Virginia Department of Education v. Riley

OF VIRGINIA COMMONWEALTH EDUCATION, OF DEPARTMENT

Petitioner, RILEY, States Secre United

Richard W. Education; De

tary United Education, Respondents.

partment of Association, Boards School Curiae.

Amicus 95-2627.

No. Appeals, States Court

United Circuit.

Fourth 4, 1996.

Argued Dec. 5, 1997. Feb.

Decided Hurd, Deputy Henry William ARGUED: Attorney General,

Attorney Office Richmond, VA, Les- General, Petitioner. for Simon, A. United States lie D.C., Justice, Washington, Respondents. Gilmore, III, Attor- S. James ON BRIEF: Forch, General, Assistant Senior Paul J. ney General, Assis- Murphy, Joan Attorney W. Cronk, General, As- Tabor Attorney C. tant 560 General, Attorney

sistant Office of the Attor- Department United States of Education sub- General, Richmond, VA, ney for sequently Petitioner. learned that the State had in effect Patrick, Attorney Deval L. Assistant policy—-like a Gener- that the State maintains for its al, Dimsey, Depart- Dennis J. United States students—pursuant non-disabled to which it Justice, D.C., Washington, ment of for Re- could cease providing free education to dis- Jr., Lacy, spondents. D. Patrick Kathleen S. abled expelled students who are suspend- or Thomas, Mehfoud, P.C., Richmond, & long-term Hazel ed for behavior unrelated to their VA, for Amicus Curiae. disabilities. Invoking requirement IDEA’S that states assure all disabled children “the WILKINSON, Judge, Before Chief and right to a appropriate education,” RUSSELL, WIDENER, HALL, K.K. Department' Virgi- threatened to withhold MURNAGHAN, ERVIN, WILKINS, nia’s entire million annual grant $60 IDEA HAMILTON, NIEMEYER, LUTTIG, years for fiscal Virginia and 1995 unless WILLIAMS, MICHAEL, MOTZ, and policies amended its provide private edu- Judges, sitting en banc. Circuit cational services to each the State’s 126 disabled students who had been for Judge Judges Chief WILKINSON and wholly reasons unrelated their disabilities. RUSSELL, WIDENER, ERVIN, Virginia WILKINS, NIEMEYER, refused HAMILTON, policy, to so amend its maintaining LUTTIG, WILLIAMS, IDEA MICHAEL, prevent does not and school discontinuing officials from education Judges MOTZ voted to reverse. al services to long disabled students so MURNAGHAN and HALL K.K. voted to those students suspended affirm. for reasons unrelated to their Virgi disabilities. OPINION petitioned nia this interlocutory court for re view, and we Secretary ordered the of Edu PER CURIAM: cation to evidentiary conduct an hearing. B Part of the Individuals with Disabilities Virginia See Dept. Riley, Education v. (“IDEA”), Education Act §§ U.S.C. 1411- (4th Cir.1994). F.3d 80 The United States (Supp.1996), affords federal financial as- persisted position in its hearing, after the sistance to state and local agencies July and on Secretary issued a for the education of disabled students. ruling, final that, providing effect unless qualify order to for IDEA, funds under the a Virginia disciplinary amended its policy so state plan must describing poli- submit longer possible was no to discontinue the cies procedures and governing expendi- students, education of disabled the federal ture of the federal funds to the Office of government could cut off funding all Virgi Special (“OSEP”) Programs Education nia under the IDEA. approval, and must meet certain additional Virginia appealed, claiming that, requirements. inter alia One of these additional re- in order to condition state’s quirements is that the state “assure[] all funds, Congress clearly must mani children with disabilities the to a free through fest the language of the statute an appropriate public education.” 20 U.S.C. unambiguous so, 1412(1) intent to do § and that (Supp.1996). Secretary of Ed- IDEA included no such clear statement. On ucation suspend is directed tó all IDEA pay- appeal, panel a divided if, this court affirmed ments to a state after opportu- notice and of Education’s nity construction hearing, for a Secretary determines of the IDEA and ruling. administrative the state has failed to substantially com- Commonwealth Riley, ply F.3d of IDEA’S require- additional (4th Cir.1996). Judge 1416(a). Luttig dissented. ments. See id. See id. at 1347-58. On October August the Commonwealth of granted court Virginia’s petition for rehear Virginia submitted to OSEP its plan IDEA ing en banc. governing years fiscal plan 1993-95. The was conditionally approved and the Common- After reviewing the record and wealth received funding briefs, for 1993. The following argument, oral Chief separate opinion Russell, Niemeyer wrote a Judge Judges Widen- Judge Wilkinson Judge Luttig’s in Part I of Wilkins, concurring Luttig, and Williams voted er, judgment. De- ruling dissenting panel opinion United States reverse adopt separate opinion Judge of Education Hamilton wrote partment Judge opinion of dissenting panel Judge Luttig’s concurring only in Part I of own Riley, F.Bd v. Luttig, judgment, dissenting panel opinion Commonwealth the (4th Cir.1996), which holds joined by Judge 1347-1358 Judge Ervin. which was as follows: concurring separate opinion a wrote Michael a Congress to Judge sepa- wrote a judgment.

1. In order condition in the Motz funds, Congress concurring judgment. of the opinion state’s rate unambiguously. clearly and dissent, do so must was Judge Murnaghan wrote a Dole, South Dakota Judge Hall a joined by Judge Hall. wrote dissenting opinion. best, (1987). which, im- Language dissenting panel Copies Judge Luttig’s receipt of federal conditions the plicitly opinions all other filed this opinion, and condi- of certain funding on the fulfillment case, attached. are impose on state insufficient to the tions sought. condition REVERSED. 1412(1) guarantees Title U.S.C. 2. provid- be children with disabilities all LUTTIG, dissenting: Judge, Circuit education; public right” to a free ed “the wholly to their For misconduct unrelated require to purport not section does this disabilities, the Commonwealth provided every disabled child its students disciplines regardless state public education that it its non-handi- identical manner does provi- policies governing disciplinary Believing that students— capped students. opportunities dis- to of educational sion completely dis- handicapped or not—who so suspended for expelled or abled students prevent to the edu- rupt classroom as whol- or other misconduct criminal serious actually to continue or who process cational Since the ly to their disabilities. unrelated society against forfeit crimes commit serious not, IDEA does even language of the plain right to a free own misconduct their their receipt of IDEA implicitly, condition education, expels such the Commonwealth provision of edu- funding on the continued time until such from its classrooms students who to disabled students cational services behavior willing to conform are suspended long-term due expelled or necessary to occur. for education to wholly to unrelated serious misconduct to expulsion, part During period disabilities, De- the United States discipline in its program for overall State’s was without author- of Education partment schools, its local the State allows Vir- ity Commonwealth of to condition the suspend services school boards funding receipt of IDEA on ginia’s is, for neither expelled students. That to the provision of free education continued expelled non-handi- handicapped nor expelled such students. re- capped students does Commonwealth question A constitutional substantial

3. pri- provide local school boards quire its would be the Tenth Amendment under alternatives or other educational vate tutors Secretary of Edu- were the presented expelled expulsion, whether following upheld, interpretation of the IDEA cation’s detention, prison, himself student finds withholding of the Commonwealth’s as the for this Explaining reasons its or at home. funding allotment because entire caring public says: “[A] policy, State provide private tutors refusal to discipline this applies ... organization school suspend- 126 disabled students accountabili- “wake-up’call of resort as a last wholly unrelated for serious misconduct ed And, within Common- ty.” Br. at 9. impermissi- resembles their disabilities proven to be wealth, disciplinary tool this coercion, regulation in forbidden ble instilling means most effective one of the guise Spending Clause condition. personal responsibility obligated provide sense of and account- person with an ability obstinately in the few antisocial education? Indeed, among youths. expe- State’s Yes, COUNSEL: I believe that the statute that “it

rience of the State is is rare for an specifically contemplates provision student, when readmitted [which special education services even in institu- are], expelled again.” most to be Id. at 11. .... tions weight Bringing full Federal THE go COURT: So State has to against Government to bear the Common- felony tutor to this murder- policy wealth’s educational decision not to er. That’s the of Education’s require private prisons tutors in and else- view? where for students who have committed COUNSEL: Yes. disrupted serious crimes or otherwise so argument, 4,1996. April Oral process require the educational as to their require order to provide the States to expulsion, Department the of Education private education to expelled students for has, in the first such enforcement action reasons unrelated to handicaps, state, against ever Virginia’s withheld en- thus commandeer from the States their core tire million annual $60 Individuals with Dis- ensuring function of discipline order and (“IDEA”) grant abilities Education Act until schools, Congress would have had to the capitulates Commonwealth to the De- spoken have unambiguous affirmative and partment’s provide demands that it private terms, so that question there could be no expelled educational services to these handi- only whatsoever of its intent. Not did the students, This, capped 126 in number. not- unambiguously require not the withstanding that the State continues to provide States to continuing education at provide 128,000 education to the some hand- issue, it all but codified the common sense icapped students who have abused the proviso that such an education need not be opportunity provided them extended to such students. through cooperative efforts of the Com- States, monwealth and the United including majority, Because holding that the handicapped those students whose miscon- yield States must Department of Ed- expulsion duct warrants but who are not demands, places ucation’s this impri- court’s expelled because their misconduct relates to matur on what I believe to be an unautho- their disabilities. rized, unconstitutional, if not exercise of authority federal peculiarly over matters argument In an only the Federal Gov- province within the States re- make, ernment could and which majority served to them the Tenth Amendment to uncritically accepts, Department of Edu- Constitution, I dissent. Department cation and the of Justice con- tend that the State’s provide pri- refusal to

vate tutors for expelled students I. for criminal or other serious misconduct un- A. any way

related in to their disabilities vio- lates the Virginia’s condition on receipt of Secretary of Education and the Assis- IDEA funds to “assure[] all [to] students Attorney tant acknowledge, General right with disabilities the to a appropri- free must, IDEA at most implicitly ate According education.” to the De- conditions the receipt upon States’ of funds partments Education, of Justice and both the provision continued of educational ser- policy require statute and sound the States expelled vices to students for misconduct un- provide tutors, private taxpayer’s ex- handicaps. related to their See Decision of pense, even to convicted murderers: Secretary, Proposed Withholding Pro-

THE COURT: Does the ceeding, 94-76-0, Docket No. (July at 5 1995) (“[T]he Education take the view that a disabled IDEA does explicit not contain young person felony commits a murder language precludes which the cessation of incarcerated, and is then the State is still education services for disabled children who right mis- student who has forfeited his to such long-term suspended are services, disability.”); Re- than when it does not an to their unrelated conduct (conceding 35 n. to a student who chooses not to spondent’s Br. at Secretary impose seeks to opportunity avail himself of the at all. the condition we are here only “implicit”). Because is majority interpretation errs conditioning congressional concerned with precisely ignores the statute because funds, this of federal of the States’ to,” key phrase “the and instead focus- upon basis acknowledgment is itself sufficient See, exclusively e.g., es the word “all.” reject the Federal Government’s n. 13 ante at 16 n. 86 F.3d required to argument (“Virginia interpre- has concentrated on the services providing educational continue children,’ phrase tation of the ‘all but we students, as I discuss these infra. have concluded that ‘all’means ‘all’ and For, for the States to be bound order appropriately concentration should more monies, receipt of upon the condition statutory requirement focussed on the of ‘a affirmatively im- Congress must have ”). appropriate public education.’ In do- and unmistak- that condition clear posed so, course, entirely ing majority begs adjustment to statutory An terms. able question must in order to we decide Feder- power between the critical balance that, indisputable It as a resolve this case. cannot be au- and the States al Government receipt special of education condition to the implicitly. thorized funds, place policy must have in the States But, question of turning to the before handicapped assures “all” children heightened the stan- whether IDEA satisfies is, something; question the what is that statutes that affect applicable to federal dard something. from And it could not be clearer the Feder- power of between the distribution something is the face of the statute that that States, it should be al and the Government right appropriate public to” free “the impose, im- IDEA does not understood that from the education. If this were not evident otherwise, the condition for plicitly or language, statute’s then it should be evident argues, even under the Federal Government upon the derisible result that follows from statutory construction. ordinary standards interpretation—that the the alternative IDEA does not provision relevant required, taxpayers’ expense, to States are in effect “a require that the States have jails, personal dispatch prisons, to resi- handicapped children a all policy assures dences, private to instruct those stu- tutors condi- appropriate public education”—a free disrupted have so the classroom dents who view, which, require my still would not tion that of their that their own instruction and provide to handi- States impossible. rendered fellow students was hav- capped children for misconduct course, Virginia Of the Commonwealth disabil- ing nothing to do with their whatever policy required precise has effect Rather, that, requires in order to it ities. every handi- the statute. extends funds, special education qualify for federal school-age the Common- capped child within policy effect a “ha[ve] the States public education right to a free wealth right children with disabilities assures all it does appropriate to his disabilities. What public 20 appropriate education.” to a free require that understandably—is not do—and added). 1412(1) Thus, (emphasis § U.S.C. handi- discipline their local school boards observed, repeatedly Supreme Court (for conduct unrelated capped students only requires infra, the statute see discussion disabilities) differently from their non- handicapped children provide that the States students, provide education- handicapped And, to such an education. with access youths handicapped al even to those services right of access to right, other edu- right to a free who have forfeited may be forfeited educational services by wilfully engaging contumacious cation antithetical to the criminal or other conduct ultimate as to warrant the state, conduct so serious accordingly, more A no itself. Regulations expulsion. Gov- discipline of satisfy condition when fails to the statute’s Programs for Chil- erning Special Education to a educational services refuses to continue Virginia, Supreme recognized, dren with Disabilities Court has the stat (“If 3.3(B)(ll)(b)(4) § there is no causal con- purpose ute’s was to ensure that disabled the misconduct nection and the dis- [between students are not denied access to a free ability] appropriately child was public disabilities, education because misconduct, placed at the time or because misconduct related to their disciplined child the same as a non- Rowley, disabilities. See Board Educ. v. child.”)-1 nothing And lan- disabled 176, 3034, 458 U.S. S.Ct. L.Ed.2d 690 guage purports of IDEA even to condition (1982) (referring repeatedly purpose spe- the Commonwealth’s of IDEA’S giving Act as one children cial education funds State’s submis- education); 214, public access to id. at inexplica- sion the Federal Government’s (White, J., (“[T]he dissenting) S.Ct. at 3055 that it now do so. ble demand give handicapped Act intends to children an opportunity commensurate with anything purpose Nor does of IDEA children.”);2 Doe, given Honig other suggest required that the State to succumb to the Federal Government’s demands.' The (1988). The open statute was enacted “to express, purpose codified IDEA is “to public door of education” to handicapped stu assure that all children with disabilities have dents, Rowley, appropriate available to them ... 102 S.Ct. at 3043, one million emphasizes special eight education which out of million of whom had been designed systems education and related services excluded from school unique country needs ... [and] meet their to assist across the because of their disabili ties, and localities to many the edu- id. at through pretextual cation of all children with disabilities....” discipline, use of see 1400(c) added). (emphasis Honig, U.S.C. As 484 U.S. at 108 S.Ct. at 604. procedural requirements 1.Because discipline 4. A review committee was then imposes upon any change the States before long-term held to the review recommended effected, placement of a disabled student can be suspension. upheld long- This committee including requirement prove that the States suspension. term wholly that the misconduct was unrelated to the sought process” hearing. 5. Parents a "due disability, expulsion student’s of a disabled stu- hearing 6. First level officer found no causal is, matter, practical actually dent ably as a consider- connection. expulsion more difficult than of a non-hand- hearing 7. Second level officer also found no See, icapped e.g., student. 20 U.S.C. causal connection. 1415(b)(1)(D), 1415(b)(1)(E), 1415(b)(2), §§ 8. The incident occurred when the student 1415(c), 1415(e)(2); Rowley, Board Educ. v. of and, despite stringent was 15 the IDEA-B 176, 182, 458 U.S. 102 S.Ct. 73 time-lines, process appeals eight the due took (1982) (”[T]he imposes L.Ed.2d 690 Act extensive months. procedural requirements upon receiving States Petitioner's at 36 Br. n. 21. Even after these provisions.”). federal funds under its taken, procedural steps parents were and the process As the Commonwealth recounts the at- right challenge disabled student still had the to tending expulsion handicapped of one stu- disciplinary action in state or federal court. dent: 1415(e)(2). See 20 U.S.C. Deficit/Hyperactivi- 1. Student with Attention ty brought Disorder "ADHD” lcnife to school 199, Rowley, 2. See also 458 U.S. at 102 S.Ct. at reported by hidden in his boot. The knife was (referring to caselaw alleged brought female student who he had expressly enacting enunciating relied in IDEA as the knife on other occasions and had threat- "right education”); public of access to free id. questioned ened to stab her. When he denied 200, ("[N]either 102 S.Ct. at 3047-48 knife, the Act boot, having the refused to untie his told history persuasively nor its demonstrates him, that right officials had no to search Congress thought equal protection required that eventually surrendered the knife. The student access.”); anything ("Desir- equal more than id. consequences being knew the discovered though goal maximizing able [the probably expulsion. each handi- would be, capped potential] might child's causality 2. it is not the The first committee concluded Congress imposed upon standard that there was no causal connection between the Rather, disability. funding conduct and the which receive under the Act. parents sought Congress sought primarily identify 3. The reconsideration to and evalu- children, causality handicapped second committee ate was convened. It and to them education.”). relationship. concluded there was no causal with access to a free Therefore, to other children. when a nothing in this laudable there is Not properly expelled, handicapped child is require the that would of IDEA purpose providing school district cease all provision of educational services continued services—just as it could in reasons for handicapped students do otherwise amount other case. To would statutory handicap, un related asserting all that acts of a by interpreting the fully achieved purpose is child, bad, good fairly both attrib- such, thereby require language so as not handicap. utable to his We know that States, urged in the manner reserving to the is not so. Commonwealth, their historical re by the added, (emphasis Id. at 1482 footnote discipline of their school sponsibility for the omitted); citations see also Doe v. Board of Ninth held As even the Circuit children. (N.D.Ill. Educ., 79411, 1996 WL at *3-4 Feb. (9th Cir.1986), Maher, 793 F.2d Doe v. 16, 1996);4 Koger, F.Supp. Doe v. Doe, nom., Honig sub as modified aff'd (N.D.Ind.1979). 98 L.Ed.2d Justice, Department is That the what notably opinion its left portion in a deceptively emerging pattern as a selec Supreme Court in Honi undisturbed quotation that threatens to undermine in tive g:3 respect this court and others the traditional properly de- misbehavior is If the child’s see, e.g., Department, Thomas accorded his to be a manifestation of termined not (4th Perry, son v. 80 F.3d 939-41 Cir. handicapped child can be handicap, 1996) J., concurring), (Luttig, believes it nec does not conflict expelled. This conclusion essary phrase right omit “the to” on a child’s misbehav- When [IDEA]. virtually every it occasion when recites handicapping from his ior does not result requirement “as statute’s the States condition, justification simply no there is all children with disabilities the sure[ ] rules, education,”5 only includ- exempting appropriate public him from the for to a free un- likewise expulsion, applicable confirms ing regarding those subsequently agreed Doe 4. The district court in 3.Although of Justice maintains decision, Depart noting question that the effectively we to reconsider Honig decided the Education, contrary interpretation confront, ment of Education's Secretary does statute, only recently which it had become majority, recognizes that it did not. even the aware, WL to deference. See was entitled Secretaiy, supra, (noting at 6 Decision (N.D.Ill. 1996). Apr. *2 As disability expulsion conduct unrelated to an applicability explain infra, ”); because of the by Honig unaddressed "the circumstance left rule, that we the deference "clear statement” Secretary's ("[U]pholding deci the ante at 568 agency interpretations am ordinarily of afford with the in the case at bar is consistent sion biguous inapplicable in a case such as statutes is (em ruling Honig Supreme v. Doe." Court's Thus, expect court's would the district this. I added)); Metropolitan phasis School Dis see also original decision to be reaffirmed. Cir.1992) Davila, 485, (7th F.2d 493 trict v. 969 denied, issue.”), (“Honig reach this cert. did not 1360, 949, 122 L.Ed.2d 740 507 U.S. (1993). 113 S.Ct. of its “Sum substantive sentence 5. In the first Honig the addressed example, The Court in mary Argument,” the Assistant for of that, question school districts could unilat of whether Attorney IDEA unam "[t]he writes General change placement states, erally of disabled students the requires participating a con biguously disruptive growing funds, "dangerous or conduct receiving for to assure that dition of 308, 484 U.S. at 108 provided out of their disabilities.” appropriate public education is 596; at 598 see also id. at 108 S.Ct. Respondent’s S.Ct. at ("The 'all children with disabilities.’" dispute grows out of the efforts of present quoting (selectively U.S.C. 20 Br. at emotionally expel two dis 1412(1)). "Argu officials] to [school § ment,” the first sentence its General, indefinitely again vio Attorney turbed children from school for se the Assistant 1412(1), disruptive related to their dis lectively quoting lent and conduct claims from section added)). unambigu (emphasis language To the extent abilities." of the IDEA is "[t]he opinion speak participating can be that a free the Court’s read states must assure ous: us, suggests, given 'all appropriate public the Ninth is available to issue now before above, And holding quoted that the States Id. at 17. children with disabilities.'" Circuit’s submissions, Department’s required throughout edu to continue to are not ("[T)he expelled See id. at 16 conduct is made. to students for same omission cational services provision special handicaps. 108 statute mandates Id. at unrelated to their disabilities.”); id. services to ‘all’ children at 606-07. 566 Congress pose not upon

derstands that has conditioned no burden the States unless it receipt upon unambiguously.” Rowley, of federal funds does so the States’ 458 U.S. provision of education to at 190 n. (citing continued 102 S.Ct. at 3042 n. 11 least, Pennhurst, 1540). 17, 101 students, or, very that it 451 at the under- U.S. at S.Ct. at Congress Congress unequivocally has not done so with If stands has not condi clarity required appropriation receipt for of a tioned of federal funds in the manner Education, by Department There would no core state function. be other claimed reason for such intentional omission these of Justice on its (even if, behalf, manifestly inquiry three relevant in one’s then our is at an end. view, short, dispositive) words from the clear, upon unambiguous Insistence stat provision before us. thirteen-word utory expression congressional intent receipt

condition the States’ of federal funds particular in a especially important manner is B. where, here, the claimed condition re majority’s interpretation of, quires Whether the the surrender of one if not the Congress of, the statute significant powers which believe most or functions better, however, is the is not even reserved to the States the Tenth Amend intended whether, question. question See, is in ment—the education of our children. terms, unmistakably e.g., Honig, clear 484 U.S. 108 S.Ct. at 596 (“[E]ducation receipt conditioned the States’ of federal ‘perhaps impor [is] most provision funds educational ser- tant govern function of state and local ” Educ., vices to those students (quoting ments.’ Brown v. Board of 483, 493, handicap: 686, 691, misconduct unrelated to their 347 U.S. 74 S.Ct. 98 L.Ed. (1954))); Congress desires to condition “[I]f Bradley, Milliken v. 418 U.S. funds, 717, 741, 3112, 3125, States’ of federal it ‘must do 94 S.Ct. 41 L.Ed.2d 1069 (1974) (“No unambiguously....’” so single South Dakota v. tradition in edu Dole, 203, 207, 2793, 2796, 483 U.S. 107 S.Ct. deeply cation is more rooted than local con (1987) (quoting schools....”); L.Ed.2d Pennhurst trol operation over the — Halderman, Hosp. State U.S. —, —, Sch. & Lopez, U.S. United States v. 1, 17, 1531, 1540, 1624, 1632, (1995) 101 S.Ct. 67 L.Ed.2d 694 115 S.Ct. (1981)).6 Indeed, (“[Education Supreme Court itself is an area] where States histori cally invoked Pennhurst’s clear sovereign.”). context, rule have been In this statement addressing provision the identical of the we in judiciary special labor under a here, reasoning IDEA at issue obligation that it is a legislature “assure[ ] proposition Congress, faced, “fundamental has in fact bring intended into issue, when exercising spending power, can im- the critical matters involved ” ("[Congress] (quoting has declined to override the Hosp. ute.’ Atascadero State v. Scan lon, 234, 242, special mandate that IDEA’S education services provided disabilities."); Pennhurst, to all children with citing L.Ed.2d 171 ("[The necessarily implicit id. at 34 907)); condition] Gregory 104 S.Ct. at v. Ash requirement appropri- 452, 460, 2395, 2401, IDEA'S that a free croft, 501 U.S. 111 S.Ct. provided ate education be to all (1991) ("[Where] children 115 L.Ed.2d [congression 410 disabilities.”); ("The requirement with id. at 36 al interference [with a core state function] would provide special that states education services to upset the usual constitutional balance of federal disabilities, including all children with those un- powers[,] upon and state ... ‘it is incumbent suspension disciplinary expulsion, der is clear Congress' courts to be certain of intent specific.”). finding before that federal law overrides' this Atascadero, 243, (quoting balance.” 473 U.S. at Police, at 3147, Michigan Dep’t Pennhurst, 6. Will v. State citing 491 105 S.Ct. 465 U.S. Cf. 58, 65, 2304, 2309, 907)); U.S. 109 S.Ct. 105 Murray, L.Ed.2d at at 104 S.Ct. Torcasio v. 57 (1989) (describing "ordinary (4th Cir.1995) 45 as an rule of (holding F.3d 1344-46 that statutory principle "Congress speak construction” the that "if unequivocally must before ” Congress intends to alter'the ‘usual ‘clearly’ constitutional [courts] will conclude that it has in denied, functions), balance between the upon States and the Federal Gov- truded core state cert. ernment,’ —, it must make its intention to do so U.S. 116 S.Ct. 133 L.Ed.2d — unmistakably (1996). language clear in the of the stat- 724 Bass, activity capped students for criminal judicial States decision.” United 515, 523, 336, 349, 30 L.Ed.2d 92 S.Ct. to U.S. or other misconduct unrelated their dis- also, (1971); e.g., Gregory, 501 U.S. see majority abilities. The is unable to cite to a Bass); (quoting at 2401 S.Ct. single word from the statute or from the (same); Will, 65, 109 S.Ct. at 2309 491 U.S. legislative history evidencing of IDEA that (same). Torcasio, 57 F.3d at 1344 condition, Congress even considered such a possibility much less that confronted the argues, in what of Justice concession, implications such a condition and its for the majori- and the I understand as States, sovereignty of the and determined to ty accepts, in what I understand as an admis- sion, ambiguity in the in that in the event of condition the States’ funds this manner. issue, to a rea- provision IDEA we defer Departments As the of Education and Jus- interpretation by agency, as we sonable acknowledge, tice themselves at most interpreting a statute which has no were implicitly receipt statute conditions the power implications for the balance of be- And, they funds in the manner contend. as I and the tween the Federal Government above, this; explain it does not even do in- It is axiomatic that States.7 We do not. deed, interpretation the better of the statuto- altogether statutory ambiguity defeats ry language Congress required is that claim the Federal Con- Government provide handicapped the States to children gress unambiguously conditioned the has education, reserving with access to an receipt of federal monies in the man- States’ States—intentionally or otherwise—the au- Grego- in ner As the Court stated asserted. thority discipline handicapped to students as ry v. Ashcroft: appropriate, deem for criminal actions [v. as this Court Garcia San [I]nasmuch any way misconduct unrelated Auth., 469 Antonio Metro. Transit those students’ disabilities. majority appears believe mere- (1985) political primarily to the ] has left ly indisputably because section 1412 sets against process protection of the States receipt forth conditions on the States’ Congress’ intrusive Commerce exercises (“In funds, § see 20 U.S.C. order absolutely cer powers, we must be Clause qualify subchap- this for assistance under Congress an exer tain that intended such year, á demon- ter fiscal State shall give state-displacing cise. “[T]o Secretary following congression strate to the weight of federal law to mere added)), ambiguity very proce ...” (emphasis al would evade are met: conditions lawmaking spoken sufficiently dure for on which Garcia relied Congress ipso facto protect states’ interests.” satisfy require- clearly the clear statement However, Gregory, Supreme ment. 452, 464, 111 rejected very understanding (1991) this Tribe, Court (quoting L. Ameri- L.Ed.2d (2d holding 6-25, requirement § clear statement p. 480 can Constitutional Law ed.1988)). disposition of the case should control the There, that the us. the Court held before Applying the clear statement rule Act, Employment Age Discrimination rights required solicitude for the polit- employees of “a State or which covered system, apparent in our federalist it is State,” ical subdivision of a 29 U.S.C. through spoken has not 630(b)(2)—a today’s provision that under anywhere clarity IDEA with near the unambiguously majority opinion would seem required degree specificity for us to judges, apply did not to state to cover state special conclude that States’ not unam- judges provision did because education funds is conditioned biguously Congress intended such provision to handi- reveal continued of education 4, requirements (citing tary's interpretation of the statute's 7. See ante at 8 n. 86 F.3d at 1341 n. Chevron U.S.A.Inc. v. Natural Resources Council, entitled to substantial defer- is reasonable and ence.”); Defense Inc., 837, 843-45, 104 S.Ct. (“The only whether id. at issue is 2781-83, (1984)); 2778, Re- 1412(1)] interpretation cf. Secretary’s is [section (“Even spondent’s at 26 if the statute were Br. reasonable.”). however, ambiguous point, on this the Secre- conclusion, (Blackmun, J., joined by reaching this 111 S.Ct. at 2418 a result. Marshall, a clear statement is dissenting) (arguing Court reasoned Justice determining simply in whether required deference, Chevron rather than clear state- States, but also applies a statute rule, appropriate). ment was applies in the statute- determining whether 1412(1), neither the text of section Since Gregory, 501 manner claimed. particular legislative history, purpose nor of the fact, 460-70, at 2400-06. suggests, IDEA much even less mandates join declined to and Stevens Justices White necessary clarity with the confirm that the discussion in Justice the'“clear statement” Congress actually confronted and deliberate opinion for the Court because it O’Connor’s decided, ly that a state must continue to by urged the Common- adopted position provide education chil services disabled by majority in rejected this wealth and expulsion dren after for misconduct unrelat case: disabilities, reject I ed would imposes upon majority nevertheless [T]he Department interpreta of Education’s new requirement. Congress “plain statement” contrary tion to the as ultra vires.8 would majority require this claims to derive hold that the ful Commonwealth plain approach statement ment from the statutory obligations fills its under section developed in our Eleventh Amendment 1412(1)by affording cases_ all disabled students the cases, in those how The issue right appropriate public to a free education— ever, Congress intended a was whether students, that disabled like non-dis particular statute to extend to the States students, by abled can forfeit case, criminal activi present by con at all. ... In the ty or trast, serious misconduct unrelated to their Congress expressly extended the free, disabilities.9 While the States are coverage of the ADEA to the States and fashion, regulate employees. Its intention Faustian to surrender unto the Fed age is thus “un discrimination separately eral Government that which de mistakably language in the of the clear powers fines them as from that autonomous Atascadero, at 242 [473 U.S.] Government, statute.” plain it is have not 3147]_ only dispute [105 S.Ct. at Nor, done so this instance. for that mat precise of the over the details statute’s ter, Congress sought has the to exact such an application. have never extended the We Indeed, abnegation from them. I would be plain approach that far.... statement astonished of the United 475-76, (White, Departments States was even aware that J., Id. at at 2409 dissenting part, contending of Education and concurring part, Justice are oth concurring judgment); id. erwise before this court. cf. 103-382, Department 8. The of Education did not even ica’s Schools Act of Pub.L. re- 1412(1) interpretation arrive at of section printed § in 20 U.S.C. 8921 note. That uncodi- litigation it advances in this until provides stay-put provision fied section that the See, years passage e.g., fifteen of IDEA. after interpreted the IDEA "shall be in a manner Virginia Dep't Riley, 23 F.3d 85- Educ. v. Department’s that is consistent with the final (4th Cir.1994) (describing Department's guidance concerning responsibili- State and local interpretation a "new on condition” ties under the Gun-Free Schools Act of 1994.” funding); Secretary, supra, at 1 Decision of the portion guid- 20 U.S.C. 8921 note. The of the (referring interpretation n. 1 to the 1989 ance memorandum which the United " ("The compliance”); ‘new condition’ of id. relies, interprets provisions States IDEA, other Hearing Department's Officer also that the found stay-put provision. Dep’t not the See U.S. IDEA-B, enforcement of while neither uniform Educ., Concerning Guidance State and Local constant, arbitrary capricious nor was not Responsibilities Under the Gun-Free Schools Act added)). (emphasis -" ("[T]he reprinted in J.A. at 219 requires that educational services must categorically reject Department's

9. I would continue, although they may provided in an- byzantine argument, alternative which it briefed setting, for other students with disabilities who argument, policy but abandoned at oral that the properly expelled.”). Accordingly, por- Department's this interpretive outlined in the letter incorporated has itself been tion of the of Education's memoran- into the statute 314(b) Improving statutory virtue of section Amer- dum has' not been elevated to law.

569 higher II. drinking ages.” enact minimum Id. 1412(1) interpret I section of Because impose as not to IDEA so States Here, contrast, in stark the Federal Gov- they provide private condition that tutors ernment has withheld from the Common- services to' and other alternative educational special wealth 100% an annual egregious expelled students grant of million because of the Common- $60 disabilities, I conduct unrelated to their need provide private wealth’s failure to educational Amendment issue that not resolve the Tenth percent services to less than one-tenth of one contrary presented upon reading (126) 128,000handicapped students for however, say, statute. Suffice it to that I special whom the education funds were ear- regard considerably that issue as more sub- And it entirety marked. has withheld the majority, stantial than does the which all but $58,000 grant—only this million $60 rejects it out of hand. would, basis, pro on a rata be available for educational services to the 126 stu- recognize that the Court has not invali dents—because the State refused to surren- Congress Spend

dated an Act of under the der control over its Butler, own classrooms and ing Clause since United v. 297 States by abandoning schoolchildren one of its most 1, 312, (1936), U.S. 56 S.Ct. 80 L.Ed. 477 over maintaining effective tools for order and dis- century ago. half a But United States v. cf. — see, 565, cipline, e.g., Lopez, v. Goss 419 U.S. —, 1624, Lopez, U.S. 115 S.Ct. 131 580, 729, 739, (1975) 95 S.Ct. 42 L.Ed.2d 725 (1995); L.Ed.2d 626 Seminole Tribe v. Flori — (“Suspension is considered not da, to be —, 1114, U.S. 116 S.Ct. 134 necessary (1996). tool to maintain order a valu- However, L.Ed.2d 252 as Chief Jus device.”). able educational As even the De- Court, Rehnquist, tice on behalf of the re concedes, partment of Education under the Dole, cently reminded in South Dakota v. 483 interpretation of the statute 2793, embraced 203, U.S. 107 S.Ct. today, “Congress[has] drastically court cur- recog “[the Court’s] decisions have autonomy respect tailed local to disci- that in

nized some circumstances the finan pline and denial of educational services to by Congress might cial inducement offered group this “[a]s children” a condition of pass point be so coercive as to at which ” receiving Respondent’s federal funds.” Br. 211, ‘pressure compulsion,’ turns into id. at at 38. (quoting 107 S.Ct. at 2798 Charles C. Stew Davis, ard Machine Co. U.S. considerably per- This is a condition more 892, (1937)), 81 L.Ed. 1279 “in “relatively encourage- than nicious mild contravention of the Tenth Amendment or of $58,- Withholding ment” at issue in Dole. implicit

restrictions in our form pro funds that rata amount would Co., government,” Steward Machine be used the State to services to at 57 S.Ct. at 890. the 126 students whom the Federal rejected in Dole Court South Dakota’s Government believes are entitled to edu- argument the Federal Government’s cational services under the statute would be drinking age “encouragement.” withholding condition that the State raise its of al- impermissibly for all consumers to was most million from the State and from the $60 case, however, 128,000 Congress responsi- In that coercive. disabled students who have “lose[only] bly had directed that States availed themselves relatively percentage opportunity, simply small of certain federal because the State re- highway noncompliance. yield funds” for their 483 fuses to to the federal demands as U.S. at at 2798. “ah who have abused S.Ct. Because the 126 students impermissible rights, begins South Dakota would lose she to resemble adhere[d] coercion, Dole, her chosen course as to a suitable minimum see S.Ct. age drinking regulation 5% of if not [was] the funds otherwise forbidden condition, well, program, guise Spending obtainable” under the Court Clause 212, 215-18, concluded that had but id. at “offered see Butler, (O’Connor, J., relatively dissenting); encouragement mild 2800-02 (“There Sending troops in is an Commonwealth. at 322 S.Ct. 297 U.S. still, stating more coercive but the exis- between statute would be difference obvious moneys shall be tence of that more coercive alternative does upon which the conditions only upon, withholding effective as- not render to which the expended and one subject obligation is non coercive. to sub- sumption of a contractual Commonwealth could not regulation which otherwise mit to a Ultimately, if the Court meant what it said enforced.”). be Dole, in think that a Tenth then would majority’s two efforts to of the Neither highest claim of the order lies Amendment reasoning import of Dole’s suc- escape the (ac- where, here, as the Federal Government percentage of the total monies ceeds. The majority’s cepting interpretation of the by for education of the expended the State statute) entirety withholds the of a substan- represented by the fed- handicapped that is grant ground tial federal on the that assessing coer- grant is irrelevant eral obligation refuse to fulfill their federal inducement,' ap- at least as civeness of the respect than in some insubstantial rather opinion in Dole. pears from the Court’s Were policy Washington to the dictates of submit otherwise, grant it the same federal peculiarly powers in a matter within their as unconstitutionally be co- same amount would circumstance, sovereign In such a States. State, not as to another ercive as to one argument as to coercion is much more greater pur- amount for the expends which rhetoric; argument than it is an of fact. See indeed, by grant; poses were served Dole, at 2798. It otherwise, perverse created a there would be is, well, argument an the Federal spend less in areas incentive for the States has, in an act more akin to Government they expected to receive federal regulation permissible than to forbidden con- monies, more vulnerable in order to render dition, supplanted policy prefer- with its own theory any under the coercion conditions judgments ences the considered the States Thus, majority’s effort to imposed. were youth as to how to instill in their best withholding compare here to the the 100% personal responsibility sense of and related Dole, by noting withholding in that the 5% values essential for them to function in a free special funds consti- million $60 such, society. argu- and civilized As it is an percent only “approximately tutes five of the well-grounded in ment the Tenth Amend- Virginia’s disabled funds needed to educate respective- ment’s reservation “to the States children,” 1346; compare Respon- ante at ly, people” “powers to the those not (claiming that dent’s Br. at 43 delegated by to the United States the Consti- grant “provides percent nine most the. tution, by prohibited nor it to the States.” providing special cost of educational services * * * * * * disabilities”), to no avail. to children with is Equally unavailing majority’s effort to is the end, permissi- In the this case is about the observing import by avoid the of Dole that a power Spend- reach ble of federal under the $1,000” withholding 100% a “mere edu- ing Clause a time when the several States grant unduly cation would not be coercive. increasingly dependent upon have become and, grant The difference between a $1000 funds, the Federal Government for because here, grant, insofar as their million $60 increasingly Federal Government be- concerned, potential coercive is is self-evi- dependent upon come the revenues from tax- dent. ation it from the receives citizens argument particular, made counsel for the several it is about the States. responsive of Justice is no more extent to which the Federal Government federalism, recognized by may, system impose constitutional barrier our majority’s. contending policy preferences upon by placing Dole than are the States coercive, withholding counsel conditions the return of revenues that emphasized citizenry in there were more coercive were collected from the States’ taken, steps might aptly place. such as the first As Justice O’Connor have been the withholding of all federal funds from the observed Dole: however, student, was identified as One limited power is spending If the welfare, “learning due to the student’s disabled” general Congress’ notion language in written skills. An re- weakness financial reality, given the vast the Government, IEP reviewed extensive evaluations that team is Federal of the sources unanimously no causal relation- and found “power to the gives Clause Spending writing barriers, ship disabili- between student’s to invade Congress to tear down ty student’s involvement a and the to become jurisdiction, and the states’ weapons The student was not subject to violation. people, the whole of parliament bragged later expelled. The student self-im- as are save such no restrictions [Butler, at the school that he teachers and students at posed.” held, expelled. 324], course, could not be as Butler This, was of it is not the plan and the Framers’ high at a different In another recent case Spending Clause. meaning of the school, gang adopted a which had student specific name involved in a mob a was 217, 107 S.Ct. at 2801. assault of another One student student. Department According to counsel for a meat hook as involved used melee Education, contin- requiring the States to of weapon. gang members Three of to handi- services provide educational ue to expelled. The other two members of were unrelat- expelled for reasons capped students gang special education students were sense, as a handicaps “make[s] their ed to not been and who are who have pur- light the broad policy, in of of matter receiving still services. statute[,] allow[ing] [and] ... poses of the sole discre- anyone districts confirming school what at 177. And individual J.A. deny ser- not to remotely to decide whether or tion even familiar with Brown, of .children significant number expected, to this Lucille today would have vices lasting ... inflict City ... would disabilities Richmond Public Superintendent Schools, children.” in- on these that the ‘“homebound harm testified ex- education’[after struction’ ‘alternative Virginia, for its The Commonwealth of required by the Fed- pulsion]” that has been only that the steadfastly maintains not part, of Education eral Government’s it misguided, because policy is Department’s just ‘badge of honor’ another has “become most effective disci- of its deprives the State bested the students who have flaunted instilling in tool for and instructional plinary again.” Br. at 10. Petitioner’s public schools the sense especially recalcitrant students lack, sorely that they responsibility system government, so such In our federal event, uniquely is, decisions, policy relating decision intimate- it so policy delicate by the Constitution. to the States within the exclusive ly reserved do to matters poli- States, presumed the Commonwealth’s the wisdom of prerogative And testimony of certainly out cy borne If the is of the States Federal those alone. and administra- local these or expropriate State’s educators intends Government 'volumes, States, testimony speaks sovereign rights that from the tors. other Timian, Legal Hearing affirmatively Assis- unam- at least do so Jane must County Board design Fairfax School and the for the that its is known biguously, tant so overseeing all student disci- responsible political will may marshal then, matters, two il- as follows plinary expropriation. described Even opposition to that recently have taken course, incidents that must ef- Government lustrative the Federal consequence as a that place expropriation in the Commonwealth in a manner fectuate Department’s policy: power of the Education on Federal faithful to the limitations and in Amendment high inhere in the Tenth of FCPS’ In a recent case one undergird principles of federalism schools, part group six students were system governance. entire democratic in a our resulted of students whose actions within these acts Only when the Government handgun being recov- magnum loaded .357 both confidence non-spe- limitations can one have building. school ered deliberately deter- the United States has expelled. were cial education students rights MOTZ, Judge, of the States DIANA GRIBBON Circuit mined to subordinate concurring judgment: Federal interests of the Government consistently so with the and that it has done many explained For of the reasons in Part today con- limitations even constitutional Judge Luttig’s opinion dissent from the against Government as strain the Federal panel majority, I do not believe Con- People. gress unambiguously required the states educational services to disabled first, view, certainly per- my suspended children who have been or ex- second, haps essential limitations these pelled for misconduct unrelated to their dis- power the on Federal has been exceeded in join Accordingly, I abilities. the court’s provision, interpreted at least as it is judgment. today. by the court And with these excesses come, always, yet has a further incremen- MURNAGHAN, Judge, dissenting: Circuit tal, significant, no incursion into less the majority opinion The on rests a conclusion sovereign authority of several As States. unacceptable: I’find for the Federal re- counsel Government only requires [T]he statute [IDEA] sponded, reflecting for a on after moment provide handicapped children with question court’s whether .the And, access to such an education. as with simply saying Education was not right, right other of access to States that it knows better than what is educational services be forfeited good for America’s schoolchildren and then criminal or other conduct antithetical to your imposing that view on the States: “Well state, right accordingly, itself. A no honor, sense, in a that’s what satisfy more fails to the statute’s condition doing Unwilling in this whole statute.” to when it refuses to continue educational acquiesce pretentious abrogation in such a services to a student who forfeited his power, I state dissent. services, right to such than when it does an education to a student who NIEMEYER, Judge, concurring in Circuit opportu- chooses not to avail himself of the part: nity at all. 86 F.3d at 1349. part opinion adopted I concur in I of the actually The case meaning concerns the to majority judgment given be policy to the words “a that assures court. all children with right disabilities the to a appropriate public education.” I have HAMILTON, Judge, concurring Circuit they unambiguously convey found that a judgment: meaning. My Hall, colleague, Judge also dissenting, that, alternatively reasons even if majority Part I of opinion, Because ambiguity, there is following Chevron U.S.A. accord, complete

with which I am in ade- Council, v. Natural Resources Defense matter, quately disposes of the I would not analysis. reach the Tenth Amendment Ac- meaning would lead to the same I cordingly, I majority concur in Part I of the Simply put regard have reached. “all chil- opinion judgment and in the of the court. reaching dren” as to all encompassing Judge joined opinion. Ervin has this height, put algebraically Hall, Judge at 10. assumption ambiguity, gives

on his ambiguous language supposed to exist MICHAEL, Judge, concurring Circuit an 8 bringing but then ascribes least judgment: the total to 10 Secretary because of the agree point Because I with the statutory Education’s construction of the lan- majority’s adopted opinion right guage. majority contrary The reaches a forfeited, here can judg- conclusion, I concur in namely, the statute unam- ment. biguously say. means what does not public children” is meant from the denial of a free education majority argues that “all already handicapped. the case of a child encompass children with disabilities not to suspended. Fol- expelled or who have been view, majority’s Under the the 126 chil- conclusion, majority lowing from that by Virginia’s policy dren affected have “for- suspended or that such concludes right appropriate pub- feited” their to free appropri- rights to a free children lose majority interprets lic education. The misconduct when their ate phrase policy “[t]he State has effect a majori- to their disabilities. is unrelated right assures all children with disabilities the forfeiture ty thereby invents an unmentioned education,” appropriate public to a free not to justify interpreting “all children” creating only “right of access” to such suspended children who are education, include disabled creating not as a federal expelled for misconduct unrelated educational services under the IDEA. receive figure latter, Thereby algebraic is Adoption majority opines, disabilities. materially required require less than 10. to become would States: taxpayers’ expense, dispatch at the mind, object Similarly, with the same jails, residences, prisons, personal pri- “access,” “right” are the words “assures” vate tutors to instruct those students who meaning by imagining a limitation reduced in disrupted so have the classroom that their excluding in IDEA from assur- expressed not own instruction and that of their fellow appropriate public right of the to a free ance impossible. students was rendered children with disabilities who education those 86 F.3d at 1349. suspended for misconduct expelled are Despite majority’s the fact that the view That also re- unrelated to their disabilities. adopts example, unsup- the most extreme clearly ap- 10 the value duces further below record, by point, ported to make its it is plying “all children.” establishing right axiomatic that a statute may specify circumstances also under what I. Congress, right may that be forfeited. how- ever, enacting specified IDEA no majority’s My disagreement with the dis- circumstances under which a disabled child from its position of the instant case stems may by right lose forfeiture the to education- by IDEA right provided notion that the IDEA, whether that be al services under the proposi- For the remarkable is forfeitable. right appropriate public the federal to a free to, majority does not cite tion it has come education, “right or the of access” a free support any provision of the IDEA to its by public created appropriate education as forfeit his that the disabled child can belief majority.1 public right appropriate to a free guaranteed by the statute. At issue Burlington v. Massa School Committee Education, group instant is a of 126 children with case chusetts and to disabilities who have been Virginia providing edu- the issue of Supreme whom has ceased Court addressed during expulsion period. under the Edu cational services waiver of reimbursement (EHA).2 Handicapped Act As expelled children are not the ones cation of the Those recognized requires par- EHA public generally will suffer the Court interested. all, Furthermore, obvious to Virginia provide educational it should be 1. does alternative through pro- Congress, especially various state and local edu- services to members of was many tutors, grams cation, children who are non-disabled though rarely through private will pursuant Compre- from school improve we all live the.circumstances in which services, (CSA). Act Those hensive Services especially are not cut off if disabled children however, appropriate a disabled are not for public edu- from the considerable benefits of exist, child, the extent that such services and to cation. concern, undergirding analysis, majority’s by requiring will be burdened Edu- with Disabilities 2. Precursor to Individuals students, greatly by Virgi- dissipated disabled (IDEA). cation Act provisions to non-disabled nia's of such services children. agen- appropriate, parents would be barred and local educational ticipating states obtaining handicapped children and from reimbursement for inter- cies “to assure guaranteed period placement im in which child’s guardians are their parents or 1415(e)(3).” 373-74, § respect violated Id. at safeguards procedural public at 2004. See also Hudson appropriate edu- S.Ct. provision of Wilson, Through Tyree handicapped children. 828 F.2d to such cation” (4th Cir.1987) (relying Burlington, on Burlington, parents parents Individualized Ed- is now well settled that rejected “[i]t the schools’ child (IEP) despite son and entitled to tuition reimbursement Program for their ucational school without the their unilateral withdrawal of their child from private him in a placed authorities, school.”); County public Hall v. Vance of the local school consent (4th Cir.1985) 1415(e)(3) Educ., of the Act. Thereaf- Bd. 774 F.2d 629 violation ter, sought (relying Burlington) (rejecting on school of- parents reimbursement argument parents’ private with the school. The ficials’ unilateral costs associated argued parents any right withdrawal of child waived to reim- authorities school bursement). right Similarly, to reimbursement nowhere contained in had waived 1415(e)(3). 1415(e)(3) language violating § Section does the statute proceed- provided administrative for the forfeiture or waiver of a that while placement, ings pending appropriate about the child’s disabled child’s to a free “the child remain the then current education. shall placement.” forfeiture, speaking While terms of Cir.1986), Maher, (9th Supreme disagreed. The Court in Doe v. 793 F.2d 1470 Court 1415(e)(3) “says nothing § Honig ' d. as modified sub nom. v. reasoned aff waiver, Doe, pa- responsibility, financial or 98 L.Ed.2d about S.Ct. rights rental to at the conclu- 686 the Ninth affirmed reimbursement Circuit Moreover, if judicial proceedings. finding plaintiffs district court’s that two sion with interpreted parental improperly cut off provision is to emotional disturbances had been reimbursement, principal pur- rights for misconduct to to related their dis Maher, many pose Act cases be defeat- abilities. of the will 793 F.2d at 1481-82. a dictum, way passage, properly ed in the same reimbursement was characterized as never available.” Id. at 105 S.Ct. at the Ninth Circuit stated: 2004. continued that: The Court properly If a child’s misbehavior is deter-

Thus, reading the Town’s mined not under be manifestation of his 1415(e)(3), § parents handicap, are forced to can [disabled] child be ex- may pelled. turn out to leave the child in what be This conclusion does not conflict placement inappropriate an educational or with the a child’s [IDEA]. When misbe- appropriate placement [disabling] obtain havior does not result from his any condition, sacrificing simply justification claim for reimbursement. there is no give rules, exempting The Act was intended to him from the includ- appropriate ing regarding expulsion, children an education and applicable both those one; Therefore, interpreted a free it should not be to other children. when a [dis- objectives. properly expelled, defeat one or the other of child is abled] those the school providing district cease all educational Id. A 105 S.Ct. at 2004. similar services—just as it could in other case. approach necessary case is the instant asserting To do otherwise would amount to purpose principal insure a of IDEA. child, that all acts good [disabled] of a both note, however, “parents The Court did bad, fairly and attributable to his hand- unilaterally change place- who their child’s icap. know that that We so. during pendency proceed- ment of review (internal Id. at 1482. footnote internal ings, consent of the or without the state local omitted). citations officials, school do so at their own financial However, risk. ultimately Supreme If the courts determine that when the Court heard case, the IEP proposed by appeal school officials was of the Ninth Circuit at issue accomplished only per- provision, could with the “stay-put” the Act’s Honig was resort, or a last parents, re- “shall mission that a disabled child states the courts. then current her] or [his main proceedings until various review

placement” 323-24, at 604. The Su- Id. local school offi- completed, unless have been preme Court did not address the Ninth Cir- agree to the parents and the child’s cials cuit’s dicta.4 1415(e)(3) (Supp. § contrary. 20 U.S.C. Using persuasive articulated rationale 1996). who had been Two students whereby Honig the Court refused to read disruptive conduct” aris- to “violent due “dangerousness” exception Act’s into the disabilities, 484 U.S. at see ing from stay-put provision, I to read a “sus refuse 598-600, 312-15, argued that the 108 S.Ct. at pension expulsion for conduct unrelated to unilaterally unless expel them could not state require disability” exception into the Act’s The Su- procedures were followed. those ment that “all” disabled children be assured agreed.3 The Court held that preme Court appropriate public edu “the unequivocal, language of the statute was cation.” has concentrated on the attempt “to rejected school officials’ children,” phrase “all interpretation of the exception into the dangerousness” read a that “all” “all” have concluded means 108 S.Ct. at stay-put provision. Id. appropri more concentration should 604. ately statutory require be focused on the offi- disagreed with school appropriate public The Court ment a “free edu Congress thought Williams, “that Dandridge cials’ contention cation.” See 1153, 1168, to ex- authority of school officials residual 25 L.Ed.2d (words (1970) dangerous J., students from classroom (Douglas, dissenting) clude Instead, 402(a)(1) Id. for comment.” eligible too obvious “all individuals” reasoned as follows: ... Congress’ Court Act reveal [Social Security] very overriding meeting the needs of ... concern think it clear We eligible recipient of aid under AFDC strip of the unilat- each much meant to schools added); ACandS, traditionally programs) (emphasis Inc. authority they had em- eral Co., students, partic- v. Aetna Cas. and Sur. 764 F.2d ployed to exclude disabled (3d Cir.1985) students, (affirming court’s from district inter ularly emotionally disturbed which Congress pretation phrase [insurer] not “all sums doing, In did school. so obligated pay to ...” to legally to shall become powerless school administrators leave students; did, pay plain require insurer to all sums even dangerous how- deal with part in an in ever, damages are caused deny officials their former tiffs school part during period, also caused in sured and “self-help,” to and directed added).5 period) (emphasis another of disabled students the future the removal Educ., found, 5.Virginia v. though, relies Doe Board that the issue was 3. The Court 16, 1996), (N.D.Ill. present 484 U.S. at 317- moot as to one of the students. WL 79411 Feb. 18, Circuit, support 108 S.Ct. at 600-01. ly pending Seventh before the Doe, position. district court held that its In dissent, adopted by Judge Luttig’s panel the en 4. provision of educational ser "[t]he continued court, Circuit's dicta notes that the Ninth banc expelled for to a student who has been vices Supreme by “notably was left undisturbed expressly disability to a is not reasons unrelated Honig." find noth- 86 F.3d at 1351. I Court in regulations, required IDEA or its nor is ing Supreme about the Court’s failure notable Congress intend to believe that there reason point appearing only As as dicta. address a Judge insulating impenetrable shield ed to erect an notes, Luttig Honig decision did not consequences students with disabilities from court in the instant address the issue before the totally unrelated to their disabili of misconduct case; Honig only decision addressed However, granted plain court ties.” the district may ... local authorities “whether ... state or reasoning that tiff's motion for reconsideration unilaterally exclude disabled children from Programs Special Education Office of disruptive dangerous or conduct classroom for growing (OSEP) contrary position opin in an had taken a Honig, out of their disabilities.” positions finding "that the taken ion letter and 308, fact, no dis- 108 S.Ct. at 596. U.S. pute recons, deference”, mot. for OSEP are entitled to expelled in the two exists that students 22, (N.D.Ill. Apr. granted, 1996 WL 197690 expelled because of misbehavior re- Maher were 1996). granted Subsequently, the district court lated to their disabilities. parents guardians II. abilities and their are protected, to assist States and localities to majority’s “excep- Burlington, inAs provide the education of all children with of educational services tion” for the cessation disabilities, and to assess and assure the who are from children for disabled effectiveness efforts to educate children dis- unrelated school for misconduct with disabilities. language abilities, not contravenes purpose guts the of the IDEA but 1400(e) added). (emphasis § 20 U.S.C. statute, enacting IDEA. history legislative Congress’ evinces concerns eight million than children found that more purposes enacting the IDEA. As the States; existed United with disabilities Supreme drafting in Honig, Court noted special education needs were childrens’ these IDEA, Congress guided by two was dis met; fully more than half these being opinions6 trict court which “involved the ex appropriate did not receive edu- children clusion hard-to-handle disabled students.” services; one million of these dis- cational 604; Honig, 484 U.S. at 108 S.Ct. at see entirely from were “excluded abled children S.Rep. Cong., also No. 1st 94th Sess. system”; many public school children reprinted in 1975 U.S.C.C.A.N. participating regular were with disabilities Mills); (discussing Board Educ. v. do not programs school which serve their 176, 194, Rowley, 458 U.S. 102 S.Ct. because their disabilities educational needs (1982) (reference 73 L.Ed.2d 690 undetected; the burden of families of were “suggests princi Mills and PARC that the ap- who often had to seek disabled children ples princi established are the great services at ex- propriate educational extent, ples, significant guided which to a homes; given pense distance from their Act”). drafters of the funding agencies and local appropriate State provide effective education and related could Clearly, legislation. the IDEA is remedial children; State and local services for these statutory A familiar canon of construction responsibility provide chil- agencies had a requires interpret legisla- courts to remedial education; with an dren with disabilities tion, IDEA, broadly such as the to effectuate interest that the Federal “it is in the national goals purposes. Tcherepnin See State and local efforts to Government assist 548, 553, Knight, 389 U.S. provide programs to the educational meet (“we (1967) guided by children with in order to needs of disabilities statutory familiar canon of construction that equal protection of the law.” assure legislation remedial should be construed 1400(b)(1)-®) (1990 Supp.1996). U.S.C. & broadly purposes.”); to effectuate its Philbin purpose is: Lease, Inc., Capital v. General Elec. Auto (7th Cir.1991) (“Title 929 F.2d VII is that all to assure children disabilities legislation remedial which must be construed them, have available within the time liberally.”); Systems Innovative Health v. periods specified # AD8E Plains, City 222, 1412(2)(B) F.Supp. White title, 931 232 appro- BD# of this a free of (S.D.N.Y.1996) (quoting Civic Ass’n priate public emphasizes education which of Giuliani, al., 622, v. F.Supp. et special and services 915 633 related de- Deaf (S.D.N.Y.1996) (“As needs, statute, signed unique to meet their to as- a remedial rights sure that the of children with dis- [Americans with ADA must Act] Disabilities (N.D.Ind.1979) (stating "only pro- defendant's motion for reconsideration conclud 229 that IDEA reflection, ing upon opin expulsion further the OSEP hibits the [disabled] of children who (no interpretative, legislative, disruptive [disability]”) ion letter was are because of their letter, made, however, as such the court was not bound OSEP determination had been as to thus, require disability). that IDEA did not whether was related to found misbehavior provision educational services for a disabled Columbia, expelled suspended child or for misconduct unre 6. Mills v. Board Educ. District recons, (D.D.C.1972), disability), F.Supp. Pennsylvania lated to his or her mot. for 348 866 (N.D.Ill. 11, Children, granted, (PARC) July WL 1996 392160 Ass’n Retarded et al. v. Penn- for 1996); 225, (E.D.Pa.1972). Koger, F.Supp. sylvania, F.Supp. see also Doe v. says pur- special education more. It ... these broadly to effectuate construed be ... kids need months because lose it. pose.”)).7 They ground during lose some the summer.” purpose”, recognizing the “laudable While Independent v. See also Johnson Sch. Dist. 1350, IDEA, nevertheless, 86 F.3d at 1022, (10th 921 F.2d No. 1026-1030 Cir. majority proceeds Virginia’s to sanction 1990) (IDEA requires year-round program providing any educational to cease decision denied, necessary), cert. when children with disabilities services to those 1685, 114 (1991); 111 S.Ct. L.Ed.2d 79 Battle expelled suspended for miscon- are or who Pennsylvania, v. 629 F.2d 280-81 As duct unrelated their disabilities. Con- (3d Cir.1980) (noting problems with retention majority gress recognized, apparent- longer schooling), and need for cert. denied not, ly for disabled does educational services Battle, sub nom. Scanlon ability to the childrens’ children are critical (1981). achieving the successes to have a chance Hence, the cessation of educational services counterparts. of their non-disabled suspended to children with disabilities or ex supra, S.Rep. No. pelled for misconduct unrelated to their dis (“With proper at 1433 edu- U.S.C.C.A.N. ability consequences has drastic for those services, many [disabled children] cation students; consequences apply which do not citizens, productive would be able to become equally suspended to non-disabled students society being contributing to instead of expelled. or Such cessation has a detrimen Others, through burdens. forced remain tal whether a disabled child’s effect miscon services would increase [educational] such disability duct was related or not. reducing independence, thus their de- society”). pendence on majority in equate effect tries to two things: quite expulsion suspen- different or expulsion Heralding the use of as a disci- thing sion is one while loss of access to a free accountability plinary tool to teach children appropriate public education is another. The personal responsibility for their behav- majority in effect seeks to have the lesser ior, Virginia argues that the evidence estab- perform greater. Suppose the work of the expelled is read- lishes that an student who suspended that disabled children can be or likely expelled again. mitted is less regular from schools for their mis- course, Virginia’s argument, ignores evi- handicap. deeds not related to their Of depriving that shows that children dence may happen. course that A student who acts services, who with disabilities badly may, aggravated and should be an likely suspended long-term expelled, or case, by way suspension disciplined or consequences than deni- to have more severe respect expulsion. The difference with during al of educational services a similar suspension expulsion or of children with period for disciplinary their nondisabled however, disabilities, during peri- is that counterparts. suspension expulsion or that child’s od record, Dwyer, Specifically, in the Kevin P. al- educational services must continue an psychologist a certified school in the State of setting. ternative Maryland, testified that children with disabil- provi- experi- Virginia contends that the continued ities who have their education ceased a disabled greater difficulty sion of educational services to ence with retention suspended returning issue is child who has been to school. The retention fact, novel, handicap to his or her principal and is in one of the misconduct unrelated not testified, merely suspension expulsion or why, Dwyer “we have is not a reasons transfer, effectively serve and hence does not 12-month school for kids that are disabled disciplinary goals as a last resort don’t have for kids that are not the State’s we Nothing in privileges “wake-up” call to the student. disabled. That’s one of the children, public availability disabilities or For disabled 7. education’s to all due to their children, not. A alike, obviously statutory language pertains is essential in able and disabled to "all" public's true interest. That is as true or more exceptions with no mentioned. children, their violence is for disabled whether (5th “waking Turlington, 635 F.2d 342 Virginia from S-1 prevents the IDEA denied, Cir.), suspension expul- or cert. these children up” Virginia, the Fifth Circuit regular school. from their sion by IDEA must chil- however, addressed the issue nine disabled as commanded IDEA, by providing an rights children under the when the up” these drens’ “wake during setting expelled alternative from school. After an children were education removal expulsion period. The suspension concluding expulsion or that an constituted a or her usual classroom from his change placement EHA] of the child for IDEA [then inap- to reinforce the discipline will serve and friends court addressed the purposes, the his or her misconduct. propriateness of responding Fifth issue. The Circuit removing argument that the school officials’ “[sjpecial edu- Virginia’s statement disciplinary expulsion with re tool consistently thereby gov- cation students spect to a disabled child would “insulat[e]” accountability and by same rules of erned student, “expulsion disabled the court stated others, governing personal responsibility ” disciplinary ... proper is still a tool when represents an issue disability is not when proper procedures are utilized and under understanding problem the lack Thus, proper circumstances.” Id. at 348. Petitioner’s presented in the instant case. court determined that before a disabled added). Brief, Regrettably, (emphasis expelled could the student was student be disability, disability is for a child with a hearing entitled to a to determine whether that child always an and relevant. For issue disability. his related to his misconduct was suspend- he or she is remains disabled when Nevertheless, that “[w]e the court stated analysis An expelled from school. ed or cannot, however, complete authorize the ces consequences of which fails to consider the during sation educational services an ex services on a the cessation of educational Id.; pulsion period.” Kaelin v. see also fails, child, my view to effectuate disabled (6th Cir.1982) (fol Grubbs, 682 F.2d purpose purposes of IDEA. The stated lowing Turlington analysis to conclude that provide children with the IDEA is to all expelled, only disabled child be after a appropriate a free edu- disabilities process hearing due determines that miscon cation those children can become so handicap, during duct was not related to society, productive members of our expulsion period educational services way children. The same as non-disabled cease); may not and see School Bd. v. Ma possible, designed, to the extent is lone, (4th Cir.1985) 762 F.2d children with the tools nec- disabled (court held that could not disabled student essary gap to close the between them be for behavior caused his dis counterparts. their non-disabled fail to see ability but declined to address “whether ceasing process how the educational serves some level educational services must be goal. lawfully expelled handicapped continued to argument, Undergirding Virginia’s extent.”). child, so, and if to what adopted by majority, the notion not, being children with disabilities are treated Children with disabilities are and can- treated, differently non-disabled counter- than their not same as non-disabled Any parts, argument failure to cease educational ser- students. based on strict students, equality vices to these as schools do with of treatment for disabled and non- students, suspended enacting disabled children must fail. non-disabled IDEA, message granted sends that children with disabili- indeed disabled responsible rights” enjoyed by ties are for their actions. children “more than those example, The continuation of educational services to non-disabled children. For suspended disabled students who are or ex- IDEA confers disabled children the pelled annually in a “harmful an would result double reviewed “individualized program,” prepared standard” of disabled the school between treatment students, district, and, Virginia parents, main- the child’s teacher and non-disabled possible, tains. child when the disabled himself or 1401(a)(2), 20 U.S.C. child must show that he or herself. she would benefit 1414(a)(5) services; (Supp.1996). “stay-put” pro- from such because the IDEA is vision, Honig, represents unequivocal discussed in anoth- permeated and “is with the example conferring special rights upon er words ‘all [disabled] children’ ... the Act in Honig holding entirety children. The disabled its ‘zero-reject’ makes clear that a rationale, implicitly, upon policy Act”), its at least relies denied, is at the core of the cert. premise that children with disabili- basic (1989). differently ties are to be treated than chil-

dren without disabilities. stroke, III. majority

In one fell alters by grafting language onto its an ex- Virginia’s proposed exception IDEA, ception provided by Congress for chil- majority, sanctioned support has no dren with disabilities who have been statutory language of the IDEA. More- suspended or for misconduct unrelated to over, exception majority placed has disabilities, namely the cessation of ed- imprimatur today its on is divorced from the during period ucational services of the very purposes of majority the IDEA. The has suspension expulsion. today’s or Until deci- temptation succumbed to the which we as sion, view, exception my no such existed. In judges steadfastly should resist. We should a state refuses to offer educational services if written, read a statute as it is not rewrite it to a disabled child due to that child’s con- n as we would it like to be. It should be duct—regardless of whether conduct is a Congress not the incorporate courts to disability—then of the child’s manifestation following statute “all children with disabili- right has ceased to assure that child of “the phraseology: ties” the “excluding those ex- appropriate public to a free education.” pelled suspended or for misconduct unrelated belief, Contrary Virginia’s statute to their disabilities.” The statute itas now way no indicates that a disabled child forfeits stands should reach the conclusion that our right or waives that when he or she misbe- legislators have viewed the situation in the haves in a manner unrelated to his or her round and have been growing concerned that disability. up any appropriate public without education legislation well, will, While remedial should con probably indeed lead to broadly strued to effectuate purpose, grownups intelligently, less able to live or at recognize reasonably, that the canon of prone construction does least and more to the im- ignore plain wording proper not allow a court to conduct which had led to his or her case, however, expulsion' statute. the instant or suspension place. the first words, plain language appropriate public IDEA’S leaves no room an other exceptions Virginia kind that produces Special better citizens. classes oth- requires or, asked us to into it. regular read The Act er than those termed where most functional, participating “in appropriate correspon- have effect a resort states policy that assures all children with prepared disabili dence courses teachers no appropriate a public techniques may ties free doubt other be used to en- Hence, unqualified appropriate education.” the IDEA’S an sure education for language sufficiently clear to have enabled disabled children who have been or perceive they suspended adversely authorities to affecting without adjust disciplinary poli would have to expulsion suspension classes wherein of cies for disabled students wished student has occurred. Because participate program. IDEA-B undermining Com I cannot sanction the Rochester, pare Timothy Hamp purposes by leaving W. New IDEA’S noble 126 chil- shire, Dist., (1st 875 F.2d Sch. 960-61 dren with disabilities without Cir.) that, (rejecting argument during period expulsion order to services or sus- IDEA, pension, demand educational services under I dissent.

580 majority’s holding and the essential dissenting:

HALL, Judge, Circuit in analysis supporting it are contained Murnaghan’s dissenting opin- Judge join I part opinion: I-B of its paragraph first however, to set forth separately, ion. I write Congress wants to condition the When affirming the Secre- basis an alternative funds, it in receipt of must do so States’ tary’s decision. “unmistakably clear terms” in the statute. ambiguous, as question is in If the statute rule 86 F.3d at 1352. This “clear statement” it apparently assumes majority the court a and is derived from State School Pennhurst majority that be, agree with the I would Halderman, 1, 101 Hospital v. 451 S.Ct. U.S. “[wjhether Murnaghan’s] interpreta- [Judge pre-Chevron L.Ed.2d 694 a 67 majori- which [the or that tion of the statute following say decision that had the about is the better Congress intended ty] believe[s] is the need for a State to know what it question.” 86 F.3d is not even [] coopera it agreeing to when enters into the however, would, disagree with the 1352. I funding scheme: tive that we majority’s that “the deference view interpretations of ordinarily agency pursuant afford [Legislation enacted to the inapplicable in a case is ambiguous statutes spending power is much in the nature of a are lots funds, at 1351 n. 4. There such as this.” Id. contract: in return for federal complex this” that federally such as involve agree comply “case[s] with im- millions of federal dol- funding programs and legitimacy posed conditions. The of Con- today, our decision lars. In the wake of legislate spend- gress’ power to under the Congress agencies to whom role of the ing power thus rests on whether the State pro- administering these assigned the task of voluntarily knowingly accepts grams uncertain one. is an Congress “contract.” ... [I]f terms of the impose grant intends to condition on the majority of the court would that a believe moneys, unambigu- it must do so federal could, provided it did so agree Congress ously. receipt of funds expressly, condition State’s funding pro cooperative under the (citations omit- Id. S.Ct. continuing gram on the State’s ted). Applying general this rule in the man- students ex to disabled educational services by majority ner advanced Penn- takes to their disabili pelled for reasons unrelated hurst to an unintended level. Dole, v. ties. South Dakota Clause, 207, 107 Spending its discussion (1987) (“In particular considering whether a the Court Pennhurst was concerned that a general pub expected know what was of it it expenditure is intended to serve State when participate funding pro defer substantial chose to a federal purposes, lic courts should 17-18, Congress.”). gram. The stat Id. at ly judgment S.Ct. at 1540. simply utory question, 20 U.S.C. Pennhurst does not for the provision stand 1412(l), unambiguous every arguably proposition § not an detail of a federal- is cooperative funding program expression Congressional intent that such state must be issue, then, itself, provided. spelled out in the statute have services be is we Congress years require will itself not so held in the sixteen since Penn- whether we Indeed, statutory Supreme in unmistakable terms each hurst was decided. define every string recently ever deferred to the is be Court has Secre tary’s interpretation provision of funds under a of an IDEA attached to a State’s funding program, analogous or do we defer before us. cooperative situation one Doe, 8, 108 Honig n. interpretation to a made the See v. reasonable (1988) n. agency to which has dele S.Ct. L.Ed.2d 686 (“Given gated job operating program? ambiguity phrase ‘change [in this former, choosing majority placement’ used 20 U.S.C. eviscerates 1415(e)(3)], the rule of a “clear we defer to the construction Chevron and establishes agency charged monitor unprecedented adopted statement rule” is statute.”) ing enforcing (citing INS unworkable. Cardozo-Fonseca, agency’s 480 U.S. 107 defer to the interpretation. federal (1987)). 1207, 1221, 94 L.Ed.2d 434 J., (Niemeyer, Id. 1470-71 concurring in part dissenting part). in Had the Secre- Secretary gives IDEA The Edu tary’s interpretation in Kozlowski been the administer, authority interpret cation the one that mandated increased contributions and enforce the statute. U.S.C. States, from the we can wonder how the 1417(b). 1402(a), 1416, Secretary’s §§ analysis proceeded would have under the interpretive in rule this case—that even chil by majority rule announced in the case dren for misbehavior unrelated to before us. Given interpreta- two reasonable provided their disabilities be educational ser statute, tions of a each of which would “con- published Virginia vices—was well before dition the State’s of federal in a funds application participation submitted its in particular manner” in the coop- context of a program years for fiscal 1993-95. See funding program, erative federal-state Metropolitan Wayne School Dist. Town yield which would different results as far as (7th Cir.1992) Davila, ship v. 969 F.2d 485 State, the financial effect on participating (discussing history interpretive of the very ambiguity ipso does this defeat the rule), denied, facto cert. 113 S.Ct. government’s interpre- claim that its (1993). Virginia pur adopted? courts, tation should be Should the funding sued the benefits of IDEA with its ambiguity, faced with an always defer to the eyes open. suggest wide Pennhurst does not interpretation advanced the State? What abrogate this court should now those effect, any, if type program does the solely conditions of which was aware money amount of analy- involved have on the precisely because such condition was not example, sis? For spelled pages in should the out the few of the courts accord United some gov Secretary Transpor- States Code that established this sizable deference to the program. regard ernment tation ambiguities highway- statutes, funding but none whatsoever to the An example from another federal-state Secretary of Education? funding program will serve to show the un workability majority’s of the rule. At issue We should not impact allow the visceral Virginia, Rehabilitation Ass’n Inc. v. us—unruly danger- the case before and even Kozlowski, (4th Cir.1994), 42 F.3d 1444 cert. threatening ous students the fabric of our — denied, —, U.S. physical integrity schools and the of our chil- meaning L.Ed.2d 23 was the disguise majori- portent dren—to Medicaid and Medicare statutes’ formula for ty’s analysis or to cause us to forsake the a persons State’s contribution for services to established rule that we defer to reasonable eligible programs. under both Acknowl agency interpretations of the statute. edging apply that Chevron would the stat challenge agency When a to an construc- ambiguous, judges ute were id. two statutory provision, fairly concep- tion of a panel rejected on the nevertheless the Secre tualized, really centers on the wisdom of tary interpretation of HHS’s and instead agency’s policy, rather than whether it adopted interpretation an found to gap is a reasonable choice within left unambiguous be in accord with the clear and open by Congress, challenge must language of concurring the statute. The fail. however, opinion, provides glimpse of what the future hold if Chevron deference is Chevron, 866, 104 at S.Ct. at 2793.

replaced by adopted the clear statement rule Congress necessarily delegated to the Secre majority in our case. tary authority administer the every aspect program because not concluding such After that there was more than adequately interpretation one reasonable can be addressed a statute. of the statutes question, Judge Niemeyer majority’s require rule will that the mi invoked Chev- support cooperative programs ron to court funding his view should nutiae of itself, bringing to the statute spelled out ALLEN, Appellant. complaint Pennhurst re Barbara H.

mind Justice White’s by the Court cases cited that “[n]one hold, Congress is much less suggest, BUREAU, BETTER GOVERNMENT grant of funds with to condition

required INCORPORATED, an Ohio Cor n. U.S. at 48 exactitude.” contract-like poration, Plaintiff-Appellee, (White, J., 14,101 n. 14 dissent- at 1555 v. part). ing in Jr., Attorney McGRAW, Gener Darrell V. disciplin and on the educational Our views Personally al, Virginia, State of West IDEA are ir implicated ary policies Capacity; Better and his Official Judge Luttig at hand. to the issue relevant Bureau of the Attor Office Government why inter the State’s out the case sets Virginia, ney A of West General State policy—everyone should be good pretation is Politic, Body Corporate A Instrumental discipline, when it comes treated alike ity Agency Limited of Government with Murnaghan pres Judge at 1357—and F.3d Quasi-Sovereign Capacity; He Ken government’s argument that ents the federal chler, Secretary State, his Official policy to unbroken ser it is sound Defendants, Capacity, even when children vices disabled unrelated to their dis expelled for behavior v. J., (Murnaghan, dis ability. Ante at 575-79 long goal Party as the senting). WILLIS, But as in Interest. Donna education of disabled legislation—the (as it most certain proper one children—is BUREAU, BETTER GOVERNMENT is), long means selected—the ly as as the INCORPORATED, an Ohio Cor students—is provision of services poration, Plaintiff-Appellee, (as goal Judge Mur- rationally to that related v. is), our task naghan’s opinion demonstrates is at an end.* McGRAW, Jr., Attorney Darrell V. Gener Personally al, Virginia, State of West affirm the of the Secre- I would decision Capacity, Defendant- his Official tary. Appellant. BETTER BUREAU OF GOVERNMENT FICE OF THE GENERAL ATTORNEY Body VIRGINIA, A STATE OF WEST Politic, Instrumentality Corporate A Agency and Government with Limited Quasi-Sovereign Capacity; Ken He chler, Secretary State, in his Official Capacity, Defendants, v. Willis, ALLEN; H. Donna

Barbara in Interest. Parties * certainly holding, accept funding, Virginia federal IDEA To "clear statement” the ma- bolster its large degree "powers unambiguous of its jority on an “surrendered” notes that insistence of its chil- statutory expression functions” relative to the education of a condition on here, not, however, where, majority’s important dis- "especially dren. I do see of funds is requires and the clear cussion of the Tenth Amendment the claimed condition the surrender of, of, Ashcroft, Gregory significant powers statement rule in 452, one if not the most L.Ed.2d 410 or functions reserved to the States the Tenth holding. choosing majority’s By at 1352. essential Amendment.” 86 F.3d

Case Details

Case Name: Virginia Department of Education v. Riley

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Feb 5, 1997

Citation: 106 F.3d 559

Docket Number: 95-2627

Court Abbreviation: 4th Cir.