IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-31045

_____________________

CHARLES TONY CEFALU, JR., Behalf of

his minor son rpi Charles Tony Cefalu, III,

Plaintiff-Appellee,

versus

EAST BATON ROUGE PARISH SCHOOL BOARD;

STATE OF LOUISIANA, Through the

Department of Education,

Defendants-Appellants.

_________________________________________________________________

Appeal from the United States District Court for the

Middle District of Louisiana, Baton Rouge

_________________________________________________________________

January 3, 1997

Before POLITZ , Chief Judge, and JOLLY and BARKSDALE, Circuit

Judges.

E. GRADY JOLLY, Circuit Judge:

The single question presented by this appeal is whether, under

the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C.

§ 1400 e t seq.

, a school board is legally obligated to prov ide a

sign langu age interpreter to a disabled student voluntarily

enrolled in private school. The district court found that the IDEA

required the school board to provide the on-site interpreter, and

the school board appeals. We vacate the decision of the district

court and remand this case for further consideration in the light

of our opinion.-2- I

Charles Tony Cefal u, III ("Cefalu") has suffered from a

hearing impair ment since birth. Cefalu attended public schools

until the conclusion of the 1992-93 school year. Cefalu's

individualized education program ("IEP"), prepared in accordance

with the requirements of the IDEA, included the services of a sign

language interpreter.

In June 1993, the Supreme Court held that a public school

distric t did not violate the Establishment Clause by providing

services under the IDEA to students voluntarily attending parochial

schools. Z obrest v. Catalina Foothills Sch. Dist.

, 509 U.S. 1

(1993). Thereafter, Cefalu's parents withdrew their consent from

a previously devised IEP, which included a sign language

interpreter at a public school, and enrolled Cefalu at Redemptorist

High School, a private school. The Cefalus then requested that a

sign language interpreter be provided at Redemptorist. The school

board refused the Cefalus' request and again offered a sign

language interpreter at the public school. The Cefalus refused to

consent and requested an IDEA due process hearing. See 20 U.S.C.

§ 1415(b)(2).

In October 1993, the administrative hearing officer ruled that

the school board was not obligated to provide Cefalu with an

interpreter while at Redemptorist, because the offer to provide an

interpreter at the pu blic school provided Cefalu with an

opportunity for a free appropriate public education. The decision-3-

of the hearing officer was affirmed on appeal to the state level

review commission. S ee 20 U. S.C. § 1415(c). Cefalu then sought

review in federal court. See 20 U.S.C. § 1415(e)(2).

The f ederal district court heard cross-motions for summary

judgment. Based upon the record, consisting of the administrative

record and a joint stipulation, the court granted Cefalu's motion

and ordered the school board to provide a sign language interpreter

at Redemptorist. The court denied the board's motion to stay the

judgment pending appeal. The board did not seek a stay from this

court.

II

A

We r eview the district court's grant of summary judgment d e

novo

, using the standard utilized by the district court. S ee,

e.g.

, Brock v. Chater

, 84 F.3d 726, 727 (5th Cir. 199 6). In

conducting judicial review of an IDEA administrative decision, the

court "shall receive the records of the administrative proceedings,

shall hear additional evidence at the request of a party, and,

basing its decision on the preponderanc e of the evidence, shall

grant such relief as the court determines is appropriate." 20

U.S.C. § 1415(e)(2).-4- B

(1)

This appeal requires us to interpret t he IDEA and its

regulations. The IDEA provides federal grants to states, which in

turn provide funds to local school districts to establish special

education and rel ated services for children with disabilities.

States that accept the funds are required to adopt a policy and a

plan that "assures all children with disabilities the right to a

free appropriate public e ducation." 20 U.S.C. § 1412. The IDEA

defines a "free appropriate public education” to include

Special education and related services that--

(A) have been provided at public

expense, under public supervision and

direction, and without charge,

(B) meet the standards of the State

educational agency,

(C) include an appropriate preschool,

elementary, or secondary school education in

the State involved, and

(D) are provided in conformity with the

individualized education program required

under section 1414(a)(5) of this title.

20 U.S.C. § 1401(18). "The word 'public' is a term of art which

refers to 'public expense,' whether at public or private schools."

Dreher v. Amphitheater Unified Sch. Dist.

, 22 F.3d 228, 233 n.10

(9th Cir. 1994) (citing Florence County Sch. Dist. Four v. Carter

,

114 S.Ct. 361, 365 (1993)).-5-

Local school districts receiving funds under the IDEA are

required to prepare an IEP for each disabled student, whether in

public or private school. The IEP must identify the special

education and related services that are necessary to meet that

student's needs, and the district must offer to provide t hose

services at public expense. 20 U.S.C. §§ 1412(4), 1414(a)(1),

1414(a)(5). If the district is unable to provide the necessary

services to the disabled student, then the student must be placed

in a private school that can address the student’s needs at public

expense. 20 U.S.C. § 1413(a)(4)(B). These mandatory private

school st udents are distinguished under the IDEA and its

regulations from students, such as Cefalu, who voluntarily are

enrolled in private schools.

Students voluntarily attending private schools are addressed

by the provision requiring each state's plan to

set forth policies and procedures to assure--

(A) that, to the extent consistent with the number

and location of children with disabilities in the State

who are enrolled in private elementary and secondary

schools, provision is made for the participation of such

children in the program assisted or car ried out under

this subchapter by providing for such chi ldren special

education and related services.

20 U.S.C. § 1413(a)(4)(A). The school district is not required to

pay a student's private school tuition if he is voluntarily

enrolled in private school; however, the district "shall make

services available to the child as provided” by other regulations

enacted pursuant to the IDEA. 34 C.F.R. § 300.403.-6-

The ot her regulations referenced above require each local

educational a gency to "provide special education and related

services designed to meet the needs of private school children with

disabilities resid ing in the jurisdiction of the agency." 34

C.F.R. § 300.452. Additionally, local agencies are to ensure that,

"[t]o the extent consistent with their number and location in the

State, provision is made for the participation of private school

children with disabilities in the program assisted or carried out

under this part by providing them with special educat ion and

related services." 34 C.F.R. § 300.451(a). Local education

agencies are also charged with "p rovid[ing] students enrolled in

private schools with a genuine opportunity for equitable

participation" and "provid[ing] that opportunity to participate in

a manner that is consistent with the number of eligible private

school students and their needs." 34 C.F.R. § 76.651(a)(1) & (2).

The local agency is required to consult with private school

students' representatives regarding which students will receive

benefits, how the students' needs will be identified, what benefits

will be provided, and how benefits will be provided. 34 C.F.R. §

76.652(a). Local educational agencies are to determine the needs

of private school students, the number of private school students

to be participants in a project, and the benefits that the agency

will provide to those students using a "basis comparable to that

used

. . . in providing for participation of public school

students." 34 C.F.R. § 76.653. Finally, "[t]he program benefits-7-

that [an agency] provides for students enrolled in private schools

must be comparable in quality, scope, and opportunity for

p articipation to the program benefits that the [agency] provides

for students enrolled in public schools." 34 C.F.R. § 76.654(a).

It is clear, therefore, that the IDEA different iates among

three categories of disabled students: (1) those attending public

schools; (2) those placed in priv ate schools by local school

districts; and (3) those attending private schools voluntarily.

With respect to public school students, the IDEA requires that all

children with disabilities receiv e a free appropriate public

education that covers the expense of special education and related

services. 20 U.S.C. §§ 1412(1), 1412(2)(B), 1412(4), 1414(a)(5).

Students placed in private schools by local school districts are to

receive the same benefits as those attending public schools. 20

U.S.C. § 1413(a)(4)(B). The regulations require that students

voluntarily attending pr ivate schools be provided with an

"equitable opportunity for participation" in the program"to the

extent consistent with the number and location" of such students.

34 C.F.R. § 1413(a)(4)(A). Today, we are required to address the

application of the IDEA only as it relates to this third category

of disabled students.

(2)

When an attempt is made to apply the foregoing statutory

provisions and regulations to speci fic cases involving disabled

students voluntarily attending private school, we see that the IDEA-8-

and its implementing regulations are amorphous in design and

imprecise in message. By necessity, therefore, the statute and

regulations must be regarded as affording considerable discretion

to educational agencies because their terms are to be applied in

sundry factual situations. Such flexibility for local officials,

however, comes with attendant costs. The IDEA and the

corresponding regulations seldomprovide a road map to local

educational agencies regarding the extent of their obligations

under the Act and the manner in which those obl igations must be

fulfilled, thus leaving a considerable area open to dispute.

In attempting to glean the essence of the s tatute and

regulations, however, certain points are salient as they relate to

the question before us. First, and fundamental, the drafters of

the IDEA plainly intended that students vol untarily enrolled in

private schools be active participants in and beneficiaries of the

program. S ee 20 U.S.C. § 1413(a)(4)(A) (West 1990). Such students

are entitled to "a genuine opportunity for equitable participation"

in programs and services provided under the IDEA. 34 C.F.R. §

76.651. It is clear that the statute does not mandate that

services for students voluntarily enr olled at private schools be

provided on-site at the private school. However, the refusal to

provide services on-site implicates the student's right to

"equitable participation."

It is implicit in the statute and the regulations that

educational agencies must be afforded the broadest discretion to-9-

design special programs in the light of the finite funds that are

available. The regulations support the proposition that these

limited resources must be distributed in a manner that allows the

provision of necessary services to the greatest number of qualified

students within in the re levant district, when all other

appropriate criteria in the decisio n -making process have been

considered. The regulations address this concern by stating that

the average amount spent per pupil should not vary according to

whether the student attends public or private school but, instead,

should vary only according to the cost required to fulfill the

special education needs of the student. 34 C.F.R. § 76.655. It is

in th is context that the obligation of the agency arises to "set

forth policies and procedures to assure that, to the extent

consistent with the number and location of handicapped children in

the State who are enrolled in private elementary and secondary

schools, provision is made for the participation of such children

in the program assisted or carried out under this subchapter by

providing for such children special education and rel ated

services." 20 U.S.C.A. § 1413(a)(4)(A) (West 1990) (emphasis

add ed). This provision, which is also reflected in the

regulations, allows the educational agency to exercise discretion

in determining the manner in which services are to be provided to

disabled children in public and private schools. This discretion

is to be exercised in a way that assures the private school student

a "genuine opportunity for equitable participation" in the program,-10-

but , that also considers the "number of eligible private school

students and their needs." 34 C.F.R. § 76.651. The word

"equitable," certainly in the context of the finite funds

available, means fair to all concerned, not simply fair to the

private school student; in this context, it means not unfair to

others depending on the same pool of money for services and

benefits.

Thus, we arrive at our second point that is plain from the Act

and regulations: although private school students are eligible to

receive benefits under the program, they are not entitled to a

greater share of benefits, nor of the funds providing those

benefits, per student, than similarly-situated students in public

schools.

The statute and regulations, therefore, lead to the following

rule to apply in disputed cases in the posture of the one before

us: The private schoo l student must make an initial showing of a

genuine need for on-site services, based upon more than mere

convenience. Upon such showing, the agency must provide on-site

services unless it presents a justifiable reason, either economic

or non-economic, for its denial of on-site services. The student

then bears the burden of showing that the agency’s position is

inconsistent with the IDEA and its regulations, or is not

rationally supportable, or is otherwise arbitrary.

The general applic ation of this rule will ensure that

educational agencies fulf ill their obligation to provide private1 The Seventh Circuit in K.R. v. Anderson Community Sch. Corp.

,

81 F.3d 673 (7th Cir. 1996), held that educational agencies had

broad discretion in determining what services to provide to

students enroll ed in private schools. K .R.

, 81 F.3d at 679. We

agree that the agency has broad discretion in determining what

services to provide generally; in other words, the agency has broad

discretion in formulating an IEP for a student. The IDEA and the

regulations grant discretion to the educational agency to determine

what services to provide to an individual student, but, once that

decision is made, and the student has made a showing of genuine

need for on-site services, those services sho uld be provided onsite at the private school, absent justification as noted above. If

such justification is demonstrated, nothing in our opinion should

be construed as precluding the agency and the affected parties from

voluntarily negotiating a solution to their dispute that may result

in services less than comparable to the services provided to a public school student.

-11- school students with a "genuine opportunity for equitable

participation" in IDEA services. Under this general approach,

private school students usually will, ab s ent justifiable noneconomic considerations, be provided comparable services on-site to

the extent that such services can be provided on-site at the same

approximate cost as that incurred in providing the services at

other sites. 1 S ee Russman v. Sobol

, 85 F.3d 1050, 1056-57 (2d Cir.

1996). The rule will also ensure that disproportionately large

sums of scarce money are not required to be spent to benefit a

reduced number of students.

III

Finally, we come to the question whether the school board here

is obligated to provide Cefalu an interpr eter on-site at

Redemptorist. In this connection, there is no evidence in the

record that indic ates the basis of the school board's decision.2 The dissent charges that we are deciding more tha n is at

issue in this appeal, pointing out that the stipulated issue is

whether the s chool board is legally obligated to provide the

subject service to Cefalu. With due respect, our view of the case

is that we cannot answer this question because we do not know the

basis upon which the school board made its decision. The dissent

acknowledges that the school board’s discretion to deny on-site

services to private school students is limited. There is nothing

i n the record to tell us whether the school board exceeded that

limit; therefore, we conclude that this case must be remanded for

further development on this point.

Neither do we understand how the dissent concludes that our

interpretation of the IDEA and its regulations is inconsistent with

the interpretation of the U nited States Department of Education.

There is nothing in this opinion that suggests that the local

agency is automatically required to pay for Cefalu’s education at

Redemptorist. Our opinion emphasizes, as do the regulations, that

the private school student is entitled to a genuine opportunity for

equitable participation a nd that the agency must “provide that

opportunity to participate in a manner that is consistent with the

number of eligible private school students and their needs.” There

is nothing in our opinion that holds that an individual private

school student is automatically entitled to receive on-site

services comparable to those that he would receive at a public

school. Furthermore, there is nothing in this opinion that can be

read to favor the private school setting over the public school

setting when only one service can be provided. Thus, we

respectfully differ with the dissent’s position that this opinion

somehow co n flicts with the interpretations promulgated by the

Department of Education.

3 For the first time in its reply brief, the State Department

of Education requests that the Cefalus be required to reimburse it

for the costs of the interpreter that the district court ordered it

to pr ovide during the pendency of this appeal. As noted, the

appellants did not seek a stay pending appeal. In any event, we do

not address the issue because it was first raised in a reply brief.

-12- Absent such evidence, we are unable to determine whether the denial

of services under the IDEA was appropriate. 2 For that reason, we

VACATE the judgment of the district court and REMAND for further

consideration and action in the light of this opinion. 3

VACATED and REMANDED.-13-

RHESA HAWKINS BARKSDALE, Circuit Judge, dissenting:

I respectfully dissent: (1) the issue presented is much more

narrow than that seized by the majority; (2) its interpretation of

the statute and regulations is inconsistent with the interpretation

of the United States Department of Education, to which we should

defer; and (3) it s allocation of the burden of proof is not

supported by the statute and regulations, and is inconsistent with

our precedent. In order to develop these points, it is necessary

to replow much of the ground turned already by the majority.

I.

Charles Tony Cefalu , III, who has had a hearing impairment

since birth, was educated in public schools through the end of the

1992-93 school year. As required by the IDEA, he received special

education and related services, including sign language interpreter

services, pursuant to an individualized education plan (IEP).

In March 1993, an IEP for the 1993-94 school year was approved

by Cefalu’s parents. It specified that his special education

program would include the services of an interpreter at a public

middle school. In June, the Supreme Court held that a public

s chool district did not violate the Establishment Clause by

providing such services to a student attending a private school-14-

voluntarily. Z obrest v. Catalina Foothills Sc hool District , 509

U.S. 1 (1993).

That summer, Cefalu’s parents withdrew their conse nt to the

1993-94 IEP, enrolled Cefalu at Redemptorist High School, a private

school, and r equested a new IEP which would provide him with an

interpreter there. At an IEP conference in August, school system

officials refused the request and offered an IEP essentially

identical to that of March 1993. The Cefalus refused to consent to

the August 1993 IEP, and requested an IDEA due process hearing,

pursuant to 20 U.S.C. § 1415(b)(2).

In October 1993, the administrative hearing officer ruled that

the School Board was not obligated to provide Cefalu with an

i nterpreter while at Redemptorist, because it had offered him a

free appropriate public education in the public school system. On

appeal to the state level review commission, 20 U.S.C. § 1415(c),

the hearin g officer’s decision was affirmed. Cefalu then sought

judicial review in federal court, as provided for by the IDEA, 20

U.S.C. § 1415(e)(2).

A fter hearing cross-motions for summary judgment, for whi c h

the record consist ed of the administrative record and a joint

stipulation, the district court granted Cefalu’s, and ordered the

Board to provide him with a sign language interpreter at

Redemptorist. The court denied the Board’s motion to stay the

judgment pending appeal; it did not seek a stay from our court.

II.-- - 15 - The stipulated, sole issue before the district court was

“whether the School Board is legally obligated to provide [Cefalu]

with the related service of a sign language interpreter while he

attends a private school in which he was unilaterally placed by his

parents who rejected the offer of the School Board to provide

appropriate services to [Cefalu], including an educational

interpreter, in the public school system”. That same question is

presented here; needless to say, it is much more narrow than that

seized by the majority.

Cefalu contends only that the statute and regulations give the

School Board no discretion whatsoever to deny prov iding an

interpreter at his private school. He does not contend,

alternatively, that, if the School Board has discretion, it abused

it. Accordingly, that is why, as the majority notes, “there is no

evidence in the record that indicates the basis of the school

board’s decision”. I disagree with its decision to remand for

further consideration of whether the School Board’s denial of

services under the IDEA was appropriate, because that issue was not

presented to us.

It goes without saying that the summary judgment is reviewed

de novo

, using the standard utilized by the district court. E .g.

,

Brock v. Chater , 84 F.3d 726, 727 (5th Cir. 1996). In conducting

judicial review of an IDEA administrative decision, the court

“shall receive the records of the administrative proceedings, shall

hear additional evidence at the request of a party, and, basing its-- - 16 - decision on the preponderance of the evidence, shall g rant such

relief as the court determines is appropriate”. 20 U.S.C. §

1415(e)(2). At issue is interpretation of the IDEA and regulations

promulgated under it.

The IDEA provides federal grants to States, which in turn

provide funds to local school districts, for assistance in

providing special education and related services to children with

disabilities. States that accept such grants are required to have

in effect a policy that “assures all children with disabilities the

right to a free appropriate public education” and a plan that

assures the availability of such an education to such students. 20

U.S.C. § 1412. The IDEA defines a “free appropriate public

education” as

special education and related services that--

(A) have been provided at

public expense, under public

supervision and direction, and

without charge,

(B) meet the standards of the

State educational agency,

(C) include an appropriate

preschool, elementary, or secondary

school education in the State involved,

and

(D) are provided in conformity

with the individualized education

program required under section

1414(a)(5) of this title.

20 U.S.C. § 1401(18). “The word ‘public’ is a term of art which

refers to ‘public expense,’ whether at public or private schools.”

Dreher v. Amphitheater Unified School Dist.

, 22 F.3d 228, 233 n.10-- - 17 - (9th Cir. 1994) (c iting F lorence County School Dist. Four v.

Carter , 510 U.S. 7, 114 S. Ct. 361, 365 (1993)).

Local school dist ricts receiving funds under the IDEA are

required to prepare an IEP for each disabled student; the IEP must

identify the special education and related services that are

necessary to meet that student’s needs; and the district must offer

to provide those services at public expense. 20 U.S.C. §§ 1412(4),

1414(a)(1), (5). And, if the district is unable to provide the

necessary services in a public school, the district must place the

student in a private school at public expe nse. 20 U.S.C. §

1413(a)(4)(B).

But, f or students such as Cefalu, attending private schools

voluntarily, the IDEA requires that each state’s plan

set forth policies and procedures to assure--

(A) that, to the extent consistent with

the number and location of children with

disabilities in the State who are enrolled in

private elementary and secondary schools,

provision is made for the participation of

such children in the program assisted or

carried out under this subchapter by providing

for such children special education and

related services ....

2 0 U.S.C. § 1413(a)(4)(A). Along that line, regulations

promulgated by the United States Department of Education provide

that, if parents place their child in a private school voluntarily,

“the public a gency is not required ... to pay for the child’s

education at the private school or facility. However, the public-- - 18 - agency shall make services available to the child as provided under

§§ 300.450-300.452.” 34 C.F.R. § 300.403.

One of these referenced sections, § 300.452, states that

“[e]ach [local educational agency] shall provide special education

and related services designed to meet the needs of private school

chil dren with disabilities residing in the jurisdiction of the

agency .” 34 C.F.R. § 300.452. Another, § 300.451, requires the

local agency to ensure that, “[t]o the extent consistent with their

number and location in the State, provision is made for the

participation of private school children with disabilities in the

program assisted or carried out under this part by providing them

with special education and related services ....” 34 C.F.R. §

300.451(a).

Section 300.451 also requires local educational agencies to

satisfy the requirements of 34 C.F.R. §§ 76.651-76.662. 34 C.F.R.

§ 300.451(b). Those cross-referenced regulations address

conditions that the State and the subgrantees (local public

schools) must meet with respect to private school students. Under

those regulations, local educational agencies “shall provide

students enrolled in private schools with a genuine opportunity for

e quitable participation”, and “shall provide that opportunity to

participate in a manner that is consistent with the number of

eligible private school students and their needs.” 34 C.F.R. §

76.651(a)(1) and (2). The local agency is required to consult with

private school students’ representatives regarding which students-- - 19 - will receive benefits, how the students’ needs will be identified,

what benefits will be provided, and how benefits will be provided.

34 C.F.R. § 76.652(a). And, the local agency is required to

determine the following “on a basis comparable to that used

... in

providing for participation of public school students”:

(a) The needs of students enrolled in

private schools.

(b) The number of those students who

will participate in a project.

(c) The benefits that the [agency] will

provide under the program to those students.

34 C.F.R. § 76.653. Finally, “[t]he program benefits that [an

agency] provides for students enrolled in private schools must be

comparable in quality, scope, and opportunity for participation to

the prog ram benefits that the [agency] provides for students

enrolled in public schools.” 34 C.F.R. § 76.654(a).

The district court adopted the opinion in K. R. v. Anderson

Community School Corp.

, 887 F. Supp. 1217 (S.D. Ind. 1995). The K

.

R. district court relied on § 76.654(a)’s requirement of

“comparable” benefits; it re asoned that, because K. R. would

receive an instructional assistant in th e public school, she was

entitled to one in the private school, because there was no other

“comparable” alternative. 887 F. Supp. at 1225.

But, after the district court rendered i ts decision in the

case at hand, the Seventh Circuit reversed the K. R. district

court. K

. R. v. Anderson Community School Corp.

, 81 F.3d 673 (7th

Cir. 1996). The Seventh Circuit held that the district court erred-- - 20 - by focusing only on one section of the statutory and regulatory

provisions, and that its interpretation of § 76.654 was

contradicted by the conventional understanding of the IDEA and its

regulations.

I would hold, consistent with the Seventh Circuit, that the

district court erred. The IDEA differentiates among three

categories of disabled students: (1) those attending public

schools; (2) those placed in private schools by local school

districts; and (3) those attending private schools voluntarily.

For publi c school students, the IDEA requires that all children

with disabilities receive a free appropriate public education that

covers the expense of all special education and related services.

2 0 U.S.C. §§ 1412(1) and (2)(B), 1412(4), 1414(a)(5). Students

placed in private schools by local school districts are to receive

the same benefits as those attending public schools. 20 U.S.C. §

1413(a)(4)(B). But, the provision governing students placed in

private schools voluntarily requires only that, “t o the extent

consistent with the number and location” of such stude nts,

“provision is made for the participation of such children” in the

local IDEA program. 20 U.S.C. § 1413(a)(4)(A).

The regulations are consistent with the IDEA and, read as a

whole, demonstrate that local educational agencies have discretion

to determine what services to provide disabled students attending

private school v oluntarily. Consistent with the IDEA, the

regulations differ entiate among the same three categories of-- - 21 - students. They require that all disabled children receive a free

appropriate public education, 34 C.F.R. §§ 300.121, 300.126; but

they address s eparately the requirements for disabled children

placed in, as opposed to a ttending voluntarily, private schools.

34 C.F.R. §§ 300.400-300.487.

Students placed in private schoo ls by the local school

district have “all of the rights of a child with a disability who

is served by a public agency”. 34 C.F.R. § 300.401(b). Students

a ttending private school voluntarily, however, are gover ned by

different regulations. The local agency is not required to pay for

the student’s education, but “shall make services available to the

child as provided under §§ 300.450-300.452.” 34 C.F.R. §

300.403(a).

For such students, the state educational agency must ensure

that provision is made for participation of disabled children

attending private school voluntarily, but only “to the extent

consistent with their number and location in the State”. 34 C.F.R.

§ 300.451(a). And, the state educational agency also must ensure

that the requirements of 34 C.F.R. §§ 76.651-76.662 ar e met. 34

C.F.R. § 300.450(b).

As stated, those regulations require a local educational

agency to determine, on a basis comparable to that used in

providing for participation by public school students, the needs of

students enrolled in private schools, the number of those students

who will parti cipate in a project, and the benefits that will be-- - 22 - provided to those students. 34 C.F.R. § 76.653. Local educational

agencies are required to “provide stud ents enrolled in private

schools with a genuine opportunity for equitable parti cipation”,

and must “provide that opportunity to participate in a manner that

is consistent with the number of eligible private school students

and their needs.” 34 C.F.R. § 76.651(a)(1) and (2). Finally, the

“progr am benefits that a [local educational agency] provides for

students enrolled in private schools must be comparable in quality,

scope, and opp ortunity for participation to the program benefits

that the [agency] provides for students enrolled in public

schools.” 34 C.F.R. § 76.654(a).

The distinctions drawn in the IDEA and regulations make it

clear that disabled students attending private schools voluntarily

are not automatically entitled to receive services totally

comparable to what they would receive if enrolled in public

schools. If Congress had intended to require the provision of the

same benefits to all disabled students, there would have been no

need to differentiate among the three categories of students.

Obviously, we should assume that Congress intended for each of the

provisions to have meaning, and should not treat as surplusage the

separate provisions for children attending private school

voluntarily. S ee, e.g.

, Bailey v. United States

,

___ U.S.

___, 116

S. Ct. 501, 506-07 (1995).

The cross-referenced regulations, 34 C.F.R. §§ 76.651-76.662,

do not undermine this conclusion. The local educational agency-- - 23 - need only provide “a genuine opportunity for equitable

participation”, 34 C.F.R. § 76.651(a)(1); and it must consult with

representatives of the student to determine, among oth er things,

which children will receive benefits, a nd what benefits will be

provided. 34 C.F.R. § 76.652.

Only § 76.654(a), relied on by the district court, sugg ests

that d isabled students attending private school voluntarily must

receive services comparable to those provided to students in public

school. It states that the “program benefits that [an agency]

provides for students enrolled in private schools must be

comparable in quality, scope, and opportunity for participation to

the program benefits that the [agency] provides for students

enrolled in public schools”. 34 C.F.R. § 76.654(a). I agree with

the Seventh Circuit’s interpretation of § 76.654(a):

[R]ead in light of the statutory scheme ...

and the other regulations, which precisely

track the statutory division of public and

private school students, the only reasonable

interpretation of Section 76.654(a) is that

the comparability requirement is limited to

the “program benefits that [an agency]

provides.” Sections 76.651 and 76.652

explicitly give the public school discretion

over what benefits to provide; however, when

benefits are provided, Section 76.654 requires

that they be comparable to benefits for public

school students. Section 76.654 is not by its

terms a mandate that private school students

shall receive full benefits.

K. R. , 81 F.3d at 679 (quoting 34 C.F.R. § 76.654(a)).

Th e Seventh Circuit’s interpretation is supported by the

Department of Education’s consistent interpretation of its-- - 24 - regulations as giving discretion in providing benefits to students

attending private school voluntarily. S ee Letter to Livingston

, 17

Educ. for Handicapped L. Rep. 523 (1991) (if a free appropriate

public education has been made available for a child with a

disability, and the parents choose to place the child in a private

school, the public agency is not r equired to pay for the child’s

education at the private school or to make a free appropriate

public education available to the child at the private school);

Letter to Metlink , 18 Individuals with Disabilities Educ. L. Rep.

276 (1991) (public agency may choose not to serve every parentallyplaced private school st udent with disabilities); L etter to

Schmidt

, 20 Individuals with Disabilit ies Educ. L. Rep. 1224

( Zobrest decision did not change agency interpr etation that

parentally-placed children wi th disabilities do not have an

individual entitlement to services); OSEP Memorandum 94-17 , 20

Individuals with Disabilities Educ. L. Rep. 1440 (1994) (children

with disabilities placed in private schools by their parents do not

have an individual entitle ment to services, but private school

children as a group must be afforded a genuine opportunity for

equitable participation in special education programs conducted by

local school districts); Letter to McConnell , 22 Individuals with

Disabilities Educ. L. Rep. 369 (1994) (school districts generally

must provide parentally-placed private school students with genuine

opportunity for equitable participation in special education

programs they conduct).-- - 25 - The majority’s new rule is far more than an “interpretation”

of the statute and existing regulations; indeed, it establishes a

new rule which is not consistent with the interpretation of those

regulations by the United States Department of Education (the

agency that promulgated them). Unlike the majority, the DOE has not

interpreted the IDEA and regulations a s requiring that local

educat ional agencies “must provide on-site services” to disabled

students attending private schools voluntarily unless they justify

the denial with “rationally supportable” or not “otherwise

arbitrary” reasons. In that the DOE’s “interpretation of its own

regulations is” neither “plainly erroneous [n]or inconsistent with

the regulations”, it is “entitled to substantial deference ”. K

.

R. , 81 F.3d at 680 (citing Thomas Jefferson Univ. v. Shalala , 512

U.S. 504, 114 S. Ct. 2381, 23 86 (1994)). Because the DOE’s

interpretation is reasonable, the majority errs by failing to give

deference to it, even if the majority might think a different

interpretation is also reasonable. In short, we should leave the

promulgation of additional regulations to the agency entrusted with

that responsibility.

In Goodall v. Stafford County School Bd.

, 930 F.2d 363, 367

(4th Cir.), cert. denied , 502 U.S. 864 (1991), the Fourth Circuit

held, inter alia

, that, where a school district offered to provide

an int erpreter to a hearing-impaired student at a public school,

the IDEA’s predecessor, the Education of the Handicapped Act, did

not require the district to make that service available to the-- - 26 - student at a private school. Very recently, in Russman v. Sobol

,

85 F.3d 1050 (2d Cir. 1996), cited by the majority as support for

its new rule, the Second Circuit viewed Goodall as unpersuasive, 85

F.3d at 1055, and stated that the Seventh Circuit’s decision

“accorded excessive discretion to school authorities to deny the

on-site provision of services to disabled students in private

schools”, id. at 1056. But, it agreed with the Seventh Circuit

that “the rights accorded disabled students in public schools

differ from those accorded such students voluntarily pla ced in

private schools”. Id

.

The Second Circuit interpreted the statutory language limiting

the obligation of States to provide special education and related

services to private school students “to the extent consistent with

the number and location” as giving school districts “discretion to

deny on-sit e provision of services at private schools where

economies of scale in providing the services at one place exist”.

Id . It reasoned that, “[w]here the cost of special services does

not vary with where they are provided, the IDEA and regulations

regarding voluntary private school students make littl e sense if

such services may be made available only in public schools.” Id

.

Because the school district’s denial of services for Russman at a

private school was based only on its view that the Establishment

Clause prohibited the provision of such services at a parochial

school (a contention the court rejected post- Z obrest ), and the

school district made no claim that the provision of such services-- - 27 - at the private school was s ignificantly more expensive than

providing them at the public school, the court held that the school

district had to provide the services at the private school. I d

. at

1057.

Seizing on this recent decision, Cefalu asserted at oral

argu ment that R ussman supports his position, claiming that the

Board’s offer to provide him an interpreter at any public school in

the district except the two magnet sch ools foreclosed it from

c ontending that providing an interpreter at Redemptorist would

create an economic hardship. Although Cefalu made a similar

contention in the admi nistrative proceedings and in the district

court, he did not do so in his appellate brief . Moreover, the

record does not contain any evidence as to the number of hearingim paired students in other public schools in the district.

Accordingly, we do not know, for example, whether the offer to

provide services to Cefalu at another public school would have

entailed providi ng them on a one-to-one basis, or to a group of

hearing-impaired students, including him. Despite the bare record,

and Cefalu’s failure to brief the issue of economic (or none conomic) feasibility, the majority nevertheless reaches out to

decide it.

The majority’s decision to remand for further development of

the re cord and application of its new rule is facilitated by its

adoption of a new “burden-shifting” approach: if a voluntary

private school student makes an initial showing of a genuine need,-- - 28 - based upon more than mere convenience, for services to be provided

on-site, the school district must provide them, unless it presents

a justifiable reason, either economic or non-economic, for its

denial of on-site services. If it does, the student then bears the

burden of showing that the agency’s position is inconsistent with

the IDEA and regulations, or is not rationally supportable, or is

otherwise arbitrar y. This approach is inconsistent with our

court’s precedent, which the majority does not even mention, much

less distinguish. That precedent places “the burden of

demonstrating the inappropriateness” of the educational placement

provided for in an IEP on the party attacking it. S ee Salley v.

St. Tammany Parish School Board

, 57 F.3d 458, 467 (5th Cir. 1995).

We are required to follow it.

In addition, among other things, I am concerned that such an

allocation of the burden of proof will further strain school

distri cts’ resources, by forcing them to hire economists,

accountants, psychologists, educational administrators, or other

experts to furnish evidence concerning the economic or non-economic

feasibility of providing services to disabled students attending

private schools voluntarily. As the Supreme Court noted in R owley

,

the ID EA was enacted pursuant to the spending clause; when

legislating under that clause, if Congress intends to impose a

condition on the grant of federal funds, it must do so

unambiguously. 458 U.S. at 204 n.26 (citing P ennhurst State School

& Hosp. v. Hal derman , 451 U.S. 1, 17 (1981)). The IDEA does not-- - 29 - unambiguously condition the State’s receipt of federal funds on its

proving t he infeasibility of providing services to disabled

students attending private school voluntarily.

In sum, the earlier quoted stipulated sole iss ue should be

answered as follows: the school district was not “legally

obligated” ( required ) to provide Cefalu with an interpreter at his

private school; under the IDEA, it had discretion to decline to do

so. On the other hand, again consistent with the IDEA, that

discretion is not unlimi ted; it is restrained by the above

discussed statutory provisions and regulations, especially 20

U.S.C. § 1413(a)(4)(A) (“special education and related services” to

be provided children with disabilities parentally-placed in private

schools “to the extent consistent with [the children’s] number and

location”). It may well be that factors such as economies of

scale, not addressed by this record, will compel the provision of

such services at a private school, and that to not so provide them

will be outside the discretion accorded the school district under

the IDEA. But, again, that issue is not presented in this case.

III.

For the foregoing reasons, I would reverse the judgment,

vacate the injunction, and render judgment for the appellants.