Opposition Brief — Doe ex rel. Doe v. Board of Education

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No. 97-599

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1997

JOHN DOE, by and through his parents and next

friends, JANE DOE and JOE DOE,

and the class of all others similarly situated,

Petitioners,

BOARD OF EDUCATION OF OAK PARK &

RIVER FOREST HIGH SCHOOL DISTRICT 200, et al.,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Seventh Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

JOHN A. RELIAS

Counsel of Record

JAMES J. ZUEHL

ERIKA DILLON

FRANCZEK SULLIVAN P.C.

300 South Wacker Drive

Suite 3400

Chicago, Illinois 60606

(312) 986-0300

Attorneys for Respondents

Midwest Law Printing Co., Chicago 60610, (312) 321-0220 q

QUESTIONS PRESENTED FOR REVIEW

1. Whether the Individuals with Disabilities Educa-

tion Act (“IDEA”), prior to its amendment on June 4,

1997, permitted a school district during an expulsion to

discontinue educational services to a special education

student whose misconduct was unrelated to his dis-

ability.

2. Whether the 1997 Amendments to the IDEA, which

were enacted after the Seventh Circuit entered its judg-

ment below, are prospective only and therefore inapplica-

ble to this case.

3. Whether, prior to the 1997 Amendments, a school

district that expelled a student for misconduct unrelated

to his disability could lawfully discontinue educational

services while due process proceedings were pending.

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED FOR REVIEW ....... i

TAREE GP GRE ob xo ck ew si cseeancceven ii

TABLE OF AUTHORITIES .................. iv

OPPOSITION TO WRIT OF CERTIORARI ....... 1 |

STATEMENT OF THE CASE ................. 1

DO, eye rsa nee 5

I ee ree 5

Il. The Seventh Circuit's Ruling That The

School District Was Permitted Under The

IDEA, As It Then Existed, To Discontinue

Educational Services To Students Expelled

For Reasons Unrelated To Their Disabili-

ties Neither Raises An Important Recurring

Legal Question Nor Conflicts With Deci-

sions By This Court Or Other Courts Of

RE «0 6. 00624404 eee 6

Ill. The 1997 IDEA Amendments Are Not

Retroactive And Therefore Cannot Be Ap-

SOG EO Tae GORD 4k 64 Koa eee es 9

IV. The Seventh Circuit Correctly Concluded

That The School District’s Actions Com-

plied With The IDEA As It Then Existed .. 13

lil

A. Prior To June 1997, The IDEA Did Not

Require Continued Provision Of Servic-

es Or A Stay Of Placement To Students

Expelled For Misconduct Unrelated To

Senter Dismbilities ... 2.2.2... eens 13

B. The Seventh Circuit Correctly Conclud-

ed That The School District Complied

With The Procedural Requirements Of

The IDEA As It Then Existed ........ 18

Sg es a aye o's b % 48ND 06s 21

TABLE OF AUTHORITIES

CASES:

Bath Iron Works Corp. v. Director, Office

of Workers’ Compensation Program,

gtk Me Lk: eee

Batterton v. Francis, 432 U.S. 416 (1977) ...

Board of Education of the City of Peoria

v. Illinois State Board of Education,

531 F. Supp. 148 (N.D. Ill. 1982) ......

Board of Education v. Rowley,

ey ot |

Bradley v. School Board of Richmond,

et al., 416 U.S. 696 (1974) ...........

Cypress-Fairbanks Independent School

District v. Michael F., 118 F.3d 245

Coe | eee ee ree

DeTomaso v. McGinnis, 970 F.2d 211

eo ere rere

Doe v. Maher, 793 F.2d 1470

(9th Cir. 1986), aff'd as modified,

Honig v. Doe, 484 U.S. 305 (1988) .....

E.E.O.C. v. Metropolitan Educational

Enterprises, Inc., 60 F.3d 1225

eo | | errr toe ee eT eee

Gregory K. v. Longview School District,

811 F.2d 1307 (9th Cir. 1987) .........

Heather S. v. State of Wisconsin,

No. 96-3340, 1997 U.S. App. LEXIS

24927 (7th Cir. Sept. 16, 1997) ........

PAGE(S)

Honig v. Doe, 484 U.S. 305 (1988) ......... passim

Kaelin v. Grubbs, 682 F.2d 595

UN ian oe 6 a 9

Landgraf v. UST Film Products,

ORS Si OE CONE, bocce ne Ke dob ckeeanen 11

Miller v. Florida, 482 U.S. 423 (1987) ........... 10

Mills v. Bd. of Educ. of District of Columbia,

348 F. Supp. 866 (D.D.C. 1972) ............. 7

New Haven Inclusion Cases,

Be MP GE ED oo vo oc ecw ks wees een 6

Production Tool v. Employment and

Training Administration, 688 F.2d

Bee re ee: a 4 a hh oe cee 17

Public Employees Retirement System

of Ohio v. Betts, 492 U.S. 158 (1989) ........ 18

S-1 v. Turlington, 635 F.2d 342 (5th Cir.),

cert den., 454 U.S. 1030 (1981) ............ 8,9

United States v. Armstrong, ___ U.S. ___,

Si ae DU CR & ss % 6s eos ess hen cene dt 6

United States v. Johnson, 268 U.S. 220 (1925) .... 18

Virginia v. Riley, 106 F.3d 559

ee Ee ew 8 x's a eee ew ae 8, 14, 15, 17

Zobrest v. Catalina Foothills School District,

RE Be re rrr rr ae 7,8

STATUTES:

U.S. Const. art. I, § 9, cl. 3 and §10,cl.1 ....... 10

Individuals with Disabilities Education Act,

20 UBC. § 20GC CF COG. oi i cis vnc ese passim

1997 Amendments to Individuals with

Disabilities Education Act § 612(a)(1) ......... 4

Gun-Free Schools Act of 1994, 20 U.S.C. § 8921 ... 16

Improving America’s Schools Act of 1994,

Pub. L. No. 103-382, 108 Stat. 3518 ......... 16

Pub. L. 105-17, Title I, Sec. 612, 111 Stat. 49 ..... 10

Pn. We. SO. ke hh eee eee eee eee 6

OPPOSITION TO WRIT OF CERTIORARI

Respondents respectfully request that this Court deny

the Petition for Writ of Certiorari to review the judgment

of the United States Court of Appeals for the Seventh

Circuit entered in this case on May 27, 1997. The Sev-

enth Circuit’s opinion is reported at 115 F.3d 1273 (7th

Cir. 1997) and is included in the appendix to the Peti-

tion.

STATEMENT OF THE CASE

This case arose from a September 1994 decision by the

Board of Education of Oak Park and River Forest High

School 200 (“School District”) to expel freshman John

Doe (“Doe”) for the remainder of the fall semester after

he was found in possession of a pipe and marijuana

while attending a school dance.

Although Doe was classified as learning disabled, by

the time he enrolled as a high school freshman, he had

been mainstreamed in all academic areas. At his moth-

er’s request and contrary to the recommendation of his

elementary school staff, during his freshman year, Doe

received limited special education services and undertook

a normal academic load.

At the beginning of his freshman year, Doe was in-

structed as to the School District’s regulations, including

its prohibition of illegal substances on school grounds.

Specifically, he received a copy of the regulations and he

learned about the rule through his involvement on the

school soccer team. In addition, on September 9, 1994,

the rule was explained in Doe’s homeroom class. Despite

these warnings, later that same day (September 9), Doe

was found in possession of a pipe and a small amount of

marijuana at a school dance. He was suspended for ten

days pending consideration of expulsion in accordance

with the School District’s Code of Conduct.

On September 19, 1994, the School District convened

two meetings concerning Doe’s September 9 misconduct:

one relating to special education and the other regarding

disciplinary proceedings. Doe was represented by an

attorney at both meetings. At the special education meet-

ing, the staffing team concluded that there was no con-

nection between Doe’s learning disability and his bring-

ing a pipe and marijuana to school.’ At the expulsion

hearing, Doe’s attorney presented witnesses, cross-exam-

ined the School District’s witnesses, and argued on Doe’s

behalf. After reviewing the hearing officer’s report sum-

marizing the evidence, the high school’s Administrative

Review Committee recommended that Doe be expelled in

accordance with the Code of Conduct.

On September 22, 1994, the School District accepted

the Committee’s recommendation and Doe was expelled

for the remainder of the fall semester. The next day, Doe

filed a due process hearing request under the Individuals

with Disabilities Education Act (“IDEA”), 20 U.S.C.

§ 1400 et seg. In December 1994, the Level I Hearing

‘ The Petition does not present a fair summary of the facts.

The Does cite solely to the Level II Hearing Officer’s factual

findings rather than those of the District Court (Petition at

5-7). The District Court expressly rejected the Level II findings

and concluded, in accordance with the Level I decision, that

the School District “possess[ed] adequate information with

which to evaluate Doe at the September 19, 1994 [special edu-

cation meeting)” (App. 47, 50).

Officer upheld the School Board’s actions. Doe appealed

and, in July 1995, the Level II Hearing Officer reversed

the Level I decision.

On October 26, 1994, Doe and his parents (“the Does”)

filed an eight-count Complaint in the District Court in

the Northern District of Illinois alleging that his expul-

sion violated his Fourteenth Amendment due process

rights as well as other constitutional and statutory

rights, including the IDEA.

On October 11, 1995, the District Court granted sum-

mary judgment in favor of the School District on the

entire Complaint except Count VIII, which was the IDEA

claim. The parties then filed cross-motions for summary

judgment on Count VIII and the School District’s coun-

terclaim, which was filed on October 11, 1995, and which

appealed from the Level II administrative decision. The

District Court entered judgment in favor of the School

District on all issues on July 10, 1996.”

On May 27, 1997, the Court of Appeals affirmed judg-

ment in favor of the School District. The Seventh Circuit

held that (1) the School District properly suspended edu-

cational services during Doe’s expulsion because his mis-

conduct was unrelated to his disability, (2) the stay-put

provision of the IDEA was not implicated because Doe’s

misconduct was unrelated to his disability, and (3) the

School District complied with the IDEA’s due process re-

quirements in connection with its decision to expel Doe.

* In its July 10, 1996 ruling, the District Court reconsidered

its judgment rendered on April 19, 1996, which was itself a

reconsideration of its February 15, 1996 decision.

In addition, the Seventh Circuit rejected the Does’

assertion that material issues of fact precluded granting

summary judgment in favor of the School District. Spe-

cifically, the Does argued that the District Court commit-

ted reversible error in finding that evidence relating to

“mitigating factors” was presented to the School District

as part of Doe’s disciplinary proceedings. Noting that it

was “less than obvious” that the School District was re-

quired to consider any mitigating factors as a matter of

law, the Seventh Circuit agreed with the District Court

that Doe’s defenses were adequately considered prior to

expelling him.

On June 4, 1997, after the Seventh Circuit issued its

opinion in this case, the President signed legislation that

amended the IDEA. The 1997 Amendments revised the

“fair and appropriate education” provision of the IDEA as

follows:

A free appropriate public education is available

to all children with disabilities residing in the

State between the ages of 3 and 21, inclusively,

including children with disabilities who have

been suspended or expelled from school.

1997 Amendments to Individuals with Disabilities Edu-

cation Act, § 612(a)(1) (“1997 Amendments” or “Amend-

ments”) (emphasis added).

On June 23, 1997, the Seventh Circuit ruled that the

1997 Amendments did not apply retroactively to the

instant case and denied the Does’ Petition for Rehearing.

ARGUMENT

I. Introduction.

As part of the School District’s overall discipline pro-

gram, which was in place when Doe was expelled, educa-

tional services to expelled students were totally discon-

tinued. Pursuant to that policy, once the School District

concluded that Doe’s misconduct of bringing marijuana

and a pipe to a school dance was unrelated to his dis-

ability, Doe was expelled for the remainder of the fall

semester and his educational services were discontinued

during that time. Given that his actions were not at-

tributable to his disability, Doe was not entitled to be

treated differently from other non-disabled students who

were expelled for similar misconduct. The Does now

petition this Court to review and reverse the decision of

the United States Court of Appeals for the Seventh

Circuit, which upheld the lawfulness of the School Dis-

trict’s actions.

This Court should deny the Does’ Petition for three

reasons. First, the issues raised in this case lack the nec-

essary legal significance to warrant the exercise of this

Court’s certiorari jurisdiction. Second, the 1997 Amend-

ments to the IDEA are not retroactive and therefore did

not apply to this case. Third, the Seventh Circuit correct-

ly applied the IDEA, as it then existed, to the facts in

this case.

Il. The Seventh Circuit’s Ruling That The School

District Was Permitted Under The IDEA, As It

Then Existed, To Discontinue Educational Ser-

vices To Students Expelled For Reasons Unrelat-

ed To Their Disabilities Neither Raises An Impor-

tant Recurring Legal Question Nor Conflicts With

Decisions By This Court Or Other Courts Of Ap-

peal.

Certiorari review is unwarranted in part because the

Seventh Circuit’s ruling will have little, if any, prospec-

tive effect on the rights of special education students

other than Doe. Effective June 4, 1997, the IDEA was

amended to “lead to a result different from the one

reached [by the Seventh Circuit]” (App. 23). The Does’

contention that, in the absence of review by this Court,

“hundreds or even thousands of children in Illinois alone”

will be adversely affected ignores the obvious effect of

this significant statutory amendment (Petition at 12, n.

7).2 Because of this change in the law, only students

* Counsel Mary Denise Cahill’s affidavit, which is attached to

the Petition (App. 80-81), should be stricken for several rea-

sons. First, it constitutes evidence outside of the record. New

Haven Inclusion Cases, 399 U.S. 392 (1970) (refusing to con-

sider newspaper articles which were not contained in the

record); see also DeTomaso v. McGinnis, 970 F.2d 211, 214

(7th Cir. 1992) (“[aJn affidavit attached to a brief is not part of

the record, and we order it stricken”). Second, the data pur-

portedly obtained from the State Board of Education is in-

admissible hearsay. Fed. R. Evid. 802. Third, the affidavit

merely sets forth counsel’s personal conclusions drawn from

anecdotal data. United States v. Armstrong, ___ U.S. __, 116

S.Ct. 1480 (1996) (rejecting affidavits which presented hearsay

“statistics”). Finally, the meaning of the data referred to in the

affidavit is unclear and therefore the data fails to support

counsel’s conclusory assertion that “more special education

students were expelled without continuation of services after

the District Court’s ruling than before” (App. 81).

expelled prior to June 4, 1997 will be affected by the

Seventh Circuit’s judgment in this case. Review by this

Court is therefore unnecessary because no recurring

legal issue has been raised.

The Does’ Petition should be denied also because the

Seventh Circuit’s decision in no way conflicts with this

Court’s rulings in Honig v. Doe, 484 U.S. 305 (1988), and

Zobrest v. Catalina Foothills School District, 509 U.S. 1

(1993). The Seventh Circuit’s holding bears solely on the

issue of whether school districts may cease providing

educational services to students expelled for reasons

unrelated to their disabilities. This Court has never

addressed that issue.

In claiming that the Court of Appeal’s ruling is con-

trary to decisions of this Court, the Does misrepresent

this Court’s reasoning in Honig v. Doe (Petition at 16).

In Honig, this Court observed that when Congress

adopted the IDEA, it was responding in part to earlier

judicial decisions, including Mills v. Board of Education

of District of Columbia, 348 F. Supp. 866 (D.D.C. 1972),

which indicated that handicapped students with emotion-

al and behavior problems were often being expelled from

school for behavior caused by their disabilities. Honig,

therefore, was limited to holding that students with dis-

abilities may not be unilaterally expelled if their miscon-

duct is related to their disabilities. As this Court stated,

Today we must decide whether . . . state and

local school authorities may nevertheless unilat-

erally exclude disabled children from the class-

room for dangerous or disruptive conduct growing

out of their disabilities.

Honig, 484 U.S. at 308 (emphasis added). The Seventh

Circuit recognized that the Does sought to extend this

Court’s decision in Honig to a far different situation, and

it properly declined that invitation.

The Does’ citation to Zobrest v. Catalina Foothills

School District, 509 U.S. 1 (1993), to assert a conflict is

unavailing. In that case, this Court held that providing

a sign-language interpreter to a special education stu-

dent enrolled in a parochial school did not violate the

Establishment Clause of the First Amendment. Zobrest,

509 U.S. at 10. Nowhere did this Court address the issue

of the continuation of educational services to students

during expulsions.

The Does’ assertion that the Seventh Circuit’s ruling in

this case conflicts with decisions rendered by its sister

circuits is also wrong. The only circuit courts that have

directly addressed this issue, the Fourth and Ninth

Circuits, reached decisions consistent with the Seventh

Circuit, and held that nothing in the IDEA‘ prevented

school districts from suspending educational services to

students expelled for reasons unrelated to their disabili-

ties. Virginia v. Riley, 106 F.3d 559 (4th Cir. 1997) (en

banc); Doe v. Maher, 793 F.2d 1470 (9th Cir. 1986), aff'd

as modified, Honig v. Doe, 484 U.S. 305 (1988).°

The cases cited by the Does from other circuits that

take a contrary view create no conflict because with

respect to this issue they are dicta (Petition at 16-17).

For example, in S-1 v. Turlington, 635 F.2d 342 (5th

* Because the 1997 Amendments to the IDEA are not retroac-

tive, see Section III, infra, references herein to the “IDEA” re-

fer to the statute as it existed prior to the June 4, 1997 legis-

lation.

5 These cases are discussed in Section IV.A., infra.

9 -

Cir.), cert den., 454 U.S. 1030 (1981), which was decided

prior to this Court’s ruling in Honig, the Fifth Circuit

reviewed the sufficiency of a school district’s determina-

tion that a student’s misconduct was unrelated to his

disability. On the broader issue of expelling special

education students, the court simply concluded:

We therefore find that expulsion is still a proper

disciplinary tool under the EHA and section 504

when proper procedures are utilized and under

proper circumstances. We cannot, however, auth-

orize the complete cessation of educational ser-

vices during an expulsion period.

Turlington, 635 F.2d at 348. See also Kaelin v. Grubbs,

682 F.2d 595, 600-02 (6th Cir. 1982) (citing to Turling-

ton’s conclusory dicta); Board of Education of the City of

Peoria v. Illinois State Board of Education, 531 F. Supp.

148, 151 (N.D. Ill. 1982) (same). None of these cases

rules on whether the cessation of special education ser-

vices is proper when there is no causal connection be-

tween the student’s misconduct and his or her disability.

Accordingly, the Petition should be denied because

there is no conflict between the Seventh Circuit’s ruling

in this case and decisions by this Court or other courts

of appeal. Furthermore, as discussed in Section IV.A.

infra, the Seventh Circuit’s reasoning is consistent with

that of its sister circuits.

Ill. The 1997 IDEA Amendments Are Not Retro-

active And Therefore Cannot Be Applied To

This Case.

This Court need look no further than the effective date

of the Individuals with Disabilities Act Amendments of

1997 to confirm that the application of the statute to this

case would constitute retroactive application which runs

afoul of the Ex Post Facto Clause of the United States

Constitution. U.S. Const. art. I, § 9, cl. 3 and § 10, cl. 1.

By its terms, the legislation is prospective only and it

would be unjust for this Court to apply the new law

retroactively to the School District’s actions taken in

September 1994.

As this Court has stated, the Ex Post Facto Clause is

violated when a law is applied “to events occurring be-

fore its enactment.” Miller v. Florida, 482 U.S. 423, 430

(1987) (citations omitted). Congress has stated quite

clearly that amended Section 1412(a)(1\A), which ap-

plies to disabled students suspended or expelled, is not

retroactive. Pub. L. 105-17, Title I, Sec. 612, 111 Stat. 49

(“[e]xcept as provided . . . the Individuals with Disabili-

ties Education Act, as amended by title I, shall take

effect upon the enactment of this Act”). The 1997 Amend-

ments became effective on June 4, 1997, after the Sev-

enth Circuit issued its ruling on May 27, 1997. Further-

more, the conduct at issue occurred in September 1994,

and the Does filed their lawsuit against the School Dis-

trict in October 1994. See Heather S. v. State of Wiscon-

sin, No. 96-3340, 1997 U.S. App. LEXIS 24927, at n.1

(7th Cir. Sept. 16, 1997) (declining to apply the IDEA’s

1997 Amendments where the events giving rise to the

action occurred before the date of enactment); Cypress-

Fairbanks Independent School District v. Michael F., 118

F.3d 245, 247 n.1 (5th Cir. 1997) (same). Because the

Amendments were not in place when the complained of

conduct arose, when the lawsuit was initiated, or when

the Court of Appeals rendered its decision, the applica-

tion of the 1997 Amendments to this case would consti-

tute retroactive legislation in violation of the Ex Post

Facto Clause.

The Does concede, as they must, that courts should

apply the law in effect at the time they render their de-

cision (Petition at 22). For example, in Bradley v. School

Board of Richmond, et al., 416 U.S. 696 (1974), this

Court concluded that the new legislation applied in that

instance precisely because it became effective while the

case was pending on appeal and before the court of

appeals issued its decision. Here, in contrast, the 1997

Amendments were not in effect as of the issuance of the

Seventh Circuit’s judgment. For this reason, the Does’

contention that, under Bradley, retroactive application of

the Amendments is proper misses the mark.®

The Does contend that the legislative history of the

1997 Amendments demonstrates that Congress intended

the new law to apply retroactively. As support, they cite

Congressman Martinez’ statement during a House de-

bate on the 1997 Amendments that the new legislation

“clariflies] Congressional intent” (Petition at 17, 18, 21).

This argument fails on several grounds. First, this Court

need not look to legislative history where, as here, the

statute’s language leaves no trace of ambiguity as to its

effective date. Landgraf v. UST Film Products, 511 U.S.

244, 280 (1994) (where “Congress has expressly pre-

scribed the statute’s proper reach . . . there is no need to

resort to judicial default rules”); Bath Iron Works Corp.

* Furthermore, the Does’ contention that retroactive applica-

tion of the 1997 Amendments would not result in an unfore-

seen or additional obligation on the School District is disingen-

uous because, at the time of the School District’s conduct, the

only decision on this issue, Doe v. Maher, 793 F.2d 1470 (9th

Cir. 1986), aff'd as modified, Honig v. Doe, 484 U.S. 305

(1988), permitted discontinuation of educational services under

the same circumstances. See Section IV.A., infra.

v. Director, Office of Workers’ Compensation Program,

506 U.S. 153 (1993) (where text of statute is unambigu-

ous, reviewing court accords no weight to senator’s re-

marks during Senate floor debate). Second, the remark

in no way mandates application of the Amendments to

conduct which occurred three years prior.

Retroactive application of the 1997 Amendments is fur-

ther unwarranted because doing so would impose an

obligation on the School District which did not previously

exist regarding the provision of services to expelled spe-

cial education students under certain circumstances.” In

September 1994, the School District expelled Doe for the

remainder of the fall semester based upon misconduct

that was not connected to his learning disability. From

1986 to May 1997, the three courts of appeal to consider

the issue uniformly held that school districts could law-

fully cease educational services to students expelled for

reasons unrelated to their disabilities. See Section IV.A..,

infra. As of June 4, 1997, the IDEA states that “[a] free

appropriate public education is available to all children

with disabilities . . . including children with disabilities

who have been suspended or expelled from school.” 20

U.S.C. § 1412(a)(1)(A) (emphasis added). Because of this

change in the law, the Seventh Circuit correctly conclud-

’ For this reason, the Does’ application of this Court’s Bradley

factors is fatally flawed (Petition at 23). In asserting that

“(t]he Board cannot claim that this is an unforeseen or addi-

tional obligation,” the Does conveniently ignore rulings by the

Fourth and Ninth Circuits and misconstrue the holdings of

this Court and other courts of appeals. As set forth in Section

IV.A., infra, the case law fully supported the Seventh Circuit’s

ruling that the IDEA did not require the continuation of

educational services to students who are expelled for reasons

unrelated to their disabilities.

ed that applying the 1997 Amendments to this case

would have a “truly retroactive effect” because the School

District would incur increased liability even though it

acted properly under the law as it existed when the

Does’ claim arose in September 1994.

IV. The Seventh Circuit Correctly Concluded That

The School District’s Actions Complied With The

IDEA As It Then Existed.

A. Prior To June 1997, The IDEA Did Not Re-

quire Continued Provision Of Services Or A

Stay Of Placement To Students Expelled For

Misconduct Unrelated To Their Disabilities.

The Seventh Circuit correctly held that nothing in the

IDEA, as it then existed, prevented the School District

from ceasing to provide educational services to Doe dur-

ing his expulsion, once it determined that his misconduct

was unrelated to his disability.

At that time, the IDEA did not impose, either expressly

or implicitly, an obligation on school districts to continue

educational services when students were expelled for

misconduct which bore no causal connection to their

disabilities. Rather, the IDEA required only that school

districts “assure all children with disabilities the right to

a free appropriate public education.” 20 U.S.C. § 1412(1)

(emphasis added). In contending that the School Dis-

trict’s actions violated the IDEA, the Does focus ex-

clusively on Congress’ use of the word “all” in Section

1412(1). The Does assert that because Section 1412(1) of

the IDEA referred to “all” children with disabilities, it

prohibited a denial of services to any student, even when

the student was expelled for misconduct totally unrelated

to his or her disability (Petition at 15). The Seventh Cir-

cuit correctly rejected this position, stating that:

[T]he IDEA does not express an intent, either ex-

pressly or impliedly, to shield special education

students from the normal consequences of their

misconduct if that misconduct has nothing to do

with their disabilities.

(App. 15). Where a student, like Doe, brought marijuana

to school and there was no connection between his

actions and his disability, the underlying purpose of the

IDEA was attenuated as was any justification for the

IDEA’s encroachment on local school control. The Court

of Appeals properly concluded that, by the same token,

once the School District determined that Doe’s miscon-

duct was unrelated to his learning disability, the IDEA

was no longer implicated and thus the stay-put provision

did not apply.

In reaching its well-reasoned decision, the Seventh Cir-

cuit relied upon decisions rendered by its sisters in the

Fourth and Ninth Circuits, the only other courts of ap-

peal that directly addressed the issue at hand. Virginia

v. Riley, 106 F.3d 559 (4th Cir. 1997) (en banc); Doe v.

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

Honig v. Doe, 484 U.S. 305 (1988). Both the Fourth and

Ninth Circuits concluded that nothing in the IDEA

required school districts to discipline disabled students

differently from non-disabled students, when their mis-

conduct was in no way attributable to their disabilities.

As the Fourth Circuit stated in Riley, 106 F.3d at 568:

[Nleither the text of section 1412(1), the legisla-

tive history, nor the purpose of the IDEA even

suggests, much less mandates with the clarity

necessary to confirm that the Congress actually

confronted and deliberately decided, that a state

must continue to provide education services for

disabled children after expulsion for misconduct

unrelated to their disabilities.

Hence, once a school district determined through proper

procedures that a student’s misconduct was unrelated to

his disability, there was no reason to restrict its author-

ity to cease providing educational services.

The Does broadly proclaim that, because the IDEA was

intended to prevent “unilateral exclusion” of students

from classrooms because of their disabilities, one can in-

fer that, when it enacted the legislation, Congress meant

to prohibit all exclusions, under all circumstances, even

when students engaged in misconduct unrelated to their

disabilities (Petition at 15). Such an inference goes well

beyond the statute’s purpose, as it existed prior to June

4, 1997. The IDEA was designed to prevent the denial of

access to a free public education because of a student’s

disabilities. See Board of Education v. Rowley, 458 U.S.

176 (1982) (referring to the purpose of the IDEA as one

giving disabled children access to public education). In-

deed, this Court spoke to precisely that issue when it

prohibited the cessation of services for misconduct grow-

ing out of a student’s disabilities in Honig v. Doe, 484

U.S. 305, 308 (1988).

As the Ninth Circuit stated in Doe v. Maher, 793 F.2d

1470, 1482 (9th Cir. 1986), aff'd as modified, Honig v.

Doe, 484 U.S. 305 (1988),

If a child’s misbehavior is properly determined

not to be a manifestation of his handicap, then

the handicapped child can be expelled. This con-

clusion does not conflict with the [IDEA]. When

a child’s misbehavior does not result from his

handicapping condition, there is simply no justifi-

cation for exempting him from the rules, includ-

ing those regarding expulsion, applicable to other

children. Therefore, when a handicapped child is

properly expelled, the school district may cease

providing all education services—just as it could

in any other case.

(emphasis added). Therefore, when a student engaged in

misconduct that lacked any causal connection to his or

her disabilities, before the 1997 Amendments, the IDEA

was simply of no help.

The Does’ reliance on the legislative history of the Im-

proving America’s Schools Act of 1994, Pub. L. No. 103-

382, 108 Stat. 3518, is unpersuasive. The narrow focus

of that legislation undercuts the Does’ contentioi::that |

the legislation can be read to prohibit the cessation of

education services to students who were expelled for

reasons unrelated to their disabilities (Petition at 19,

n.10). In that legislation, Congress sought to reconcile

the Gun-Free Schools Act of 1994, 20 U.S.C. § 8921,

which required a lengthy expulsion for students who

brought certain weapons to school, with the IDEA. The

legislation directed, however, that nothing in the IDEA

should supersede the Gun-Free Schools Act with respect

to children whose misconduct is unrelated to their dis-

abilities. This provision suggests Congress’s recognition |

that a student who brought a gun to school for reasons

totally unrelated to his disability may be treated differ-

ently than one whose conduct was a manifestation of his

disability.

The Does’ reliance upon opinion letters issued by the

Office of Special Education Programs (“OSEP”) is mis-

placed. Under well-settled administrative law, an agen-

i iiacean ie ai taiieaneaniiiiiitel

cy’s interpretation of a statute or regulation is not bind-

ing on a reviewing tribunal. Batterton v. Francis, 432

U.S. 416 (1977). As the Seventh Circuit stated in Produc-

tion Tool Corp. v. Employment & Training Administra-

tion, 688 F.2d 1161, 1165 (7th Cir. 1982):

Interpretive rules, in contrast, have only per-

suasive force. Such rules are entitled to varying

degrees of deference or weight, but a reviewing

court ordinarily is free to substitute its own view

of the relevant statute.

Courts have discretion to substitute their own judg-

ment on all questions of statutory interpretation, includ-

ing interpretation of the IDEA’s requirement of a free

appropriate public education, 20 U.S.C. § 1412(1). Vir-

ginia v. Riley, 106 F.3d at 568. Therefore, the Seventh

Circuit properly discounted the Department of Educa-

tion’s opinion on this matter. The rationale articulated

by the Department of Education was no different or more

illuminating than the arguments made by the Does. The

Court of Appeals was justified in determining thai

OSEP’s position was ultra vires and that no deference

was required.

In the absence of direct support in the text or legisla-

tive history of the IDEA, the Does now seek to refer to

legislative history from the 1997 Amendments to support

their contention that the IDEA, as originally enacted,

prohibited the cessation of services for expulsions

unrelated to a student’s disability. As this Court has

noted, however:

The interpretation given by one Congress (or a

committee or Member thereof) to an earlier

statute is of little assistance in discerning the

meaning of that statute.

Public Employees Retirement System of Ohio v. Betts,

492 U.S. 158, 168 (1989). The comment in the Senate

Committee Report that the 1997 Amendments were

intended as a “clarification of current law” carries no

weight. E.E.0.C. v. Metropolitan Educational Enter-

prises, Inc., 60 F.3d 1225, 1229 (7th Cir. 1995) (noting

that “[a] congressional report, even a conference report,

is not legislation . . . and it does not change the law”)

(citations omitted), cert. granted on other grounds, __

U.S. __, 111 S.Ct. 1260 (1996). Hence, the legislative

history of the 1997 Amendments fails to save the Does’

claim.

B. The Seventh Circuit Correctly Concluded That

The School District Complied With The Proce-

dural Requirements Of The IDEA As It Then

Existed.

The Does take issue with the Seventh Circuit’s factual

findings relating to whether the School District provided

Doe with procedures sufficient to satisfy his Fourteenth

Amendment due process rights. As a threshold matter,

there is no cause for this Court to review the fact-bound

question of whether the School District’s actions com-

plied with the IDEA because, in the absence of a circuit

conflict or a question of importance, this Court’s certio-

rari jurisdiction is not intended solely to correct an

erroneous decision by a lower court. United States v.

Johnson, 268 U.S. 220, 227 (1925) (noting that this

Court “dofes] not grant a certiorari to review evidence

and discuss specific facts”). In any event, the Seventh

Circuit’s conclusion that the School District complied

with the procedural requirements of the IDEA was

amply supported by the evidence.

In reviewing a special education decision rendered by

an administrative agency, federal courts conduct a de

novo review. Gregory K. v. Longview School District, 811

F.2d 1307, 1311 (9th Cir. 1987). While affording “due

weight” to the hearing officer’s conclusions, courts will

independently review the record and base their decision

on the preponderance of the evidence. Id.; 20 U.S.C.

§ 1415(eX(2).

The Seventh Circuit reviewed the evidence and ulti-

mately agreed with the decision rendered by the Level I

Hearing Officer. The Level I Hearing Officer reached the

following conclusions regarding Doe’s claim that the

School District violated the IDEA by expelling him with-

out first evaluating him for ADD or ADHD:

There was testimony that [Doe’s] conduct at

times reflects a low self esteem, thus he will do

something to look “cool” i.e., impress his peers.

This was offered as an explanation for his posses-

sion and showing the bag of marijuana at the

school dance . . . The psychologist, based on

[Doe’s]} behavioral history and scholastic achieve-

ment, believed that [Doe] would behave sponta-

neously, impulsively, without being aware of the

consequences of his action, but would have ex-

cellent control of his behavior when he under-

stood the consequences of his action. [Doe] does

know the difference between right and wrong. /

find that [Doe] did not act on impulse or sponta-

neously in this matter. He had the marijuana for

at least a day and had planned to bring it to the

school dance. This was not a spontaneous act.

[Doe] participated in a sport where the use of

illegal substances was prohibited. Copies of those

regulations were given to him and his parents

and acknowledged by [Doe] and his parents. In

addition, on the morning of the September 9,

1994, the rules of School District conduct were

reviewed and [Doe] admitted to a school adminis-

trator that he was there at the time the rules of

conduct were explained. J find that [Doe] had

every reason to know the serious consequences of

his conduct regarding the possession of mari-

Juana.

(App. 68) (emphasis added). In making its findings, the

Court of Appeals commented that, under the circum-

stances, “there was little likelihood that an ADHD evalu-

ation would have affected the . . . determination that

{[Doe]’s misconduct was unrelated to his disability” (App.

17-18). The Level I Hearing Officer’s conclusions were

solidly supported by the documents and testimony

admitted during the hearing and the Seventh Circuit

agreed that the record compelled his conclusion.

Moreover, once the School District determined that

Doe’s misconduct of bringing marijuana and a pipe to a

school dance was not caused by his disability, he was not

entitled to a stay of placement pending his due process

proceedings. As the Seventh Circuit concluded:

[T]he “stay-put” provision of the IDEA is not

implicated in a case like this, where the school

district has made a reasoned determination fol-

lowing the procedures of the IDEA that a stu-

dent’s misbehavior is unrelated to his disability.

(App. 14). Therefore, the Does’ contention that his ex-

pulsion was subject to the IDEA’s stay-put provision is

unavailing (Petition at 25).

CONCLUSION

In sum, the Petition failed to raise an important recur-

ring legal question and there is no conflict between the

Seventh Circuit and either this Court or other courts of

appeal. Moreover, prior to the 1997 Amendments to the

IDEA, the Fourth, Seventh, and Ninth Circuits uniform-

ly held that school districts may cease providing services

for special education students expelled for reasons unre-

lated to their disabilities. Therefore, Respondents re-

spectfully request that this Court deny the Petition for

Writ of Certiorari.

Respectfully submitted,