Amicus Curiae Brief — Zobrest v. Catalina Foothills School Dist.

Supreme Court brief1993

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Text

No. 92-91

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Iu the Supreme Court of the United States

OCTOBER TERM, 1992

BRIEF FOR THE UNITED STATES AS AMICI (LRA

SUE PPORTING PETITIONERS

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QUESTIONS PRESENTED

The United States will address the fol! »wing ques-

tions:

1. Whether the Establishment Clause of the First

Amendment prevents a government from providing a

sign-language interpreter to a deaf child in a sec-

tarian high school as part of a general program pro-

viding interpreters to similarly handicapped children

in all schools.

2. Whether the Individuals with Disabilities Edu-

cation Act, 20 U.S.C. 1400 ef seg. (1988 & Supp. II

1991), or regulations promulgated under that Act,

prohibit local authorities from using funds granted

under the Act to provide a sign-language interpreter

to a deaf child in a sectarian high school.

(1)

TABLE OF CONTENTS

Interest of the United States

Constitutional, statutory, and regulatory provisions

involved

Statement

Summary of argument

Argument:

I. The Establishment Clause does not prohibit

neutral government programs designed to aid

individuals that incidentally may benefit both

sectarian and non-sectarian institutions

A. The IDEA has a secular purpose: to assist

in the education of children with disabili-

ties

B. Because the IDEA neutrally provides bene-

fits to a class defined without reference to

religion, it has a permissible and secular

primary effect

C. The IDEA does not result in excessive en-

tanglement with religion

Il. Neither the IDEA ner regulations under the

IDEA bar respondent from providing an inter-

preter to a deaf child in a sectarian high

schow!

Conclusion

Appendix

TABLE OF AUTHORITIES

Cases:

Aaquilar Vv. Felton, A473 US. 402 (1985) 2.

Roard of EKducation vy. Merqens, 196 US. 296

(1990) 2.11.12

Bowen V. Kendrick, 487 U.S. 589 (1988)

County of Allegheny Vo American Civil Lihertios

T’wion, 492 U.S. 573 (1989)

(III)

Page

14,

. 16,

2.17

.u4

Cases—Continued : Page

Edwards Vv. Aquillard, 482 U.S. 573 (1987) 14,16

Everson V. Board of Education, 330 U.S. 1 (1947) 17

Goodall V. Statiord County School Board, 930 F.2d

363 (4th Cir.), cert. denied, 112 S. Ct. 188

(1991) “ Se ASE een Comes . 24

Lee V. Weisman, 112 8. Ct. 2649 (1992) 15

Lemon V. Kurtzman, 403 U.S. 602 (1971) 9,11, 14,17

MeDaniel Vv. Paty, 435 U.S. 618 (1978) 13

Meek V. Pittenger, 421 U.S. 349 (1975) 12, 19, 29

Mueller Vv. Allen, 463 U.S. 388 (1983) 9, 15, 16, 17, 18, 22

Pulido V. Cavazos, 934 F.2d 912 (8th Cir. 1991) {Nn

Roemer V. Board of Public Works, 426 U.S. 736 14

School District V. Ball, 473 U.S. 373 (1985) 9, 12,19

Wallace Vv. Jeffree, A472 US. 38 (1985) 14

Widmar V. Vincent, 454 U.S. 263 (1981) 17-18, 19

Witters Vv. Washington Department of Services for

the Blind, 474 U.S. 481 (1986) 9, 12. 17, 18, 23

Wolman V. Walter, 433 U.S. 229 (1977) 20, 22

Constitution, statutes, and regulations:

U.S. Const. :

Amend. I ( Establishment Clause) passim

Amend. I (Free Exercise Clause) 8, 10,11

Act of Apr. 13, 1970, Pub. L. No. 91-230, § 601,

84 Stat. 175 3

Elementary and Secondary Education Act of 1965,

20 U.S.C. 2701 ef seq. (1988 & Supp. Il 1991) 2

20 U.S.C. 2791 «f seq. (1988 & Supp. Ul

1991) 4

Individuals with Disabilities Education Act, 26

U.S.C. 1400 ef seq. (1988 & Supp. IIT 1991) 3

20 U.S.C. 1400(a) (1988 & Supp. II] 1991) 3, la,

= 2ha

20 U.S.C. 1400(b) (1988 & Supp. 111 1991) 15, la,

Pha

26U S.C. 140016) 01) (Supp. IIL 1991) 3, 26a

20 U.S.C. 140006) (3) (Supp. HT 1991) %, 26a

20 U.S.C. 1400(b) (8) (Supp. 111 1991) 15, 16, 27a

Statutes and regulations—Continued : : Page

20 U.S.C. 140006) 09) (Supp. 11 1991) 16, 27a

20 U.S.C. 14006e) (1988) 9, 2a

26U S.C. 1400e) (Supp. 111991) 4,11, 27a

20 U.S.C. 140 2

20 U.S.C. 1411-1420 (1988 & Supp. ITT 1991) 4,

$u-25a, 27a-44a

20 U.S.C. 1412-1414 (1988 & Supp. ITT 1991) »

3a-25a, 27a-Aia

26 U.S.C. 141212) (BR) (Supp. 11 1991) 4, 2Ra

20 USC. 1413tay (4) (1988 & Supp. II

1991) 5, Ra-9a, 34a-35a

20 U.S.C. 14123 (a) (4) 0A) (Supp. IT 1997) 5, 23,

34da-35a

20 US. 1413tar C4 OB) (Sapp. I 1991) 5, 35a

2OU S.C. 1415 tep C40 AD -

20 U.S.C. 1419 (1988 & Supp. 11 1991) 4

Special Education for Exceptional Children Act.

$$ 15-761 «f eey.. Ariz. Rev. Stat. Ann. (Weet

1991) 3

34C_.F.R.:

Pt. 76:

Section 76.1 8. a

Section 76.522 3, 7, 22, 45a-4Ga

Section 76.532 (ap (1) 7, 23, 45a

Section 76.532(a) (2) 7. a

Section 76.5232 (a) (3) 7. 45a

Section 76.532 (a) (4) 7. Ma

Sections 76 650-76 (42 3, Ma-52a

Sections 76.651-76.662 5, A7a-52a

Section T6.65liay¢l) 6, 23, 47a

Section 76.6510) §, 1Ra

Section 76.65% (a) 6. 18, 5a

Section T6.65R8 (hb) 6. 51a

Section 76.659 6. 5la

Seetion 76.602 6, 52a

MCPR.:

Pt. 30 5

Sertion-< “ie tite Sew 2

3%. 53a-Sia

Reyulations-—C ontinued :

Section 300.403 (a)

Section 300.451 (b)

Section 300.152

Pts. 300-338

Miscellaneous :

Dixie Snow Huefner & Steven F. Huefner, Pwb-

liely Financed Interpreter Services for Paro-

chial School Students with IDEA-B Disabilities,

21 J.L. & Educ. 223 (1992)

U.S. Dep't of Education, To Assure the Free Ap-

propriate Public Education of All Children with

Disahilitios ¢ 1992)

20-21

Iu the Supreme Court of the United States

OcTOLER Tero, 1992

No. 92-94

LARRY ZOBREST, ET AL., PETITIONERS

CATALINA FOOTHILLS Scroor. District

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

SUPPORTING PETITIONERS

INTEREST OF THE UNITED STATES

The principal question in this case is whether the

Establishment Clause permits a government author-

ity to provide a sign-language interpreter to a deaf

child in a sectarian high school as part of a general

program providing interpreters to similarly handi-

capped children in all schools. Congress's passage of

the Individuals with Disabilities Education Act, 20

U.S.C, 1400 ef seg. (1988 & Supp. 111 1991) (IDEA),

reflects Congress®% determination that “State and

local educational agencies have a responsibility to

provide education for all children with disabilities,”

(1)

”

Section M00e(b) Cs) (Supp. LL 1991), and that “it

is in the national interest that the Federal Govern-

ment assist State and local etlorts to provide pro-

grams to meet the educational needs of children with

disabilities in order to assure equal protection of the

law,” Section 1400(b)(9) (Supp. IIL 1991). Ae-

cordingly, the United States has a significant inter-

est in defending the constitutionality of the program

challenged in this case.

Also, the Department of Education administers the

IDEA program challenged in this case, see 20 U.S.C,

1402, and has promulgated regulations that imple-

ment the IDEA. See 34 C.FLR. Pts. 300-338. Sim-

ilarly, the Department of Education provides reme-

dial educational services to educationally deprived

children in low-income areas attending private

schools under Chapter 1 of Title I of the Elementary

and Secondary Education Act of 1965 (ESEA), 20

U.S.C. 2701 ef seq. (1988 & Supp. IL 1991). The

['nited States has a substantial interest in ensuring

that the Court's disposition of this case is informed

by the Department of Education's understanding of

those progrems.

The United States has participated as a party or

amicus curize in numerous cases arising under the

Establishment Clause. See, ¢.¢.. Lee +. Weisman, 112

S. Ct. 2649 (1992): Board of Education v. Merqensa,

196 US. 226 (1990); County of Allegheny s. Amer-

CH Civil Vihe rlies [nion, 102 Us, 573 (1089):

Bowen s. Kendrick, AST US. 589 (1988): Willers vs.

Weshington Department of Services for the Bl vd,

174 U.S. 481 (1986): Aguilar vy. Felton, A72 US.

102 (1985): School District ». Ball, ATR VS. 278

(1985): Wueller ». Allen, 463 US. 388 (1983).

CONSTITUTIONAL, STATUTORY, AND

REGULATORY PROVISIONS INVOLVED

1. The Establishment Clause of the First Amend-

ment provides: “Congress shall make no law respect-

ing an establishment of religion.”

2. 20 U.S.C, 1400 and 1412-1414 (1988 & Supp.

11] 1991) are reprinted in an Appendix, infra, la-t4a.

4. 34 CPLR. 76.1, 76.532, 76.650-76.662, and

SOO A00-300,452 are reprinted in an Appendix, infra,

Ma-a.

4. The Special Education for Exceptional Children

Act, $$ 15-761 «¢f seq., Ariz. Rev. Stat. Ann. (West

1991), is reprinted at Pet. App. A106-A127.

STATEMENT

1. When Congress enacted the Education of the

Handicapped Act in 1970 (now known as the In-

dividuals with Disabilities Education Act (IDEA),

see 20 USC, 140064) (Supp. ILL 19919), it found

that there vere “more than eight million handicapped

children in the United States” and that “more than

half of the handicapped children in the United States

dfid] not receive appropriate educational services

which would enable them to have full equality of

opportunity.” Pub. L. No, 91-230, $601, 84 Stat.

175, codified os amended at 20 ULS.C. 1400(b) 01)

and (3) (Supp. 11 1991). Recognizing that “it is in

the national interest that the Federe! Government

ixsjst State and hon! efforts to provide programs te

meet the educational needs of handicapped children

in order to assure equal protection of the law.”

Section 1100(b)(9) (Supp. TL 1991), Congress has

provided in Subchapter IL of the IDEA for » srogram

of federal «rants to aid state and local aw! ‘writies tp

providing educational assistance for children with

disabilities. See 20 U.S.C. 1411-1420 (1988 & Supp.

III 1991).

Those grants, together with other federal grants

the Department of Education administers to assist

children with disabilities,' currently provide more

than $2 billion each year in assistance to States and

local school districts to assist those children. See

U.S. Dep't of Education, To Assure the Free Appro-

priate Public Education of All Children with Dis-

abilities, A-207 (Table AG1) (1992) (Fourteenth

Annual Report to Congress on the Implementation of

the Individuals with Disabilities Education Act)

(hereinafter (92 IDEA Report]... During the 1990-

1991 school year, those programs served more than

42 million children, of whom about 60,000 were

identified as children primarily disabled because of a

hearing impairment. 1992 IDEA Report, at 7 (Table

1.3).

The fundamental requirement for obtaining a

grant under the IDEA is that the State make avail-

able “a free appropriate public education for all

children with disabilities” in the State, 20 U.S.C.

1412(2) (PR) (Supp. IT 1991). But the IDEA’s pur-

poses are not limited to children in public schools.

To the contrary, Section 1400(¢) (Supp. Hl 1991)

states thet the purpose of the IDEA is to “assure

that all children with disabilities have available * * *

‘The Department provides grants for three- to five-

year-olds with disabilities under the Preschool Grants Pro-

gram, 20 U.S.C. 1419 (1988 & Supp. II] 1991), and operates

a special program for children with disabilities in state-

operated or supported institutions as part of the larger pro-

gram for educationally deprived children under the ESEA,

see 20 U.S.C. 2791 et seq. (1988 & Supp. IIT 1991).

2 We have lodged a copy of the 1992 IDEA Report with

the Court and provided copies to counsel for the parties.

a free appropriate public education,” and “to assist

States and localities to provide for the education of

all children with disabilities’ (emphasis added).”

Section 1413(a)(4) (1988 & Supp. II] 1991) di-

rectly addresses the State’s obligations with respeci

to children in private schools. If school authorities

have selected the private school as the means of pro-

viding 2 “free appropriate public education” to the

child, Section 1413(a)(4)(B) (Supp. IIT 1991) re-

quires the State to provide the appropriate services

in all cases “at no cost to * * * parents or guardian.”

With respect to children placed by their parents in

private schools after rejecting an appropriate public

school placement, the public agency must provide for

participation of such children i» special education or

related services only “to the extent consistent with

the number and location of children with disabilities

in the State who are enrolled in private elementary

and secondary schools.” Section 1413(a) (4) (A)

(Supp. IT] 1991).

The Secretary of Education has promulgated regu-

lations implementing the grant program established

by the IDEA. See 34 C.F.R. Pt. 300. Section

300.403(a) provides that when children with dis-

abilities are placed in a private school by their par-

ents’ choice “the public agency is not required by this

part to pay fer the child’s education at the private

school or facility’: instead the agency is required

to “make services available to the child as provided

under S£ 300,450-300.452."" Section 300,452, in turn,

provides that the agency “shall provide specia! edu-

ention and related services designed to meet ive

needs of private school childyen with disabilities re-

siding in the jurisdiction of the agency.” The mean-

ing of this requirement is clarified hy the provisions

of 34 C.F.R. 76.651-76.662, which establish general

regulations for participation by private school stu-

dents in the various grant programs administered

by the Department of Education. Those regulations

require the agency to “provide students enrolled in

private schools with a genuine opportunity for equit-

able participation [in the programs offered by the

agency to other students].” Section 76.651(a)(1).’

Benefits provided to students in private schools must

“be comparable in quality, scope, and opportunity

fur participation to the program benefits that the

[agency] provides for students enrolled in public

schools.” Section 76.654(a). Where “necessary to

provide equitable program benefits” that are “not

normally provided by the private school,” the agency

“may use program funds to make public personnel

available” in the private school’s facilities. Section

76.659."

Finally, the regulations do not draw a distinction

in eligibility between students in private schools that

*That portion of Part 76 of 34 C.F.R. is made directly

applicable to IDEA grants by 34 C.F.R. 300.451 (b).

‘The Department of Education has advised us that pro-

grams funded under the IDEA during the 1989-1990 school

year assisted over 43,000 children placed in private schools

by their parents. Although the Department does not collect

data on the proportion of those students who attend sectarian

private schools, it has advised us that about 80° of the

private schools in this country are sectarian.

* Funds granted under the program may not be used “to

finance the existing level of instruction in a private school

or to otherwise benefit the private school.” Section 76.658 (a).

Rather, funds must be used “to meet the specific needs of

students enrolled in private schools.” Section 76.658 (b) ; see

also Section 76.662 (prohibiting use of program funds “for

the construction of private school facilities”).

are sectarian and those in private schools that are not

sectarian. To ensure that grants for students in sec-

tarian schools are not used for purposes that violate

the Establishment Clause of the First Amendment, 34

C.F.R. 76.532 prohibits the use of federal funds to

pay for “[rleligious worship, instruction, or prosely-

tization,” Section 76.532(a)(1),° or for activities of

schools of divinity, Section 76.532(a) (4).

2. Petitioner James Zobrest is profoundly deaf.

Pet. App. Ad; J.A. 87. Accordingly, he requires the

services of a sign-language interpreter in order to

obtain the benefit of normal classroom instruction.

J.A. SS. Before sixth grade, he attended a school for

the deaf. Pet. App. A128; J.A. 88. He attended

grades six through eight in a public school operated by

respondent; respondent provided an interpreter who

accompanied him to all of his classes. Pet. App. A128;

J.A. S&. For religious reasons, his parents, peti-

tioners Larry and Sandra Zobrest, who are Roman

Catholics, enrolled James for the ninth grade in the

Salpointe Catholic High School, a sectarian institu-

tion operated by the Carmelite Order of the Roman

Catholic Church. Pet. App. A5; J.A. 89-90. When

petitioners asked respondent to provide an interpreter

to accompany James to his classes at Salpvinte, re-

spondent referred the matter to the Pima County At-

tornev, who concluded that it would violate the Es-

tablishment Clause to provide an interpreter on Sal-

pointe’s premises. J.A. 10-18. In June 1988, the

" See also Section 76.532 (a) (2) and (3) (prohibiting the use

of federal grants to pay for “[e]quipment or supplies to be

used for any of the activities specified in [Section 76.532 (a)

(1)!” or for “fejonstruction, remodeling, repair, operation,

or maintenance of any facility * * * to be used for any of the

activities specified in [Section 76.532(a)(1)]").

Arizona Attorney General concurred in this opinion.

Pet. App. A137.

3. Petitioners then instituted this action in the

United States District Court for the District of Ari-

ozna, arguing that the IDEA and the Free Exercise

Clause of the First Amendment require respondent to

provide an interpreter, and that the Establishment

Clause does not bar that relief. J.A. 19-26." In re-

sponse to petitioners’ request for a preliminary in-

junction, respondent “admit[ted] that the [IDEA]

requires it to provide for [petitioner] * * * the serv-

ices of a sign language interpreter, so long as [peti-

tioner] is educated in a non-parochial setting,” J.A.

34, but argued that the Establishment Clause pro-

hibited it from providing an interpreter in a parochial

setting, J.A. 33-40. On August 15, 1988, the dis-

trict court denied petitioners’ request for a prelimi-

nary injunction, accepting respondent’s Establishment

Clause argument and explaining that it found “no

likelihood of success on the merits.” J.A. 52-53. On

July 20, 1989, the district court granted summary

judgment for respondent. Pet. App. A355. The court

stated that “the interpreter would act as a conduit for

the religious inculeation of [petitioner]—thereby, pro-

7 The district court had jurisdiction over petitioners’ action

under 20 U.S.C. 1415(e) (4) (A), which grants the district

court authority over actions brought to resolve disputes over

the appropriate services to be provided to handicapped chil-

dren under the IDEA. Although respondents initially con-

tended that the action should be dismissed based on petition-

ers’ failure to exhaust administrative remedies, see J.A. 45-

51, the parties eventually agreed that exhaustion of admin-

istrative remedies was not required because exhaustion would

be futile. See J.A. 94-95. Because respondents conceded the

point in the court of appeals, see Pet. App. A6 n.2, it is not

before the Court.

moting [petitioner’s] religious development at govern-

ment expense.”” /hid,

4. A divided panel of the court of appeals affirmed

(Pet. App. Al-A34), applying the three-prong test

articulated in Lemon v. Kurtzman, 403 U.S. 602

(1971). First, the court concluded that the statute

passed the first prong, because “Congress made clear

its secular purpose” in the introductory portion of the

statute: “to assist States and Localities to provide for

the education of all handicapped children.” Pet. App.

A8 (quoting 20 U.S.C. 1400(¢c) (1988) ).

The court then turned to the second prong, whether

the primary effect of the statute advances religion.

Pet. App. A9-A13. The court concluded that the sta-

tute, as apnlied in this case, fails that prong, reason-

ing that the program creates a “symbolic union” of

the type found unacceptable in School District y. Ball,

473 U.S. 373, 392 (1985). The court reasoned that

the requested interpreter would attend classes at Sal-

pointe that would involve religious matters and thus

“would he the instrumentality conveying the religious

message and experience.” Pet. App. Al10. In the

court’s view, “!h]y placing its employee in the sec-

tarian school to perform this function, the government

would create the appearance that it was a ‘joint

sponsor’ of the school’s activities.” bid. j

The court distinguished Mueller y. Allen, 463 U.S.

388 (1983), and Witters v. Washington Department

of Services for the Blind, 474 U.S. 481 (1986)—

cases in which this Court upheld programs that made

governmental benefits available neutrally to classes

defined without reference to religion, even in cases

where religious entities benefited indirectly—as cases

in which the government was not “required to place

its own employee in the sectarian school.”’ Pet. App.

All. The court also rejected petitioners’ claim that

the secular content of the interpreter’s services would

be readily ascertainable, relying on the parties’ con-

cession that “the interpreter would be required to act

in a school environment in which the two functions of

secular education and advancement of religious values

or beliefs are inextricably intertwined.” Pet. App.

A12-A13 (internal quotation marks omitted ).”

Judge Tang dissented. Pet. App. A16-A34. He con-

cluded that the statute was constitutional because of

his view that “similar general educational welfare

programs have passed constitutional muster” in this

Court’s decisions in Witters and Mueller, Pet. App.

A19. He also rejected the majority’s reliance on Ball,

explaining that “[g]eneral welfare programs neu-

trally available to all children, in both public and pri-

vate schools, do not suffer the same constitutional dis-

ability [as programs limited to private schools! he-

cause their benefits diffuse over the entire population.”

Pet. App. A21. Accordingly, Judge Tang would have

reversed the district court.”

* The court also rejected petitioners’ Free Exercise Clause

claim. Pet. App. A13-A15. Although the court agreed that

denial of an interpreter would “placfe] a burden on an in-

dividual’s free exercise rights,” it found that burden accept-

able in light of what it viewed as “a compelling interest in

ensuring that the Establishment Clause is not violated.” Pet.

App. Al4. Petitioners have not challenged the Free Exercise

Clause holding in this Court. Pet. 10 n.9.

* During the lengthy pendency of petitioners’ case before

the Ninth Circuit panel (more than two years), petitioner

James pursued his high school studies; he graduated on May

16, 1992, 2 few weeks after the panel’s decision. Pet. 4. The

case nevertheless presents a continuing controversy because

petitioners still seek reimbursement for the cost of the inter-

SUMMARY OF ARGUMENT

1. Under this Court’s decision in Lemon v. Aurtz-

man, 403 U.S. 602 (1971), a statute does not violate

the Establishment Clause if it has a secular purpose,

its primary effect does not advance religion, and it

(oes not lead to excessive entanglement with reli-

gion. /d. at 612-613. The program challenged in this

case passes that test.

a. The statute has a secular purpose, set forth

in 20 U.S.C. 1400(¢c) (Supp. III 1991): “to assist

States and localities to provide for the education of

all children with disabilities.” Neither the court of

appeals nor respondent has identified any reason

to doubt the sufficiency or validity of that purpose.

Accordingly, the statute passes the first prong. Com-

pare Board of Education vy. Mergens, 496 U.S. 226,

219 (1990) (plurality opinion of O’Connor, J.)

(Court “is normally deferential to a [legislative]

articulation of a secular purpose’).

b. The primary effect of the statute neither ad-

vances nor inhibits religion. The challenged program

is part of a general government program that dis-

penses benefits neutrally, without regard to whether

the beneficiaries support religion, are opposed to re-

ligion, or express no opinion. This Court regularly

has rejected claims that such programs have a pri-

mary effect that advances religion simply because

some religious organizations might receive an in-

direct benefit. Instead, it has concluded that the

pretey they retained. See ibid.; J.A. 42 (respondent's ac-

knowledgment that petitioners “may be entitled to reimburse-

ment from [respondent] for the additional cost of an inter-

preter incurred”). The record suggests that the interpreter

cost petitioners approximately $7,000 each year. J.A. 65.

primary effect is the secular effect that was the goal

of the legislature. For example, in Wifters vy. Wash-

ington Department of Services for the Blind, 474

U.S. 481 (1986), this Court rejected an Establish-

ment Clause challenge to a program allowing the

use of government funds to defray educational ex-

penses of a blind student, in a case where the student

used the funds to pursue theological studies at a

pervasively sectarian institution. The Court should

reach the same result here.

The court of appeals justified a contrary result

by relying on this Court’s decisions in School Dis-

trict vy. Ball, 473 U.S. 373 (1985), and Meek v.

Pittenger, 421 U.S. 349 (1975). Those cases, how-

ever, are not dispositive. Those cases involved the

use of public funds to pay teachers who would teach

classes in classrooms in sectarian schools. In those

cases, the Court concluded that there was a substan-

tial risk that the teaching of the publicly funded

employees would be affected by the sectarian environ-

ment, which would result in the public funds being

used to convey sectarian ideology. But petitioners

are not asking for a publicly funded teacher; they

are asking for an interpreter, who will perform an

objective task not likely to be affected by the sec-

tarian atmosphere in which he works; as a practical

matter, his function is indistinguishable from that

of a highly developed hearing aid. Because the inter-

preter is not himself teaching the child anything,

the fact that his work assists the student in under-

<tanding the sectarian message of the student's teach-

ers does not create an establishment of religion. In

sum, the primary effect of the interpreter is to aid

the student in understanding his teachers. That is

noc an effect that impermissibly advances religion.

c. Finally, the case does not pose an unacceptable

risk of an excessive entanglement with religion.

Because the interpreter is merely a technical facili-

tator of communications, there is no need for the

State to monitor the interpreter’s daily activities.

Hence, the State’s monitoring generally would be

limited to the simple tasks of arranging for the in-

terpreter’s presence at the school, and assessing his

qualifications for his job and his adequacy in per-

forming that job, tasks that present no risk of inter-

ference with sectarian authorities at the school chosen

by petitioners.

At bottom, the analysis of the court of appeals is

inconsistent with this Court’s view that the “Estab-

lishment Clause does not license government to treat

religion and those who teach or practice it * * * as

subversive of American ideals and therefore subject

to unique disabilities.” Mergens, 496 U.S. at 248

(quoting ./ceDaniel vy. Paty, 435 U.S. 618, 641 (1978)

(Brennan, J., concurring in the judgment) ). Accord-

ingly, the judgment of the court of appeals should

be reversed. :

2. Neither the IDEA nor regulations promulgated

under it prohibit the use of IDEA grants to provide

interpreters in sectarian high schools. Although the

IDEA itself does not establish an individual entitle-

ment to services for students placed in private schools

at their parents’ option, it does require the States

to offer those students an equitable opportunity to

participate in the services made available with fed-

eral funds to al] students, and draws no distinction

between students in sectarian private schools and

those in secular private schools. Accordingly, nothing

in the IDEA or its regulations undermines _peti-

tioners’ arguments under the Establishment Clause.

ARGUMENT

Il. THE ESTABLISHMENT CLAUSE DOES NOT PRO-

HIBIT NEUTRAL GOVERNMENT PROGRAMS

DESIGNED TO AID INDIVIDUALS THAT INCI-

DENTALLY MAY BENEFIT BOTH SECTARIAN

AND NONSECTARIAN INSTITUTIONS

Under this Court’s decision in Lemon v. Kurtzman,

403 U.S. 602 (1971), a statute does not violate the

Establishment Clause of the First Amendment if it

passes each prong of a three-pronged test: (1) it

“ha[s] a secular legislative purpose”; (2) “its prin-

cipal or primary effect * * * neither advances nor

inhibits religion”; and (3) it does “not foster an

excessive entanglemen' with religion.” /d. at 612-

613 (internal quotation marks omitted). Although

a majority of the members of this Court have criti-

cized the tripartite test articulated by Lemon," the

” E.g., County of Allegheny V. American Civil Liberties

Union, 492 U.S. 573, 655 (1989) (Kennedy, J., concurring in

the judgment and dissenting in part) (“Substantial revision

of our Establishment Clause doctrine may be in order.”);

Edwards Vv. Aquillard, 482 U.S. 573, 636 (1987) (Scalia, J.,

dissenting) (“pessimistic evaluation * * * of the totality of

Lemon is particularly applicable to the ‘purpose’ prong”):

Wallace Vv. Jaffiree, 472 U.S. 38, 112 (1985) (Rehnquist, J..

dissenting) (Lemon test is “a constitutional theory [that]

has no basis in the history of the amendment it seeks to

interpret, is difficult to apply and yields unprincipled re-

sults”): Aguilar v. Felton, 473 U.S. 402, 429 (1985)

(‘O’Connor, J., dissenting) (expressing “doubts about the

entanglement test” of Lemon); Roemer Vv. Board of Public

Works, 426 U.S. 736, 768 (1976) (White, J., concurring in

the judgment) (“I am no more reconciled to Lemon 7 now

than I was when it was decided. * * * The threefold test of

Lemon I imposes unnecessary [and] superfluous tests for

establishing [a First Amendment violation].”).

Court has not seen fit thus far to revisit that test."

In any event, because the IDEA passes Lemon's three-

pronged test, it does not violate this Court’s Lemon-

based understanding of the Establishment Clause.

A. The IDEA Has a Secular Purpose: To Assist in

the Education of Children with Disabilities

In this case, as in other cases involving govern-

mental assistance programs, “f]]ittle time need he

spent on the question” of whether the IDEA has a

secular purpose, Jueller v. Allen, 463 U.S. 388, 394

(1983). The statute sets forth its secular purpose

with clarity. In 20 U.S.C. 1400(b) (1988 & Supp.

III 1991), Congress set forth nine findings explain-

ing its reasons for enacting the statute. The most

relevant to this case are the eighth and ninth find-

ings, which declare that “State and local educational

agencies have a responsibility to provide education

for all children with disabilities,” 20 U.S.C. 1400

(b) (8) (Sunmm. TTT 1991), and that “it is in the

national interest that the Federal Government assist

" The Court in Lee v. Weisman, 112 S. Ct. 2649 (1992),

declined our suggestion that it revisit the applicability of

Lemon in the context of civic acknowledgment of religion,

viewing the case as an instance of “state-sponsored and state-

directed religious exercise in a public school,” a view that led

directly to the result the Court reached without the need for

consideration of Lemon’s tripartite test. 112 S. Ct. at 2655.

In our view, a straightforward application of Lemon does not

draw seriously into question the service that petitioner was

denied. If, however, the court of appeals’ reasoning—or that

of the district court—-is deemed by this Court to be faithful

to Lemon's strictures, then reexamination of Lemon's ap-

proach to Establishment Clause analysis would be in order.

State and local efforts to provide programs to meet

the educational needs of children with disabilities,”

Section 1400(b) (9) (Supp. TIT 1991). Similarly, the

next subsection, Section 1400(¢) (Supp. TI] 1991).

headed “Purpose,” lists several purposes of the stat-

ute: the one relevant to the program at issue in this

case explains that “[i]t is the purpose of this chap-

ter “ * * to assist States and localities to provide

for the education of all children with disabilities.”

Nothing in Section 1400 offers the slightest sup-

port for a finding that the IDEA has a nonsecular

purpose. As Justice O'Connor explained two years

ago, this Court “is normally deferentia! to a [legis-

lative] articulation of a secular purpose.” Board of

Education vy. Merqgens, 496 U.S, 226, 219 (1990)

(plurality opinion) (quoting Edwards vy. Agvillard,

482 U.S. 578, 586 (1987)). Accordingly, because “a

plausible secular purpose for the * * * program

may be discerned from the face of the statute,”

Mueller, 463 US. at 394-395, the IDEA satisfies the

secular-purpose prong of the Lemon test.

B. Because the IDEA Neutrally Provides Benefits to

a Class Defined Without Reference to Religion, It

Has a Permissible and Secular Primary Effect

As discussed ahove, the IDEA is designed to assist

local governments in “provid!ing] education for a//

children with disabilities,” 20 U.S.C. 1400(b) (8)

(Supp. IIT 1991) (emphasis added); the statute

draws no distinction between sectarian end nonsec-

tarian schools. Only respondent would make the pro-

gram religion-conscious, because, it has conceded, it

would provide an irterpreter to any student with

the same disability as James Zobrest, whether he was

in a public school or a private school, so long as he

was not attending a sectarian private school. See

Pet. App, Ad-A5; J.A. 34. Accordingly, because the

program offers general government benefits on a

neutral basis to a class of beneficiaries defined with-

out reference to religion—students with disabilities—

it does not have an impermissible primary effect.

1. As the Court recently explained, “this Court

has never held that religious institutions are disabled

by the First \mendment from participating in pub-

licly sponsored social welfare programs.” Bowen vy.

Kendrick, 487 U.S. 589, 609 (1988). On the con-

trary, “a program * * * that neutrally provides [gov-

ernment] assistance to a broad spectrum of citizens is

not readily subject to challenge under the Establish-

ment Clause.” veller vy, Allen, 463 U.S. 388, 398-

399 (1983)."° This Court’s decisions offer three sepa-

rate reasons to support that conclusion in this case.

First, when 2 »rogram distributes benefits generally,

it is perverse to treat the fortuitous sectarian status

of the particular institution that beneficiaries like

petitioners choose to patronize as tainting the effect of

the program; rather, “[t]he provision of benefits to

so broad a spectrum of groups is an important index

of secular effect.” Widmar v. Vineent, 454 U.S, 268,

'? See Everson Vv. Board of Education, 330 U.S. 1, 16 (1947)

(“we must be careful * * * to be sure that we do not inad-

vertently prohibit [a government] from extending its general

state law benefits to all its citizens without regard to their

religious belief"); Witters v. Washington Department of

Services for the Blind, 474 U.S. 481, 490-491 (1986) (Powell,

J., concurring) (“state programs that are wholly neutral in

offering educational assistance to a class defined without

reference to religion do not violate the second part of the

Lemon V. Kurtzman test”): id. at 493 (O’Connor, J., con-

curring).

274 (1981).'" Second, in tases like this one,'' where

the “financial benefit [is] ultimately controlled by

the private choices of individual parents,” it is im-

plausible to conclude thet the primary effect of the

grant is the “attenuated financial benefit” sectarian

institutions receive when parents who are benefici-

uries enroll their children, Wvueller, 463 U.S. at 400:

it is more natural to conclude that the “primary”

effect is the benefit the program grants the parents,

in this case, assistance in providing education for

children with disabilities. See Witters v. Washington

Department of Services for the Blind, 474 U.S. 481,

187 (1986) (upholding program where “fa]ny aid

* * * that ultimately flows to religious institutions

does so only as a result of the genuinely independent

and private choices of aid recipients’’).'° Third, a

See Board of Education Vv. Merqens, 496 U.S. at 248

(same) (plurality opinion of O’Connor, J.); Mueller, 463

U.S. at 397 (same).

As discussed above, regulations under the IDEA prohibit

the use of federal funds “to finance the existing level of in-

struction in a private school or to otherwise benefit the pri-

vate school.” 34 C.F.R. 76.658 (a).

'" The court of appeals concluded (Pet. App. All) that this

line of reasoning is inapplicable here because the program

would involve the government placing one of its employees in

a sectarian school. We see no logical force to that argument.

The location of the employee is irrelevant to the question of

why he is there; it is clear that the emplovee would be placed

in a sectarian school only if the parents choose to enroll their

child there. What the court of appeals really seems to be

suggesting is that the Establishment Clause flatly prohibits

placing any public employee in a sectarian school. As we

explain below, that suggestion is inconsistent with this Court's

decisions.

contrary course of reasoning would lead to absurd

results, inconsistent with the traditions of our Nation

that have informed this Court’s understanding of the

Establishment Clause: “If the Establishment Clause

barred the extension of general benefits to religious

groups, a church could not be protected by the police

and fire departments or have its public sidewalk

kept in repair.” Widmar, 454 U.S. at 274-275 (in-

ternal quotation marks omitted). In Witters, this

Court applied that principle to a program strikingly

similar to the one at issue here, which allowed the

use of government funds to defray the educational

expenses of certain handicapped students. In our

view, the court of appeals erred in refusing to apply

the same principle to this case.

2. The decision of the court of appeals rested on

its view that a contrary result was required by this

Court’s decisions in School District y. Ball, 473 USS.

343 (1985), and Meek y. Pittenger, 421 U.S. 349

(1975). We disagree. In those cases, this Court was

concerned that the statements of teachers paid by

public funds to teach classes in sectarian classrooms

would be affected by the sectarian aspects of the at-

mosphere in which they taught, so that there was

an unacceptable chance that public funds would be

diverted into religious uses.

Contrary to the court of appeals’ understanding,

Ball and Meek do not establish a flat rule prohibiting

the government from “plac[ing] its own employee

in the sectarian school,” Pet. App. A11. Instead, the

Court has made clear that the concern on which

those decisions rest arises out of the confluence of

(1) en individual whose task is sufficiently subjective

to allow for the gradual insinuation of sectarian

ideology, and (b) the sectarian atmosphere that exists

in the classrooms of a sectarian school.” For exam-

ple, in Wolman vy. Walter, 433 U.S. 229 (1977), the

Court made clear that the Establishment Clause per-

mitted the provision of public health services to stu-

dents in sectarian schools. /d. at 242. Similarly, the

Court concluded that diagnostic speech and hearing

services could be provided at the same locations,'’

explaining that “[t]he nature of the relationship

between the diagnostician and the pupil does not

provide the same opportunity for the transmission of

sectarian views as attends the relationship between

teacher and student.” /d. at 244; see id. at 247

(therapists should be treated differently, based on

the “danger that publicly employed personne! who

provide services analogous to those at issue here

might transmit religious instruction” }.

Application of that reasoning to this case man-

dates reversal of the judgment of the court of ap-

peals. An interpreter’s task, unlike a teacher’s, does

not involve subjective choices that pose a substantial

risk of the intrusion of sectarian ideology. Ethical

guidelines require interpreters to “render the message

faithfully, always conveying the content and spirit

of the speaker.” J.A. 72. Moreover, as one com-

mentator has noted, it would be quite difficult for an

interpreter to insinuate sectarian ideas into his trans-

lation of a teacher’s comments “given the single-

minded concentration required to perform the job.”

Dixie Snow Huefner & Steven F. Huefner, Publicly

Financed Interpreter Services for Parochial School

Cf. Pulido Vv. Cavazos, 934 F.2d 12 (8th Cir. 1991)

(permissible in appropriate circumstances to provide educa-

tional services on publicly owned and controlled mobile units

parked on the sectarian school’s property).

'T See Meek, 421 U.S. at 371 n.21 (same).

Students with IDEA-B Disabilities, 21 JL. & Educ.

225, 236 n.65 (1992). At bottom, an interpreter is

analytically indistinguishable from a hearing aid,

which adds nothing to the message conveyed by the

teacher. It may be that the sectarian teacher is con-

veying sectarian ideas, but the interpreter is doing

nothing more than translating those ideas so the

student can understand what is being said. That

activity does not raise a significant Establishment

Clause concern.

In sum, the IDEA is a neutral government pro-

gram dispensing aid to children with disabilities.

The primary effect of the program is to increase the

educational opportunities for children with disabili-

ties. Because that effect is decidedly secular, the

program passes scrutiny under the second prong of

the Lemon analysis.

C. The IDEA Does Not Result in Excessive Entangie-

ment with Religion

The government activities necessary to administer

a grant providing for an interpreter in a sectarian

school do not result in an excessive entanglement

with religion. The only significant administrative

tusks would be ensuring in the first instance that the

interpreter was qualified, making arrangements with

the school officials to accommodate the presence of

the interpreter, and monitoring the interpreter’s per-

formance from time to time to ensure that he was

performing his job in an adequate manner. Those

tasks do not involve government officials in any way

with the sectarian administration of the private

school and thus cannot ipvelve the “comprehensive,

discriminating, «und continuing state surveillance

necessary to run afoul of [the entanglement] stand-

ard.” Mueller y. Allen, 463 U.S. 388, 403 (1983)

(internal quotation marks omitted). Nor is there

any need for the State to engage in any continuing

surveillance of the interpreter’s activities at the

school “to guard aganist the infiltration of religious

thought.” Aguilar v. Felion, 473 U.S. 402, 415

(1985). When the government has a neutral program

providing public health services on a sectarian school’s

premises, and the program pusses the primary effect

prong because there is not “an impermissible risk

of the fostering of ideological views, [i]t follows that

there is no need for excessive surveillance, and there

will not be impermissible entanglement.” Wolman vy.

Walter, 433 U.S. 229, 244 (1977).

* + * * ¥

In sum, the holding of the court of appeals con-

strues the Establishment Clause to require respond-

ent to put petitioners to a choice between their sin-

cerely held religious beliefs and James’s acknow!l-

edged need for an interpreter to enable him to secure

an appropriate education. This Court’s decisions do

not require such a choice. The decision of the court

of appeals should be reversed.

Il. NEITHER THE IDEA NOR REGULATIONS

UNDER THE IDEA BAR RESPONDENT FROM

PROVIDING AN INTERPRETER TO A’ DEAF

CHILD IN A SECTARIAN HIGH SCHOOL

Respondent argued in its brief in opposition to the

petition (Br. in Opp. 13) that 34 CPLR. 76.532 bars

respondent from providing an interpreter to a deaf

child in a sectarian high school. That argument is

incorrect. To be sure, the IDEA does not specify the

precise types of assistance educational agencies must

provide to students placed in private schools by their

parents. Instead, agencies must make services avail-

able to such students “to the extent consistent with

the number and location of children with disabilities

in the State who are enrolled in private elementary

and secondary schools.” 20 U.S.C. 1413(a)(4) (A)

(Supp. TT 1991). By regulation, the Secretary of

Mducation has interpreted that provision to require

local agencies to “provide students enrolled in private

schools with a genuine opportunity for equitable par-

ticipation” in the programs the agency offers to other

students. 34 C.FLR. 76.651 (a) (1).

As noted above, respondent’s argument rests on

O41 CFR. 76.532(a) (1), which prohibits the use of

federally granted funds to pay for “[rJeligious wor-

ship, instruction, or proselytization.”” But that regu-

lation dees nething more than implement the Secre-

tary’s understanding of the requirements of the

establishment Clause, which would prohibit the direct

use of federal funds for such overtly religious pur-

poses, It does not suggest in any way that the De-

partment would prohibit respondent from offering a

facially neutral program—identical to that available

for children in’ public and nonsectarian private

schools—to parents who hed enrolled their child in

a sectarian school.” Because the service requested

here would be used to overcome James Zobrest’s hear-

ing defect, rather than for religious worship, in-

'* See Brief for the United States as Amicus Curiae, at 21

n.l1, Witters Vv. Washington Department of Services for the

Blind, 474 U.S. 481 (1986) (0.7. 1985) (explaining this

interpretation of Section 76.532(a) (1)).

struction, or proselytization, the service would be

consistent with the regulation.”

CONCLUSION

The judgment of the court of appeals should be

reversed,

Respectfully submitted.

KENNETH W. STARR

Solicitor General

STUART M. GERSON

Assistant Attorney General

JOHN G. ROBERTS, JR.

Deputy Solicitor General

RONALD J. MANN

Assistant to the Solicitor General

—

JEFFREY C. MARTIN

General Counsel

SUSAN CRAIG

Assistant General Counsel

Department of Education

NOVEMBER 1992

1” As this discussion should make clear, we do not agree

with the interpretation placed on this regulation by the Fourth

Circuit in Goodall v. Stafford County School Board, 930 F.2d

263. 369, cert. denied, 112 S. Ct. 188 (1991). We note that

the Fourth Circuit did not have the benefit of the Secretary

of Education’s views when it construed Section 76.532 in

Goodall.

APPENDIX

20 U.S.C. 1400, 1412-1414 (1988):

SUBCHAPTER I—GENERAL PROVISIONS

$1100. Congressional statements and declarations

(a) Short title

This chapter may be cited as the “Education of the

Handicapped Act”.

(b) Findings

The Congress finds that—

(1) there are more than eight million handi-

capped children in the United States today;

(2) the specia! educational needs of such chil-

(ven are not being fully met;

(5) more than half of the handicapped chil-

dren in the United States do not receive appro-

priate educational services which would enable

them to have full equality of opportunity;

(4) one-million of the handicapped children

in the United States are excluded entirely from

the public school system and will not go through

the educational process with their peers;

(5) there are many handicapped children

throughout the United States participating in

regular school programs whose handicaps pre-

vent them from having a successful educational

experience because their handicaps are unde-

tected ;

(la)

(6) because of the lack of adequate services

within the public school system, families are of-

ten forced to find services outside the public

school system, often at great distance from their

residence and at their own expense;

(7) developments in the training of teachers

and in diagnostic and instructional procedures

and methods have advanced to the point that,

given appropriate funding, State and local ed-

ucational agencies can and will provide effective

special education and related services to meet

the needs of handicapped children;

(8) State and local educational agencies have

a responsibility to provide education for all han-

dicapped children, but present financial resources

are inadequate to meet the special educational

needs of handicapped children; and

(9) it is in the national interest that the Fed-

eral Government assist State and local efforts to

provide programs to meet the educational needs

of handicapped children in order to assure equal

protection of the law.

_It is the purpose of this chapter to assure that all

handicapped children have available to them, within

the time periods specified in section 1412(2)(B) of

this title, a free appropriate public education which

emphasizes special education and related services de-

signed to meet their unique needs, to assure that the

rights of handicapped children and their parents or

guardians are protected, to assist States and locali-

ties to provide for the education of all handicapped

children, and to assess and assure the effectiveness

of efforts to educate handicapped children.

§ 1412. Eligibility requirements

in order to qualify for assistance under this sub-

chapter in any fiscal year, a State shall demonstrate

to the Secretary that the following conditions are

met:

(1) The State has in effect a policy that as-

sures ail handicapped children the right to a

free appropriate public education.

(2) The State has developed a plan pursuant

to section 1413(b) of this title in effect prior to

November 29, 1975, and submitted not later

than August 21, 1975, which will be amended

so as to comply with the provisions of this para-

graph. Each such amended plan shall set forth

in detail the policies and procedures which the

State will undertake or has undertaken in order

to assure that—

(A) there is established (i) a goal of

providing full educational opportunity to all

handicapped children, (ii) a detailed time-

table for accomplishing such a goal, and

(iii) a description of the kind and number

of facilities, personnel, and services neces-

sary throughout the State to meet such a

goal;

(B) a free appropriate public education

will be available for all handicapped chil-

dren between the ages of three and eighteen

within the State not later than September

1, 1978, and for all handicapped children

between the ages of three and twenty-oie

within the State not later than September

1, 1980, except that, with respect to handi-

capped children aged three to five and aged

eighteen to twenty-one, inclusive, the re-

quirements of this clause shall not be ap-

plied in any State if the application of such

requirements would be inconsistent with

State law or practice, or the order of any

court, respecting public education within

such age groups in the State;

who are handicapped, regardless of the se-

verity of their handicap, and who are in

need of special education and related serv-

ices are identified, located, and evaluated,

and that a practical method is developed and

implemented to determine which children

are currently receiving needed special edu-

cation and related services and which chil-

dren are not currently receiving needed spe-

cial education and related services ;

(D) policies and procedures are estab-

lished in accordance with detailed criteria

prescribed under section 1417(c) of this

title; and

(E) any amendment to the plan sub-

mitted by the State required by this section

shall be available to parents, guardians, and

other members of the general public at least

thirty days prior to the date of submission

of the amendment to the Secretary.

(3) The State has established priorities for

providing a free appropriate public education to

all handicapped children, which priorities <hal!

meet the timetables set forth in clause (B) of

paragraph (2) of this section, first with respect

to handicapped children who are not receiving

an education, and second with respect to handi-

capped children, within each disability, with the

most severe handicaps who are receiving an in-

adequate education, and has made adequate

progress in meeting the timetables set forth in

clause (B) of paragraph (2) of this section.

(4) Each local educational agency in the State

will maintain records of the individualized edu-

cation program for each handicapped child, and

such program shall be established, reviewed, and

revised as provided in section 1414(a)(5) of

this title.

(5) The State has established (A) procedural

safeguards as required by section 1415 of. this

title, (B) procedures to assure that, to the maxi-

mum extent appropriate, handicapped children,

including children in public or private institu-

tions or other care facilities, are educated with

children who are not handicapped, and that spe-

cial classes, separate schooling, or other removal!

of handicapped children from the regular educa-

tional environment occurs only when the nature

or severity of the handicap is such that educa-

tion in regular classes with the use of supple-

mentary aids and services cannot be achieved

satisfactorily, and (C) procedures to assure that

testing and evaluation materials and procedures

utilized for the purposes of evaluation and place-

ment of handicapped children will be selected

and administered so as not to be racially or cul-

turally discriminatory. Such materials or proce-

dures shall be provided and administered in the

child’s native language or mode of communica-

tion, unless it clearly is not feasible to do 80,

and no single procedure shall be the sole eri-

terion for determining an appropriate educa-

tional program for a child.

(6) The State educational agency shall be re-

sponsible for assuring that the requiremencs of

this subchapter are carried out and that all edu-

eational programs for handicapped children

within the State, including all such programs

administered by any other State or local agency,

will be under the general supervision of the per-

sons responsible for educational programs for

handicapped children in the State educational

agency and shall meet education standards of

the State educational agency. This paragraph

shall not be construed to limit the responsibility

of agencies other than educational agencies in a

State from providing or paying for some or ail

of the costs of a free appropriate public educa-

tion to be provided handicapped children in the

State. odes

(7) The State shall assure that (A) in carry-

ing out the requirements of this section proce-

dures are established for consultation with in-

dividuals involved in or concerned with the edu-

cation of handicapped children, including handi-

capped individuals and parents or guardians of

handicapped children, and (B) there are public

hearings, adequate notice of such hearings, and

an opportunity for comment available to the gen-

eral public prior to adoption of the policies, pro-

grams, and procedures required pursuant to the

provisions of this section and section 1413 of this

title.

£1113. State plans

(a) Requisite features

Any State meeting the eligibility requirements set

forth in section 1412 of this title and desiring to par-

ticipate in the program under this subchapter shall

submit to the Secretary, through its State educationa!

agency, a State plan at such time, in such manner,

and containing or accompanied by such information,

as the Secretary deems necessary. Fach such plan

shall—

(1) set forth policies and procedures designed

to assure that funds paid to the State under this

subchapter will be expended in accordance with

the provisions of this subchapter, with particular

attention given to the provisions of sections 141!

(hb), W41d(c), PIN), M122), and 1412(3)

of this title;

(2) provide that programs and procedures

will be established to assure that funds received

by the State or any of its political subdivisions

under any other Federal program, including sub-

part 2 of part D of chayter 1 of title | of the

Klementary and Secondary Edueation Act of

1965 120 U.S.C, 2791 et seq.] and section 2352

(1) of this title, under which there is specific

authority for the provision of assistance for the

education of handicapped children, will be uti-

lized by the State, or any of its political subdi-

visions, only in a manner consistent with the goal

of providing a free appropriate public education

for all hondicapped children, except that nothing

in this elauce shall be construed to limit the spe-

eifie requirements of the laws voverning such

Federal provrams ;

(3) set forth, consistent with the purposes of

this Act, a description of programs and proce-

dures for—

(A) the development and implementation

of a comprehensive system of personnel de-

velopment, which shall include—

(i) inservice training of general and

special educational instructional and

support personnel,

(ii) detailed procedures to assure

that all personnel necessary to carry

out the purposes of this Act are appro-

priately and adequately prepared and

trained, and

(iii) effective procedures for acquir-

ing and disseminating to teachers and

administrators of programs for handi-

capped children significant information

derived from educational research, dem-

onstration, and similar projects, and

(B) adopting, where appropriate, promis-

ing educational practices and materials de-

veloped through such projects;

(4) set forth policies and procedures to as-

sure—

(A) that, to the extent consistent with

the number and location of handicapped

children in the State who are enrolled in

private elementary and secondary schools,

provision is made for the participation of

such children in the program assisted or

carried out under this subchapter by provid-

ing for such children special education and

related services; and

(B) that—

(i) handicapped children in private

schools and facilities will be provided

special education and related services

(in conformance with an individualized

education program as required by this

subchapter) at no cost to their parents

or guardian, if such children are placed

in or referred to such schools or facili-

ties by the State or appropriate local

educational agency as the means of

carrying out the requirements of this

subchapter or any other applicable law

requiring the provision of special edu-

cation and related services to all handi-

capped children within such State; and

(ii) in all such instances, the State

educational agency shall determine

whether such schools and facilities meet

standards that apply to State and local

educational agencies and that children

so served have all the rights they would

have if served by such agencies;

(5) set forth policies and procedures which

assure that the State shall seek to recover any

funds made available under this subchapter for

services to any child who is determined to be

erroneously classified as eligible to be counted

under section 1411(a) or 1411(d) of this title;

(6) provide satisfactory assurance that the

control of funds provided under this subchapter,

10a

and title to property derived therefrom, shall be

in a public agency for the uses and purposes pro-

vided in this subchapter, and that a_ public

agency will administer such funds and property;

(7) provide for—

(A) making such reports in such form

and containing such information as the Sec-

retary may require to carry out the Secre-

tary’s functions under this subchapter, and

(B) keeping such records and affording

such access thereto as the Secretary may

find necessary to assure the correctness and

verification of such reports and proper dis-

bursement of Federal funds under this sub-

chapter;

(8) provide procedures to assure that final

action with respect to any application submitted

by a local educational agency or an intermediate

educational unit shall not be taken without first

affording the local educational agency or inter-

mediate educational unit involved reasonable

notice and opportunity for a hearing;

(%) provide satisfactory assurance that Fed-

eral funds made available under [sie] under this

subchapter— fey?

(A) will not be commingled with State

funds, and

(B) will be so used as to supplement and

increase the level of Federal, State, and local

funds (ineluding funds that are not under

the direct control of State or local educa-

tional agencies) expended for special educa-

tion and related services provided to handi-

lla

capped children under this subchapter and

in no case to supplant such Federal, State,

and local funds, except that, where the State

provides clear and convincing evidence that

all handicapped children have available to

them a free appropriate public education, the

Secretary may waive in part the require-

ment of this subchapter if the Secretary con-

curs with the evidence provided by the State;

(10) provide, consistent with procedures pre-

scribed pursuant to section 1417(a)(2) of this

title, satisfactory assurance that such fiscal con-

trol and fund accounting procedures will be

adopted as may be necessary to assure proper

disbursement of, and accounting for, Federal

funds paid under this subchapter to the State,

including any such funds paid by the State to

local educational agencies and intermediate edu-

cational units;

(11) provide for procedures for evaluation at

least annually of the effectiveness of programs in

meeting the educational needs of handicapped

children (including evaluation of individualized

education programs), in accordance with such

criteria that the Secretary shall prescribe pur-

suant to section 1417 of this title;

(12) provide that the State has an advisory

panel, appointed by the Governor or any other

official authorized under State law to make such

appointments, composed of individuals involved

in or concerned with the education of handi-

capped children, including handicapped individ-

uals, teachers, parents or guardians of handi-

capped children, State and local education offi-

12a l3a

out the purposes of this subchapter are appro-

priately and adequately prepared and trained,

including—

cials, and administrators of programs for handi-

capped children, which—

(A) advises the State educational agency

of unmet needs within the State in the edu-

cation of handicapped children,

(B) comments publicly on any rules or

regulations proposed for issuance by the ' ;

State regarding the education of handi- requirements which apply to the area in

capped children and the procedures for dis- | which such personnel are providing special

tribution of funds under this subchapter, | education or related services, and

and (LB) to the extent such standards are not

reporting such data and evaluations as may State applicable to a specific profession or

assist the Secretary in the performance of discipline, the steps the State is taking to

the responsibilities of the Secretary under require the retraining or hiring of personnel

section 1418 of this title: that mect appropriate professional require-

ments in the State.

(13) set forth policies and procedures for de-

veloping and implementing interagency agree-

ments between the State educational agency and Whenever a State educational agency provides free

other appropriate State and local agencies to— appropriate public education for handicapped chil-

dren, or provides direct services to such children,

such State educational agency shall include, as part

of the State plan required by subsection (a) of this

section, such additional assurances not specified in

such subsection (a) of this section as are contained

in section 1414(a) of this title, except that funds

available for the provision of such education or serv-

ices may be expended without regard to the provisions

relating to excess costs in section 1414(a) of this

title.

(A) the establishment and maintenance

of standards which are consistent with any

State approved or recognized certification,

licensing, registration, or other comparable

(b) Additional assurances

(A) define the financial responsibility of

each agency for providing handicapped chil- —.

dren and youth with free appropriate public

education, and

(B) resolve interagency disputes, includ-

ing procedures under which local educational]

agencies may initiate proceedings under the

agreement in order to secure reimbursement

from other agencies or otherwise implement

the provisions of the agreement; and

(14) set forth policies and procedures relating (c) Notice and hearing prior to disapproval of plan

to the establishment and maintenance of stand- (1) The Secretary shall approve any State plan

ards to ensure that personnel necessary to carry and any modification thereof which—

l4a

(A) is submitted by a State eligible in ac-

cordance with section 1412 of this title; and

(B) meets the requirements of subsection (a)

and subsection (b) of this section.

(2) The Secretary shall disapprove any State plan

which does not meet the requirements of paragraph

(1), but shall not finally disapprove a State plan

except after reasonable notice and opportunity for a

hearing to the State. °

(d) Participation of handicapped children in private

schools; payment of Federal amount; determina-

tions of Secretary: notice and hearing; judicial

review: jurisdiction of court of appeals, petition,

record, conclusiveness of findings, remand, re-

view by Supreme Court

(1) If, on December 2, 1983, a State educational

agency is prohibited by law from providing for the

participation in special programs of handicapped

children enrolled in private elementary and secondary

schools as required by subsection (a) (4) of this see-

tion, the Secretary shall waive such requirement, and

shall arrange for the provision of services to such

children through arrangements which shall be subject

to the requirements of subsection (a)(4) of this

section.

(2)(A) When the Secretary arranges for services

pursuant to this subsection, the Secretary, after con-

sultation with the appropriate public and private

school officials, shall pay to the provider of such

services an amount per child which may not exceed

the Federal amount provided per child under this

subchapter to all handicapped children enrolled in the

lda

State for services for the fiscal year preceding the

fiscal year for which the determination is made.

(B) Pending final resolution of any investigation

or complaint that could result in a determination

under this subsection, the Secretary may withhold

from the allocation of the affected State educational

agency the amount the Secretary estimates would be

necessary to pay the cost of such services.

this section shall continue in effect until the Secretary

determines that there will no longer be any failure or

inability on the part of the State educational agency

to meet the requirements of subsection (a) (4) of this

section.

(3)(A) The Secretary shall not take any final

action under this subsection until the State educa-

tional agency affected by such action has had an

opportunity, for at least 45 days after receiving

written notice thereof, to submit written objections

and to appear before the Secretary or the Secretary’s

designee to show cause why such action should not be

taken.

(B) If a State educational agency is dissatisfied

with the Seeretary’s final action after a proceeding

under subparagraph (A) of this paragraph, it may,

within 60 days after notice of such action, file with

the United States court of appeals for the circuit in

which such State is located a petition for review of

that action. A copy of the petition shall be forthwith

transmitted by the clerk of the court to the Secretary.

The Secretary thereupon shall file in the court the

record of the proceedings on which the Secretary

based the Secretary's action, as provided in section

2112 of title 28.

léa 17a

ported by substantial evidence, shall be conclusive: ments under this subchapter will be used for

but the court, for good cause shown, may remand the excess costs directly attributable to programs

cause to the Secretary to take further evidence, and which—

the Secretary may thereupon make new or modified

findings of fact and may modify the Secretary's pre-

vious action, and shall file in the court the record of

the further proceedings. Such new or modified find-

ings of fact shall likewise be conclusive if supported

by substantial evidence.

(D) Upon the filing of a petition under subpara-

graph (B), the court shall have jurisdiction to affirm

the action of the Secretary or to set it aside, in whole

or in part. The judgment of the court shall be sub-

ject to review by the Supreme Court of the United

States upon certiorari or certification as provided in

section 1254 of title 28.

(e) Prohibition on reduction of assistance

This chapter shall not be construed to permit a

State to reduce medical and other assistance available

or to alter eligibility under titles V and XIX of the

Social Security Act [42 U.S.C. 701 et seq., 1396 et

seq.] with respect to the provision of a free appro-

priate public education for handicapped children

within the State.

S1ttt Applicetion

(a) Requisite features

A local educational ageney or an intermediate edu-

cational unit which desires to receive payments under

section 1411 (d) of this title for any fiseal year shall

submit an application to the appropriate State educa-

tonal agency. Such application shall—

(A) provide that all children residing within

the jurisdiction of the local educational

agency or the intermediate educational unit

who are handicapped, regardless of the se-

verity of their handicap, and are in need of

special education and related services will be

identified, located, and evaluated, and pro-

vide for the inclusion of a practical method

of determining which children are currently

receiving needed special education and re-

lated services and which children are not

currently receiving such education and serv-

ices ;

(B) establish policies and procedures in

accordance with detailed criteria prescribed

under section 1417(c¢) of this title:

cational opportunities to all handicapped

children, including—

(i) procedures for the implementation

and use of the comprehensive system of

personnel development established by the

State educational agency under section

1413(a)(3) of this title:

(ii) the provision of, and the estab-

lishment of priorities for providing, a

free appropriate public education to all

handicapped children, first with respect

to handicapped children who are not re-

l&a

ceiving an education, and second with

respect to handicapped children, within

each disability, with the most severe

handicaps who are receiving an inade-

quate education ;

(iii) the participation and consulta-

tion of the parents or guardian of such

children; and

(iv) to the maximum extent practica-

ble and consistent with the provisions of

“section 1412(5)(B) of this title, the

provision of special services to enable

such children to participate in regular

educational programs;

(D) establish a detailed timetable for ac-

complishing the goal described in subclause

(C); and

(I.) provide a description of the kind and

number of facilities, personnel, and services

necessary to meet the goal described in sub-

clause (C);

(2) to provide satisfactory assurance that—

(A) the control of funds provided under

this subchapter, and title to property de-

rived from such funds, shall be in a public

agency for the uses and purposes provided

in this subchapter, and that a public agency

will administer such funds and property;

(13) Federal funds expended by local edu *

cational ayencies and intermediate educg-

tional units for programs under this sub-

chapter—

19a

(i) shall be used to pay only the ex-

cess costs directly attributable to the

education of handicapped children; and

(ii) shall be used to supplement and,

to the extent practicable, increase the

level of State and local funds expended

for the education of handicapped chil-

dren, and in no case to supplant such

State and local funds: and

the jurisdiction of the loca] educational

agency or intermediate educational unit to

provide services in program areas that,

taken as a whole, are at least comparable to

services being provided in areas of such

jurisdiction that are not receiving funds

under this subchapter;

(2) provide for—

(A) furnishing such information (which,

in the case of reports relating to perform.

ance, is in accordance with specific perfurm-

ance criteria related to program objectives ),

us may be necessary to enable the State edy-

cational agency to perform its duties under

this subchapter, including information relat-

ing to the educational achievement of handi-

capped childrer participating in programs

carried out under this subchapter: and

(B) keeping such records, and affording

such access to such records, as the State

educational agency may find nece-sary to

assure the correctness and verification of

such information furnished under subpara-

graph (A);

20a

(4) provide for making the application and all

pertinent documents related to such application

available to parents, guardians, and other mem-

bers of the general public, and provide that all

evaluations and reports required under clause

(3) shall be public information:

(5) provide assurances that the local educa-

tional agency or intermediate educational unit

will establish or revise, whichever is appropriate,

an individualized education program for each

handicapped child at the beginning of each school

year and will then review and, if appropriate,

revise, its provisions periodically, but not less

than annually;

(6) provide satisfactory assurance that poli-

cies and programs established and administered

by the local educational agency or intermediate

educational unit shal! be consistent with the pro-

visions of paragraph (1) through paragraph (7)

of section 1412 and section 1413(a) of this title;

and

(7) provide satisfactory assurance that the

local educational agency or intermediate educa-

tional unit will establish and maintain procedural

safeguards in accordance with the provisions of

sections 1412(5)(B), 1412(5)(C), and 1415 of

this title.

(hb) Approval by State educational agencies of appli-

cations submitted by local educational agencies

or intermediate educational units: notice and

hearing

(1) A State educational agency shall approve any

application submitted by a local educational agency

I, a —

2la

or an intermediate educational unit under subsection

(a) of this section if the State educational agency

determines that such application meets the require-

ments of subsection (a) of this section, except that no

such application may he approved until the State plan

submitted by such State educational agency under eh

section (a) of this section is approved by the Secre-

‘ary under section 1413(c) of this title. A State

educational ageney shall disapprove any application

submitted by a local educational agency or an inter-

mediate educational unit under subsection (a) of this

section if the State educational agency determines that

such application does not meet the requirements of

subsection (a) of this section,

(‘2'(A) Whenever a State educational agency, after

reasonable notice and opport unity for a hearine, finds

hat a local edueational agency or an intermediate

educational unit, in the administration of an applica-

lion approved by the State educational ayeney under

paragraph (1), has failed to cormply with any require-

“ent set forth in such application. the State educa-

‘ional aveney, after giving appropriate notice to the

local educational avency or the intermediate educa.

‘ional unit, shall—

(i) make no further payments to such local

educational agency or such intermediate educa-

tional unit under section 1420 of this title until

the State educational agency is satisfied that there

is no longer any failure to comply with the re-

quirement involved: or

(ii) take sueh finding into aceount jn its re-

view of any application made by such local edu-

cational agency or such intermediate educational

unit under subsection (a) of this section,

22a

(B) The provisions of the last sentence of section

1416(a) of this title shall apply to any local educa-

tional agency or any intermediate educational unit

receiving any notification from a State educational

agency under this paragraph.

| (3) In carrying out its functions under paragraph

(1). each State educational agency shall consider any

decision made pursuant to a hearing held under sec-

tion 1415 of this title which is adverse to the local

educational agency or intermediate educational unit

involved in such decision.

(¢) Consolidated applications —

(1) A State educational agency may, for purposes

of the consideration and approval of applications

under this section, require local educational agencies

ty submit a consolidated application for payments if

such State educational agency determines that any

individual application submitted by any such local

educational agency will be disapproved because such

local educational agency is ineligible to receive pay-

ments because of the application of section il

agency would be unable to establish and maintaln

programs ef sufficient size and scope to etTectively

meet the educational needs of handicapped children.

(2)(A) In any case in which a consolidated appli-

cation of local educational agencies is approved by a

State edueational agency under paragraph (I ), the

payments which such local educational agencies May

receive shall be equal to the sum of payments to

which each such local educational agency would be

entitled under section 1411(d) of this title if an

23a

individual application of any such local educational

avency had been approved.

(B) The State educational agency shall prescribe

rules and regulations with respect to consolidated ap-

plications submitted under this subsection which are

consistent with the provisions of paragraph (1)

through paragraph 7 of section 1412 and _ section

1413(a) of this title and which provide participating

local educational agencies with joint responsibilities

for implementing programs receiving payments under

this subchapter.

tional unit is required pursuant to State law to carry

out the provisions of this subchapter, the joint re-

sponsibilities given to local educational agencies under

subparagraph (B) shall not apply to the administra-

tion and disbursement of any payments received by

such intermediate educational unit. Such responsi-

bilities shall be carried out exclusively by such inter-

mediate educational unit.

(1) Special education and related services provided

directly by State educational agencies; regional

or State centers

Whenever a State educational agency determines

that a local educational agency—

(1) is unable or unwilling to establish and

maintain programs of free appropriate public

education which meet the requirements estab-

lished in subsection (a) of this section;

(2) is unable or unwilling to be consolidated

with other local educational agencies in order to

establish and maintain such programs; or

24a

3) has one or more handicapped children who

can best be served by a regional or State center

designed to meet the needs of such children;

the Stute educational agency shall use the payments

which would have been available to such local educa-

tional agency to provide special education and reiated

services directly to handicapped children residing in

the area served by such local educational agency. The

State educational agency may provide such education

and services in such manner, and at such locations

(including regional or State centers), as it considers

appropriate, except that the manner in which such

education and services are provided shall be consis-

tent with the requirements of this subchapter.

(e) Realloecation of funds

Whenever a State educational agency determines

that a local educational agency is adequately provid-

ing a free appropriate public education to all handi-

capped children residing in the area served by such

agency with State and local funds otherwise available

to such agency, the State educational agency may

reallocate funds (or such portion of those funds as

may not be required to provide such education and

services) made available to such agency, pursuant to

section 1411(d) of this title, to such other local educa-

tional agencies within the State as are not adequately

providing special education and related services to all

handicapped children residing in the areas served by

such other local educational agencies.

(f) Prog rams using State or local funds

Notwithstanding the provisions of subsection (a)

(2)(B)(ii) of this section, any local educational

agency which is required to carry out any program

25a

for the education of handicapped children pursuant

to a State law shall be entitled to receive payments

under section 1411(d) of this title for use in carry-

ing out such program, except that such payments may

not be used to reduce the level of expenditures for

such program made by such local educational agency

from State or local funds below the level of such

expenditures for the fiscal year prior to the fiscal year

for which such lécal educational agency seeks such

payments.

“ 26a

2) U.S.C. 1400, 1412-1414 (Supp. III 1991):

SUBCHAPTER I—GENERAL PROVISIONS

§ 1400. Congressional statements and declarations

(a) Short title |

This chapter may be cited as the “Individuals with

Disabilities Education Act”.

(b) Findings

The Congress finds that—

(1) there are more than eight million children

with disabilities in the United States today;

[See main edition for text of (2) |

(3) more than half of the children with dis-

abilities in the United States do not receive ap-

propriate educational services which would en-

able them to have full equality of opportunity ;

(4) one million of the children with disabili-

ties in the United States are excluded entirely

from the public school system and will not go

through the educational process with their peers;

(5) there are many children with disabilities

throughout the United States participating in

regular school programs whose disabilities pre-

vent them from having a successful educational

experience because their disabilities are unde-

tected ;

[See main edition for text of (6)]

(7) developments in the training of teachers

and in diagnostic and instructional procedures

and methods have advanced to the point that,

given appropiate funding, State and local educa-

tional agencies can and will provide effective spe-

27a

cial education and related services to meet the

needs of children with disabilities:

(8) State and local educational agencies have

a responsibility to provide education for all chil-

dren with disabilities, but present financial re-

sources are inadequate to meet the special educa-

tional needs of childyen with disabilities: and

(9) it is in the national interest that the Fed-

eral Government 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.

It is the purpose of this chapter to assure that all

children with disabilities have available to them,

within the time periods specified in section 1412(2)

(B) of this title, a free appropriate public education

which emphasizes special education and related serv-

ices 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 for the education of all chil-

dren with disabilities, and to assess and assure the

effectiveness of efforts to educate children with dis-

abilities.

$1112. Eligibility requirements

In order to qualify for assistance under this sub-

chapter in any fiscal year, a State shall demonstrate

to the Secretary that the following conditions are

met:

(1) The State has in effect a policy that as-

sures all children with disabilities the right to

a free Appropriate public education,

28a

(2) The State has developed a plan pursuant

to section 1413(b) of this title in effect prior to

November 29, 1975, and submitted not later than

August 21, 1975, which will be amended so as to

comply with the provisions of this paragraph.

Each such amended plan shall set forth in detail

the policies and procedures which the State will

undertake or has undertaken in order to assure

that—

(A) there is established (i) a goal of

providing full educational opportunity to all

children with disabilities, (ii) a detailed

timetable for accomplishing such a goal, and

(iii) a description of the kind and number

of facilities, personnel, and services neces-

sary throughout the State to meet such a

goal;

(B) a free appropriate public education

will be available for all children with dis-

abilities between the ages of three and eight-

een within the State not later than Septem-

ber 1, 1978, and for all children with disabil-

ities between the ages of three and twenty-

one within the State not later than Septem-

ber 1, 1980, except that, with respect to chil-

dren with disabilities aged three to five and

aged eighteen to twenty-one inclusive, the

requirements of this clause shall not be ap-

plied in any State if the application of such

requirements would be inconsistent with

State law or practice, or the order of any

court, respecting public education within

such age groups in the State;

29a

are disabled, regardless of the severity of

their disability, and who are in need of spe-

cial education and related services are iden-

tified, located, and evaluated, and that a

practical method is developed and imple-

mented to determine which children are cur-

rently receiving needed special education

and related services and which children are

not currently receiving needed special edu-

cation and related services:

[See main edition for text of (D) and (E)]

(3) The State has established priorities for

providing a free appropriate public education

ty all children with disabiilties, which priorities

shall meet the timetables set forth in clause (B)

of paragraph (2) of this section, first with re-

spect to children with disabilities who are not

receiving an education, and second with respect

to children with disabilities, within each disabil-

ity category, with the most severe disabilities

who are receiving an inadequate education, and

has made adequate progress in meeting the time-

tables set forth in clause (B) of paragraph (2)

of this section. ;

(4) Each local educational agency in the State

will maintain records of the individualized edu-

cation program for each child with a disability,

and such program shall be established, reviewed

and revised as provided in section 1414(a) (5 )

of this title.

(5) The State has established (A) procedural

safeguards as required by section 1415 of this

title, (B) procedures to assure that, to the maxi-

mum extent appropriate, children with disabili-

30a

ties, including children in public or private in-

stitutions or other care facilities, are educated

with children who are not disabled, and that spe-

cial classes, separate schooling, or other removal

of children with disabilities from the regular

educational environment occurs only when the

nature or severity of the disability is such that

education in regular classes with the use of sup-

plementary aids and services cannot be achieved

satisfactorily, and (C) procedures to assure that

testing and evaluation materials and procedures

utilized for the purposes of evaluation and place-

ment of children with disabilities will be selected

and administered so as not to be racially or cul-

tually discriminatory. Such materials or pro-

cedures shall be provided and administered in the

child’s native language or mode of communica-

tion, unless it clearly is not feasible to do so, and

no single procedure shall be the sole criterion for

determining an appropriate educational program

for a child,

(6) The State educational agency shall be re-

sponsible for assuring that the requirements of

this subchapter are carried out and that all edu-

cational programs for children with disabilities

Within the State, including all such programs

administered by any other State or local agency,

will be under the general supervision of the per-

sons responsible for educational programs for

children with disabilities in the State educational

avency and shall meet education standards of the

State educational agency. This paragraph shall

not be construed to limit the responsibility of

avencies other than educational agencies in a

State from providing or paying for some or all

of the costs of a free appropriate public educa-

3la

tion to be provided children with disabilities in

the State.

(7) The State shall assure that (A) in carry-

ing out the requirements of this section proce-

dures are established for consultation with in-

dividuals involved in or concerned with the edu-

cation of children with disabilities, including in-

dividuals with disabilities and parents or guard-

ans of children with disabilities, and (B) there

are public hearings, adequate notice of such hear-

ings, and an opportunity for comment available

to the general public prior to adoption of the

policies, programs, and procedures required pur-

suant to the provisions of this section and section

1415 of this title.

S 11413. State plans

(a) Requisite features

Any State meeting the eligibility requirements set

forth in section 1412 of this title and desiring to par-

licipate in the program under this subchapter shall

submit to the Secretary, through its State educational

agency, a State plan at such time, in such manner,

and containing or accompanied by such information,

as the Secretary deems necessary. Each such plan

shall—

| See main edition for tewst of (1 )}

(2) provide that programs and procedures

will be established to assure that funds received

by the State or any of its political subdivisions

under any other Federal program, including sub-

part 2 of part D of chapter 1 of title I of the

elementary and Secondary Education Act. of

1965 [20 U.S.C. 2791 et seq.], under which there

is specitic authority for the provision of ussist-

ance for the education of children with disabili-

ties, will be utilized by the State, or any of its

political subdivisions, only in a manner consist-

ent with the goal of providing a free appropriate

public education for all children with disabilities,

except that nothing in this clause shall be con-

strued to limit the specific requirements of the

laws governing such Federal programs ,;

(3) describe, consistent with the purposes of

this chapter and with the comprehensive system

of personnel development described in section

1476(b) (8) of this title, a comprehensive sys-

tem of personnel development that shall include—

(A) a description of the procedures and

activities the State will undertake to ensure

an adequate supply of qualified special erlu-

cation and related services personnel, includ-

ing—

(i) the development and maintenance

of a system for determining, on an an-

nua! basis—

(1) the number and type of per-

sonnel, including leadership per-

sonnel, that are employed in the

provision of special education and

related services, by area of special-

ization, including the number of

such personnel who are employed

en an emergency, provisonal, or

other basis, who do not hold appro-

priate State certification or licen-

sure; and

33a

(II) the number and type of

personnel, including leadership per-

sonnel, needed, and a projection of

the numbers of such personnel that

will be needed in five years, based

on projections of individuals to be

served, retirement and other leav-

ing of personnel from the field, and

other relevant factors; .

— (ii) the development and mainte-

nance of a system for determining, on

an annual basis, the institutions of

higher education within the State that

are preparing special education and re-

lated services personnel, including lead-

ership personnel, by area of specializa-

tion, including—

(1) the numbers of students en-

rolled in such programs, and

(II) the number who graduated

with certification or licensure, or

with credentials to qualify for cer-

tification or licensure, during the

past year; and

(iii) the development, updating, and

implementation of a plan that—

(I) will address current and

projected special education and re-

lated services personnel needs, in-

cluding the need for leadership per-

sonnel; and

(II) coordinates and facilitates

efforts among State and local edu-

‘ational agencies, institutions of

34a

higher education, and professional

associations to recruit, prepare,

and retain qualified personnel, in-

cluding personnel from minority

backgrounds, and personnel with

disabilities; and

(B) a description of the procedures and

activities the State will undertake to ensure

that all personnel necessary to carry out this

subchapter are appropriately and adequately

prepared, including—

(i) a system for the continuing edu-

cation of regular and special education

and related services personnel ;

(ii) procedures for acquiring and

disseminating to teachers, administra-

tors, and related services personnel sig-

nificant knowledge derived from educa-

tion research and other sources; and

35a

for such children special education and re-

lated services; and

(B) that—

(i) children with disabilities in pri-

vate schools and facilities will be pro-

vided special education and related

services (in conformance with ar indi-

vidualized education program as_re-

quired by this subchapter) at no cost to

their parents or guardian, if such chil-

dren are placed in or referred to such

schools or facilities by the State or ap-

propriate local educational agency as

the means of carrying out the require-

ments of this subchapter or any other

applicable law requiring the provision

of special education and related serv-

ices to all children with disabilities

within such State; and

(iii) procedures for adopting, where

appropriate, promising practices, mate-

rials, and technology.’ (9) provide satisfactory assurance that Fed-

eral funds made available under this sub-

chapter—

[See main edition for text of (ii), (5) to (8)]

(4) set forth policies and procedures to as-

sure—

(A) that, to the extent consistent with

the number and location of children with dis-

abilities in the State who are enrolled in

private elementary and secondary schools,

provision is made for the participation of

such children in the program assisted or car-

ried out under this subchapter by providing

' So in original. The period probably should be a semicolon.

[See main edition for text of (A)]

(B) will be so used as to supplement and

increase the level of Federal, State, and

local funds (including funds that are not

under the direct control of State or local

educational agencies) expended for special

education and related services provided to

children with disabilities under this sub-

chapter and in no case to supplant such Fed-

36a

eral, State, and local funds, except that,

where the State provides clear and convinc-

ing evidence that all children with disabili-

ties have available to them a free appropri-

ate public education, the Secretary may

waive in part the requirement of this sub-

paragraph if the Secretary concurs with the

evidence provided by the State;

[See main edition for text of (10) ]

(11) provide for procedures for evaluation

at least annually of the effectiveness of programs

in meeting the educational needs of children with

disabilities (including evalution of individualized

education programs), in accordance with such

criteria that the Secretary shall prescribe pur-

suant to section 1417 of this title;

(12) provide that the State has an advisory

panel, appointed by the Governor or any other

official authorized under State law to make such

appointments, composed of individuals involved

in or concerned with the education of children

with disabilities, including individuals with dis-

abilities, teachers, parents or guardians of chil-

dren with disabilities, State and local education

officials, and administrators of programs for

children with disabilities, which—

(A) advises the State educational agency

of unmet needs within the State in the edu-

cation of children with disabilities,

(B) comments publicly on any rules or

regulations proposed for issuance by the

State regarding the education of children

with disabilities and the procedures for dis-

37a

tribution of funds under this subchapter,

and

[See main edition for text of (C)]

(13) set forth policies and procedures for de-

veloping and implementing interagency agree-

ments between the State educational agency and

other appropriate State and local agencies to—

(A) define the financial responsibility of

each agency for providing children and

youth with disabilities with free appropri-

ate public education, and

(B) resolve interagency disputes, includ-

ing procedures under which local educa-

tional agencies may initiate proceedings

under the agreement in order to secure re-

imbursement from other agencies or other-

wise implement the provisions of the agree-

ment;

(14) set forth policies and procedures relat-

ing to the establishment and maintenance of

standards to ensure that personnel necessary to

carry out the purposes of this subchapter are

appropriately and adequately prepared and

trained, including—

[See main edition for text of (A)]

(B) to the extent such standards are not

based on the highest requirements in the

State applicable to a specific profession or

discipline, the steps the State is taking to

require the retraining or hiring of person-

nel that meet appropriate professional re-

quirements in the State; and

38a

(15) set forth policies and procedures relat-

ing to the smooth transition for those individuals

participating in the early intervention program

assisted under subchapter VIII of chis chapter

who will participate in preschool programs as-

sisted under this subchapter, including a method

of ensuring that when a child turns age three an

individualized education program, or, if consist-

ent with sections 1414(a)(5) and 1477(d) of

this title, an individualized family service plan,

has been developed and is being implemented by

such child’s third birthday.

(hb) Additional assurances

Whenever a State educational agency provides free

appropriate public education for children with dis-

ahilities, or provides direct services to such children,

such State educational agency shall include, as part

of the State plan required by subsection (a) of this

section, such additional assurances not specified in

such subsection (a) of this section as are contained

in section 1414(a) of this title, except that funds

available for the provision of such education or serv-

ices may be expended without regard to the provisions

relating to excess costs in section 1414(a) of this

title.

[See main edition for tert of (c)]

(d) Participation of children with disabilities in pri-

va.e schools; payment of Federal amount; deter-

minations of Secretary: notice and hearing; ju-

dicial review: jurisdiction of court of appeals,

petition, record, conclusiveness of findings, re-

mand, review by Supreme Court

(1) If, on December 2, 1983, a State educational

agency is prohibited by law from providing for the

39a

participation in special programs of children with

disabilities enrolled in private elementary and_sec-

ondary schools as required by subsection (a) (4) of

this section, the Secretary shall waive such require-

ment, and shall arrange for the provision of services

to such children through arrangements which shall be

subject to the requirements of subsection (a) (4) of

this section.

(2)(A) When the Secretary arranges for services

pursuant to this subsection, the Secretary, after con-

sultation with the appropriate public and_ private

school officials, shall pay to the provider of such

services an amount per child which may “not exceed

the Federal amount provided per child under this sub-

chapter to all children with disabilities enrolled in the

State for services for the fiscal year preceding the

fiscal year for which the determinaton is made.

[See matn edition for text of (By and (C), (3))]

(ce) Prohibition on reduction of assistance

This chapter shall not be construed to permit a

State to reduce medical! and other assistance available

or to alter eligibility under titles V and XIX of the

Social Security Act [42 U.S.C. 701 et seq., 1396 et

seq.] with respect to the provision of a free appro-

priate public education for children with disabilities

within the State.

“1414. Application

(a) Requisite features

A local educational agency or an intermediate edu-

cational unit which desires to receive payments under

section 1411(d) of this title for any fiscal year shall

40a

submit an application to the appropriate State educa-

tional agency. Such application shall—

(1) provide satisfactory assurance that pay-

ments under this subchapter will be used for

excess costs directly attributable to programs

which—

(A) provide that all children’ residing

within the jurisdiction of the local educa-

tional agency or the intermediate educa-

tional unit who are disabled, regardless of

the severity of their disability, and are in

need of special education and related serv-

ices will be identified, located, and evaluated,

and provide for the inclusion of a practical

method of determining which children are

currently receiving needed special education

and related services and which children are

not currently receiving such education and

services;

[See main edition for text of (B)|

cational opportunities to all children with

disabilities, including—

[See main edition for text of (i) ]

(ii) the provision of, and the estab-

lishment of priorities for providing, a

free appropriate public education to all

children with disabilities, first with re-

spect to children with disabilities who

are not receiving an education, and sec-

ond with respect to children with dis-

abilities, within each disability, with

4la

the most severe disabilities who are re-

celving an inadequate education ;

[See main edition for tert of (iti) and (iv)

(D) and (E)]

(2) provide satisfactory assurance that—

[See main edition for text of (A)}

(B) Federal funds expended by local edu-

cational agencies and intermediate educa-

tional units for programs under this sub-

chapter—

(i) shall be used to pay only the ex-

cess costs directly attributable to the

education of children with disabilities:

and

(ii) shall be used to supplement and,

to the extent practicable, increase the

level of State and local funds expended

for the education of children with dis-

abilities, and in no case to supplant such

State and local funds: and

[See main edition for text of (C)]

(3) provide for—

(A) furnishing such information (which,

in the case of reports relating to perform-

ance, is in accordance with specific perform-

ance criteria related to program objectives ),

us may be necessary to enable the State

educational agency to perform its duties

under this subchapter, including informa-

tion relating to the educational achievement

42a

of children with disabilities participating in

programs carried out under this subchapter;

and

[See main edition for text of (B), (4)]

(5) provide assurances that the local educa-

tional agency or intermediate educational unit

will establish or revise, whichever is appropriate,

an individualized education program for each

child with a disability (or, if consistent with

State policy and at the discretion of the local edu-

cational agency or intermediate educational

unit, and with the concurrence of the parents or

guardian, an individualized family service plan

described in section 1477(d) of this title for each

child with a disability aged 3 to 5, inclusive) at

the beginning of each school year and will then

review and, if appropriate, revise, its provisions

periodically, but not less than annually;

[See main edition for text of (6) and (7); (b)]

(1) A State educational agency may, for purposes

of the consideration and approval of applications

under this section, require local educational agencies

to submit a consolidated application for payments if

such State educational agency determines that any

individual application submitted by any such local

educational agency will be disapproved because such

local educational agency is ineligible to receive pay-

ments because of the application of section 1411(c)

(1)(A)(i) of this title or such local educational

egency would be unable to establish and maintain

programs of sufficient size and scope to effectively

48a

meet the educational needs of children with dis-

abilities,

[See main edition for text of (2)]

(d) Special education and related services provided

directly by State educational agencies; regional

or State centers

Whenever a State educational agency determines

that a local educational agency—

[See main edition for text of (1) and (2)]

(3) has one or more children with disabilities

who can best be served by a regional or State

— designed to meet the needs of such chil-

ren;

the State educational agency shall use the payments

which would have been available to such local educa-

tional agency to provide special education and related

services directly to children with disabilities residing

in the area served by such local educational agency.

The State educational agency may provide such edu-

cation and services in such manner, and at such loca-

tions (including regional or State centers), as it con-

siders appropriate, except that the manner in which

such education and services are provided shall be con-

sistent with the requirements of this subchapter.

(e) Reallocation of funds

Whenever a State educational agency determines

that a local educational agency is adequately provid-

ing a free appropriate public education to all children

with disabilities residing in the area served by such

agency with State and local funds otherwise available

44a

to such agency, the State educational agency may re-

allocate funds (or such portion of those funds as may

not be required to provide such education and serv-

ices) made available to such agency, pursuant to

section 1411(d) of this title, to such other local edu-

cational agencies within the State as are not ade-

quately providing special education and related serv-

ives to all children with disabilities residing in the

areas served by such other local educational agencies.

(f) Programs using State or local funds

Notwithstanding the provisions of subsection (a)

(2)(B) (ii) of this section, any local educational

agency which is required to carry out any program

for the education of children with disabilities pursu-

ant to a State law shall he entitled to receive pay-

ments under section 1411(d) of this title for use in

carrying out such program, except that such pay-

mets may not be used to reduce the level of expendi-

tures for such program made by such local educa-

tional agency from State or local funds below the

level of such expenditures for the fiseal year prior to

the fiscal year for which such local educational agency

seeks such payments.

45a

34 C.F.R. 76.1, .532, .650-.662, and 300.400-452:

Subpart A—General

REGULATION THAT APPLY TO

STATE-ADMINISTERED PROGRAMS

° 76.1 Programs to which Part 76 applies.

(a) The regulations in Part 76 apply to each State-

administered program of the Department.

(b) If a State formula grant program does not

have implementing regulations, the Secretary imple-

ments the program under the authorizing statute

and. to the extent consistent with the authorizing

statute, under the General Educatien Provisions Act

and the regulations in this part. For the purposes

of this part, the term “State formula grant program”

means 9 pregram whose authorizing statute or im-

plementing regulations provide a formula for allo-

cating program funds among eligible States.

(2) No State or subgrantee may use its grant or

subgrant to pay for any of the following:

(1) Religious worship, instruction, or proselytiza-

tion.

(2) Equipment or supplies to be used for any of the

activities specified in paragraph (a)(1) of this see-

tion.

(3) Construction, remodeling, repair, operation, or

maintenance of any facility or part of a facility to be

used for any of the activities specified in paragraph

(a)(1) of this section.

46a

(4) An activity of a school or department of di-

vinity.

(b) As used in this section, “school or department

of divinity” means an institution or a component of

an institution whose program is specifically for the

education of students to:

(1) Prepare them to enter into a religious vocation;

(2) Prepare them to teach theological subjects.

PARTICIPATION OF STUDENTS ENROLLED

IN PRIVATE SCHOOLS

$ 76.650 Private schools; purpose of SS 76.651-76.662.

(a) Under some programs, the authorizing statute

requires that a State and its suberantees provide for

participation by students envol'ed in private schools.

Sections 76.651-76-662 apply to those programs and

provide rules for that participation. These sections

do not affect the authority of the State or a sub-

erantee io enter into a contract with a private party.

(b) If any other rules for participation of students

enrolled in private schools apply under a particular

program, they are in the authorizing statute or im-

plementing regulations for that program.

(Authority: 20 U.S.C. 122le-3(a)(1)).

~ NoTeE: Some program statutes authorize the Sec-

retary—under certain circumstances—to provide bene-

fits directly to private school students. These “by-

pass” provisions—where they apply—are implemented

in the individual program regulations.

47a

$ 76.651 Responsibility of a State and a subgrantee.

(a)(1) A subgrantee shall provide students en-

rolled in private schools with a genuine opportunity

for equitable participation in accordance with the re-

quirements in $$ 76.652-76.662 and in the authorizing

statute and implementing regulations for a program.

(2) The subgrantee shall provide that opportunity

to participate in a manner that is consistent with the

number of eligible private school students and their

needs,

(3) The subgrantee shall maintain continuing ad-

ministrative direction and control over funds and

property that benefit students enrolled in private

schools.

(b)(1) A State shall ensure that each subgrantee

complies with the requirements in $$ 76.651-76.662.

(2) If a State carries out a project directly, it shall

comply with these requirements as if it were a sub-

vrantee.

(Authority: 20 U.S.C. 1221e-3(a)(1))

$ 76.652 Consultation with representatives of private

school students.

(a) An applicant for a subgrant shall consult with

uppropriate representatives of students enrolled in

private schools during all phases of the development

and design of the project covered by the application,

including consideration of :

(1) Which children will receive benefits under the

project:

(2) How the children’s needs will be identified:

(3) What benefits will be provided;

(4) How the benefits will be provided; and

48a

(5) How the project will be evaluated.

(b) A subgrantee shall consult with appropriate

representatives of students enrolled in private schools

before the subgrantee makes any decision that affects

the opportunities of those students to participate in

the project.

appropriate representatives a genuine opportunity to

express their views regarding each matter subject to

the consultation requirements in this section.

(Authority: 20 U.S.C. 1221e-3(a) (1))

§ 76.653 Needs, number of students, and types of

services.

A subgrantee shall determine the following matters

on a basis comparable to that used by the subgrantee

in providing for participating of public school stu-

dents ;

(a) The needs of students enrolled in private

schools,

(b) The number of those students who will partici-

pate in a project.

under the program to those students.

(Authority: 20 U.S.C. 122le-3(a)1))

§$ 76.651 Benefits for private school students.

(a) Comparable bevefits. The program benefits that

a subvrantee provides for students enrolled in private

schools must be comparable in quality, scope, and

opportunity for participation to the program benefits

that the subgrantee provides for students enrolled in

publie schools.

49a

(b) Same Benefits. If a subgrantee uses funds un-

der a program for public school students in a par-

ticular attendance area, or grade or age level, the

subgrantee shall insure equitable opportunities for

participatis by students enrolled in private schools

who:

(1) Have the same needs as the public school stu-

dents to be served; and

(2) Are in that group, attendance area, or age or

vrade level.

rolled in private schools are different from the needs

of students enrolled in public schools, a subgrantee

shall provide program benefits for the private school

students that are different from the benefits the sub-

grantee provides for the public school students.

(Authority: 20 U.S.C. 1221e-3(a)(1))

$ 76.655 Level of expenditures for students enrolled

in private schools.

(a) Subject to paragraph (b) of this section, a

subgrantee shall spend the same average amount of

program funds on:

(1) A student enrolled in a private school who re-

ceives benefits under the program; and

(2) A student enrolled in a public school who re-

ceives benefits under the program.

(b) The subgrantee shall spend a different average

amount on program benefits for students enrolled in

private schools if the average cost of meeting the

needs of those students is different from the average

cost of meeting the needs of students enrolled in pub-

lic schools.

(Authority: 20 U.S.C. 1221e-3(a) (1))

50a

$ 76.656 Information in an application for a sub-

grant.

An applicant for a subgrant shall include the fol-

lowing information in its application:

(a) A description of how the applicant will meet

the Federal requirements for participation of students

enrolled in private schools.

(b) The number of students enrolled in private

schools who have been identified as eligible to benefits

under the program.

schools who will receive benefits under the program.

(1) The basis the applicant used to select the stu-

dents.

(e) The manner and extent to which the applicant

complied with § 76.652 (consultation ).

(f) The places and times that the students will

receive benefits under the program.

(:) The differences, if any, between the program

benefits the applicant will provide to public and pri-

vate school students, and the reasons for the dif-

ferences.

(Authority: 20 U.S.C. 1221e-3(a) (1) )

$ 76.657 Separate classes prohibited.

A subyrantee may not use program funds for classes

that are organized separately on the basis of school

enrollment or religion of the students if:

(a) The classes are at the same site; and

(b) The classes include students enrolled in public

schools and students enrolled in private schools.

(Authority: 20 U.S.C. 1221le-3(a)(1))

dla

§ 76.658 Funds not to benefit a private school.

(a) A subgrantee may not use program funds to

finance the existing level of instruction in a private

schoo! or to otherwise benefit the private school.

(b) The subgrantee shall use program funds to

meet the specific needs of students enrolled in private

schools, rather than:

(1) The needs of a private school; or

(2) The general needs of the students enrolled in

a private school.

(Authority: 20 U.S.C. 1221e-3(a) (1) )

$ 76.659 Use of public school personnel.

A subgrantee may use program funds to make pub-

lie personnel available in other than public facilities:

(a) To the extent necessary to provide equitable

program benefits designed for students enrolled in a

private school; and

(b) If those benefits are not normally provided by

the private school.

(Authority: 20 U.S.C. 1221e-3(a) (1) )

$ 76.660 Use of private school personnel.

A subgrantee may use program funds to pay for

the services of an employee of a private school if:

. (a) The employee performs the services outside of

his or her regular hours of duty; and -

(b) The employee performs the services under pub-

lic supervision and control.

(Authority: 20 U.S.C. 1221e-3(a) (1) )

52a

$ 76.661 Equipment and supplies.

(a) Under some program statutes, a public agency

must keep title to and exercise continuing administra-

tive control of all equipment and supplies that the

subgrantee acquires with program funds. This public

agency is usually the subgrantee.

(b) The subgrantee may place equipment and sup-

plies in a private school for the period of time needed

for the project.

or supplies placed in a private school:

(1) Are used only for the purposes of the project;

and

(2) Can be removed from the private school with-

out remodeling the private school facilities.

(d) The subgrantee shall remove equipment or sup-

plies from a private school if:

(1) The equipment or supplies are no longer needed

for the purposes of the project; or

(2) Removal is necessary to avoid use of the equip-

ment or supplies for other than project purposes.

(Authority: 20 U.S.C. 1221le-3(a)(1))

§ 76.662 Construction.

A subgrantee shall insure that program funds are

not used for the construction of private school facili-

ties.

53a

Subpart D—Private Schools

HANDICAPPED CHILDREN IN PRIVATE SCHOOLS

PLACED OR REFERRED BY PUBLIC AGENCIES

$ 300.400 Applicability of $§ 300.401-300.402.

Sections 300.401-300.402 apply only to handicapped

children who are or have been placed in or referred

to a private school or facility by a public agency as a

means of providing special education and related

services.

(Authority: 20 U.S.C. 1413(a) (4) (B))

§ 300.101 Responsibility of State educational agency.

Each SEA shall ensure that a handicapped child

who is placed in or referred to a private school or

facility by a public agency:

(a) Is provided special education and related serv-

ices—

(1) In conformance with an IEP which meets the

requirements of $$ 300.340-300.350;

(2) At no cost to the parents; and

(3) At a school or facility that meets the stan-

dards that apply to the SEA and LEAs (including

the requirements in this part); and

(b) Has all of the rights of.a child with a disability

who is served by a public agency.

(Authority: 20 U.S.C. 1413(a)(4)(B))

$ 300.402 Implementation by State educational agency.

In implementing § 300.401, the SEA shall—

54a

(a) Monitor compliance through precedures such as

written reports, onsite visits, and parent question-

naires:

(hb) Disseminate copies of applicable standards to

each private school and facility to which a_ public

ageney has referred or placed a handicapped child;

anid

and facilities to participate in the development and

revision of State standards that apply to them.

(Authority: 20 U.S.C. 1413(a)(4)(B))

$ 300.103 Placement of children by parents.

(a) If a handicapped child has FAPE available

and the parents choose to place the child in a private

school or facility, the public agency is not required

by this part to pay for the child’s education at the

private school or facility. However, the public agency

shall make services available to tie child as provided

under $$ 300,450-500,452.

(hb) Disagreements between a parent and a public

agency regarding the availability of a program ap-

propriate for the child, and the question of financial

responsibility, are subject to the due process proce-

dures under $$ 300,500-300.515,

(Authority: 20 U.S.C. 1412(2)(B); 1415)

CHILDREN WITH DISABILITIES ENROLLED BY THEIP

PARENTS IN PRVATE SCHOOLS

< 300.150 Definition of “private school children with

disabilities.”

As used in this part, “private school children with

disabilities” means children with disabilities enrolled

by their parents in private schools or facilities

other than children with disabilities covered under

$§ 300.400-300, 102,

(Authority: 20 U.S.C. 1413(a)(4)(A))

S 00.151 State educational agency responsibility.

The SEA shall ensure that—

(a) To the extent consistent with their number

and location in the State, provision is made for the

participation ef private school children with disabili-

ties in the program assisted or carried out under this

part by providing them with special education and

related services; and

(b) The requirements in 34 CFR 76.651-76.662

are met.

(Authority: 20 U.S.C. 1413(a)(4)(A))

. 300.152 Local educational agency responsibility.

(a) Each LEA shall »rovide special education and

related services designed to meet the needs of private

school children with disabilities residing in the juris-

diction of the agency.

+ SOVERNMENT FH WT iwe OFF cE eae 342479

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.