Com. of Va., Dept. of Educ. v. Riley

Page 559

106 F.3d 559

65 USLW 2530, 116 Ed. Law Rep. 40, 20

A.D.D. 810

COMMONWEALTH OF VIRGINIA DEPARTMENT OF EDUCATION, Petitioner, v. Richard W. RILEY, United States Secretary of Education United States Department of Education, Respondents Virginia School Boards Association, Amicus Curiae.

No. 95-2627.

United States Court of Appeals Fourth Circuit.

Argued Dec. 4, 1996.

Decided Feb. 5, 1997.

ARGUED: William Henry Hurd, Deputy Attorney General, Office of the Attorney General, Richmond, VA, for Petitioner. Leslie A. Simon, United States Department of Justice, Washington, D.C., for Respondents. ON BRIEF: James S. Gilmore, III, Attorney General, Paul J. Forch, Senior Assistant Attorney General, Joan W. Murphy, Assistant Attorney General, C. Tabor Cronk, Assistant

Attorney General, Office of the Attorney General, Richmond, VA, for Petitioner. Deval L. Patrick, Assistant Attorney General, Dennis J. Dimsey, United States Department of Justice, Washington, D.C., for Respondents. D. Patrick Lacy, Jr., Kathleen S. Mehfoud, Hazel & Thomas, P.C., Richmond, VA, for Amicus Curiae.

Before WILKINSON, Chief Judge, and RUSSELL, WIDENER, K.K. HALL, MURNAGHAN, ERVIN, WILKINS, NIEMEYER, HAMILTON, LUTTIG, WILLIAMS, MICHAEL, and MOTZ, Circuit Judges, sitting en banc.

Chief Judge WILKINSON and Judges RUSSELL, WIDENER, ERVIN, WILKINS, NIEMEYER, HAMILTON, LUTTIG, WILLIAMS, MICHAEL, and MOTZ voted to reverse. Judges MURNAGHAN and K.K. HALL voted to affirm.

OPINION

PER CURIAM:

Part B of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1411-20 (Supp.1996), affords federal financial assistance to state and local education agencies for the education of disabled students. In order to qualify for funds under the IDEA, a state must submit a plan describing the policies and procedures governing the expenditure of the federal funds to the Office of Special Education Programs ("OSEP") for approval, and must meet certain additional requirements. One of these additional requirements is that the state "assure[ ] all children with disabilities the right to a free appropriate public education." 20 U.S.C. § 1412(1) (Supp.1996). The Secretary of Education is directed to suspend all IDEA payments to a state if, after notice and opportunity for a hearing, the Secretary determines that the state has failed to substantially comply with any of IDEA's additional requirements. See id. at § 1416(a).

In August of 1992, the Commonwealth of Virginia submitted to OSEP its IDEA plan governing fiscal years 1993-95. The plan was conditionally approved and the Commonwealth received IDEA funding for 1993. The United States Department of Education subsequently learned that the State had in effect a policy--like that the State maintains for its non-disabled students--pursuant to which it could cease providing free education to disabled students who are expelled or suspended long-term for behavior unrelated to their disabilities. Invoking IDEA's requirement that states assure all disabled children "the right to a free appropriate education," the Department threatened to withhold Virginia's entire $60 million annual IDEA grant for fiscal years 1994 and 1995 unless Virginia amended its policies to provide private educational services to each of the State's 126 disabled students who had been expelled for reasons wholly unrelated to their disabilities.

Virginia refused to so amend its policy, maintaining that IDEA does not prevent school officials from discontinuing educational services to disabled students so long as those students are suspended or expelled for reasons unrelated to their disabilities. Virginia petitioned this court for interlocutory review, and we ordered the Secretary of Education to conduct an evidentiary hearing. See Virginia Dept. of Education v. Riley, 23 F.3d 80 (4th Cir.1994). The United States persisted in its position after the hearing, and on July 3, 1995, the Secretary issued a final ruling, providing in effect that, unless Virginia amended its disciplinary policy so it was no longer possible to discontinue the education of disabled students, the federal government could cut off all funding to Virginia under the IDEA.

Virginia appealed, claiming inter alia that, in order to condition a state's receipt of federal funds, Congress must clearly manifest through the language of the statute an unambiguous intent to do so, and that the IDEA included no such clear statement. On appeal, a divided panel of this court affirmed the Department of Education's construction of the IDEA and administrative ruling. See Commonwealth of Virginia v. Riley, 86 F.3d 1337 (4th Cir.1996). Judge Luttig dissented. See id. at 1347-58. On October 11, 1996, the court granted Virginia's petition for rehearing en banc.

After reviewing the record and briefs, and following oral argument, Chief Judge Wilkinson and Judges Russell, Widener, Wilkins, Luttig, and Williams voted to reverse the ruling of the United States Department of Education and to adopt as their own the dissenting panel opinion of Judge Luttig, Commonwealth v. Riley, 86 F.3d 1337, 1347-1358 (4th Cir.1996), which holds as follows:

1. In order for Congress to condition a state's receipt of federal funds, Congress must do so clearly and unambiguously. See South Dakota v. Dole, 483 U.S. 203, 207, 107 S.Ct. 2793, 2796, 97 L.Ed.2d 171 (1987). Language which, at best, only implicitly conditions the receipt of federal funding on the fulfillment of certain conditions is insufficient to impose on the state the condition sought.

2. Title 20, U.S.C. § 1412(1) guarantees that all children with disabilities be provided "the right" to a free public education; this section does not purport to require that every disabled child be provided a free public education regardless of state disciplinary policies governing the provision of educational opportunities to disabled students expelled or suspended for criminal or other serious misconduct wholly unrelated to their disabilities. Since the plain language of the IDEA does not, even implicitly, condition the receipt of IDEA funding on the continued provision of educational services to disabled students who are expelled or suspended long-term due to serious misconduct wholly unrelated to their disabilities, the United States Department of Education was without authority to condition the Commonwealth of Virginia's receipt of IDEA funding on the continued provision of free education to such students.

3. A substantial constitutional question under the Tenth Amendment would be presented were the Secretary of Education's interpretation of the IDEA upheld, as the withholding of the Commonwealth's entire IDEA funding allotment because of its refusal to provide private tutors to the 126 disabled students expelled or suspended for serious misconduct wholly unrelated to their disabilities resembles impermissible coercion, if not forbidden regulation in the guise of Spending Clause condition.

Judge Niemeyer wrote a separate opinion concurring only in Part I of Judge Luttig's dissenting panel opinion and in the judgment. Judge Hamilton wrote a separate opinion concurring only in Part I of Judge Luttig's dissenting panel opinion and in the judgment, which was joined by Judge Ervin. Judge Michael wrote a separate opinion concurring in the judgment. Judge Motz wrote a separate opinion concurring in the judgment. Judge Murnaghan wrote a dissent, which was joined by Judge Hall. Judge Hall wrote a dissenting opinion.

Copies of Judge Luttig's dissenting panel opinion, and all other opinions filed in this case, are attached.

REVERSED.

LUTTIG, Circuit Judge, dissenting:

For misconduct wholly unrelated to their disabilities, the Commonwealth of Virginia disciplines its handicapped students in the identical manner that it does its non-handicapped students. Believing that students--handicapped or not--who so completely disrupt the classroom as to prevent the educational process to continue or who actually commit serious crimes against society forfeit by their own misconduct their right to a free education, the Commonwealth expels such students from its classrooms until such time as they are willing to conform their behavior to that necessary for education to occur. During the period of expulsion, as part of the State's overall program for discipline in its public schools, the State allows its local school boards to suspend educational services to the expelled students. That is, for neither expelled handicapped nor expelled non-handicapped students does the Commonwealth require its local school boards to provide private tutors or other educational alternatives following expulsion, whether the expelled student finds himself in prison, in detention, or at home. Explaining its reasons for this policy, the State says: "[A] caring public school organization ... applies this discipline as a last resort 'wake-up' call of accountability." Br. at 9. And, within the Commonwealth, this disciplinary tool has proven to be one of the most effective means of instilling a sense of personal responsibility and accountability in the few obstinately antisocial among the State's youths. Indeed, the experience of the State is that "it is rare for an expelled student, when readmitted [which most are], to be expelled again." Id. at 11.

Bringing the full weight of the Federal Government to bear against the Commonwealth's educational policy decision not to require private tutors in prisons and elsewhere for students who have committed serious crimes or otherwise so disrupted the educational process as to require their expulsion, the Department of Education has, in the first such enforcement action ever against a state, withheld Virginia's entire $60 million annual Individuals with Disabilities Education Act ("IDEA") grant until the Commonwealth capitulates to the Department's demands that it provide private educational services to these expelled handicapped students, 126 in number. This,...