§7884 — Title 20 Education | U.S. Code

Summary

The Secretary must not make a final bypass decision under section 7882 until the affected State or local education agency, service agency, consortium, or other entity gets written notice and at least 45 days to send written objections and to appear and explain why the action should not happen. While an investigation or complaint is not finished, the Secretary may hold back from the agency’s allocation the amount needed to pay for the services at issue. 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 after notice. The court gets the Secretary’s record (filed under section 2112 of title 28). The court generally accepts the Secretary’s factual findings if supported by substantial evidence, but it can send the case back for more proof. The Secretary must pay for any arranged services, including admin costs, from the appropriate funds. Bypass decisions in place before January 8, 2002 stay in effect if still consistent with these rules.

Title 20, §7884

Education — Source: USLM XML via OLRC

(a)(1)(A)The Secretary shall not take any final action under section 7882 of this title until the State educational agency, local educational agency, educational service agency, consortium of those agencies, or entity affected by the action has had an opportunity, for not less than 45 days after receiving written notice thereof, to submit written objections and to appear before the Secretary to show cause why that action should not be taken.

(B)Pending final resolution of any investigation or complaint that could result in a determination under this section, the Secretary may withhold from the allocation of the affected State educational agency or local educational agency the amount estimated by the Secretary to be necessary to pay the cost of those services.

(2)(A)If the affected agency, consortium, or entity is dissatisfied with the Secretary’s final action after a proceeding under paragraph (1), the agency, consortium, or entity may, within 60 days after notice of that action, file with the United States court of appeals for the circuit in which the State is located a petition for review of that action.

(B)A copy of the petition shall be forthwith transmitted by the clerk of the court to the Secretary.

(C)The Secretary, upon receipt of the copy of the petition, shall file in the court the record of the proceedings on which the Secretary based the action, as provided in section 2112 of title 28.

(3)(A)The findings of fact by the Secretary, if supported by substantial evidence, shall be conclusive, but the court, for good cause shown, may remand the case to the Secretary to take further evidence and the Secretary may then make new or modified findings of fact and may modify the Secretary’s previous action, and shall file in the court the record of the further proceedings.

(B)Any new or modified findings of fact shall likewise be conclusive if supported by substantial evidence.

(4)(A)Upon the filing of a petition, the court shall have jurisdiction to affirm the action of the Secretary or to set the action aside, in whole or in part.

(B)The judgment of the court shall be subject to review by the Supreme Court of the United States upon certiorari or certification as provided in section 1254 of title 28.

(b)Any determination by the Secretary under this section shall continue in effect until the Secretary determines, in consultation with that agency, consortium, or entity and representatives of the affected private school children, teachers, or other educational personnel, that there will no longer be any failure or inability on the part of the agency, consortium, or entity to meet the applicable requirements of section 7881 of this title or any other provision of this chapter.

(c)When the Secretary arranges for services pursuant to this section, the Secretary shall, after consultation with the appropriate public and private school officials, pay the cost of those services, including the administrative costs of arranging for those services, from the appropriate allocation or allocations under this chapter.

(d)Any by-pass determination by the Secretary under this chapter as in effect on the day preceding January 8, 2002, shall remain in effect to the extent the Secretary determines that that determination is consistent with the purpose of this section.

Notes & Related Subsidiaries

Editorial Notes

Amendments

2015—Subsec. (a)(1)(A). Pub. L. 114–95, § 8018, made technical amendment to reference in original act which appears in text as reference to section 7882 of this title. Subsec. (b). Pub. L. 114–95, § 8001(b)(4), made technical amendment to reference in original act which appears in text as reference to section 7881 of this title.

Statutory Notes and Related Subsidiaries

Effective Date

of 2015 AmendmentAmendment by Pub. L. 114–95 effective Dec. 10, 2015, except with respect to certain noncompetitive programs and competitive programs, see section 5 of Pub. L. 114–95, set out as a note under section 6301 of this title.

§7884 By-pass Determination Process