Co. v. Davis , 301 U.S. 548, 590 (1937)),

"in contravention of the Tenth Amendment or of restrictions implicit

in our federal form of government," Steward Machine Co., 301 U.S.

at 585.

The Court in Dole rejected South Dakota's argument that the Fed-

eral Government's condition that the State raise its drinking age for

all consumers to 21 was impermissibly coercive. In that case, how-

ever, Congress had directed that the States "lose[only] a relatively

small percentage of certain federal highway funds" for their noncom-

pliance. 483 U.S. at 211. Because "all South Dakota would lose if she

adhere[d] to her chosen course as to a suitable minimum drinking age

[was] 5% of the funds otherwise obtainable" under the program, the

Court concluded that Congress had but "offered relatively mild

encouragement to the States to enact higher minimum drinking ages."

Id.

Here, in stark contrast, the Federal Government has withheld from

the Commonwealth 100% of an annual special education grant of $60

million because of the Commonwealth's failure to provide private

educational services to less than one-tenth of one percent (126) of the

128,000 handicapped students for whom the special education funds

were earmarked. And it has withheld the entirety of this $60 million

19

grant -- only $58,000 of which would, on a pro rata basis, be avail-

able for educational services to the 126 expelled students -- because

the State refused to surrender control over its own classrooms and

schoolchildren by abandoning one of its most effective tools for main-

taining order and discipline, see, e.g. , Goss v. Lopez, 419 U.S. 565,

580 (1975) ("Suspension is considered not only to be a necessary tool

to maintain order but a valuable educational device."). As even the

Department of Education concedes, under the interpretation of the

statute embraced by the court today, "Congress[has] drastically cur-

tailed local autonomy with respect to discipline and denial of educa-

tional services to this group of children" "[a]s a condition of receiving

federal funds." Respondent's Br. at 38.

This is a condition considerably more pernicious than the "rela-

tively mild encouragement" at issue in Dole . Withholding the $58,000

pro rata amount of the funds that would be used by the State to pro-

vide services to the 126 expelled students whom the Federal Govern-

ment believes are entitled to educational services under the statute

would be "encouragement." The withholding of almost $60 million

from the State and from the 128,000 disabled students who have

responsibly availed themselves of their educational opportunity, sim-

ply because the State refuses to yield to the federal demands as to the

126 students who have abused their rights, begins to resemble imper-

missible coercion, see Dole, 483 U.S. at 211, if not forbidden regula-

tion in the guise of Spending Clause condition, as well, see id. at 212,

215-218 (O'Connor, J., dissenting); Butler, 297 U.S. at 73 ("There is

an obvious difference between a statute stating the conditions upon

which moneys shall be expended and one effective only upon

assumption of a contractual obligation to submit to a regulation which

otherwise could not be enforced.").

Neither of the majority's two efforts to escape the import of Dole's

reasoning succeeds. The percentage of the total monies expended by

the State for education of the handicapped that is represented by the

federal grant is irrelevant in assessing the coerciveness of the induce-

ment, at least as appears from the Court's opinion in Dole. Were it

otherwise, the same federal grant in the same amount would be

unconstitutionally coercive as to one State, but not as to another

which expends a greater amount for the purposes served by the grant;

indeed, were it otherwise, there would be created a perverse incentive

20

for the States to spend less in areas in which they expected to receive

federal monies, in order to render more vulnerable under the coercion

theory any conditions that were imposed. Thus, the majority's effort

to compare the 100% withholding here to the 5% withholding in

Dole, by noting that the $60 million in special education funds consti-

tutes only "approximately five percent of the funds needed to educate

Virginia's disabled children," ante at 23; compare Respondent's Br.

at 43 (claiming that the federal grant "provides at most nine percent

of the cost of providing special educational services to children with

disabilities"), is to no avail. Equally unavailing is the majority's effort

to avoid the import of Dole by observing that a 100% withholding of

a "mere $1,000" education grant would not be unduly coercive. The

difference between a $1000 grant and, as here, a $60 million grant,

insofar as their coercive potential is concerned, is self-evident.

The argument made by counsel for the Department of Justice is no

more responsive to the constitutional barrier recognized by Dole than

are the majority's. In contending that the withholding is not coercive,

counsel emphasized that there were more coercive steps that might

have been taken, such as the withholding of all federal funds from the

Commonwealth. Sending in the troops would be more coercive still,

but the existence of that more coercive alternative does not render the

withholding to which the Commonwealth is subject noncoercive.

Ultimately, if the Court meant what it said in Dole, then I would

think that a Tenth Amendment claim of the highest order lies where,

as here, the Federal Government (accepting the majority's interpreta-

tion of the statute) withholds the entirety of a substantial federal grant

on the ground that the States refuse to fulfill their federal obligation

in some insubstantial respect rather than submit to the policy dictates

of Washington in a matter peculiarly within their powers as sovereign

States. In such a circumstance, the argument as to coercion is much

more than rhetoric; it is an argument of fact. See Dole, 483 U.S. at

211. It is, as well, an argument that the Federal Government has, in

an act more akin to forbidden regulation than to permissible condi-

tion, supplanted with its own policy preferences the considered judg-

ments of the States as to how best to instill in their youth the sense

of personal responsibility and related values essential for them to

function in a free and civilized society. As such, it is an argument

well-grounded in the Tenth Amendment's reservation"to the States

21

respectively, or to the people" of those "powers not delegated to the

United States by the Constitution, nor prohibited by it to the States."

*****

In the end, this case is about the permissible reach of federal power

under the Spending Clause in a time when the several States have

become increasingly dependent upon the Federal Government for

funds, because the Federal Government has increasingly become

dependent upon the revenues from taxation it receives from the citi-

zens of the several States. In particular, it is about the extent to which

the Federal Government may, in our system of federalism, impose its

policy preferences upon the States by placing conditions upon the

return of revenues that were collected from the States' citizenry in the

first place. As Justice O'Connor aptly observed in Dole:

If the spending power is to be limited only by Congress'

notion of the general welfare, the reality, given the vast

financial resources of the Federal Government, is that the

Spending Clause gives "power to the Congress to tear down

barriers, to invade the states' jurisdiction, and to become a

parliament of the whole people, subject to no restrictions

save such as are self-imposed." [Butler , 297 U.S. at 78].

This, of course, as Butler held, was not the Framers' plan

and it is not the meaning of the Spending Clause.

483 U.S. at 217.

According to counsel for the Department of Education, requiring

the States to continue to provide educational services to handicapped

students expelled for reasons unrelated to their handicaps "make[s]

sense, as a matter of policy, in light of the broad purposes of the stat-

ute[,] . . . [and] allow[ing] individual school districts in their sole dis-

cretion to decide whether or not to deny services to this significant

number of children with disabilities . . . would . .. inflict lasting harm

on these children."

The Commonwealth of Virginia, for its part, steadfastly maintains

not only that the Department's policy is misguided, because it

22

deprives the State of its most effective disciplinary and instructional

tool for instilling in its especially recalcitrant students the sense of

responsibility they so sorely lack, but that it is, in any event, a policy

decision uniquely reserved to the States by the Constitution. And the

wisdom of the Commonwealth's policy is certainly borne out by the

testimony of the State's local educators and administrators. In testi-

mony that speaks volumes, Jane Timian, the Hearing and Legal Assis-

tant for the Fairfax County School Board responsible for overseeing

all student disciplinary matters, described as follows two illustrative

incidents that have recently taken place in the Commonwealth as a

consequence of the Education Department's policy:

In a recent case at one of FCPS' 23 high schools, six stu-

dents were part of a group of students whose actions

resulted in a loaded .357 magnum handgun being recovered

in the school building. The non-special education students

were expelled. One student, however, was identified as

"learning disabled" due to the student's weakness in written

language skills. An IEP team reviewed extensive evalua-

tions and unanimously found no causal relationship between

the student's writing disability and the student's involve-

ment in the weapons violation. The student was not

expelled. The student later bragged to teachers and students

at the school that he could not be expelled.

In another recent case at a different high school, a student

gang which had adopted a specific name was involved in a

mob assault of another student. One student involved in the

melee used a meat hook as a weapon. Three of the gang

members were expelled. The other two members of the gang

were special education students who have not been expelled

and who are still receiving services.

J.A. at 177. And confirming what anyone even remotely familiar with

public education today would have expected, Lucille Brown, Superin-

tendent of Richmond City Public Schools, testified that the "`home-

bound instruction' and `alternative education'[after expulsion]" that

has been required by the Federal Government's Department of Educa-

tion has "become just another `badge of honor' flaunted by students

who have bested the public schools again." Petitioner's Br. at 10.

23

In our federal system of government, such delicate policy deci-

sions, relating so intimately as they do to matters within the exclusive

prerogative of the States, are presumed to be those of the States alone.

If the Federal Government intends to expropriate these or other sover-

eign rights from the States, it must at least do so affirmatively and

unambiguously, so that its design is known and the States may mar-

shal their political will in opposition to that expropriation. Even then,

of course, the Federal Government must effectuate that expropriation

in a manner that is faithful to the limitations on Federal power that

inhere in the Tenth Amendment and in the principles of federalism

that undergird our entire democratic system of governance. Only

when the Government acts within these limitations can one have con-

fidence both that the United States has deliberately determined to sub-

ordinate the rights of the States to the interests of the Federal

Government and that it has done so consistently with the constitu-

tional limitations that even today constrain the Federal Government

as against the People.

In my view, certainly the first, and perhaps the second, of these

essential limitations on Federal power has been exceeded in the IDEA

provision, at least as it is interpreted by the court today. And with

these excesses has come, as always, yet a further incremental, but no

less significant, incursion into the sovereign authority of the several

States. As counsel for the Federal Government responded, after

reflecting for a moment on the court's question whether the Depart-

ment of Education was not simply saying to the States that it knows

better than they what is good for America's schoolchildren and then

imposing that view on the States: "Well your honor, in a sense, that's

what Congress is doing in this whole statute." Unwilling to acquiesce

in such a pretentious arrogation of state power, I dissent.

_________________________________________________________________

NIEMEYER, Circuit Judge, concurring in part:

I concur in part I of the opinion adopted by the majority and in the

judgment of the court.

_________________________________________________________________

24

HAMILTON, Circuit Judge, concurring in the judgment:

Because Part I of the majority opinion, with which I am in com-

plete accord, adequately disposes of the matter, I would not reach the

Tenth Amendment analysis. Accordingly, I concur in Part I of the

majority opinion and in the judgment of the court.

Judge Ervin has joined this opinion.

_________________________________________________________________

MICHAEL, Circuit Judge, concurring in the judgment:

Because I agree with the point in the majority's adopted opinion

that the right here can be forfeited, I concur in the judgment.

_________________________________________________________________

DIANA GRIBBON MOTZ, Circuit Judge, concurring in the judg-

ment:

For many of the reasons explained in Part I of Judge Luttig's dis-

sent from the opinion of the panel majority, I do not believe Congress

has unambiguously required the states to provide educational services

to disabled children who have been suspended or expelled for miscon-

duct unrelated to their disabilities. Accordingly, I join the court's

judgment.

_________________________________________________________________

MURNAGHAN, Circuit Judge, dissenting:

The majority opinion rests on a conclusion which I find unaccept-

able:

[T]he statute [IDEA] only requires that States provide hand-

icapped children with access to such an education. And, as

with any other right, that right of access to educational ser-

vices may be forfeited by criminal or other conduct antithet-

25

ical to the right itself. A state, accordingly, no more fails to

satisfy the statute's condition when it refuses to continue

educational services to a student who has forfeited his right

to such services, than when it does not provide an education

to a student who chooses not to avail himself of the opportu-

nity at all.

86 F.3d at 1349.

The case actually concerns the meaning to be given to the words

"a policy that assures all children with disabilities the right to a free

appropriate public education." I have found that they unambiguously

convey a meaning. My colleague, Judge Hall, also dissenting, alterna-

tively reasons that, even if there is ambiguity, following Chevron

U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1985),

would lead to the same meaning I have reached. Simply put I regard

"all children" as reaching to the all encompassing height, put algebrai-

cally at 10. Judge Hall, on his assumption of ambiguity, gives the

ambiguous language supposed to exist only an 8 but then ascribes at

least a 2, bringing the total to 10 because of the Secretary of Educa-

tion's construction of the statutory language. The majority reaches a

contrary conclusion, namely, that the statute unambiguously means

what it does not say. The majority argues that "all children" is meant

not to encompass children with disabilities who have been expelled

or suspended. Following from that conclusion, the majority concludes

that such expelled or suspended children lose their rights to a free

appropriate public education when their misconduct is unrelated to

their disabilities. The majority thereby invents an unmentioned forfei-

ture to justify interpreting "all children" not to include disabled chil-

dren who are suspended or expelled for misconduct unrelated to their

disabilities. Thereby the algebraic figure is required to become mate-

rially less than 10.

Similarly, with the same object in mind, the words"access," "as-

sures" and "right" are reduced in meaning by imagining a limitation

not expressed in IDEA excluding from assurance of the right to a free

appropriate public education those children with disabilities who are

expelled or suspended for misconduct unrelated to their disabilities.

That also reduces further below 10 the value clearly applying to "all

children."

26

I.

My disagreement with the majority's disposition of the instant case

stems from its notion that the right provided by the IDEA is forfeit-

able. For the remarkable proposition it has come to, the majority does

not cite to any provision of the IDEA to support its belief that the dis-

abled child can forfeit his right to a free appropriate public education

guaranteed by the statute. At issue in the instant case is a group of 126

children with disabilities who have been expelled and to whom Vir-

ginia has ceased providing educational services during the expulsion

period. Those expelled children are not the only ones interested. The

public generally will suffer from the denial of a free public education

in the case of a child already handicapped.

Under the majority's view, the 126 children affected by Virginia's

policy have "forfeited" their right to a free appropriate public educa-

tion. The majority interprets the phrase "[t]he State has in effect a pol-

icy that assures all children with disabilities the right to a free

appropriate public education," as creating only a"right of access" to

such education, not as creating a federal right to receive educational

services under the IDEA. Adoption of the latter, the majority opines,

would require States:

at the taxpayers' expense, to dispatch to prisons, jails, and

personal residences, private tutors to instruct those students

who have so disrupted the classroom that their own instruc-

tion and that of their fellow students was rendered impossi-

ble.

83 F.3d at 1349.

Despite the fact that the majority's view adopts the most extreme

example, unsupported by the record, to make its point, it is axiomatic

that a statute establishing a right may also specify under what circum-

stances that right may be forfeited. Congress, however, in enacting

the IDEA has specified no circumstances under which a disabled

child may lose by forfeiture the right to educational services under the

IDEA, whether that be the federal right to a free appropriate public

27

education, or the "right of access" to a free appropriate public educa-

tion as created by the majority.1

In Burlington School Committee v. Massachusetts Department of

Education, 471 U.S. 359 (1985), the Supreme Court addressed the

issue of waiver of reimbursement under the Education of the Handi-

capped Act (EHA).2 As the Court recognized the EHA requires partic-

ipating states and local educational agencies "to assure that

handicapped children and their parents or guardians are guaranteed

procedural safeguards with respect to the provision of free appropriate

public education" to such handicapped children. In Burlington, the

parents of a handicapped child rejected the schools' Individualized

Educational Program (IEP) for their son and placed him in a private

school without the consent of the local school authorities, in violation

of § 1415(e)(3) of the Act. Thereafter, the parents sought reimburse-

ment of the costs associated with the private school. The school

authorities argued that the parents had waived their right to reim-

bursement by violating § 1415(e)(3). Section 1415(e)(3) provided that

while administrative proceedings are pending about the child's place-

ment, "the child shall remain in the then current educational place-

ment."

The Supreme Court disagreed. The Court reasoned that

§ 1415(e)(3) "says nothing about financial responsibility, waiver, or

parental rights to reimbursement at the conclusion of judicial proceed-

_________________________________________________________________

1 Virginia does provide alternative educational services through various

state and local programs to many non-disabled children who are expelled

from school pursuant to the Comprehensive Services Act (CSA). Those

services, however, are not appropriate for a disabled child, and to the

extent that such services exist, the majority's concern, undergirding its

analysis, that Virginia will be burdened by requiring for disabled stu-

dents, is dissipated greatly by Virginia's provisions of such services to

non-disabled children.

Furthermore, it should be obvious to all, and especially was to mem-

bers of Congress, that education, though rarely through private tutors,

will improve the circumstances in which we all live especially if disabled

children are not cut off from the considerable benefits of a public educa-

tion.

2 Precursor to Individuals with Disabilities Education Act (IDEA).

28

ings. Moreover, if the provision is interpreted to cut off parental rights

to reimbursement, the principal purpose of the Act will in many cases

be defeated in the same way as if reimbursement was never avail-

able." Id. at 372. The Court continued that:

Thus, under the Town's reading of § 1415(e)(3), the parents

are forced to leave the child in what may turn out to be an

inappropriate educational placement or to obtain appropriate

placement only by sacrificing any claim for reimbursement.

The Act was intended to give handicapped children both an

appropriate education and a free one; it should not be inter-

preted to defeat one or the other of those objectives.

Id. at 372. A similar approach in the instant case is necessary to insure

a principal purpose of IDEA.

The Court did note, however, that "parents who unilaterally change

their child's placement during the pendency of review proceedings,

without the consent of the state or local school officials, do so at their

own financial risk. If the courts ultimately determine that the IEP pro-

posed by school officials was appropriate, the parents would be

barred from obtaining reimbursement for any interim period in which

their child's placement violated § 1415(e)(3)." Id. at 373-74. See also

Hudson by and Through Tyree v. Wilson, 828 F.2d 1059, 1064 (4th

Cir. 1987) (relying on Burlington, "[i]t is now well settled that parents

may be entitled to tuition reimbursement despite their unilateral with-

drawal of their child from the public school."); Hall v. Vance County

Bd. of Educ., 774 F.2d 629 (4th Cir. 1985) (relying on Burlington)

(rejecting school officials' argument that parents' unilateral with-

drawal of child waived any right to reimbursement). Similarly,

nowhere contained in the language of the IDEA does the statute pro-

vide for the forfeiture or waiver of a disabled child's right to a free

appropriate public education.

While not speaking in terms of forfeiture, in Doe v. Maher, 793

F.2d 1470 (9th Cir. 1986), aff'd as modified sub nom. Honig v. Doe,

484 U.S. 305 (1988), the Ninth Circuit affirmed the district court's

finding that two plaintiffs with emotional disturbances had been

improperly expelled for misconduct related to their disabilities.

29

Maher, 793 F.2d at 1481-82. In a passage, properly characterized as

dictum, the Ninth Circuit stated:

If a child's misbehavior is properly determined not to be a

manifestation of his handicap, the [disabled] child can be

expelled. This conclusion does not conflict with the[IDEA].

When a child's misbehavior does not result from his[dis-

abling] condition, there is simply no justification for

exempting him from the rules, including those regarding

expulsion, applicable to other children. Therefore, when a

[disabled] child is properly expelled, the school district may

cease providing all educational services -- just as it could

in any other case. To do otherwise would amount to assert-

ing that all acts of a [disabled] child, both good and bad, are

fairly attributable to his handicap. We know that that is not

so.

Id. at 1482. (internal footnote and internal citations omitted).

However, when the Supreme Court heard the appeal of the Ninth

Circuit case, at issue in Honig was the Act's "stay-put" provision,

which states that a disabled child "shall remain in [his or her] then

current educational placement" until various review proceedings have

been completed, unless local school officials and the child's parents

agree to the contrary. 20 U.S.C. § 1415(e)(3) (Supp.1996). Two stu-

dents who had been expelled due to "violent and disruptive conduct"

arising from their disabilities, see 484 U.S. at 312-315, argued that the

state could not unilaterally expel them unless those procedures were

followed. The Supreme Court agreed.3 The Court held that the lan-

guage of the statute was unequivocal, and rejected the school offi-

cials' attempt "to read a dangerousness" exception into the stay-put

provision. Id. at 323.

The Court disagreed with the school officials' contention "that

Congress thought the residual authority of school officials to exclude

dangerous students from the classroom too obvious for comment." Id.

Instead, the Court reasoned as follows:

_________________________________________________________________

3 The Court found, though, that the issue was moot as to one of the stu-

dents. 484 U.S. at 317-18.

30

We think it clear . . . that Congress very much meant to strip

schools of the unilateral authority they had traditionally

employed to exclude disabled students, particularly emo-

tionally disturbed students, from school. In so doing, Con-

gress did not leave school administrators powerless to deal

with dangerous students; it did, however, deny school offi-

cials their former right to "self-help," and directed that in the

future the removal of disabled students could be accom-

plished only with the permission of the parents, or as a last

resort, the courts.

Id. at 323-24. The Supreme Court did not address the Ninth Circuit's

dicta.4

Using the persuasive rationale articulated in Honig whereby the

Court refused to read a "dangerousness" exception into the Act's stay-

put provision, I refuse to read a "suspension or expulsion for conduct

unrelated to disability" exception into the Act's requirement that "all"

disabled children be assured "the right to a free appropriate public

education." Virginia has concentrated on the interpretation of the

phrase "all children," but I have concluded that "all" means "all" and

that concentration should more appropriately be focused on the statu-

tory requirement of a "free appropriate public education." See

Dandridge v. Williams, 397 U.S. 471, 497 (1970) (Douglas, J., dis-

senting) (words "all eligible individuals" in § 402(a)(1) of the [Social

Security] Act. . . reveal Congress' overriding concern with meeting

the needs of each eligible recipient of aid under AFDC programs)

(emphasis added); Acands, Inc. v. Aetna Cas. and Sur. Co., 764 F.2d

_________________________________________________________________

4 Judge Luttig's panel dissent, adopted by the en banc court, notes that

the Ninth Circuit's dicta was "notably left undisturbed by the Supreme

Court in Honig." 83 F.3d at 1351. I find nothing notable about the

Supreme Court's failure to address a point appearing only as dicta. As

Judge Luttig notes, the Honig decision did not address the issue before

the court in the instant case; the Honig decision only addressed "whether

. . . state or local authorities may . . . unilaterally exclude disabled chil-

dren from the classroom for dangerous or disruptive conduct growing out

of their disabilities." Honig, 484 U.S. at 308. In fact, no dispute exists

that the two students expelled in Maher were expelled because of misbe-

havior related to their disabilities.

31

968, 974 (3d Cir. 1985) (affirming district court's interpretation of

phrase "all sums which [insurer] shall become legally obligated to

pay. . ." to require insurer to pay all sums even if plaintiff's damages

are caused in part in an insured period, and also caused in part during

another period) (emphasis added).5

II.

As in Burlington, the majority's "exception" for the cessation of

educational services for disabled children who are expelled from

school for misconduct unrelated to their disabilities, contravenes not

only the language of the IDEA but guts the purpose of the IDEA. In

enacting the statute, Congress found that more than eight million chil-

dren with disabilities existed in the United States; these childrens'

special education needs were not being fully met; more than half

these children did not receive appropriate educational services; one

_________________________________________________________________

5 Virginia relies upon Doe v. Board of Educ., 1996 WL 79411 (N.D.

Ill. Feb. 16, 1996), presently pending before the Seventh Circuit, to sup-

port its position. In Doe, the district court held that "[t]he continued pro-

vision of educational services to a student who has been expelled for

reasons unrelated to a disability is not expressly required by the IDEA

or its regulations, nor is there any reason to believe that Congress

intended to erect an impenetrable shield insulating students with disabili-

ties from the consequences of misconduct totally unrelated to their dis-

abilities." However, the district court granted plaintiff's motion for

reconsideration reasoning that the Office of Special Education Programs

(OSEP) had taken a contrary position in an opinion letter and finding

"that the positions taken by OSEP are entitled to deference", mot. for

recons. granted, 1996 WL 197690 (N.D. Ill. Apr. 22, 1996). Subse-

quently, the district court granted defendant's motion for reconsideration

concluding that upon further reflection, the OSEP opinion letter was

interpretative, not legislative, and as such the court was not bound by

OSEP letter, and thus, found that IDEA did not require the provision of

educational services for a disabled child expelled or suspended for mis-

conduct unrelated to his or her disability), mot. for recons. granted, 1996

WL 392160 (N.D. Ill. July 11, 1996); see also Doe v. Kroger, 480

F.Supp. 225, 229 (N.D. Ind. 1979) (stating that IDEA"only prohibits the

expulsion of [disabled] children who are disruptive because of their [dis-

ability]") (no determination had been made, however, as to whether mis-

behavior was related to disability).

32

million of these disabled children were "excluded entirely from the

public school system"; many children with disabilities were partici-

pating in regular school programs which do not serve their educa-

tional needs because their disabilities were undetected; the burden of

families of disabled children who often had to seek appropriate educa-

tional services at great expense and distance from their homes; given

appropriate funding State and local agencies could provide effective

education and related services for these children; State and local agen-

cies had a responsibility to provide children with disabilities with an

education; and "it is in the national interest that the Federal Govern-

ment assist State and local efforts to provide programs to meet the

educational needs of children with disabilities in order to assure equal

protection of the law." See 20 U.S.C.§ 1400(b)(1)-(9) (1990 & Supp.

1996).

The purpose of the IDEA is:

to assure that all children with disabilities have available to

them, within the time periods specified in #AD8E BD# 1412(2)(B) of

this title, a free appropriate public education which empha-

sizes special education and related services designed to meet

their unique needs, to assure that the rights of children with

disabilities and their parents or guardians are protected, to

assist States and localities to provide the education of all

children with disabilities, and to assess and assure the effec-

tiveness of efforts to educate children with disabilities.

20 U.S.C. § 1400(c) (emphasis added). The legislative history evinces

Congress' concerns and purposes in enacting the IDEA. As the

Supreme Court noted in Honig, in drafting the IDEA, Congress was

guided by two district court opinions6 which "involved the exclusion

of hard-to-handle disabled students." Honig , 484 U.S. at 324; see also

S. Rep. No. 168, 94th Cong., 1st Sess. 6 (1975), reprinted in 1975

U.S.C.C.A.N. 1425, 1430 (discussing Mills); Board of Educ. v.

Rowley, 458 U.S. 176, 194 (1982) (reference to Mills and PARC

_________________________________________________________________

6 Mills v. Board of Educ. of District of Columbia, 348 F.Supp. 866

(D.D.C. 1972), and Pennsylvania Ass'n for Retarded Children, et al.

(PARC) v. Pennsylvania, 343 F.Supp. 279 (E.D. Pa. 1972).

33

"suggests that the principles which they established are the principles,

which to a significant extent, guided the drafters of the Act").

Clearly, the IDEA is remedial legislation. A familiar canon of stat-

utory construction requires courts to interpret remedial legislation,

such as the IDEA, broadly to effectuate its goals and purposes. See

Tcherepnin v. Knight, 389 U.S. 332, 336 (1967) ("we are guided by

the familiar canon of statutory construction that remedial legislation

should be construed broadly to effectuate its purposes."); Philbin v.

General Elec. Capital Auto Lease, Inc., 929 F.2d 321, 323 (7th Cir.

1991) ("Title VII is remedial legislation which must be construed lib-

erally."); Innovative Health Systems v. City of White Plains, 931

F.Supp. 222, 232 (S.D.N.Y. 1996) (quoting Civic Ass'n of the Deaf

v. Giuliani, et al., 915 F.Supp. 622, 633 (S.D.N.Y. 1996) ("As a reme-

dial statute, the [Americans with Disabilities Act] ADA must be

broadly construed to effectuate its purpose.")). 7

While recognizing the "laudable purpose", 83 F.3d at 1350, of the

IDEA, nevertheless, the majority proceeds to sanction Virginia's deci-

sion to cease providing any educational services to those children

with disabilities who are expelled or suspended for misconduct unre-

lated to their disabilities. As Congress recognized, but the majority

apparently does not, educational services for disabled children are

critical to the childrens' ability to have a chance at achieving the suc-

cesses of their non-disabled counterparts. See S.Rep. No. 168, supra,

at 9, 1975 U.S.C.C.A.N. at 1433 ("With proper education services,

many [disabled children] would be able to become productive citi-

zens, contributing to society instead of being forced to remain bur-

dens. Others, through such [educational] services would increase their

independence, thus reducing their dependence on society").

Heralding the use of expulsion as a disciplinary tool to teach chil-

dren accountability and personal responsibility for their behavior, Vir-

ginia argues that the evidence establishes that an expelled student who

_________________________________________________________________

7 A public education's availability to all children, able and disabled

alike, is obviously essential in the public's interest. That is as true or

more true for disabled children, whether their violence is due to their dis-

abilities or not. For disabled children, the statutory language pertains to

"all" with no exceptions mentioned.

34

is readmitted is less likely to be expelled again. Virginia's argument,

of course, ignores evidence that shows that depriving children with

disabilities of educational services, who are suspended long-term or

expelled, is likely to have more severe consequences than denial of

educational services during a similar disciplinary period for their non-

disabled counterparts.

Specifically, in the record, Kevin P. Dwyer, a certified school psy-

chologist in the State of Maryland, testified that children with disabil-

ities who have their education ceased experience greater difficulty

with retention upon returning to school. The retention issue is not

novel, and is in fact, one of the principal reasons why, as Dwyer testi-

fied, "we have 12-month school for kids that are disabled that we

don't have for kids that are not disabled. That's one of the privileges

of special education more. It . . . says these kids need 12 months

because . . . they lose it. They lose some ground during the summer."

See also Johnson v. Independent Sch. Dist. No. 4 , 921 F.2d 1022,

1026-1030 (10th Cir. 1990) (IDEA requires year-round program

when necessary), cert. denied, 500 U.S. 905 (1991); Battle v.

Pennsylvania, 629 F.2d 269, 275, 280-81 (3d Cir. 1980) (noting prob-

lems with retention and need for longer schooling), cert. denied sub

nom. Scanlon v. Battle, 452 U.S. 968 (1981). Hence, the cessation of

educational services to children with disabilities suspended or

expelled for misconduct unrelated to their disability has drastic conse-

quences for those students; consequences which do not apply equally

to non-disabled students suspended or expelled. Such cessation has a

detrimental effect whether a disabled child's misconduct was disabil-

ity related or not.

The majority in effect tries to equate two quite different things:

expulsion or suspension is one thing while loss of access to a free

appropriate public education is another. The majority in effect seeks

to have the lesser perform the work of the greater. Suppose that dis-

abled children can be suspended or expelled from regular schools for

their misdeeds not related to their handicap. Of course that may hap-

pen. A student who acts badly may, and should be in an aggravated

case, disciplined by way of suspension or expulsion. The difference

with respect to the suspension or expulsion of children with disabili-

ties, however, is that during the period of suspension or expulsion that

child's educational services must continue in an alternative setting.

35

Virginia contends that the continued provision of educational services

to a disabled child who has been suspended or expelled for miscon-

duct unrelated to his or her handicap is not a suspension or expulsion

but merely a transfer, and hence does not effectively serve the State's

disciplinary goals as a last resort "wake-up" call to the student. Noth-

ing in the IDEA prevents Virginia from "waking up" these children

with suspension or expulsion from their regular school. Virginia,

however, as commanded by the IDEA must "wake up" these children

by providing an education in an alternative setting during the suspen-

sion or expulsion period. The removal of the child from his or her

usual classroom and friends will serve to reinforce the inappropriate-

ness of his or her misconduct.

Virginia's statement that "[s]pecial education students are thereby

consistently governed by the same rules of accountability and per-

sonal responsibility governing others, when disability is not an issue"

represents the lack of understanding of the problem presented in the

instant case. Petitioner's Brief, at 12 (emphasis added). Regrettably,

for a child with a disability, disability is always an issue and relevant.

For that child remains disabled when he or she is suspended or

expelled from school. An analysis which fails to consider the conse-

quences of the cessation of educational services on a disabled child,

fails, in my view to effectuate the purposes of IDEA. The stated pur-

pose of the IDEA is to provide all children with disabilities a free

appropriate public education so that those children can become pro-

ductive members of our society, in the same way as non-disabled chil-

dren. The IDEA is designed, to the extent possible, to provide

disabled children with the tools necessary to close the gap between

them and their non-disabled counterparts. I fail to see how ceasing the

educational process serves that goal.

Undergirding Virginia's argument, adopted by the majority, is the

notion that children with disabilities are being treated differently than

their non-disabled counterparts, and failure to cease educational ser-

vices to these students, as schools do with non-disabled expelled or

suspended students, sends the message that children with disabilities

are not responsible for their actions. The continuation of educational

services to disabled students who are suspended or expelled would

result in a "harmful double standard" between the treatment of dis-

abled and non-disabled students, Virginia maintains.

36

In S-1 v. Turlington, 635 F.2d 342 (5th Cir.), cert. denied, 454 U.S.

1030 (1981), the Fifth Circuit addressed the issue of nine disabled

childrens' rights under the IDEA, when the children were expelled

from school. After concluding that an expulsion constituted a change

in placement for IDEA [then EHA] purposes, the court addressed the

discipline issue. The Fifth Circuit in responding to the school offi-

cials' argument that removing the disciplinary tool of expulsion with

respect to a disabled child would "insulat[e]" a disabled student, the

court stated "expulsion is still a proper disciplinary tool . . . when

proper procedures are utilized and under proper circumstances." Id. at

348. Thus, the court determined that before a disabled student could

be expelled the student was entitled to a hearing to determine whether

his misconduct was related to his disability. Nevertheless, the court

stated that "[w]e cannot, however, authorize the complete cessation of

educational services during an expulsion period." Id.; see also Kaelin

v. Grubbs, 682 F.2d 595, 597 (6th Cir. 1982) (following Turlington

analysis to conclude that disabled child may be expelled, only after

a due process hearing determines that misconduct was not related to

handicap, and during the expulsion period educational services may

not cease); and see School Bd. v. Malone, 762 F.2d 1210, 1218 (4th

Cir. 1985) (court held that disabled student could not be expelled for

behavior caused by his disability but declined to address "whether

some level of educational services must be continued to a lawfully

expelled handicapped child, and if so, to what extent.").

Children with disabilities are not, and cannot be treated, the same

as non-disabled students. Any argument based on strict equality of

treatment for disabled and non-disabled children must fail. In enacting

the IDEA, Congress indeed granted disabled children"more rights"

than those enjoyed by non-disabled children. For example, the IDEA

confers upon disabled children the right to an annually reviewed "in-

dividualized education program," prepared by the school district, the

child's teacher and parents, and, when possible, the disabled child

himself or herself. See 20 U.S.C. § 1401(a)(2), 1414(a)(5) (Supp.

1996). The "stay-put" provision, discussed in Honig, represents

another example of conferring special rights upon disabled children.

The Honig holding and its rationale, at least implicitly, relies upon the

basic premise that children with disabilities are to be treated differ-

ently than children without disabilities.

37

In one fell stroke, the majority alters IDEA by grafting onto its lan-

guage an exception not provided by Congress for children with dis-

abilities who have been expelled or suspended for misconduct

unrelated to their disabilities, namely the cessation of educational ser-

vices during the period of the suspension or expulsion. Until today's

decision, no such exception existed. In my view, if a state refuses to

offer educational services to a disabled child due to that child's con-

duct -- regardless of whether that conduct is a manifestation of the

child's disability -- then it has ceased to assure that child of "the right

to a free appropriate public education." Contrary to Virginia's belief,

the statute in no way indicates that a disabled child forfeits or waives

that right when he or she misbehaves in a manner unrelated to his or

her disability.

While remedial legislation should be construed broadly to effectu-

ate its purpose, I recognize that the canon of construction does not

allow a court to ignore the plain wording of the statute. In the instant

case, however, the IDEA's plain language leaves no room for excep-

tions of the kind that Virginia has asked us to read into it. The Act

requires that participating states have "in effect a policy that assures

all children with disabilities the right to a free appropriate public edu-

cation." Hence, the IDEA's unqualified language is sufficiently clear

to have enabled Virginia authorities to perceive that they would have

to adjust their disciplinary policies for disabled students if they

wished to participate in the IDEA-B program. Compare Timothy W.

v. Rochester, New Hampshire, Sch. Dist., 875 F.2d 954, 960-61 (1st

Cir.) (rejecting argument that, in order to demand educational services

under IDEA, a child must show that he or she would benefit from

such services; because the IDEA is unequivocal and"is permeated

with the words `all [disabled] children' . . . the Act in its entirety

makes clear that a `zero-reject' policy is at the core of the Act"), cert.

denied, 493 U.S. 983 (1989).

III.

Virginia's proposed exception to the IDEA, sanctioned by the

majority, has no support in the statutory language of the IDEA. More-

over, the exception the majority has placed its imprimatur on today

is divorced from the very purposes of the IDEA. The majority has

succumbed to the temptation which we as judges should steadfastly

38

resist. We should read a statute as it is written, not rewrite it as we

would like it to be. It should be Congress not the courts to incorporate

in the statute following "all children with disabilities" the phraseol-

ogy: "excluding those expelled or suspended for misconduct unrelated

to their disabilities." The statute as it now stands should reach the

conclusion that our legislators have viewed the situation in the round

and have been concerned that growing up without any appropriate

public education may well, indeed probably will, lead to grownups

less able to live intelligently, or at least reasonably, and more prone

to the improper conduct which had led to his or her expulsion or sus-

pension in the first place. In other words, an appropriate public educa-

tion produces better citizens. Special classes other than those termed

regular or, where most functional, resort to appropriate correspon-

dence courses prepared by teachers and no doubt other techniques

may be used to ensure an appropriate free public education for dis-

abled children who have been expelled or suspended without

adversely affecting the classes wherein expulsion or suspension of a

handicapped student has occurred. Because I cannot sanction the

undermining of the IDEA's noble purposes by leaving 126 children

with disabilities without any educational services during a period of

expulsion or suspension, I dissent.

_________________________________________________________________

HALL, Circuit Judge, dissenting:

I join Judge Murnaghan's dissenting opinion. I write separately,

however, to set forth an alternative basis for affirming the Secretary's

decision.

If the statute in question is ambiguous, as a majority of the court

apparently assumes it to be, I would agree with the majority that

"[w]hether [Judge Murnaghan's] interpretation of the statute or that

which [the majority] believe[s] Congress intended is the better [ ] is

not even the question." 86 F.3d at 1352. I would, however, disagree

with the majority's view that "the deference that we ordinarily afford

agency interpretations of ambiguous statutes is inapplicable in a case

such as this." Id. at 1351 n.4. There are lots of "case[s] such as this"

that involve complex funding programs and millions of federal dol-

lars. In the wake of our decision today, the role of the agencies to

39

whom Congress has assigned the task of administering these pro-

grams is an uncertain one.

I believe that a majority of the court would agree that Congress

could, provided it did so expressly, condition a State's receipt of

funds under the IDEA cooperative funding program on the State's

continuing to provide educational services to disabled students

expelled for reasons unrelated to their disabilities. See South Dakota

v. Dole, 483 U.S. 203, 207, 107 S.Ct. 2793, 2796, 97 L.Ed.2d 171

(1987) ("In considering whether a particular expenditure is intended

to serve general public purposes, courts should defer substantially to

the judgment of Congress."). The statutory provision in question, 20

U.S.C. § 1412(l), is arguably not an unambiguous expression of Con-

gressional intent that such services be provided. The issue, then, is

whether we will require that Congress itself define in unmistakable

statutory terms each and every string that is or may ever be attached

to a State's receipt of funds under a cooperative funding program, or

do we defer to a reasonable interpretation made by the federal agency

to which Congress has delegated the job of operating the program? In

choosing the former, the majority eviscerates the rule of Chevron and

establishes a "clear statement rule" that is as unprecedented as it is

unworkable.

The majority's holding and the essential analysis supporting it are

contained in the first paragraph of part I-B of its opinion: When Con-

gress wants to condition the States' receipt of funds, it must do so in

"unmistakably clear terms" in the statute. 86 F.3d at 1352. This "clear

statement" rule is derived from Pennhurst State School and Hospital

v. Halderman, 451 U.S. 1 (1981), a pre-Chevron decision that had the

following to say about the need for a State to know what it is agreeing

to when it enters into the cooperative funding scheme:

[L]egislation enacted pursuant to the spending power is

much in the nature of a contract: in return for federal funds,

the States agree to comply with federally imposed condi-

tions. The legitimacy of Congress' power to legislate under

the spending power thus rests on whether the State voluntar-

ily and knowingly accepts the terms of the "contract." . . .

[I]f Congress intends to impose a condition on the grant of

federal moneys, it must do so unambiguously.

40

Id. at 17 (citations omitted). Applying this general rule in the manner

advanced by the majority takes Pennhurst to an unintended level.

In its discussion of the Spending Clause, the Court in Pennhurst

was concerned that a State know what was expected of it when it

chose to participate in a federal funding program. Id. at 17-18.

Pennhurst simply does not stand for the proposition that every detail

of a federal-state cooperative funding program must be spelled out in

the statute itself, and we have not so held in the sixteen years since

Pennhurst was decided. Indeed, the Supreme Court has recently

deferred to the Secretary's interpretation of an IDEA provision in a

situation analogous to the one before us. See Honig v. Doe, 484 U.S.

305, 325 n.8 (1988) ("Given this ambiguity [in the phrase `change in

placement' used in 20 U.S.C. § 1415(e)(3)], we defer to the construc-

tion adopted by the agency charged with monitoring and enforcing the

statute.") (citing INS v. Cardozo-Fonseca, 480 U.S. 421, 448 (1987)).

The IDEA gives to the Secretary of Education the authority to

administer, interpret and enforce the statute. See 20 U.S.C.

§§ 1402(a), 1416, 1417(b). The Secretary's interpretive rule in this

case -- that even children expelled for misbehavior unrelated to their

disabilities be provided educational services -- was published well

before Virginia submitted its application for participation in the pro-

gram for fiscal years 1993-95. See Metropolitan School Dist. of

Wayne Township v. Davila, 969 F.2d 485 (7th Cir. 1992) (discussing

the history of the interpretive rule), cert. denied, 507 U.S. 949 (1993).

Virginia pursued the benefits of IDEA funding with its eyes wide

open. Pennhurst does not suggest that this court should now abrogate

those conditions of which Virginia was aware solely because such

condition was not precisely spelled out in the few pages of the United

States Code that established this sizable government program.

An example from another federal-state funding program will serve

to show the unworkability of the majority's rule. At issue in

Rehabilitation Ass'n of Virginia, Inc. v. Kozlowski , 42 F.3d 1444 (4th

Cir. 1994), cert. denied, 116 S.Ct. 60 (1995), was the meaning of the

Medicaid and Medicare statutes' formula for a State's contribution for

services to persons eligible under both programs. Acknowledging that

Chevron would apply if the statute were ambiguous, id. at 1450, two

judges on the panel nevertheless rejected the Secretary of HHS's

41

interpretation and instead adopted an interpretation that they found to

be in accord with the clear and unambiguous language of the statute.

The concurring opinion, however, provides a glimpse of what the

future may hold if Chevron deference is replaced by the clear state-

ment rule adopted by the majority in our case.

After concluding that there was more than one reasonable interpre-

tation of the statutes in question, Judge Niemeyer invoked Chevron

to support his view that the court should defer to the federal agency's

interpretation. Id. at 1470-71 (Niemeyer, J., concurring in part and

dissenting in part). Had the Secretary's interpretation in Kozlowski

been the one that mandated increased contributions from the States,

we can only wonder how the analysis would have proceeded under

the rule announced by the majority in the case before us. Given two

reasonable interpretations of a statute, each of which would "condi-

tion the State's receipt of federal funds in a particular manner" in the

context of a cooperative federal-state funding program, but which

would yield different results as far as the financial effect on the partic-

ipating State, does this very ambiguity ipso facto defeat the federal

government's claim that its interpretation should be adopted? Should

the courts, faced with an ambiguity, always defer to the interpretation

advanced by the State? What effect, if any, does the type of program

or amount of money involved have on the analysis? For example,

should the courts accord some deference to the Secretary of Transpor-

tation with regard to ambiguities in highway-funding statutes, but

none whatsoever to the Secretary of Education?

We should not allow the visceral impact of the case before us --

unruly and even dangerous students threatening the fabric of our

schools and the physical integrity of our children-- to disguise the

portent of the majority's analysis or to cause us to forsake the estab-

lished rule that we defer to reasonable agency interpretations of the

statute.

When a challenge to an agency construction of a statutory

provision, fairly conceptualized, really centers on the wis-

dom of the agency's policy, rather than whether it is a rea-

sonable choice within a gap left open by Congress, the

challenge must fail.

42

Chevron, 467 U.S. at 866. Congress necessarily delegated to the Sec-

retary the authority to administer the IDEA because not every aspect

of such a program can be adequately addressed in a statute. The

majority's rule will require that the minutiae of cooperative funding

programs be spelled out in the statute itself, bringing to mind Justice

White's complaint in Pennhurst that "[n]one of the cases cited by the

Court suggest, much less hold, that Congress is required to condition

its grant of funds with contract-like exactitude." 451 U.S. at 48 n.14

(White, J., dissenting in part).

Our views on the educational and disciplinary policies implicated

by the IDEA are irrelevant to the issue at hand. Judge Luttig sets out

the case for why the State's interpretation is good policy -- everyone

should be treated alike when it comes to discipline, 86 F.3d at 1357

-- and Judge Murnaghan presents the federal government's argument

that it is sound policy to provide unbroken services to disabled chil-

dren even when they are expelled for behavior unrelated to their dis-

ability. Ante at 32-38 (Murnaghan, J., dissenting). But as long as the

goal of the federal legislation -- the education of disabled children --

is a proper one (as it most certainly is), and as long as the means

selected -- the provision of services to expelled students -- is ratio-

nally related to that goal (as Judge Murnaghan's opinion demonstrates

it is), our task is at an end.*

I would affirm the decision of the Secretary.

_________________________________________________________________

*To bolster its "clear statement" holding, the majority notes that insis-

tence on an unambiguous statutory expression of a condition on the

receipt of funds is "especially important where, as here, the claimed con-

dition requires the surrender of one of, if not the most significant of, the

powers or functions reserved to the States by the Tenth Amendment." 86

F.3d at 1352. By choosing to accept federal IDEA funding, Virginia cer-

tainly "surrendered" a large degree of its"powers and functions" relative

to the education of its children. I do not, however, see the majority's dis-

cussion of the Tenth Amendment and the clear statement rule in Gregory

v. Ashcroft, 501 U.S. 452 (1991), as essential to the majority's holding.

43