This case involves the question of whether a public school district, defendant Unified School District No. 259 (the “District”), in Sedgwick County, Kansas, must pay for full-time sign language interpretive services at a private school, for the benefit of a profoundly deaf child whose parents have voluntarily removed him from a public school in the District and placed him in the private school. The plaintiffs, Michael Fowler and his parents and next friends, Jay and Barbara Fowler, seek such services under the Individuals with Disabilities Education Act and Kansas law. They seek them on-site at the private school because those services only benefit Michael if they accompany him throughout his educational day. The district court granted injunctive relief, ordering the District to provide those services without regard to cost. We partially reverse and remand, holding that, under the applicable statutes and regulations, the District must pay for those required on-site services an amount up to, but not more than, the average cost to the District to provide interpretive services to hearing-impaired students in the public schools. We remand for further proceedings consistent with this opinion.
The district court awarded attorneys’ fees and expenses to the Fowlers as prevailing parties. We affirm the award of attorneys’ fees.
Michael was born on August 5, 1985, and contracted meningitis at the age of six months, which left him profoundly, and prel-ingually, deaf. Because he requires specially designed instruction for this condition, he qualifies as a child with disabilities under Part B of the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400-1420 (“IDEA”). See § 1401(a)(1)(A)(i), (ii) (1990 & Supp.1996); 34 C.F.R. § 300.7(a)(1) (1996). He attended Caldwell Elementary School, a public school in the District, from kindergarten through the third grade. Of the 400 students at Caldwell, approximately 30 had severe hearing impairments and required interpretive services. These 30 students were all the severely hearing impaired students in the District, whom the District elected to cluster at Caldwell Elementary. The District had funding for nine full-time interpreters, but only had eight such interpreters during the 1994-95 school year, because of the resignation of one interpreter and the difficulty in finding qualified interpreters in Signed Exact English II (“SEE II”).
In November 1993, the District tested Michael and found him to be “of very superior intellectual capacity,” and he was eventually designated as gifted. Fowler v. Unified Sch. Dist. No. 259,
The Fowlers then enrolled Michael in Wichita Collegiate, a private nonseetarian school where they believed his intellectual needs would be better met. They requested that the District provide to Michael interpretive services on site at Wichita Collegiate. The District denied the request.
The due process hearing took place on August 4, 1994. The hearing officer issued his.decision on August 25, and held that the District was required under the IDEA and Kan.Stat.Ann. § 72-5393 to provide interpretive services for Michael at Wichita Collegiate.
The district court, after finding that “the District cannot deny interpretive services to Michael at Collegiate unless it can prove there is no reasonable way to provide those services,” held that the Fowlers had “shown
The District argues that: (1) the IDEA and its implementing regulations do not mandate provision of individualized special education services for students whose parents have voluntarily placed them in private schools; (2) the Department of Education has consistently interpreted the Act and regulations to require no such individualized services, and that interpretation is entitled to some deference; and (3) Kansas law similarly imposes no such obligation where the individualized services cannot be “practically provided” or if they result in services not being provided on an “equal basis.” The District also argues the district court erroneously placed upon it the burden of proving that there was “no reasonable way to provide those services” to Michael. Fowler,
Amicus briefs have been filed by: (1) the National School Boards Association, in support of the District; (2) Kansas Advocacy & Protective Services, Inc., in support of the Fowlers; (3) the Most Reverend James P. Keleher, Archdiocese of Kansas City, Kansas, the Most Reverend Stanley G. Schler-man, Diocese of Dodge City, Kansas, the Most Reverend George K. Fitzsimons, Diocese of Salina, Kansas, and the Most Reverend Eugene J. Gerber, Diocese of Wichita, Kansas, in support of the Fowlers; (4) the National Association of the Deaf, the National Cued Speech Association, The American Society for Deaf Children, and the Kansas Association of the Deaf, in support of the Fowlers; and (5) the United States, in support of the District.
DISCUSSION
I. IDEA and Federal Regulations
The IDEA provides federal grants to states, which states then use as part of the funds they give to local educational agencies, to assist such agencies in educating students with disabilities. A state electing to participate in this system of IDEA grants must establish and have “in effect a policy that assures all children with disabilities the right to a free appropriate public education.” 20 U.S.C. § 1412(1). To accomplish this objective, local educational agencies (“LEA”s) must develop, implement and regularly review and revise an IEP for each disabled child, which is designed to ensure that the child receives, at public expense, the free appropriate education required by the Act. §§ 1412(4), 1414(a)(5). The relevant IDEA provisions and related regulations distinguish between three groups of disabled students: (1) those attending public schools; (2) those placed in private schools by the LEA or school district; and (3) those who have been voluntarily placed in private schools by their parents. See 20 U.S.C. §§ 1412(1), (2)(B), 1413(a)(4)(A), (B); 34 C.F.R. §§ 300.400-.452, 76.650-.655; see also Cefalu v. East Baton Rouge Parish Sch. Bd.,
With respect to students voluntarily attending private schools, the Act provides that each state must:
*782 set forth policies and procedures to assure — that, 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, provision is made for the participation of such children in the program assisted or carried out under this subchapter by providing for such children special education and related services.
§ 1413(a)(4)(A) (emphasis added). The pertinent regulations further address, although with little clarity, the meaning of the statutory requirement that special education services be “provided” to such students. The language of 34 C.F.R. § 300.451(a) basically tracks the language of the IDEA by requiring state educational agencies (“SEA”s) to provide “for the participation of private school children with disabilities in the program assisted or carried out ... by providing them with special education and related services” “[t]o the extent consistent with their number and location in the State.” Id. The regulations then stipulate that LEAs “shall provide special education and related services designed to meet the needs of private school children with disabilities residing in the jurisdiction of the agency.” § 300.452.
Under those EDGAR regulations, an LEA, as a “subgrantee” of the state under the IDEA, “shall provide students enrolled in private schools with a genuine opportunity for equitable participation ” in program benefits. 34 C.F.R. § 76.651(a)(1) (emphasis added). That opportunity to participate must be provided “in a manner that is consistent with the number of eligible private school students and their needs.” § 76.651(a)(2). Further, the benefits provided to private school enrollees must be “comparable in quality, scope, and opportunity for participation to the program benefits” that the LEA provides to public school enrollees. § 76.654(a).
In developing a program for the delivery of special education services, the LEA/sub-grantee “shall consult with appropriate representatives of students enrolled in private schools ... including consideration of [wjhich children will receive benefits,” “[w]hat benefits will be provided,” and “[h]ow the benefits will be provided.” § 76.652(a). The EDGAR regulations also provide that, in assessing the needs, number of students, and benefits to be provided to private school enrollees, the LEA/subgrantee must make those decisions “on a basis comparable to that used by the subgrantee in providing for participation of public school students.” § 76.653. Finally, the regulations provide that “[i]f the needs of students enrolled in private school 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 ... provide[d] for the public school students.” § 76.654(c).
The regulations similarly provide that LEAs/subgrantees must “spend the same average amount of program funds on [a] student enrolled in a private school who receives benefits ... and [a] student enrolled in a public school who receives benefits.... ” § 76.655(a)(1), (2). However, the LEA “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 public schools.” § 76.655(b).
A. Other Circuit Court Decisions
The first two circuit court decisions to address this issue held that LEAs have virtually unfettered discretion to decide whether to provide services to parentally-placed private school students. See Anderson,
The next circuit court decision addressing this issue disagreed With the essential reasoning in Goodall and Anderson. In Russ-man, a child with disabilities voluntarily attending a private parochial school sought to require the school district to provide her with an on-site consultant teacher and teaching aide. The district court held in favor of the student, and the school district appealed. The Second Circuit affirmed, concluding that the school district was obligated to provide such services to the student. Russman,
The reference to “number” of students suggests only that school districts have discretion to deny on-site provision of services at private schools where economies of scale in providing the services at one place exist.
With respect to the statutory reference to “location,” we read the IDEA to mean only that, where the provision of services at a distant private school would entail significant additional costs, e.g., transportation, to be borne by the state, public school authorities may fulfill their IDEA obligations by offering the services at a local public school.
Id. Thus, “[w]here the cost of special services does not vary with where they are provided,” the school district is obligated to provide them to a child voluntarily attending a private school, if the student cannot take advantage of the comparable service at the public school and still attend the private school. Id. Because, in Russman, the school district made no claim that providing the student with a consultant and teaching aide at the private school was “significantly more expensive than providing the same services at the public school,” the court held the district was obligated to provide such services onsite. Id. at!057.
The most recent circuit court decision, Ce-falu, involved the identical issue as in this case: whether a school board was obligated to provide on-site sign language interpretive services to a deaf child voluntarily attending a private school. The district court ruled in favor of the child, ordering the school board to provide such services, but the Fifth Circuit vacated that decision. After acknowledging the vague and imprecise language of the IDEA and its regulations, the court nonetheless discerned certain guiding principles: “[f]irst, and fundamental, the drafters of the IDEA plainly intended that students voluntarily enrolled in private schools be active participants in and beneficiaries of the program.” Cefalu,
The second guiding principle the Fifth Circuit gleaned from the statute and the regulations was the following: “although private school students are eligible to receive benefits under the program, they are not entitled to a greater share of benefits, nor of the funds providing those benefits, per student, than similarly-situated students in public schools.” Id. at 398. From those two principles, the court derived the following rule:
The private school student must make an initial showing of a genuine need for on-site services, based upon more than mere convenience. Upon such a showing, the agency must provide on-site services unless it presents a justifiable reason, either economic or non-economic, for its denial of on-site services. The student then bears the burden of showing that the agency’s position is inconsistent with the IDEA and its regulations, or is not rationally supportable, or is otherwise arbitrary.
Id. As the court further observed, the practical effect of such a rule is that “private students usually will, absent justifiable non-economic considerations, be provided comparable services on-site to the extent that such services can be provided on-site at the same approximate cost as that incurred in providing the services at other sites.” Id. Conversely, the rule will “also ensure that disproportionately large sums of money are not required to be spent to benefit a reduced number of students.” Id.
B. Department of Education Position
As the foregoing decisions all acknowledged, the Department of Education, through its Office of Special Education Programs, has consistently stated its position, in policy letters and memoranda, that parentally-placed students attending private schools do not have an “individual entitlement to services.” Letter to Burch, 23 IDELR 560, 562 (1995); Letter to Anonymous, 23 IDELR
C. Our View
In attempting to interpret the IDEA and its regulations to resolve this case, we acknowledge, as have others, that the fundamental problem stems from the ambiguity of the statutory and regulatory language. Nonetheless, some basic principles are discernible.
We agree with the Fifth Circuit that Congress clearly intended that disabled students voluntarily placed in a private school by their parents are to be “active participants in and beneficiaries of’ programs established under the IDEA. Cefal%
Accordingly, we reject the proposition that the District must provide a full-time interpreter for Michael at Collegiate, once his parents have asked for the provision of such services. We agree'with other courts in holding that the IDEA and its regulations create no automatic right to any and all special education services at a private school site for all students voluntarily attending such a school. See Cefalu,
We therefore agree with the decisions in Russman and Cefalu that, while LEAs have considerable discretion to determine how they will provide services to students voluntarily placed in private schools, that discretion has parameters. We disagree with the Anderson and Goodall decisions, which appear to confer virtually unfettered discretion on LEAs to deny services on-site at private schools.
We now consider what properly confines that discretion. In attempting to provide some rational criteria to guide that discretion, and to apply the statute and the regulations, we note that there are some inherent problems. First, the statute and regulations generally refer to groups of students, as perhaps they must, whereas in many cases, as in this case, we deal with an individual student. Thus, the statutory and regulatory reference to the “number” and “location” of private school students, as a reference to groups of students, is difficult to apply to an individual student’s situation. Second, the statute and regulations refer to all special education services, again as perhaps they must, whereas, in practice, there are different types of special education services, some of which present unique problems. For example, certain special education services can easily and effectively be provided to private school students at public school sites after school. The student receives the benefit of the service, and the school incurs no added cost because it makes the service available in the same setting it would were the child enrolled in the public school. Other services, however, such as the sign language interpreter at issue in this case, cannot be effectively provided to a private school student anywhere other than the private school site, because they confer no benefit unless they accompany the child throughout his or her educational day. See generally, Dixie Snow Huefner & Steven F. Huefner, Publicly Financed Interpreter Services for Parochial School Students with IDEA-B Disabilities, 21 J.L. & Educ. 223 (1992). Despite these problems inherent in the statutory and regulatory scheme, we endeavor to apply them to this case.
While the IDEA and its regulations do not specifically refer to cost as a relevant factor, courts which have addressed this issue refer to cost as a highly relevant factor for school districts to consider when determining whether to provide particular services to private school students. As the Fifth Circuit in Cefalu observed, “educational agencies must be afforded the broadest discretion to design special programs in the light of the finite funds that are available.” Cefalu,
We do not suggest that cost alone, however, is the only factor which LEAs may consider in determining what services will be provided to voluntarily-placed private school students. As indicated, LEAs can and must have considerable discretion in determining how best to serve disabled students. “The primary responsibility for formulating the education to be accorded a handicapped child, and for choosing the educational method most suitable to the child’s needs, was left by the Act to state and local educational agencies in cooperation with the parents or guardian of the chld.” Board of Educ. v. Rowley,
Nonetheless, the IDEA clearly contemplates parents voluntarily placing their disabled children in private schools, and those children must be provided with an opportunity to participate in special education services offered at public schools. We accordingly hold, like Russman, that “[wjhere the cost of special services does not vary with where they are provided, the IDEA and regulations regarding voluntary private school students make little sense if such services may be made available only in the public schools.” Russman,
In this case, we are not dealing with a group of students in a variety of locations, demanding a variety of special education services. Rather, we are faced here with the question of whether an individual disabled child, who requires an individualized service which only benefits him if it is provided to him on-site, throughout his educational day, is entitled to that individualized service at the private school he has chosen to attend. We conclude that, in such a situation, the District must pay for that service an amount
Our selection of the average amount as the guiding principle finds support in the regulations, as 34 C.F.R. § 76.655(a) provides that a LEA “shall spend the same average amount of program funds on [a] student enrolled in a private school who receives benefits under the program[] and [a] student enrolled in a public school who receives benefits under the program.”. The regulation thus seems to endorse the spending of the average amount spent per student in the public school on an individual private school student. The use of the average amount further takes into account variations in the amounts spent on individuals in the public school, because of the particular needs of their IEPs.
In so holding, we make several observations. The average cost is necessarily derived from costs associated with a number of individual hearing-impaired students, with a variety of IEPs. By directing the District to calculate such an average, we by no means invite, and we strongly discourage, endless argument over each piece of data used to calculate the average. We are very aware that our rule is not mathematically precise, and the calculation of the average cost is not intended to be an exercise in pure mathematics.
Our rule will also require ongoing consideration of the relative costs of providing the service, in light of changing populations of
Finally, we acknowledge that our holding in this ease may have a very short shelf life. Petitions for certiorari have been filed in Anderson and Russman, and undoubtedly will be in Cefalu and, perhaps, this ease. This is an area in which Supreme Court guidance is needed, and, we hope, forthcoming.
II. Kansas Law
Kan.Stat.Ann. § 72-5393 provides as follows:
Any school district which provides auxiliary school services to pupils attending its schools shall provide on an equal basis the same auxiliary school services to every pupil, whose parent or guardian makes a request therefor, residing in the school district and attending a private, nonprofit elementary or secondary school whether such school is located within or outside the school district.... Speech and hearing diagnostic services and diagnostic psychological services, if provided in the public schools of the school district, shall be provided in any private, nonprofit elementary or secondary school which is located in the school district. Therapeutic psychological and speech and hearing services and programs and services for exceptional children, which cannot be practically provided in any private, nonprofit elementary or secondary school which is located in the school district, shall be provided in the public schools of the school district, in a public center, or in mobile units located off the private, nonprofit elementary or secondary school premises as determined by the school district; and, if so provided in the public schools of the school district or in a public center, transportation to and from such public school or public center shall be provided by the school district.
“Auxiliary services” include “therapeutic psychological and speech and hearing services” and “programs and services for exceptional children.” Kan.Stat.Ann. § 72-5392(b). The term “exceptional children” is defined as school age persons who “differ in physical, mental, social, emotional or educational characteristics to the extent that special education services are necessary to enable them to receive educational benefits in accordance with their abilities or capacities.” Kan.Stat. Ann. § 72-962(f). They include “gifted children.” Kan.Stat.Ann. § 72-962(g).
Having concluded that the IDEA and its regulations provide at least partial relief to the Fowlers, we now consider whether the Kansas statute provides any greater relief— i.e., the provision by the District of an interpreter on-site at Collegiate regardless of the cost.
As the district court observed, the Kansas statute requires the provision of an “auxiliary service” on an “equal basis” unless it cannot be “practically provided.” We can find no authoritative case law from Kansas elucidating the meaning of those phrases. We agree with the district court, however, that the state law “must be read in light of the federal regulations and the [Kansas State Plan for Special Education Article XII].” Fowler,
III. Attorney’s Fees
Under § 1415(e)(4)(B) of the IDEA, district courts may award attorneys’ fees “to the parents or guardian of a child or youth with a disability who is the prevailing party.” “Congress intended the term ‘prevailing party5 to mean the same under § 1415(e)(4)(B) as it does under 42 U.S.C. § 1988.” Urban v. Jefferson County Sch. Dist. R-1,
CONCLUSION
Although the parties have argued in their appellate briefs about the cost of an interpreter at Collegiate and the average cost of providing interpreters to hearing-impaired students at Caldwell, the district court made no specific findings on that issue, other than the following general finding, that “[t]he cost of providing interpretive services to Michael at Collegiate may be higher than the cost of those services at Caldwell. However, some increase in cost is not necessarily financially burdensome to the District.” Fowler,
Notes
. SEE II is a more demanding form of signing than the more prevalent American Sign Language ("ASL”). Donald Oltean, the Hearing Impaired Coordinator for the District, testified that SEE II is more difficult to learn, and involves more physical signing than ASL. Appellants' App., R. Vol. IV at 1111. The District advertised and recruited in an effort to fill the interpreter vacancy, without success, due to an apparent shortage of “well-qualified [interpretive] personnel.” Report at 11-12, Parents* Ex. B., Appellant’s App. Vol. Ill at 692-93.
. The IDEA, which provides for federal money to state and local agencies to enable them to educate children with disabilities, requires an IEP for each child. A child’s IEP establishes perfor-manee levels, goals, a schedule of services to meet the educational needs of the child, and criteria for evaluating progress towards meeting those goals and needs. See Urban v. Jefferson ' County Sch. Dist. R-l,
. Michael's mother, Barbara, therefore served as Michael’s interpreter at Wichita Collegiate during the 1994-95 school year.
. The Fowlers apparently relied primarily on Kansas law before the hearing officer.
. As an example of the ambiguity and lack of clarity of the regulatory scheme, we note that § 300.451(a) provides that SEAs must merely provide "for the participation” of voluntarily-placed private school students in special education services “to the extent consistent with their number and location.” Yet, § 300.452 provides that LEAs "shall provide” such special education services to those students. Thus, those regulations appear to give discretion to SEAs to determine the level of participation, but arguably require LEAs to provide those services. As we discuss further, infra, the EDGAR regulations, incorporated by reference into the IDEA regulations, do not impose any such mandate on LEAs.
. 34 C.F.R. §§ 76.651-.662, which the IDEA regulations incorporate by reference, are from the Education Department General Administrative Regulations (“EDGAR”).
. We apply both state and federal law standards. "State standards that impose a greater duty to educate handicapped children, if they are not' inconsistent with federal standards, are enforceable in federal court under IDEA.” Union Sch. Dist. v. Smith,
. The district court in this case relied heavily on one of the district court cases, K.R. ex. rel. M.R. v. Anderson Community Sch. Corp.,
. The Supreme Court also recognized that cost was a relevant factor in evaluating the obligation of a school district to provide services under the IDEA’S predecessor statute, the Education of the Handicapped Act. See Irving Indep. Sch. Dist. v. Tatro,
. While the burden-shifting rule of Cefalu has some initial appeal, because it presents an orderly and logical way for the LEA and the student to present their evidence and make their case for or against the provision of particular services on-site at a private school, we decline to follow it, for the simple reason that such a burden-shifting rule has no basis in the language of the IDEA or its regulations. Moreover, in our circuit, we have stated that the "burden of proof ... rests with the party attacking the child’s individual education plan." Johnson v. Indep. Sch. Dist. No. 4,
.The reference to the “number" and "location" of private school students must mean, as the Russman court held, that where economies of scale, or geographical considerations, make it economically infeasible to provide certain services at private school locations, LEAs may make them available only at public school settings.
. In concluding that school districts should not be obligated to pay more for special education services for voluntarily-placed private school students than they would for the identical service provided to public school students, we note that this might initially appear to conflict with one of the EDGAR regulations, which the IDEA regulations incorporate by cross-reference. As stated in 34 C.F.R. § 76.655(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 public schools.
Id. The district cotut in this case relied upon this provision to support its conclusion that the District was obligated to provide interpretive services to Michael at Collegiate, despite the possibility that it would be more expensive to do so.
In our view, that single regulation cannot alter what appears to be the intent of the IDEA and the other regulations, which clearly put voluntarily-placed private school students on a different footing than public school students. If, as we and other courts have held, such private school students are not entitled to the identical special education services as public school students, but rather an equitable opportunity to participate in comparable benefits, it would be anomalous to provide that the local agency "shall” spend "a different average amount” on the entire group of private school students, possibly a much greater average amount, “if the average cost of meeting the needs of those students is different from the average cost of meeting the needs” of public school students. For example, if three hearing-impaired students attend three different private schools, the average cost of providing those three students with interpreters would surely be much greater than the average cost of providing interpretive services to three hearing-impaired students clustered in a single public school.
In sum, we doubt that Congress intended such a result under the IDEA; thus, the regulation must not have intended such a result, or, if it did, we will not give effect to such an interpretation. See Joy Technologies, Inc. v. Secretary of Labor,
. For example, if a LEA has no hearing-impaired students in its public schools, there would be no costs from which to derive an average. Other particular factual scenarios may result in a variety of average cost estimates for different LEAs.
. The Kansas State Plan provides, in pertinent part, as follows: "K.S.A. 72-5393 and K.A.R. 91-12-39 sets [sic] forth the responsibilities of school districts for children and youth with an exceptionality enrolled in private schools.” Plan at Ch. XII, Policies § 1, Appellant’s App., R. Vol. V at 1337. It further states that “school districts must make available to private school students ... appropriate special education services, as specified in an individualized education program.” Id. at § 1(b). Evidently tracking the language of federal regulations, the Plan also states that:
[t]he services provided to private school students must be comparable in quality, scope, and opportunity for participation in the services provided for public school students. However, if the needs of students enrolled in private schools are different from the needs of students enrolled in public schools, the local education agency must provide different services appropriate to individual needs.
Id. at § 2. The Plan does not include a provision comparable to 34 C.F.R. § 76.655(b), which discusses costs of meeting the different needs of private school students.