§7884 By-pass Determination Process

Summary

Before the Secretary can take a final bypass action against a state, local, regional school agency, consortium, or other affected education entity, that agency must get at least 45 days after written notice to send written objections and to appear and explain why the action should not happen. While any investigation or complaint is pending, the Secretary may hold back from the agency’s allocation the amount estimated to pay for needed services. If the agency is unhappy with the Secretary’s final decision, it can file a petition in the U.S. court of appeals for its circuit within 60 days. The court clerk must send the Secretary a copy, and the Secretary must file the record of the case. The court can uphold or overturn the Secretary’s action. The Secretary’s factual findings are final if supported by solid evidence, though the court can send the case back for more evidence and the Secretary can change findings; any new findings must also be supported by solid evidence. The court’s judgment can be reviewed by the Supreme Court if the Supreme Court accepts the case. A bypass decision stays in effect until the Secretary, after talking with the agency or entity and with representatives of affected private school children, teachers, or other staff, decides the agency can meet the required rules. When the Secretary arranges services, the Secretary must pay the cost of those services and any administrative costs from the appropriate state allocations after consulting public and private school officials. Any bypass decisions made before January 8, 2002 remain in effect if the Secretary finds they fit the purpose of this process.