                                                                   F I L E D
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                                              PUBLISH
                                                                       NOV 4 1997
                         UNITED STATES COURT OF APPEALS
                                                               PATRICK FISHER
                                                                         Clerk
                                        TENTH CIRCUIT



JAY FOWLER and BARBARA FOWLER, parents
and next friend of MICHAEL FOWLER,

                Plaintiffs - Appellees,
        v.                                              Nos. 95-3373
                                                        and 95-3400
UNIFIED SCHOOL DISTRICT NO. 259,
SEDGWICK COUNTY, KANSAS,

                Defendant - Appellant.
-------------------------------------------------

UNITED STATES OF AMERICA; NATIONAL
SCHOOL BOARDS ASSOCIATION; KANSAS
ADVOCACY & PROTECTIVE SERVICES, INC.;
MOST REVEREND JAMES P. KELEHER,
ARCHDIOCESE OF KANSAS CITY, KANSAS;
MOST REVEREND STANLEY G. SCHLARMAN,
DIOCESE OF DODGE CITY, KANSAS; MOST
REVEREND GEORGE K. FITZSIMONS,
DIOCESE OF SALINA, KANSAS; MOST
REVEREND EUGENE J. GERBER, DIOCESE OF
WICHITA, KANSAS; NATIONAL
ASSOCIATION OF THE DEAF; NATIONAL
CUED SPEECH ASSOCIATION; THE
AMERICAN SOCIETY FOR DEAF CHILDREN;
and KANSAS ASSOCIATION OF THE DEAF,

                Amici Curiae.
           APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF KANSAS
                         (D.C. NO. 94-CV-1521)

Roger M. Theis and Thomas R. Powell of Hinkle, Eberhart & Elkouri, L.L.C., Wichita,
Kansas, on the briefs for Defendant-Appellant.

Mary Kathleen Babcock, Timothy B. Mustaine, and Martha Aaron Ross of Foulston &
Siefkin, L.L.P., Wichita, Kansas, on the briefs for Plaintiffs-Appellees.

William Kanter and Frank A. Rosenfeld, Civil Division, Department of Justice,
Washington, D.C., on the briefs for amicus curiae, the United States of America.

Gwendolyn H. Gregory, Deputy General Counsel, August W. Steinhilber, General
Counsel, and Thomas A. Shannon, Executive Director, National School Boards
Association, Alexandria, Virginia, on the briefs for amicus curiae, the National School
Boards Association.

Sherry C. Diel, Kansas Advocacy & Protective Services, Inc., Topeka, Kansas, on the
briefs for amicus curiae, the Kansas Advocacy & Protective Services, Inc.

J. Francis Hesse, Redmond & Nazar, L.L.P., Wichita, Kansas, on the briefs for amicus
curiae, Most Reverend James P. Keleher, Archdiocese of Kansas City, Kansas; Most
Reverend Stanley G. Schlarman, Diocese of Dodge City, Kansas; Most Reverend George
K. Fitzsimons, Diocese of Salina, Kansas; Most Reverend Eugene J. Gerber, Diocese of
Wichita, Kansas.

Douglas R. Cyrex, Gonzales, Louisiana, Marc P. Charmatz and Sarah S. Greer, National
Association of the Deaf Law Center, Silver Spring, Maryland, on the briefs for amicus
curiae, the National Association of the Deaf, National Cued Speech Association, The
American Society for Deaf Children, and Kansas Association of the Deaf.


Before ANDERSON, LUCERO, and MURPHY, Circuit Judges.


ANDERSON, Circuit Judge.




                                           -2-
       In February, 1997, we held that the Individuals with Disabilities Education Act,

20 U.S.C. §§ 1400-1420 (“IDEA”), and the regulations thereunder, as well as Kansas law,

required the defendant, Unified School District No. 259, to at least partially pay for an on-

site sign language interpreter for the plaintiff, Michael Fowler, a deaf child voluntarily

attending a private school. Fowler v. Unified Sch. Dist. No. 259, 107 F.3d 797 (10th Cir.

1997), cert. granted and vacated, 117 S. Ct. 2503 (1997). Both sides filed petitions for

certiorari, which the Supreme Court granted in order to vacate our decision and remand

the case to us “for further consideration in light of the Individuals With Disabilities

Education Act Amendments of 1997.” Unified Sch. Dist. No. 259 v. Fowler, 117 S. Ct.

2503 (1997); Fowler v. Unified Sch. Dist. No. 259, 117 S. Ct. 2503 (1997) (same).1 We

directed the parties to submit simultaneous briefs on the effect of those Amendments on

this case, including the impact, if any, of the effective date of those Amendments and

whether this case should be remanded to the district court for further factual findings. We

have considered the parties’ briefs, as well as the amicus brief filed by the United States,

and we again reverse the district court’s decision and remand for further proceedings.




       Our decision was vacated along with all other cases with petitions for certiorari
       1

pending before the Supreme Court which involved the same or similar issues as the ones
presented in this case.

                                            -3-
                                      BACKGROUND

       We need not set out in detail the facts or procedural history of this case, as they

were stated in our prior panel decision. We only present essential facts as necessary for us

to address the effect of the IDEA Amendments on this case.

       Michael Fowler is a profoundly deaf twelve-year-old boy who, because he requires

specially designed instruction for this condition, qualifies as a child with disabilities

under Part B of the IDEA. He is also gifted, having been found by the school district to

be “of very superior intellectual capacity.” Fowler v. Unified Sch. Dist. No. 259, 900

F. Supp. 1540, 1541 (D. Kan. 1995), rev’d, 107 F.3d 797 (10th Cir.), cert. granted and

vacated, 117 S. Ct. 2503 (1997). After he spent four years at the public school where the

District elected to cluster hearing-impaired students, Michael’s parents voluntarily placed

him in a private nonsectarian school where they felt his intellectual needs would be better

met. They requested that the District provide interpretive services to Michael on site.

The District denied the request. That denial was upheld through administrative

proceedings.

       When the Fowlers appealed the denial to the district court, the district court held

that the District must pay the entire cost of such services. On appeal from that decision,

we held that the District must pay “an amount up to, but not more than, the average cost

to the District to provide that same service to hearing-impaired students in the public

school setting.” Fowler, 107 F.3d at 807-08. We derived that obligation from both the


                                             -4-
IDEA and its regulations and from Kansas statutory law. Because the 1997 IDEA

Amendments address the scope of services to students voluntarily placed in private

schools, the Supreme Court vacated our decision and remanded it to us to consider the

effect of those Amendments.



       I. IDEA:

       The IDEA provides federal grants to states, which states then use as part of the

funds they give to local educational agencies to assist such agencies in educating students

with disabilities. States electing to participate in this system of grants must establish and

have “in effect a policy that assures all children with disabilities the right to a free

appropriate public education.” 20 U.S.C. § 1412(1). Among the many areas of

contention since the IDEA’s passage has been the extent to which children whose parents

have voluntarily placed them in private schools may participate in special education

programs and services provided pursuant to the Act, and, more specifically, what

obligation, if any, a school district has to pay for such services.

       Prior to its recent amendment, the IDEA provided that, with respect to students,

like Michael, voluntarily attending private schools, each state must:

       set forth policies and procedures to assure–that, to the extent consistent with
       the number and location of children with disabilities in the State who are
       enrolled in private elementary and secondary schools, provision is made for
       the participation of such children in the program assisted or carried out
       under this subchapter by providing for such children special education and
       related services.

                                              -5-
§ 1413(a)(4)(A). While the IDEA regulations did make clear that if a “free appropriate

education” (“FAPE”) was available to a student, and the parents voluntarily placed the

student in a private school, the local educational agency was not obligated to pay for the

full cost of the student’s education, 34 C.F.R. § 300.403(a), what was unclear under the

Act and its regulations was the extent of the agency’s obligation to make special

education services available to such a student. Compare Cefalu v. East Baton Rouge

Parish Sch. Bd., 103 F.3d 393, withdrawn and superseded on rehearing, 117 F.3d 231 (5th

Cir. 1997) and Russman v. Sobol, 85 F.3d 1050 (2d Cir. 1996), cert. granted and vacated,

117 S. Ct. 2502 (1997) with K.R. v. Anderson Community Sch. Corp., 81 F.3d 673 (7th

Cir. 1996), cert. granted and vacated, 117 S. Ct. 2502 (1997) and Goodall v. Stafford

County Sch. Bd., 930 F.2d 363 (4th Cir. 1991).

       The IDEA was recently amended by Congress, so that now the Act provides as

follows for children enrolled by their parents in private schools:

           (A) CHILDREN ENROLLED IN PRIVATE SCHOOLS BY THEIR
       PARENTS.–

                     (i) IN GENERAL.–To the extent consistent with the
              number and location of children with disabilities in the State
              who are enrolled by their parents in private elementary and
              secondary schools, provision is made for the participation of
              those children in the program assisted or carried out under this
              part by providing for such children special education and
              related services in accordance with the following
              requirements, unless the Secretary has arranged for services to
              those children under subsection (f):



                                            -6-
                            (I) Amounts expended for the provision
                     of those services by a local educational agency
                     shall be equal to a proportionate amount of
                     Federal funds made available under this part.

                            (II) Such services may be provided to
                     children with disabilities on the premises of
                     private, including parochial, schools, to the
                     extent consistent with law.

                      (ii) CHILD-FIND REQUIREMENT.–The
              requirements of paragraph (3) of this subsection (relating to
              child find) shall apply with respect to children with
              disabilities in the State who are enrolled in private, including
              parochial, elementary and secondary schools.

              ....

            (C) PAYMENT FOR EDUCATION OF CHILDREN ENROLLED IN
       PRIVATE SCHOOLS WITHOUT CONSENT OF OR REFERRAL BY THE
       PUBLIC AGENCY.–

                      (i) IN GENERAL.– Subject to subparagraph (A), this
              part does not require a local educational agency to pay for the
              cost of education, including special education and related
              services, of a child with a disability at a private school or
              facility if that agency made a free appropriate public
              education available to the child and the parents elected to
              place the child in such private school or facility.

Individuals with Disabilities Education Act Amendments of 1997, Pub. L. No. 105-17,

tit.1, § 612(a)(10)(A), (C), 111 Stat. 37, 62-63 (1997) (emphasis added) [hereinafter

Amendments]. There are no final regulations yet implementing the Amendments,

although the Department of Education has recently issued proposed regulations, which




                                            -7-
are now subject to public comment. See Assistance to States for the Education of

Children with Disabilities, 62 Fed. Reg. 55026 (1997) (proposed Oct. 22, 1997).

       The Amendments specified they would “take effect upon the enactment of this

Act,” which was June 4, 1997. Amendments, tit.II, § 201(a)(1). The Amendments

nowhere state that they apply retroactively, and courts addressing the effect of the

Amendments have held they are prospective only. See Heather S. v. Wisconsin, No.

96-3340, 1997 WL 572409, at *19 (7th Cir. Sept. 16, 1997); K.R. v. Anderson

Community Sch. Corp., No. 95-2497, 1997 WL 586432, at *2 n.* (7th Cir. Sept. 10,

1997); Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 247 n.1 (5th Cir.

1997). This is completely consistent with the Supreme Court’s repeated invocation of the

“‘presumption against retroactive legislation [that] is deeply rooted in our

jurisprudence.’” Hughes Aircraft Co. v. United States, 117 S. Ct. 1871, 1876 (1997)

(quoting Landgraf v. USI Film Prods., 511 U.S. 244, 265 (1994)).

       The District argues, however, that the legislative history of the IDEA Amendments

shows that § 612(a) merely “clarified” the IDEA and did not change existing federal law.

Thus, it argues that there is no issue of retroactivity in this case, because the Amendments

simply explain the proper interpretation of the prior version of the statute, and,

accordingly, argues that our panel decision was incorrect under both the pre-Amendments

and post-Amendments IDEA.

       The legislative history upon which the District relies is the following:


                                            -8-
               Section 612 [20 U.S.C. § 1412] contains clarifications of current
       law. . . .

              ....

               The bill makes a number of changes to clarify the responsibility of
       public school districts to children with disabilities who are placed by their
       parents in private schools. These changes should resolve a number of
       issues that have been the subject of an increasing amount of litigation in the
       last few years. First, the bill specifies that the total amount of money that
       must be spent to provide special education and related services to children
       in the State with disabilities who have been placed by their parents in
       private schools is limited to a proportional amount (that is, the amount
       consistent with the number and location of private school children with
       disabilities in the State) of the Federal funds available under part B.

H.R. Rep. No. 105-95, at 90, 92-93 (1997), reprinted in 1997 U.S.C.C.A.N. 78, 88, 90

(July 1997 Supp.) (emphasis added). The Senate Report contains identical language. See

S. Rep. No. 105-17 (1997), 1997 WL 244967 (Leg. Hist.).2


       2
         There was little discussion in the floor debates about the particular Amendments
at issue in this case. What there was is inconclusive on whether legislators viewed the
Amendments as implementing substantive changes. Representative Castle, in endorsing
the bill, stated that “[i]t contains a number of important reforms that address some of [the]
current law’s unintended and costly consequences. . . . This bill makes it harder for
parents to unilaterally place a child in elite private schools at public taxpayer expense,
lowering costs to local school districts.” 143 Cong. Rec. H2498-04 at H2536 (daily ed.
May 13, 1997) (emphasis added). The reference to “reforms” and making it “harder” to
place children in private schools suggests that Rep. Castle viewed the Amendments as
changing the current law.

        Senator Harkin, also in support of the bill, stated “the bill clarifies that public
agencies are required to spend a proportionate amount of IDEA funds on special
education and related services for disabled children enrolled in private [schools].” 143
Cong. Rec. S4295-03 at S4300 (daily ed., May 12, 1997) (emphasis added). He then
stated that “the bill reiterates current policy [referring apparently to the policy of the
                                                                                   (continued...)

                                              -9-
       We have observed that Congress may have various motivations when it amends a

statute. “‘Congress may amend a statute simply to clarify existing law, to correct a

misinterpretation, or to overrule wrongly decided cases.’” O’Gilvie v. United States, 66

F.3d 1550, 1559 (10th Cir. 1995) (quoting Wesson v. United States, 48 F.3d 894, 901 (5th

Cir. 1995)), aff’d, 117 S. Ct. 452 (1996). It is hazardous, however, to assume from the

enactment of a “clarifying” amendment that Congress necessarily was merely restating

the intent of the original enacting Congress. “[T]he view of a later Congress cannot

control the interpretation of an earlier enacted statute.” O’Gilvie v. United States, 117 S.

Ct. 452, 458 (1996); see also Wesson, 48 F.3d at 901 (“‘[T]he views of a subsequent

Congress form a hazardous basis for inferring the intent of an earlier one.’”) (quoting

United States v. Price, 361 U.S. 304, 313 (1960)); Hawkins v. United States, 30 F.3d

1077, 1082 n.6 (9th Cir. 1994) (noting that statutory amendments do not necessarily


       2
        (...continued)
Department of Education as expressed through its Office of Special Education Programs]
that a public agency is not required to pay for special education and related services at a
private school if that agency made a free appropriate public education available to the
child.” Id. (emphasis added). Senator Harkin used the phrase “reiterates current policy”
when discussing the amendment which does, indeed, statutorily codify what the Office of
Special Education Programs thought the IDEA regulations already provided. By contrast,
he used the term “clarifies” when discussing the amendment which removes ambiguity
from a very ambiguous, and unclear, part of the statute and regulations. This may
suggest that he knew the difference between reiteration of current law and amendment
added in order to remove ambiguity.

       In any event, “‘[i]nferences from legislative history cannot rest on so slender a
reed.’” Cipollone v. Liggett Group, Inc., 505 U.S. 504, 520 (1992) (quoting United States
v. Price, 361 U.S. 304, 313 (1960)).

                                           - 10 -
“indicate that Congress gleaned the true intent of previous Congresses”). Additionally,

we have observed that “using [an] amendment to interpret Congress’ intent [years ago] is

a questionable practice, particularly because of the long lapse of time and because the

legislative history of both the original statute and the amendment are not enlightening.”

O’Gilvie, 66 F.3d at 1559. In this case, the length of time is not as long–22 years here

compared to 35 or more years in O’Gilvie–but it is long enough to make us reluctant to

presume that Congress in 1997 was authoritatively interpreting and clarifying what

Congress in 1975 intended.

       In any event, the touchstone is Congressional intent–absent a clear indication that

Congress intended the Amendments merely to clarify the proper interpretation of its prior

Act, we consider the Amendments to implement a change in the Act, and we apply them

only to events occurring after the Act’s effective date. As the Supreme Court has

observed:

              Congress, of course, has the power to amend a statute that it believes
       we have misconstrued. It may even, within broad constitutional bounds,
       make such a change retroactive and thereby undo what it perceives to be the
       undesirable past consequences of a misinterpretation of its work product.
       No such change, however, has the force of law unless it is implemented
       through legislation. Even when Congress intends to supersede a rule of law
       embodied in one of our decisions with what it views as a better rule
       established in earlier decisions, its intent to reach conduct preceding the
       “corrective” amendment must clearly appear.

Rivers v. Roadway Express, Inc., 511 U.S. 298, 313 (1994).




                                           - 11 -
       We therefore hold that our prior interpretation of the pre-Amendments IDEA,

based as it was upon a careful analysis of the Act and its implementing regulations,

applies to the parties in this case with respect to conduct occurring prior to June 4, 1997.

See Amos v. Maryland Dept. of Public Safety & Correctional Servs., No. 96-7091, 1997

WL 581652, at *17 n.8 (4th Cir. Sept. 22, 1997) (noting that “Congress’ subsequent

amendment [of the IDEA] . . . in no way undermines the reasoning of [a prior case]”

interpreting an ambiguous provision of the IDEA). Thus, up to June 4, 1997, the District

is obligated to pay for interpretive services for Michael at his private school an amount up

to, but not more than, the average cost to the District to provide that same service to

hearing-impaired students in the public school setting.

       From June 4 onward, the Amendments apply, which we now endeavor to interpret.

Substantively, these Amendments appear to provide as follows: if the local educational

agency offers FAPE to a child whose parents subsequently voluntarily place him or her in

a private school, the agency is not required to pay for the cost of the child’s education,

including any special education and related services.3 For such students, the local


       3
         The previous regulations stated that for a child offered FAPE, the local
educational agency was not required to “pay for the child’s education” at a private school
the child voluntarily attended. 34 C.F.R. § 300.403(a). The agency was required,
however, to “make [special education] services available.” Id. Now, the Amendments
state that a child offered FAPE is not entitled to the “cost of education, including special
education and related services.” Amendments, tit. I, § 612(a)(10)(C)(i) (emphasis added).
Because this latter section is explicitly made “[s]ubject to subparagraph (A),” which
obligates local educational agencies to spend a “proportionate amount of Federal funds”
                                                                                (continued...)

                                            - 12 -
educational agency’s sole obligation is to spend on such students for their “participation”

in “special education and related services,” “a proportionate amount of Federal funds,”

which amount is apparently to be derived from considering the “number and location” of

such students compared to the total population of students requiring special education and

related services. Amendments, tit. I, § 612(a)(10)(A).4 Thus, the state need not spend

any of its own funds to pay for such services; it need only allocate a portion of its Federal

funds.

         The Act does not make clear, however, whether an equal share of the Federal

funds must be allocated for each disabled child enrolled in a private school, or whether

the proportionate amount must be allocated for disabled private school students

collectively. In the latter case, any particular disabled private school student might

receive an amount different from his or her individual proportionate share, and,

conceivably, could receive nothing. Moreover, it is not clear whether the local


        (...continued)
         3

on voluntarily placed private school students, we assume that § 612(a)(10)(C) of the
Amendments is properly interpreted as providing that students offered FAPE are not
entitled to the full cost of their education, but that, as we explain infra, they do share in a
“proportionate amount” of Federal funds for special education services.

        The proposed regulations define “proportionate amount” as “an amount that is the
         4

same proportion of the [local educational agency’s] total subgrant [under Part B] . . . as
the number of private school children with disabilities . . . residing in its jurisdiction is to
the total number of children with disabilities in its jurisdiction.” § 300.453, 62 Fed. Reg.
55026, 55094 (1997). The proposed regulations also contain a note indicating that state
and local educational agencies “are not prohibited from providing services to private
school children with disabilities in excess of those required by this part, consistent with
State law or local policy.” Id.

                                             - 13 -
educational agency must spend a proportionate share of Federal funds on all special

education and related services needed by private school disabled students, or whether it

has discretion to determine which services it will provide to which students.5 While we


       5
        While we do not have final regulations yet to assist us in interpreting and applying
the Amendments, the Department of Education’s proposed regulations provide that local
educational agencies have discretion to determine how each disabled private school
student shall share in the proportionate share of Federal funds to which all such students
are collectively entitled. Specifically, the proposed regulations provide that, after
consultation with representatives of private school children, the local agency decides “(1)
[w]hich children will receive services . . . ; (2) [w]hat services will be provided; (3) [h]ow
the services will be provided; and (4) [h]ow the services provided will be evaluated.”
§ 300.454(b), 62 Fed. Reg. 55026, *55094 (1997).

        Accordingly, it is possible that the proportionate share of Federal funds would be
zero for any particular private school disabled student. Arguments could be made, based
upon the language and structure of the Amendments, both in favor of and against such a
result.

      For example, the Amendments make it clear that the “child-find” requirements of
the IDEA apply to private school disabled students. Amendments, tit.I,
§ 612(a)(10)(A)(ii). Under the child-find provisions,

       All children with disabilities residing in the State, including children with
       disabilities attending private schools, regardless of the severity of their
       disabilities, and who are in need of special education and related services,
       are identified, located, and evaluated and a practical method is developed
       and implemented to determine which children with disabilities are currently
       receiving needed special education and related services.

§ 612(a)(3)(A). On the one hand, one could argue there is no point to specifying that the
child-find requirements apply to private school children, if there is no intent to provide
some level of service to each such child. On the other hand, the child-find provisions
themselves could be interpreted to merely require the identification of each disabled child
to determine who currently receives services, and not as an initial step towards providing
services to each child so identified.
                                                                                 (continued...)

                                            - 14 -
hope that the Department of Education’s final regulations will provide some guidance, in

the interim we leave it to the district court to initially determine the parameters of the

District’s obligation to Michael after June 4, 1997. In any event, the calculation of

Michael’s share of the “proportionate share” of the Federal funds made available to the

District requires further factual findings necessitating a remand to the district court.6

       5
        (...continued)
       Additionally, the proportionate share of Federal funds is apparently to be allocated
by reference to the “number and location” of private school students. It is unclear why
the location of such students would be relevant, if not to permit the local educational
agencies to take advantage of economies of scale. On the other hand, the Act appears to
address all private school students, and does not evidently contemplate that some
voluntarily placed private school students will receive no services.

       We express no opinion on whether a child whose proportionate share of the
Federal funds in fact turns out to be zero, or a sum substantially lower than other students,
could argue that his or her rights under the IDEA or, perhaps, the constitution, are
violated.
       6
        The District argues in its reply brief that the Fowlers lack “standing to litigate
how the District allocates [Federal] funds collectively for private school students.”
Appellant’s Reply Br. at 3. It also asserts that the district court lacks subject matter
jurisdiction over the matter. Id. at 3-4. The District provides no detailed argument in
support of those claims, other than to cite to virtually identical pre- and post-Amendment
provisions of the IDEA dealing with the Secretary of Education’s right to withhold funds
from a state, which provisions do not indicate that plaintiffs such as the Fowlers lack
standing or that the district court lacks jurisdiction.

        The proposed regulations just issued by the Department of Education state that
“[n]o private school child with a disability has an individual right to receive some or all of
the special education and related services that the child would receive if enrolled in a
public school.” § 300.454(a), 62 Fed. Reg. 55026, *55094 (1997). The regulations
further state that the due process procedures, including the right to bring an action in
court (i.e., the private right of action), “do not apply to complaints that [a local
educational agency] has failed to meet the requirements [concerning the provision of
                                                                                  (continued...)

                                             - 15 -
       II. Kansas Law:

       The Fowlers sought the provision of interpretive services under both the IDEA and

Kansas law. “State standards that impose a greater duty to educate disabled children, if

they are not inconsistent with federal standards, are enforceable in federal court under the

IDEA.” Seattle Sch. Dist. No. 1 v. B.S., 82 F.3d 1493, 1499 n.2 (9th Cir. 1996). In our

prior panel decision, we held that under Kansas law, “construed in light of our

interpretation of the federal regulations, Michael is entitled to no more than he is under

the IDEA and its regulations: the provision of an interpreter on-site at [his private school]

at a cost no greater than the average cost of providing hearing-impaired students with

interpretive services at public schools.” Fowler, 107 F.3d at 810.

       While the Supreme Court’s decision to vacate our prior panel decision was based

upon amendments to the IDEA, its decision also necessarily vacated our holding under

Kansas law. We now consider whether the IDEA Amendments affect our previous

analysis of Kansas law.

       Kan. Stat. Ann. § 72-5393 provides as follows:



       6
        (...continued)
services to private school children], including the provision of services indicated on the
child’s IEP.” § 300.457(a), 62 Fed. Reg. 55026, *55095 (1997).

       Thus, the proposed regulations appear to support the District’s argument. They do
not affect the outcome of this case, however, because the regulations are not final, and
because it is unclear whether the denial of due process procedures is consistent with the
IDEA and its Amendments.

                                            - 16 -
       Any school district which provides auxiliary school services to pupils attending its
       schools shall provide on an equal basis the same auxiliary school services to every
       pupil, whose parent or guardian makes a request therefor, residing in the school
       district and attending a private, nonprofit elementary or secondary school whether
       such school is located within or outside the school district. . . . Speech and hearing
       diagnostic services and diagnostic psychological services, if provided in the public
       schools of the school district, shall be provided in any private, nonprofit
       elementary or secondary school which is located in the school district. Therapeutic
       psychological and speech and hearing services and programs and services for
       exceptional children, which cannot be practically provided in any private,
       nonprofit elementary or secondary school which is located in the school district,
       shall be provided in the public schools of the school district, in a public center, or
       in mobile units located off the private nonprofit elementary or secondary school
       premises as determined by the school district; and, if so provided in the public
       schools of the school district or in a public center, transportation to and from such
       public school or public center shall be provided by the school district.

“Auxiliary services” include “therapeutic psychological and speech and hearing services”

and “programs and services for exceptional children.” Kan. Stat. Ann. § 72-5392(b). The

term “exceptional children” is defined as school age persons who “differ in physical,

mental, social, emotional or educational characteristics to the extent that special education

services are necessary to enable them to receive educational benefits in accordance with

their abilities or capacities.” § 72-962(f). They include “gifted children.” § 72-962(g).

       As we observed in our prior panel opinion, there is no Kansas case law interpreting

these statutes, and, in particular, the statute’s directive to provide an “auxiliary service” at

the private school site on an “equal basis” unless it cannot be “practically provided” there.

We concluded before that cost is relevant to determining whether a service can be

“practically provided” on an “equal basis.” The District argues that, because the IDEA

Amendments have rendered our interpretation of federal law “wrong,” our interpretation

                                             - 17 -
of Kansas law, read in light of our interpretation of the IDEA and its regulations, is also

wrong. However, as we have held above, we do not view our interpretation of the IDEA

prior to the 1997 Amendments, as wrong. We believe it was a reasonable interpretation

of the statute and its regulations. The 1997 Amendments have changed the law, and the

question now is whether our interpretation of Kansas law is inconsistent with the 1997

Amendments. We discern no inconsistency between our prior interpretation of Kansas

law and the 1997 Amendments.

       As indicated above, the Amendments make it clear that under the IDEA, states

need not spend their own money to provide special education and related services to

voluntarily placed private school students, and they need not pay the cost of education,

including special education and related services, to such students to whom FAPE has

been offered. Rather, their only obligation is to make available to such students a

proportionate amount of their Federal funds. However, nothing prevents states from

voluntarily providing more, from their own funds. Thus, we reject the argument that it is

inconsistent with the 1997 Amendments for Kansas law to provide more for disabled

private students than its obligations under the IDEA. And while the Fowlers argue that

we have taken an unnecessarily restrictive view of the state statutes, they point to nothing

which suggests that our prior analysis of the cost limitations on the provision of services

at private school sites, based as it was upon a careful review of the Kansas State Plan for




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Special Education Article XII and provisions in the Plan which were similar to the IDEA

regulations then in effect, is erroneous.

       We therefore hold, once again, that under Kansas law, Michael is entitled to the

provision of an interpreter on site at his private school at a cost no greater than the

average cost of providing hearing-impaired students with interpretive services at public

schools. We accordingly reverse and remand the decision of the district court for further

proceedings consistent with this opinion.



       III. Attorney’s Fees:

       The IDEA, prior to its amendment, permitted the award of reasonable attorney’s

fees “to the parents or guardian of a child or youth with a disability who is the prevailing

party.” 20 U.S.C. § 1415(e)(4)(B). The 1997 Amendments also permit such an award.

Amendments, tit.I, § 615(i)(3). We have held that “Congress intended the term

‘prevailing party’ to mean the same under § 1415(e)(4)(B) as it does under 42 U.S.C.

§ 1988.” Urban v. Jefferson County Sch. Dist. R-1, 89 F.3d 720, 728-29 (10th Cir. 1996).

Accordingly, “a plaintiff ‘prevails’ when actual relief on the merits of his claim materially

alters the legal relationship between the parties by modifying the defendant’s behavior in

a way that directly benefits the plaintiff.” Farrar v. Hobby, 506 U.S. 103, 111-12 (1992).

Nothing in the 1997 Amendments suggests that this interpretation is erroneous.




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       We held before that the Fowlers prevailed, inasmuch as they will receive partial, if

not total, reimbursement for a sign language interpreter the District initially completely

refused to pay for or provide. The same result obtains up until June 4, 1997, and the

Fowlers will receive a presumably lesser amount, but probably an amount still greater

than zero, for the period after June 4. We therefore hold that the Fowlers are prevailing

parties and we remand to the district court for a calculation of reasonable attorney’s fees.

       For the foregoing reasons, the decision of the district court is REVERSED and the

case is REMANDED for further proceedings consistent herewith.




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