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Back to School on Civil Rights 

VI. The Role of the Department of Justice
A. Functions of the Department of Justice
Two divisions of the Department of Justice (DOJ) have participated in appellate litigation for the Individuals with Disabilities Education Act (IDEA) during the past 25 years--the Appellate Section of the Civil Rights Division and the Appellate Section of the Civil Division.[310] The Appellate Section of the Civil Rights Division indicates that it finds cases to participate in by searching legal publications and reports. The Civil Rights Division is rarely approached by advocates or outside attorneys for participation in a case, but has met with advocacy groups (e.g., P&As) to ask for their assistance in identifying cases that might permit amicus participation.[311] It intends to increase these kinds of outreach efforts to advocates in the future, as well as coordination with the Department of Education (DoED) on DOJ's amicus participation in IDEA cases.[312]

B. IDEA Litigation in Which the Department of Justice Has Participated
For this study, the National Council on Disability (NCD) requested a docket of IDEA cases in which the Department of Justice had participated since the law's enactment. DOJ did not have such a list, but constructed the following one for this study. It only includes cases at the Supreme Court and Appellate Court levels. While DOJ has participated in IDEA cases at the district level, a list of these cases was not provided. The Department suggested that project staff could find cases DOJ had participated in at the district level in WestLaw. While a number of district level cases were identified, a complete list is not included in this report.[313]

The following table lists 26 cases that DOJ provided for this study. DOJ participated in five cases heard by the Supreme Court and 21 appellate cases. Thirteen of the cases appear to support children's educational rights under IDEA. Several cases each concern private school placements and administrative issues. In one case, DOJ represented the Department of Education in its efforts to withhold IDEA funds from the state of Virginia for substantial noncompliance. While DOJ's role cannot be entirely deduced from the information available, attorneys familiar with IDEA litigation issues think DOJ has generally taken positions supporting the claims of students with disabilities and their families.

Table 23: IDEA Litigation in Which DOJ Has Participated
Case Issue(s) Considered by the Court
Board of Education of Hendrick Hudson Central School District v. Rowley, et al.
458 U.S. 176 (1982)
The United States filed an amicus brief arguing: (1) that an individualized education program devised for a particular child with a disability does not satisfy the requirements of the EHA [Education for All Handicapped Children Act] solely because it is consistent with the relevant state plan submitted to the Secretary of Education; (2) that the district court properly determined that sign language interpreter services should be provided to the child under the EHA, and (3) that the district court properly granted injunctive relief extending beyond the school year covered by the individualized education program for which respondent sought judicial review.
Cedar Rapids v. Garrett F., 119 S.Ct. 992 (1999) The United States filed a brief on the issue of what qualifies as related services under IDEA. The United States argued that the "related services" IDEA requires schools to provide to students with disabilities include medical services, as long as the service is not one usually administered by a physician.
Lora v. Board of Education of the City of New York, 623 F. 2d 240 (2nd Cir. 1980) This case involved the issue of whether plaintiffs claiming a violation of the EHA were required to exhaust state administrative remedies before they could assert a private right of action in federal court.
S-1 v. Turlington, 635 F.2d 342 (5th Cir.), 
cert denied, 454 U.S. 1030 (1981)
The United States filed an amicus brief supporting the district court's holding that IQ tests used for BMR placement had not been validated as required by the EHA, assuring that EHA funds were administered in a manner consistent with the terms of the Act.
Larry P. v. Riles, 793 F.2d 969 (9th Cir. 1984) The United States filed an amicus brief supporting the district court's holding that IQ tests used for BMR placement had not been validated as required by the EHA, assuring that EHA funds were administered in a manner consistent with the terms of the Act.
Commonwealth of Massachusetts v. Secretary of HHS, 816 F.2d 796 (1st Cir. 1987) This case involved Tucker Act jurisdiction and its effect on district court and appellate jurisdiction. It also raised the question whether the Secretary's interpretation of the scope of Medicaid coverage to exclude special education and related services to be provided under federal Education for All Handicapped Children Act and state education laws was reasonable and therefore should have been upheld.
Georgia Association of Retarded Citizens v. McDaniel, 716 F.2d 1565 (11th Cir. 1983), cert. granted and judgment vacated, 468 U.S. 1213 (1984), decision on remand, 740 F. 2d 902 (11th Cir. 1984) The United States argued that a school district violated the EHA by limiting all educational programs for children with disabilities to 180 days, and that children with severe disabilities might need summer programs.
Timothy W. v. Rochester, New Hampshire, Sch. Dist., 875 F.2d 954 (1st Cir.), cert. denied, 493 U.S. 983 (1989) The United States argued that a school district court may not refuse to provide a child with a serious disability a free appropriate public education based on its determination that the child would not benefit from the educational services.
Sacramento City Unified School District v. Holland, 14 F.3d 1398 (9th Cir.), cert denied, 512 U.S. 1207 (1994) The United States argued that, for a moderately retarded elementary school child, the least restrictive environment is a full-time placement in a regular class, with some modification to the curriculum and with the assistance of a part-time aide.
Virginia Dept. of Education v. Riley
23 F. 3d 80 (4th Cir. 1994) (No. 94-1411), and 86 F.3d 1337 (4th Cir. 1996) (No. 95-2627), vacated on rehearing en banc, 106 F. 3d 559 (1997)
The Justice Department defended the Department of Education's interpretation of the IDEA as requiring that participating states continue to provide educational services to children with disabilities during expulsion or long-term suspension for misconduct unrelated to their disabilities, and its decision to withhold funding from the Commonwealth of Virginia for refusal to provide such services. In No. 94-1411, DOJ argued that IDEA's notice and hearing requirements were inapplicable because Virginia did not have an approved state plan under the Act. In No. 95-2627, DOJ argued that the post-hearing decision to withhold IDEA funding from Virginia for noncompliance was both appropriate and mandated by the Act.
Doe. v. Oak Park, 115 F.3d 1273 (7th Cir.), cert. denied, 118 S. Ct. 564 (1997) The United States filed a brief arguing that children with disabilities who are expelled from school must nonetheless be afforded education services.
K.R. v. Anderson Community Sch. Corp.
81 F.3d 673 (7th Cir. 1996), vacated, 521 U.S. 1114 (1997), on remand, 125 F.3d 1017 (7th Cir. 1997), cert. denied, 118 S. Ct. 1360 (1998)
The United States argued that the 1997 amendments to IDEA establish that public schools do not have to provide to students in private schools publicly supported special education services comparable to those provided public school students.
Fowler v. Unified School District, 
No 259, 128, F.3d 1423 (10th Cir. 1997)
The United States argued in its amicus brief that where parents voluntarily place their child in a private school despite being offered an appropriate educational placement in the public school, the local school district is not obligated under federal law to provide any state-supported services to the child. The district must pay only a share of federal funds.
Marie O. v. Edgar, 131 F.3d 610 (7th Cir. 1997) The United States filed a brief (that was cited in the court of appeals opinion) arguing that IDEA required school systems to provide services for children below the age of three.
Hartmann v. Loudoun County, 118 F.3d 966 (4th Cir. 1997), cert.denied, 118 S. Ct. 688 (1998) The United States filed a brief in the Fourth Circuit in support of a district court holding that a child with a disability should be educated in a regular classroom. The United States emphasized IDEA's provision that children should be educated in the least restrictive alternative available.
Bradley v. Arkansas Dept. of Education
(8th Cir. No. 98-1010)
The United States intervened and filed a brief defending the constitutionality of IDEA.
Jim C. v. Arkansas, (8th Cir. No. 98-1830)

K.L. v. Valdez, (10th Cir. No. 96-2278)

Mauney v. Arkansas, (8th Cir. No. 98-1721)

In all three cases, the United States filed briefs arguing that Congress abrogated sovereign immunity when passing IDEA, and so IDEA could be applied to the states.
Board. of Ed. of Lagrange Sch. Dist. No. 105 v. Illinois Bd. Of Ed.
(7th Circuit, No. 98-4077)
The United States filed an amicus brief supporting placement of a pre-schooler in a classroom with nondisabled students and requiring the school district to pay for this private placement.
Honig v. Doe, 484 U.S. 305 (1988) The United States filed a brief arguing that the district court abused its discretion in enjoining the school district from indefinitely suspending a student with an emotional disability for dangerous or disruptive conduct growing out of his disability, pending completion of expulsion proceedings.
Tribble v. Montgomery County Board of Education, 798 F. Supp. 668 (M.D. Ala. 1992), appeal dismissed (11th Cir. 1993) The United States filed an amicus brief arguing that IDEA does not require the school district to provide a child with a disability who is voluntarily enrolled by his parents in a private school with such "related services" as physical, speech, and occupational therapy, and the transportation necessary to secure such services, where the school district stands ready to provide the child with a free appropriate public education in a public school setting.
Metropolitan School District of Wayne Township v. Davila, 969 F.2d 485 (7th Cir. 1992), cert. denied, 507 U.S. 949 (1993) The United States took the position that IDEA requires participating states to continue providing educational services to children with disabilities during periods of expulsion or long-term suspension for misconduct unrelated to their disabilities.
Zobrest v. Catalina Foothills School District
509 U.S. 1 (1993)
The United States filed an amicus brief arguing that the Establishment Clause does not preclude a school district from using IDEA funds to provide a hearing-impaired child voluntarily enrolled in a sectarian school with a sign language interpreter.
Florence County School District v. Carter
510 U.S. 7 (1993)
The United States filed an amicus brief arguing that a school district that has failed to provide a free appropriate public education under the IDEA may be ordered to reimburse parents who unilaterally withdrew their child from public school, put the child in a private school, and did not satisfy the Act's procedural requirements, but met the child's educational needs.
Cefalu v. East Baton Rouge Parish School Board, 117 F. 3d 231 (5th Cir., 1997) The United States filed an amicus brief on petition for rehearing, taking the position that the IDEA imposed no obligation on the school district to provide a hearing-impaired student with an on-site sign language interpreter at a private parochial school in which he was voluntarily enrolled by his parents, so long as a free appropriate public education had been made available to the student.

C. Findings and Recommendations
Finding #VI.1
The Department of Justice does not have independent authority under IDEA to pursue IDEA investigations and enforcement against noncompliant educational entities.
The Department of Justice can pursue enforcement action against state educational entities only if a referral is made from the Department of Education.

Recommendation # VI.1
Congress should amend IDEA to provide the Department of Justice with independent authority to investigate and litigate against school districts or states where pattern and practice violations of IDEA exist.
The Department of Justice should play a greater role overall in the enforcement of IDEA. DOJ is not plagued by the conflicting roles of grant manager and law enforcer with the same entity. As an agency that specializes primarily in enforcing the law, DOJ's first responsibility is to those protected by the laws it enforces. DOJ is not as susceptible to political pressure from states and their Congressional delegations when initiating enforcement action because it has no pre-existing economic relationship (grant maker-grantee) with the defendant. DOJ can initiate an investigation upon receiving a complaint or other information and coordinate with the Department of Education throughout case development. Information about coordinated enforcement activities should be included in DOJ's Annual Report to Congress.

Finding # VI.2
The Department of Justice has played a minimal role in IDEA litigation, participating in only 26 IDEA cases at the Supreme Court and Appellate Court levels in the past 25 years.

Recommendation # VI.2
The Department of Justice should exercise greater leadership in IDEA enforcement by initiating litigation against noncompliant states, publicizing its actions, and collaborating with stakeholders on their legal stance and its implications.
The Department of Justice should take the initiative to identify key cases involving noncompliance with important provisions of IDEA, such as LRE, and aggressively litigate to put noncompliant states on notice that the law is now being enforced. In doing so, DOJ should actively seek the input of key stakeholders on their legal positions vis-a-vis these cases and the policy implications.

Finding # VI.3
The Department of Justice has no structured mechanism for finding or determining what IDEA cases to participate in, other than reviewing legal journals and networking informally with advocacy groups.

Recommendation # VI.3
The Department of Justice should develop a system for tracking and monitoring litigation related to IDEA and articulate explicit criteria for determining DOJ participation.

Part VII examines a variety of technical assistance vehicles and initiatives funded by the Department of Education and makes recommendations concerning the targeted use of specifically designed technical assistance programs to improve compliance nationally.

To Top

To Part VII, Improving Public Awareness: Technical Assistance and Public Information for Students with Disabilities, Their Families, and Advocates


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