See Pennhurst State Sch. § 1416(a) (Supp.1996). Judge Luttig dissented. The non-special education students were expelled. at 13, 101 S.Ct. Because we believe such a hearing is required under 20 U.S.C. at 3042, many through the pretextual use of discipline, see Honig, 484 U.S. at 324, 108 S.Ct. At that hearing, Virginia should be permitted to express its various challenges to the Secretary's proposed withdrawal of funding. (1) The Secretary shall approve any State plan and any modification thereof which--, (A) is submitted by a State eligible in accordance with section 1412 of this title; and. At the same time, however, because Virginia's plan cannot be approved until the conclusion of that hearing, the Commonwealth is not entitled to any funds under IDEA-B while the administrative proceedings are in progress. at 2797 ("We have also held that a perceived Tenth Amendment limitation on congressional regulation of state affairs did not concomitantly limit the range of conditions legitimately placed on federal grants."). In Part B of the IDEA--formerly known as the Education of the Handicapped Act1--Congress has directed the Department of Education to provide financial assistance, under prescribed conditions, to state and local education agencies for the education of disabled children. After learning that Virginia has a policy under which a disabled child may be deprived of all educational services by way of expulsion or long-term suspension if that child misbehaves in a manner unrelated to his or her disability, the United States Department of Education threatened to withhold all of Virginia's IDEA-B funds unless it amended that policy so that expelled or suspended disabled children could receive educational services in an alternative setting. The express, codified purpose of the IDEA is "to assure that all children with disabilities have available to them ... a free appropriate public education which emphasizes special education and related services designed to meet their unique needs ... [and] to assist States and localities to provide for the education of all children with disabilities...." 20 U.S.C. 1413 does not speak to the case where a state's plan has been "conditionally" approved and funds have already been allocated and even paid under that plan. 2d 694 (1981). It is clear that this authority is to be exercised sparingly and that relief is not to be granted unless irreparable harm is likely. By insisting that Congress speak with a clear voice, we enable the States to exercise their choice knowingly, cognizant of the consequences of their participation." See State of North Carolina, Envtl. In fact, Justices White and Stevens declined to join the "clear statement" discussion in Justice O'Connor's opinion for the Court because it adopted the position urged by the Commonwealth and rejected by the majority in this case: [T]he majority nevertheless imposes upon Congress a "plain statement" requirement. At stake was all of Virginia's IDEA-B grant for FY 1994, totalling over $50 million. 1413(c) (2). Virginia refused to amend its policy, insisting that, if a child's misbehavior is unrelated to his or her disability, IDEA-B does not strip school officials of their right to deprive the student of all educational services by expelling him or her or by suspending him or her for an extended period of time. After all, Virginia's three-year plan had been "conditionally" approved by the OSERS more than a year before USDOE first challenged Virginia's disciplinary regulations. "), cert. IDEA-B is administered by the Office of Special Education Programs ("OSEP"), within the Office of Special Education and Rehabilitative Services ("OSERS") of the Department of Education ("USDOE"). 2d 171 (1987), "[the Court's] decisions have recognized that in some circumstances the financial inducement offered by Congress might be so coercive as to pass the point at which 'pressure turns into compulsion,' " id. As we explain below, we find the pertinent statutory provisions unambiguous and therefore review the Secretary's conclusions of law de novo.4 See Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 842-43, 104 S. Ct. 2778, 2781, 81 L. Ed. at 22, 101 S.Ct. It concluded there was no causal relationship, A discipline review committee was then held to review the recommended long-term suspension. 1416(a). Secs. This case involves the statutory obligations of the United States to deal fairly with the recipients of funds under federal grant programs. First, to the extent that Pennhurst is analogical authority in support of Virginia's position (as Virginia contends that it is), that case is easily distinguished. After the Department refused to grant it a hearing on the matter, Virginia petitioned this court for interlocutory relief, seeking the release of its $50.2 million IDEA-B allotment for fiscal year 1994. Atty., Robert W. Jaspen, Asst. Virginia believes that the terms of IDEA-B are unambiguous and that we therefore should not defer to the Secretary's interpretation of the statute, but should instead enforce the statute's plain meaning. Riley I, 23 F.3d at 84-87. For example, IDEA-B confers upon disabled children the right to an annually reviewed"individualized education program," prepared by the school district, the child's teacher and parents, and, when possible, the disabled child himself or herself. Sign up to receive the Free Law Project newsletter with tips and announcements. of Justice, Washington, DC, on pleadings), for respondents. 86 F.3d 1337, Docket Number: The Department has simply told Virginia what it believes IDEA-B requires; it has not attempted to create new rights or duties. Petitioner contends that the USDOE's actions leave it with a "Hobson's Choice": either accede to the USDOE's position, or forego more than $50 million in funding already allocated to the Commonwealth's special education programs. at 3043, one million out of eight million of whom had been excluded from school systems across the country because of their disabilities, id. 2d 686 (1988). At stake was all of Virginia's IDEA-B grant for FY 1994, totalling over $50 million. "), mot. "); id. 94-76-0, at 5 (July 3, 1995) ("[T]he IDEA does not contain explicit language which precludes the cessation of education services for disabled children who are suspended long-term or expelled for misconduct unrelated to their disability. at 600-01, The Tenth Amendment states:"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. at 2309 (same); Torcasio, 57 F.3d at 1344 (same). Furthermore, like all of the other sections of IDEA-B and all of the USDOE's regulations governing administration of the IDEA-B program, Sec. See, e.g., 20 U.S.C. Indeed, the statute and the regulations are replete with obligations mandating the process that states must provide to affected children. That the language of the statute should require an administrative hearing here is not surprising. The Department has pointed out that "the issue of whether children with disabilities may be expelled or suspended from school for misconduct unrelated to their disabilities [is wholly distinct from] the issue of whether the statute requires that continuing special educational services be provided to [such] students." at 492. 1416(a) to this case requires that the USDOE provide Virginia with notice and the opportunity for a hearing prior to withholding any further payments to Virginia under the state's existing three-year plan. § 1416(a) (Supp.1996) ("Whenever the Secretary ... finds that there has been a failure substantially to comply with any provision of section 1412 or section 1413 of this title, ... the Secretary shall, after notifying the State educational agency, withhold any further payments to the State under this subchapter ....") (emphasis added). Judge WILKINSON wrote the opinion, in which Chief Judge ERVIN and Judge MURNAGHAN joined. Atascadero [State Hospital v. Scanlon], [473 U.S. 234] at 242 [105 S. Ct. 3142, 3147, 87 L. Ed. We hold only that the Department must follow statutorily mandated procedures before denying further funding to a participant in a federal-state grant program. USDOE also claims that Virginia has not been deprived of statutory procedural protections because the Commonwealth is being afforded a hearing under Sec. In the case before us, Virginia claims that the USDOE has failed to follow statutorily mandated procedures by withholding further funding without affording the Commonwealth notice and a hearing. An agency of the federal government has attempted to discontinue funding to Virginia, a participant in a federal-state grant program, without affording Virginia the most basic elements of due process. It seems only proper that a department which so emphasizes procedural fairness on the part of states would exercise that same fairness in its dealings with them. Research, Evaluation and Reporting • GRADUATION 20/20 • Post-school Outcomes • National Center for Systemic Improvement (NCSI)• Data Support. In order to be eligible for the federal assistance, a state must meet numerous requirements prescribed by Congress, one of which is that the state "assure[ ] all children with disabilities the right to a free appropriate public education." According to one local school division, IDEA funds are needed to support 155 special education personnel positions in that division alone. Gen. of Virginia, Richmond, VA, argued (James S. Gilmore, III, Atty. The Secretary largely concurred with the Hearing Officer's conclusions, finding (1) "that the IDEA-B, its interpretive guidance, and the case law require the continuation of education services to eligible disabled school children who are suspended long-term or expelled from their current school setting when their misconduct is unrelated to their disability;" (2) that "the Department's interpretation of IDEA-Part B is an interpretive rule not subject to the notice and comment provisions of the APA;" (3) that concerns we expressed in Riley I regarding whether the Department was imposing an impermissible new condition on Virginia were cured when Virginia was given the opportunity to present its arguments to the Hearing Officer; (4) that the Department was, in fact, not imposing such an impermissible new condition; (5) that Congress had given the Secretary the authority to withhold all of a state's IDEA-B funds if the state refuses to comply with the Act's requirements; and (6) that, despite those findings, Virginia would have access to its 1995 funds pending its appeal of the Secretary's decision. Unwilling to acquiesce in such a pretentious arrogation of state power, I dissent. First, the state must submit to OSEP a plan covering a period of three fiscal years, describing (among other things) the policies and procedures that will govern the expenditure of the federal funds. at 1537-38. Williams Schoolof Law; Virginia School Boards Association;Fairfax County School Board, Amici Curiae. Indeed, the statute and the regulations are replete with obligations mandating the process that states must provide to affected children. 1416 because Virginia was never actually entitled to that grant. The principal issue in the instant case is therefore this: When Congress stated that all states receiving IDEA-B funds must have "in effect a policy that assures all children with disabilities the right to a free appropriate public education," did it clearly indicate that states receiving IDEA-B funds could not deprive a disabled student of all educational services, even if the student had been expelled or suspended due to conduct unrelated to his or her disability? 1412. Simply put, USDOE's decision to cut off funds allocated to Virginia, based on Virginia's noncompliance with the Department's disciplinary policy, constitutes a "withholding" of further payments under Sec.

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