PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

COMMONWEALTH OF VIRGINIA
DEPARTMENT OF EDUCATION,
Petitioner,

v.

RICHARD W. RILEY, United States
                                                                   No. 95-2627
Secretary of Education; UNITED
STATES DEPARTMENT OF EDUCATION,
Respondents.

VIRGINIA SCHOOL BOARDS
ASSOCIATION,
Amicus Curiae.

On Petition for Review of an Order
of the United States Department of Education.
(94-76-0)

Argued: December 4, 1996

Decided: February 5, 1997

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

_________________________________________________________________

Reversed by published per curiam opinion. Chief Judge Wilkinson
and Judges Russell, Widener, Ervin, Wilkins, Niemeyer, Hamilton,
Luttig, Williams, Michael, and Motz voted to reverse. Judges
Murnaghan and Hall voted to affirm.

_________________________________________________________________
COUNSEL

ARGUED: William Henry Hurd, Deputy Attorney General, OFFICE
OF THE ATTORNEY GENERAL, Richmond, Virginia, for Peti-
tioner. 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 Attor-
ney General, Joan W. Murphy, Assistant Attorney General, C. Tabor
Cronk, Assistant Attorney General, OFFICE OF THE ATTORNEY
GENERAL, Richmond, Virginia, 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, Virginia, for Amicus Curiae.

_________________________________________________________________

OPINION

PER CURIAM:

Part B of the Individuals with Disabilities Education Act ("IDEA"),
20 U.S.C. §§ 1411-20 (Supp. 1996), affords federal financial assis-
tance to state and local education agencies for the education of dis-
abled 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 fund-
ing for 1993. The United States Department of Education subse-

                     2
quently 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 dis-
abilities. 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 poli-
cies 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 ser-
vices 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 Commonwealth 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 Common-
wealth 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 Depart-
ment of Education and to adopt as their own the dissenting panel

                     3
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 (1987). Language which, at best,
only implicitly conditions the receipt of federal funding on the fulfill-
ment 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 dis-
abilities 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 govern-
ing 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 fund-
ing on the continued provision of educational services to disabled stu-
dents 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 Com-
monwealth 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 Amend-
ment would be presented were the Secretary of Education's interpre-
tation of the IDEA upheld, as the withholding of the Com-
monwealth's entire IDEA funding allotment because of its refusal to
provide private tutors to the 126 disabled students expelled or sus-
pended 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 con-

                     4
curring 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 Common-
wealth of Virginia disciplines its handicapped students in the identical
manner that it does its non-handicapped students. Believing that stu-
dents -- handicapped or not -- who so completely disrupt the class-
room 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 pri-

                     5
vate 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 Depart-
ment's demands that it provide private educational services to these
expelled handicapped students, 126 in number. This, notwithstanding
that the State continues to provide education to the some 128,000
handicapped students who have not abused the educational opportu-
nity provided them through the cooperative efforts of the Common-
wealth and the United States, including those handicapped students
whose misconduct warrants expulsion but who are not expelled
because their misconduct relates to their disabilities.

In an argument that only the Federal Government could make, and
which the majority uncritically accepts, the Department of Education
and the Department of Justice contend that the State's refusal to pro-
vide private tutors for handicapped students expelled for criminal or
other serious misconduct unrelated in any way to their disabilities vio-
lates the condition on Virginia's receipt of IDEA funds to "assure[ ]
[to] all students with disabilities the right to a free appropriate public
education." According to the Departments of Justice and Education,
both the statute and sound policy require the States to provide private
tutors, at taxpayer's expense, even to convicted murderers:

          THE COURT: Does the Department of Education take the
          view that if a disabled young person commits a felony mur-
          der and is incarcerated, then the State is still obligated to
          provide that person with an education?

          COUNSEL: Yes, I believe that the statute specifically
          contemplates the provision of special education services
          even in institutions . . . .

          THE COURT: So the State has to go in and provide a
          tutor to this felony murderer. That's the Department of Edu-
          cation's view?

          COUNSEL: Yes.

                     6
Oral argument, April 4, 1996.

In order to require the States to provide private education to stu-
dents expelled for reasons unrelated to their handicaps, and thus com-
mandeer from the States their core function of ensuring order and
discipline in their schools, Congress would have had to have spoken
in affirmative and unambiguous terms, so that there could be no ques-
tion whatsoever of its intent. Not only did the Congress not unam-
biguously require the States to provide the continuing education at
issue, it all but codified the common sense proviso that such an edu-
cation need not be extended to such students.

Because the majority, in holding that the States must yield to the
Department of Education's demands, places this court's imprimatur
on what I believe to be an unauthorized, if not unconstitutional, exer-
cise of federal authority over matters peculiarly within the province
of the States and reserved to them by the Tenth Amendment to the
Constitution, I dissent.

I.

A.

The Secretary of Education and the Assistant Attorney General
acknowledge, as they must, that IDEA at most only implicitly condi-
tions the States' receipt of funds upon the continued provision of edu-
cational services to students expelled for misconduct unrelated to
their handicaps. See Decision of the Secretary, Proposed Withholding
Proceeding, Docket No. 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."); Respon-
dent's Br. at 34, 35 n.11 (conceding that the condition the Secretary
seeks to impose is only "implicit"). Because we are here concerned
with a congressional conditioning of the States' receipt of federal
funds, this acknowledgment is itself sufficient basis upon which to
reject the Federal Government's argument that the States are required
to continue providing educational services to these expelled students,
as I discuss infra. For, in order for the States to be bound by a condi-
tion upon the receipt of federal monies, the Congress must have affir-

                    7
matively imposed that condition in clear and unmistakable statutory
terms. An adjustment to the critical balance of power between the
Federal Government and the States cannot be authorized implicitly.

But, before turning to the question of whether IDEA satisfies the
heightened standard applicable to federal statutes that affect the distri-
bution of power between the Federal Government and the States, it
should be understood that IDEA does not impose, implicitly or other-
wise, the condition for which the Federal Government argues, under
even ordinary standards of statutory construction. The relevant provi-
sion of the IDEA does not require that the States have in effect "a pol-
icy that assures all handicapped children a free appropriate public
education" -- a condition which, in my view, still would not require
the States to provide education to handicapped children expelled for
misconduct having nothing whatever to do with their disabilities.
Rather, it requires that, in order to qualify for federal special educa-
tion funds, the States "ha[ve] in effect a policy that assures all chil-
dren with disabilities the right to a free appropriate public education."
20 U.S.C. § 1412(1) (emphasis added). Thus, as the Supreme Court
has repeatedly observed, see discussion infra, the statute only requires
that the States provide handicapped children with access to such an
education. And, as with any other right, that right of access to educa-
tional services may be forfeited by criminal or other conduct antitheti-
cal to the right itself. A state, accordingly, no more fails to satisfy the
statute's condition when it refuses to continue educational services to
a student who has forfeited his right to such services, than when it
does not provide an education to a student who chooses not to avail
himself of the opportunity at all.

The majority errs in its interpretation of the statute precisely
because it ignores the key phrase "the right to," and instead focuses
exclusively upon the word "all." See, e.g., ante at 16 n.13 ("Virginia
has concentrated on the interpretation of the phrase`all children,' but
we have concluded that `all' means `all' and that concentration should
more appropriately be focussed on the statutory requirement of `a free
appropriate public education.'"). In doing so, of course, the majority
entirely begs the question we must decide in order to resolve this
case. It is indisputable that, as a condition to receipt of the special
education funds, the States must have in place a policy that assures
"all" handicapped children something; the question is, what is that

                     8
something. And it could not be clearer from the face of the statute that
that something is only "the right to" a free appropriate public educa-
tion. If this were not evident from the statute's language, then it
should be evident from the derisible result that follows upon the alter-
native interpretation -- that the States are required, at taxpayers'
expense, to dispatch to prisons, jails, and personal residences, private
tutors to instruct those students who have so disrupted the classroom
that their own instruction and that of their fellow students was ren-
dered impossible.

Of course, the Commonwealth of Virginia has in effect the precise
policy required by the statute. Virginia extends to every handicapped
school-age child within the Commonwealth the right to a free public
education appropriate to his disabilities. What it does not do -- and
understandably -- is require that local school boards discipline their
handicapped students (for conduct unrelated to their disabilities) dif-
ferently from their non-handicapped students, and provide educational
services even to those handicapped youths who have forfeited the
right to a free education by wilfully engaging in contumacious con-
duct so serious as to warrant the ultimate discipline of expulsion. See
Regulations Governing Special Education Programs for Children with
Disabilities in Virginia, § 3.3(B)(11)(b)(4) ("If there is no causal con-
nection [between the misconduct and the disability] and if the child
was appropriately placed at the time of the misconduct, the child may
be disciplined the same as a nondisabled child.").1 And nothing in the
_________________________________________________________________
1 Because of the procedural requirements IDEA imposes upon the
States before any change in placement of a disabled student can be
effected, including the requirement that the States prove that the mis-
conduct was wholly unrelated to the student's disability, expulsion of a
disabled student actually is, as a practical matter, considerably more dif-
ficult than expulsion of a non-handicapped student. See, e.g., 20 U.S.C.
§§ 1415(b)(1)(D), 1415(b)(1)(E), 1415(b)(2), 1415(c), 1415(e)(2); Board
of Educ. v. Rowley, 458 U.S. 176, 182 (1982) ("[T]he Act imposes exten-
sive procedural requirements upon States receiving federal funds under
its provisions.").

As the Commonwealth recounts the process attending the expulsion of
one handicapped student:

          1. Student with Attention Deficit/Hyperactivity Disorder
          "ADHD" brought knife to school hidden in his boot. The knife

                    9
language of IDEA even purports to condition the Commonwealth's
receipt of IDEA's special education funds upon the State's submis-
sion to the Federal Government's inexplicable demand that it now do
so.

Nor does anything in the purpose of IDEA suggest that the State
is required to succumb to the Federal Government's demands. 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. § 1400(c) (emphasis added). As the Supreme Court
_________________________________________________________________
           was reported by a female student who alleged he had brought the
           knife on other occasions and had threatened to stab her. When
           questioned he denied having the knife, refused to untie his boot,
           told officials they had no right to search him, but eventually sur-
           rendered the knife. The student knew the consequences of being
           discovered would probably be expulsion.

          2. The first causality committee concluded there was no causal
          connection between the conduct and the disability.

          3. The parents sought reconsideration and a second causality
          committee was convened. It concluded there was no causal rela-
          tionship.

          4. A discipline review committee was then held to review the
          recommended long-term suspension. This committee upheld the
          long-term suspension.

          5. Parents sought a "due process" hearing.

          6. First level hearing officer found no causal connection.

          7. Second level hearing officer also found no causal connec-
          tion.

          8. The incident occurred when the student was 15 and, despite
          the IDEA-B stringent time-lines, the due process appeals took
          eight months.

Petitioner's Br. at 36 n.21. Even after these procedural steps were taken,
the parents and the disabled student still had the right to challenge the
disciplinary action in state or federal court. See 20 U.S.C. § 1415(e)(2).

                    10
has recognized, the statute's purpose was to ensure that disabled stu-
dents are not denied access to a free public education because of their
disabilities, or because of misconduct related to their disabilities. See
Board of Educ. v. Rowley, 458 U.S. 176 (1982) (referring repeatedly
to the purpose of the Act as one giving handicapped children access
to public education); id. at 214 (White, J., dissenting) ("[T]he Act
intends to give handicapped children an educational opportunity com-
mensurate with that given other children.");2 Honig v. Doe, 484 U.S.
305 (1988). The statute was enacted "to open the door of public edu-
cation" to handicapped students, Rowley, 458 U.S. at 192, one million
out of eight million of whom had been excluded from school systems
across the country because of their disabilities, id. at 189, many
through the pretextual use of discipline, see Honig, 484 U.S. at 324.

Not only is there nothing in this laudable purpose of IDEA that
would require the continued provision of educational services to
handicapped students expelled for reasons unrelated to their handicap,
the statutory purpose is fully achieved by interpreting the language so
as not to require such, thereby reserving to the States, in the manner
urged by the Commonwealth, their historical responsibility for the
discipline of their schoolchildren. As even the Ninth Circuit held in
Doe v. Maher, 793 F.2d 1470 (9th Cir. 1986), aff'd as modified sub
nom., Honig v. Doe, 484 U.S. 305 (1988), in a portion of its opinion
notably left undisturbed by the Supreme Court in Honig:3
_________________________________________________________________
2 See also Rowley, 458 U.S. at 199 (referring to caselaw upon which
Congress expressly relied in enacting IDEA as enunciating a "right of
access to free public education"); id. at 200 ("[N]either the Act nor its
history persuasively demonstrates that Congress thought that equal pro-
tection required anything more than equal access."); id. ("Desirable
though [the goal of maximizing each handicapped child's potential]
might be, it is not the standard that Congress imposed upon States which
receive funding under the Act. Rather, Congress sought primarily to
identify and evaluate handicapped children, and to provide them with
access to a free public education.").
3 Although the Department of Justice maintains that Honig effectively
decided the question we confront, the Secretary of Education, as does
even the majority, recognizes that it did not. See Decision of the Secre-
tary, supra, at 6 (noting that an expulsion for conduct unrelated to dis-
ability is "the circumstance left unaddressed by Honig"); ante at 17

                    11
         If the child's misbehavior is properly determined not to be
         a manifestation of his handicap, the handicapped child can
         be expelled. This conclusion does not conflict with the
         [IDEA]. When a child's misbehavior does not result from
         his handicapping condition, there is simply no justification
         for exempting him from the rules, including those regarding
         expulsion, applicable to other children. Therefore, when a
         handicapped child is properly expelled, the school district
         may cease providing all education services -- just as it
         could in any other case. To do otherwise would amount to
         asserting that all acts of a handicapped child, both good and
         bad, are fairly attributable to his handicap. We know that
         that is not so.

Id. at 1482 (emphasis added, footnote and citations omitted); see also
Doe v. Board of Educ., 1996 WL 79411, at *3-4 (N.D. Ill. Feb. 16,
1996);4 Doe v. Koger , 480 F. Supp. 225, 229 (N.D. Ind. 1979).
_________________________________________________________________
("[U]pholding the Secretary's decision in the case at bar is consistent
with the Supreme Court's ruling in Honig v. Doe." (emphasis added));
see also Metropolitan School District v. Davila, 969 F.2d 485, 493 (7th
Cir. 1992) ("Honig did not reach this issue."), cert. denied, 507 U.S. 949
(1993). The Court in Honig addressed only the question of whether
school districts could unilaterally change the placement of disabled stu-
dents for "dangerous or disruptive conduct growing out of their disabili-
ties." 484 U.S. at 308; see also id. at 312 ("The present dispute grows out
of the efforts of [school officials] to expel two emotionally disturbed
children from school indefinitely for violent and disruptive conduct
related to their disabilities." (emphasis added)). To the extent that the
Court's opinion can be read to speak to the issue now before us, it sug-
gests, given the Ninth Circuit's holding quoted above, that the States are
not required to continue to provide educational services to students
expelled for conduct unrelated to their handicaps. Id. at 328.
4 The district court in Doe subsequently agreed to reconsider its deci-
sion, noting that the Department of Education's contrary interpretation of
the statute, of which it had only recently become aware, was entitled to
deference. See 1996 WL 197690, at *2 (N.D. Ill. Apr. 22, 1996). As I
explain infra, because of the applicability of the "clear statement" rule,
the deference that we ordinarily afford agency interpretations of ambigu-
ous statutes is inapplicable in a case such as this. Thus, I would expect
the district court's original decision to be reaffirmed.

                   12
That the Department of Justice, in what is emerging as a pattern of
deceptively selective quotation that threatens to undermine in this
court and others the traditional respect accorded the Department, see,
e.g., Thomasson v. Perry, 80 F.3d 915, 939-41 (4th Cir. 1996) (Luttig,
J., concurring), believes it necessary to omit the phrase "the right to"
on virtually every occasion when it recites the statute's requirement
that the States "assure[ ] all children with disabilities the right to a
free appropriate public education,"5 only confirms that it likewise
understands that Congress has not conditioned the States' receipt of
federal funds upon the continued provision of education to expelled
students, or, at the very least, that it understands Congress has not
done so with the clarity required for the appropriation of a core state
function. There would be no other reason for such intentional omis-
sion of these three manifestly relevant (even if, in one's view, not dis-
positive) words from the short, thirteen-word provision before us.

B.

Whether the majority's interpretation of the statute or that which
I believe Congress intended is the better, however, is not even the
_________________________________________________________________
5 In the first substantive sentence of its "Summary of Argument," for
example, the Assistant Attorney General writes that,"[t]he IDEA unam-
biguously requires participating states, as a condition of receiving federal
funds, to assure that a free appropriate public education is provided to
`all children with disabilities.'" Respondent's Br. at 15 (selectively quot-
ing 20 U.S.C. § 1412(1)). In the first sentence of its "Argument," the
Assistant Attorney General, again selectively quoting from section
1412(1), claims that "[t]he language of the IDEA is unambiguous: partic-
ipating states must assure that a free appropriate public education is
available to `all children with disabilities.'" Id. at 17. And throughout the
Department's submissions, the same omission is made. See id. at 16
("[T]he statute mandates provision of special educational services to `all'
children with disabilities."); id. at 25 ("[Congress] has declined to over-
ride the IDEA's mandate that special education services be provided to
all children with disabilities."); id. at 34 ("[The condition] is necessarily
implicit in the IDEA's requirement that a free appropriate public educa-
tion be provided to all children with disabilities."); id. at 36 ("The
requirement that states provide special education services to all children
with disabilities, including those under disciplinary suspension or expul-
sion, is clear and specific.").

                    13
question. The question is whether, in unmistakably clear terms, Con-
gress has conditioned the States' receipt of federal funds upon the
provision of educational services to those handicapped students
expelled for misconduct unrelated to their handicap:"[I]f Congress
desires to condition the States' receipt of federal funds, it `must do so
unambiguously . . . .'" South Dakota v. Dole, 483 U.S. 203, 207
(1987) (quoting Pennhurst State Sch. & Hosp. v. Halderman, 451
U.S. 1, 17 (1981)).6 Indeed, the Supreme Court itself invoked
Pennhurst's clear statement rule in addressing the identical provision
of the IDEA at issue here, reasoning that it is a"fundamental proposi-
tion that Congress, when exercising its spending power, can impose
no burden upon the States unless it does so unambiguously." Rowley,
458 U.S. at 190 n.11 (citing Pennhurst, 451 U.S. at 17). If Congress
has not unequivocally conditioned receipt of federal funds in the man-
ner claimed by the Department of Education, and by the Department
of Justice on its behalf, then our inquiry is at an end.

Insistence upon a clear, unambiguous statutory expression of con-
gressional intent to condition the States' receipt of federal funds in a
particular manner is especially important where, as here, the claimed
condition requires the surrender of one of, if not the most significant
of, the powers or functions reserved to the States by the Tenth
Amendment -- the education of our children. See, e.g., Honig, 484
U.S. at 309 ("[E]ducation [is] `perhaps the most important function of
_________________________________________________________________
6 Cf. Will v. Michigan Dep't of State Police, 491 U.S. 58, 65 (1989)
(describing as an "ordinary rule of statutory construction" the principle
that "if Congress intends to alter the `usual constitutional balance
between the States and the Federal Government,' it must make its inten-
tion to do so `unmistakably clear in the language of the statute.'" (quot-
ing Atascadero State Hosp. v. Scanlon , 473 U.S. 234, 242 (1985), and
citing Pennhurst, 465 U.S. at 99)); Gregory v. Ashcroft, 501 U.S. 452,
460 (1991) ("[Where] [c]ongressional interference [with a core state
function] would upset the usual constitutional balance of federal and
state powers[,] . . . `it is incumbent upon the federal courts to be certain
of Congress' intent before finding that federal law overrides' this bal-
ance." (quoting Atascadero, 473 U.S. at 243, and citing Pennhurst, 465
U.S. at 99)); Torcasio v. Murray, 57 F.3d 1340, 1344-46 (4th Cir. 1995)
(holding that "Congress must speak unequivocally before [courts] will
conclude that it has `clearly'" intruded upon core state functions), cert.
denied, 116 S. Ct. 772 (1996).

                     14
state and local governments.'" (quoting Brown v. Board of Educ., 347
U.S. 483, 493 (1954))); Milliken v. Bradley, 418 U.S. 717, 741 (1974)
("No single tradition in public education is more deeply rooted than
local control over the operation of schools . . . ."); United States v.
Lopez, 115 S. Ct. 1624, 1632 (1995) ("[Education is an area] where
States historically have been sovereign."). In this context, we in the
judiciary labor under a special obligation to "assure[ ] that the legisla-
ture has in fact faced, and intended to bring into issue, the critical
matters involved in the judicial decision." United States v. Bass, 404
U.S. 336, 349 (1971); see also, e.g., Gregory, 501 U.S. at 461 (quot-
ing Bass); Will, 491 U.S. at 65 (same); Torcasio, 57 F.3d at 1344
(same).

The Department of Justice argues, in what I understand as a con-
cession, and the majority accepts, in what I understand as an admis-
sion, that in the event of ambiguity in the IDEA provision at issue,
we defer to a reasonable interpretation by the agency, as if we were
interpreting a statute which has no implications for the balance of
power between the Federal Government and the States. 7 We do not.
It is axiomatic that statutory ambiguity defeats altogether a claim by
the Federal Government that Congress has unambiguously condi-
tioned the States' receipt of federal monies in the manner asserted. As
the Court stated in Gregory v. Ashcroft :

           [I]nasmuch as this Court in Garcia[v. San Antonio Metro.
           Transit Auth., 469 U.S. 528 (1985)] has left primarily to the
           political process the protection of the States against intrusive
           exercises of Congress' Commerce Clause powers, we must
           be absolutely certain that Congress intended such an exer-
           cise. "[T]o give the state-displacing weight of federal law to
           mere congressional ambiguity would evade the very proce-
           dure for lawmaking on which Garcia relied to protect states'
           interests."
_________________________________________________________________
7 See ante at 8 n.4 (citing Chevron U.S.A. Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 843-45 (1984)); cf. Respondent's
Br. at 26 ("Even if the statute were ambiguous on this point, however,
the Secretary's interpretation of the statute's requirements is reasonable
and entitled to substantial deference."); id . at 16 ("The only issue is
whether the Secretary's interpretation of [section 1412(1)] is reason-
able.").

                     15
501 U.S. 452, 464 (1991) (quoting L. Tribe, American Constitutional
Law § 6-25, p. 480 (2d ed. 1988)).

Applying the clear statement rule with the required solicitude for
the rights of the States in our federalist system, it is apparent that
Congress has not spoken through the IDEA with anywhere near the
clarity and the degree of specificity required for us to conclude that
the States' receipt of special education funds is conditioned upon their
continued provision of education to handicapped students expelled for
criminal activity or other misconduct unrelated to their disabilities.
The majority is unable to cite to a single word from the statute or
from the legislative history of IDEA evidencing that Congress even
considered such a condition, much less that it confronted the possibil-
ity of such a condition and its implications for the sovereignty of the
States, and determined to condition the States' funds in this manner.
As the Departments of Education and Justice themselves acknowl-
edge, at most the statute implicitly conditions the receipt of funds in
the manner they contend. And, as I explain above, it does not even
do this; indeed, the better interpretation of the statutory language is
that Congress only required the States to provide handicapped chil-
dren with access to an education, reserving to the States -- intention-
ally or otherwise -- the authority to discipline handicapped students
as they deem appropriate, for criminal actions and misconduct unre-
lated in any way to those students' disabilities.

The majority appears to believe that merely because section 1412
indisputably sets forth conditions on the States' receipt of IDEA
funds, see 20 U.S.C. § 1412 ("In order to qualify for assistance under
this subchapter in any fiscal year, a State shall demonstrate to the Sec-
retary that the following conditions are met: . . ." (emphasis added)),
Congress has ipso facto spoken sufficiently clearly to satisfy the clear
statement requirement. However, in Gregory, the Supreme Court
rejected this very understanding of the clear statement requirement in
a holding that should control the disposition of the case before us.
There, the Court held that the Age Discrimination in Employment
Act, which covered employees of "a State or political subdivision of
a State," 29 U.S.C. § 630(b)(2) -- a provision that under today's
majority opinion would seem unambiguously to cover state judges,
did not apply to state judges because the provision did not unambigu-
ously reveal that Congress intended such a result. In reaching this

                     16
conclusion, the Court reasoned that a clear statement is required not
simply in determining whether a statute applies to the States, but also
in determining whether the statute applies in the particular manner
claimed. Gregory, 501 U.S. at 460-70. In fact, Justices White and Ste-
vens 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. The majority claims to derive this
          requirement from the plain statement approach developed in
          our Eleventh Amendment cases . . . . The issue in those
          cases, however, was whether Congress intended a particular
          statute to extend to the States at all. . . . In the present case,
          by contrast, Congress has expressly extended the coverage
          of the ADEA to the States and their employees. Its intention
          to regulate age discrimination by States is thus"unmistak-
          ably clear in the language of the statute." Atascadero, [473
          U.S.] at 242. . . . The only dispute is over the precise details
          of the statute's application. We have never extended the
          plain statement approach that far . . . .

Id. at 475-76 (White, J., concurring in part, dissenting in part, and
concurring in the judgment); cf. id. at 493 (Blackmun, J., joined by
Justice Marshall, dissenting) (arguing that Chevron deference, rather
than clear statement rule, was appropriate).

Since neither the text of section 1412(1), the legislative history, nor
the purpose of the IDEA even suggests, much less mandates with the
clarity necessary to confirm that the Congress actually confronted and
deliberately decided, that a state must continue to provide education
services to disabled children after expulsion for misconduct unrelated
to their disabilities, I would reject the Department of Education's new
interpretation to the contrary as ultra vires .8 I would hold that the
_________________________________________________________________
8 The Department of Education did not even arrive at the interpretation
of section 1412(1) that it advances in this litigation until 1989, fifteen
years after passage of IDEA. See, e.g., Virginia Dep't of Educ. v. Riley,
23 F.3d 80, 85-86 (4th Cir. 1994) (describing the Department's 1989

                     17
Commonwealth of Virginia fulfills its statutory obligations under sec-
tion 1412(1) by affording all disabled students the right to a free
appropriate public education -- a right that disabled students, like
non-disabled students, can forfeit by criminal activity or serious mis-
conduct unrelated to their disabilities.9 While the States are free, in
Faustian fashion, to surrender unto the Federal Government that
which separately defines them as powers autonomous from that Gov-
ernment, it is plain that they have not done so in this instance. Nor,
for that matter, has the Congress sought to exact such an abnegation
from them. Indeed, I would be astonished if the Congress of the
United States was even aware that the Departments of Education and
Justice are contending otherwise before this court.

II.

Because I interpret section 1412(1) of IDEA so as not to impose
_________________________________________________________________

interpretation as a "new condition" on funding); Decision of the Secre-
tary, supra, at 1 n.1 (referring to the 1989 interpretation as a "`new con-
dition' of compliance"); id. ("The Hearing Officer also found that the
Department's enforcement of IDEA-B, while neither uniform nor cons-
tant, was not arbitrary or capricious . . . ." (emphasis added)).

9 I would categorically reject the Department's byzantine alternative
argument, which it briefed but abandoned at oral argument, that the pol-
icy outlined in the Department's interpretive letter has itself been incor-
porated into the statute by virtue of section 314(b) of the Improving
America's Schools Act of 1994, Pub. L. 103-382, reprinted in 20 U.S.C.
§ 8921 note. That uncodified section provides that the stay-put provision
of the IDEA "shall be interpreted in a manner that is consistent with the
Department's final guidance concerning State and local responsibilities
under the Gun-Free Schools Act of 1994." 20 U.S.C. § 8921 note. The
portion of the guidance memorandum upon which the United States
relies, interprets other provisions of the IDEA, not the stay-put provision.
See U.S. Dep't of Educ., Guidance Concerning State and Local Respon-
sibilities Under the Gun-Free Schools Act of 1994, at 3, reprinted in J.A.
at 219 ("[T]he IDEA requires that educational services must continue,
although they may be provided in another setting, for students with dis-
abilities who are properly expelled."). Accordingly, this portion of the
Department of Education's memorandum has not been elevated to statu-
tory law.

                     18
upon the States the condition that they provide private tutors and
other alternative educational services to handicapped students
expelled for egregious conduct unrelated to their disabilities, I need
not resolve the Tenth Amendment issue that is presented upon the
contrary reading of the statute. Suffice it to say, however, that I regard
that issue as considerably more substantial than does the majority,
which all but rejects it out of hand.

I recognize that the Court has not invalidated an Act of Congress
under the Spending Clause since United States v. Butler, 297 U.S. 1
(1936), over half a century ago. But cf. United States v. Lopez, 115
S. Ct. 1624 (1995); Seminole Tribe v. Florida, 116 S. Ct. 1114
(1996). However, as Chief Justice Rehnquist, on behalf of the Court,
recently reminded in South Dakota v. Dole, 483 U.S. 203 (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. at 211
(quoting Steward Machine Co. v. Davis , 301 U.S. 548, 590 (1937)),
"in contravention of the Tenth Amendment or of restrictions implicit
in our federal form of government," Steward Machine Co., 301 U.S.
at 585.

The Court in Dole rejected South Dakota's argument that the Fed-
eral Government's condition that the State raise its drinking age for
all consumers to 21 was impermissibly coercive. In that case, how-
ever, Congress had directed that the States "lose[only] a relatively
small percentage of certain federal highway funds" for their noncom-
pliance. 483 U.S. at 211. Because "all South Dakota would lose if she
adhere[d] to her chosen course as to a suitable minimum drinking age
[was] 5% of the funds otherwise obtainable" under the program, the
Court concluded that Congress had but "offered relatively mild
encouragement to the States to enact higher minimum drinking ages."
Id.

Here, in stark contrast, the Federal Government has withheld from
the Commonwealth 100% of an annual special education grant of $60
million because of the Commonwealth's failure to provide private
educational services to less than one-tenth of one percent (126) of the
128,000 handicapped students for whom the special education funds
were earmarked. And it has withheld the entirety of this $60 million

                     19
grant -- only $58,000 of which would, on a pro rata basis, be avail-
able for educational services to the 126 expelled students -- because
the State refused to surrender control over its own classrooms and
schoolchildren by abandoning one of its most effective tools for main-
taining order and discipline, see, e.g. , Goss v. Lopez, 419 U.S. 565,
580 (1975) ("Suspension is considered not only to be a necessary tool
to maintain order but a valuable educational device."). As even the
Department of Education concedes, under the interpretation of the
statute embraced by the court today, "Congress[has] drastically cur-
tailed local autonomy with respect to discipline and denial of educa-
tional services to this group of children" "[a]s a condition of receiving
federal funds." Respondent's Br. at 38.

This is a condition considerably more pernicious than the "rela-
tively mild encouragement" at issue in Dole . Withholding the $58,000
pro rata amount of the funds that would be used by the State to pro-
vide services to the 126 expelled students whom the Federal Govern-
ment believes are entitled to educational services under the statute
would be "encouragement." The withholding of almost $60 million
from the State and from the 128,000 disabled students who have
responsibly availed themselves of their educational opportunity, sim-
ply because the State refuses to yield to the federal demands as to the
126 students who have abused their rights, begins to resemble imper-
missible coercion, see Dole, 483 U.S. at 211, if not forbidden regula-
tion in the guise of Spending Clause condition, as well, see id. at 212,
215-218 (O'Connor, J., dissenting); Butler, 297 U.S. at 73 ("There is
an obvious difference between a statute stating the conditions upon
which moneys shall be expended and one effective only upon
assumption of a contractual obligation to submit to a regulation which
otherwise could not be enforced.").

Neither of the majority's two efforts to escape the import of Dole's
reasoning succeeds. The percentage of the total monies expended by
the State for education of the handicapped that is represented by the
federal grant is irrelevant in assessing the coerciveness of the induce-
ment, at least as appears from the Court's opinion in Dole. Were it
otherwise, the same federal grant in the same amount would be
unconstitutionally coercive as to one State, but not as to another
which expends a greater amount for the purposes served by the grant;
indeed, were it otherwise, there would be created a perverse incentive

                    20
for the States to spend less in areas in which they expected to receive
federal monies, in order to render more vulnerable under the coercion
theory any conditions that were imposed. Thus, the majority's effort
to compare the 100% withholding here to the 5% withholding in
Dole, by noting that the $60 million in special education funds consti-
tutes only "approximately five percent of the funds needed to educate
Virginia's disabled children," ante at 23; compare Respondent's Br.
at 43 (claiming that the federal grant "provides at most nine percent
of the cost of providing special educational services to children with
disabilities"), is to no avail. Equally unavailing is the majority's effort
to avoid the import of Dole by observing that a 100% withholding of
a "mere $1,000" education grant would not be unduly coercive. The
difference between a $1000 grant and, as here, a $60 million grant,
insofar as their coercive potential is concerned, is self-evident.

The argument made by counsel for the Department of Justice is no
more responsive to the constitutional barrier recognized by Dole than
are the majority's. In contending that the withholding is not coercive,
counsel emphasized that there were more coercive steps that might
have been taken, such as the withholding of all federal funds from the
Commonwealth. Sending in the troops would be more coercive still,
but the existence of that more coercive alternative does not render the
withholding to which the Commonwealth is subject noncoercive.

Ultimately, if the Court meant what it said in Dole, then I would
think that a Tenth Amendment claim of the highest order lies where,
as here, the Federal Government (accepting the majority's interpreta-
tion of the statute) withholds the entirety of a substantial federal grant
on the ground that the States refuse to fulfill their federal obligation
in some insubstantial respect rather than submit to the policy dictates
of Washington in a matter peculiarly within their powers as sovereign
States. In such a circumstance, the argument as to coercion is much
more than rhetoric; it is an argument of fact. See Dole, 483 U.S. at
211. It is, as well, an argument that the Federal Government has, in
an act more akin to forbidden regulation than to permissible condi-
tion, supplanted with its own policy preferences the considered judg-
ments of the States as to how best to instill in their youth the sense
of personal responsibility and related values essential for them to
function in a free and civilized society. As such, it is an argument
well-grounded in the Tenth Amendment's reservation"to the States

                     21
respectively, or to the people" of those "powers not delegated to the
United States by the Constitution, nor prohibited by it to the States."

*****

In the end, this case is about the permissible reach of federal power
under the Spending Clause in a time when the several States have
become increasingly dependent upon the Federal Government for
funds, because the Federal Government has increasingly become
dependent upon the revenues from taxation it receives from the citi-
zens of the several States. In particular, it is about the extent to which
the Federal Government may, in our system of federalism, impose its
policy preferences upon the States by placing conditions upon the
return of revenues that were collected from the States' citizenry in the
first place. As Justice O'Connor aptly observed in Dole:

          If the spending power is to be limited only by Congress'
          notion of the general welfare, the reality, given the vast
          financial resources of the Federal Government, is that the
          Spending Clause gives "power to the Congress to tear down
          barriers, to invade the states' jurisdiction, and to become a
          parliament of the whole people, subject to no restrictions
          save such as are self-imposed." [Butler , 297 U.S. at 78].
          This, of course, as Butler held, was not the Framers' plan
          and it is not the meaning of the Spending Clause.

483 U.S. at 217.

According to counsel for the Department of Education, requiring
the States to continue to provide educational services to handicapped
students expelled for reasons unrelated to their handicaps "make[s]
sense, as a matter of policy, in light of the broad purposes of the stat-
ute[,] . . . [and] allow[ing] individual school districts in their sole dis-
cretion to decide whether or not to deny services to this significant
number of children with disabilities . . . would . .. inflict lasting harm
on these children."

The Commonwealth of Virginia, for its part, steadfastly maintains
not only that the Department's policy is misguided, because it

                      22
deprives the State of its most effective disciplinary and instructional
tool for instilling in its especially recalcitrant students the sense of
responsibility they so sorely lack, but that it is, in any event, a policy
decision uniquely reserved to the States by the Constitution. And the
wisdom of the Commonwealth's policy is certainly borne out by the
testimony of the State's local educators and administrators. In testi-
mony that speaks volumes, Jane Timian, the Hearing and Legal Assis-
tant for the Fairfax County School Board responsible for overseeing
all student disciplinary matters, described as follows two illustrative
incidents that have recently taken place in the Commonwealth as a
consequence of the Education Department's policy:

          In a recent case at one of FCPS' 23 high schools, six stu-
          dents were part of a group of students whose actions
          resulted in a loaded .357 magnum handgun being recovered
          in the school building. The non-special education students
          were expelled. One student, however, was identified as
          "learning disabled" due to the student's weakness in written
          language skills. An IEP team reviewed extensive evalua-
          tions and unanimously found no causal relationship between
          the student's writing disability and the student's involve-
          ment in the weapons violation. The student was not
          expelled. The student later bragged to teachers and students
          at the school that he could not be expelled.

          In another recent case at a different high school, a student
          gang which had adopted a specific name was involved in a
          mob assault of another student. One student involved in the
          melee used a meat hook as a weapon. Three of the gang
          members were expelled. The other two members of the gang
          were special education students who have not been expelled
          and who are still receiving services.

J.A. at 177. And confirming what anyone even remotely familiar with
public education today would have expected, Lucille Brown, Superin-
tendent of Richmond City Public Schools, testified that the "`home-
bound instruction' and `alternative education'[after expulsion]" that
has been required by the Federal Government's Department of Educa-
tion has "become just another `badge of honor' flaunted by students
who have bested the public schools again." Petitioner's Br. at 10.

                     23
In our federal system of government, such delicate policy deci-
sions, relating so intimately as they do to matters within the exclusive
prerogative of the States, are presumed to be those of the States alone.
If the Federal Government intends to expropriate these or other sover-
eign rights from the States, it must at least do so affirmatively and
unambiguously, so that its design is known and the States may mar-
shal their political will in opposition to that expropriation. Even then,
of course, the Federal Government must effectuate that expropriation
in a manner that is faithful to the limitations on Federal power that
inhere in the Tenth Amendment and in the principles of federalism
that undergird our entire democratic system of governance. Only
when the Government acts within these limitations can one have con-
fidence both that the United States has deliberately determined to sub-
ordinate the rights of the States to the interests of the Federal
Government and that it has done so consistently with the constitu-
tional limitations that even today constrain the Federal Government
as against the People.

In my view, certainly the first, and perhaps the second, of these
essential limitations on Federal power has been exceeded in the IDEA
provision, at least as it is interpreted by the court today. And with
these excesses has come, as always, yet a further incremental, but no
less significant, incursion into the sovereign authority of the several
States. As counsel for the Federal Government responded, after
reflecting for a moment on the court's question whether the Depart-
ment of Education was not simply saying to the States that it knows
better than they what is good for America's schoolchildren and then
imposing that view on the States: "Well your honor, in a sense, that's
what Congress is doing in this whole statute." Unwilling to acquiesce
in such a pretentious arrogation of state power, I dissent.

_________________________________________________________________

NIEMEYER, Circuit Judge, concurring in part:

I concur in part I of the opinion adopted by the majority and in the
judgment of the court.

_________________________________________________________________

                    24
HAMILTON, Circuit Judge, concurring in the judgment:

Because Part I of the majority opinion, with which I am in com-
plete accord, adequately disposes of the matter, I would not reach the
Tenth Amendment analysis. Accordingly, I concur in Part I of the
majority opinion and in the judgment of the court.

Judge Ervin has joined this opinion.

_________________________________________________________________

MICHAEL, Circuit Judge, concurring in the judgment:

Because I agree with the point in the majority's adopted opinion
that the right here can be forfeited, I concur in the judgment.

_________________________________________________________________

DIANA GRIBBON MOTZ, Circuit Judge, concurring in the judg-
ment:

For many of the reasons explained in Part I of Judge Luttig's dis-
sent from the opinion of the panel majority, I do not believe Congress
has unambiguously required the states to provide educational services
to disabled children who have been suspended or expelled for miscon-
duct unrelated to their disabilities. Accordingly, I join the court's
judgment.

_________________________________________________________________

MURNAGHAN, Circuit Judge, dissenting:

The majority opinion rests on a conclusion which I find unaccept-
able:

          [T]he statute [IDEA] only requires that States provide hand-
          icapped children with access to such an education. And, as
          with any other right, that right of access to educational ser-
          vices may be forfeited by criminal or other conduct antithet-

                    25
          ical to the right itself. A state, accordingly, no more fails to
          satisfy the statute's condition when it refuses to continue
          educational services to a student who has forfeited his right
          to such services, than when it does not provide an education
          to a student who chooses not to avail himself of the opportu-
          nity at all.

86 F.3d at 1349.

The case actually concerns the meaning to be given to the words
"a policy that assures all children with disabilities the right to a free
appropriate public education." I have found that they unambiguously
convey a meaning. My colleague, Judge Hall, also dissenting, alterna-
tively reasons that, even if there is ambiguity, following Chevron
U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1985),
would lead to the same meaning I have reached. Simply put I regard
"all children" as reaching to the all encompassing height, put algebrai-
cally at 10. Judge Hall, on his assumption of ambiguity, gives the
ambiguous language supposed to exist only an 8 but then ascribes at
least a 2, bringing the total to 10 because of the Secretary of Educa-
tion's construction of the statutory language. The majority reaches a
contrary conclusion, namely, that the statute unambiguously means
what it does not say. The majority argues that "all children" is meant
not to encompass children with disabilities who have been expelled
or suspended. Following from that conclusion, the majority concludes
that such expelled or suspended children lose their rights to a free
appropriate public education when their misconduct is unrelated to
their disabilities. The majority thereby invents an unmentioned forfei-
ture to justify interpreting "all children" not to include disabled chil-
dren who are suspended or expelled for misconduct unrelated to their
disabilities. Thereby the algebraic figure is required to become mate-
rially less than 10.

Similarly, with the same object in mind, the words"access," "as-
sures" and "right" are reduced in meaning by imagining a limitation
not expressed in IDEA excluding from assurance of the right to a free
appropriate public education those children with disabilities who are
expelled or suspended for misconduct unrelated to their disabilities.
That also reduces further below 10 the value clearly applying to "all
children."

                     26
I.

My disagreement with the majority's disposition of the instant case
stems from its notion that the right provided by the IDEA is forfeit-
able. For the remarkable proposition it has come to, the majority does
not cite to any provision of the IDEA to support its belief that the dis-
abled child can forfeit his right to a free appropriate public education
guaranteed by the statute. At issue in the instant case is a group of 126
children with disabilities who have been expelled and to whom Vir-
ginia has ceased providing educational services during the expulsion
period. Those expelled children are not the only ones interested. The
public generally will suffer from the denial of a free public education
in the case of a child already handicapped.

Under the majority's view, the 126 children affected by Virginia's
policy have "forfeited" their right to a free appropriate public educa-
tion. The majority interprets the phrase "[t]he State has in effect a pol-
icy that assures all children with disabilities the right to a free
appropriate public education," as creating only a"right of access" to
such education, not as creating a federal right to receive educational
services under the IDEA. Adoption of the latter, the majority opines,
would require States:

          at the taxpayers' expense, to dispatch to prisons, jails, and
          personal residences, private tutors to instruct those students
          who have so disrupted the classroom that their own instruc-
          tion and that of their fellow students was rendered impossi-
          ble.

83 F.3d at 1349.

Despite the fact that the majority's view adopts the most extreme
example, unsupported by the record, to make its point, it is axiomatic
that a statute establishing a right may also specify under what circum-
stances that right may be forfeited. Congress, however, in enacting
the IDEA has specified no circumstances under which a disabled
child may lose by forfeiture the right to educational services under the
IDEA, whether that be the federal right to a free appropriate public

                     27
education, or the "right of access" to a free appropriate public educa-
tion as created by the majority.1

In Burlington School Committee v. Massachusetts Department of
Education, 471 U.S. 359 (1985), the Supreme Court addressed the
issue of waiver of reimbursement under the Education of the Handi-
capped Act (EHA).2 As the Court recognized the EHA requires partic-
ipating states and local educational agencies "to assure that
handicapped children and their parents or guardians are guaranteed
procedural safeguards with respect to the provision of free appropriate
public education" to such handicapped children. In Burlington, the
parents of a handicapped child rejected the schools' Individualized
Educational Program (IEP) for their son and placed him in a private
school without the consent of the local school authorities, in violation
of § 1415(e)(3) of the Act. Thereafter, the parents sought reimburse-
ment of the costs associated with the private school. The school
authorities argued that the parents had waived their right to reim-
bursement by violating § 1415(e)(3). Section 1415(e)(3) provided that
while administrative proceedings are pending about the child's place-
ment, "the child shall remain in the then current educational place-
ment."

The Supreme Court disagreed. The Court reasoned that
§ 1415(e)(3) "says nothing about financial responsibility, waiver, or
parental rights to reimbursement at the conclusion of judicial proceed-
_________________________________________________________________
1 Virginia does provide alternative educational services through various
state and local programs to many non-disabled children who are expelled
from school pursuant to the Comprehensive Services Act (CSA). Those
services, however, are not appropriate for a disabled child, and to the
extent that such services exist, the majority's concern, undergirding its
analysis, that Virginia will be burdened by requiring for disabled stu-
dents, is dissipated greatly by Virginia's provisions of such services to
non-disabled children.

Furthermore, it should be obvious to all, and especially was to mem-
bers of Congress, that education, though rarely through private tutors,
will improve the circumstances in which we all live especially if disabled
children are not cut off from the considerable benefits of a public educa-
tion.
2 Precursor to Individuals with Disabilities Education Act (IDEA).

                    28
ings. Moreover, if the provision is interpreted to cut off parental rights
to reimbursement, the principal purpose of the Act will in many cases
be defeated in the same way as if reimbursement was never avail-
able." Id. at 372. The Court continued that:

          Thus, under the Town's reading of § 1415(e)(3), the parents
          are forced to leave the child in what may turn out to be an
          inappropriate educational placement or to obtain appropriate
          placement only by sacrificing any claim for reimbursement.
          The Act was intended to give handicapped children both an
          appropriate education and a free one; it should not be inter-
          preted to defeat one or the other of those objectives.

Id. at 372. A similar approach in the instant case is necessary to insure
a principal purpose of IDEA.

The Court did note, however, that "parents who unilaterally change
their child's placement during the pendency of review proceedings,
without the consent of the state or local school officials, do so at their
own financial risk. If the courts ultimately determine that the IEP pro-
posed by school officials was appropriate, the parents would be
barred from obtaining reimbursement for any interim period in which
their child's placement violated § 1415(e)(3)." Id. at 373-74. See also
Hudson by and Through Tyree v. Wilson, 828 F.2d 1059, 1064 (4th
Cir. 1987) (relying on Burlington, "[i]t is now well settled that parents
may be entitled to tuition reimbursement despite their unilateral with-
drawal of their child from the public school."); Hall v. Vance County
Bd. of Educ., 774 F.2d 629 (4th Cir. 1985) (relying on Burlington)
(rejecting school officials' argument that parents' unilateral with-
drawal of child waived any right to reimbursement). Similarly,
nowhere contained in the language of the IDEA does the statute pro-
vide for the forfeiture or waiver of a disabled child's right to a free
appropriate public education.

While not speaking in terms of forfeiture, in Doe v. Maher, 793
F.2d 1470 (9th Cir. 1986), aff'd as modified sub nom. Honig v. Doe,
484 U.S. 305 (1988), the Ninth Circuit affirmed the district court's
finding that two plaintiffs with emotional disturbances had been
improperly expelled for misconduct related to their disabilities.

                     29
Maher, 793 F.2d at 1481-82. In a passage, properly characterized as
dictum, the Ninth Circuit stated:

          If a child's misbehavior is properly determined not to be a
          manifestation of his handicap, the [disabled] child can be
          expelled. This conclusion does not conflict with the[IDEA].
          When a child's misbehavior does not result from his[dis-
          abling] condition, there is simply no justification for
          exempting him from the rules, including those regarding
          expulsion, applicable to other children. Therefore, when a
          [disabled] child is properly expelled, the school district may
          cease providing all educational services -- just as it could
          in any other case. To do otherwise would amount to assert-
          ing that all acts of a [disabled] child, both good and bad, are
          fairly attributable to his handicap. We know that that is not
          so.

Id. at 1482. (internal footnote and internal citations omitted).

However, when the Supreme Court heard the appeal of the Ninth
Circuit case, at issue in Honig was the Act's "stay-put" provision,
which states that a disabled child "shall remain in [his or her] then
current educational placement" until various review proceedings have
been completed, unless local school officials and the child's parents
agree to the contrary. 20 U.S.C. § 1415(e)(3) (Supp.1996). Two stu-
dents who had been expelled due to "violent and disruptive conduct"
arising from their disabilities, see 484 U.S. at 312-315, argued that the
state could not unilaterally expel them unless those procedures were
followed. The Supreme Court agreed.3 The Court held that the lan-
guage of the statute was unequivocal, and rejected the school offi-
cials' attempt "to read a dangerousness" exception into the stay-put
provision. Id. at 323.

The Court disagreed with the school officials' contention "that
Congress thought the residual authority of school officials to exclude
dangerous students from the classroom too obvious for comment." Id.
Instead, the Court reasoned as follows:
_________________________________________________________________
3 The Court found, though, that the issue was moot as to one of the stu-
dents. 484 U.S. at 317-18.

                     30
          We think it clear . . . that Congress very much meant to strip
          schools of the unilateral authority they had traditionally
          employed to exclude disabled students, particularly emo-
          tionally disturbed students, from school. In so doing, Con-
          gress did not leave school administrators powerless to deal
          with dangerous students; it did, however, deny school offi-
          cials their former right to "self-help," and directed that in the
          future the removal of disabled students could be accom-
          plished only with the permission of the parents, or as a last
          resort, the courts.

Id. at 323-24. The Supreme Court did not address the Ninth Circuit's
dicta.4

Using the persuasive rationale articulated in Honig whereby the
Court refused to read a "dangerousness" exception into the Act's stay-
put provision, I refuse to read a "suspension or expulsion for conduct
unrelated to disability" exception into the Act's requirement that "all"
disabled children be assured "the right to a free appropriate public
education." Virginia has concentrated on the interpretation of the
phrase "all children," but I have concluded that "all" means "all" and
that concentration should more appropriately be focused on the statu-
tory requirement of a "free appropriate public education." See
Dandridge v. Williams, 397 U.S. 471, 497 (1970) (Douglas, J., dis-
senting) (words "all eligible individuals" in § 402(a)(1) of the [Social
Security] Act. . . reveal Congress' overriding concern with meeting
the needs of each eligible recipient of aid under AFDC programs)
(emphasis added); Acands, Inc. v. Aetna Cas. and Sur. Co., 764 F.2d
_________________________________________________________________

4 Judge Luttig's panel dissent, adopted by the en banc court, notes that
the Ninth Circuit's dicta was "notably left undisturbed by the Supreme
Court in Honig." 83 F.3d at 1351. I find nothing notable about the
Supreme Court's failure to address a point appearing only as dicta. As
Judge Luttig notes, the Honig decision did not address the issue before
the court in the instant case; the Honig decision only addressed "whether
. . . state or local authorities may . . . unilaterally exclude disabled chil-
dren from the classroom for dangerous or disruptive conduct growing out
of their disabilities." Honig, 484 U.S. at 308. In fact, no dispute exists
that the two students expelled in Maher were expelled because of misbe-
havior related to their disabilities.

                     31
968, 974 (3d Cir. 1985) (affirming district court's interpretation of
phrase "all sums which [insurer] shall become legally obligated to
pay. . ." to require insurer to pay all sums even if plaintiff's damages
are caused in part in an insured period, and also caused in part during
another period) (emphasis added).5

II.

As in Burlington, the majority's "exception" for the cessation of
educational services for disabled children who are expelled from
school for misconduct unrelated to their disabilities, contravenes not
only the language of the IDEA but guts the purpose of the IDEA. In
enacting the statute, Congress found that more than eight million chil-
dren with disabilities existed in the United States; these childrens'
special education needs were not being fully met; more than half
these children did not receive appropriate educational services; one
_________________________________________________________________
5 Virginia relies upon Doe v. Board of Educ., 1996 WL 79411 (N.D.
Ill. Feb. 16, 1996), presently pending before the Seventh Circuit, to sup-
port its position. In Doe, the district court held that "[t]he continued pro-
vision of educational services to a student who has been expelled for
reasons unrelated to a disability is not expressly required by the IDEA
or its regulations, nor is there any reason to believe that Congress
intended to erect an impenetrable shield insulating students with disabili-
ties from the consequences of misconduct totally unrelated to their dis-
abilities." However, the district court granted plaintiff's motion for
reconsideration reasoning that the Office of Special Education Programs
(OSEP) had taken a contrary position in an opinion letter and finding
"that the positions taken by OSEP are entitled to deference", mot. for
recons. granted, 1996 WL 197690 (N.D. Ill. Apr. 22, 1996). Subse-
quently, the district court granted defendant's motion for reconsideration
concluding that upon further reflection, the OSEP opinion letter was
interpretative, not legislative, and as such the court was not bound by
OSEP letter, and thus, found that IDEA did not require the provision of
educational services for a disabled child expelled or suspended for mis-
conduct unrelated to his or her disability), mot. for recons. granted, 1996
WL 392160 (N.D. Ill. July 11, 1996); see also Doe v. Kroger, 480
F.Supp. 225, 229 (N.D. Ind. 1979) (stating that IDEA"only prohibits the
expulsion of [disabled] children who are disruptive because of their [dis-
ability]") (no determination had been made, however, as to whether mis-
behavior was related to disability).

                    32
million of these disabled children were "excluded entirely from the
public school system"; many children with disabilities were partici-
pating in regular school programs which do not serve their educa-
tional needs because their disabilities were undetected; the burden of
families of disabled children who often had to seek appropriate educa-
tional services at great expense and distance from their homes; given
appropriate funding State and local agencies could provide effective
education and related services for these children; State and local agen-
cies had a responsibility to provide children with disabilities with an
education; and "it is in the national interest that the Federal Govern-
ment assist State and local efforts to provide programs to meet the
educational needs of children with disabilities in order to assure equal
protection of the law." See 20 U.S.C.§ 1400(b)(1)-(9) (1990 & Supp.
1996).

The purpose of the IDEA is:

          to assure that all children with disabilities have available to
          them, within the time periods specified in #AD8E BD# 1412(2)(B) of
          this title, a free appropriate public education which empha-
          sizes special education and related services designed to meet
          their unique needs, to assure that the rights of children with
          disabilities and their parents or guardians are protected, to
          assist States and localities to provide the education of all
          children with disabilities, and to assess and assure the effec-
          tiveness of efforts to educate children with disabilities.

20 U.S.C. § 1400(c) (emphasis added). The legislative history evinces
Congress' concerns and purposes in enacting the IDEA. As the
Supreme Court noted in Honig, in drafting the IDEA, Congress was
guided by two district court opinions6 which "involved the exclusion
of hard-to-handle disabled students." Honig , 484 U.S. at 324; see also
S. Rep. No. 168, 94th Cong., 1st Sess. 6 (1975), reprinted in 1975
U.S.C.C.A.N. 1425, 1430 (discussing Mills); Board of Educ. v.
Rowley, 458 U.S. 176, 194 (1982) (reference to Mills and PARC
_________________________________________________________________
6 Mills v. Board of Educ. of District of Columbia, 348 F.Supp. 866
(D.D.C. 1972), and Pennsylvania Ass'n for Retarded Children, et al.
(PARC) v. Pennsylvania, 343 F.Supp. 279 (E.D. Pa. 1972).

                    33
"suggests that the principles which they established are the principles,
which to a significant extent, guided the drafters of the Act").

Clearly, the IDEA is remedial legislation. A familiar canon of stat-
utory construction requires courts to interpret remedial legislation,
such as the IDEA, broadly to effectuate its goals and purposes. See
Tcherepnin v. Knight, 389 U.S. 332, 336 (1967) ("we are guided by
the familiar canon of statutory construction that remedial legislation
should be construed broadly to effectuate its purposes."); Philbin v.
General Elec. Capital Auto Lease, Inc., 929 F.2d 321, 323 (7th Cir.
1991) ("Title VII is remedial legislation which must be construed lib-
erally."); Innovative Health Systems v. City of White Plains, 931
F.Supp. 222, 232 (S.D.N.Y. 1996) (quoting Civic Ass'n of the Deaf
v. Giuliani, et al., 915 F.Supp. 622, 633 (S.D.N.Y. 1996) ("As a reme-
dial statute, the [Americans with Disabilities Act] ADA must be
broadly construed to effectuate its purpose.")). 7

While recognizing the "laudable purpose", 83 F.3d at 1350, of the
IDEA, nevertheless, the majority proceeds to sanction Virginia's deci-
sion to cease providing any educational services to those children
with disabilities who are expelled or suspended for misconduct unre-
lated to their disabilities. As Congress recognized, but the majority
apparently does not, educational services for disabled children are
critical to the childrens' ability to have a chance at achieving the suc-
cesses of their non-disabled counterparts. See S.Rep. No. 168, supra,
at 9, 1975 U.S.C.C.A.N. at 1433 ("With proper education services,
many [disabled children] would be able to become productive citi-
zens, contributing to society instead of being forced to remain bur-
dens. Others, through such [educational] services would increase their
independence, thus reducing their dependence on society").

Heralding the use of expulsion as a disciplinary tool to teach chil-
dren accountability and personal responsibility for their behavior, Vir-
ginia argues that the evidence establishes that an expelled student who
_________________________________________________________________
7 A public education's availability to all children, able and disabled
alike, is obviously essential in the public's interest. That is as true or
more true for disabled children, whether their violence is due to their dis-
abilities or not. For disabled children, the statutory language pertains to
"all" with no exceptions mentioned.

                     34
is readmitted is less likely to be expelled again. Virginia's argument,
of course, ignores evidence that shows that depriving children with
disabilities of educational services, who are suspended long-term or
expelled, is likely to have more severe consequences than denial of
educational services during a similar disciplinary period for their non-
disabled counterparts.

Specifically, in the record, Kevin P. Dwyer, a certified school psy-
chologist in the State of Maryland, testified that children with disabil-
ities who have their education ceased experience greater difficulty
with retention upon returning to school. The retention issue is not
novel, and is in fact, one of the principal reasons why, as Dwyer testi-
fied, "we have 12-month school for kids that are disabled that we
don't have for kids that are not disabled. That's one of the privileges
of special education more. It . . . says these kids need 12 months
because . . . they lose it. They lose some ground during the summer."
See also Johnson v. Independent Sch. Dist. No. 4 , 921 F.2d 1022,
1026-1030 (10th Cir. 1990) (IDEA requires year-round program
when necessary), cert. denied, 500 U.S. 905 (1991); Battle v.
Pennsylvania, 629 F.2d 269, 275, 280-81 (3d Cir. 1980) (noting prob-
lems with retention and need for longer schooling), cert. denied sub
nom. Scanlon v. Battle, 452 U.S. 968 (1981). Hence, the cessation of
educational services to children with disabilities suspended or
expelled for misconduct unrelated to their disability has drastic conse-
quences for those students; consequences which do not apply equally
to non-disabled students suspended or expelled. Such cessation has a
detrimental effect whether a disabled child's misconduct was disabil-
ity related or not.

The majority in effect tries to equate two quite different things:
expulsion or suspension is one thing while loss of access to a free
appropriate public education is another. The majority in effect seeks
to have the lesser perform the work of the greater. Suppose that dis-
abled children can be suspended or expelled from regular schools for
their misdeeds not related to their handicap. Of course that may hap-
pen. A student who acts badly may, and should be in an aggravated
case, disciplined by way of suspension or expulsion. The difference
with respect to the suspension or expulsion of children with disabili-
ties, however, is that during the period of suspension or expulsion that
child's educational services must continue in an alternative setting.

                    35
Virginia contends that the continued provision of educational services
to a disabled child who has been suspended or expelled for miscon-
duct unrelated to his or her handicap is not a suspension or expulsion
but merely a transfer, and hence does not effectively serve the State's
disciplinary goals as a last resort "wake-up" call to the student. Noth-
ing in the IDEA prevents Virginia from "waking up" these children
with suspension or expulsion from their regular school. Virginia,
however, as commanded by the IDEA must "wake up" these children
by providing an education in an alternative setting during the suspen-
sion or expulsion period. The removal of the child from his or her
usual classroom and friends will serve to reinforce the inappropriate-
ness of his or her misconduct.

Virginia's statement that "[s]pecial education students are thereby
consistently governed by the same rules of accountability and per-
sonal responsibility governing others, when disability is not an issue"
represents the lack of understanding of the problem presented in the
instant case. Petitioner's Brief, at 12 (emphasis added). Regrettably,
for a child with a disability, disability is always an issue and relevant.
For that child remains disabled when he or she is suspended or
expelled from school. An analysis which fails to consider the conse-
quences of the cessation of educational services on a disabled child,
fails, in my view to effectuate the purposes of IDEA. The stated pur-
pose of the IDEA is to provide all children with disabilities a free
appropriate public education so that those children can become pro-
ductive members of our society, in the same way as non-disabled chil-
dren. The IDEA is designed, to the extent possible, to provide
disabled children with the tools necessary to close the gap between
them and their non-disabled counterparts. I fail to see how ceasing the
educational process serves that goal.

Undergirding Virginia's argument, adopted by the majority, is the
notion that children with disabilities are being treated differently than
their non-disabled counterparts, and failure to cease educational ser-
vices to these students, as schools do with non-disabled expelled or
suspended students, sends the message that children with disabilities
are not responsible for their actions. The continuation of educational
services to disabled students who are suspended or expelled would
result in a "harmful double standard" between the treatment of dis-
abled and non-disabled students, Virginia maintains.

                     36
In S-1 v. Turlington, 635 F.2d 342 (5th Cir.), cert. denied, 454 U.S.
1030 (1981), the Fifth Circuit addressed the issue of nine disabled
childrens' rights under the IDEA, when the children were expelled
from school. After concluding that an expulsion constituted a change
in placement for IDEA [then EHA] purposes, the court addressed the
discipline issue. The Fifth Circuit in responding to the school offi-
cials' argument that removing the disciplinary tool of expulsion with
respect to a disabled child would "insulat[e]" a disabled student, the
court stated "expulsion is still a proper disciplinary tool . . . when
proper procedures are utilized and under proper circumstances." Id. at
348. Thus, the court determined that before a disabled student could
be expelled the student was entitled to a hearing to determine whether
his misconduct was related to his disability. Nevertheless, the court
stated that "[w]e cannot, however, authorize the complete cessation of
educational services during an expulsion period." Id.; see also Kaelin
v. Grubbs, 682 F.2d 595, 597 (6th Cir. 1982) (following Turlington
analysis to conclude that disabled child may be expelled, only after
a due process hearing determines that misconduct was not related to
handicap, and during the expulsion period educational services may
not cease); and see School Bd. v. Malone, 762 F.2d 1210, 1218 (4th
Cir. 1985) (court held that disabled student could not be expelled for
behavior caused by his disability but declined to address "whether
some level of educational services must be continued to a lawfully
expelled handicapped child, and if so, to what extent.").

Children with disabilities are not, and cannot be treated, the same
as non-disabled students. Any argument based on strict equality of
treatment for disabled and non-disabled children must fail. In enacting
the IDEA, Congress indeed granted disabled children"more rights"
than those enjoyed by non-disabled children. For example, the IDEA
confers upon disabled children the right to an annually reviewed "in-
dividualized education program," prepared by the school district, the
child's teacher and parents, and, when possible, the disabled child
himself or herself. See 20 U.S.C. § 1401(a)(2), 1414(a)(5) (Supp.
1996). The "stay-put" provision, discussed in Honig, represents
another example of conferring special rights upon disabled children.
The Honig holding and its rationale, at least implicitly, relies upon the
basic premise that children with disabilities are to be treated differ-
ently than children without disabilities.

                    37
In one fell stroke, the majority alters IDEA by grafting onto its lan-
guage an exception not provided by Congress for children with dis-
abilities who have been expelled or suspended for misconduct
unrelated to their disabilities, namely the cessation of educational ser-
vices during the period of the suspension or expulsion. Until today's
decision, no such exception existed. In my view, if a state refuses to
offer educational services to a disabled child due to that child's con-
duct -- regardless of whether that conduct is a manifestation of the
child's disability -- then it has ceased to assure that child of "the right
to a free appropriate public education." Contrary to Virginia's belief,
the statute in no way indicates that a disabled child forfeits or waives
that right when he or she misbehaves in a manner unrelated to his or
her disability.

While remedial legislation should be construed broadly to effectu-
ate its purpose, I recognize that the canon of construction does not
allow a court to ignore the plain wording of the statute. In the instant
case, however, the IDEA's plain language leaves no room for excep-
tions of the kind that Virginia has asked us to read into it. The Act
requires that participating states have "in effect a policy that assures
all children with disabilities the right to a free appropriate public edu-
cation." Hence, the IDEA's unqualified language is sufficiently clear
to have enabled Virginia authorities to perceive that they would have
to adjust their disciplinary policies for disabled students if they
wished to participate in the IDEA-B program. Compare Timothy W.
v. Rochester, New Hampshire, Sch. Dist., 875 F.2d 954, 960-61 (1st
Cir.) (rejecting argument that, in order to demand educational services
under IDEA, a child must show that he or she would benefit from
such services; because the IDEA is unequivocal and"is permeated
with the words `all [disabled] children' . . . the Act in its entirety
makes clear that a `zero-reject' policy is at the core of the Act"), cert.
denied, 493 U.S. 983 (1989).

III.

Virginia's proposed exception to the IDEA, sanctioned by the
majority, has no support in the statutory language of the IDEA. More-
over, the exception the majority has placed its imprimatur on today
is divorced from the very purposes of the IDEA. The majority has
succumbed to the temptation which we as judges should steadfastly

                     38
resist. We should read a statute as it is written, not rewrite it as we
would like it to be. It should be Congress not the courts to incorporate
in the statute following "all children with disabilities" the phraseol-
ogy: "excluding those expelled or suspended for misconduct unrelated
to their disabilities." The statute as it now stands should reach the
conclusion that our legislators have viewed the situation in the round
and have been concerned that growing up without any appropriate
public education may well, indeed probably will, lead to grownups
less able to live intelligently, or at least reasonably, and more prone
to the improper conduct which had led to his or her expulsion or sus-
pension in the first place. In other words, an appropriate public educa-
tion produces better citizens. Special classes other than those termed
regular or, where most functional, resort to appropriate correspon-
dence courses prepared by teachers and no doubt other techniques
may be used to ensure an appropriate free public education for dis-
abled children who have been expelled or suspended without
adversely affecting the classes wherein expulsion or suspension of a
handicapped student has occurred. Because I cannot sanction the
undermining of the IDEA's noble purposes by leaving 126 children
with disabilities without any educational services during a period of
expulsion or suspension, I dissent.

_________________________________________________________________

HALL, Circuit Judge, dissenting:

I join Judge Murnaghan's dissenting opinion. I write separately,
however, to set forth an alternative basis for affirming the Secretary's
decision.

If the statute in question is ambiguous, as a majority of the court
apparently assumes it to be, I would agree with the majority that
"[w]hether [Judge Murnaghan's] interpretation of the statute or that
which [the majority] believe[s] Congress intended is the better [ ] is
not even the question." 86 F.3d at 1352. I would, however, disagree
with the majority's view that "the deference that we ordinarily afford
agency interpretations of ambiguous statutes is inapplicable in a case
such as this." Id. at 1351 n.4. There are lots of "case[s] such as this"
that involve complex funding programs and millions of federal dol-
lars. In the wake of our decision today, the role of the agencies to

                     39
whom Congress has assigned the task of administering these pro-
grams is an uncertain one.

I believe that a majority of the court would agree that Congress
could, provided it did so expressly, condition a State's receipt of
funds under the IDEA cooperative funding program on the State's
continuing to provide educational services to disabled students
expelled for reasons unrelated to their disabilities. See South Dakota
v. Dole, 483 U.S. 203, 207, 107 S.Ct. 2793, 2796, 97 L.Ed.2d 171
(1987) ("In considering whether a particular expenditure is intended
to serve general public purposes, courts should defer substantially to
the judgment of Congress."). The statutory provision in question, 20
U.S.C. § 1412(l), is arguably not an unambiguous expression of Con-
gressional intent that such services be provided. The issue, then, is
whether we will require that Congress itself define in unmistakable
statutory terms each and every string that is or may ever be attached
to a State's receipt of funds under a cooperative funding program, or
do we defer to a reasonable interpretation made by the federal agency
to which Congress has delegated the job of operating the program? In
choosing the former, the majority eviscerates the rule of Chevron and
establishes a "clear statement rule" that is as unprecedented as it is
unworkable.

The majority's holding and the essential analysis supporting it are
contained in the first paragraph of part I-B of its opinion: When Con-
gress wants to condition the States' receipt of funds, it must do so in
"unmistakably clear terms" in the statute. 86 F.3d at 1352. This "clear
statement" rule is derived from Pennhurst State School and Hospital
v. Halderman, 451 U.S. 1 (1981), a pre-Chevron decision that had the
following to say about the need for a State to know what it is agreeing
to when it enters into the cooperative funding scheme:

          [L]egislation enacted pursuant to the spending power is
          much in the nature of a contract: in return for federal funds,
          the States agree to comply with federally imposed condi-
          tions. The legitimacy of Congress' power to legislate under
          the spending power thus rests on whether the State voluntar-
          ily and knowingly accepts the terms of the "contract." . . .
          [I]f Congress intends to impose a condition on the grant of
          federal moneys, it must do so unambiguously.

                    40
Id. at 17 (citations omitted). Applying this general rule in the manner
advanced by the majority takes Pennhurst to an unintended level.

In its discussion of the Spending Clause, the Court in Pennhurst
was concerned that a State know what was expected of it when it
chose to participate in a federal funding program. Id. at 17-18.
Pennhurst simply does not stand for the proposition that every detail
of a federal-state cooperative funding program must be spelled out in
the statute itself, and we have not so held in the sixteen years since
Pennhurst was decided. Indeed, the Supreme Court has recently
deferred to the Secretary's interpretation of an IDEA provision in a
situation analogous to the one before us. See Honig v. Doe, 484 U.S.
305, 325 n.8 (1988) ("Given this ambiguity [in the phrase `change in
placement' used in 20 U.S.C. § 1415(e)(3)], we defer to the construc-
tion adopted by the agency charged with monitoring and enforcing the
statute.") (citing INS v. Cardozo-Fonseca, 480 U.S. 421, 448 (1987)).

The IDEA gives to the Secretary of Education the authority to
administer, interpret and enforce the statute. See 20 U.S.C.
§§ 1402(a), 1416, 1417(b). The Secretary's interpretive rule in this
case -- that even children expelled for misbehavior unrelated to their
disabilities be provided educational services -- was published well
before Virginia submitted its application for participation in the pro-
gram for fiscal years 1993-95. See Metropolitan School Dist. of
Wayne Township v. Davila, 969 F.2d 485 (7th Cir. 1992) (discussing
the history of the interpretive rule), cert. denied, 507 U.S. 949 (1993).
Virginia pursued the benefits of IDEA funding with its eyes wide
open. Pennhurst does not suggest that this court should now abrogate
those conditions of which Virginia was aware solely because such
condition was not precisely spelled out in the few pages of the United
States Code that established this sizable government program.

An example from another federal-state funding program will serve
to show the unworkability of the majority's rule. At issue in
Rehabilitation Ass'n of Virginia, Inc. v. Kozlowski , 42 F.3d 1444 (4th
Cir. 1994), cert. denied, 116 S.Ct. 60 (1995), was the meaning of the
Medicaid and Medicare statutes' formula for a State's contribution for
services to persons eligible under both programs. Acknowledging that
Chevron would apply if the statute were ambiguous, id. at 1450, two
judges on the panel nevertheless rejected the Secretary of HHS's

                     41
interpretation and instead adopted an interpretation that they found to
be in accord with the clear and unambiguous language of the statute.
The concurring opinion, however, provides a glimpse of what the
future may hold if Chevron deference is replaced by the clear state-
ment rule adopted by the majority in our case.

After concluding that there was more than one reasonable interpre-
tation of the statutes in question, Judge Niemeyer invoked Chevron
to support his view that the court should defer to the federal agency's
interpretation. Id. at 1470-71 (Niemeyer, J., concurring in part and
dissenting in part). Had the Secretary's interpretation in Kozlowski
been the one that mandated increased contributions from the States,
we can only wonder how the analysis would have proceeded under
the rule announced by the majority in the case before us. Given two
reasonable interpretations of a statute, each of which would "condi-
tion the State's receipt of federal funds in a particular manner" in the
context of a cooperative federal-state funding program, but which
would yield different results as far as the financial effect on the partic-
ipating State, does this very ambiguity ipso facto defeat the federal
government's claim that its interpretation should be adopted? Should
the courts, faced with an ambiguity, always defer to the interpretation
advanced by the State? What effect, if any, does the type of program
or amount of money involved have on the analysis? For example,
should the courts accord some deference to the Secretary of Transpor-
tation with regard to ambiguities in highway-funding statutes, but
none whatsoever to the Secretary of Education?

We should not allow the visceral impact of the case before us --
unruly and even dangerous students threatening the fabric of our
schools and the physical integrity of our children-- to disguise the
portent of the majority's analysis or to cause us to forsake the estab-
lished rule that we defer to reasonable agency interpretations of the
statute.

          When a challenge to an agency construction of a statutory
          provision, fairly conceptualized, really centers on the wis-
          dom of the agency's policy, rather than whether it is a rea-
          sonable choice within a gap left open by Congress, the
          challenge must fail.

                     42
Chevron, 467 U.S. at 866. Congress necessarily delegated to the Sec-
retary the authority to administer the IDEA because not every aspect
of such a program can be adequately addressed in a statute. The
majority's rule will require that the minutiae of cooperative funding
programs be spelled out in the statute itself, bringing to mind Justice
White's complaint in Pennhurst that "[n]one of the cases cited by the
Court suggest, much less hold, that Congress is required to condition
its grant of funds with contract-like exactitude." 451 U.S. at 48 n.14
(White, J., dissenting in part).

Our views on the educational and disciplinary policies implicated
by the IDEA are irrelevant to the issue at hand. Judge Luttig sets out
the case for why the State's interpretation is good policy -- everyone
should be treated alike when it comes to discipline, 86 F.3d at 1357
-- and Judge Murnaghan presents the federal government's argument

that it is sound policy to provide unbroken services to disabled chil-
dren even when they are expelled for behavior unrelated to their dis-
ability. Ante at 32-38 (Murnaghan, J., dissenting). But as long as the
goal of the federal legislation -- the education of disabled children --
is a proper one (as it most certainly is), and as long as the means
selected -- the provision of services to expelled students -- is ratio-
nally related to that goal (as Judge Murnaghan's opinion demonstrates
it is), our task is at an end.*

I would affirm the decision of the Secretary.
_________________________________________________________________

*To bolster its "clear statement" holding, the majority notes that insis-
tence on an unambiguous statutory expression of a condition on the
receipt of funds is "especially important where, as here, the claimed con-
dition requires the surrender of one of, if not the most significant of, the
powers or functions reserved to the States by the Tenth Amendment." 86
F.3d at 1352. By choosing to accept federal IDEA funding, Virginia cer-
tainly "surrendered" a large degree of its"powers and functions" relative
to the education of its children. I do not, however, see the majority's dis-
cussion of the Tenth Amendment and the clear statement rule in Gregory
v. Ashcroft, 501 U.S. 452 (1991), as essential to the majority's holding.

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