§7884 By-pass determination process

Summary

The Secretary cannot take a final enforcement action against a State, local, or other affected education agency until that agency has at least 45 days after written notice to send written objections and to appear before the Secretary to explain why the action should not happen. While an investigation or complaint is ongoing, the Secretary may hold back from the agency’s federal allocation the amount needed to pay for required services. If the agency is unhappy with the final decision, it may file a petition in the U.S. court of appeals for its region within 60 days. The court clerk must send a copy to the Secretary, and the Secretary must file the official record with the court. The court generally accepts the Secretary’s factual findings if there is substantial evidence, but it can send the case back for more evidence and the Secretary can change the findings. The court can uphold or overturn the Secretary’s action, and the Supreme Court may review the decision. A Secretary’s determination stays in effect until the Secretary, after consulting the agency and representatives of affected private school students, teachers, or staff, decides the agency can meet the requirements. When the Secretary arranges services, the costs, including administrative costs, must be paid from the appropriate federal education allocations. Any bypass decisions that were in effect before January 8, 2002, remain in force if the Secretary finds them consistent with this process.