Cases

Mitchell v. Board of Trustees of Pickens County School District

599 F.2d 582 (1979)

ISSUE:
Can a teacher’s contract not be renewed when required to report pregnancy immediately to school board upon its discovery and then use disclosed pregnancy as the sole basis not to renew contract for the succeeding school year? Can the school board justify such policy on the ground of “business policy?”

FACTS:
Teacher was certified for school year 1971-72. Full agreement that her work was of the highest quality was substantiated. In February, 1972, she signed a contract for the 1972-73 school year. In April, she discovered she was pregnant and anticipated needing six weeks leave. Plan was disapproved by the superintendent and the board and her contract was not renewed on the basis of “unwritten policy” against renewing the contract of any teacher who could not commit a full year’s service.

Teacher brought suit against school officials under the Civil Rights Act of 1871, 42 U.S.C. § 1871, alleging violation of her federal constitutional rights. The school district moved for summary judgment and dismissal, which was granted. The teacher appealed to the Circuit Court of Appeals and filed a second action under Title VII.

HOLDING:
Court of Appeals reversed the district court’s decision and remanded the matter back to the district court for consideration consistent with the Circuit’s decision.

RATIONALE:
A “prima facie” violation of Title VII of the Civil Rights Act of 1964 occurred by reason of the school board’s policy.

IMPLICATIONS:
Discriminatory treatment by school officials of a protected class of citizens, in this case a pregnant female employee, is expressly prohibited by Title VII of the Civil Rights Act. The U.S. Constitution and acts of congress, when such acts are within the authority of congress, are supreme law, and any state or local policy or practice to the contrary, whether written or unwritten, will be struck down. School officials are responsible for being both knowledgeable and in compliance with federal policy. There is no defense for not knowing the law and corresponding regulations.

1 (Slip Opinion) OCTOBER TERM, 2016

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

ENDREW F., A MINOR, BY AND THROUGH HIS PARENTS AND
NEXT FRIENDS, JOSEPH F. ET AL. v. DOUGLAS COUNTY

SCHOOL DISTRICT RE–1

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE TENTH CIRCUIT

No. 15–827. Argued January 11, 2017—Decided March 22, 2017

The Individuals with Disabilities Education Act (IDEA) offers States
federal funds to assist in educating children with disabilities. The
Act conditions that funding on compliance with certain statutory re-
quirements, including the requirement that States provide every eli-
gible child a “free appropriate public education,” or FAPE, by means
of a uniquely tailored “individualized education program,” or IEP. 20
U. S. C. §§1401(9)(D), 1412(a)(1).
This Court first addressed the FAPE requirement in Board of Ed.

of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley,
458 U. S. 176. The Court held that the Act guarantees a substantive-
ly adequate program of education to all eligible children, and that
this requirement is satisfied if the child’s IEP sets out an educational
program that is “reasonably calculated to enable the child to receive
educational benefits.” Id., at 207. For children fully integrated in
the regular classroom, this would typically require an IEP “reasona-
bly calculated to enable the child to achieve passing marks and ad-
vance from grade to grade.” Id., at 204. Because the IEP challenged
in Rowley plainly met this standard, the Court declined “to establish
any one test for determining the adequacy of educational benefits
conferred upon all children covered by the Act,” instead “confin[ing]
its analysis” to the facts of the case before it. Id., at 202.
Petitioner Endrew F., a child with autism, received annual IEPs in

respondent Douglas County School District from preschool through
fourth grade. By fourth grade, Endrew’s parents believed his aca-
demic and functional progress had stalled. When the school district
proposed a fifth grade IEP that resembled those from past years, En-

2 ENDREW F. v. DOUGLAS COUNTY SCHOOL DIST. RE–1

Syllabus

drew’s parents removed him from public school and enrolled him in a
specialized private school, where he made significant progress.
School district representatives later presented Endrew’s parents with
a new fifth grade IEP, but they considered it no more adequate than
the original plan. They then sought reimbursement for Endrew’s
private school tuition by filing a complaint under the IDEA with the
Colorado Department of Education.  Their claim was denied, and a
Federal District Court affirmed that determination.  The Tenth Cir-
cuit also affirmed.  That court interpreted Rowley to establish a rule
that a child’s IEP is adequate as long as it is calculated to confer an
“ educational benefit [that is] merely . . . more than de minimis,” 798
F. 3d 1329, 1338 (internal quotation marks omitted), and concluded
that Endrew’s IEP had been “ reasonably calculated to enable [him]
to make some progress, ” id., at 1342 (internal quotation marks omit-
ted).  The court accordingly held that Endrew had received a FAPE.

Held: To meet its substantive obligation under the IDEA, a school must
offer an IEP reasonably calculated to enable a child to make progress
appropriate in light of the child’s circumstances. Pp. 9–16.
(a) Rowley and the language of the IDEA point to the approach

adopted here. The “reasonably calculated” qualification reflects a
recognition that crafting an appropriate program of education re-
quires a prospective judgment by school officials, informed by their
own expertise and the views of a child’s parents or guardians; any re-
view of an IEP must appreciate that the question is whether the IEP
is reasonable, not whether the court regards it as ideal. An IEP must
aim to enable the child to make progress; the essential function of an
IEP is to set out a plan for pursuing academic and functional ad-
vancement. And the degree of progress contemplated by the IEP
must be appropriate in light of the child’s circumstances, which
should come as no surprise. This reflects the focus on the particular
child that is at the core of the IDEA, and the directive that States of-
fer instruction “specially designed” to meet a child’s “unique needs”
through an “[i]ndividualized education program.” §§1401(29), (14)
(emphasis added).

Rowley sheds light on what appropriate progress will look like in
many cases: For a child fully integrated in the regular classroom, an
IEP typically should be “reasonably calculated to enable the child to
achieve passing marks and advance from grade to grade.” 458 U. S.,
at 204. This guidance is grounded in the statutory definition of a
FAPE. One component of a FAPE is “special education,” defined as
“specially designed instruction . . . to meet the unique needs of a child
with a disability.” §§1401(9), (29). In determining what it means to
“meet the unique needs” of a child with a disability, the provisions of
the IDEA governing the IEP development process provide guidance.

3 Cite as: 580 U. S. ____ (2017)

Syllabus

These provisions reflect what the Court said in Rowley by focusing on
“progress in the general education curriculum.” §§1414(d)(1)(A)(i)
(I)(aa), (II)(aa), (IV)(bb).

Rowley did not provide concrete guidance with respect to a child
who is not fully integrated in the regular classroom and not able to
achieve on grade level. A child’s IEP need not aim for grade-level ad-
vancement if that is not a reasonable prospect. But that child’s edu-
cational program must be appropriately ambitious in light of his cir-
cumstances, just as advancement from grade to grade is
appropriately ambitious for most children in the regular classroom.
The goals may differ, but every child should have the chance to meet
challenging objectives.
This standard is more demanding than the “merely more than de

minimis” test applied by the Tenth Circuit. It cannot be right that
the IDEA generally contemplates grade-level advancement for chil-
dren with disabilities who are fully integrated in the regular class-
room, but is satisfied with barely more than de minimis progress for
children who are not. Pp. 9–15.
(b) Endrew’s parents argue that the Act goes even further and re-

quires States to provide children with disabilities educational oppor-
tunities that are “substantially equal to the opportunities afforded
children without disabilities.” Brief for Petitioner 40. But the lower
courts in Rowley adopted a strikingly similar standard, and this
Court rejected it in clear terms. Mindful that Congress has not ma-
terially changed the statutory definition of a FAPE since Rowley was
decided, this Court declines to interpret the FAPE provision in a
manner so plainly at odds with the Court’s analysis in that case.
P. 15.
(c) The adequacy of a given IEP turns on the unique circumstances

of the child for whom it was created.  This absence of a bright-line
rule should not be mistaken for “an invitation to the courts to substi-
tute their own notions of sound educational policy for those of the
school authorities which they review.” Rowley, 458 U. S., at 206. At
the same time, deference is based on the application of expertise and
the exercise of judgment by school authorities.  The nature of the IEP
process ensures that parents and school representatives will fully air
their respective opinions on the degree of progress a child’s IEP
should pursue; thus, by the time any dispute reaches court, school
authorities will have had the chance to bring their expertise and
judgment to bear on areas of disagreement.  See §§1414, 1415; Row-
ley, 458 U. S., at 208–209.  At that point, a reviewing court may fairly
expect those authorities to be able to offer a cogent and responsive
explanation for their decisions that shows the IEP is reasonably cal-
culated to enable the child to make progress appropriate in light of

4 ENDREW F. v. DOUGLAS COUNTY SCHOOL DIST. RE–1

Syllabus

his circumstances. Pp. 15–16.
798 F. 3d 1329, vacated and remanded.

ROBERTS, C. J., delivered the opinion for a unanimous Court.

_________________

1 Cite as: 580 U. S. ____ (2017)

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

No. 15–827

ENDREW F., A MINOR, BY AND THROUGH HIS PARENTS
AND NEXT FRIENDS, JOSEPH F. AND JENNIFER F.,
PETITIONER v. DOUGLAS COUNTY SCHOOL

DISTRICT RE–1
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

[March 22, 2017]

CHIEF JUSTICE ROBERTS delivered the opinion of the
Court.
Thirty-five years ago, this Court held that the Individu-

als with Disabilities Education Act establishes a substan-
tive right to a “free appropriate public education” for
certain children with disabilities. Board of Ed. of Hen-
drick Hudson Central School Dist., Westchester Cty. v.
Rowley, 458 U. S. 176 (1982). We declined, however, to
endorse any one standard for determining “when handi-
capped children are receiving sufficient educational bene-
fits to satisfy the requirements of the Act.” Id., at 202.
That “more difficult problem” is before us today. Ibid.

I
A

The Individuals with Disabilities Education Act (IDEA
or Act) offers States federal funds to assist in educating
children with disabilities. 84 Stat. 175, as amended, 20
U. S. C. §1400 et seq.; see Arlington Central School Dist.
Bd. of Ed. v. Murphy, 548 U. S. 291, 295 (2006). In ex-

2 ENDREW F. v. DOUGLAS COUNTY SCHOOL DIST. RE–1
Opinion of the Court

change for the funds, a State pledges to comply with a
number of statutory conditions. Among them, the State
must provide a free appropriate public education—a
FAPE, for short—to all eligible children. §1412(a)(1).
A FAPE, as the Act defines it, includes both “special

education” and “related services.” §1401(9). “Special
education” is “specially designed instruction . . . to meet
the unique needs of a child with a disability”; “related
services” are the support services “required to assist a
child . . . to benefit from” that instruction. §§1401(26),
(29). A State covered by the IDEA must provide a disabled
child with such special education and related services “in
conformity with the [child’s] individualized education
program,” or IEP. §1401(9)(D).
The IEP is “the centerpiece of the statute’s education

delivery system for disabled children.”  Honig v. Doe, 484
U. S. 305, 311 (1988). A comprehensive plan prepared by
a child’s “IEP Team” (which includes teachers, school
officials, and the child’s parents), an IEP must be drafted
in compliance with a detailed set of procedures.
§1414(d)(1)(B) (internal quotation marks omitted). These
procedures emphasize collaboration among parents and
educators and require careful consideration of the child’s
individual circumstances.  §1414.  The IEP is the means
by which special education and related services are “tai-
lored to the unique needs” of a particular child.  Rowley,
458 U. S., at 181.
The IDEA requires that every IEP include “a statement

of the child’s present levels of academic achievement and
functional performance,” describe “how the child’s disabil-
ity affects the child’s involvement and progress in the
general education curriculum,” and set out “measurable
annual goals, including academic and functional goals,”
along with a “description of how the child’s progress
toward meeting” those goals will be gauged.
§§1414(d)(1)(A)(i)(I)–(III). The IEP must also describe the

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Opinion of the Court

“special education and related services . . . that will be
provided” so that the child may “advance appropriately
toward attaining the annual goals” and, when possible, “be
involved in and make progress in the general education
curriculum.” §1414(d)(1)(A)(i)(IV).
Parents and educators often agree about what a child’s

IEP should contain. But not always. When disagreement
arises, parents may turn to dispute resolution procedures
established by the IDEA. The parties may resolve their
differences informally, through a “[p]reliminary meeting,”
or, somewhat more formally, through mediation.
§§1415(e), (f)(1)(B)(i). If these measures fail to produce
accord, the parties may proceed to what the Act calls a
“due process hearing” before a state or local educational
agency. §§1415(f )(1)(A), (g). And at the conclusion of the
administrative process, the losing party may seek redress
in state or federal court. §1415(i)(2)(A).

B
This Court first addressed the FAPE requirement in

Rowley.1 Plaintiff Amy Rowley was a first grader with
impaired hearing. Her school district offered an IEP
under which Amy would receive instruction in the regular
classroom and spend time each week with a special tutor
and a speech therapist. The district proposed that Amy’s
classroom teacher speak into a wireless transmitter and
that Amy use an FM hearing aid designed to amplify her
teacher’s words; the district offered to supply both compo-
nents of this system. But Amy’s parents argued that the
IEP should go further and provide a sign-language inter-
——————
1The requirement was initially set out in the Education of the Handi-

capped Act, which was later amended and renamed the IDEA. See
Pub. L. 101–476, §901(a), 104 Stat. 1141. For simplicity’s sake—and to
avoid “acronym overload”—we use the latter title throughout this
opinion. Fry v. Napoleon Community Schools, 580 U. S. ___, ___, n. 1
(2017) (slip op., at 4, n. 1).

4 ENDREW F. v. DOUGLAS COUNTY SCHOOL DIST. RE–1
Opinion of the Court

preter in all of her classes. Contending that the school
district’s refusal to furnish an interpreter denied Amy a
FAPE, Amy’s parents initiated administrative proceed-
ings, then filed a lawsuit under the Act. Rowley, 458
U. S., at 184–185.
The District Court agreed that Amy had been denied a

FAPE. The court acknowledged that Amy was making
excellent progress in school: She was “perform[ing] better
than the average child in her class” and “advancing easily
from grade to grade.” Id., at 185 (internal quotation
marks omitted). At the same time, Amy “under[stood]
considerably less of what goes on in class than she could if
she were not deaf.” Ibid. (internal quotation marks omit-
ted). Concluding that “it has been left entirely to the
courts and the hearings officers to give content to the
requirement of an ‘appropriate education,’” 483 F. Supp.
528, 533 (SDNY 1980), the District Court ruled that Amy’s
education was not “appropriate” unless it provided her “an
opportunity to achieve [her] full potential commensurate
with the opportunity provided to other children.” Rowley,
458 U. S., at 185–186 (internal quotation marks omitted).
The Second Circuit agreed with this analysis and
affirmed.
In this Court, the parties advanced starkly different

understandings of the FAPE requirement.  Amy’s parents
defended the approach of the lower courts, arguing that
the school district was required to provide instruction and
services that would provide Amy an “equal educational
opportunity” relative to children without disabilities.  Id.,
at 198 (internal quotation marks omitted). The school
district, for its part, contended that the IDEA “did not
create substantive individual rights”; the FAPE provision
was instead merely aspirational.  Brief for Petitioners in
Rowley, O. T. 1981, No. 80–1002, pp. 28, 41.
Neither position carried the day.  On the one hand, this

Court rejected the view that the IDEA gives “courts carte

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Opinion of the Court

blanche to impose upon the States whatever burden their
various judgments indicate should be imposed.” Rowley,
458 U. S., at 190, n. 11. After all, the statutory phrase
“free appropriate public education” was expressly defined
in the Act, even if the definition “tend[ed] toward the
cryptic rather than the comprehensive.” Id., at 188. This
Court went on to reject the “equal opportunity” standard
adopted by the lower courts, concluding that “free appro-
priate public education” was a phrase “too complex to be
captured by the word ‘equal’ whether one is speaking of
opportunities or services.” Id., at 199. The Court also
viewed the standard as “entirely unworkable,” apt to
require “impossible measurements and comparisons” that
courts were ill suited to make. Id., at 198.
On the other hand, the Court also rejected the school

district’s argument that the FAPE requirement was actu-
ally no requirement at all.  Id., at 200. Instead, the Court
carefully charted a middle path.  Even though “Congress
was rather sketchy in establishing substantive require-
ments” under the Act, id., at 206, the Court nonetheless
made clear that the Act guarantees a substantively ade-
quate program of education to all eligible children, id., at
200–202, 207; see id., at 193, n. 15 (describing the “sub-
stantive standard . . . implicit in the Act”).  We explained
that this requirement is satisfied, and a child has received
a FAPE, if the child’s IEP sets out an educational program
that is “reasonably calculated to enable the child to receive
educational benefits.” Id., at 207. For children receiving
instruction in the regular classroom, this would generally
require an IEP “reasonably calculated to enable the child
to achieve passing marks and advance from grade to
grade.” Id., at 204; see also id., at 203, n. 25.
In view of Amy Rowley’s excellent progress and the

“substantial” suite of specialized instruction and services
offered in her IEP, we concluded that her program satis-
fied the FAPE requirement. Id., at 202. But we went no

6 ENDREW F. v. DOUGLAS COUNTY SCHOOL DIST. RE–1

Opinion of the Court

further. Instead, we expressly “confine[d] our analysis” to
the facts of the case before us. Ibid. Observing that the
Act requires States to “educate a wide spectrum” of chil-
dren with disabilities and that “the benefits obtainable by
children at one end of the spectrum will differ dramatically
from those obtainable by children at the other end,” we
declined “to establish any one test for determining the
adequacy of educational benefits conferred upon all chil-
dren covered by the Act.” Ibid.

C
Petitioner Endrew F. was diagnosed with autism at age

two. Autism is a neurodevelopmental disorder generally
marked by impaired social and communicative skills,
“engagement in repetitive activities and stereotyped
movements, resistance to environmental change or change
in daily routines, and unusual responses to sensory expe-
riences.” 34 CFR §300.8(c)(1)(i) (2016); see Brief for Peti-
tioner 8. A child with autism qualifies as a “[c]hild with a
disability” under the IDEA, and Colorado (where Endrew
resides) accepts IDEA funding. §1401(3)(A). Endrew is
therefore entitled to the benefits of the Act, including a
FAPE provided by the State.
Endrew attended school in respondent Douglas County

School District from preschool through fourth grade. Each
year, his IEP Team drafted an IEP addressed to his educa-
tional and functional needs. By Endrew’s fourth grade
year, however, his parents had become dissatisfied with
his progress. Although Endrew displayed a number of
strengths—his teachers described him as a humorous
child with a “sweet disposition” who “show[ed] concern[]
for friends”—he still “exhibited multiple behaviors that
inhibited his ability to access learning in the classroom.”
Supp. App. 182a; 798 F. 3d 1329, 1336 (CA10 2015).
Endrew would scream in class, climb over furniture and
other students, and occasionally run away from school.

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Opinion of the Court

Id., at 1336. He was afflicted by severe fears of common-
place things like flies, spills, and public restrooms. As
Endrew’s parents saw it, his academic and functional
progress had essentially stalled: Endrew’s IEPs largely
carried over the same basic goals and objectives from one
year to the next, indicating that he was failing to make
meaningful progress toward his aims. His parents be-
lieved that only a thorough overhaul of the school district’s
approach to Endrew’s behavioral problems could reverse
the trend. But in April 2010, the school district presented
Endrew’s parents with a proposed fifth grade IEP that
was, in their view, pretty much the same as his past ones.
So his parents removed Endrew from public school and
enrolled him at Firefly Autism House, a private school
that specializes in educating children with autism.
Endrew did much better at Firefly. The school devel-

oped a “behavioral intervention plan” that identified En-
drew’s most problematic behaviors and set out particular
strategies for addressing them. See Supp. App. 198a–
201a. Firefly also added heft to Endrew’s academic goals.
Within months, Endrew’s behavior improved significantly,
permitting him to make a degree of academic progress
that had eluded him in public school.
In November 2010, some six months after Endrew started

classes at Firefly, his parents again met with representa-
tives of the Douglas County School District. The district
presented a new IEP. Endrew’s parents considered the
IEP no more adequate than the one proposed in April, and
rejected it. They were particularly concerned that the
stated plan for addressing Endrew’s behavior did not
differ meaningfully from the plan in his fourth grade IEP,
despite the fact that his experience at Firefly suggested
that he would benefit from a different approach.
In February 2012, Endrew’s parents filed a complaint

with the Colorado Department of Education seeking reim-
bursement for Endrew’s tuition at Firefly. To qualify for

8 ENDREW F. v. DOUGLAS COUNTY SCHOOL DIST. RE–1

Opinion of the Court

such relief, they were required to show that the school
district had not provided Endrew a FAPE in a timely
manner prior to his enrollment at the private school. See
§1412(a)(10)(C)(ii). Endrew’s parents contended that the
final IEP proposed by the school district was not “reason-
ably calculated to enable [Endrew] to receive educational
benefits” and that Endrew had therefore been denied a
FAPE. Rowley, 458 U. S., at 207. An Administrative Law
Judge (ALJ) disagreed and denied relief.
Endrew’s parents sought review in Federal District

Court. Giving “due weight” to the decision of the ALJ, the
District Court affirmed. 2014 WL 4548439, *5 (D Colo.,
Sept. 15, 2014) (quoting Rowley, 458 U. S., at 206).  The
court acknowledged that Endrew’s performance under
past IEPs “did not reveal immense educational growth.”
2014 WL 4548439, at *9. But it concluded that annual
modifications to Endrew’s IEP objectives were “sufficient
to show a pattern of, at the least, minimal progress.”  Ibid.
Because Endrew’s previous IEPs had enabled him to make
this sort of progress, the court reasoned, his latest, similar
IEP was reasonably calculated to do the same thing.  In
the court’s view, that was all Rowley demanded.  2014 WL
4548439, at *9.
The Tenth Circuit affirmed.  The Court of Appeals recited

language from Rowley stating that the instruction and
services furnished to children with disabilities must be
calculated to confer “some educational benefit.” 798 F. 3d,
at 1338 (quoting Rowley, 458 U. S., at 200; emphasis
added by Tenth Circuit). The court noted that it had long
interpreted this language to mean that a child’s IEP is
adequate as long as it is calculated to confer an “educa-
tional benefit [that is] merely . . . more than de minimis.”
798 F. 3d, at 1338 (internal quotation marks omitted).
Applying this standard, the Tenth Circuit held that En-
drew’s IEP had been “reasonably calculated to enable
[him] to make some progress.” Id., at 1342 (internal quo-

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Opinion of the Court

tation marks omitted). Accordingly, he had not been
denied a FAPE.
We granted certiorari. 579 U. S. ___ (2016).

II
A

The Court in Rowley declined “to establish any one test
for determining the adequacy of educational benefits
conferred upon all children covered by the Act.” 458 U. S.,
at 202. The school district, however, contends that Rowley
nonetheless established that “an IEP need not promise
any particular level of benefit,” so long as it is “‘reasonably
calculated’ to provide some benefit, as opposed to none.”
Brief for Respondent 15.
The district relies on several passages from Rowley to

make its case. It points to our observation that “any
substantive standard prescribing the level of education to
be accorded” children with disabilities was “[n]oticeably
absent from the language of the statute.” 458 U. S., at
189; see Brief for Respondent 14. The district also empha-
sizes the Court’s statement that the Act requires States to
provide access to instruction “sufficient to confer some
educational benefit,” reasoning that any benefit, however
minimal, satisfies this mandate. Brief for Respondent 15
(quoting Rowley, 458 U. S., at 200). Finally, the district
urges that the Court conclusively adopted a “some educa-
tional benefit” standard when it wrote that “the intent of
the Act was more to open the door of public education to
handicapped children . . . than to guarantee any particular
level of education.” Id., at 192; see Brief for Respond-
ent 14.
These statements in isolation do support the school

district’s argument. But the district makes too much of
them. Our statement that the face of the IDEA imposed
no explicit substantive standard must be evaluated along-
side our statement that a substantive standard was “im-

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Opinion of the Court

plicit in the Act.” Rowley, 458 U. S., at 193, n. 15. Simi-
larly, we find little significance in the Court’s language
concerning the requirement that States provide instruc-
tion calculated to “confer some educational benefit.” Id.,
at 200. The Court had no need to say anything more
particular, since the case before it involved a child whose
progress plainly demonstrated that her IEP was designed
to deliver more than adequate educational benefits. See
id., at 202, 209–210. The Court’s principal concern was to
correct what it viewed as the surprising rulings below:
that the IDEA effectively empowers judges to elaborate a
federal common law of public education, and that a child
performing better than most in her class had been denied a
FAPE. The Court was not concerned with precisely articu-
lating a governing standard for closer cases. See id., at
202. And the statement that the Act did not “guarantee
any particular level of education” simply reflects the unob-
jectionable proposition that the IDEA cannot and does not
promise “any particular [educational] outcome.” Id., at
192 (internal quotation marks omitted). No law could do
that—for any child.
More important, the school district’s reading of these

isolated statements runs headlong into several points on
which Rowley is crystal clear. For instance—just after
saying that the Act requires instruction that is “sufficient
to confer some educational benefit”—we noted that “[t]he
determination of when handicapped children are receiving
sufficient educational benefits . . . presents a . . . difficult
problem.” Id., at 200, 202 (emphasis added). And then we
expressly declined “to establish any one test for determin-
ing the adequacy of educational benefits” under the Act.
Id., at 202 (emphasis added). It would not have been
“difficult” for us to say when educational benefits are
sufficient if we had just said that any educational benefit
was enough. And it would have been strange to refuse to
set out a test for the adequacy of educational benefits if we

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Opinion of the Court

had just done exactly that. We cannot accept the school
district’s reading of Rowley.

B
While Rowley declined to articulate an overarching

standard to evaluate the adequacy of the education pro-
vided under the Act, the decision and the statutory lan-
guage point to a general approach: To meet its substantive
obligation under the IDEA, a school must offer an IEP
reasonably calculated to enable a child to make progress
appropriate in light of the child’s circumstances.
The “reasonably calculated” qualification reflects a

recognition that crafting an appropriate program of educa-
tion requires a prospective judgment by school officials.
Id., at 207. The Act contemplates that this fact-intensive
exercise will be informed not only by the expertise of
school officials, but also by the input of the child’s parents
or guardians. Id., at 208–209. Any review of an IEP must
appreciate that the question is whether the IEP is reason-
able, not whether the court regards it as ideal. Id., at
206–207.
The IEP must aim to enable the child to make progress.

After all, the essential function of an IEP is to set out a
plan for pursuing academic and functional advancement.
See §§1414(d)(1)(A)(i)(I)–(IV). This reflects the broad
purpose of the IDEA, an “ambitious” piece of legislation
enacted “in response to Congress’ perception that a major-
ity of handicapped children in the United States ‘were
either totally excluded from schools or [were] sitting idly
in regular classrooms awaiting the time when they were
old enough to “drop out.”’” Rowley, 458 U. S., at 179
(quoting H. R. Rep. No. 94–332, p. 2 (1975)). A substan-
tive standard not focused on student progress would do
little to remedy the pervasive and tragic academic stagna-
tion that prompted Congress to act.
That the progress contemplated by the IEP must be

12 ENDREW F. v. DOUGLAS COUNTY SCHOOL DIST. RE–1

Opinion of the Court

appropriate in light of the child’s circumstances should
come as no surprise. A focus on the particular child is at
the core of the IDEA. The instruction offered must be
“specially designed” to meet a child’s “unique needs”
through an “[i]ndividualized education program.”
§§1401(29), (14) (emphasis added). An IEP is not a form
document. It is constructed only after careful considera-
tion of the child’s present levels of achievement, disability,
and potential for growth. §§1414(d)(1)(A)(i)(I)–(IV),
(d)(3)(A)(i)–(iv). As we observed in Rowley, the IDEA
“requires participating States to educate a wide spectrum
of handicapped children,” and “the benefits obtainable by
children at one end of the spectrum will differ dramatically
from those obtainable by children at the other end, with
infinite variations in between.” 458 U. S., at 202.

Rowley sheds light on what appropriate progress will
look like in many cases.  There, the Court recognized that
the IDEA requires that children with disabilities receive
education in the regular classroom “whenever possible.”
Ibid. (citing §1412(a)(5)). When this preference is met,
“the system itself monitors the educational progress of the
child.” Id., at 202–203. “Regular examinations are admin-
istered, grades are awarded, and yearly advancement to
higher grade levels is permitted for those children who
attain an adequate knowledge of the course material.”  Id.,
at 203. Progress through this system is what our society
generally means by an “education.” And access to an
“education” is what the IDEA promises.  Ibid. Accordingly,
for a child fully integrated in the regular classroom, an
IEP typically should, as Rowley put it, be “reasonably
calculated to enable the child to achieve passing marks
and advance from grade to grade.” Id., at 203–204.
This guidance is grounded in the statutory definition of

a FAPE. One of the components of a FAPE is “special
education,” defined as “specially designed instruction . . .
to meet the unique needs of a child with a disability.”

13 Cite as: 580 U. S. ____ (2017)

Opinion of the Court

§§1401(9), (29). In determining what it means to “meet
the unique needs” of a child with a disability, the provi-
sions governing the IEP development process are a natu-
ral source of guidance: It is through the IEP that “[t]he
‘free appropriate public education’ required by the Act is
tailored to the unique needs of ” a particular child. Id.,
at 181.
The IEP provisions reflect Rowley’s expectation that, for

most children, a FAPE will involve integration in the reg-
ular classroom and individualized special education calcu-
lated to achieve advancement from grade to grade. Every
IEP begins by describing a child’s present level of achieve-
ment, including explaining “how the child’s disability
affects the child’s involvement and progress in the general
education curriculum.” §1414(d)(1)(A)(i)(I)(aa). It then
sets out “a statement of measurable annual goals . . .
designed to . . . enable the child to be involved in and
make progress in the general education curriculum,” along
with a description of specialized instruction and services
that the child will receive. §§1414(d)(1)(A)(i)(II), (IV). The
instruction and services must likewise be provided with an
eye toward “progress in the general education curriculum.”
§1414(d)(1)(A)(i)(IV)(bb). Similar IEP requirements have
been in place since the time the States began accepting
funding under the IDEA.
The school district protests that these provisions impose

only procedural requirements—a checklist of items the
IEP must address—not a substantive standard enforce-
able in court. Tr. of Oral Arg. 50–51. But the procedures
are there for a reason, and their focus provides insight into
what it means, for purposes of the FAPE definition, to
“meet the unique needs” of a child with a disability.
§§1401(9), (29). When a child is fully integrated in the
regular classroom, as the Act prefers, what that typically
means is providing a level of instruction reasonably
calculated to permit advancement through the general

14 ENDREW F. v. DOUGLAS COUNTY SCHOOL DIST. RE–1

Opinion of the Court

curriculum.2
Rowley had no need to provide concrete guidance with

respect to a child who is not fully integrated in the regular
classroom and not able to achieve on grade level. That
case concerned a young girl who was progressing smoothly
through the regular curriculum. If that is not a reason-
able prospect for a child, his IEP need not aim for grade-
level advancement. But his educational program must be
appropriately ambitious in light of his circumstances, just
as advancement from grade to grade is appropriately
ambitious for most children in the regular classroom. The
goals may differ, but every child should have the chance to
meet challenging objectives.
Of course this describes a general standard, not a for-

mula. But whatever else can be said about it, this stand-
ard is markedly more demanding than the “merely more
than de minimis” test applied by the Tenth Circuit. It
cannot be the case that the Act typically aims for grade-
level advancement for children with disabilities who can
be educated in the regular classroom, but is satisfied
with barely more than de minimis progress for those who
cannot.
When all is said and done, a student offered an educa-

tional program providing “merely more than de minimis”
progress from year to year can hardly be said to have been
offered an education at all. For children with disabilities,
receiving instruction that aims so low would be tanta-
mount to “sitting idly . . . awaiting the time when they
were old enough to ‘drop out.’” Rowley, 458 U. S., at 179
(some internal quotation marks omitted). The IDEA
demands more. It requires an educational program rea-
——————
2This guidance should not be interpreted as an inflexible rule. We

declined to hold in Rowley, and do not hold today, that “every handi-
capped child who is advancing from grade to grade . . . is automatically
receiving a [FAPE].” Board of Ed. of Hendrick Hudson Central School
Dist., Westchester Cty. v. Rowley, 458 U. S. 176, 203, n. 25 (1982).

15 Cite as: 580 U. S. ____ (2017)

Opinion of the Court

sonably calculated to enable a child to make progress
appropriate in light of the child’s circumstances.

C
Endrew’s parents argue that the Act goes even further.

In their view, a FAPE is “an education that aims to pro-
vide a child with a disability opportunities to achieve
academic success, attain self-sufficiency, and contribute to
society that are substantially equal to the opportunities
afforded children without disabilities.” Brief for Petitioner
40.
This standard is strikingly similar to the one the lower

courts adopted in Rowley, and it is virtually identical to
the formulation advanced by Justice Blackmun in his
separate writing in that case. See 458 U. S., at 185–186;
id., at 211 (opinion concurring in judgment) (“[T]he ques-
tion is whether Amy’s program . . . offered her an oppor-
tunity to understand and participate in the classroom that
was substantially equal to that given her non-handicapped
classmates”). But the majority rejected any such standard
in clear terms. Id., at 198 (“The requirement that States
provide ‘equal’ educational opportunities would . . . seem
to present an entirely unworkable standard requiring
impossible measurements and comparisons”). Mindful
that Congress (despite several intervening amendments to
the IDEA) has not materially changed the statutory defi-
nition of a FAPE since Rowley was decided, we decline to
interpret the FAPE provision in a manner so plainly at
odds with the Court’s analysis in that case. Compare
§1401(18) (1976 ed.) with §1401(9) (2012 ed.).

D
We will not attempt to elaborate on what “appropriate”

progress will look like from case to case. It is in the na-
ture of the Act and the standard we adopt to resist such an
effort: The adequacy of a given IEP turns on the unique

16 ENDREW F. v. DOUGLAS COUNTY SCHOOL DIST. RE–1

Opinion of the Court

circumstances of the child for whom it was created. This
absence of a bright-line rule, however, should not be mis-
taken for “an invitation to the courts to substitute their
own notions of sound educational policy for those of the
school authorities which they review.” Rowley, 458 U. S.,
at 206.
At the same time, deference is based on the application

of expertise and the exercise of judgment by school author-
ities. The Act vests these officials with responsibility for
decisions of critical importance to the life of a disabled
child. The nature of the IEP process, from the initial
consultation through state administrative proceedings,
ensures that parents and school representatives will fully
air their respective opinions on the degree of progress a
child’s IEP should pursue. See §§1414, 1415; id., at 208–
209. By the time any dispute reaches court, school author-
ities will have had a complete opportunity to bring their
expertise and judgment to bear on areas of disagreement.
A reviewing court may fairly expect those authorities to be
able to offer a cogent and responsive explanation for their
decisions that shows the IEP is reasonably calculated to
enable the child to make progress appropriate in light of
his circumstances.
The judgment of the United States Court of Appeals for

the Tenth Circuit is vacated, and the case is remanded for
further proceedings consistent with this opinion.

It is so ordered.

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U.S. Supreme Court

FLORENCE COUNTY SCH. DIST. FOUR v. CARTER, 510 U.S. 7 (1993)

FLORENCE COUNTY SCHOOL DISTRICT FOUR, ET AL., PETITIONERS v.
SHANNON CARTER, A MINOR BY AND THROUGH HER FATHER, AND NEXT

FRIEND,
EMORY D. CARTER CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
No. 91-1523

Argued October 6, 1993
Decided November 9, 1993

After respondent Shannon Carter, a student in petitioner public school district, was classified as
learning disabled, school officials met with her parents to formulate an individualized education
program (IEP), as required under the Individuals with Disabilities Education Act (IDEA), 20
U.S.C. 1400 et s eq. Shannon’s paren ts requested a heari ng to challenge the pro posed IEP’s
appropriateness. In the meantime, Shannon’s parents enrolled her in Trident Academy, a private
school specializing in educating children with disabilities. After the state and local educational
authorities concluded that the IEP was adequate, Shannon’s parents filed this suit, claiming that
the school district had breached its duty under IDEA to provide Shannon with a “free appropriate
public education,” 1401(a)(18), and seeking reimbursement for tuition and other costs incurred at
Trident. The District Court ruled in the parents’ favor, holding that the proposed IEP violated
IDEA, and that the education Shannon received at Trident was “appropriate” and in substantial
compliance with IDEA’s substantive requirements, even though the school did not comply with
all of the Act’s proced ures. In affirming, the C ourt of Appeals rej ected the school di strict’s
argument that reimbursement is never proper when the parents choose a private school that is not
approved by the State or that does not comply with all of the requirements of 1401(a)(18).

Held:

A court may order reimbursement for parents who unilaterally withdraw their child from a public school that provides an
inappropriate education under IDEA and put the child in a private Page II school that provides an education that is otherwise
proper under IDEA, but does not meet all of 1401(a)(18)’s requirements. Pp. 4-8.

(a) In School Comm. of Burlington v. Department of Ed. of Mass., 471 U.S. 359, 369 -370, the Court recognized the right
of parents who disagree with a proposed IEP to unilaterally withdraw their child from public school and place the child in
private school, and held that IDEA’s grant of equitable authority empowers a court to order school authorities retroactively
to reimburse the parents if the court ultimately determines that t he private placement, rather than the prop osed IEP, is proper
under the Act. P. 4.

(b) Trident’s failure to meet 1401(a)(18)’s definition of a “free appropriate public education” does not bar Shannon’s parents
from reimbursement, because the section’s requirements cannot be read as applying to parental placements. The 1401(a)(18)
requirements that the education be “provided . . . under public supervision and direction,” and that the IEP be designed by
“a representative of the local educational agency” and “establish[ed],” “revise[d],” and “review[ed]” by the agency, will
never be met in the context of a parental placement. Therefore, to read them as applying to parental placements would

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effectively eliminate the right of unilateral withdrawal recognized in Burlington, and would defeat IDEA’s purpose of
ensuring that children with disabilities receive an education that is both appropriate and free. Similarly, the 1401(a)(18)(B)
requirement that the school meet the standards of the state educational agency does not apply to private parental placements.
It would be inconsistent with the Act’s goals to forb id parents from educating their child at a scho ol that provides an
appropriate education simply because that school lacks the stamp of approval of the same public school system that failed to
meet the child’s needs in the first place. Parents’ failure to select a state-approved program in favor of an unapproved option
does not itself bar reimbursement. Pp. 4-7.

(c) The school district’s argument that allowing reimbursement for p arents such as Shannon’s puts an u nreasonable burden
on financially strapped local educational authorities is rejected. Reimbursement claims need not worry school officials who
conform to IDEA’s mandate to either give the child a free appropriate public education in a public setting or place the child
in an appropriate private setting of the State’s choice. Moreover, parents who unilaterally change their child’s placement
during the pendency of IDEA review proceedings are entitled to reimbursement only if a federal court concludes both that
the Page III public placement violated IDE A and that the private placement was proper under th e Act. Finally, total
reimbursement will not be appropriate if a court fashioning discretionary equitable relief under IDEA determines that the
cost of the private education was unreasonable. P. 7-8.

950 F.2d 156 (C.A. 9 1991), affirmed.

O’CONNOR, J., delivered the opinion for a unanimous Court. [ FLORENCE COUNTY SCH. DIST. FOUR v. CARTER, ___
U.S. ___ (1993) , 1]

JUSTICE O’CONNOR delivered the opinion of the Court.

The Individuals with Disabilities Education Act (IDEA), 84 Stat. 175, as amended, 20 U.S.C.
1400 et seq. (1988 ed. and Supp. IV), requires States to provide disabled children with a “free
appropriate public education,” 1401(a)(18). This case presents the question whether a court may
order reimbursement for parents who unilaterally withdraw their child from a public school that
provides an inappropriate education under IDEA and put the child in a private school that
provides an education that is otherwise proper under IDEA, but does not meet all the
requirements of 1401(a)(18). We hold that the court may order such reimbursement, and
therefore affirm the judgment of the Court of Appeals.

Respondent Shannon Carter was classified as learning disabled in 1985, while a ninth grade
student in a school operated by petitioner Florence County School District Four. School officials
met with Shannon’s parents to formulate an individualized education program (IEP) for Shannon,

as required under IDEA. 20 U.S.C. 1401(a)(18) and (20), 1414(a)(5) (1988 ed. [ FLORENCE
COUN TY SC H. DIST. FO UR v. CAR TER, ___ U.S. ___ (199 3) , 2] and Supp. IV). The IEP provided that
Shannon would stay in regular classes except for three periods of individualized instruction per

week, and established specific goals in reading and mathematics of four months’ progress for the
entire school year. Shannon’s parents were dissatisfied, and requested a hearing to challenge the

appropriateness of the IEP. See 1415(b)(2). Both the local educational officer and the state
educational agency hearing officer rejected Shannon’s parents’ claim and concluded that the IEP
was adequate. In the meantime, Shannon’s parents had placed her in Trident Academy, a private

school specializing in educating children with disabilities. Shannon began at Trident in
September, 1985, and graduated in the spring of 1988.

Shannon’s parents filed this suit in July, 1986, claiming that the school district had breached its

-3-SpecialEdLaw.net – caselaw

duty under IDEA to provide Shannon with a “free appropriate public education,” 1401(a)(18),
and seeking reimbursement for tuition and other costs incurred at Trident. After a bench trial, the
District Court ruled in the parents’ favor. The court held that the school district’s proposed
educational program and the achievement goals of the IEP “were wholly inadequate” and failed
to satisfy the requirements of the Act. App. to Pet. for Cert. 27a. The court further held that,
“[a]lthough [Trident Academy] did not comply with all of the procedures outlined in [IDEA],”
the school “provided Shannon an excellent education in substantial compliance with all the
substantive requirements” of the statute. Id., at 37a. The court found that Trident evaluated
Shannon quarterly, not yearly as mandated in [IDEA], it “provided Shannon with low teacher-
student ratios, and it developed a plan which allowed Shannon to receive passing marks and
progress from grade to grade.” Ibid. The court also credited the findings of its own expert, who
determined that Shannon had made “significant progress” at Trident, [ F L O RE N C E C O U N T Y S CH .
DIST. FO UR v. CAR TER, ___ U.S. ___ (199 3) , 3] and that her reading comprehension had risen three
grade levels in her three years at the school. Id, at 29a. The District Court concluded that
Shannon’s education was “appropriate” under IDEA, and that Shannon’s parents were entitled to
reimbursement of tuition and other costs. Id., at 37a.

The Court of Appeals for the Fourth Circuit affirmed. 950 F.2d 156 (1991). The court agreed that
the IEP proposed by the school district was inappropriate under IDEA. It also rejected the school
district’s argument that reimbursement is never proper when the parents choose a private school
that is not approved by the State or that does not comply with all the terms of IDEA. According
to the Court of Appeals, neither the text of the Act nor its legislative history imposes a
“requirement that the private school be approved by the state in parent placement reimbursement
cases.” Id, at 162. To the contrary, the Court of Appeals concluded, IDEA’s state-approval
requirement applies only when a child is placed in a private school by public school officials.
Accordingly, “when a public school system has defaulted on its obligations under the Act, a
private school placement is `proper under the Act’ if the education provided by the private school
is `reasonably calculated to enable the child to receive educational benefits.'” Id., at 163, quoting
Board of Ed of Hendrick Hudson Central School Dist. v. Rowley, 458 U.S. 176, 207 (1982).

The court below recognized that its holding conflicted with Tucker v. Bay Shore Union Free
School Dist., 873 F.2d 563, 568 (1989), in which the Court of Appeals for the Second Circuit
held that parental placement in a private school cannot be proper under the Act unless the private
school in question meets the standards of the state education agency. We granted certiorari, 507
U.S. ___ (1993), to resolve this conflict among the Courts of Appeals. [ F L O RE N C E C O U N T Y S CH .
DIST. FO UR v. CAR TER, ___ U.S. ___ (199 3) , 4]

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In School Comm. of Burlington v. Department of Ed. of Mass., 471 U.S. 359, 369 (1985), we
held that IDEA’s grant of equitable authority empowers a court “to order school authorities to
reimburse parents for their expenditures on private special education for a child if the court

ultimately determines that such placement, rather than a proposed IEP, is proper under the Act.”
Congress intended that IDEA’s promise of a “free appropriate public education” for disabled

children would normally be met by an IEP’s provision for education in the regular public schools
or in private schools chosen jointly by school officials and parents. In cases where cooperation
fails, however, “parents who disagree with the proposed IEP are faced with a choice: go along

with the IEP to the detriment of their child if it turns out to be inappropriate or pay for what they
consider to be the appropriate placement.” Id., at 370. For parents willing and able to make the

latter choice, “it would be an empty victory to have a court tell them several years later that they
were right, but that these expenditures could not, in a proper case, be reimbursed by the school

officials.” Ibid. Because such a result would be contrary to IDEA’s guarantee of a “free
appropriate public education,” we held that “Congress meant to include retroactive

reimbursement to parents as an available remedy in a proper case.” Ibid.

As this case comes to us, two issues are settled: 1) the school district’s proposed IEP was
inappropriate under IDEA, and 2) although Trident did not meet the 1401(a)(18) requirements, it
provided an education otherwise proper under IDEA. This case presents the narrow question
whether Shannon’s parents are barred from reimbursement because the private school in which
Shannon enrolled did not meet the 1401(a)(18) definition [ F L O RE N C E C O U N T Y S CH . D I ST . F O U R
v. CARTE R, ___ U.S. ___ (1993) , 5] of a “free appropriate pu blic education. ” * We hold that they are
not, because 1401(a)(18)’s requirements cannot be read as applying to parental placements.

Section 1401(a)(18)(A) requires that the education be “provided at public expense, under public
supervision and direction.” Similarly, 1401(a)(18)(D) requires schools to provide an IEP, which
must be designed by “a representative of the local educational agency,” 20 U.S.C. 1401(a)(20)
(198 8 ed. , Sup p. IV), and must be “estab lish[ed],” “rev ise[ d],” and “review[ ed]” by the agency,
1414(a)(5). These requirements do not make sense in the context of a parental placement. In this
case, as in all Burli ngton reimbursem ent cases, the paren ts’ rejection of the school district ‘s
proposed IEP is the ve ry reason for the parents ‘ decision to put their chi ld in a priv ate sc hool. In
such cases, where th e private placemen t has necessarily been mad e over the school di strict’s
objection, the private school education will not be under “public supervision and direction.”
Accordingly, to read the 1401(a)(18) requirements as applying to parental placements would
effectively eliminate the right of unilateral withdrawal recognized in Burlington. Moreover,
IDEA was intended to ensure that children with disabilities receive an education that is both
appropriate and free. Burlington, supra, at 373. To read the provisions of 1401(a)(18) to bar
reimbursement in the circumstances of this case would defeat this [ F L O RE N C E C O U N T Y S CH .
DIST. FO UR v. CAR TER, ___ U.S. ___ (199 3) , 6] statutory purpose.

Nor do we believe that reimbursement is necessarily barred by a private school’s failure to meet
state education standards. Trident’s deficiencies, according to the school district, were that it

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employed at least two faculty members who were not state-certified, and that it did not develop
IEPs. As we have noted, however, the 1401(a)(18) requirements – including the requirement that
the school meet the standards of the state educational agency, 1401(a)(18)(B) – do not apply to
private parental placements. Indeed, the school district’s emphasis on state standards is somewhat
ironic. As the Court of Appeals noted, “it hardly seems consistent with the Act’s goals to forbid
parents from educating their child at a school that provides an appropriate education simply
because that school lacks the stamp of approval of the same public school system that failed to
meet the child’s needs in the first place.” 950 F.2d, at 164. Accordingly, we disagree with the
Second Circuit’s theory that “a parent may not obtain reimbursement for a unilateral placement if
that placement was in a school that was not on [the State’s] approved list of private” schools.
Tucker, 873 F.2d, at 568 (internal quotation marks omitted). Parents’ failure to select a program
known to be approved by the State in favor of an unapproved option is not itself a bar to
reimbursement.

Furthermore, although the absence of an approved list of private schools is not essential to our
holding, we note that parents in the position of Shannon’s have no way of knowing at the time
they select a private school whether the school meets state standards. South Carolina keeps no
publicly available list of approved private schools, but instead approves private school
placements on a case-by-case basis. In fact, although public school officials had previously
placed three children with disabilities at Trident, see App. to Pet. for Cert. 28a, [ FLORENCE
COUN TY SC H. DIST. FO UR v. CAR TER, ___ U.S. ___ (199 3) , 7] Trident had not received blanket
approval from the State. South Carolina’s case-by-case app roval system meant th at Shannon’s
parents needed the cooperation of state officials before they could know whether Trident was
state-approved. As we recognized in Burlington, such cooperation is unlikely in cases where the
school officials disagree with the need for the private placement. 471 U.S., at 372 .

III

The school district also claims that allowing reimbursement for parents such as Shannon’s puts
an unreasonable burden on financially strapped local educational authorities. The school district

argues that requiring parents to choose a state-approved private school if they want
reimbursement is the only meaningful way to allow States to control costs; otherwise States will

have to reimburse dissatisfied parents for any private school that provides an education that is
proper under the Act, no matter how expensive it may be.

There is no doubt that Congress has imposed a significant financial burden on States and school
districts that participate in IDEA. Yet public educational authorities who want to avoid
reimbursing parents for the private education of a disabled child can do one of two things: give
the child a free appropriate public education in a public setting, or place the child in an
appropriate private setting of the State’s choice. This is IDEA’s mandate, and school officials who
conform to it need not worry about reimbursement claims.

Moreover, parents who, like Shannon’s, “unilaterally change their child’s placement during the
pendency of review proceedings, without the consent of the state or local school officials, do so
at their own financial risk.” Burlington, supra, at 373-374. They are entitled to reimbursement

-6-SpecialEdLaw.net – caselaw

only if a federal court concludes both that the public placement violated IDEA, and that the [
FLORE NCE CO UNT Y SCH. D IST. FOU R v. CART ER, ___ U .S. ___ (1993) , 8] private school placement
was proper under the Act.

Finally, we note that, once a court holds that the public placement violated IDEA, it is authorized
to “grant such relief as the court determines is appropriate.” 20 U.S.C. 1415(e)(2). Under this
provision, “equitable considerations are relevant in fashioning relief,” Burlington, 471 U.S., at
374 , and the court enjoys “broad discretion” in so doing, id., at 369. Courts fashioning
discretionary equitable relief under IDEA must consider all relevant factors, including the
appropriate and reasonable level of reimbursement that should be required. Total reimbursement
will not be appropriate if the court determines that the cost of the private education was
unreasonable.

Accordingly, we affirm the judgment of the Court of Appeals.

So ordered.

[ Footnote * ] Section 1401(a)(18) defines “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,

(D) are provided in conformity with the individu alized education program. . . .” [ FLORENCE COUNTY SCH. DIST. FOUR v.
CARTER, ___ U.S. ___ (1993) , 1]

(Slip Opinion) OCTOBER TERM, 2000 1

Syllabus

SUPREME COURT OF THE UNITED STATES

Syllabus

PGA TOUR, INC. v. MARTIN

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT

No. 00–24. Argued January 17, 2001— Decided May 29, 2001

Petitioner sponsors professional golf tournaments conducted on three
annual tours. A player may gain entry into the tours in various
ways, most commonly through successfully competing in a three-
stage qualifying tournament known as the “Q-School.” Any member
of the public may enter the Q-School by submitting two letters of rec-
ommendation and paying a $3,000 entry fee to cover greens fees and
the cost of golf carts, which are permitted during the first two stages,
but have been prohibited during the third stage since 1997. The
rules governing competition in tour events include the “Rules of
Golf,” which apply at all levels of amateur and professional golf and
do not prohibit the use of golf carts, and the “hard card,” which ap-
plies specifically to petitioner’s professional tours and requires play-
ers to walk the golf course during tournaments, except in “open”
qualifying events for each tournament and on petitioner’s senior tour.
Respondent Martin is a talented golfer afflicted with a degenerative
circulatory disorder that prevents him from walking golf courses. His
disorder constitutes a disability under the Americans with Disabili-
ties Act of 1990 (ADA), 42 U. S. C. §12101 et seq. When Martin
turned pro and entered the Q-School, he made a request, supported
by detailed medical records, for permission to use a golf cart during
the third stage. Petitioner refused, and Martin filed this action un-
der Title III of the ADA, which, among other things, requires an en-
tity operating “public accommodations” to make “reasonable modifi-
cations” in its policies “when . . . necessary to afford such . . .
accommodations to individuals with disabilities, unless the entity can
demonstrate that making such modifications would fundamentally al-
ter the nature of such . . . accommodations,” §12182(b)(2)(A)(ii) (em-
phasis added). In denying petitioner summary judgment, the Magis-

2 PGA TOUR, INC. v. MARTIN

Syllabus

trate Judge rejected its contention, among others, that the play areas
of its tour competitions are not places of “public accommodation”
within Title III’s scope. After trial, the District Court entered a per-
manent injunction requiring petitioner to permit Martin to use a
cart. Among its rulings, that court found that the walking rule’s
purpose was to inject fatigue into the skill of shot-making, but that
the fatigue injected by walking a golf course cannot be deemed sig-
nificant under normal circumstances; determined that even with the
use of a cart, the fatigue Martin suffers from coping with his disabil-
ity is greater than the fatigue his able-bodied competitors endure
from walking the course; and concluded that it would not fundamen-
tally alter the nature of petitioner’s game to accommodate Martin.
The Ninth Circuit affirmed, concluding, inter alia, that golf courses,
including play areas, are places of public accommodation during pro-
fessional tournaments and that permitting Martin to use a cart
would not “fundamentally alter” the nature of those tournaments.

Held:
1. Title III of the ADA, by its plain terms, prohibits petitioner from

denying Martin equal access to its tours on the basis of his disability.
Cf. Pennsylvania Dept. of Corrections v. Yeskey, 524 U. S. 206, 209.
That Title provides, as a general rule, that “[n]o individual shall be dis-
criminated against on the basis of a disability in the full and equal en-
joyment of the . . . privileges . . . of any place of public accommodation.”
§12182(a). The phrase “public accommodation” is defined in terms of
12 extensive categories, §12181(7), which the legislative history indi-
cates should be construed liberally to afford people with disabilities
equal access to the wide variety of establishments available to the
nondisabled. Given the general rule and the comprehensive defini-
tion of “public accommodation,” it is apparent that petitioner’s golf
tours and their qualifying rounds fit comfortably within Title III’s
coverage, and Martin within its protection. The events occur on “golf
course[s],” a type of place specifically identified as a public accommo-
dation. §12181(7)(L). And, at all relevant times, petitioner “leases”
and “operates” golf courses to conduct its Q-School and tours.
§12182(a). As a lessor and operator, petitioner must not discriminate
against any “individual” in the “full and equal enjoyment of the . . .
privileges” of those courses. Ibid. Among those “privileges” are com-
peting in the Q-School and playing in the tours; indeed, the former is
a privilege for which thousands of individuals from the general public
pay, and the latter is one for which they vie. Martin is one of those
individuals. The Court rejects petitioner’s argument that competing
golfers are not members of the class protected by Title III— i.e., “cli-
ents or customers of the covered public accommodation,”
§12182(b)(1)(A)(iv)— but are providers of the entertainment peti-

Cite as: 532 U. S. ____ (2001) 3

Syllabus

tioner sells, so that their “job-related” discrimination claims may only
be brought under Title I. Even if Title III’s protected class were so
limited, it would be entirely appropriate to classify the golfers who
pay petitioner $3,000 for the chance to compete in the Q-School and,
if successful, in the subsequent tour events, as petitioner’s clients or
customers. This conclusion is consistent with case law in the analo-
gous context of Title II of the Civil Rights Act of 1964. See, e.g., Dan-
iel v. Paul, 395 U. S. 298, 306. Pp. 12–19.

2. Allowing Martin to use a golf cart, despite petitioner’s walking
requirement, is not a modification that would “fundamentally alter
the nature” of petitioner’s tours or the third stage of the Q-School. In
theory, a modification of the tournaments might constitute a funda-
mental alteration in these ways: (1) It might alter such an essential
aspect of golf, e.g., the diameter of the hole, that it would be unac-
ceptable even if it affected all competitors equally; or (2) a less sig-
nificant change that has only a peripheral impact on the game itself
might nevertheless give a disabled player, in addition to access to the
competition as required by Title III, an advantage over others and
therefore fundamentally alter the character of the competition. The
Court is not persuaded that a waiver of the walking rule for Martin
would work a fundamental alteration in either sense. The use of carts
is not inconsistent with the fundamental character of golf, the es-
sence of which has always been shot-making. The walking rule con-
tained in petitioner’s hard cards is neither an essential attribute of
the game itself nor an indispensable feature of tournament golf. The
Court rejects petitioner’s attempt to distinguish golf as it is generally
played from the game at the highest level, where, petitioner claims,
the waiver of an “outcome-affecting” rule such as the walking rule
would violate the governing principle that competitors must be sub-
ject to identical substantive rules, thereby fundamentally altering the
nature of tournament events. That argument’s force is mitigated by
the fact that it is impossible to guarantee that all golfers will play
under exactly the same conditions or that an individual’s ability will
be the sole determinant of the outcome. Further, the factual basis of
petitioner’s argument— that the walking rule is “outcome affecting”
because fatigue may adversely affect performance— is undermined by
the District Court’s finding that the fatigue from walking during a
tournament cannot be deemed significant. Even if petitioner’s fac-
tual predicate is accepted, its legal position is fatally flawed because
its refusal to consider Martin’s personal circumstances in deciding
whether to accommodate his disability runs counter to the ADA’s re-
quirement that an individualized inquiry be conducted. Cf. Sutton v.
United Air Lines, Inc., 527 U. S. 471, 483. There is no doubt that al-
lowing Martin to use a cart would not fundamentally alter the nature

4 PGA TOUR, INC. v. MARTIN

Syllabus

of petitioner’s tournaments, given the District Court’s uncontested
finding that Martin endures greater fatigue with a cart than his able-
bodied competitors do by walking. The waiver of a peripheral tour-
nament rule that does not impair its purpose cannot be said to fun-
damentally alter the nature of the athletic event. Pp. 19–29.

204 F. 3d 994, affirmed.

STEVENS, J., delivered the opinion of the Court, in which REHNQUIST,
C. J., and O’CONNOR, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ.,
joined. SCALIA, J., filed a dissenting opinion, in which THOMAS, J.,
joined.

Cite as: 532 U. S. ____ (2001) 1

Opinion of the Court

SUPREME COURT OF THE UNITED STATES
_________________

No. 00–24
_________________

PGA TOUR, INC., PETITIONER v. CASEY MARTIN

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[May 29, 2001]

JUSTICE STEVENS delivered the opinion of the Court.
This case raises two questions concerning the applica-

tion of the Americans with Disabilities Act of 1990, 104
Stat. 328, 42 U. S. C. §12101 et seq., to a gifted athlete:
first, whether the Act protects access to professional golf
tournaments by a qualified entrant with a disability; and
second, whether a disabled contestant may be denied the
use of a golf cart because it would “fundamentally alter
the nature” of the tournaments, §12182(b)(2)(A)(ii), to
allow him to ride when all other contestants must walk.

I
Petitioner PGA TOUR, Inc., a nonprofit entity formed in

1968, sponsors and cosponsors professional golf tourna-
ments conducted on three annual tours. About 200 golfers
participate in the PGA TOUR; about 170 in the NIKE
TOUR1; and about 100 in the SENIOR PGA TOUR. PGA
TOUR and NIKE TOUR tournaments typically are 4-day
events, played on courses leased and operated by peti-

— — — — — —
1 After the trial of the case, the name of the NIKE TOUR was

changed to the Buy.com TOUR.

2 PGA TOUR, INC. v. MARTIN
Opinion of the Court

tioner. The entire field usually competes in two 18-hole
rounds played on Thursday and Friday; those who survive
the “cut” play on Saturday and Sunday and receive prize
money in amounts determined by their aggregate scores
for all four rounds. The revenues generated by television,
admissions, concessions, and contributions from cospon-
sors amount to about $300 million a year, much of which
is distributed in prize money.

There are various ways of gaining entry into particular
tours. For example, a player who wins three NIKE TOUR
events in the same year, or is among the top-15 money
winners on that tour, earns the right to play in the PGA
TOUR. Additionally, a golfer may obtain a spot in an
official tournament through successfully competing in
“open” qualifying rounds, which are conducted the week
before each tournament. Most participants, however, earn
playing privileges in the PGA TOUR or NIKE TOUR by
way of a three-stage qualifying tournament known as the
“Q-School.”

Any member of the public may enter the Q-School by
paying a $3,000 entry fee and submitting two letters of
reference from, among others, PGA TOUR or NIKE TOUR
members. The $3,000 entry fee covers the players’ greens
fees and the cost of golf carts, which are permitted during
the first two stages, but which have been prohibited dur-
ing the third stage since 1997. Each year, over a thousand
contestants compete in the first stage, which consists of
four 18-hole rounds at different locations. Approximately
half of them make it to the second stage, which also in-
cludes 72 holes. Around 168 players survive the second
stage and advance to the final one, where they compete
over 108 holes. Of those finalists, about a fourth qualify
for membership in the PGA TOUR, and the rest gain
membership in the NIKE TOUR. The significance of

Cite as: 532 U. S. ____ (2001) 3
Opinion of the Court

making it into either tour is illuminated by the fact that
there are about 25 million golfers in the country.2

Three sets of rules govern competition in tour events.
First, the “Rules of Golf,” jointly written by the United
States Golf Association (USGA) and the Royal and Ancient
Golf Club of Scotland, apply to the game as it is played,
not only by millions of amateurs on public courses and in
private country clubs throughout the United States and
worldwide, but also by the professionals in the tourna-
ments conducted by petitioner, the USGA, the Ladies’
Professional Golf Association, and the Senior Women’s
Golf Association. Those rules do not prohibit the use of
golf carts at any time.3

Second, the “Conditions of Competition and Local
Rules,” often described as the “hard card,” apply specifi-
cally to petitioner’s professional tours. The hard cards for
the PGA TOUR and NIKE TOUR require players to walk
the golf course during tournaments, but not during open
qualifying rounds.4 On the SENIOR PGA TOUR, which is
limited to golfers age 50 and older, the contestants may

— — — — — —
2 Generally, to maintain membership in a tour for the succeeding

year, rather than go through the Q-School again, a player must perform
at a certain level.

3 Instead, Appendix I to the Rules of Golf lists a number of “optional”
conditions, among them one related to transportation: “If it is desired to
require players to walk in a competition, the following condition is
suggested:

“Players shall walk at all times during a stipulated round.” App. 125.
4 The PGA TOUR hard card provides: “Players shall walk at all times

during a stipulated round unless permitted to ride by the PGA TOUR
Rules Committee.” Id., at 127. The NIKE TOUR hard card similarly
requires walking unless otherwise permitted. Id., at 129. Additionally,
as noted, golf carts have not been permitted during the third stage of
the Q-School since 1997. Petitioner added this recent prohibition in
order to “approximat[e] a PGA TOUR event as closely as possible.” Id.,
at 152.

4 PGA TOUR, INC. v. MARTIN
Opinion of the Court

use golf carts. Most seniors, however, prefer to walk. 5
Third, “Notices to Competitors” are issued for particular

tournaments and cover conditions for that specific event.
Such a notice may, for example, explain how the Rules of
Golf should be applied to a particular water hazard or
man-made obstruction. It might also authorize the use of
carts to speed up play when there is an unusual distance
between one green and the next tee.6

The basic Rules of Golf, the hard cards, and the weekly
notices apply equally to all players in tour competitions.
As one of petitioner’s witnesses explained with reference
to “the Masters Tournament, which is golf at its very
highest level . . . the key is to have everyone tee off on the
first hole under exactly the same conditions and all of
them be tested over that 72-hole event under the condi-
tions that exist during those four days of the event.” App.
192.

II
Casey Martin is a talented golfer. As an amateur, he

won 17 Oregon Golf Association junior events before he
was 15, and won the state championship as a high school
senior. He played on the Stanford University golf team
that won the 1994 National Collegiate Athletic Association
(NCAA) championship. As a professional, Martin quali-
fied for the NIKE TOUR in 1998 and 1999, and based on
his 1999 performance, qualified for the PGA TOUR in
2000. In the 1999 season, he entered 24 events, made the
cut 13 times, and had 6 top-10 finishes, coming in second
twice and third once.

Martin is also an individual with a disability as defined
— — — — — —

5 994 F. Supp. 1242, 1251 (Ore. 1998).
6 See, e.g., App. 156–160 (Notices to Competitors for 1997 Bob Hope

Chrysler Classic, 1997 AT&T Pebble Beach National Pro-Am, and 1997
Quad City Classic).

Cite as: 532 U. S. ____ (2001) 5

Opinion of the Court

in the Americans with Disabilities Act of 1990 (ADA or
Act).7 Since birth he has been afflicted with Klippel-
Trenaunay-Weber Syndrome, a degenerative circulatory
disorder that obstructs the flow of blood from his right leg
back to his heart. The disease is progressive; it causes
severe pain and has atrophied his right leg. During the
latter part of his college career, because of the progress of
the disease, Martin could no longer walk an 18-hole golf
course.8 Walking not only caused him pain, fatigue, and
anxiety, but also created a significant risk of hemorrhag-
ing, developing blood clots, and fracturing his tibia so
badly that an amputation might be required. For these
reasons, Stanford made written requests to the Pacific 10
Conference and the NCAA to waive for Martin their rules
requiring players to walk and carry their own clubs. The
requests were granted.9

When Martin turned pro and entered petitioner’s Q-
School, the hard card permitted him to use a cart during

— — — — — —
7 42 U. S. C. §12102 provides, in part:
“The term ‘disability’ means, with respect to an individual—
“(A) a physical or mental impairment that substantially limits one or

more of the major life activities of such individual . . . .”
8 Before then, even when Martin was in extreme pain, and was of-

fered a cart, he declined. Tr. 564–565.
9 When asked about the other teams’ reaction to Martin’s use of a

cart, the Stanford coach testified:
“Q. Was there any complaint ever made to you by the coaches when

he was allowed a cart that that gave a competitive advantage over
the—

“A. Any complaints? No sir, there were exactly— exactly the oppo-
site. Everybody recognized Casey for the person he was, and what he
was doing with his life, and every coach, to my knowledge, and every
player wanted Casey in the tournament and they welcomed him there.

“Q. Did anyone contend that that constituted an alteration of the
competition to the extent that it didn’t constitute the game to your
level, the college level?

“A. Not at all, sir.” App. 208.

6 PGA TOUR, INC. v. MARTIN

Opinion of the Court

his successful progress through the first two stages. He
made a request, supported by detailed medical records, for
permission to use a golf cart during the third stage. Peti-
tioner refused to review those records or to waive its
walking rule for the third stage. Martin therefore filed
this action. A preliminary injunction entered by the Dis-
trict Court made it possible for him to use a cart in the
final stage of the Q-School and as a competitor in the
NIKE TOUR and PGA TOUR. Although not bound by the
injunction, and despite its support for petitioner’s position
in this litigation, the USGA voluntarily granted Martin a
similar waiver in events that it sponsors, including the
U. S. Open.

III
In the District Court, petitioner moved for summary

judgment on the ground that it is exempt from coverage
under Title III of the ADA as a “private clu[b] or estab-
lishmen[t],”10 or alternatively, that the play areas of its
tour competitions do not constitute places of “public ac-
commodation” within the scope of that Title.11 The Magis-
trate Judge concluded that petitioner should be viewed as
a commercial enterprise operating in the entertainment
industry for the economic benefit of its members rather
than as a private club. Furthermore, after noting that the
statutory definition of public accommodation included a
“golf course,”12 he rejected petitioner’s argument that its
competitions are only places of public accommodation in
the areas open to spectators. The operator of a public
— — — — — —

10 Title 42 U. S. C. §12187 provides: “The provisions of this subchap-
ter shall not apply to private clubs or establishments exempted from
coverage under Title II of the Civil Rights Act of 1964 (42 U. S. C.
§2000–a(e)) or to religious organizations or entities controlled by
religious organizations, including places of worship.”

11 See §12181(7).
12 §12181(7)(L).

Cite as: 532 U. S. ____ (2001) 7

Opinion of the Court

accommodation could not, in his view, “create private
enclaves within the facility . . . and thus relegate the ADA
to hop-scotch areas.” 984 F. Supp. 1320, 1326–1327 (Ore.
1998). Accordingly, he denied petitioner’s motion for
summary judgment.

At trial, petitioner did not contest the conclusion that
Martin has a disability covered by the ADA, or the fact
“that his disability prevents him from walking the course
during a round of golf.” 994 F. Supp. 1242, 1244 (Ore.
1998). Rather, petitioner asserted that the condition of
walking is a substantive rule of competition, and that
waiving it as to any individual for any reason would fun-
damentally alter the nature of the competition. Peti-
tioner’s evidence included the testimony of a number of
experts, among them some of the greatest golfers in his-
tory. Arnold Palmer,13 Jack Nicklaus, 14 and Ken Venturi15
explained that fatigue can be a critical factor in a tourna-
— — — — — —

13 “Q. And fatigue is one of the factors that can cause a golfer at the
PGA Tour level to lose one stroke or more?

“A. Oh, it is. And it has happened.
“Q. And can one stroke be the difference between winning and not

winning a tournament at the PGA Tour level?
“A. As I said, I’ve lost a few national opens by one stroke.” App. 177.
14 “Q. Mr. Nicklaus, what is your understanding of the reason why in

these competitive events . . . that competitors are required to walk the
course?

“A. Well, in my opinion, physical fitness and fatigue are part of the
game of golf.” Id., at 190.

15 “Q. So are you telling the court that this fatigue factor tends to
accumulate over the course of the four days of the tournament?

“A. Oh definitely. There’s no doubt.
. . . . .

“Q. Does this fatigue factor that you’ve talked about, Mr. Venturi,
affect the manner in which you— you perform as a professional out on
the golf course?

“A. Oh, there’s no doubt, again, but that, that fatigue does play a big
part. It will influence your game. It will influence your shot-making.
It will influence your decisions.” Id., at 236–237.

8 PGA TOUR, INC. v. MARTIN

Opinion of the Court

ment, particularly on the last day when psychological
pressure is at a maximum. Their testimony makes it clear
that, in their view, permission to use a cart might well
give some players a competitive advantage over other
players who must walk. They did not, however, express
any opinion on whether a cart would give Martin such an
advantage.16

Rejecting petitioner’s argument that an individualized
inquiry into the necessity of the walking rule in Martin’s
case would be inappropriate, the District Court stated that
it had “the independent duty to inquire into the purpose of
the rule at issue, and to ascertain whether there can be a
reasonable modification made to accommodate plaintiff
without frustrating the purpose of the rule” and thereby
fundamentally altering the nature of petitioner’s tourna-
ments. Id., at 1246. The judge found that the purpose of
the rule was to inject fatigue into the skill of shot-making,
but that the fatigue injected “by walking the course cannot
be deemed significant under normal circumstances.” Id.,
at 1250. Furthermore, Martin presented evidence, and

— — — — — —
16 “Q. Based on your experience, do you believe that it would funda-

mentally alter the nature of the competition on the PGA Tour and the
Nike Tour if competitors in those events were permitted to use golf
carts?

“A. Yes, absolutely.
“Q. Why do you say so, sir?
“A. It would— it would take away the fatigue factor in many ways. It

would— it would change the game.
. . . . .

“Q. Now, when you say that the use of carts takes away the fatigue
factor, it would be an aid, et cetera, again, as I understand it, you are
not testifying now about the plaintiff. You are just talking in general
terms?

. . . . .
“A. Yes, sir.” Id., at 238. See also id., at 177–178 (Palmer); id., at

191 (Nicklaus).

Cite as: 532 U. S. ____ (2001) 9

Opinion of the Court

the judge found, that even with the use of a cart, Martin
must walk over a mile during an 18-hole round,17 and that
the fatigue he suffers from coping with his disability is
“undeniably greater” than the fatigue his able-bodied
competitors endure from walking the course. Id., at 1251.
As the judge observed:

“[P]laintiff is in significant pain when he walks, and
even when he is getting in and out of the cart. With
each step, he is at risk of fracturing his tibia and
hemorrhaging. The other golfers have to endure the
psychological stress of competition as part of their fa-
tigue; Martin has the same stress plus the added
stress of pain and risk of serious injury. As he put it,
he would gladly trade the cart for a good leg. To per-
ceive that the cart puts him— with his condition— at a
competitive advantage is a gross distortion of reality.”
Id., at 1251–1252.

As a result, the judge concluded that it would “not funda-
mentally alter the nature of the PGA Tour’s game to ac-
commodate him with a cart.” Id., at 1252. The judge
accordingly entered a permanent injunction requiring
petitioner to permit Martin to use a cart in tour and quali-
fying events.

On appeal to the Ninth Circuit, petitioner did not chal-
lenge the District Court’s rejection of its claim that it was
exempt as a “private club,” but it renewed the contention
that during a tournament the portion of the golf course
“ ‘behind the ropes’ is not a public accommodation because
the public has no right to enter it.” 204 F. 3d 994, 997
— — — — — —

17 “In the first place, he does walk while on the course— even with a
cart, he must move from cart to shot and back to the cart. In essence,
he still must walk approximately 25% of the course. On a course
roughly five miles in length, Martin will walk 11/4 miles.” 994 F. Supp.,
at 1251.

10 PGA TOUR, INC. v. MARTIN

Opinion of the Court

(2000). The Court of Appeals viewed that contention as
resting on the incorrect assumption that the competition
among participants was not itself public. The court first
pointed out that, as with a private university, “the fact
that users of a facility are highly selected does not mean
that the facility cannot be a public accommodation.” Id.,
at 998.18 In its opinion, the competition to enter the select
circle of PGA TOUR and NIKE TOUR golfers was compa-
rable because “[a]ny member of the public who pays a
$3000 entry fee and supplies two letters of recommenda-
tion may try out in the qualifying school.” Id., at 999. The
court saw “no justification in reason or in the statute to
draw a line beyond which the performance of athletes
becomes so excellent that a competition restricted to their
level deprives its situs of the character of a public accom-
modation.” Ibid. Nor did it find a basis for distinguishing
between “use of a place of public accommodation for pleas-
ure and use in the pursuit of a living.” Ibid. Conse-
quently, the Court of Appeals concluded that golf courses
remain places of public accommodation during PGA tour-
naments. Ibid.

On the merits, because there was no serious dispute
about the fact that permitting Martin to use a golf cart
was both a reasonable and a necessary solution to the
problem of providing him access to the tournaments, the
Court of Appeals regarded the central dispute as whether
such permission would “fundamentally alter” the nature of
the PGA TOUR or NIKE TOUR. Like the District Court,
the Court of Appeals viewed the issue not as “whether use
— — — — — —

18 It explained: “For example, Title III includes in its definition ‘sec-
ondary, undergraduate, or post-graduate private school[s].’ 42 U. S. C.
§12181(7)(J). The competition to enter the most elite private universi-
ties is intense, and a relatively select few are admitted. That fact
clearly does not remove the universities from the statute’s definition as
places of public accommodation.” 204 F. 3d, at 998.

Cite as: 532 U. S. ____ (2001) 11

Opinion of the Court

of carts generally would fundamentally alter the competi-
tion, but whether the use of a cart by Martin would do so.”
Id., at 1001. That issue turned on “an intensively fact-
based inquiry,” and, the court concluded, had been cor-
rectly resolved by the trial judge. In its words, “[a]ll that
the cart does is permit Martin access to a type of compet i-
tion in which he otherwise could not engage because of his
disability.” Id., at 1000.

The day after the Ninth Circuit ruled in Martin’s favor,
the Seventh Circuit came to a contrary conclusion in a
case brought against the USGA by a disabled golfer who
failed to qualify for “America’s greatest— and most demo-
cratic— golf tournament, the United States Open.” Olin-
ger v. United States Golf Assn., 205 F. 3d 1001 (2000).19
The Seventh Circuit endorsed the conclusion of the Dis-
trict Court in that case that “the nature of the competition
would be fundamentally altered if the walking rule were
eliminated because it would remove stamina (at least a
particular type of stamina) from the set of qualities de-
signed to be tested in this competition.” Id., at 1006 (i n-
ternal quotation marks omitted). In the Seventh Circuit’s
opinion, the physical ordeals endured by Ken Venturi and
Ben Hogan when they walked to their Open victories in
1964 and 1950 amply demonstrated the importance of
stamina in such a tournament.20 As an alternative basis
for its holding, the court also concluded that the ADA does
not require the USGA to bear “the administrative burdens
of evaluating requests to waive the walking rule and
permit the use of a golf cart.” Id., at 1007.

Although the Seventh Circuit merely assumed that the
— — — — — —

19 The golfer in the Seventh Circuit case, Ford Olinger, suffers from
bilateral avascular necrosis, a degenerative condition that significantly
hinders his ability to walk.

20 For a description of the conditions under which they played, see
Olinger v. United States Golf Assn., 205 F. 3d, at 1006–1007.

12 PGA TOUR, INC. v. MARTIN

Opinion of the Court

ADA applies to professional golf tournaments, and there-
fore did not disagree with the Ninth on the threshold
coverage issue, our grant of certiorari, 530 U. S. 1306
(2000), encompasses that question as well as the conflict
between those courts.

IV
Congress enacted the ADA in 1990 to remedy wide-

spread discrimination against disabled individuals. In
studying the need for such legislation, Congress found
that “historically, society has tended to isolate and segre-
gate individuals with disabilities, and, despite some i m-
provements, such forms of discrimination against indi-
viduals with disabilities continue to be a serious and
pervasive social problem.” 42 U. S. C. §12101(a)(2); see
§12101(a)(3) (“[D]iscrimination against individuals with
disabilities persists in such critical areas as employment,
housing, public accommodations, education, transporta-
tion, communication, recreation, institutionalization,
health services, voting, and access to public services”).
Congress noted that the many forms such discrimination
takes include “outright intentional exclusion” as well as
the “failure to make modifications to existing facilities and
practices.” §12101(a)(5). After thoroughly investigating
the problem, Congress concluded that there was a “com-
pelling need” for a “clear and comprehensive national
mandate” to eliminate discrimination against disabled
individuals, and to integrate them “into the economic and
social mainstream of American life.” S. Rep. No. 101–116,
p. 20 (1989); H. R. Rep. No. 101–485, pt. 2, p. 50 (1990).

In the ADA, Congress provided that broad mandate.
See 42 U. S. C. §12101(b). In fact, one of the Act’s “most
impressive strengths” has been identified as its “compre-
hensive character,” Hearings on S. 933 before the Senate
Committee on Labor and Human Resources and the Sub-
committee on the Handicapped, 101st Cong., 1st Sess., 197

Cite as: 532 U. S. ____ (2001) 13

Opinion of the Court

(1989) (statement of Attorney General Thornburgh), and
accordingly the Act has been described as “a milestone on
the path to a more decent, tolerant, progressive society,”
Board of Trustees of Univ. of Ala. v. Garrett, 531 U. S. 356,
375 (2001) (KENNEDY, J., concurring). To effectuate its
sweeping purpose, the ADA forbids discrimination against
disabled individuals in major areas of public life, among
them employment (Title I of the Act),21 public services (Title
II),22 and public accommodations (Title III).23 At issue now,
as a threshold matter, is the applicability of Title III to
petitioner’s golf tours and qualifying rounds, in particular to
petitioner’s treatment of a qualified disabled golfer wishing
to compete in those events.

Title III of the ADA prescribes, as a “[g]eneral rule”:
“No individual shall be discriminated against on the

basis of disability in the full and equal enjoyment of
the goods, services, facilities, privileges, advantages,
or accommodations of any place of public accommoda-
tion by any person who owns, leases (or leases to), or
operates a place of public accommodation.” 42
U. S. C. §12182(a).

The phrase “public accommodation” is defined in terms of
12 extensive categories,24 which the legislative history

— — — — — —
21 42 U. S. C. §§12111–12117.
22 §§12131–12165.
23 §§12181–12189.
24 “(A) an inn, hotel, motel, or other place of lodging, except for an

establishment located within a building that contains not more than
five rooms for rent or hire and that is actually occupied by the proprie-
tor of such establishment as the residence of such proprietor;

“(B) a restaurant, bar, or other establishment serving food or drink;
“(C) a motion picture house, theater, concert hall, stadium, or other

place of exhibition or entertainment;
“(D) an auditorium, convention center, lecture hall, or other place of

public gathering;

14 PGA TOUR, INC. v. MARTIN

Opinion of the Court

indicates “should be construed liberally” to afford people
with disabilities “equal access” to the wide variety of
establishments available to the nondisabled.25

It seems apparent, from both the general rule and the
comprehensive definition of “public accommodation,” that
petitioner’s golf tours and their qualifying rounds fit com-
fortably within the coverage of Title III, and Martin within
its protection. The events occur on “golf course[s],” a type
of place specifically identified by the Act as a public ac-
commodation. §12181(7)(L). In addition, at all relevant
times, petitioner “leases” and “operates” golf courses to
conduct its Q-School and tours. §12182(a). As a lessor
and operator of golf courses, then, petitioner must not
discriminate against any “individual” in the “full and
equal enjoyment of the goods, services, facilities, privi-
leges, advantages, or accommodations” of those courses.
Ibid. Certainly, among the “privileges” offered by peti-
tioner on the courses are those of competing in the Q-
School and playing in the tours; indeed, the former is a

— — — — — —
“(E) a bakery, grocery store, clothing store, hardware store, shopping

center, or other sales or rental establishment;
“(F) a laundromat, dry-cleaner, bank, barber shop, beauty shop,

travel service, shoe repair service, funeral parlor, gas station, office of
an accountant or lawyer, pharmacy, insurance office, professional office
of a health care provider, hospital, or other service establishment;

“(G) a terminal, depot, or other station used for specified public
transportation;

“(H) a museum, library, gallery, or other place of display or collec-
tion;

“(I) a park, zoo, amusement park, or other place of recreation;
“(J) a nursery, elementary, secondary, undergraduate, or postgradu-

ate private school, or other place of education;
“(K) a day care center, senior citizen center, homeless shelter, food

bank, adoption agency, or other social service center establishment; and
“(L) a gymnasium, health spa, bowling alley, golf course, or other

place of exercise or recreation.” §12181(7) (emphasis added).
25 S. Rep. No. 101–116, at 59; H. R. No. 101–485, pt. 2, at 100.

Cite as: 532 U. S. ____ (2001) 15

Opinion of the Court

privilege for which thousands of individuals from the
general public pay, and the latter is one for which they vie.
Martin, of course, is one of those individuals. It would
therefore appear that Title III of the ADA, by its plain
terms, prohibits petitioner from denying Martin equal
access to its tours on the basis of his disability. Cf. Penn-
sylvania Dept. of Corrections v. Yeskey, 524 U. S. 206, 209
(1998) (holding that text of Title II’s prohibition of discrimi-
nation by “public entities” against disabled individuals
“unmistakably includes State prisons and prisoners within
its coverage”).

Petitioner argues otherwise. To be clear about its posi-
tion, it does not assert (as it did in the District Court) that
it is a private club altogether exempt from Title III’s cov-
erage. In fact, petitioner admits that its tournaments are
conducted at places of public accommodation.26 Nor does
petitioner contend (as it did in both the District Court and
the Court of Appeals) that the competitors’ area “behind
the ropes” is not a public accommodation, notwithstanding
the status of the rest of the golf course. Rather, petitioner
reframes the coverage issue by arguing that the competing
golfers are not members of the class protected by Title III
of the ADA.27

According to petitioner, Title III is concerned with dis-
crimination against “clients and customers” seeking to
obtain “goods and services” at places of public accommoda-
— — — — — —

26 Reply Brief for Petitioner 1–2.
27 Martin complains that petitioner’s failure to make this exact argu-

ment below precludes its assertion here. However, the Title III cover-
age issue was raised in the lower courts, petitioner advanced this
particular argument in support of its position on the issue in its pet i-
tion for certiorari, and the argument was fully briefed on the merits by
both parties. Given the importance of the issue, we exercise our discre-
tion to consider it. See Harris Trust and Sav. Bank v. Salomon Smith
Barney Inc., 530 U. S. 238, 245–246, n. 2 (2000); Carlson v. Green, 446
U. S. 14, 17, n. 2 (1980).

16 PGA TOUR, INC. v. MARTIN

Opinion of the Court

tion, whereas it is Title I that protects persons who work
at such places.28 As the argument goes, petitioner oper-
ates not a “golf course” during its tournaments but a
“place of exhibition or entertainment,” 42 U. S. C.
§12181(7)(C), and a professional golfer such as Martin,
like an actor in a theater production, is a provider rather
than a consumer of the entertainment that petitioner sells
to the public. Martin therefore cannot bring a claim under
Title III because he is not one of the “ ‘clients or customers
of the covered public accommodation.’ ”29 Rather, Martin’s
claim of discrimination is “job-related”30 and could only be
brought under Title I— but that Title does not apply be-
cause he is an independent contractor (as the District
Court found) rather than an employee.

The reference to “clients or customers” that petitioner
quotes appears in 42 U. S. C. §12182(b)(1)(A)(iv), which
states: “For purposes of clauses (i) through (iii) of this
subparagraph, the term ‘individual or class of individuals’
refers to the clients or customers of the covered public
accommodation that enters into the contractual, licensing
or other arrangement.” Clauses (i) through (iii) of the
subparagraph prohibit public accommodations from dis-
criminating against a disabled “individual or class of
individuals” in certain ways31 either directly or indirectly
through contractual arrangements with other entities.
Those clauses make clear on the one hand that their pro-
hibitions cannot be avoided by means of contract, while

— — — — — —
28 Brief for Petitioner 10, 11.
29 Id., at 19 (quoting 42 U. S. C. §12182(b)(1)(A)(iv)).
30 Brief for Petitioner 15; see also id., at 16 (Martin’s claim “is nothing

more than a straightforward discrimination-in-the-workplace com-
plaint”).

31 Clause (i) prohibits the denial of participation, clause (ii) participa-
tion in unequal benefits, and clause (iii) the provision of separate
benefits.

Cite as: 532 U. S. ____ (2001) 17

Opinion of the Court

clause (iv) makes clear on the other hand that contractual
relationships will not expand a public accommodation’s
obligations under the subparagraph beyond its own clients
or customers.

As petitioner recognizes, clause (iv) is not literally appli-
cable to Title III’s general rule prohibiting discrimination
against disabled individuals.32 Title III’s broad general
rule contains no express “clients or customers” limitation,
§12182(a), and §12182(b)(1)(A)(iv) provides that its limita-
tion is only “[f]or purposes of” the clauses in that separate
subparagraph. Nevertheless, petitioner contends that
clause (iv)’s restriction of the subparagraph’s coverage to
the clients or customers of public accommodations fairly
describes the scope of Title III’s protection as a whole.

We need not decide whether petitioner’s construction of
the statute is correct, because petitioner’s argument fal-
ters even on its own terms. If Title III’s protected class
were limited to “clients or customers,” it would be entirely
appropriate to classify the golfers who pay petitioner
$3,000 for the chance to compete in the Q-School and, if
successful, in the subsequent tour events, as petitioner’s
clients or customers. In our view, petitioner’s tourna-
ments (whether situated at a “golf course” or at a “place of
exhibition or entertainment”) simultaneously offer at least
two “privileges” to the public— that of watching the golf
competition and that of competing in it. Although the
latter is more difficult and more expensive to obtain than
the former, it is nonetheless a privilege that petitioner
makes available to members of the general public. In
consideration of the entry fee, any golfer with the requisite
letters of recommendation acquires the opportunity to

— — — — — —
32Brief for Petitioner 20 (clause (iv) “applies directly just to subsec-

tion 12182(b)”); Reply Brief for Petitioner 4, n. 1 (clause (iv) “does not
apply directly to the general provision prohibiting discrimination”).

18 PGA TOUR, INC. v. MARTIN

Opinion of the Court

qualify for and compete in petitioner’s tours. Additionally,
any golfer who succeeds in the open qualifying rounds for
a tournament may play in the event. That petitioner
identifies one set of clients or customers that it serves
(spectators at tournaments) does not preclude it from
having another set (players in tournaments) against whom
it may not discriminate. It would be inconsistent with the
literal text of the statute as well as its expansive purpose
to read Title III’s coverage, even given petitioner’s sug-
gested limitation, any less broadly.33

Our conclusion is consistent with case law in the analo-
gous context of Title II of the Civil Rights Act of 1964, 78
Stat. 243, 42 U. S. C. §2000a et seq. Title II of that Act
prohibits public accommodations from discriminating on
the basis of race, color, religion, or national origin.
§2000a(a). In Daniel v. Paul, 395 U. S. 298, 306 (1969),
applying Title II to the Lake Nixon Club in Little Rock,
Arkansas, we held that the definition of a “place of exhibi-

— — — — — —
33 Contrary to the dissent’s suggestion, our view of the Q-School does

not make “everyone who seeks a job” at a public accommodation,
through “an open tryout” or otherwise, “a customer.” Post, at 7 (opinion
of SCALIA, J.). Unlike those who successfully apply for a job at a place
of public accommodation, or those who successfully bid for a contract,
the golfers who qualify for petitioner’s tours play at their own pleasure
(perhaps, but not necessarily, for prize money), and although they
commit to playing in at least 15 tournaments, they are not bound by
any obligations typically associated with employment. See, e.g., App.
260 (trial testimony of PGA commissioner Timothy Finchem) (peti-
tioner lacks control over when and where tour members compete, and
over their manner of performance outside the rules of competition).
Furthermore, unlike athletes in “other professional sports, such as
baseball,” post, at 7, in which players are employed by their clubs, the
golfers on tour are not employed by petitioner or any related organiza-
tions. The record does not support the proposition that the purpose of
the Q-School “is to hire,” ibid., rather than to narrow the field of par-
ticipants in the sporting events that petitioner sponsors at places of
public accommodation.

Cite as: 532 U. S. ____ (2001) 19

Opinion of the Court

tion or entertainment,” as a public accommodation, covered
participants “in some sport or activity” as well as “spectators
or listeners.” We find equally persuasive two lower court
opinions applying Title II specifically to golfers and golf
tournaments. In Evans v. Laurel Links, Inc., 261 F. Supp.
474, 477 (ED Va. 1966), a class action brought to require a
commercial golf establishment to permit black golfers to
play on its course, the District Court held that Title II “is
not limited to spectators if the place of exhibition or enter-
tainment provides facilities for the public to participate in
the entertainment.”34 And in Wesley v. Savannah, 294
F. Supp. 698 (SD Ga. 1969), the District Court found that a
private association violated Title II when it limited entry in
a golf tournament on a municipal course to its own members
but permitted all (and only) white golfers who paid the
membership and entry fees to compete.35 These cases sup-
port our conclusion that, as a public accommodation during
its tours and qualifying rounds, petitioner may not dis-
criminate against either spectators or competitors on the
basis of disability.

V
As we have noted, 42 U. S. C. §12182(a) sets forth Title

III’s general rule prohibiting public accommodations from
discriminating against individuals because of their dis-
abilities. The question whether petitioner has violated
that rule depends on a proper construction of the term
“discrimination,” which is defined by Title III to include:

— — — — — —
34 Title II of the Civil Rights Act of 1964 includes in its definition of

“public accommodation” a “place of exhibition or entertainment” but
does not specifically list a “golf course” as an example. See 42 U. S. C.
§2000a(b).

35 Under petitioner’s theory, Title II would not preclude it from dis-
criminating against golfers on racial grounds. App. 197; Tr. of Oral
Arg. 11–12.

20 PGA TOUR, INC. v. MARTIN

Opinion of the Court

“a failure to make reasonable modifications in poli-
cies, practices, or procedures, when such modifications
are necessary to afford such goods, services, facilities,
privileges, advantages, or accommodations to indi-
viduals with disabilities, unless the entity can demon-
strate that making such modifications would funda-
mentally alter the nature of such goods, services,
facilities, privileges, advantages, or accommodations.”
§12182(b)(2)(A)(ii) (emphasis added).

Petitioner does not contest that a golf cart is a reasonable
modification that is necessary if Martin is to play in its
tournaments. Martin’s claim thus differs from one that
might be asserted by players with less serious afflictions
that make walking the course uncomfortable or difficult,
but not beyond their capacity. In such cases, an accom-
modation might be reasonable but not necessary. In this
case, however, the narrow dispute is whether allowing
Martin to use a golf cart, despite the walking requirement
that applies to the PGA TOUR, the NIKE TOUR, and the
third stage of the Q-School, is a modification that would
“fundamentally alter the nature” of those events.

In theory, a modification of petitioner’s golf tournaments
might constitute a fundamental alteration in two different
ways. It might alter such an essential aspect of the game
of golf that it would be unacceptable even if it affected all
competitors equally; changing the diameter of the hole
from three to six inches might be such a modification.36
Alternatively, a less significant change that has only a
peripheral impact on the game itself might nevertheless
give a disabled player, in addition to access to the competi-
tion as required by Title III, an advantage over others and,
— — — — — —

36 Cf. post, at 11 (SCALIA, J., dissenting) (“I suppose there is some
point at which the rules of a well-known game are changed to such a
degree that no reasonable person would call it the same game”).

Cite as: 532 U. S. ____ (2001) 21

Opinion of the Court

for that reason, fundamentally alter the character of the
competition.37 We are not persuaded that a waiver of the
walking rule for Martin would work a fundamental altera-
tion in either sense.38

As an initial matter, we observe that the us e of carts is
not itself inconsistent with the fundamental character of
the game of golf. From early on, the essence of the game
has been shot-making— using clubs to cause a ball to
progress from the teeing ground to a hole some distance
away with as few strokes as possible. 39 That essential

— — — — — —
37 Accord, post, at 13 (SCALIA, J., dissenting) (“The statute seeks to

assure that a disabled person’s disability will not deny him equal access
to (among other things) competitive sporting events— not that his
disability will not deny him an equal chance to win competitive sporting
events”).

38 As we have noted, the statute contemplates three inquiries:
whether the requested modification is “reasonable,” whether it is
“necessary” for the disabled individual, and whether it would “funda-
mentally alter the nature of” the competition. 42 U. S. C.
§12182(b)(2)(A)(ii). Whether one question should be decided before the
others likely will vary from case to case, for in logic there seems to be
no necessary priority among the three. In routine cases, the fundamen-
tal alteration inquiry may end with the question whether a rule is
essential. Alternatively, the specifics of the claimed disability might be
examined within the context of what is a reasonable or necessary
modification. Given the concession by petitioner that the modification
sought is reasonable and necessary, and given petitioner’s reliance on
the fundamental alteration provision, we have no occasion to consider
the alternatives in this case.

39 Golf is an ancient game, tracing its ancestry to Scotland, and
played by such notables as Mary Queen of Scots and her son James.
That shot-making has been the essence of golf since early in its history
is reflected in the first recorded rules of golf, published in 1744 for a
tournament on the Leith Links in Edinburgh:

“Articles & Laws in Playing at Golf
“1. You must Tee your Ball, within a Club’s length of the [previous]
Hole.
“2. Your Tee must be upon the Ground.
“3. You are not to change the Ball which you Strike off the Tee.

22 PGA TOUR, INC. v. MARTIN

Opinion of the Court

aspect of the game is still reflected in the very first of the
Rules of Golf, which declares: “The Game of Golf consists
in playing a ball from the teeing ground into the hole by a
stroke or successive strokes in accordance with the rules.”
Rule 1–1, Rules of Golf, App. 104 (italics in original). Over
the years, there have been many changes in the players’
equipment, in golf course design, in the Rules of Golf, and
in the method of transporting clubs from hole to hole.40
Originally, so few clubs were used that each player could
carry them without a bag. Then came golf bags, caddies,

— — — — — —
“4. You are not to remove, Stones, Bones or any Break Club for the
sake of playing your Ball, Except upon the fair Green/& that only/
within a Club’s length of your Ball.
“5. If your Ball comes among Water, or any Watery Filth, you are at
liberty to take out your Ball & bringing it behind the hazard and
Teeing it, you may play it with any Club and allow your Adversary a
Stroke for so getting out your Ball.
“6. If your Balls be found anywhere touching one another, You are to
lift the first Ball, till you play the last.
“7. At Holling, you are to play your Ball honestly for the Hole, and, not
to play upon your Adversary’s Ball, not lying in your way to the Hole.
“8. If you should lose your Ball, by its being taken up, or any other
way, you are to go back to the Spot, where you struck last & drop
another Ball, And allow your Adversary a Stroke for the misfortune.
“9. No man at Holling his Ball, is to be allowed, to mark his way to the
Hole with his Club or, any thing else.
“10. If a Ball be stopp’d by any person, Horse, Dog, or any thing else,
The Ball so stop’d must be play’d where it lyes.
“11. If you draw your Club, in order to Strike & proceed so far in the
Stroke, as to be bringing down your Club; If then, your Club shall
break, in, any way, it is to be Accounted a Stroke.
“12. He, whose Ball lyes farthest from the Hole is obliged to play first.
“13. Neither Trench, Ditch, or Dyke, made for the preservation of the
Links, nor the Scholar’s Holes or the Soldier’s Lines, Shall be accounted
a Hazard; But the Ball is to be taken out/Teed/and play’d with any Iron
Club.” K. Chapman, Rules of the Green 14–15 (1997).

40 See generally M. Campbell, The Random House International En-
cyclopedia of Golf 9–57 (1991); Golf Magazine’s Encyclopedia of Golf 1–
17 (2d ed. 1993).

Cite as: 532 U. S. ____ (2001) 23

Opinion of the Court

carts that were pulled by hand, and eventually motorized
carts that carried players as well as clubs. “Golf carts
started appearing with increasing regularity on American
golf courses in the 1950’s. Today they are everywhere.
And they are encouraged. For one thing, they often speed
up play, and for another, they are great revenue produc-
ers.”41 There is nothing in the Rules of Golf that either
forbids the use of carts, or penalizes a player for using a
cart. That set of rules, as we have observed, is widely
accepted in both the amateur and professional golf world
as the rules of the game.42 The walking rule that is con-
tained in petitioner’s hard cards, based on an optional
condition buried in an appendix to the Rules of Golf,43 is
not an essential attribute of the game itself.

Indeed, the walking rule is not an indispensable feature
of tournament golf either. As already mentioned, peti-
tioner permits golf carts to be used in the SENIOR PGA
TOUR, the open qualifying events for petitioner’s tourna-
ments, the first two stages of the Q-School, and, until
1997, the third stage of the Q-School as well. See supra,
— — — — — —

41 Olinger v. United States Golf Assn., 205 F. 3d 1001, 1003 (CA7
2000).

42 On this point, the testimony of the immediate past president of the
USGA (and one of petitioner’s witnesses at trial) is illuminating:

“Tell the court, if you would, Ms. Bell, who it is that plays under
these Rules of Golf . . . ?

“A. Well, these are the rules of the game, so all golfers. These are for
all people who play the game.

“Q. So the two amateurs that go out on the weekend to play golf
together would— would play by the Rules of Golf?

“A. We certainly hope so.
“Q. Or a tournament that is conducted at a private country club for

its members, is it your understanding that that would typically be
conducted under the Rules of Golf?

“A. Well, that’s— that’s right. If you want to play golf, you need to
play by these rules.” App. 239.

43 See n. 3, supra.

24 PGA TOUR, INC. v. MARTIN

Opinion of the Court

at 2–4. Moreover, petitioner allows the use of carts during
certain tournament rounds in both the PGA TOUR and
the NIKE TOUR. See supra, at 4, and n. 6. In addition,
although the USGA enforces a walking rule in most of
the tournaments that it sponsors, it permits carts in
the Senior Amateur and the Senior Women’s Amateur
championships.44

Petitioner, however, distinguishes the game of golf as it
is generally played from the game that it sponsors in the
PGA TOUR, NIKE TOUR, and (at least recently) the last
stage of the Q-School— golf at the “highest level.” Accord-
ing to petitioner, “[t]he goal of the highest-level competi-
tive athletics is to assess and compare the performance of
different competitors, a task that is meaningful only if the
competitors are subject to identical substantive rules.”45
The waiver of any possibly “outcome-affecting” rule for a
contestant would violate this principle and therefore, in
petitioner’s view, fundamentally alter the nature of the
highest level athletic event.46 The walking rule is one
such rule, petitioner submits, because its purpose is “to
inject the element of fatigue into the skill of shot-
making,”47 and thus its effect may be the critical loss of a
stroke. As a consequence, the reasonable modification
Martin seeks would fundamentally alter the nature of
petitioner’s highest level tournaments even if he were the
only person in the world who has both the talent to com-
— — — — — —

44 Furthermore, the USGA’s handicap system, used by over 4 million
amateur golfers playing on courses rated by the USGA, does not con-
sider whether a player walks or rides in a cart, or whether she uses a
caddy or carries her own clubs. Rather, a player’s handicap is deter-
mined by a formula that takes into account the average score in the 10
best of her 20 most recent rounds, the difficulty of the different courses
played, and whether or not a round was a “tournament” event.

45 Brief for Petitioner 13.
46 Id., at 37.
47 994 F. Supp., at 1250.

Cite as: 532 U. S. ____ (2001) 25

Opinion of the Court

pete in those elite events and a disability sufficiently
serious that he cannot do so without using a cart.

The force of petitioner’s argument is, first of all, mit i-
gated by the fact that golf is a game in which it is imposs i-
ble to guarantee that all competitors will play under ex-
actly the same conditions or that an individual’s ability
will be the sole determinant of the outcome. For example,
changes in the weather may produce harder greens and
more head winds for the tournament leader than for his
closest pursuers. A lucky bounce may save a shot or two.48
Whether such happenstance events are more or less prob-
able than the likelihood that a golfer afflicted with Klip-
pel-Trenaunay-Weber Syndrome would one day qualify for
the NIKE TOUR and PGA TOUR, they at least demon-
strate that pure chance may have a greater impact on the
outcome of elite golf tournaments than the fatigue result-
ing from the enforcement of the walking rule.

Further, the factual basis of petitioner’s argument is
undermined by the District Court’s finding that the fa-
tigue from walking during one of petitioner’s 4-day tour-
naments cannot be deemed significant. The District Court
credited the testimony of a professor in physiology and
expert on fatigue, who calculated the calories expended in
walking a golf course (about five miles) to be approxi-
mately 500 calories— “nutritionally . . . less than a Big
Mac.” 994 F. Supp., at 1250. What is more, that energy is
expended over a 5-hour period, during which golfers have
numerous intervals for rest and refreshment. In fact, the
expert concluded, because golf is a low intensity activity,
— — — — — —

48 A drive by Andrew Magee earlier this year produced a result that
he neither intended nor expected. While the foursome ahead of him
was still on the green, he teed off on a 322-yard par four. To his sur-
prise, the ball not only reached the green, but also bounced off Tom
Byrum’s putter and into the hole. Davis, Magee Gets Ace on Par-4,
Ariz. Republic, Jan. 26 2001, p. C16, 2001 WL 8510792.

26 PGA TOUR, INC. v. MARTIN

Opinion of the Court

fatigue from the game is primarily a psychological phe-
nomenon in which stress and motivation are the key
ingredients. And even under conditions of severe heat and
humidity, the critical factor in fatigue is fluid loss rather
than exercise from walking.

Moreover, when given the option of using a cart, the
majority of golfers in petitioner’s tournaments have chosen
to walk, often to relieve stress or for other strategic rea-
sons.49 As NIKE TOUR member Eric Johnson testified,
walking allows him to keep in rhythm, stay warmer when
it is chilly, and develop a better sense of the elements and
the course than riding a cart.50

Even if we accept the factual predicate for petitioner’s
argument— that the walking rule is “outcome affecting”
because fatigue may adversely affect performance— its
legal position is fatally flawed. Petitioner’s refusal to
consider Martin’s personal circumstances in deciding
whether to accommodate his disability runs counter to the
clear language and purpose of the ADA. As previously
stated, the ADA was enacted to eliminate discrimination
against “individuals” with disabilities, 42 U. S. C.
§12101(b)(1), and to that end Title III of the Act requires
without exception that any “policies, practices, or proce-
dures” of a public accommodation be reasonably modified
for disabled “individuals” as necessary to afford access
unless doing so would fundamentally alter what is offered,
§12182(b)(2)(A)(ii). To comply with this command, an
individualized inquiry must be made to determine

— — — — — —
49 That has been so not only in the SENIOR PGA TOUR and the first

two stages of the Q-School, but also, as Martin himself noticed, in the
third stage of the Q-School after petitioner permitted everyone to ride
rather than just waiving the walking rule for Martin as required by the
District Court’s injunction.

50 App. 201. See also id., at 179–180 (deposition testimony of Gerry
Norquist); id., at 225–226 (trial testimony of Harry Toscano).

Cite as: 532 U. S. ____ (2001) 27

Opinion of the Court

whether a specific modification for a particular person’s
disability would be reasonable under the circumstances as
well as necessary for that person, and yet at the same time
not work a fundamental alteration. See S. Rep. No. 101–
116, at 61; H. R. Rep. No. 101–485, pt. 2, at 102 (public
accommodations “are required to make decisions based
on facts applicable to individuals”). Cf. Sutton v. United
Air Lines, Inc., 527 U. S. 471, 483 (1999) (“[W]hether a
person has a disability under the ADA is an individualized
inquiry”).

To be sure, the waiver of an essential rule of competition
for anyone would fundamentally alter the nature of peti-
tioner’s tournaments. As we have demonstrated, however,
the walking rule is at best peripheral to the nature of
petitioner’s athletic events, and thus it might be waived in
individual cases without working a fundamental altera-
tion. Therefore, petitioner’s claim that all the substantive
rules for its “highest-level” competitions are sacrosanct
and cannot be modified under any circumstances is effec-
tively a contention that it is exempt from Title III’s rea-
sonable modification requirement. But that provision
carves out no exemption for elite athletics, and given Title
III’s coverage not only of places of “exhibition or enter-
tainment” but also of “golf course[s],” 42 U. S. C.
§§12181(7)(C), (L), its application to petitioner’s tourna-
ments cannot be said to be unintended or unexpected, see
§§12101(a)(1), (5). Even if it were, “the fact that a statute
can be applied in situations not expressly anticipated
by Congress does not demonstrate ambiguity. It dem-
onstrates breadth.” Pennsylvania Dept. of Corrections
v. Yeskey, 524 U. S., at 212 (internal quotation marks
omitted).51

— — — — — —
51 Hence, petitioner’s questioning of the ability of courts to apply the
reasonable modification requirement to athletic competition is a com-

28 PGA TOUR, INC. v. MARTIN

Opinion of the Court

Under the ADA’s basic requirement that the need of a
disabled person be evaluated on an individual basis, we
have no doubt that allowing Martin to use a golf cart
would not fundamentally alter the nature of petitioner’s
tournaments. As we have discussed, the purpose of the
walking rule is to subject players to fatigue, which in turn
may influence the outcome of tournaments. Even if the
rule does serve that purpose, it is an uncontested finding
of the District Court that Martin “easily endures greater
fatigue even with a cart than his able-bodied competitors
do by walking.” 994 F. Supp., at 1252. The purpose of the
walking rule is therefore not compromised in the slightest
by allowing Martin to use a cart. A modification that
provides an exception to a peripheral tournament rule
without impairing its purpose cannot be said to “funda-
mentally alter” the tournament. What it can be said to do,
on the other hand, is to allow Martin the chance to qualify
for and compete in the athletic events petitioner offers to
— — — — — —
plaint more properly directed to Congress, which drafted the ADA’s
coverage broadly, than to us. Even more misguided is JUSTICE SCALIA’s
suggestion that Congress did not place that inquiry into the hands of
the courts at all. According to the dissent, the game of golf as spon-
sored by petitioner is, like all sports games, the sum of its “arbitrary
rules,” and no one, including courts, “can pronounce one or another of
them to be ‘nonessential’ if the rulemaker (here the PGA TOUR) deems
it to be essential.” Post, at 10–11. Whatever the merit of JUSTICE
SCALIA’s postmodern view of “What Is [Sport],” post, at 10, it is clear
that Congress did not enshrine it in Title III of the ADA. While Con-
gress expressly exempted “private clubs or establishments” and “relig-
ious organizations or entities” from Title III’s coverage, 42 U. S. C.
§12187, Congress made no such exception for athletic competitions,
much less did it give sports organizations carte-blanche authority to
exempt themselves from the fundamental alteration inquiry by deem-
ing any rule, no matter how peripheral to the competition, to be essen-
tial. In short, JUSTICE SCALIA’s reading of the statute renders the word
“fundamentally” largely superfluous, because it treats the alteration of
any rule governing an event at a public accommodation to be a funda-
mental alteration.

Cite as: 532 U. S. ____ (2001) 29

Opinion of the Court

those members of the public who have the skill and desire
to enter. That is exactly what the ADA requires.52 As a
result, Martin’s request for a waiver of the walking rule
should have been granted.

The ADA admittedly imposes some administrative
burdens on the operators of places of public accommoda-
tion that could be avoided by strictly adhering to general
rules and policies that are entirely fair with respect to the
able-bodied but that may indiscriminately preclude access
by qualified persons with disabilities. 53 But surely, in a
case of this kind, Congress intended that an entity like the
PGA not only give individualized attention to the handful
of requests that it might receive from talented but dis-
abled athletes for a modification or waiver of a rule to
allow them access to the competition, but also carefully
weigh the purpose, as well as the letter, of the rule before
determining that no accommodation would be tolerable.

The judgment of the Court of Appeals is affirmed.

It is so ordered.

— — — — — —
52 On this fundamental point, the dissent agrees. See post, at 9 (“The

PGA TOUR cannot deny respondent access to that game because of his
disability”).

53 However, we think petitioner’s contention that the task of assessing
requests for modifications will amount to a substantial burden is
overstated. As Martin indicates, in the three years since he requested
the use of a cart, no one else has sued the PGA, and only two other
golfers (one of whom is Olinger) have sued the USGA for a waiver of the
walking rule. In addition, we believe petitioner’s point is misplaced, as
nowhere in §12182(b)(2)(A)(ii) does Congress limit the reasonable
modification requirement only to requests that are easy to evaluate.

Cite as: 532 U. S. ____ (2001) 1

SCALIA, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________
No. 00–24
_________________

PGA TOUR, INC., PETITIONER v. CASEY MARTIN
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT
[May 29, 2001]

JUSTICE SCALIA, with whom JUSTICE THOMAS joins,
dissenting.

In my view today’s opinion exercises a benevolent com-
passion that the law does not place it within our power to
impose. The judgment distorts the text of Title III, the
structure of the ADA, and common sense. I respectfully
dissent.

I
The Court holds that a professional sport is a place of

public accommodation and that respondent is a “cus-
tome[r]” of “competition” when he practices his profession.
Ante, at 17. It finds, ante, at 18, that this strange concl u-
sion is compelled by the “literal text” of Title III of the
Americans with Disabilities Act of 1990 (ADA), 42 U. S. C.
§12101 et seq., by the “expansive purpose” of the ADA, and
by the fact that Title II of the Civil Rights Act of 1964, 42
U. S. C. §2000a(a), has been applied to an amusement
park and public golf courses. I disagree.

The ADA has three separate titles: Title I covers em-
ployment discrimination, Title II covers discrimination by
government entities, and Title III covers discrimination by
places of public accommodation. Title II is irrelevant to
this case. Title I protects only “employees” of employers
who have 15 or more employees, §§12112(a), 12111(5)(A).
It does not protect independent contractors. See, e.g.,

2 PGA TOUR, INC. v. MARTIN
SCALIA, J., dissenting

Birchem v. Knights of Columbus, 116 F. 3d 310, 312–313
(CA8 1997); cf. Nationwide Mut. Ins. Co. v. Darden, 503
U. S. 318, 322–323 (1992). Respondent claimed employ-
ment discrimination under Title I, but the District Court
found him to be an independent contractor rather than an
employee.

Respondent also claimed protection under §12182 of
Title III. That section applies only to particular places
and persons. The place must be a “place of public accom-
modation,” and the person must be an “individual” seeking
“enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations” of the covered place.
§12182(a). Of course a court indiscriminately invoking the
“sweeping” and “expansive” purposes of the ADA, ante, at
13, 18, could argue that when a place of public accommo-
dation denied any “individual,” on the basis of his disabil-
ity, anything that might be called a “privileg[e],” the indi-
vidual has a valid Title III claim. Cf. ante, at 14. On such
an interpretation, the employees and independent contrac-
tors of every place of public accommodation come within
Title III: The employee enjoys the “privilege” of employ-
ment, the contractor the “privilege” of the contract.

For many reasons, Title III will not bear such an
interpretation. The provision of Title III at issue here
(§12182, its principal provision) is a public-accommodation
law, and it is the traditional understanding of public-
accommodation laws that they provide rights for custom-
ers. “At common law, innkeepers, smiths, and others who
made profession of a public employment, were prohibited
from refusing, without good reason, to serve a customer.”
Hurley v. Irish-American Gay, Lesbian and Bisexual
Group of Boston, Inc., 515 U. S. 557, 571 (1995) (internal
quotation marks omitted). See also Heart of Atlanta Mo-
tel, Inc. v. United States, 379 U. S. 241 (1964). This u n-
derstanding is clearly reflected in the text of Title III
itself. Section 12181(7) lists 12 specific types of entities

Cite as: 532 U. S. ____ (2001) 3
SCALIA, J., dissenting

that qualify as “public accommodations,” with a follow-on
expansion that makes it clear what the “enjoyment of the
goods, services, etc.” of those entities consists of— and it
plainly envisions that the person “enjoying” the “public
accommodation” will be a customer. For example, Title III
is said to cover an “auditorium” or “other place of public
gathering,” §12181(7)(D). Thus, “gathering” is the distinc-
tive enjoyment derived from an auditorium; the persons
“gathering” at an auditorium are presumably covered by
Title III, but those contracting to clean the auditorium are
not. Title III is said to cover a “zoo” or “other place of
recreation,” §12181(7)(I). The persons “recreat[ing]” at a
“zoo” are presumably covered, but the animal handlers
bringing in the latest panda are not. The one place where
Title III specifically addresses discrimination by places
of public accommodation through “contractual” arrange-
ments, it makes clear that discrimination against the
other party to the contract is not covered, but only dis-
crimination against “clients or customers of the covered
public accommodation that enters into the contractual,
licensing or other arrangement.” §12182(b)(1)(A)(iv). And
finally, the regulations promulgated by the Department of
Justice reinforce the conclusion that Title III’s protections
extend only to customers. “The purpose of the ADA’s
public accommodations requirements,” they say, “is to
ensure accessibility to the goods offered by a public ac-
commodation.” 28 CFR, Ch. 1, pt. 36, App. B, p. 650
(2000). Surely this has nothing to do with employees and
independent contractors.

If there were any doubt left that §12182 covers only
clients and customers of places of public accommodation, it
is eliminated by the fact that a contrary interpretation
would make a muddle of the ADA as a whole. The words
of Title III must be read “in their context and with a view
to their place in the overall statutory scheme.” Davis v.
Michigan Dept. of Treasury, 489 U. S. 803, 809 (1989).

4 PGA TOUR, INC. v. MARTIN
SCALIA, J., dissenting

Congress expressly excluded employers of fewer than 15
employees from Title I. The mom-and-pop grocery store or
laundromat need not worry about altering the nonpublic
areas of its place of business to accommodate handicapped
employees— or about the litigation that failure to do so
will invite. Similarly, since independent contractors are
not covered by Title I, the small business (or the large one,
for that matter) need not worry about making special
accommodations for the painters, electricians, and other
independent workers whose services are contracted for
from time to time. It is an entirely unreasonable interpre-
tation of the statute to say that these exemptions so car e-
fully crafted in Title I are entirely eliminated by Title III
(for the many businesses that are places of public accom-
modation) because employees and independent contractors
“enjoy” the employment and contracting that such places
provide. The only distinctive feature of places of public
accommodation is that they accommodate the public, and
Congress could have no conceivable reason for according
the employees and independent contractors of such busi-
nesses protections that employees and independent con-
tractors of other businesses do not enjoy.

The United States apparently agrees that employee
claims are not cognizable under Title III, see Brief for
United States as Amicus Curiae 18–19, n. 17, but despite
the implications of its own regulations, see 28 CFR, Ch. 1,
pt. 36, App. B, p. 650 (2000), appears to believe (though it
does not explicitly state) that claims of independent con-
tractors are cognizable. In a discussion littered with
entirely vague statements from the legislative history, cf.
ante, at 12, the United States argues that Congress pr e-
sumably wanted independent contractors with private
entities covered under Title III because independent con-
tractors with governmental entities are covered by Title II,
see Brief for United States as Amicus Curiae 18, and
n. 17— a line of reasoning that does not commend itself to

Cite as: 532 U. S. ____ (2001) 5
SCALIA, J., dissenting

the untutored intellect. But since the United States does
not provide (and I cannot conceive of) any possible con-
struction of the terms of Title III that will exclude em-
ployees while simultaneously covering independent
contractors, its concession regarding employees effectively
concedes independent contractors as well. Title III applies
only to customers.

The Court, for its part, assumes t hat conclusion for the
sake of argument, ante, at 17, but pronounces respondent
to be a “customer” of the PGA TOUR or of the golf courses
on which it is played. That seems to me quite incredible.
The PGA TOUR is a professional sporting event, staged
for the entertainment of a live and TV audience, the re-
ceipts from whom (the TV audience’s admission price is
paid by advertisers) pay the expenses of the tour, includ-
ing the cash prizes for the winning golfers. The profes-
sional golfers on the tour are no more “enjoying” (the
statutory term) the entertainment that the tour provides,
or the facilities of the golf courses on which it is held, than
professional baseball players “enjoy” the baseball games in
which they play or the facilities of Yankee Stadium. To be
sure, professional ballplayers participate in the games,
and use the ballfields, but no one in his right mind would
think that they are customers of the American League or
of Yankee Stadium. They are themselves the entertain-
ment that the customers pay to watch. And professional
golfers are no different. It makes not a bit of difference,
insofar as their “customer” status is concerned, that the
remuneration for their performance (unlike most of the
remuneration for ballplayers) is not fixed but contingent—
viz., the purses for the winners in the various events, and
the compensation from product endorsements that consis-
tent winners are assured. The compensation of many
independent contractors is contingent upon their suc-
cess— real estate brokers, for example, or insurance
salesmen.

6 PGA TOUR, INC. v. MARTIN
SCALIA, J., dissenting

As the Court points out, the ADA specifically identifies
golf courses as one of the covered places of public accom-
modation. See §12181(7)(L) (“a gymnasium, health spa,
bowling alley, golf course, or other place of exercise or
recreation”); and the distinctive “goo[d], servic[e], facilit[y],
privileg[e], advantag[e], or accommodatio[n]” identified by
that provision as distinctive to that category of place of
public accommodation is “exercise or recreation.” Respon-
dent did not seek to “exercise” or “recreate” at the PGA
TOUR events; he sought to make money (which is why he
is called a professional golfer). He was not a customer
buying recreation or entertainment; he was a professional
athlete selling it. That is the reason (among others) the
Court’s reliance upon Civil Rights Act cases like Daniel v.
Paul, 395 U. S. 298 (1969), see ante, at 18-19, is misplaced.
A professional golfer’s practicing his profession is not
comparable to John Q. Public’s frequenting “a 232-acre
amusement area with swimming, boating, sun bathing,
picnicking, miniature golf, dancing facilities, and a snack
bar.” Daniel, supra, at 301.

The Court relies heavily upon the Q-School. It says that
petitioner offers the golfing public the “privilege” of “com-
peting in the Q-School and playing in the tours; indeed,
the former is a privilege for which thousands of individu-
als from the general public pay, and the latter is one for
which they vie.” Ante, at 14–15. But the Q-School is no
more a “privilege” offered for the general public’s “enjoy-
ment” than is the California Bar Exam.1 It is a competi-

— — — — — —
1The California Bar Exam is covered by the ADA, by the way, be-

cause a separate provision of Title III applies to “examinations . . .
related to applications, licensing, certification, or credentialing for
secondary or post-secondary education, professional, or trade purposes.”
42 U. S. C. §12189. If open tryouts were “privileges” under §12182, and
participants in the tryouts “customers,” §12189 would have been
unnecessary.

Cite as: 532 U. S. ____ (2001) 7
SCALIA, J., dissenting

tion for entry into the PGA TOUR— an open tryout, no
different in principle from open casting for a movie or
stage production, or walk-on tryouts for other professional
sports, such as baseball. See, e.g., Amateurs Join Pros for
New Season of HBO’s “Sopranos,” Detroit News, Dec. 22,
2000, p. 2 (20,000 attend open casting for “The Sopranos”);
Bill Zack, Atlanta Braves, Sporting News, Feb. 6, 1995
(1,300 would-be players attended an open tryout for the
Atlanta Braves). It may well be that some amateur golfers
enjoy trying to make the grade, just as some amateur
actors may enjoy auditions, and amateur baseball players
may enjoy open tryouts (I hesitate to say that amateur
lawyers may enjoy taking the California Bar Exam). But
the purpose of holding those tryouts is not to provide
entertainment; it is to hire. At bottom, open tryouts for
performances to be held at a place of public accommoda-
tion are no different from open bidding on contracts to cut
the grass at a place of public accommodation, or open
applications for any job at a place of public accommoda-
tion. Those bidding, those applying— and those trying
out— are not converted into customers. By the Court’s
reasoning, a business exists not only to sell goods and
services to the public, but to provide the “privilege” of
employment to the public; wherefore it follows, like night
the day, that everyone who seeks a job is a customer.2

— — — — — —
2 The Court suggests that respondent is not an independent contrac-

tor because he “play[s] at [his] own pleasure,” and is not subject to PGA
TOUR control “over [his] manner of performance,” ante, at 18 n. 33.
But many independent contractors— composers of movie music, portrait
artists, script writers, and even (some would say) plumbers— retain at
least as much control over when and how they work as does respon-
dent, who agrees to play in a minimum of 15 of the designated PGA
TOUR events, and to play by the rules that the PGA TOUR specifies.
Cf. Community for Creative Non-Violence v. Reid, 490 U. S. 730, 751-
753 (1989) (discussing independent contractor status of a sculptor).
Moreover, although, as the Court suggests in the same footnote, in rare

8 PGA TOUR, INC. v. MARTIN
SCALIA, J., dissenting

II
Having erroneously held that Title III applies to the

“customers” of professional golf who consist of its practi-
tioners, the Court then erroneously answers— or to be
accurate simply ignores— a second question. The ADA
requires covered businesses to make such reasonable
modifications of “policies, practices, or procedures” as are
necessary to “afford” goods, services, and privileges to
individuals with disabilities; but it explicitly does not
require “modifications [that] would fundamentally alter
the nature” of the goods, services, and privileges.
§12182(b)(2)(A)(ii). In other words, disabled individuals
must be given access to the same goods, services, and
privileges that others enjoy. The regulations state that
Title III “does not require a public accommodation to alter
its inventory to include accessible or special goods with
accessibility features that are designed for, or facilitate
use by, individuals with disabilities.” 28 CFR §36.307
(2000); see also 28 CFR, ch. 1, pt. 36, App. B, p. 650 (2000).
As one Court of Appeals has explained:

“The common sense of the statute is that the con-
tent of the goods or services offered by a place of pub-
lic accommodation is not regulated. A camera store
may not refuse to sell cameras to a disabled person,
but it is not required to stock cameras specially d e-
signed for such persons. Had Congress purposed to
impose so enormous a burden on the retail sector of
the economy and so vast a supervisory responsibility
on the federal courts, we think it would have made its

— — — — — —
cases a PGA TOUR winner will choose to forgo the prize money (in
order, for example, to preserve amateur status necessary for continuing
participation in college play) he is contractually entitled to the prize
money if he demands it, which is all that a contractual relationship
requires.

Cite as: 532 U. S. ____ (2001) 9
SCALIA, J., dissenting

intention clearer and would at least have imposed
some standards. It is hardly a feasible judicial fun c-
tion to decide whether shoestores should sell single
shoes to one-legged persons and if so at what price, or
how many Braille books the Borders or Barnes and
Noble bookstore chains should stock in each of their
stores.” Doe v. Mutual of Omaha Ins. Co., 179 F. 3d
557, 560 (CA7 1999).

Since this is so, even if respondent here is a consumer of
the “privilege” of the PGA TOUR competition, see ante, at
14, I see no basis for considering whether the rules of that
competition must be altered. It is as irrelevant to the PGA
TOUR’s compliance with the statute whether walking is
essential to the game of golf as it is to the shoe store’s
compliance whether “pairness” is essential to the nature of
shoes. If a shoe store wishes to sell shoes only in pairs it
may; and if a golf tour (or a golf course) wishes to provide
only walk-around golf, it may. The PGA TOUR cannot
deny respondent access to that game because of his dis-
ability, but it need not provide him a game different
(whether in its essentials or in its details) from that o f-
fered to everyone else.

Since it has held (or assumed) professional golfers to
be customers “enjoying” the “privilege” that consists of
PGA TOUR golf; and since it inexplicably regards the
rules of PGA TOUR golf as merely “policies, practices, or
procedures” by which access to PGA TOUR golf is pro-
vided, the Court must then confront the question whether
respondent’s requested modification of the supposed pol-
icy, practice, or procedure of walking would “fundamen-
tally alter the nature” of the PGA TOUR game,
§12182(b)(2)(A)(ii). The Court attacks this “funda-
mental alteration” analysis by asking two questions: first,
whether the “essence” or an “essential aspect” of the sport
of golf has been altered; and second, whether the change,

10 PGA TOUR, INC. v. MARTIN
SCALIA, J., dissenting

even if not essential to the game, would give the disabled
player an advantage over others and thereby “fundamen-
tally alter the character of the competition.” Ante, at 20-
21. It answers no to both.

Before considering the Court’s answer to the first ques-
tion, it is worth pointing out that the assumption which
underlies that question is false. Nowhere is it writ that
PGA TOUR golf must be classic “essential” golf. Why
cannot the PGA TOUR, if it wishes, promote a new game,
with distinctive rules (much as the American League
promotes a game of baseball in which the pitcher’s turn at
the plate can be taken by a “designated hitter”)? If mem-
bers of the public do not like the new rules— if they feel
that these rules do not truly test the individual’s skill at
“real golf” (or the team’s skill at “real baseball”) they can
withdraw their patronage. But the rules are the rules.
They are (as in all games) entirely arbitrary, and there is
no basis on which anyone— not even the Supreme Court of
the United States— can pronounce one or another of them
to be “nonessential” if the rulemaker (here the PGA
TOUR) deems it to be essential.

If one assumes, however, that the PGA TOUR has some
legal obligation to play classic, Platonic golf— and if one
assumes the correctness of all the other wrong turns the
Court has made to get to this point— then we Justices
must confront what is indeed an awesome responsibility.
It has been rendered the solemn duty of the Supreme
Court of the United States, laid upon it by Congress in
pursuance of the Federal Government’s power “[t]o regu-
late Commerce with foreign Nations, and among the sev-
eral States,” U. S. Const., Art. I, §8, cl. 3, to decide What Is
Golf. I am sure that the Framers of the Constitution,
aware of the 1457 edict of King James II of Scotland pro-
hibiting golf because it interfered with the practice of
archery, fully expected that sooner or later the paths of
golf and government, the law and the links, would once

Cite as: 532 U. S. ____ (2001) 11
SCALIA, J., dissenting

again cross, and that the judges of this august Court
would some day have to wrestle with that age-old juris-
prudential question, for which their years of study in the
law have so well prepared them: Is someone riding around
a golf course from shot to shot really a golfer? The answer,
we learn, is yes. The Court ultimately concludes, and it
will henceforth be the Law of the Land, that walking is not
a “fundamental” aspect of golf.

Either out of humility or out of self-respect (one or the
other) the Court should decline to answer this incredibly
difficult and incredibly silly question. To say that some-
thing is “essential” is ordinarily to say that it is necessary
to the achievement of a certain object. But since it is the
very nature of a game to have no object except amusement
(that is what distinguishes games from productive activ-
ity), it is quite impossible to say that any of a game’s
arbitrary rules is “essential.” Eighteen-hole golf courses,
10-foot-high basketball hoops, 90-foot baselines, 100-yard
football fields— all are arbitrary and none is essential.
The only support for any of them is tradition and (in more
modern times) insistence by what has come to be regarded
as the ruling body of the sport— both of which factors
support the PGA TOUR’s position in the present case.
(Many, indeed, consider walking to be the central feature
of the game of golf— hence Mark Twain’s classic criticism
of the sport: “a good walk spoiled.”) I suppose there is
some point at which the rules of a well-known game are
changed to such a degree that no reasonable person would
call it the same game. If the PGA TOUR competitors were
required to dribble a large, inflated ball and put it through
a round hoop, the game could no longer reasonably be
called golf. But this criterion— destroying recognizability
as the same generic game— is surely not the test of “essen-
tialness” or “fundamentalness” that the Court applies,
since it apparently thinks that merely changing the di-
ameter of the cup might “fundamentally alter” the game of

12 PGA TOUR, INC. v. MARTIN
SCALIA, J., dissenting

golf, ante, at 20.
Having concluded that dispensing with the walking rule

would not violate federal-Platonic “golf” (and, implicitly,
that it is federal-Platonic golf, and no other, that the PGA
TOUR can insist upon) the Court moves on to the second
part of its test: the competitive effects of waiving this non-
essential rule. In this part of its analysis, the Court first
finds that the effects of the change are “mitigated” by the
fact that in the game of golf weather, a “lucky bounce,”
and “pure chance” provide different conditions for each
competitor and individual ability may not “be the sole
determinant of the outcome.” Ante, at 25. I guess that is
why those who follow professional golfing consider Jack
Nicklaus the luckiest golfer of all time, only to be chal-
lenged of late by the phenomenal luck of Tiger Woods.
The Court’s empiricism is unpersuasive. “Pure chance” is
randomly distributed among the players, but allowing
respondent to use a cart gives him a “lucky” break every
time he plays. Pure chance also only matters at the mar-
gin— a stroke here or there; the cart substantially im-
proves this respondent’s competitive prospects beyond a
couple of strokes. But even granting that there are sig-
nificant nonhuman variables affecting competition, that
fact does not justify adding another variable that always
favors one player.

In an apparent effort to make its opinion as narrow as
possible, the Court relies upon the District Court’s finding
that even with a cart, respondent will be at least as
fatigued as everyone else. Ante, at 28. This, the Court
says, proves that competition will not be affected. Far
from thinking that reliance on this finding cabins the
effect of today’s opinion, I think it will prove to be its most
expansive and destructive feature. Because step one of
the Court’s two-part inquiry into whether a requested
change in a sport will “fundamentally alter [its] nature,”
§12182(b)(2)(A)(ii), consists of an utterly unprincipled

Cite as: 532 U. S. ____ (2001) 13
SCALIA, J., dissenting

ontology of sports (pursuant to which the Court is not even
sure whether golf’s “essence” requires a 3-inch hole), there
is every reason to think that in future cases involving
requests for special treatment by would-be athletes the
second step of the analysis will be determinative. In
resolving that second step— determining whether waiver
of the “nonessential” rule will have an impermissible
“competitive effect”— by measuring the athletic capacity of
the requesting individual, and asking whether the special
dispensation would do no more than place him on a par (so
to speak) with other competitors, the Court guarantees
that future cases of this sort will have to be decided on the
basis of individualized factual findings. Which means that
future cases of this sort will be numerous, and a rich
source of lucrative litigation. One can envision the par-
ents of a Little League player with attention deficit disor-
der trying to convince a judge that their son’s disability
makes it at least 25% more difficult to hit a pitched ball.
(If they are successful, the only thing that could prevent a
court order giving the kid four strikes would be a judicial
determination that, in baseball, three strikes are met a-
physically necessary, which is quite absurd.)

The statute, of course, provides no basis for this ind i-
vidualized analysis that is the Court’s last step on a long
and misguided journey. The statute seeks to assure that a
disabled person’s disability will not deny him equal access
to (among other things) competitive sporting events— not
that his disability will not deny him an equal chance to
win competitive sporting events. The latter is quite im-
possible, since the very nature of competitive sport is the
measurement, by uniform rules, of unevenly distributed
excellence. This unequal distribution is precisely what
determines the winners and losers— and artificially to
“even out” that distribution, by giving one or another
player exemption from a rule that emphasizes his par-
ticular weakness, is to destroy the game. That is why the

14 PGA TOUR, INC. v. MARTIN
SCALIA, J., dissenting

“handicaps” that are customary in social games of golf—
which, by adding strokes to the scores of the good players
and subtracting them from scores of the bad ones, “even
out” the varying abilities— are not used in professional
golf. In the Court’s world, there is one set of rules that is
“fair with respect to the able-bodied” but “individualized”
rules, mandated by the ADA, for “talented but disabled
athletes.” Ante, at 29. The ADA mandates no such ri-
diculous thing. Agility, strength, speed, balance, quick-
ness of mind, steadiness of nerves, intensity of concentra-
tion— these talents are not evenly distributed. No wild-
eyed dreamer has ever suggested that the managing bod-
ies of the competitive sports that test precisely these
qualities should try to take account of the uneven distribu-
tion of God-given gifts when writing and enforcing the
rules of competition. And I have no doubt Congress did
not authorize misty-eyed judicial supervision of such a
revolution.

* * *
My belief that today’s judgment is clearly in error

should not be mistaken for a belief that the PGA TOUR
clearly ought not allow respondent to use a golf cart. That
is a close question, on which even those who compete in
the PGA TOUR are apparently divided; but it is a different
question from the one before the Court. Just as it is a
different question whether the Little League ought to give
disabled youngsters a fourth strike, or some other waiver
from the rules that makes up for their disabilities. In both
cases, whether they ought to do so depends upon (1) how
central to the game that they have organized (and over
whose rules they are the master) they deem the waived
provision to be, and (2) how competitive— how strict a test
of raw athletic ability in all aspects of the competition—
they want their game to be. But whether Congress has
said they must do so depends upon the answers to the
legal questions I have discussed above— not upon what

Cite as: 532 U. S. ____ (2001) 15
SCALIA, J., dissenting

questions I have discussed above— not upon what this
Court sententiously decrees to be “decent, tolerant,
[and] progressive,” ante, at 13 (quoting Board of Trustees
of Univ. of Ala. v. Garrett, 531 U. S. 356, 375 (2001)
(KENNEDY, J., concurring)).

And it should not be assumed that today’s decent, toler-
ant, and progressive judgment will, in the long run, accrue
to the benefit of sports competitors with disabilities. Now
that it is clear courts will review the rules of sports for
“fundamentalness,” organizations that value their auton-
omy have every incentive to defend vigorously the neces-
sity of every regulation. They may still be second-guessed
in the end as to the Platonic requirements of the sport, but
they will assuredly lose if they have at all wavered in their
enforcement. The lesson the PGA TOUR and other sports
organizations should take from this case is to make sure
that the same written rules are set forth for all levels of
play, and never voluntarily to grant any modifications.
The second lesson is to end open tryouts. I doubt that, in
the long run, even disabled athletes will be well served by
these incentives that the Court has created.

Complaints about this case are not “properly directed
to Congress,” ante, at 27-28, n. 51. They are properly
directed to this Court’s Kafkaesque determination that
professional sports organizations, and the fields they rent
for their exhibitions, are “places of public accommodation”
to the competing athletes, and the athletes themselves
“customers” of the organization that pays them; its Alice
in Wonderland determination that there are such things
as judicially determinable “essential” and “nonessential”
rules of a made-up game; and its Animal Farm determina-
tion that fairness and the ADA mean that everyone gets
to play by individualized rules which will assure that no
one’s lack of ability (or at least no one’s lack of ability
so pronounced that it amounts to a disability) will be a
handicap. The year was 2001, and “everybody was finally

16 PGA TOUR, INC. v. MARTIN
SCALIA, J., dissenting

equal.” K. Vonnegut, Harrison Bergeron, in Animal Farm
and Related Readings 129 (1997).

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U.S. Supreme Court

HONIG v. DOE, 484 U.S. 305 (1988)

484 U.S. 305

HONIG, CALIFORNIA SUPERINTENDENT OF PUBLIC INSTRUCTION v. DOE ET
AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT

No. 86-728.

Argued November 9, 1987
Decided January 20, 1988

In order to assure that States receiving federal financial assistance will provide a “free
appropriate public education” for all disabled children, including those with serious emotional
disturbances, the Education of the Handicapped Act (EHA or Act) establishes a comprehensive
system of procedural safeguards designed to provide meaningful parental participation in all
aspects of a child’s educational placement, including an opportunity for an impartial due process
hearing with respect to any complaints such parents have concerning their child’s placement, and
the right to seek administrative review of any decisions they think inappropriate. If that review
proves unsatisfactory, either the parents or the local educational agency may file a civil action in
any state or federal court for “appropriate” relief. 20 U.S.C. 1415(e)(2). The Act’s “stay-put”
provision directs that a disabled child “shall remain in [his or her] then current educational
placement” pending completion of any review proceedings, unless the parents and state or local
educational agencies otherwise agree. 1415(e)(3). Respondents Doe and Smith, who were
emotionally disturbed students, were suspended indefinitely for violent and disruptive conduct
related to their disabilities, pending the completion of expulsion proceedings by the San
Francisco Unified School District (SFUSD). After unsuccessfully protesting the action against
him, Doe filed a suit in Federal District Court, in which Smith intervened, alleging that the
suspension and proposed expulsion violated the EHA, and seeking injunctive relief against
SFUSD officials and petitioner, the State Superintendent of Public Instruction. The court entered
summary judgment for respondents on their EHA claims and issued a permanent injunction. The
Court of Appeals affirmed with slight modifications.

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Held:

1. The case is moot as to respondent Doe, who is n ow 24 years old, since the Act limits eligibility to disabled chi ldren
between the ages of 3 and 21. However, the case is justiciable with respect to respondent Smith, who continues to be
eligible for EHA educational services since he is currently on ly 20 and has not yet completed high school. This Court has
jurisdiction since there is a reasonable likelihood that Smith [484 U.S. 305, 306] will again suffer th e deprivation of EHA-
mandated rights that gave rise to this suit. Given the evidence that he is unable to conform his conduct to socially acceptable
norms, and the absence of any suggestion that he has overcome his behavioral problems, it is reasonable to expect that he
will again engage in aggressive and disruptive classroom misconduct. Moreover, it is unreasonable to suppose that any
future educational placement will so perfectly suit his emotional and academic needs that further disruptions on his part are
improbable. If Smith does repeat the objectionable conduct, it is likely that he will again be subjected to the same type of
unilateral school action in any Californ ia school district in which he is enro lled, in light of the lack of a statewide policy
governing local school responses to disability-related misconduct, and petitioner’s insistence that all local school districts
retain residual authority to exclude disab led children for dangerous cond uct. In light of the ponderou sness of review
procedures under the Act, and the fact that an aggrieved student will often be finished with school or otherwise ineligible for
EHA protections by the time review can be had in this Cou rt, the conduct Smith complained o f is “capable of repetition, yet
evading review.” Thus his EHA claims are not moot. Pp. 317-323.

2. The “stay-put” provision prohibits state or local school authorities from unilaterally excluding disabled children from the
classroom for dangerous or disruptive conduct growing out of their disabilities during the pendency of review proceedings.
Section 1415(e)(3) is unequivocal in its mandate that “the child shall remain in the then current educational placement”
(emphasis added), and demonstrates a congressional intent to strip schools of the unilateral authority they had traditionally
employed to exclude disabled students, particularly emotionally disturbed students, from school. This Court will not rewrite
the statute to infer a “dangerousness” exception on the basis of obviousness or congressional inadvertence, since, in drafting
the statute, Congress devoted close attention to Mills v. Board of Education of District of Columbia, 348 F. Supp. 866, and
Pennsylvania Assn. for Retarded Children v. Pennsylvania, 334 F. Supp. 1257, and 343 F. Supp. 279, thereby establishing
that the omission of an emergency exception for dangerous stud ents was intentional. However, Congress did n ot leave
school administrators powerless to deal with such students, since implementing regulations allow the use of normal,
nonplacement-changing procedures, including temporary suspensions for up to 10 schooldays for students posi ng an
immediate threat to others’ safety, while the Act allows for interim placements where parents and school officials are able to
agree, [484 U.S. 305, 307] and authorizes officials to file a 1415(e)(2) suit for “appropriate” injunctive relief where such an
agreement cannot be reached. In such a suit, 1415(e)(3) effectively creates a presumption in favor of the child’s current
educational placement which school officials can rebut only by showing that maintaining the current placement is
substantially likely to result in injury to the student or to others. Here, the District Court properly balanced respondents’
interests under the Act against the state and local school officials’ safety interest, and both lower courts pro perly construed
and applied 1415(e)(3), except insofar as the Court of Appeals held that a suspension exceeding 10 schooldays does not
constitute a prohibited change in placement. The Court of Appeals’ judgment is modified to that extent. Pp. 323-328.

3. Insofar as the Court of Appeals’ judgment affirmed the District Cou rt’s order directing the State to provid e services
directly to a disabled child where the local agency has failed to do so, that judgment is affirmed by an equally divided Court.
Pp. 328-329.

793 F.2d 1470, affirmed.

BRENNAN, J., delivered the opinion of the Court as to holdings number 1 and 2 above, in which REHNQUIST, C. J., and
WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. REHNQUIST, C. J., filed a concurring opinion, post, p. 329.
SCALIA, J., filed a dissenting opinion, in which O’CONNOR, J., joined, post, p. 332.

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Asher Rubin, Deputy Attorney General of California, argued the cause for p etitioner. With him on the briefs were John K. V an
de Kamp, Attorney General, Charlton G. Holland, Assistant Attor ney General, and John Davidson, Supervisi ng Deputy Attorney
General.

Glen D. Nager argued the cause pro hac vice for the United States as amicus curiae urging reversal. With him on the brief were
Solicitor General Fried, Assistant Attorney General Reynolds, Dep uty Solicitor General Ayer, Deputy Assistant Attorney General
Carvin, Walter W. Barnett, Dennis J. Dimsey, and Wendell L. Willkie.

Sheila Brogna argued the cause for respondents. With her on the brief were William J. Taylor and Toby Fishbein Rubin. *

[ Footnote * ] Briefs of amici curiae urging reversal were filed for the Davis Joint Unified School District et al. by Charles R.
Mack; for the National School [484 U.S. 305, 308] Boards Association by Gwendolyn H. Gregory and August W. Steinhilber;
for the National School Safety Center et al. by James A. Rapp, Donn a Clontz, and Jane Slenkovich; and for the San Francisco
Unified School District by Louise H. Renne and Thomas M. Berliner.

Briefs of amici curiae urging affirmance were filed for the American Association on Mental Deficiency et al. by Norman S.
Rosenberg and Janet Stotland; for the National Association of Protection and Advocacy Systems et al. by Marilyn Holle; and for
the Center for Law and Education, Inc., et al.

Briefs of amici curiae were filed for Senator Chafee et al. by Arlene Brynne Mayerson; and for the Legal Aid Society of the City
of New York, Juvenile Rights Division, by Henry S. Weintraub. [484 U.S. 305, 308]

JUSTICE BRENNAN delivered the opinion of the Court.

As a condition of federal financial assistance, the Education of the Handicapped Act requires
States to ensure a “free appropriate public education” for all disabled children within their
jurisdictions. In aid of this goal, the Act establishes a comprehensive system of procedural
safeguards designed to ensure parental participation in decisions concerning the education of
their disabled children and to provide administrative and judicial review of any decisions with
which those parents disagree. Among these safeguards is the so-called “stay-put” provision,
which directs that a disabled child “shall remain in [his or her] then current educational
placement” pending completion of any review proceedings, unless the parents and state or local
educational agencies otherwise agree. 20 U.S.C. 1415(e)(3). Today we must decide whether, in
the face of this statutory proscription, state or local school authorities may nevertheless
unilaterally exclude disabled children from the classroom for dangerous or disruptive conduct
growing out of their disabilities. In addition, we are called upon to decide whether a district court
may, in the exercise of its equitable powers, order a State to provide educational services directly
to a disabled child when the local agency fails to do so. [484 U.S. 305 , 309]

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In the Education of the Handicapped Act (EHA or the Act), 84 Stat. 175, as amended, 20 U.S.C.
1400 et seq., Congress sought “to assure that all handicapped children have available to them . . .

a free appropriate public education which emphasizes special education and related services
designed to meet their unique needs, [and] to assure that the rights of handicapped children and
their parents or guardians are protected.” 1400(c). When the law was passed in 1975, Congress
had before it ample evidence that such legislative assurances were sorely needed: 21 years after

this Court declared education to be “perhaps the most important function of state and local
governments,” Brown v. Board of Education, 347 U.S. 483, 493 (1954), congressional studies

revealed that better than half of the Nation’s 8 million disabled children were not receiving
appropriate educational services. 1400(b)(3). Indeed, one out of every eight of these children was

excluded from the public school system altogether, 1400(b)(4); many others were simply
“warehoused” in special classes or were neglectfully shepherded through the system until they
were old enough to drop out. See H. R. Rep. No. 94-332, p. 2 (1975). Among the most poorly

served of disabled students were emotionally disturbed children: Congressional statistics
revealed that for the school year immediately preceding passage of the Act, the educational needs
of 82 percent of all children with emotional disabilities went unmet. See S. Rep. No. 94-168, p. 8

(1975) (hereinafter S. Rep.).

Although these educational failings resulted in part from funding constraints, Congress
recognized that the problem reflected more than a lack of financial resources at the state and local
levels. Two federal-court decisions, which the Senate Report characterized as “landmark,” see
id., at 6, demonstrated that many disabled children were excluded pursuant to state statutes or
local rules and policies, typically without [484 U.S. 305 , 310] any consultation with, or even notice
to, their parents. See Mills v. Board of Education of District of Columbia, 348 F. Supp. 866 (DC
1972); Pennsylvania Assn. for Retarded Children v. Pennsylvania, 334 F. Supp. 1257 (ED Pa.
1971), and 343 F. Supp. 279 (1972) (PARC). Indeed, by the time of the EHA’s enactment,
parents had brought legal challenges to similar exclusionary practices in 27 other States. See S.
Rep., at 6.

In responding to these problems, Congress did not content itself with passage of a simple funding
statute. Rather, the EHA confers upon disabled students an enforceable substantive right to
public education in participating States, see Board of Education of Hendrick Hudson Central
School Dist. v. Rowley, 458 U.S. 176 (1982), 1 and conditions federal financial assistance upon
a State’s compliance with the substantive and procedural goals of the Act. Accordingly, States

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seeking to qualify for federal funds must develop policies assuring all disabled children the “right
to a free appropriate public education,” and must file with the Secretary of [484 U.S. 305, 311]
Education formal plans mapping out in detail the programs, procedures, and timetables under
which they will effectuate these policies. 20 U.S.C. 1412(1), 1413(a). Such plans must assure
that, “to the maximum extent appropriate,” States will “mainstream” disabled child ren, i. e., that
they will educate them with children who are not disabled, and that they will segregate or
otherwise remove such children from the regular classroom setting “only when the nature or
severity of the handicap is such that education in regular classes . . . cannot be achieved
satisfactorily.” 1412(5).

The primary vehicle for implementing these congressional goals is the “individualized
educational program” (IEP), which the EHA mandates for each disabled child. Prepared at
meetings between a representative of the local school district, the child’s teacher, the parents or
guardians, and, whenever appropriate, the disabled child, the IEP sets out the child’s present
educational performance, establishes annual and short-term objectives for improvements in that
performance, and describes the specially designed instruction and services that will enable the
chil d to m eet those obje ctiv es. 1 401( 19). The IEP must be reviewed and, where necessa ry,
revised at least once a year in order to ensure that local agencies tailor the statutorily required
“free appropriate public education” to each child’s unique needs. 1414(a)(5).

Envisioning the IEP as the centerpiece of the statute’s education delivery system for disabled
children, and aware that schools had all too often denied such children appropriate educations
without in any way consulting their parents, Congress repeatedly emphasized throughout the Act
the importance and indeed the necessity of parental participation in both the development of the
IEP and any subsequent assessments of its effectiveness. See 1400(c), 1401(19), 1412(7),
1415(b)(1)(A), (C), (D), (E), and 1415(b)(2). Accordingly, the Act establishes various procedural
safeguards that guarantee parents both an opportunity for meaningful input into all decisions
affecting their child’s education and the right [484 U.S. 305 , 312] to seek review of any decisions
they think inappropriate. These safeguards include the right to examine all relevant records
pertaining to the identification, evaluation, and educational placement of their child; prior written
notice whenever th e responsible edu cational agency proposes (or refuses) to change th e child’s
placement or program; an opportunity to present complaints concerning any aspect of the local
agency’s provision of a free appropriate public education; and an opportunity for “an impartial
due process hearing” with respect to any such complaints. 1415(b)(1), (2).

At the conclusion of any such hearing, both the parents and the local educational agency may
seek further administrative review and, where that proves unsatisfactory, may file a civil action in

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any state or federal court. 1415(c), (e)(2). In addition to reviewing the administrative record,
courts are empowered to take additional evidence at the request of either party and to “grant such
relief as [they] determine[] is appropriate.” 1415(e)(2). The “stay-put” provision at issue in this
case governs the placement of a child while these often lengthy review procedures run their
course. It directs that:

“During the pendency of any proceedings conducted pursuant to [ 1415], unless the State or
local educational agency and the parents or guardian otherwise agree, the child shall remain
in the then current educational placement of such child . . . .” 1415(e)(3).

The present dispute grows out of the efforts of certain officials of the San Francisco Unified
School District (SFUSD) to expel two emotionally disturbed children from school indefinitely
for violent and disruptive conduct related to their disabilities. In November 1980, respondent
John Doe assaulted another student at the Louise Lombard School, a developmental center for
disabled children. Doe’s April 1980 IEP identified him as a socially and physically awkward 17-
year-old who experienced considerable difficulty controlling his impulses and anger. Among the
goals set out in his IEP was “[i]mprovement in [his] ability to relate to [his] [484 U.S. 305, 313]
peers [and to] cope with frustrating situations without resorting to aggressive acts.” App. 17.
Frustrating situations, however, were an unfortunately prominent feature of Doe’s school career:
physical abnormalities, speech difficulties, and poor grooming habits had made him the target of
teasing and ridicule as early as the first grade, id., at 23; his 1980 IEP reflected his continuing
difficulties with peers, noting that his social skills had deteriorated and that he could tolerate only
minor frustration before exploding. Id., at 15-16.

On November 6, 1980, Doe responded to the taunts of a fellow student in precisely the explosive
manner anticipated by his IEP: he choked the student with sufficient force to leave abrasions on
the child’s neck, and kicked out a school window while being escorted to the principal’s office
afterwards. Id., at 208. Doe admitted his misconduct and the school subsequently suspended him
for five days. Thereafter, his principal referred the matter to the SFUSD Student Placement
Committee (SPC or Committee) with the recommendation that Doe be expelled. On the day the
suspension was to end, the SPC notified Doe’s mother that it was proposing to exclude her child
permanently from SFUSD and was therefore extending his suspension until such time as the
expulsion proceedings were completed. 2 The Committee further advised her that she was
entitled to attend the November 25 hearing at which it planned to discuss the proposed expulsion.

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After unsuccessfully protesting these actions by letter, Doe brought this suit against a host of
local school officials [484 U.S. 305 , 314] and the State Superintendent of Public Instruction.
Alleging that the suspension and proposed expulsion violated the EHA, he sought a temporary
restraining order canceling the SPC hearing and requiring school officials to convene an IEP
meeting. The District Judge granted the requested injunctive relief and further ordered defendants
to provide home tutoring for Doe on an interim basis; shortly thereafter, she issued a preliminary
injunction directing defendants to return Doe to his then current educational placement at Louise
Lombard School pending completion of the IEP review process. Doe reentered school on
December 15, 5 1/2 weeks, and 24 schooldays, after his initial suspension.

Respondent Jack Smith was identified as an emotionally disturbed child by the time he entered
the second grade in 1976. School records prepared that year indicated that he was unable “to
control verbal or physical outburst[s]” and exhibited a “[s]evere disturbance in relationships with
peers and adults.” Id., at 123. Further evaluations subsequently revealed that he had been
physically and emotional ly abused as an infant and young chi ld and that, despi te above average
intelligence, he experienced academic and social difficulties as a result of extreme hyperactivity
and low self-esteem. Id., at 136, 139, 155, 176. Of particular concern was Smith’s propensity for
verbal hostility; one evaluator noted that the child reacted to stress by “attempt[ing] to cover his
feelings of low self worth through aggressive behavior[,] . . . primarily verbal provocations.” Id.,
at 136.

Based on these evaluations, SFUSD placed Smith in a learning center for emotionally disturbed
children. His grandparents, however, believed that his needs would be better served in the public
school setting and, in September 1979, the school district acceded to their requests and enrolled
him at A. P. Giannini Middle School. His February 1980 IEP recommended placement in a
Learning Disability Group, stressing the need for close supervision and a highly structured
environment. Id., at 111. Like earlier evaluations, [484 U.S. 305 , 315] the February 1980 IEP noted
that Smith was easily distracted, impulsive, and anxious; it therefore proposed a half-day
schedule and suggested that the placement be undertaken on a trial basis. Id., at 112, 115.

At the beginning of the next school year, Smith was assigned to a full-day program; almost
immediately thereafter he began misbehaving. School officials met twice with his grandparents
in October 1980 to discuss returning him to a half-day program; although the grandparents
agreed to the reduction, they apparently were never apprised of their right to challenge the
decision through EHA procedures. The school officials also warned them that if the child
continued his disruptive behavior – which included stealing, extorting money from fellow

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students, and making sexual comments to female classmates – they would seek to expel him. On
November 14, they made good on this threat, suspending Smith for five days after he made
further lewd comments. His principal referred the matter to the SPC, which recommended
exclusion from SFUSD. As it did in John Doe’s case, the Committee scheduled a hearing and
extended the suspension indefinitely pending a final disposition in the matter. On November 28,
Smith’s counsel protested these actions on grounds essentially identical to those raised by Doe,
and the SPC agreed to cancel the hearing and to return Smith to a half-day program at A. P.
Giannini or to provide home tutoring. Smith’s grandparents chose the latter option and the school
began home instruction on December 10; on January 6, 1981, an IEP team convened to discuss
alternative placements.

After learning of Doe’s action, Smith sought and obtained leave to intervene in the suit. The
District Court subsequently entered summary judgment in favor of respondents on their EHA
claims and issued a permanent injunction. In a series of decisions, the District Judge found that
the proposed expulsions and indefinite suspensions of respondents for conduct attributable to
their disabilities deprived [484 U.S. 305 , 316] them of their congressionally mandated right to a free
appropriate public education, as well as their right to have that education provided in accordance
with the procedures set out in the EHA. The District Judge therefore permanently enjoined the
school district from taking any disciplinary action other than a 2- or 5-day suspension against any
disabled child for disability-related misconduct, or from effecting any other change in the
educational placement of any such child without parental consent pending completion of any
EHA proceedings. In addition, the judge barred the State from authorizing unilateral placement
changes and directed it to establish an EHA compliance-monitoring system or, alternatively, to
enact guidelines governing local school responses to disability-related misconduct. Finally, the
judge ordered the State to provide services directly to disabled children when, in any individual
case, the State determined that the local educational agency was unable or unwilling to do so.

On appeal, the Court of Appeals for the Ninth Circuit affirmed the orders with slight
modifications. Doe v. Maher, 793 F.2d 1470 (1986). Agreeing with the District Court that an
indefinite suspension in aid of expulsion constitutes a prohib ited “change in placement” under
1415(e)(3), the Court of Appeals held that the stay-put provision admitted of no “dangerousness”
exception and that the statute therefore rendered invalid those provisions of the California
Education Code permitting the indefinite suspension or expulsion of disabled children for
misconduct arising out of their disabilities. The court concluded, however, that fixed suspensions
of up to 30 schooldays did not fall within the reach of 1415(e)(3), and therefore upheld recent
amendments to the state Education Code authorizing such suspensions. 3 Lastly, the court [484

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U.S. 305, 317] affirmed that portion of the injunction requiring the State to provide services directly
to a disabled child when the local educational agency fails to do so.

Petitioner Bill Honig, California Superintendent of Public Instruction, 4 sought review in this
Court, claiming that the Court of Appeals’ construction of the stay-put provision conflicted with
that of several other Courts of Appeals which had recognized a dangerousness exception,
compare Doe v. Maher, supra (case below), with Jackson v. Franklin County School Board, 765
F.2d 535, 538 (CA5 1985); Victoria L. v. District School Bd. of Lee County, Fla., 741 F.2d 369,
374 (CA11 1984); S-1 v. Turlington, 635 F.2d 342, 348, n. 9 (CA5), cert. denied, 454 U.S. 1030
(1981), and that the direct services ruling placed an intolerable burden on the State. We granted
certiorari to resolve these questions, 479 U.S. 1084 (1987), and now affirm.

At the outset, we address the suggestion, raised for the first time during oral argument, that this
case is moot. 5 Under Article III of the Constitution this Court may only adjudicate actual,

ongoing controversies. Nebraska Press Assn. v. Stuart, 427 U.S. 539, 546 (1976); Preiser v.
Newkirk, 422 U.S. 395, 401 (1975). That the dispute between the parties was very much alive

when suit was filed, or at the time the Court of Appeals rendered its judgment, cannot substitute
for the actual case or controversy that an exercise of this Court’s jurisdiction requires. Steffel v.
Thompson, [484 U.S. 305 , 318] 415 U.S. 452, 459 , n. 10 (1974); Roe v. Wade, 410 U.S. 113, 125

(1973). In the present case, we have jurisdiction if there is a reasonable likelihood that
respondents will again suffer the deprivation of EHA-mandated rights that gave rise to this suit.
We believe that, at least with respect to respondent Smith, such a possibility does in fact exist

and that the case therefore remains justiciable.

Respondent John Doe is now 24 years old and, accordingly, is no longer entitled to the
protections and benefits of the EHA, which limits eligibility to disabled children between the
ages of 3 and 21. See 20 U.S.C. 1412(2)(B). It is clear, therefore, that whatever rights to state
educational services he may yet have as a ward of the State, see Tr. of Oral Arg. 23, 26, the Act
would not govern the State’s provision of those services, and thus the case is moot as to him.
Respondent Jack Smith, however, is currently 20 and has not yet completed high school.
Although at present he is not faced with any proposed expulsion or suspension proceedings, and
indeed no longer even resides within the SFUSD, he remains a resident of California and is
entitled to a “free appropriate public education” within that State. His claims under the EHA,
therefore, are not moot if the conduct he originally complained of is “`capable of repetition, yet
evading review.'” Murphy v. Hunt, 455 U.S. 478, 482 (1982). Given Smith’s continued eligibility

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for educational services under the EHA, 6 the nature of his disability, and petitioner’s [484 U.S.
305, 319] insistence that all local school districts retain residual authority to exclude disabled
children for dangerous conduct, we have little difficulty concluding that there is a “reasonable
[484 U.S. 305 , 320] expectation,” ibid., that Smith would once again be subjected to a unilateral
“change in placement” for conduct growing out of his disabilities were it not for the statewide
injunctive relief issued below.

Our cases reveal that, for purposes of assessing the likelihood that state authorities will reinflict a
given injury, we generally have been unwilling to assume that the party seeking relief will repeat
the type of misconduct that would once again place him or her at risk of that injury. See Los
Angeles v. Lyons, 461 U.S. 95, 105 -106 (1983) (no threat that party seeking injunction barring
police use of chokeholds would be stopped again for traffic violation or other offense, or would
resist arrest if stopped); Murphy v. Hunt, supra, at 484 (no reason to believe that party
challenging denial of pretrial bail “will once again be in a position to demand bail”); O’Shea v.
Littleton, 414 U.S. 488, 497 (1974) (unlikely that parties challenging discriminatory bond-
setting, sentencing, and jury-fee practices would again violate valid criminal laws). No such
reluctance, however, is warranted here. It is respondent Smith’s very inability to conform his
conduct to socially acceptable norms that renders him “handicapped” within the meaning of the
EHA. See 20 U.S.C. 1401(1); 34 CFR 300.5(b)(8) (1987). As noted above, the record is replete
with evidence that Smith is unable to govern his aggressive, impulsive behavior – indeed, his
notice of suspension ackn owledged t hat “J ack’s actio ns see m beyon d his contr ol.” A pp. 152. In
the absence of any suggestion that respondent has overcome his earlier difficulties, it is certainly
reasonable to ex pect, based on his prior history of behavi oral problems, t hat he will again engage
in classroom misconduct. Nor is it reasonable to suppose that Smith’s future educational
placement will so perfectly suit his emotional and academic needs that further disruptions on his
part are improbable. Although JUSTICE SCALIA suggests in his dissent, post, at 338, that
school officials are unlikely to place Smith in a setting where they cannot control his
misbehavior, any efforts [484 U.S. 305 , 321] to ensure such total control must be tempered by the
school system’s statutory obligations to provide respondent with a free appropriate public
education in “the least restrictive environment,” 34 CFR 300.552(d) (1987); to educate him, “to
the maximum extent appropriate,” with children who are not disabled, 20 U.S.C. 1412(5); and to
consult with hi s parents or guardian s, and presumabl y with respondent him self, before choos ing a
placement. 1401(19), 1415 (b). Indeed, it is only by ignoring these mandates, as well as
Congress’ unquestioned desire to wrest from school officials their former unilateral authority to
determine the placement of emotionally disturbed children, see infra, at 323-324, that the dissent
can so readily assume that respondent’s future placement will satisfactorily prevent any further

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dangerous conduct on his part. Overarching these statutory obligations, moreover, is the
inescapable fact that the preparation of an IEP, like any other effort at predicting human
behavior, is an inexact science at best. Given the unique circumstances and context of this case,
therefore, we think it reasonable to expect that respondent will again engage in the type of
misconduct that precipitated this suit.

We think it equally probable that, should he do so, respondent will again be subjected to the
same unilateral school action for which he initially sought relief. In this regard, it matters not that
Smith no longer resides within the SFUSD. While the actions of SFUSD officials first gave rise
to this litigation, the District Judge expressly found that the lack of a state policy governing local
school responses to disability-related misconduct had led to, and would continue to result in,
EHA violations, and she therefore enjoined the state defendant from authorizing, among other
things, unilateral placement changes. App. 247-248. She of course also issued injunctions
directed at the local defendants, but they did not seek review of those orders in this Court. Only
petitioner, the State Superintendent of Public Instruction, has invoked our jurisdiction, and he
now urges us to hold that [484 U.S. 305 , 322] local school districts retain unilateral authority under
the EHA to suspend or otherwise remove disabled children for dangerous conduct. Given these
representations, we have every reason to believe that were it not for the injunction barring
petitioner from authorizing such unilateral action, respondent would be faced with a real and
substantial threat of such action in any California school district in which he enrolled. Cf. Los
Angeles v. Lyons, supra, at 106 (respondent lacked standing to seek injunctive relief because he
could not plausibly allege that police officers choked all persons whom they stopped, or that the
city “authorized police officers to act in such manner” (emphasis added)). Certainly, if the
SFUSD’s past practice of unilateral exclusions was at odds with state policy and the practice of
local school districts generally, petitioner would not now stand before us seeking to defend the
right of all local school districts to engage in such aberrant behavior. 7

We have previously noted that administrative and judicial review under the EHA is often
“ponderous,” Burlington School Committee v. Massachusetts Dept. of Education, 471 U.S. 359,
370 (1985), and this case, which has taken seven years to reach us, amply confirms that
observation. For obvious reasons, the misconduct of an emotionally disturbed or otherwise
disabled child who has not yet reached adolescence typically will not pose such a serious threat
to the well-being of other students that school officials can only ensure classroom safety by
excluding the child. Yet, the adolescent student improperly disciplined for misconduct that does
pose such a threat will often be finished with school or otherwise [484 U.S. 305 , 323] ineligible for
EHA protections by the time review can be had in this Court. Because we believe that respondent

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Smith has demonstrated both “a sufficient likelihood that he will again be wronged in a similar
way,” Los Angeles v. Lyons, 461 U.S., at 111 , and that any resulting claim he may have for
relief will surely evade our review, we turn to the merits of his case.

III

The language of 1415(e)(3) is unequivocal. It states plainly that during the pendency of any
proceedings initiated under the Act, unless the state or local educational agency and the parents

or guardian of a disabled child otherwise agree, “the child shall remain in the then current
educational placement.” 1415(e)(3) (emphasis added). Faced with this clear directive, petitioner
asks us to read a “dangerousness” exception into the stay-put provision on the basis of either of
two essentially inconsistent assumptions: first, that Congress thought the residual authority of

school officials to exclude dangerous students from the classroom too obvious for comment; or
second, that Congress inadvertently failed to provide such authority and this Court must therefore
remedy the oversight. Because we cannot accept either premise, we decline petitioner’s invitation

to rewrite the statute.

Petitioner’s arguments proceed, he suggests, from a simple, commonsense proposition: Congress
could not have intended the stay-put provision to be read literally, for such a construction leads to
the clearly unintended, and untenable, result that school districts must return violent or dangerous
students to school while the often lengthy EHA proceedings run their course. We think it clear,
however, that Congress very much meant to strip schools of the unilateral authority they had
traditionally employed to exclude disabled students, particularly emotionally disturbed students,
from school. In so doing, Congress did not leave school administrators powerless to deal with
dangerous students; it did, however, deny school officials their former right to “self-help,” and
directed [484 U.S. 305 , 324] that in the future the removal of disabled students could be
accomplished only with the permission of the parents or, as a last resort, the courts.

As noted above, Congress passed the EHA after finding that school systems across the country
had excluded one out of every eight disabled children from classes. In drafting the law, Congress
was largely guided by the recent decisions in Mills v. Board of Education of District of
Columbia, 348 F. Supp. 866 (1972), and PARC, 343 F. Supp. 279 (1972), bot h of which
involved the exclusion of hard-to-handle disabled students. Mills in particular demonstrated the
extent to which schools used disciplinary measures to bar children from the classroom. There,
school officials had labeled four of the seven minor plaintiffs “behavioral problems,” and had
excluded them from classes without providing any alternative education to them or any notice to
their parents. 348 F. Supp., at 869-870. After finding that this practice was not limited to the

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named plaintiffs but affected in one way or another an estimated class of 12,000 to 18,000
disabled students, id., at 868-869, 875, the District Court enjoined future exclusions,
suspensions, or expulsions “on grounds of discipline.” Id., at 880.

Congress attacked such exclusionary practices in a variety of ways. It required participating
States to educate all disabled children, regardless of the severity of their disabilities, 20 U.S.C.
1412(2)(C), and included within the definition of “handicapped” those children with serious
emotional disturbances. 1401(1). It further provided for meaningful parental participation in all
aspects of a child’s educational placement, and barred schools, through the stay-put provision,
from changing that placement over the parent’s objection until all review proceedings were
completed. Recognizing that those proceedings might prove long and tedious, the Act’s drafters
did not intend 1415(e)(3) to operate inflexibly, see 121 Cong. Rec. 37412 (1975) (remarks of
Sen. Stafford), and they therefore allowed for interim placements where parents [484 U.S. 305, 325]
and school officials are able to agree on one. Conspicuously absent from 1415(e)(3), however, is
any emergency exception for dangerous students. This absence is all the more telling in light of
the injunctive decree issued in PARC, which permitted school officials unilaterally to remove
students in “`extraordinary circumstances.'” 343 F. Supp., at 301. Given the lack of any similar
exception in Mills, and the close attention Congress devoted to these “landmark” decisions, see
S. Rep., at 6, we can only conclude that the omission was intentional; we are therefore not at
liberty to engraft onto the statute an exception Congress chose not to create.

Our conclusion that 1415(e)(3) means what it says does not leave educators hamstrung. The
Department of Education has observed that, “[w]hile the [child’s] placement may not be changed
[during any complaint proceeding], this does not preclude the agency from using its normal
procedures for dealing with children who are endangering themselves or others.” Comment
following 34 CFR 300.513 (1987). Such procedures may include the use of study carrels, time-
outs, detention, or the restriction of privileges. More drastically, where a student poses an
immediate threat to the safety of others, officials may temporarily suspend him or her for up to
10 schooldays. 8 This authority, which respondent [484 U.S. 305 , 326] in no way disputes, not only
ensures that school administrators can protect the safety of others by promptly removing the most
dangerous of students, it also provides a “cooling down” period during which officials can
initiate IEP review and seek to persuade the child’s parents to agree to an interim placement. And
in those cases in which the parents of a truly dangerous child adamantly refuse to permit any
change in placement, the 10-day respite gives school officials an opportunity to invoke the aid of
the courts under 1415(e)(2), which empowers courts to grant any appropriate relief.

Petitioner contends, however, that the availability of judicial relief is more illusory than real,

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because a party seeking review under 1415(e)(2) must exhaust time-consuming administrative
remedies, and because under the Court of Appeals’ construction of 1415(e)(3), courts are as
bound by the stay-put provision’s “automatic injunction,” 793 F.2d, at 1486, as are schools. 9 It is
true that judi cial review is norm ally [484 U.S. 305 , 327] not available under 1415(e)(2) until all
administrative proceedings are completed, but as we have previously noted, parents may bypass
the administrative process where exhaustion would be futile or inadequate. See Smith v.
Robinson, 468 U.S. 992, 1014 , n. 17 (1984) (citing cases); see also 121 Cong. Rec. 37416
(1975) (remarks of Sen. Williams) (“[E]xhaustion . . . should not be required . . . in cases where
such exhausti on would be futil e either as a legal or pract ical matter”). Wh ile many of the EHA’s
procedural safeguards protect the rights of parents and children, schools can and do seek redress
through the administrative review process, and we have no reason to believe that Congress meant
to require schools alone to exhaust in all cases, no matter how exigent the circumstances. The
burden in such cases, of course, rests with the school to demonstrate the futility or inadequacy of
administrative review, but nothing in 1415(e)(2) suggests that schools are completely barred
from attempting to make such a showing. Nor do we think that 1415(e)(3) operates to limit the
equitable powers of district courts such that they cannot, in appropriate cases, temporarily enjoin
a dangerous disabled child from attending school. As the EHA’s legislative history makes clear,
one of the evils Congress sought to remedy was the unilateral exclusion of disabled children by
schools, not courts, and one of the purposes of 1415(e)(3), therefore, was “to prevent school
officials from removing a child from the regular public school classroom over the parents’
objection pending completion of the review proceedings.” Burlington School Committee v.
Massachusetts Dept. of Education, 471 U.S., at 373 (emphasis added). The stay-put provision in
no way purports to limit or pre-empt the authority conferred on courts by 1415(e)(2), see Doe v.
Brookline School Committee, 722 F.2d 910, 917 (CA1 1983); indeed, it says nothing whatever
about judicial power. [484 U.S. 305 , 328]

In short, then, we believe that school officials are entitled to seek injunctive relief under
1415(e)(2) in appropriate cases. In any such action, 1415(e)(3) effectively creates a presumption
in favor of the child’s current educational placement which school officials can overcome only by
showing that maintaining the child in his or her current placement is substantially likely to result
in injury either to himself or herself, or to others. In the present case, we are satisfied that the
District Court, in enjoining the state and local defendants from indefinitely suspending
respondent or otherwise unilaterally altering his then current placement, properly balanced
respondent’s interest in receiving a free appropriate public education in accordance with the
procedures and requirements of the EHA against the interests of the state and local school
officials in maintaining a safe learning environment for all their students. 10

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We believe the courts below properly construed and applied 1415(e)(3), except insofar as the
Court of Appeals held that a suspension in excess of 10 schooldays does not constitute [484 U.S.

305, 329] a “change in placement .” 11 We therefore affirm the Court of Appeals’ judgment on this
issue as modified herein. Because we are equally divided on the question whether a court may

order a State to provide services directly to a disabled child where the local agency has failed to
do so, we affirm the Court of Appeals’ judgment on this issue as well.

Affirmed.

Footnotes

[ Footnote 1 ] Congress’ earlier efforts to ensure that disabled students received adequate public education had failed in part
because the measures it adopted were largely hortatory. In the 19 66 amendments to the Elementary and Secondary Educatio n Act
of 1965, Congress established a grant program “for the purpose of assisting the States in the initiation, expansion, and
improvement of programs and projects . . . for the education of handicapped children.” Pub. L. 89-750, 161, 80 Stat. 1204. It
repealed that program four years l ater and repla ced it with the o riginal versio n of the Educa tion of the Han dicapped Act, Pub. L.
91-230, 84 Stat. 17 5, Part B of which contained a similar grant pro gram. Neither statute, however, provided specific guidan ce as
to how States were to use the funds, nor did they condition the availability of the grants on compliance with any procedural or
substantive safeguards. In amending the EHA to its presen t form, Congress rejected its earlier policy of “merely establish[ing] an
unenforceable goal requiring all children to be in school.” 121 Cong. Rec. 37417 (1975) (remarks of Sen. Schweiker). Today, all
50 States and the District of Columbia receive funding assistance under the EHA. U.S. Dept. of Education, Ninth Annual Report
to Congress on Implementation of Education of the Handicapped Act (1987).

[ Footnote 2 ] California law at the time empowered school principals to suspend students for no more th an five consecutive
schooldays, Cal. Educ. Code Ann. 48903(a) (West 1978), but permitted school districts seeking to expel a suspended student to
“extend the suspension until such time as [expulsion proceedings were completed]; provided, that [it] has determined that the
presence of the pupil at the school o r in an alternative school placement would cause a d anger to persons or property or a threat
of disrupting the instructional process.” 48903(h). The State subsequently amended the law to permit school districts to impose
longer initial periods of suspension. See n. 3, infra.

[ Footnote 3 ] In 1983, the State amended its Education Code to permit school districts to impose initial suspensions of 20, and
in certain circumstances, 30 schooldays. Cal. Ed uc. Code Ann. 48912(a), 4 8903 (West Supp. 1988 ). The legislature did not alter
the indefinite suspension auth ority which the [484 U.S. 305, 317] SPC exercised in this case, but simply incorp orated the earlier
provision into a new section. See 48911(g).

[ Footnote 4 ] At the time respondent Doe initiated this suit, Wilson Riles was the California Superintendent of Public
Instruction. Petitioner Honig succeeded him in office.

[ Footnote 5 ] We note that both petition er and respondents believe that thi s case presents a live controversy. See Tr. of Oral
Arg. 6, 27-31. Only the United States, appearing as amicus curiae, urges that the case is presently nonjusticiable. Id., at 21.

[ Footnote 6 ] Notwithstanding respondent’s undisputed right to a free appropriate public education in California, JUSTICE
SCALIA argues in dissent that there is no “demonstrated probability” that Smith will actually avail himself of that right because

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his counsel was unable to st ate affirmatively duri ng oral argument that her clien t would seek to r eenter the stat e school system.
See post, at 337. We believe the dissent overstates the stringency of the “capable of repetition” test. Although JUSTICE SCALIA
equates “reasonable expectation” with “demonstrated probability,” the very case he cites for this proposition described these
standards in the disjunctive, see Murphy v. Hunt, 455 U.S., at 482 (“[T]here must be a `reasonable expectation’ or a
`demonstrated probability’ that the same controversy will [484 U.S. 305, 319] recur” (emphasis added)), and in numerous cases
decided both before and since Hunt we have found controversies capable of repetition based on expectations that, while
reasonable, were hardly demonstrably probable. See, e. g., Burlington Northern R. Co. v. Maintenance of Way Employes, 481
U.S. 429, 436 , n. 4 (1987) (parties “reasonably likely” to find themselves in future disputes over collective-bargaining
agreement); California Coastal Comm’n v. Granite Rock Co., 480 U.S. 572, 578 (1987) (O’CONNOR, J.) (“likely” that
respondent would again submit mining p lans that would trigger contested state permit requ irement); Press-Enterprise Co. v.
Superior Court of Cal., Riverside County, 478 U.S. 1, 6 (1986) (“It can reasonably be assumed” that newspaper publisher will be
subjected to similar closure order in the future); Globe Newspaper Co. v. Superior Court of Norfolk County, 457 U.S. 596, 603
(1982) (same); United States Parole Comm’n v. Geraghty, 445 U.S. 388, 398 (1980) (case not moot where l itigant “faces some
likelihood of becoming involved in same controversy in the future”) (dicta). Our concern in these cases, as in all others involving
potentially moot claims, was whether the controversy was capable of repetition an d not, as the dissent seems to insist, whether
the claimant had demonstrated that a recurrence of the d ispute was more probable than not. Regard less, then, of whether
respondent has establish ed with mathematica l precision t he likelihoo d that he will en roll in pub lic school d uring the nex t two
years, we think the re is at the very least a reasonable exp ectation tha t he will exercise h is rights und er the EHA. In th is regard, we
believe respondent’s actions over the course of the last seven years speak louder than his counsel’s momentary equivocation
during oral argument. Since 1980, he has sought to vindicate his right to an appropriate public education that is not only free of
charge, but also free from the threat that school officials will unilaterally change his placement or exclude him from class
altogether. As a disabled young man, he has as at least as great a need of a high school education and diploma as any of his peers,
and his counsel advises us that he is awaiting the outcome of this case to decide whether to pursue his degree. Tr. Oral Arg. 23-
24. Under these circumstances, we think it not only counterintuitive but also u nreasonable to assume that responden t will forgo
the exercise of a right that he has for so long sought to defend. Certainly we have as much reason to expect that respondent will
reenter the California school system as we had to assume that Jane Roe would again both have an unwanted pregnancy and wish
to exercise her right to an abortion. See Roe v. Wade, 410 U.S. 113, 125 (1973).

[ Footnote 7 ] Petitioner concedes that t he school district “made a number of procedural mistakes in i ts eagerness to protect other
students from Doe and Smith.” Reply Brief for Petitioner 6. According to petitioner, however, unilaterally excluding respondents
from school was not among them; indeed, petitioner insists that the SFUSD acted prop erly in removing respondents and urges
that the stay-put provision “shoul d not be interpreted to requ ire a school district to maintain such d angerous children with other
children.” Id., at 6-7.

[ Footnote 8 ] The Department of Education has adopted the position first espoused in 1980 by its Office of Civil Rights that a
suspension of up to 10 schooldays does not amount to a “change in placement” prohibited by 1415(e)(3). U.S. Dept. of
Education, Office of Special Education Programs, Policy Letter (Feb. 26, 1987), Ed. for Handicapped L. Rep. 211:437 (1987).
The EHA nowhere defines the phrase “change in placement,” nor does the statute’s structure or legislative history provide any
guidance as to how the term applies to fixed suspensions. Given this ambiguity, we defer to the construction adopted by the
agency charged with monitoring and enforcing the statute. See INS v. Cardoza-Fonseca, 480 U.S. 421, 448 (1987). Moreover,
the agency’s position comports fully with the purposes of the statute: Congress sought to prevent schools from permanently and
unilaterally excluding disabled children by means of indefinite suspensions and [484 U.S. 305, 326] expulsions; the power to
impose fixed suspensions of short duratio n does not carry the potential for total exclu sion that Congress found so ob jectionable.
Indeed, despite its broad injunction, the District Court in Mills v. Board of Education of District of Columbia, 348 F. Supp. 866
(DC 1972), recognized th at school offici als could sus pend disabl ed children on a short-t erm, temporary basi s. See id, at 88 0. Cf.
Goss v. Lopez, 419 U.S. 565, 574 -576 (1975) (suspension of 10 schooldays or more works a sufficient deprivation of property
and liberty interests to trigger the protectio ns of the Due Process Clause). Because we believe the agency correctly determined
that a suspension in excess of 10 days does constitute a prohibited “change in placement,” we conclude that the Court of Appeals

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erred to the extent it approved suspensions of 20 and 30 days’ duration.

[ Footnote 9 ] Petitioner also notes that in California, schools may not suspend any given student for more than a total of 20, and
in certain special circumstances 30, schooldays in a single year, see Cal. Educ. Code Ann. 48903 (West Supp. 1988); he argues,
therefore, that a school district may not have the option of imposing a 10-day suspension when dealing with an obstreperous
child whose previous suspensions for the year total 18 or 19 days. The fact remains, however, that state law does not define the
scope of 1415(e)(3). There may be cases in which a suspension that is otherwise valid under the stay-put provision would violate
local law. The effect [484 U.S. 305, 327] of such a violat ion, however, is a question of state law upon which we express n o view.

[ Footnote 10 ] We therefore reject the United States’ contention that the District Judge abused her discretion in enjoining the
local school officials from indefinitely suspending respondent pending completion of the expulsion proceedings. Contrary to the
Government’s suggestion, the District Judge did not view herself bound to enjoin any and all violations of the stay-put provision,
but rather, consistent with the analysis we set out ab ove, weighed the relative harms to the parties and found that the balance
tipped decidedly in favor of respondent. App. 222-223. We of course do not sit to review the factual determinations underlying
that conclusion. We do note, however, that in balancing the parties’ respective in terests, the District Judge gave proper
consideration to respond ent’s rights under the EHA. While the Government complain s that the District Court indulged an
improper presumption of irreparable harm to resp ondent, we do not believe that scho ol officials can escape the presumptive
effect of the stay-put provision simply by violating it and forcing parents to petition for relief. In any suit brought by parents
seeking injunctive relief for a violation of 1415 (e)(3), the burden rests with the scho ol district to demonstrate that the edu cational
status quo must be altered.

[ Footnote 11 ] See n. 8, supra.

CHIEF JUSTICE REHNQUIST, concurring.

I write separately on the mootness issue in this case to explain why I have joined Part II of the
Court’s opinion, and why I think reconsideration of our mootness jurisprudence may be in order
when dealing with cases decided by this Court.

The present rule in federal cases is that an actual controversy must exist at all stages of appellate
review, not merely at the time the complaint is filed. This doctrine was clearly articulated in
United States v. Munsingwear, Inc., 340 U.S. 36 (1950), in which Justice Douglas noted that
“[t]he established practice of the Court in dealing with a civil case from a court in the federal
system which has become moot while on its way here or pending our decision on the merits is to
reverse or vacate the judgment below and remand with a direction to dismiss.” Id., at 39. The rule
has been followed fairly consistently over the last 30 years. See, e. g., Preiser v. Newkirk, 422
U.S. 395 (1975); SEC v. Medical Committee for Human Rights, 404 U.S. 403 (1972).

All agree that this case was “very much alive,” ante, at 317, when the action was filed in the
District Court, and very probably when the Court of Appeals decided the case. It is supervening
events since the decision of the Court of Appeals which have caused the dispute between the
majority and the dissent over whether this case is moot. Therefore, all that the Court actually

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holds is that these supervening events do [484 U.S. 305, 330] not deprive this Court of the
authority to hear the case. I agree with that holding, and would go still further in the direction of
relaxing the test of mootness where the events giving rise to the claim of mootness have occurred
after our decision to grant certiorari or to note probable jurisdiction.

The Court implies in its opinion, and the dissent expressly states, that the mootness doctrine is
based upon Art. III of the Constitution. There is no doubt that our recent cases have taken that
position. See Nebraska Press Assn. v. Stuart, 427 U.S. 539, 546 (1976); Preiser v. Newkirk,
supra, at 401; Sibron v. New York, 392 U.S. 40, 57 (1968); Liner v. Jafco, Inc., 375 U.S. 301,
306 , n. 3 (1964). But it seems very doubtful that the earliest case I have found discussing
mootness, Mills v. Green, 159 U.S. 651 (1895), was premised on constitutional constraints;
Justice Gray’s opinion in that case nowhere mentions Art. III.

If it were indeed Art. III which – by reason of its requirement of a case or controversy for the
exercise of federal judicial power – underlies the mootness doctrine, the “capable of repetition,
yet evading review” exception relied upon by the Court in this case would be incomprehensible.
Article III extends the judicial power of the United States only to cases and controversies; it does
not except from this requirement other lawsuits which are “capable of repetition, yet evading
review.” If our mootness doctrine were forced upon us by the case or controversy requirement of
Art. III itself, we would have no more power to decide lawsuits which are “moot” but which also
raise questions which are capable of repetition but evading review than we would to decide cases
which are “moot” but raise no such questions.

The exception to mootness for cases which are “capable of repetition, yet evading review,” was
first stated by this Court in Southern Pacific Terminal Co. v. ICC, 219 U.S. 498 (1911). There
the Court enunciated the exception in the light of obvious pragmatic considerations, with no
mention of Art. III as the principle underlying the mootness doctrine: [484 U.S. 305, 331]

“The questions involved in the orders of the Interstate Commerce Commission are usually
continuing (as are manifestly those in the case at bar) and their consideration ought not to be,
as they might be, defeated, by short term orders, capable of repetition, yet evading review,
and at one time the Government and at another time the carriers have their rights determined
by the Commission without a chance of redress.” Id., at 515.

The exception was explained again in Moore v. Ogilvie, 394 U.S. 814, 816 (1969):

“The problem is therefore `capable of repetition, yet evading review.’ The need for its
resolution thus reflects a continuing controversy in the federal-state area where our `one man,

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one vote’ decisions have thrust” (citation omitted).

It is also worth noting that Moore v. Ogilvie involved a question which had been mooted by an
election, just as did Mills v. Green some 74 years earlier. But at the time of Mills, the case
originally enunciating the mootness doctrine, there was no thought of any exception for cases
which were “capable of repetition, yet evadin g review.”

The logical conclusion to be drawn from these cases, and from the historical development of the
principle of mootness, is that while an unwillingness to decide moot cases may be connected to
the case or controversy requirement of Art. III, it is an attenuated connection that may be
overridden where there are strong reasons to override it. The “capable of repetition, yet evading
review” exception is an example. So too is our refusal to dismiss as moot those cases in which
the defendant voluntarily ceases, at some advanced stage of the appellate proceedings, whatever
activity prompted th e plaintiff to seek an injunction. See, e. g., City of Mesquit e v. Aladdin’s
Castle, Inc., 455 U.S. 283, 289 , n. 10 (1982); United States v. W. T. Grant Co., 345 U.S. 629,
632 (1953). I believe that we should adopt an additional exception to our [484 U.S. 305, 332]
present mootness doctrine for those cases where the events which render the case moot have
supervened since our grant of certiorari or noting of probable jurisdiction in the case. Dissents
from denial of certiorari in this Court illustrate the proposition that the roughly 150 or 160 cases
which we decide each year on the merits are less than the number of cases warranting review by
us if we are to remain, as Chief Justice Taft said many years ago, “the last word on every
important issue under the Constitution and the statutes of the United States.” But these unique
resources – the time spent preparing to decide the case by reading briefs, hearing oral argument,
and conferring – are squandered in every case in which it becomes apparent after the decisional
process is underway that we may not reach the question presented. To me the unique and
valuable ability of this Court to decide a case – we are, at present, the only Art. III court which
can decide a federal question in such a way as to bind all other courts – is a sufficient reason
either to abandon the doctrine of mootness altogether in cases which this Court has decided to
review, or at least to relax the doctrine of mootness in such a manner as the dissent accuses the
majority of doing here. I would leave the mootness doctrine as established by our cases in full
force and effect when applied to the earlier stages of a lawsuit, but I believe that once this Court
has undertaken a consideration of a case, an exception to that principle is just as much warranted
as where a case is “capabl e of repetition, yet evadi ng review.”

JUSTICE SCALIA, with whom JUSTICE O’CONNOR joins, dissenting.

Without expressing any views on the merits of this case, I respectfully dissent because in my

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opinion we have no authority to decide it. I think the controversy is moot.

The Court correctly acknowledges that we have no power under Art. III of the Constitution to
adjudicate a case that no [484 U.S. 305, 333] longer presents an actual, ongoing dispute between
the named parties. Ante, at 317, citing Nebraska Press Assn. v. Stuart, 427 U.S. 539, 546 (1976);

Preiser v. Newkirk, 422 U.S. 395, 401 (1975). Here, there is obviously no present controversy
between the parties, since both respondents are no longer in school and therefore no longer
subject to a unilateral “change in placement.” The Court concedes mootness with respect to

respondent John Doe, who is now too old to receive the benefits of the Education of the
Handicapped Act (EHA). Ante, at 318. It concludes, however, that the case is not moot as to
respondent Jack Smith, who has two more years of eligibility but is no longer in the public

schools, because the controversy is “capable of repetition, yet evading review.” Ante, at 318-323.

Jurisdiction on the basis that a dispute is “capable of repetition, yet evading review” is limited to
the “exceptional situatio[n],” Los Angeles v. Lyons, 461 U.S. 95, 109 (1983), where the
following two circumstances simultaneously occur: “`(1) the challenged action [is] in its duration
too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable
expectation th at the same compla ining party would be sub jected to the same ac tion again.'”
Murphy v. Hunt, 455 U.S. 478, 482 (1982) (per curiam), quoting Weinstein v. Bradford, 423
U.S. 147, 149 (1975) (per curiam). The second of these requirements is not met in this case.

For there to be a “reasonable expectation” that Smith will be subjected to the same action again,
that event must be a “demonstrated probability.” Murphy v. Hunt, supra, at 482, 483; Weinstein
v. Bradford, supra, at 149. I am surprised by the Court’s contention, fraught with potential for
future mischief, that “reasonable expectation” is satisfied by something less than “demonstrated
probability.” Ante, at 318-319, n. 6. No one expects that to happen which he does not think
probable; and his expectation cannot be shown to be reasonable unless the probability is
demo nstrated. Th us, a s the Cour t not es, o ur cases recit e the two descriptions sid e by [484 U.S.
305, 334] side (“a `reasonable expectation’ or a `demonstrated probability,'” Hunt, supra, at 482).
The Court asserts, however, that these standards are “described . . . in the disjunctive,” ante, at
318-319, n. 6 – evidently believing that the conjunction “or” has no accepted usage except a
disjunctive one, i. e., “expressing an alternative, contrast, or opposition,” Webster’s Third New
International Dictionary 651 (1981). In fact, however, the conjunction is often used “to indicate .
. . (3) the synonymous, equivalent, or substitutive character of two words or phrases ; (4)

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correction or greater exactness of phrasing or meaning .” Id., at 1585. It is obvious that in saying
“a reasonable expectation or a demonstrated probability” we have used the conjunction in one of
the latter, or nondisjunctive, senses. Otherwise (and according to the Court’s exegesis), we would
have been saying that a controversy is sufficiently likely to recur if either a certain degree of
probability exists or a higher degree of probability exists. That is rather like a statute giving the
vote to persons who are “18 or 21.” A bare six years ago, the author of today’s opinion and one
other Member of the majority plainly understood “reasonable expectation” and “demonstrated
probability” to be synonymous. Cf. Edgar v. MITE Corp., 457 U.S. 624, 662 , and n. 11 (1982)
(MARSHALL, J., dissenting, joined by BRENNAN, J.) (using the two terms here at issue
interchangeably, and concluding that the case is moot because “there is no demonstrated
probability that the State will have occasion to prevent MITE from making a takeover offer for
some other corporation”) (emphasis added).

The prior holdings cited by the Court in a footnote, see ante, at 319, n. 6, offer no support for the
novel prop osition that less than a p robab ility of recu rrenc e is su ffici ent to avoi d mootness. In
Burlington Northern R. Co. v. Maintenance of Way Employes, 481 U.S. 429, 436 , n. 4 (1987),
we found [484 U.S. 305, 335] that the same railroad and union were “reasonably likely” to find
themselves in a recurring dispute over the same issue. Similarly, in California Coastal Comm’n v.
Granite Rock Co., 480 U.S. 572, 578 (1987), we found it “likely” that the plaintiff mining
company would submit new plans which the State would seek to subject to its coastal permit
requ irem ents . See Webs ter’s Thi rd New Inte rnational Di ctio nary 1310 ( 1981 ) (defini ng “likel y”
as “of such a nature or so circumstanced as to make something probable[;] . . . seeming to justify
belief or expectation[;] . . . in all probability”). In the cases involving exclusion orders issued to
prevent the press from attending criminal trials, we found that “[i]t can reasonably be assumed”
that a news organization covering the area in which the defendant court sat will again be
subjected to that court’s closure rules. Press-Enterprise Co. v. Superior Court of Cal., Riverside
County, 478 U.S. 1, 6 (1986); Globe Newspaper Co. v. Superior Court of Norfolk County, 457
U.S. 596, 603 (1982). In these and other cases, one may quarrel, perhaps, with the accuracy of the
Court’s probability assessment; but there is no doubt that assessment was regarded as necessary
to establish jurisdiction.

In Roe v. Wade, 410 U.S. 113, 125 (1973), we found that the “human gestation period is so short
that the pregnancy will come to term before the usual appellate process is complete,” so that
“pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will
be effectively denied.” Roe, at least one other abortion case, see Doe v. Bolton, 410 U.S. 179,
187 (1973), and some of our election law decisions, see Rosario v. Rockefeller, 410 U.S. 752,

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756 , n. 5 (1973); Dunn v. Blumstein, 405 U.S. 330, 333 , n. 2 (1972), differ from the body of our
mootness jurisprudence not in accepting less than a probability that the issue will recur, in a
manner evading review, between the same parties; but in dispensing with the same-party
requirement entirely, focusing instead upon the great likelihood that the issue will recur between
the defendant and the other members [484 U.S. 305, 336] of the public at large without ever
reaching us. Arguably those cases have been limited to their facts, or to the narrow areas of
abortion and election rights, by our more recent insistence that, at least in the absence of a class
action, the “capable of repetition” doctrine applies only where “there [is] a r̀easonable
expectation'” that the “same complaining party” would be subjected to the same action again.
Hunt, 455 U.S., at 482 (emphasis added), quoting Weinstein, 423 U.S., at 149 ; see Burlington
Northern R. Co., supra, at 436, n. 4; Illinois Elections Bd. v. Socialist Workers Party, 440 U.S.
173, 187 (1979). If those earlier cases have not been so limited, however, the conditions for their
application do not in any event exist here. There is no extraordinary improbability of the present
issue’s reaching us as a traditionally live controversy. It would have done so in this very case if
Smith had not chosen to leave public school. In sum, on any analysis, the proposition the Court
asserts in the present case – that probability need not be shown in order to establish the “same-
party-recurrence” exception to mootness – is a significant departure from settled law.

If our established mode of analysis were followed, the conclusion that a live controversy exists in
the present case would require a demonstrated probability that all of the following events will

occur: (1) Smith will return to public school; (2) he will be placed in an educational setting that
is unable to tolerate his dangerous behavior; (3) he will again engage in dangerous behavior; and

(4) local school officials will again attempt unilaterally to change his placement and the state
defendants will fail to prevent such action. The Court spends considerable time establishing that

the last two of these events are likely to recur, but relegates to a footnote its discussion of the first
event, upon which all others depend, and only briefly alludes to the second. Neither the facts in

[484 U.S. 305, 337] the record, nor even the extrarecord assurances of counsel, establish a
demonstrated probability of either of them.

With respect to whether Smith will return to school, at oral argument Smith’s counsel forthrightly
conceded that she “cannot represent whether in fact either of these students will ask for further
education from the Petitioners.” Tr. of Oral Arg. 23. Rather, she observed, respondents would
“look to [our decision in this case] to find out what will happen after that.” Id., at 23-24. When
pressed, the most counsel would say was that, in her view, the 20-year-old Smith could seek to
return to public school because he has not graduated, he is handicapped, and he has a right to an

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education. Id., at 27. I do not perceive the principle that would enable us to leap from the
proposition that Smith could reenter public school to the conclusion th at it is a demonstrated
probability he will do so.

The Court nevertheless concludes that “there is at the very least a reasonable expectation” that
Smith will return to school. Ante, at 319, n. 6. I cannot possibly dispute that on the basis of the
Court’s terminology. Once it is accepted that a “reasonable expectation” can exist without a
demonstrable probability that the event in question will occur, the phrase has been deprived of all
meaning, and the Court can give it whatever application it wishes without fear of effective
contradiction. It is worth pointing out, however, how slim are the reeds upon which this
conclusion of “reasonable expectation” (whatever that means) rests. The Court bases its
determination on three observations from the record and oral argument. First, it notes that Smith
has been pressing this lawsuit since 1980. It suffices to observe that the equivalent argument can
be made in every case that remains active and pending; we have hitherto avoided equating the
existence of a case or controversy with the existence of a lawsuit. Second, the Court observes
that Smith has “as great a need of a high school education and diploma as any of his peers.” Ibid.
While this is undoubtedly good advice, it hardly establishes [484 U.S. 305, 338] that the 20-year-
old Smith is likely to return to high school, much less to public high school. Finally, the Court
notes that counsel “advises us that [Smith] is awaiting the outcome of this case to decide whether
to pursue his degree.” Ibid. Not only do I not think this establishes a current case or controversy, I
think it a most conclusive indication that no current case or controversy exists. We do not sit to
broaden decisionmaking options, but to adjudicate the lawfulness of acts that have happened or,
at most, are about to occur.

The conclusion that the case is moot is reinforced, moreover, when one considers that, even if
Smith does return to public school, the controversy will still not recur unless he is again placed in
an educational setting that is unable to tolerate his behavior. It seems to me not only not
demonstrably probab le, but indeed qui te unlikely, given what is now known abou t Smith’s
behavioral problems, that local school authorities would again place him in an educational setting
that could not control his dangerous conduct, causing a suspension that would replicate the legal
issues in this suit. The majority dismisses this further contingency by noting that the school
authorities have an obligation under the EHA to provide an “appropriate” education in “the least
restrictive environment.” Ante, at 321. This means, however, the least restrictive environment
appropriate for the particular child. The Court observes that “the preparation of an
[individualized educational placement]” is “an inexact science at best,” ibid., thereby implying
that the school authorities are likely to get it wrong. Even accepting this assumption, which
seems to me contrary to the premises of the Act, I see no reason further to assume that they will

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get it wrong by making the same mistake they did last time – assigning Smith to too unrestrictive
an environment, from which he will thereafter be suspended – rather than by assigning him to too
restrictive an env ironment. The la tter, which seems to me more likely than th e former (though
both combined are much less likely than a correct placement), might produce a lawsuit, [484 U.S.
305, 339] but not a lawsuit involving the issues that we have before us here.

III

THE CHIEF JUSTICE joins the majority opinion on the ground, not that this case is not moot,
but that where the events giving rise to the mootness have occurred after we have granted

certiorari we may disregard them, since mootness is only a prudential doctrine and not part of the
“case or controversy” requirement of Art. III. I do not see how that can be. There is no more

reason to intuit that mootness is merely a prudential doctrine than to intuit that initial standing is.
Both doctrines have equivalently deep roots in the common-law understanding, and hence the
constitutional understanding, of what makes a matter appropriate for judicial disposition . See

Flast v. Cohen, 392 U.S. 83, 95 (1968) (describing mootness and standing as various illustrations
of the requirement of “justifiability” in Art. III).

THE CHIEF JUSTICE relies upon the fact that an 1895 case discussing mootness, Mills v.
Green, 159 U.S. 651 , makes no mention of the Constitution. But there is little doubt that the
Court believed the doctrine called into question the Court’s power and not merely its prudence,
for (in an opinion by the same Justice who wrote Mills) it had said two years earlier:

“[T]he court is not empowered to decide moot questions or abstract propositions, or to
declare . . . principles or rules of law which cannot affect the result as to the thing in issue in
the case before it. No stipulation of parties or counsel . . . can enlarge the power, or affect the
duty, of the court in this regard.” California v. San Pablo & Tulare R. Co., 149 U.S. 308, 314
(1893) (Gray, J.) (emphasis added).

If it seems peculiar to the modern lawyer that our 19th-century mootness cases make no explicit
mention of Art. III, that is a peculiarity shared with our 19th-century, and even [484 U.S. 305,
340] our early 20th-century, standing cases. As late as 1919, in dismissing a suit for lack of
standing we said simply:

“Considerations of propriety, as well as long-established practice, demand that we refrain
from passing upon the constitutionality of an act of Congress unless obliged to do so in the
proper performance of our judicial function, when the question is raised by a party whose
interests entitle him to raise it.” Blair v. United States, 250 U.S. 273, 279 .

SpecialEdLaw.net – caselaw library -25-

See also, e. g., Standard Stock Food Co. v. Wright, 225 U.S. 540, 550 (1912); Southern R. Co. v.
King, 217 U.S. 524, 534 (1910); Turpin v. Lemon, 187 U.S. 51, 60 -61 (1902); Tyler v. Judges of
Court of Registration, 179 U.S. 405, 409 (1900). The same is also true of our early cases
dismissing actions lacking truly adverse parties, that is, collusive actions. See, e. g., Cleveland v.
Chamberlain, 1 Black 419, 425-426 (1862); Lord v. Veazie, 8 How. 251, 254-256 (1850). The
explanation for this ellipsis is that the courts simply chose to refer directly to the traditional,
fundamental limitations upon the powe rs of commo n-law court s, rat her th an referrin g to Art. III
which in turn adop ts those limit ations through te rms (“The judicial Power”; “Cases”;
“Controversies”) that have virtually no meaning except by reference to that tradition. The
ultimate circularity, coming back in the end to tradition, is evident in the statement by Justice
Field:

“By cases and controversies are intended the claims of litigants brought before the courts for
determination by such regular proceedings as are established by law or custom for the
protection or enforcement of rights, or the prevention, redress, or punishment of wrongs.
Whenever the claim of a party under the constitution, laws, or treaties of the United States
takes such a form that the judicial power is capable of acting upon it, then it has become a
case.” In re Pacific Railway Comm’n, 32 F. 241, 255 (CC ND Cal. 1887). [484 U.S. 305, 341]

See also 2 M. Farrand, Records of the Federal Convention of 1787, p. 430 (rev. ed. 1966):

“Docr. Johnson moved to insert t he words `this Con stitution and the’ before the word `laws .’

“Mr. Madison doubted whether it was not going too far to extend the jurisdiction of the Court
generally to cases arising Under the Constitution, & whether it ought not to be limited to
cases of a Judiciary Nature. The right of expounding the Constitution in cases not of this
nature ought not to be given to that Department.

“The motion of Docr. Johnson was agreed to nem: con: it being generally supposed that the
jurisdiction given was construct ively limited to cases of a Judiciary nature.”

In sum, I cannot believe that it is only our prudence, and nothing inherent in the understood
nature of “The judicial Power,” U.S. Const., Art. III, 1, that restrains us from pronouncing
judgment in a case that the parties have settled, or a case involving a nonsurviving claim where
the plaintiff has died, or a case where the law has been changed so that the basis of the dispute no
longer exists, or a case where conduct sought to be enjoined has ceased and will not recur. Where

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the conduct has ceased for the time being but there is a demonstrated probability that it will
recur, a real-life controversy between parties with a personal stake in the outcome continues to
exist, and Art. III is no more violated than it is violated by entertaining a declaratory judgment
action. But that is the limit of our power. I agree with THE CHIEF JUSTICE to this extent: the
“yet evading review” portion of our “capable of repetition, yet evading review” test is prudential;
whether or not that criterion is met, a justiciable controversy exists. But the probability of
recurrence between the same parties is essential to our jurisdiction as a court, and it is that
deficiency which the case before us presents.

It is assuredly frustrating to find that a jurisdictional impediment prevents us from reaching the
important merits [484 U.S. 305, 342] issues that were the reason for our agreeing to hear this
case. But we cannot ignore such impediments for purposes of our appellate review without
simultaneously affecting the principles that govern district courts in their assertion or retention of
original jurisdiction. We thus do substantial harm to a governmental structure designed to restrict
the courts to matters that actually affect the litigants before them. [484 U.S. 305, 343]

U.S. Supreme Court

IRVING INDEPENDENT SCHOOL DIST. v. TATRO, 468 U.S. 883 (1984)

468 U.S. 883

IRVING INDEPENDENT SCHOOL DISTRICT v. TATRO ET UX., INDIVIDUALLY  AND AS NEXT FRIENDS OF TATRO, A MINOR CERTIORARI TO THE UNITED STATES COURT  OF APPEALS FOR THE FIFTH CIRCUIT  No. 83-558.   Argued April 16, 1984  Decided July 5, 1984

Respondents’ 8-year-old daughter was born with a defect known as spina bifida. As a result she suffers from orthopedic and speech impairments and a neurogenic bladder, which prevents her from emptying her bladder voluntarily. Consequently, she must be catheterized every three or four hours to avoid injury to her kidneys. To accomplish this, a procedure known as clean intermittent catheterization (CIC) was prescribed. This is a simple procedure that can be performed in a few minutes by a layperson with less than an hour’s training. Since petitioner School District received federal funding under the Education of the Handicapped Act it was required to provide the child with “a free appropriate public education,” which is defined in the Act to include “related services,” which are defined in turn to include “supportive services (including . . . medical . . . services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a handicapped child to benefit from special education.” Pursuant to the Act, petitioner developed an individualized education program for the child, but the program made no provision for school personnel to administer CIC. After unsuccessfully pursuing administrative remedies to secure CIC services for the child during school hours, respondents brought an action against petitioner and others in Federal District Court, seeking injunctive relief, damages, and attorney’s fees. Respondents invoked the Education of the Handicapped Act, arguing that CIC is one of the included “related services” under the statutory definition, and also invoked 504 of the Rehabilitation Act of 1973, which forbids a person, by reason of a handicap, to be “excluded from the participation in, be denied the benefits of, or be subjected to discrimination under” any program receiving federal aid. After its initial denial of relief was reversed by the Court of Appeals, the District Court, on remand, held that CIC was a “related service” under the Education of the Handicapped Act, ordered that the child’s education program be modified to include provision of CIC during school hours, and awarded compensatory damages against petitioner. The court further held that respondents had proved a violation of 504 of the Rehabilitation [468 U.S. 883, 884] Act, and awarded attorney’s fees to respondents under 505 of that Act. The Court of Appeals affirmed.

Held:

1. CIC is a “related service” under the Education of the Handicapped Act. Pp. 888-895.

(a) CIC services qualify as a “supportive servic[e] . . . required to assist a handicapped child to benefit from special education,” within the meaning of the Act. Without CIC services available during the school day, respondents’ child cannot attend school and thereby “benefit from special education.” Such services are no less related to the effort to educate than are services that enable a child to reach, enter, or exit a school. Pp. 890-891.

(b) The provision of CIC is not subject to exclusion as a “medical service.” The Department of Education regulations, which are entitled to deference, define “related services” for handicapped children to include “school health services,” which are defined in turn as “services provided by a qualified school nurse or other qualified person,” and define “medical services” as “services provided by a licensed physician.” This definition of “medical services” is a reasonable interpretation of congressional intent to exclude physician’s services as such and to impose an obligation to provide school nursing services. Pp. 891-895.

2. Section 504 of the Rehabilitation Act is inapplicable when relief is available under the Education of the Handicapped Act to remedy a denial of educational services, Smith v. Robinson, post, p. 992, and therefore respondents are not entitled to any relief under 504, including recovery of attorney’s fees. Pp. 895-896.

703 F.2d 823, affirmed in part and reversed in part.

BURGER, C. J., delivered the opinion of the Court, in which WHITE, BLACKMUN, POWELL, REHNQUIST, and O’CONNOR, JJ., joined, and in all but Part III of which BRENNAN, MARSHALL, and STEVENS, JJ., joined. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL, J., joined, post, p. 896. STEVENS, J., filed an opinion concurring in part and dissenting in part, post, p. 896.

James W. Deatherage argued the cause for petitioner. With him on the briefs was O. Glenn Weaver.

James C. Todd argued the cause and filed a brief for respondents.

[

Footnote *

] Susan F. Heiligenthal filed a brief for the Texas Association of School Boards Legal Assistance Fund as amicus curiae urging reversal.

Briefs of amici curiae urging affirmance were filed for the Association for Persons with Severe Handicaps et al. by Marilyn Holle; for the New [468 U.S. 883, 885] Jersey Department of the Public Advocate by Joseph H. Rodriguez, Herbert D. Hinkle, and Michael L. Perlin; for the New York State Commission on the Quality of Care for the Mentally Disabled, Protection and Advocacy System, by Herbert Semmel and Minna J. Kotkin; and for the Spina Bifida Association of America et al. by Janet F. Stotland.

Briefs of amici curiae were filed for the American Association of School Administrators by Allen D. Schwartz; and for the National School Boards Association by Gwendolyn H. Gregory, August W. Steinhilber, and Thomas A. Shannon. [468 U.S. 883, 885]

CHIEF JUSTICE BURGER delivered the opinion of the Court.

We granted certiorari to determine whether the Education of the Handicapped Act or the Rehabilitation Act of 1973 requires a school district to provide a handicapped child with clean intermittent catheterization during school hours.

Amber Tatro is an 8-year-old girl born with a defect known as spina bifida. As a result, she suffers from orthopedic and speech impairments and a neurogenic bladder, which prevents her from emptying her bladder voluntarily. Consequently, she must be catheterized every three or four hours to avoid injury to her kidneys. In accordance with accepted medical practice, clean intermittent catheterization (CIC), a procedure involving the insertion of a catheter into the urethra to drain the bladder, has been prescribed. The procedure is a simple one that may be performed in a few minutes by a layperson with less than an hour’s training. Amber’s parents, babysitter, and teenage brother are all qualified to administer CIC, and Amber soon will be able to perform this procedure herself.

In 1979 petitioner Irving Independent School District agreed to provide special education for Amber, who was then three and one-half years old. In consultation with her parents, who are respondents here, petitioner developed an individualized education program for Amber under the [468 U.S. 883, 886] requirements of the Education of the Handicapped Act, 84 Stat. 175, as amended significantly by the Education for All Handicapped Children Act of 1975, 89 Stat. 773, 20 U.S.C. 1401(19), 1414(a)(5). The individualized education program provided that Amber would attend early childhood development classes and receive special services such as physical and occupational therapy. That program, however, made no provision for school personnel to administer CIC.

Respondents unsuccessfully pursued administrative remedies to secure CIC services for Amber during school hours.

In October 1979 respondents brought the present action in District Court against petitioner, the State Board of Education, and others. See 1415(e)(2). They sought an injunction ordering petitioner to provide Amber with CIC and sought damages and attorney’s fees. First, respondents invoked the Education of the Handicapped Act. Because Texas received funding under that statute, petitioner was required to provide Amber with a “free appropriate public education,” 1412(1), 1414(a)(1)(C)(ii), which is defined to include “related services,” 1401(18). Respondents argued that CIC is one such “related service.”

Second, respondents invoked 504 of the Rehabilitation Act of 1973, 87 Stat. 394, as amended, 29 U.S.C. 794, which forbids an individual, by reason of a handicap, to be “excluded from the [468 U.S. 883, 887] participation in, be denied the benefits of, or be subjected to discrimination under” any program receiving federal aid.

The District Court denied respondents’ request for a preliminary injunction. Tatro v. Texas, 481 F. Supp. 1224 (ND Tex. 1979). That court concluded that CIC was not a “related service” under the Education of the Handicapped Act because it did not serve a need arising from the effort to educate. It also held that 504 of the Rehabilitation Act did not require “the setting up of governmental health care for people seeking to participate” in federally funded programs. Id., at 1229.

The Court of Appeals reversed. Tatro v. Texas, 625 F.2d 557 (CA5 1980) (Tatro I). First, it held that CIC was a “related service” under the Education of the Handicapped Act, 20 U.S.C. 1401(17), because without the procedure Amber could not attend classes and benefit from special education. Second, it held that petitioner’s refusal to provide CIC effectively excluded her from a federally funded educational program in violation of 504 of the Rehabilitation Act. The Court of Appeals remanded for the District Court to develop a factual record and apply these legal principles.

On remand petitioner stressed the Education of the Handicapped Act’s explicit provision that “medical services” could qualify as “related services” only when they served the purpose of diagnosis or evaluation. See n. 2, supra. The District Court held that under Texas law a nurse or other qualified person may administer CIC without engaging in the unauthorized practice of medicine, provided that a doctor prescribes and supervises the procedure. The District Court then held that, because a doctor was not needed to administer CIC, provision of the procedure was not a “medical service” for purposes of the Education of the Handicapped Act. Finding CIC to be a “related service” under that Act, the District Court ordered petitioner and the State Board of Education to modify Amber’s individualized education program [468 U.S. 883, 888] to include provision of CIC during school hours. It also awarded compensatory damages against petitioner. Tatro v. Texas, 516 F. Supp. 968 (ND Tex. 1981).

On the authority of Tatro I, the District Court then held that respondents had proved a violation of 504 of the Rehabilitation Act. Although the District Court did not rely on this holding to authorize any greater injunctive or compensatory relief, it did invoke the holding to award attorney’s fees against petitioner and the State Board of Education.

516 F. Supp., at 968; App. to Pet. for Cert. 55a-63a. The Rehabilitation Act, unlike the Education of the Handicapped Act, authorizes prevailing parties to recover attorney’s fees. See 29 U.S.C. 794a.

The Court of Appeals affirmed. Tatro v. Texas, 703 F.2d 823 (CA5 1983) (Tatro II). That court accepted the District Court’s conclusion that state law permitted qualified persons to administer CIC without the physical presence of a doctor, and it affirmed the award of relief under the Education of the Handicapped Act. In affirming the award of attorney’s fees based on a finding of liability under the Rehabilitation Act, the Court of Appeals held that no change of circumstances since Tatro I justified a different result.

We granted certiorari,

464 U.S. 1007

(1983), and we affirm in part and reverse in part.

This case poses two separate issues. The first is whether the Education of the Handicapped Act requires petitioner to [468 U.S. 883, 889] provide CIC services to Amber. The second is whether 504 of the Rehabilitation Act creates such an obligation. We first turn to the claim presented under the Education of the Handicapped Act.

States receiving funds under the Act are obliged to satisfy certain conditions. A primary condition is that the state implement a policy “that assures all handicapped children the right to a free appropriate public education.” 20 U.S.C. 1412(1). Each educational agency applying to a state for funding must provide assurances in turn that its program aims to provide “a free appropriate public education to all handicapped children.” 1414(a)(1)(C)(ii).

A “free appropriate public education” is explicitly defined as “special education and related services.” 1401(18).

The term “special education” means

“specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a handicapped child, including classroom instruction, instruction in physical education, home instruction, and instruction in hospitals and institutions.” 1401(16).

“Related services” are defined as

“transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, and medical and counseling services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a handicapped child to benefit from [468 U.S. 883, 890] special education, and includes the early identification and assessment of handicapping conditions in children.” 1401(17) (emphasis added).

The issue in this case is whether CIC is a “related service” that petitioner is obliged to provide to Amber. We must answer two questions: first, whether CIC is a “supportive servic[e] . . . required to assist a handicapped child to benefit from special education”; and second, whether CIC is excluded from this definition as a “medical servic[e]” serving purposes other than diagnosis or evaluation.

The Court of Appeals was clearly correct in holding that CIC is a “supportive servic[e] . . . required to assist a handicapped child to benefit from special education.”

It is clear on this record that, without having CIC services available during the school day, Amber cannot attend school and thereby “benefit from special education.” CIC services therefore fall squarely within the definition of a “supportive service.”

[468 U.S. 883, 891]

As we have stated before, “Congress sought primarily to make public education available to handicapped children” and “to make such access meaningful.” Board of Education of Hendrick Hudson Central School District v. Rowley,

458 U.S. 176, 192

(1982). A service that enables a handicapped child to remain at school during the day is an important means of providing the child with the meaningful access to education that Congress envisioned. The Act makes specific provision for services, like transportation, for example, that do no more than enable a child to be physically present in class, see 20 U.S.C. 1401(17); and the Act specifically authorizes grants for schools to alter buildings and equipment to make them accessible to the handicapped, 1406; see S. Rep. No. 94-168, p. 38 (1975); 121 Cong. Rec. 19483-19484 (1975) (remarks of Sen. Stafford). Services like CIC that permit a child to remain at school during the day are no less related to the effort to educate than are services that enable the child to reach, enter, or exit the school.

We hold that CIC services in this case qualify as a “supportive servic[e] . . . required to assist a handicapped child to benefit from special education.”

We also agree with the Court of Appeals that provision of CIC is not a “medical servic[e],” which a school is required to provide only for purposes of diagnosis or evaluation. See 20 U.S.C. 1401(17). We begin with the regulations of the [468 U.S. 883, 892] Department of Education, which are entitled to deference.

See, e. g., Blum v. Bacon,

457 U.S. 132, 141

(1982). The regulations define “related services” for handicapped children to include “school health services,” 34 CFR 300.13(a) (1983), which are defined in turn as “services provided by a qualified school nurse or other qualified person,” 300.13(b) (10). “Medical services” are defined as “services provided by a licensed physician.” 300.13(b)(4).

Thus, the Secretary has determined that the services of a school nurse otherwise qualifying as a “related service” are not subject to exclusion as a “medical service,” but that the services of a physician are excludable as such.

This definition of “medical services” is a reasonable interpretation of congressional intent. Although Congress devoted little discussion to the “medical services” exclusion, the Secretary could reasonably have concluded that it was designed to spare schools from an obligation to provide a service that might well prove unduly expensive and beyond the range of their competence.

From this understanding of [468 U.S. 883, 893] congressional purpose, the Secretary could reasonably have concluded that Congress intended to impose the obligation to provide school nursing services.

Congress plainly required schools to hire various specially trained personnel to help handicapped children, such as “trained occupational therapists, speech therapists, psychologists, social workers and other appropriately trained personnel.” S. Rep. No. 94-168, supra, at 33. School nurses have long been a part of the educational system, and the Secretary could therefore reasonably conclude that school nursing services are not the sort of burden that Congress intended to exclude as a “medical service.” By limiting the “medical services” exclusion to the services of a physician or hospital, both far more expensive, the Secretary has given a permissible construction to the provision.

Petitioner’s contrary interpretation of the “medical services” exclusion is unconvincing. In petitioner’s view, CIC is a “medical service,” even though it may be provided by a nurse or trained layperson; that conclusion rests on its reading of Texas law that confines CIC to uses in accordance with a physician’s prescription and under a physician’s ultimate supervision. Aside from conflicting with the Secretary’s reasonable interpretation of congressional intent, however, such a rule would be anomalous. Nurses in petitioner School District are authorized to dispense oral medications and administer emergency injections in accordance with a physician’s prescription. This kind of service for nonhandicapped children is difficult to distinguish from the provision of CIC to the handicapped.

It would be strange indeed if Congress, [468 U.S. 883, 894] in attempting to extend special services to handicapped children, were unwilling to guarantee them services of a kind that are routinely provided to the nonhandicapped.

To keep in perspective the obligation to provide services that relate to both the health and educational needs of handicapped students, we note several limitations that should minimize the burden petitioner fears. First, to be entitled to related services, a child must be handicapped so as to require special education. See 20 U.S.C. 1401(1); 34 CFR 300.5 (1983). In the absence of a handicap that requires special education, the need for what otherwise might qualify as a related service does not create an obligation under the Act. See 34 CFR 300.14, Comment (1) (1983).

Second, only those services necessary to aid a handicapped child to benefit from special education must be provided, regardless how easily a school nurse or layperson could furnish them. For example, if a particular medication or treatment may appropriately be administered to a handicapped child other than during the school day, a school is not required to provide nursing services to administer it.

Third, the regulations state that school nursing services must be provided only if they can be performed by a nurse or other qualified person, not if they must be performed by a physician. See 34 CFR 300.13(a), (b)(4), (b)(10) (1983). It bears mentioning that here not even the services of a nurse are required; as is conceded, a layperson with minimal training is qualified to provide CIC. See also, e. g., Department of Education of Hawaii v. Katherine D., 727 F.2d 809 (CA9 1983). [468 U.S. 883, 895]

Finally, we note that respondents are not asking petitioner to provide equipment that Amber needs for CIC. Tr. of Oral Arg. 18-19. They seek only the services of a qualified person at the school.

We conclude that provision of CIC to Amber is not subject to exclusion as a “medical service,” and we affirm the Court of Appeals’ holding that CIC is a “related service” under the Education of the Handicapped Act.

III

Respondents sought relief not only under the Education of the Handicapped Act but under 504 of the Rehabilitation Act as well. After finding petitioner liable to provide CIC under the former, the District Court proceeded to hold that petitioner was similarly liable under 504 and that respondents were therefore entitled to attorney’s fees under 505 of the Rehabilitation Act, 29 U.S.C. 794a. We hold today, in Smith v. Robinson, post, p. 992, that 504 is inapplicable when relief is available under the Education of the Handicapped Act to remedy a denial of educational services. Respondents are therefore not entitled to relief under 504, and we reverse the Court of Appeals’ holding that respondents [468 U.S. 883, 896] are entitled to recover attorney’s fees. In all other respects, the judgment of the Court of Appeals is affirmed.

It is so ordered.

JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, concurring in part and dissenting in part.

I join all but Part III of the Court’s opinion. For the reasons stated in my dissenting opinion in Smith v. Robinson, post, p. 992, I would affirm the award of attorney’s fees to the respondents.

Footnotes

[

Footnote 1

] The Education of the Handicapped Act’s procedures for administrative hearings are set out in 20 U.S.C. 1415. In this case a hearing officer ruled that the Education of the Handicapped Act did require the school to provide CIC, and the Texas Commissioner of Education adopted the hearing officer’s decision. The State Board of Education reversed, holding that the Act did not require petitioner to provide CIC.

[

Footnote 2

] As discussed more fully later, the Education of the Handicapped Act defines “related services” to include “supportive services (including . . . medical and counseling services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a handicapped child to benefit from special education.” 20 U.S.C. 1401(17).

[

Footnote 3

] The District Court dismissed the claims against all defendants other than petitioner and the State Board, though it retained the members of the State Board “in their official capacities for the purpose of injunctive relief.” 516 F. Supp., at 972-974.

[

Footnote 4

] The District Court held that 505 of the Rehabilitation Act, 29 U.S.C. 794a, which authorizes attorney’s fees as a part of a prevailing party’s costs, abrogated the State Board’s immunity under the Eleventh Amendment. See App. to Pet. for Cert. 56a-60a. The State Board did not petition for certiorari, and the Eleventh Amendment issue is not before us.

[

Footnote 5

] Specifically, the “special education and related services” must

“(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) [be] provided in conformity with the individualized education program required under section 1414(a)(5) of this title.” 1401(18).

[

Footnote 6

] Petitioner claims that courts deciding cases arising under the Education of the Handicapped Act are limited to inquiring whether a school district has followed the requirements of the state plan and has followed the Act’s procedural requirements. However, we held in Board of Education of Hendrick Hudson Central School District v. Rowley,

458 U.S. 176, 206

, n. 27 (1982), that a court is required “not only to satisfy itself that the State has adopted the state plan, policies, and assurances required by the Act, but also to determine that the State has created an [individualized education plan] for the child in question which conforms with the requirements of 1401(19) [defining such plans].” Judicial review is equally appropriate in this case, which presents the legal question of a school’s substantive obligation under the “related services” requirement of 1401(17).

[

Footnote 7

] The Department of Education has agreed with this reasoning in an interpretive ruling that specifically found CIC to be a “related service.” 46 Fed. Reg. 4912 (1981). Accord, Tokarcik v. Forest Hills School District, 665 F.2d 443 (CA3 1981), cert. denied sub nom. Scanlon v. Tokarcik,

458 U.S. 1121

(1982). The Secretary twice postponed temporarily the effective date of this interpretive ruling, see 46 Fed. Reg. 12495 (1981); id., at [468 U.S. 883, 891] 18975, and later postponed it indefinitely, id., at 25614. But the Department presently does view CIC services as an allowable cost under Part B of the Act. Ibid.

[

Footnote 8

] The obligation to provide special education and related services is expressly phrased as a “conditio[n]” for a state to receive funds under the Act. See 20 U.S.C. 1412; see also S. Rep. No. 94-168, p. 16 (1975). This refutes petitioner’s contention that the Act did not “impos[e] an obligation on the States to spend state money to fund certain rights as a condition of receiving federal moneys” but “spoke merely in precatory terms,” Pennhurst State School and Hospital v. Halderman,

451 U.S. 1, 18

(1981).

[

Footnote 9

] The Secretary of Education is empowered to issue such regulations as may be necessary to carry out the provisions of the Act. 20 U.S.C. 1417(b). This function was initially vested in the Commissioner of Education of the Department of Health, Education, and Welfare, who promulgated the regulations in question. This function was transferred to the Secretary of Education when Congress created that position, see Department of Education Organization Act, 301(a)(1), (2)(H), 93 Stat. 677, 20 U.S.C. 3441(a)(1), (2)(H).

[

Footnote 10

] The regulations actually define only those “medical services” that are owed to handicapped children: “services provided by a licensed physician to determine a child’s medically related handicapping condition which results in the child’s need for special education and related services.” 34 CFR 300.13(b)(4) (1983). Presumably this means that “medical services” not owed under the statute are those “services by a licensed physician” that serve other purposes.

[

Footnote 11

] Children with serious medical needs are still entitled to an education. For example, the Act specifically includes instruction in hospitals and at home within the definition of “special education.” See 20 U.S.C. 1401(16).

[

Footnote 12

] Petitioner attempts to distinguish the administration of prescription drugs from the administration of CIC on the ground that Texas law expressly limits the liability of school personnel performing the former, see Tex. Educ. Code Ann. 21.914(c) (Supp. 1984), but not the latter. This distinction, however, bears no relation to whether CIC is a “related service.” The introduction of handicapped children into a school creates numerous new possibilities for injury and liability. Many of these risks are [468 U.S. 883, 894] more serious than that posed by CIC, which the courts below found is a safe procedure even when performed by a 9-year-old girl. Congress assumed that states receiving the generous grants under the Act were up to the job of managing these new risks. Whether petitioner decides to purchase more liability insurance or to persuade the State to extend the limitation on liability, the risks posed by CIC should not prove to be a large burden.

[

Footnote 13

] We need not address respondents’ claim that CIC, in addition to being a “related service,” is a “supplementary ai[d] and servic[e]” that petitioner must provide to enable Amber to attend classes with nonhandicapped students under the Act’s “mainstreaming” directive. See 20 U.S.C. 1412(5)(B). Respondents have not sought an order prohibiting petitioner from educating Amber with handicapped children alone. Indeed, any request for such an order might not present a live controversy. Amber’s present individualized education program provides for regular public school classes with nonhandicapped children. And petitioner has admitted that it would be far more costly to pay for Amber’s instruction and CIC services at a private school, or to arrange for home tutoring, than to provide CIC at the regular public school placement provided in her current individualized education program. Tr. of Oral Arg. 12.

JUSTICE STEVENS, concurring in part and dissenting in part.

The petition for certiorari did not challenge the award of attorney’s fees. It contested only the award of relief on the merits to respondents. Inasmuch as the judgment on the merits is supported by the Court’s interpretation of the Education of the Handicapped Act, there is no need to express any opinion concerning the Rehabilitation Act of 1973.
*
Accordingly, while I join Parts I and II of the Court’s opinion, I do not join Part III.

[
Footnote *
] The “Statement of the Questions Presented” in the petition for certiorari reads as follows:

“1. Whether `medical treatment’ such as clean intermittent catheterization is a `related service’ required under the Education for All Handicapped Children Act and, therefore, required to be provided to the minor Respondent.

“2. Is a public school required to provide and perform the medical treatment prescribed by the physician of a handicapped child by the Education of All Handicapped Children Act or the Rehabilitation Act of 1973?

“3. Whether the Fifth Circuit Court of Appeals misconstrued the opinions of this Court in Southeastern Community College v. Davis, Pennhurst State School & Hospital v. Halderman, and State Board of Education v. Rowley.” Pet. for Cert. i.

Because the Court does not hold that the Court of Appeals answered any of these questions incorrectly, it is not justified in reversing in part the judgment of that court. [468 U.S. 883, 897]

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U.S. Supreme Court

HENDRICK HUDSON DIST. BD. OF ED. v. ROWLEY, 458 U.S. 176 (1982)

458 U.S. 176

BOARD OF EDUCATION OF THE HENDRICK HUDSON CENTRAL SCHOOL
DISTRICT,

WESTCHESTER COUNTY, ET AL. v. ROWLEY, BY HER PARENTS, ROWLEY ET
UX.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT

No. 80-1002.

Argued March 23, 1982
Decided June 28, 1982

The Education of the Handicapped Act (Act) provides federal money to assist state and local
agencies in educating handicapped children. To qualify for federal assistance, a State must
demonstrate, through a detailed plan submitted for federal approval, that it has in effect a policy
that assures all handicapped children the right to a “free appropriate public education,” which
policy must be tailored to the unique needs of the handicapped child by means of an
“individualized educational program” (IEP). The IEP must be prepared (and reviewed at least
annually) by school officials with participation by the child’s parents or guardian. The Act also
requires that a participating State provide specified administrative procedures by which the
child’s parents or guardian may challenge any change in the evaluation and education of the child.
Any party aggrieved by the state administrative decisions is authorized to bring a civil action in
either a state court or a federal district court. Respondents – a child with only minimal residual
hearing who had been furnished by school authorities with a special hearing aid for use in the
classroom and who was to receive additional instruction from tutors, and the child’s parents –
filed suit in Federal District Court to review New York administrative proceedings that had
upheld the school administrators’ denial of the parents’ request that the child also be provided a
qualified sign-language interpreter in all of her academic classes. Entering judgment for
respondents, th e District Court found that altho ugh the child perfor med better than th e average
child in her class and was advancing easily from grade to grade, she was not performing as well
academically as she woul d without her hand icap. Because of this disparity between the ch ild’s
achievement and her potential, the court held that she was not receiving a “free appropriate
public education,” which the court defined as “an opportunity to achieve [her] full potential
commensurate with the opportunity provided to other children.” The Court of Appeals affirmed.
[458 U.S. 176 , 177]

Held:

1. The Act’s requirement of a “free appropriate public educatio n” is satisfied when the State provides personali zed
instruction with sufficient support services to permit the handicapped child to benefit educationally from that instruction.
Such instruction and services must be provided at public expense, must meet the State’s educational standards, must

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approximate grade levels used in the State’s regular education, and must comport with the child’s IEP, as formulated in
accordance with the Act’s requirements. If the child is being educated in regular classrooms, as here, the IEP should be
reasonably calculated to enable the child to achieve passing marks and advance from grade to grade. Pp. 187-204.

(a) This interpretation is supported by the definitions contained in the Act, as well as by other provisions imposing
procedural requirements and setting forth statutory findings and priorities for States to follow in extending educational
services to handicapped children. The Act’s language contains no express substantive standard prescribing the level of
education to be accorded handicapped children. Pp. 187-190.

(b) The Act’s legislative history shows that Congress sought to make public education available to handicapped children, but
did not intend to impose upon the States any greater substantive educational standard than is necessary to make such access
to public education meaningful. The Act’s intent was more to open the door of public education to handicapped children by
means of specialized educational services than to guarantee any particular substantive level of education once inside. Pp.
191-197.

(c) While Congress sought to provide assistance to the States in carrying out their constitutional responsibilities to provide
equal protection of the laws, it did not intend to achieve strict equality of opportunity or services for handicapped and
nonhandicapped child ren, but rather sought primarily to ident ify and evaluate handicapped children, and to provide them
with access to a free public education. The Act does not require a State to maximize the potential of each handicapped child
commensurate with the opportunity provided nonhandicapped children. Pp. 198-200.

2. In suits brought und er the Act’s judicial-review provisions, a court must first determine wheth er the State has complied
with the statutory procedures, and must then determine whether the individualized pro gram developed through such
procedures is reasonably calculated to enable the child to receive educational benefits. If these requirements are met, the
State has complied with the obligations imposed by Congress and the courts can require no more. Pp. 204-208. [458 U.S.
176, 178]

(a) Although the judicial-review provision s do not limit courts to ensurin g that States have complied with the Act’s
procedural requirements, the Act’s emphasis on procedural safeguards demonstrates the legislative conviction that adequate
compliance with prescribed procedures will in most cases assure much, if not all, of what Congress wished in the way of
substantive content in an IEP. Pp. 204-207.

(b) The courts must be careful to avoid imposing their view of preferable educational methods upon the States. Once a court
determines that the Act’s requirements have been met, questions of methodology are for resolution by the States. Pp. 207-
208.

3. Entrusting a child’s education to state and local agencies does not leave the child without protection. As demonstrated by
this case, parents and guardians will not lack ardor in seeking to ensure that handicapped children receive all of the benefits
to which they are entitled by the Act. Pp. 208-209.

4. The Act does not require the provision of a sign-language interpreter here. Neither of the courts below found that there
had been a failure to comply with the Act’s procedures, and the findings of neither court will support a conclusion that the
child’s educational program failed to comply with the substantive requirements of the Act. Pp. 209-210.

632 F.2d 945, reversed and remanded.

REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C. J., and POWELL, STEVENS, and O’CONNOR, JJ.,
joined. BLACKMUN, J., filed an opinion concurring in the judgment, post, p. 210. WHITE, J., filed a dissenting opinion, in
which BRENNAN and MARSHALL, JJ., joined, post, p. 212.

Raymond G. Kuntz argued the cause for petitioners. With him on the briefs were Robert D. Stone, Jean M. Coon, Paul E.
Sherman, Jr., and Donald O. Meserve.

Michael A. Chatoff argued the cause and filed a brief for respondents.

Elliott Schulder argued the cause for th e United States as amicus curiae urging affirmance. On the brief were Solicitor General
Lee, Assistant Attorney General Reynolds, Walter W. Barnett, and Louise A. Lerner. *

[ Footnote * ] Briefs of amici curiae urging affirmance were filed by Charles S. Sims for the American Civil Liberties Union; by

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Jane Bloom Yohalem, Norman S. Rosenberg, Daniel Yo halem, and Marian Wright Edelman for the [458 U.S. 176, 179]
Association for Retarded Citizens of the United States et al.; by Ralph J. Moore, Jr., and Franklin D. Kramer for the Maryland
Advocacy Unit for the Developmentally Disabled, Inc., et al.; by Marc Charmatz, Janet Stotland, and Joseph Blum for the
National Association of the Deaf et al; by Minna J. Kotkin and Barry Felder for the New York State Commission on the Quality
of Care for the Mentally Disabled, Protection and Advocacy System; and by Michael A. Rebell for the United Cerebral Palsy
Associations, Inc., et al. Norman H. Gross, Gwendolyn H. Gregory, Thomas A. Shanno n, and August W. Steinhilber filed a brief
for the National School Boards Association et al. as amici curiae. [458 U.S. 176, 179]

JUSTICE REHNQUIST delivered the opinion of the Court.

This case presents a question of statutory interpretation. Petitioners contend that the Court of
Appeals and the District Court misconstrued the requirements imposed by Congress upon States
which receive federal funds under the Education of the Handicapped Act. We agree and reverse
the judgment of the Court of Appeals.

The Education of the Handicapped Act (Act), 84 Stat. 175, as amended, 20 U.S.C. 1401 et seq.
(1976 ed. and Supp. IV), provides federal money to assist state and local agencies in educating
handicapped children, and conditions such funding upon a State’s compliance with extensive

goals and procedures. The Act represents an ambitious federal effort to promote the education of
handicapped children, and was passed in response to Congress’ perception that a majority of

handicapped children in the United States “were either totally excluded from schools or [were]
sitting idly in regular classrooms awaiting the time when they were old enough to `drop out.'” H.

R. Rep. No. 94-332, p. 2 (1975) (H. R. Rep.). The Act’s evolution and major provisions shed
light on the question of statutory interpretation which is at the heart of this case.

Congress first addressed the problem of educating the handicapped in 1966 when it amended the
Elementary and [458 U.S. 176 , 180] Secondary Education Act of 1965 to establish a grant program
“for the purpose of assisting the States in the initiation, expansion, and improvement of programs
and projects . . . for the education of handicapped children.” Pub. L. 89-750, 161, 80 Stat. 1204.
That program was repealed in 1970 by the Education of the Handicapped Act, Pub. L. 91-230, 84
Stat. 175, Part B of which established a grant program similar in purpose to the repealed
legislation. Neither the 1966 nor the 1970 legislation contained specific guidelines for state use
of the grant money; both were aimed primarily at stimulating the States to develop educational
resources and to train personnel for educating the handicapped. 1

Dissatisfied with the progress being made under these earlier enactments, and spurred by two
District Court decisions holding that handicapped children should be given access to a public
education, 2 Congress in 1974 greatly increased federal funding for education of the handicapped
and for the first time required recipient States to adopt “a goal of providing full educational
opportunities to all handicapped children.” Pub. L. 93-380, 88 Stat. 579, 583 (1974 statute). The
1974 statute was recognized as an interim measure only, adopted “in order to give the Congress
an additional year in which to study what if any additional Federal assistance [was] required to
enable the States to meet the needs of handicapped children.” H. R. Rep., at 4. The ensuing year
of study produced the Education for All Handicapped Children Act of 1975.

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In order to qualify for federal financial assistance under the Act, a State must demonstrate that it
“has in effect a policy [458 U.S. 176 , 181] that assures all handicapped children the right to a free
appropriate public education.” 20 U.S.C. 1412(1). That policy must be reflected in a state plan
submitted to and approved by the Secretary of Education, 3 1413, which describes in detail the
goals, programs, and timetables under which the State intends to educate handicapped children
within its borders. 1412, 1413. States receiving money under the Act must provide education to
the handicapped by priority, first “to handicapped children who are not receiving an education”
and second “to handicapped children . . . with the most severe handicaps who are receiving an
inadequate education,” 1412(3), and “to the maximum extent appropriate” must educate
handicapped children “with children who are not handicapped.” 1412(5). 4 The Act broadly
defines “handicapped children” to include “mentally retarded, hard of hearing, deaf, speech
impaired, visually handicapped, seriously emotionally disturbed, orthopedically impaired, [and]
other health impaired children, [and] children with specific learning disabilities.” 1401(1). 5

The “free appropriate public education” required by the Act is tailored to the unique needs of the
handicapped child by means of an “individualized educational program” (IEP). [458 U.S. 176, 182]
1401(18). The IEP, which is prepared at a meeting between a qualified representative of the local
educational agency, the child’s teacher, the child’s parents or guardian, and, where appropriate,
the child, consi sts of a written do cument containi ng

“(A) a statement of the present levels of educational performance of such child, (B) a
statement of annual goals, including short-term instructional objectives, (C) a statement of
the specific educational services to be provided to such child, and the extent to which such
child will be able to participate in regular educational programs, (D) the projected date for
initiation and anticipated duration of such services, and (E) appropriate objective criteria and
evaluation procedures and schedules for determining, on at least an annual basis, whether
instructional objectives are being achieved.” 1401(19).

Local or regional educati onal agencies must review, and where appropriate revise, ea ch child’s
IEP at least annually. 1414(a)(5). See also 1413(a)(11).

In addition to the state plan and the IEP already described, the Act imposes extensive procedural
requirements upon States receiving federal funds under its provisions. Parents or guardians of
handicapped children must be notified of any proposed change in “the identification, evaluation,
or educational placement of the child or the provision of a free appropriate public education to
such child,” and must be permitted to bring a complaint about “any matter relating to” such
evaluation and education. 1415(b)(1)(D) and (E). 6 [458 U.S. 176 , 183] Complaints brought by
parents or guardians must be resolved at “an impartial due process hearing,” and appeal to the
state educational agency must be provided if the initial hearing is held at the local or regional
level. 1415(b)(2) and (c). 7 Thereafter, “[a]ny party aggrieved by the findings and decision” of
the state administrative hearing has “the right to bring a civil action with respect to the complaint
. . . in any State court of competent jurisdiction or in a district court of the United States without
regard to the amount in controversy.” 1415(e)(2).

Thus, although the Act leaves to the States the primary responsibility for developing and

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executing educational programs for handicapped children, it imposes significant requirements to
be followed in the discharge of that responsibility. Compliance is assured by provisions
permitting the withholding of federal funds upon determination that a participating state or local
agency has failed to satisfy the requirements of the Act, 1414(b)(2)(A), 1416, and by the
provision for judicial review. At present, all States except New [458 U.S. 176 , 184] Mexico receive
federal funds under the portions of the Act at issue today. Brief for United States as Amicus
Curiae 2, n. 2.

This case arose in connection with the education of Amy Rowley, a deaf student at the Furnace
Woods School in the Hendrick Hudson Central School District, P eekskill, N. Y. Amy has
minimal residual hearing and is an excellent lip-reader. During the year before she began

attending Furnace Woods, a meeting between her parents and school administrators resulted in a
decision to place her in a regular kindergarten class in order to determine what supplemental
services would be necessary to her education. Several members of the school administration

prepared for Amy’s arrival by attending a course in sign-language interpretation, and a teletype
machine was installed in the principal’s office to facilitate communication with her parents who

are also deaf. At the end of the trial period it was determined that Amy should remain in the
kindergarten class, but that she should be provided with an FM hearing aid which would amplify
words spoken into a wireless receiver by the teacher or fellow students during certain classroom

activities. Amy successfully completed her kindergarten year.

As required by the Act, an IEP was prepared for Amy during the fall of her first-grade year. The
IEP provided that Amy should be educated in a regular classroom at Furnace Woods, should
continue to use the FM hearing aid, and should receive instruction from a tutor for the deaf for
one hour each day and from a speech therapist for three hours each week. The Rowleys agreed
with parts of the IEP but insisted that Amy also be provided a qualified sign-language interpreter
in all her academic classes in lieu of the assistance proposed in other parts of the IEP. Such an
interpreter had been placed in Amy’s kindergarten class for a 2-week experimental period, but the
interpreter had reported that Amy did not need his services at that time. The school
administrators [458 U.S. 176 , 185] likewise concluded that Amy did not need such an interpreter in
her first-grade class room. They reached this conclusion after co nsulting the scho ol district’s
Committee on the Handicapped, which had received expert evidence from Amy’s parents on the
importance of a sign-language interpreter, received testimony from Amy’s teacher and other
persons familiar with her academic and social progress, and visited a class for the deaf.

When their request for an interpreter was denied, the Rowleys demanded and received a hearing
before an independent examiner. After receiving evidence from both sides, the examiner agreed
with the administrators’ determination that an interpreter was not necessary because “Amy was
achieving educationally, academically, and socially” without such assistance. App. to Pet. for
Cert. F-22. The examiner’s decision was affirmed on appeal by the New York Commissioner of
Education on th e basis of substan tial evidence in t he record. Id., at E-4. Pu rsuant to the Act’s
provision for judicial review, the Rowleys then brought an action in the United States District
Court for the Southern District of New York, claiming that the administrators’ denial of the sign-

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language interpreter constituted a denial of the “free appropriate public education” guaranteed by
the Act.

The District Court found that Amy “is a remarkably well-adjusted child” who interacts and
communicates well with her classmates and has “developed an extraordinary rapport” with her
teachers. 483 F. Su pp. 528, 531 (198 0). It also found that “s he performs better than the average
child in her class and is advancing easily from grade to grade,” id., at 534, but “that she
understands considerably less of what goes on in class than she could if she were not deaf” and
thus “is not learning as much, or performing as well academically, as she would without her
handicap,” id., at 532. This disparity between Amy’s achievement and her potential led the court
to decide that she was not receiving a “free appropriate public [458 U.S. 176 , 186] education,” which
the court defined as “an opportunity to achieve [her] full potential commensurate with the
opportunity provided to other children.” Id., at 534. According to the District Court, such a
standard “requires that the potential of the handicapped child be measured and compared to his or
her performance, and that the resulting differential or `shortfall’ be compared to the shortfall
experienced by nonhandicapped children.” Ibid. The District Court’s definition arose from its
assumption that the responsibility for “giv[ing] content to the requirement of an `appropriate
education'” had “been left entirely to the [federal] courts and the hearing officers.” Id., at 533. 8

A divided panel of the United States Court of Appeals for the Second Circuit affirmed. The
Court of Appeals “agree[d] with the [D]istrict [C]ourt’s conclusions of law,” and held that its
“findings of fact [were] not clearly erroneous.” 632 F.2d 945, 947 (1980).

We granted certiorari to review the lower courts’ interpretation of the Act. 454 U.S. 961 (1981).
Such review requires us to consider two questions: What is meant by the Act’s requirement of a
“free appropriate public education”? And what is the role of state and federal courts in exercising
the review granted by 20 U.S.C. 1415? We consider these questions separately. 9 [458 U.S. 176,
187]

III

This is the first case in which this Court has been called upon to interpret any provision of the
Act. As noted previously, the District Court and the Court of Appeals concluded that “[t]he Act
itself does not define àppropriate education,'” 483 F. Supp., at 533, but leaves “to the courts and
the hearing officers” the responsibility of “giv[ing] content to the requirement of an `appropriate
education.'” Ibid. See also 632 F.2d, at 947. Petitioners contend that the definition of the phrase

“free appropriate public education” used by the courts below overlooks the definition of that
phrase actually found in the Act. Respondents agree that the Act defines “free appropriate public
education,” but contend that the statutory definition is not “functional” and thus “offers judges no

guidance in their consideration of controversies involving `the identification, evaluation, or
educational placement of the child or the provision of a free appropriate public education.'” Brief

for Respondents 28. The United States, appearing as amicus curiae on behalf of respondents,
states that “[a]lthough the Act includes definitions of a `free appropriate public education’ and

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other related terms, the statutory definitions do not adequately explain what is meant by
`appropriate.'” Brief for United States as Amicus Curiae 13.

We are loath to conclude that Congress failed to offer any assistance in defining the meaning of
the principal substantive phrase used in the Act. It is beyond dispute that, contrary to the
conclusions of the courts below, the Act does expressly define “free appropriate public
education”: [458 U.S. 176 , 188]

“The term `free appropriate public education’ means special education and related services
which (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.” 1401(18) (emphasis added).

“Special education,” as referred to in this definition, means “specially designed instruction, at
no cost to parents or guardians, to meet the unique needs of a handicapped child, including
classroom instruction, instruction in physical education, home instruction, and instruction in
hospitals and institutions.” 1401(16). “Related services” are defined as “transportation, and
such developmental, corrective, and other supportive services . . . as may be required to assist
a handicapped child to benefit from special education.” 1401(17). 10

Like many statutory definitions, this one tends toward the cryptic rather than the comprehensive,
but that is scarcely a reason for abandoning the quest for legislative intent. Whether or not the
definition is a “functional” one, as respondents contend it is not, it is the principal tool which
Congress has given us for parsing the critical phrase of the Act. We think more must be made of
it than either respondents or the United States seems willing to admit.

According to the definitions contained in the Act, a “free appropriate public education” consists
of educational instruction specially designed to meet the unique needs of the handicapped [458
U.S. 176, 189] child, supported by such services as are necessary to permit the child “to benefit”
from the instruction. Almost as a checklist for adequacy under the Act, the definition also
requires that such instruction and services be provided at public expense and under public
supervision, meet the State’s educational standards, approximate the grade levels used in the
State’s regular education, and comport with the child’s IEP. Thus, if personalized instruction is
being provided with sufficient supportive services to permit the child to benefit from the
instruction, and the other item s on the definiti onal checklist ar e satisfied, the ch ild is receiving a
“free appropriate public education” as defined by the Act.

Other portions of the statute also shed light upon congressional intent. Congress found that of the
roughly eight million handicapped children in the United States at the time of enactment, one
million were “excluded entirely from the public school system” and more than half were
receiving an inappropriate education. 89 Stat. 774, note following 1401. In addition, as
mentioned in Part I, the Act requires States to extend educational services first to those children
who are receiving no education and second to those children who are receiving an “inadequate

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education.” 1412(3). When these express statutory findings and priorities are read together with
the Act’s extensive procedural requirements and its definition of “free appropriate public
education,” the face of the statute evinces a congressional intent to bring previously excluded
handicapped children into the public education systems of the States and to require the States to
adopt procedures which would result in individualized consideration of and inst ruction for each
child.

Noticeably absent from the language of the statute is any substantive standard prescribing the
level of education to be accorded handicapped children. Certainly the language of the statute
contains no requirement like the one imposed by the lower courts – that States maximize the
potenti al of hand icapped children “commens urat e with the oppo rtun ity [458 U.S. 176 , 190] provided
to other children.” 483 F. Supp., at 534. That standard was expounded by the District Court
without reference to the statutory definitions or even to the legislative history of the Act.
Although we find the statutory definition of “free appropriate public education” to be helpful in
our interpretation of the Act, there remains the question of whether the legislative history
indicates a congressional intent that such education meet some additional substantive standard.
For an answer, we turn to that history. 11 [458 U.S. 176 , 191]

(i)

As suggested in Part I, federal support for education of the handicapped is a fairly recent
development. Before passage of the Act some States had passed laws to improve the educational
services afforded handicapped children, 12 but many of these children were excluded completely
from any form of public education or were left to fend for themselves in classrooms designed for
education of their nonhandicapped peers. As previously noted, the House Report begins by
emphasizing this exclusion and misplacement, noting that mil lions of handicapped children
“were either totally excluded from schools or [were] sitting idly in regular classrooms awaiting
the time when they were old enough to d̀rop out.'” H. R. Rep., at 2. See also S. Rep., at 8. One of
the Act’s two principal sponsors in the Senate urged its passage in similar terms:

“While much progress has been made in the last few years, we can take no solace in that
progress until all handicapped children are, in fact, receiving an education. The most recent
statistics provided by the Bureau of Education for the Handicapped estimate that . . . 1.75
million handicapped children do not receive any educational services, and 2.5 million
handicapped children are not receiving an appropriate education.” 121 Cong. Rec. 19486
(1975) (remarks of Sen. Williams).

This concern, stressed repeatedly throughout the legislative history, 13 confirms the impression
conveyed by the language [458 U.S. 176 , 192] of the statute: By passing the Act, Congress sought
primarily to make public education available to handicapped children. But in seeking to provide
such access to public education, Congress did not impose upon the States any greater substantive
educational standard than would be necessary to make such access meaningful. Indeed, Congress
expressly “recognize[d] that in many instances the process of providing special education and

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related services to handicapped children is not guaranteed to produce any particular outcome.” S.
Rep., at 11. Thus, the intent of the Act was more to open the door of public education to
handicapped children on appropriate terms than to guarantee any particular level of education
once inside.

Both the House and the Senate Reports attribute the impetus for the Act and its predecessors to
two federal-court judgments rendered in 1971 and 1972. As the Senate Report states, passage of
the Act “followed a series of landmark court cases establishing in law the right to education for
all handicapped children.” S. Rep., at 6. 14 The first case, Pennsylvania Assn. for Retarded
Children v. Commonwealth, 334 F. Supp. 1257 (ED Pa. 1971) and 343 F. Supp. 279 (1972)
(PARC), was a suit on behalf of retarded children challenging the constitutionality of a
Pennsylvania statute which acted to exclude them from public education and training. The case
ended in a consent decree which enjoined the State from “deny[ing] to any mentally retarded
child access to a free public program of education and training.” 334 F. Supp., at 1258 (emphasis
added).

PARC was followed by Mills v. Board of Education of District of Columbia, 348 F. Supp. 866
(DC 1972), a case in which the plaintiff handicapped children had been excluded [458 U.S. 176,
193] from the District of Columbia public schools. The court’s judgment, quoted in S. Rep., at 6,
provided that

“no [handicapped] child eligible for a publicly supported education in the District of
Columbia public schools shall be excluded from a regular school assignment by a Rule,
policy, or practice of the Board of Education of the District of Columbia or its agents unless
such child is provided (a) adequate alternative educational services suited to the child’s needs,
which may include special education or tuition grants, and (b) a constitutionally adequate
prior hearing and periodic review of the child’s status, progress, and the adequacy of any
educational alternative.” 348 F. Supp., at 878 (emphasis added).

Mills and PARC both held that handicapped children must be given access to an adequate,
publicly supported education. Neither case purports to require any particular substantive level of
education. 15 Rather, like the language of the Act, [458 U.S. 176 , 194] the cases set forth extensive
procedures to be followed in formulating personalized educational programs for handicapped
children. See 348 F. Supp., at 878-883; 334 F. Supp., at 1258-1267. 16 The fact that both PARC
and Mills are discussed at length in the legislative Reports 17 suggests that the principles which
they established are the principles which, to a significant extent, guided the drafters of the Act.
Indeed, immediately after discussing these cases the Senate Report describes the 1974 statute as
having “incorporated the major principles of the right to education cases.” S. Rep., at 8. Those
principles in turn became the basis of the Act, which itself was designed to effectuate the
purposes of the 1974 statute. H. R. Rep., at 5. 18 [458 U.S. 176 , 195]

That the Act imposes no clear obligation upon recipient States beyond the requirement that
handicapped children receive some form of specialized education is perhaps best demonstrated
by the fact that Congress, in explaining the need for the Act, equated an “appropriate education”
to the receipt of some specialized educational services. The Senate Report states: “[T]he most

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recent statistics provided by the Bureau of Education for the Handicapped estimate that of the
more than 8 million children . . . with handicapping conditions requiring special education and
related services, only 3.9 million such children are receiving an appropriate education.” S. Rep.,
at 8. 19 This statement, which reveals Congress’ view that 3.9 million handicapped children were
“receivi ng an appropri ate educa tion” in 1975 , is followed immedia tely i n the Sena te Re port by a
table showing that 3.9 million handicapped children were “served” in 1975 and a slightly larger
number were “unserved.” A similar statement and table appear in the House Report. H. R. Rep.,
at 11-12. [458 U.S. 176 , 196]

It is evident from the legislative history that the characterization of handicapped children as
“served” referred to children who were receiving some form of specialized educational services
from the States, and that the characterization of children as “unserved” referred to those who
were receiving no specialized educational services. For example, a letter sent to the United States
Commissioner of Education by the House Committee on Education and Labor, signed by two key
sponsors of the Act in the House, asked the Commissioner to identify the number of handicapped
“children served” in each State. The letter asked for statistics on the number of children “being
served” in various types of “special education program[s]” and the number of children who were
not “receiving educational services.” Hearings on S. 6 before the Subcommittee on the
Handicapped of the Senate Committee on Labor and Public Welfare, 94th Cong., 1st Sess., 205-
207 (1975). Similarly, Senator Randolph, one of the Act’s principal sponsors in the Senate, noted
that roughly one-half of the handicapped children in the United States “are receiving special
educational services.” Id., at 1. 20 By [458 U.S. 176 , 197] characterizing the 3.9 million
handicapped children who were “served” as children who were “receiving an appropriate
education,” the Senate and House Reports unmistakably disclose Congress’ perception of the type
of education required by the Act: an “appropriate education” is provided when personalized
educational services are provided. 21 [458 U.S. 176 , 198]

(ii)

Respondents contend that “the goal of the Act is to provide each handicapped child with an equal
educational opportunity.” Brief for Respondents 35. We think, however, that the requirement that
a State provide specialized educational services to handicapped children generates no additional
requirement that the services so provided be sufficient to maximize each child’s potential
“commensurate with the opportunity provided other children.” Respondents and the United
States correctly note that Congress sought “to provide assistance to the States in carrying out
their responsibilities under . . . the Constitution of the United States to provide equal protection
of the laws.” S. Rep., at 13. 22 But we do not think that such statements imply a congressional
intent to achieve strict equality of opportunity or services.

The educational opportunities provided by our public school systems undoubtedly differ from
student to stud ent, depending upo n a myriad of factors that m ight affect a particul ar student’s
ability to assimilate information presented in the classroom. The requirement that States provide
“equal” educational opportunities would thus seem to present an entirely unworkable standard
requiring impossible measurements and comparisons. Similarly, furnishing handicapped children
with only such services as are available to nonhandicapped [458 U.S. 176 , 199] children would in all

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probability fall short of the statutory requirement of “free appropriate public education”; to
require, on the other hand, the furnishing of every special service necessary to maximize each
handicapped child’s potential is, we think, further than Congress intended to go. Thus to speak in
terms of “equal” services in one instance gives less than what is required by the Act and in
another instance more. The theme of the Act is “free appropriate public education,” a phrase
which is too complex to be captured by the word “equal” whether one is speaking of
opportunities or services.

The legislative conception of the requirements of equal protection was undoubtedly informed by
the two District Court decisions referred to above. But cases such as Mills and PARC held
simply that handicapped children may not be excluded entirely from public education. In Mills,
the District Court said:

“If sufficient funds are not available to finance all of the services and programs that are
needed and desirable in the system then the available funds must be expended equitably in
such a manner that no child is entirely excluded from a publicly supported education
consistent with his needs and ability to benefit therefrom.” 348 F. Supp., at 876.

The PARC court used similar language, saying “[i]t is the commonwealth’s obligation to place
each mentally retarded child in a free, public program of education and training appropriate to the
child’s capacity . . . .” 334 F. Supp., at 1260. The right of access to free public education
enunciated by these cases is significantly different from any notion of absolute equality of
opportunity regardless of capacity. To the extent that Congress might have looked further than
these cases which are mentioned in the legislative history, at the time of enactment of the Act this
Court had held at least twice that the Equal Protection Clause of the Fourteenth [458 U.S. 176, 200]
Amendment does not require States to expend equal financial resources on the education of each
child. San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1 (1973); McInnis v.
Shapiro, 293 F. Supp. 327 (ND Ill. 1968), aff’d sub nom. McInnis v. Ogilvie, 394 U.S. 322
(1969).

In explaining the need for federal legislation, the House Report noted that “no congressional
legislation has required a precise guarantee for handicapped children, i. e. a basic floor of
opportunity that would bring into compliance all school districts with the constitutional right of
equal protection with respect to handicapped children.” H. R. Rep., at 14. Assuming that the Act
was designed to fill the need identified in the House Report – that is, to provide a “basic floor of
opportunity” consistent with equal protection – neither the Act nor its history persuasively
demonstrates that Congress thought that equal protection required anything more than equal
access. Therefore, Congress’ desire to provide specialized educational services, even in
furtherance of “equality,” cannot be read as imposing any particular substantive educational
standard upon the States.

The District Court and the Court of Appeals thus erred when they held that the Act requires New
York to maximize the potential of each handicapped child commensurate with the opportunity
provided nonhandicapped children. Desirable though that goal might be, it is not the standard
that Congress imposed upon States which receive funding under the Act. Rather, Congress

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sought primarily to identify and evaluate handicapped children, and to provide them with access
to a free public education.

(iii)

Implicit in the congressional purpose of providing access to a “free appropriate public education”
is the requirement that the education to which access is provided be sufficient to confer some
educational benefit upon the handicapped child. It would do little good for Congress to spend
millions of dollars in providing access to a public education only to have the [458 U.S. 176, 201]
handicapped child receive no benefit from that education. The statutory definition of “free
appropriate public education,” in addition to requiring that States provide each child with
“specially designed instruction,” expressly requires the provision of “such . . . supportive services
. . . as may be required to assist a handicapped child to benefit from special education.” 1401(17)
(emphasis added). We therefore conclude that the “basic floor of opportunity” provided by the
Act consists of access to specialized instruction and related services which are individually
designed to provide educational benefit to the handicapped child. 23 [458 U.S. 176 , 202]

The determination of when handicapped children are receiving sufficient educational benefits to
satisfy the requirements of the Act presents a more difficult problem. The Act requires
participating States to educate a wide spectrum of handicapped children, from the marginally
hearing-impaired to the profoundly retarded and palsied. It is clear that the benefits obtainable by
children at one end of the spectrum will differ dramatically from those obtainable by children at
the other end, with infinite variations in between. One child may have little difficulty competing
successfully in an academic setting with nonhandicapped children while another child may
encounter great difficulty in acquiring even the most basic of self-maintenance skills. We do not
attempt today to establish any one test for determining the adequacy of educational benefits
conferred upon all children covered by the Act. Because in this case we are presented with a
handicapped child who is receiving substantial specialized instruction and related services, and
who is performing above average in the regular classrooms of a public school system, we confine
our analysis to that situation.

The Act requires participating States to educate handicapped children with nonhandicapped
children whenever possible. 24 When that “mainstreaming” preference of the Act [458 U.S. 176,
203] has been met and a child is being educated in the regular classrooms of a public school
system, the system itself monitors the educational progress of the child. Regular examinations are
administered, grades are awarded, and yearly advancement to higher grade levels is permitted for
those children who attain an adequate knowledge of the course material. The grading and
advancement system thus constitutes an important factor in determining educational benefit.
Children who graduate from our public school systems are considered by our society to have
been “educated” at least to the grade level they have completed, and access to an “education” for
handicapped children is precisely what Congress sought to provide in the Act. 25

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When the language of the Act and its legislative history are considered together, the requirements
imposed by Congress become tolerably clear. Insofar as a State is required to provide a

handicapped child with a “free appropriate public education,” we hold that it satisfies this
requirement by providing personalized instruction with sufficient support services to permit the

child to benefit educationally from that instruction. Such instruction and services must be
provided at public expense, must meet the State’s educational standards, must approximate the

grade level s used in the Stat e’s regular educa tion, and m ust co mport with the c hild’s IEP. In
addition, the IEP, and therefore the personalized instruction, should be formulated in accordance

with the requirements of [458 U.S. 176 , 204] the Act and, if the child is being educated in the
regular classrooms of the public education system, should be reasonably calculated to enable the

child to achieve passing marks and advance from grade to grade. 26

As mentioned in Part I, the Act permits “[a]ny party aggrieved by the findings and decision” of
the state administrative hearings “to bring a civil action” in “any State court of competent

jurisdiction or in a district court of the United States without regard to the amount in
controversy.” 1415(e)(2). The complaint, and therefore the civil action, may concern “any matter
relating to the identification, evaluation, or educational placement of the child, or the provision

[458 U.S. 176 , 205] of a free app ropri ate pu blic educa tion to such chi ld.” 1 415(b)(1) (E). In
reviewing the complaint, the Act provides that a court “shall receive the record of the [state]

administrative proceedings, shall hear additional evidence at the request of a party, and, basing
its decision on the preponderance of the evidence, shall grant such relief as the court determines

is appropriate.” 1415(e)(2).

The parties disagree sharply over the meaning of these provisions, petitioners contending that
courts are given only limited authority to review for state compliance with the Act’s procedural
requirements and no power to review the substance of the state program, and respondents
contending that the Act requires courts to exercise de novo review over state educational
decisions and policies. We find petitioners’ contention unpersuasive, for Congress expressly
rejec ted pr ovisions that would have so sev erely restri cted t he rol e of reviewing co urts. In
substituting the current language of the statute for language that would have made state
administrative findings conclusive if supported by substantial evidence, the Conference
Committee explained that courts were to make “independent decision[s] based on a
preponderance of the evidence.” S. Conf. Rep. No. 94-455, p. 50 (1975). See also 121 Cong. Rec.
37416 (1975) (remarks of Sen. Williams).

But although we find that this grant of authority is broader than claimed by petitioners, we think
the fact that it is found in 1415, which is entitled “Procedural safeguards,” is not without
significance. When the elaborate and highly specific procedural safeguards embodied in 1415 are

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contrasted with the general and somewhat imprecise substantive admonitions contained in the
Act, we think that the importance Congress attached to these procedural safeguards cannot be
gainsaid. It seems to us no exaggeration to say that Congress placed every bit as much emphasis
upon compliance with procedures giving parents and guardians a large measure of participation
at every stage of the administrative process, see, e. g., 1415(a)-(d), as it did upon the
measurement of th e resulting [458 U.S. 176 , 206] IEP against a substantive standard. We think that
the congressional emphasis upon full participation of concerned parties throughout the
development of the IEP, as well as the requirements that state and local plans be submitted to the
Secretary for approval, demonstrates the legislative conviction that adequate compliance with the
procedures prescribed would in most cases assure much if not all of what Congress wished in the
way of substantive content in an IEP.

Thus the provision that a reviewing court base its decision on the “preponderance of the
evidence” is by no means an invitation to the courts to substitute their own notions of sound
educational policy for those of the school authorities which they review. The very importance
which Congress has attached to compliance with certain procedures in the preparation of an IEP
would be frustrated if a court were permitted simply to set state decisions at nought. The fact that
1415(e) requires that the reviewing court “receive the records of the [state] administrative
proceedings” carries with it the implied requirement that due weight shall be given to these
proceedings. And we find nothing in the Act to suggest that merely because Congress was rather
sketchy in establishing substantive requirements, as opposed to procedural requirements for the
preparation of an IEP, it intended that reviewing courts should have a free hand to impose
substantive standards of review which cannot be derived from the Act itself. In short, the
statutory authorization to grant “such relief as the court determines is appropriate” cannot be read
without reference to the obligations, largely procedural in nature, which are imposed upon
recipient States by Congress.

Therefore, a court’s inquiry in suits brought under 1415(e)(2) is twofold. First, has the State
complied with the procedures set forth in the Act? 27 And second, is the [458 U.S. 176, 207]
individualized educational program developed through the Act’s procedures reasonably
calculated to enable the child to receive educational benefits? 28 If these requirements are met,
the State has complied with the obligations imposed by Congress and the courts can require no
more.

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In assuring that the requirements of the Act have been met, courts must be careful to avoid
imposing their view of preferable educational methods upon the States. 29 The primary

responsibility for formulating the education to be accorded a handicapped child, and for choosing
the educational method most suitable to the child’s needs, was left by the Act to state and local

educational agencies in cooperation with the parents or guardian of the child. The Act expressly
charges States with the responsibility of “acquiring and disseminating to teachers and

administrators of programs for handicapped children significant information derived from
educational research, demonstration, and similar projects, and [of] adopting, where appropriate,
promising educational practices and materials.” 1413(a)(3). In the face of such a clear statutory
directive, it seems highly unlikely that Congress intended [458 U.S. 176 , 208] courts to overturn a

State’s choice of appropriate educational theories in a proceeding conducted pursuant to
1415(e)(2). 30

We previously have cautioned that courts lack the “specialized knowledge and experience”
necessary to resolve “persistent and difficult questions of educational policy.” San Antonio
Independent School Dist. v. Rodriguez, 411 U.S., at 42 . We think that Congress shared that
view when it passed the Act. As already demonstrated, Congress’ intention was not that the Act
displace the primacy of States in the field of education, but that States receive funds to assist
them in extending their educational systems to the handicapped. Therefore, once a court
determines that the requirements of the Act have been met, questions of methodology are for
resolution by the States.

Entrusting a child’s education to state and local agencies does not leave the child without
protection. Congress sought to protect individual children by providing for parental involvement
in the development of state plans and policies, supra, at 182-183, and n. 6, and in the formulation

of the child’s individual educational program. As the Senate Report states:

“The Committee recognizes that in many instances the process of providing special education
and related services to handicapped children is not guaranteed to produce any particular
outcome. By changing the language [of the provision relating to individualized educational
programs] to emphasize the process of parent and child [458 U.S. 176 , 209] involvement and to
provide a written record of reasonable expectations, the Committee intends to clarify that
such individualized planning conferences are a way to provide parent involvement and
protection to assure that appropriate services are provided to a handicapped child.” S. Rep., at
11-12.

See also S. Conf. Rep. No. 94-445, p. 30 (1975); 34 CFR 300.345 (1981). As this very case
demonstrates, parents and guardians will not lack ardor in seeking to ensure that handicapped
children receive all of the benefits to which they are entitled by the Act. 31

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Applying these principles to the facts of this case, we conclude that the Court of Appeals erred in
affirming the decision of the District Court. Neither the District Court nor the Court of Appeals
found that petitioners had failed to comply with the procedures of the Act, and the findings of

neither court would support a conclusion that Amy’s educational program failed to comply with
the substantive requirements of the Act. On the contrary, the District Court found that the

“evidence firmly establishes that Amy is receiving an [458 U.S. 176 , 210] `adequate’ education,
since she performs better than the average child in her class and is advancing easily from grade to

grade.” 483 F. Supp., at 534. In light of this finding, and of the fact that Amy was receiving
personalized instruction and related services calculated by the Furnace Woods school

administrators to meet her educational needs, the lower courts should not have concluded that the
Act requires the provision of a sign-language interpreter. Accordingly, the decision of the Court

of Appeals is reversed, and the case is remanded for further proceedings consistent with this
opinion. 32

So ordered.

Footnotes

[ Footnote 1 ] See S. Rep. No. 94-168, p. 5 (1975) (S. Rep.); H. R. Rep., at 2-3.

[ Footnote 2 ] Two cases, Mills v. Board of Education of District of Columbia, 348 F. Supp. 866 (DC 1972), and Pennsylvania
Assn. for Retarded Children v. Commonwealth, 334 F. Supp. 1257 (ED P a. 1971) and 343 F. Su pp. 279 (1972), were later
identified as the most prominent of the cases contributing to Congress’ enactment of the Act and the statutes which preceded it.
H. R. Rep., at 3-4. Both decisions are discussed in Part III of this opinion.

[ Footnote 3 ] All functions of the Commissioner of Education, formerly an officer in the Department of Health, Education, and
Welfare, were transferred to the Secretary of Education in 1979 when Congress passed the Department of Education
Organization Act, 20 U.S.C. 3401 et seq. (1976 ed., Supp. IV). See 20 U.S.C. 3441(a)(1) (1976 ed., Supp. IV).

[ Footnote 4 ] Despite this preference for “mainstreaming” handicapped ch ildren – educating them with nonhand icapped children
– Congress recognized that regular classrooms simply would no t be a suitable setting for the education o f many handicapped
children. The Act expressly acknowledges that “the nature or severity of the hand icap [may be] such that education in regu lar
classes with the use of supplementary aids and services cannot be achieved satisfactorily.” 1412(5). The Act thus provides for the
education of some handicapped children in separate classes or institutional settings. See ibid.; 1413(a)(4).

[ Footnote 5 ] In addition to covering a wide variety of handicapping conditions, the Act requires special educational services for
children “regardless of the severity of their handicap.” 1412(2)(C), 1414(a)(1)(A).

[ Footnote 6 ] The requirements that parents be permitted to file complaints regarding their child’s education, and be present
when the child’s IEP is formulated, represent only two examples of Congress’ effort to maximize parental involvement in the
education of each handicapped child. In addition, the Act requires that parents be permitted “to examine all relevant records with
respect to the identification, evaluatio n, and educational placement of the child , and . . . to obtain an indep endent educational
evaluation of the child.” 1415(b)(1)(A). See also 1412(4), 1414(a)(4). State educational [458 U.S. 176, 183] policies and the
state plan submitted to the Secretary of Education must be formulated in “consultation with ind ividuals involved in or concerned
with the education of handicapped children, including hand icapped individuals and paren ts or guardians of handicapped
children.” 1412(7). See also 1412(2)(E). Local agencies, which receive funds under the Act by applying to the state agency, must
submit applications which assure that they have developed procedures for “the participation and consultation of the parents or
guardian[s] of [handicapped] children” in local educational programs, 1414(a)(1)(C)(iii), and the application itself, along with
“all pertinent documents related to such application,” must be made “available to parents, guardians, and other members of the
general public.” 1414(a)(4).

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[ Footnote 7 ] “Any party” to a state or local administrative hearing must “be accorded (1) the right to be accompanied and
advised by counsel and by individuals with special knowledge or training with respect to the problems of handicapped children,
(2) the right to present evidence and confront, cross examine, and compel the attendance of witnesses, (3) the right to a written or
electronic verbatim record of such hearing, and (4) the right to written findings of fact and decisions.” 1415(d).

[ Footnote 8 ] For reasons that are not revealed in the record, the District Court concluded that “[t]he Act itself does not define
`appropriate education.'” 483 F. Supp., at 533. In fact, the Act expressly defines the phrase “free appropriate public education,”
see 1401(18), to which the District Court was referring. See 483 F. Supp., at 533. After overlooking the statutory definition, the
District Court sought guidance not from regulations interpreting the Act, but from regulations promulgated under 504 of the
Rehabilitation Act. See 483 F. Supp., at 533, citing 45 CFR 84.33(b).

[ Footnote 9 ] The IEP which respondents challenged in the District Court was created for the 1978-1979 school year.
Petitioners contend that the District Court erred in reviewing that IEP after the school year had ended and before the school
administrators were able to develop another IE P for subsequent years. We disagree. Judicial review invariably takes more than
[458 U.S. 176, 187] nine months to complete, not to mentio n the time consumed during the precedin g state administrative
hearings. The District Court thus correctly ruled that it retained jurisdiction to grant relief because the alleged deficiencies in the
IEP were capable of repetition as to the parties before it yet evading review. 483 F. Supp. 536, 538 (1980). See Murphy v. Hunt,
455 U.S. 478, 482 (1982); Weinstein v. Bradford, 423 U.S. 147, 149 (1975).

[ Footnote 10 ] Examples of “related services” identified in the Act are “speech pathology and audiology, psychological services,
physical and occupational therapy, recreation, and medical and counseling services, except that such medical services shall be for
diagnostic and evaluation purposes only.” 1401(17).

[ Footnote 11 ] The dissent, finding that “the standard of the courts below seems . . . to reflect the congressional purpose” of the
Act, post, at 218, concludes that our answer to this question “is not a satisfactory one.” Post, at 216. Presumably, the dissent also
agrees with the District Court’s conclusion that “it has been left entirely to the courts and the hearing officers to give content to
the requirement of an `appropriate education.'” 483 F. Supp., at 533. It thus seems that the dissent would give the courts carte
blanche to impose upon the States whatever burden their various judgments indicate should be imposed. Indeed, the dissent
clearly characterizes the requirement of an “appropriate education” as open-ended, noting that “if there are limits not evident
from the face of the statute on what may be considered an àppropriate education,’ they must be found in the purpose of the
statute or its legislative history.” Post, at 213. Not only are we unable to find any suggestion from the face of the statute that the
requirement of an “appropriate education” was to be limitless, but we also view the dissent’s approach as contrary to the
fundamental proposition that C ongress, when exercising its spending power, can impo se no burden upon the S tates unless it does
so unambiguously. See infra, at 204, n. 26. No one can doubt that this would have been an easier case if Congress had seen fit to
provide a more comprehensive statutory definition of the phrase “free appropriate public education.” But Congress did not do so,
and “our problem is to construe what Congress has written. After all, Congress expresses its purpose by words. It is for us to
ascertain – neither to add nor to subtract, neither to delete nor to distort.” 62 Cases of Jam v. United States, 340 U.S. 593, 596
(1951). We would be less than faithful to our obligation to construe what Congress has written if in this case we were to
disregard the statutory language and legislative history of the Act by concluding that Congress had imposed upon the States a
burden of unspecified proportions and weight, to be revealed only through case-by-case adjudication in the courts.

[ Footnote 12 ] See H. R. Rep ., at 10; Not e, The Educati on of All Handi capped Chil dren Act of 197 5, 10 U. Mich . J. L. Ref.
110, 119 (1976).

[ Footnote 13 ] See, e. g., 121 Cong. Rec. 194 94 (1975) (remarks of Sen. Javits) (“all too often, our handicapped citizens have
been denied the opportunity to receive an adequate education”); id., at 19502 (remarks of Sen. Cranston) (millions of
handicapped “children . . . are largely excluded from the educational opportuni ties that we give to our other children”); id. , at
23708 (remarks of Rep. Mink) (“handicapp ed children . . . are denied access to pub lic schools because of a lack of trained
personnel”).

[ Footnote 14 ] Similarly, the Senate Report states that it was an “[i] ncreased awareness of the educational needs of hand icapped
children and landmark court decisions establishing the right to education for handicapped children [that] pointed to the necessity
of an expanded federal fiscal role.” S. Rep., at 5. See also H. R. Rep., at 2-3.

[ Footnote 15 ] The only substantive standard which can be implied from these cases comports with the standard implicit in the
Act. PARC states that each child must receive “access to a free public program of education and training appropriate to his
learning capacities,” 334 F. Supp., at 1258 (emphasis added), and that further state action is required when it appears that “the
needs of the ment ally retarded ch ild are not b eing adequat ely served,” id., at 1266. (E mphasis added .) Mills also speaks in terms

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of “adequate” educational services, 348 F. Supp., at 878, and sets a realistic standard of providing some educational services to
each child when every need cannot be met. “If sufficient funds are not available to finance all of the services and programs that
are needed and desirable in the system then the available funds must be expended equitably in such a manner that no child is
entirely excluded from a publicly supported education consistent with his needs and ability to benefit therefrom. The
inadequacies of the District of Columbia P ublic School System whether occasioned by insufficient fun ding or administrative
inefficiency, certainly cannot be permitted to bear more heavily on the `exception al’ or handicapped child than on the normal
child.” Id., at 876.

[ Footnote 16 ] Like the Act, PARC required the State to “iden tify, locate, [and] evaluate” handicapped children, 334 F. Supp ., at
1267, to create for each child an individual educational program, id., at 1265, and to hold a hearing “on any change in
educational assignment,” id., at 1266. Mills also required the preparation of an individual educational program for each child. In
addition, Mills permitted the child’s parents to inspect records relevant to the child’s education, to obtain an independent
educational evaluation of the child, to object to the IEP and receive a hearing before an independent hearing officer, to be
represented by counsel at the hearing, and to have the right to confront and cross-examine adverse witnesses, all of which are
also permitted by the Act. 348 F. Supp., at 879-881. Like the Act, Mills also requ ired that the education of handi capped children
be conducted pursuant to an overall plan prepared by the District of Colu mbia, and established a policy of educating hand icapped
children with nonhandicapped children whenever possible. Ibid.

[ Footnote 17 ] See S. Rep., at 6-7; H. R. Rep., at 3-4.

[ Footnote 18 ] The 1974 statute “incorpor ated the major principles of the right to edu cation cases,” by “add[ing] important new
provisions to the Educatio n of the Handicapped Act which require the S tates to: establish a goal of providing full edu cational
opportunities to all handicapped children; provide procedures for insuring that handicapped children and their parents or
guardians are guaranteed procedural safeguards in decisions regarding identification, evaluation, and educational placement of
handicapped children; establish procedures to insure that, to the maximum extent appropriate, handicapped children . . . are
educated with children who are not handicapped; . . . and, establish procedures to insure that testing and evaluation materials and
procedures utilized for the purposes of classification [458 U.S. 176, 195] and placement of handicapped childr en will be selected
and administered so as not to be racially or cult urally discriminatory.” S. Rep., at 8. The House Repor t explains that the Act
simply incorporated these purposes of the 1974 statute: the Act was intended “primarily to amend . . . the Education of the
Handicapped Act in order to provide permanent authorization and a comprehensive mechanism which will insure that those
provisions enacted during the 93rd Congress [the 1974 statute] will result in maximum benefits for handicapped children and
their families.” H. R. Rep., at 5. Thus, the 1974 statute’s purpose of providing handicapped children access to a public education
became the purpose of the Act.

[ Footnote 19 ] These statistics appear repeatedly throughout the legislative history of the Act, demonstrating a virtual consensus
among legislators that 3.9 million handi capped children were receiving an appropri ate education in 1975. See, e. g., 121 Cong.
Rec. 19486 (1975) (remarks of Sen. Williams); id., at 19504 (remarks of Sen. Schweicker); id., at 23702 (remarks of Rep.
Madden); ibid. (remarks of Rep. Brademas); id., at 23709 (remarks of Rep. Minish); id., at 37024 (remarks of Rep. Brademas);
id., at 37027 (remarks of Rep. Gude); id., at 37417 (remarks of Sen. Javits); id., at 37420 (remarks of Sen. Hathaway).

[ Footnote 20 ] Senator Randolph stated : “[O]nly 55 percent of the school- aged handicapped children and 22 percent of the pre-
school-aged handicapped children are receiving special educational services.” Hearings on S. 6 before the Subcommittee on the
Handicapped of the Senate Committee on Labor an d Public Welfare, 94th Cong., 1 st Sess., 1 (1975). Although th e figures differ
slightly in various parts of the legislative history, the general thrust of congressional calculations was that roughly one-half of the
handicapped children in th e United States were not receiving specialized educatio nal services, and thus were not “served.” See, e.
g., 121 Cong. Rec. 19494 (1975) (remarks of Sen. Javits) (“only 50 percent of the Nati on’s handicapped children received proper
education services”); id., at 19504 (remarks of Sen. Humphrey) (“[a]lmost 3 million handicapped children, while in school,
receive none of the special services that they require in order to make education a meaningful experience”); id., at 23706
(remarks of Rep. Quie) (“only 55 percent [of handicap ped children] were receiving a public edu cation”); id., at 23709 (remarks
of Rep. Biaggi) (“[o]ver 3 million [458 U.S. 176, 197] [handicapped] child ren in this country are receiving either below par
education or none at all”). Statements similar to those appearing in the text, which equate “served” as it appears in the Senate
Report to “receiving special educational services,” appear throughout the legislative history. See, e. g., id., at 19492 (remarks of
Sen. Williams); id., at 19494 (remarks of Sen. Javits); id., at 19496 (remarks of Sen. Stone); id., at 19504-19505 (remarks of Sen.
Humphrey); id., at 23703 (remarks of Rep. Brademas); Hearings on H. R. 7217 before the Subcommittee on Select Education of
the House Committee on Education and Labor, 94th Cong., 1st Sess., 91, 150, 153 (1975); Hearings on H. R. 4199 before the
Select Subcommittee on Education of the Ho use Committee on Education and Labor, 9 3d Cong., 1st Sess., 130, 1 39 (1973). See
also 34 CFR 300.343 (1981).

[ Footnote 21 ] In seeking to read more into the Act than its lan guage or legislative history will permit, the United States focuses

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upon the word “appropriate,” argui ng that “the statutory definitions do n ot adequately explain what [it means].” Brief for United
States as Amicus Curiae 13. Whatever Congress meant by an “appropriate” education, it is clear that it did not mean a potential-
maximizing education. The term as used in reference to educating the handicapped appears to have originated in the PARC
decision, where the District Court required that handicapped children be provided with “education and training appropriate to
[their] learning capacities.” 334 F. Supp., at 1258. The word appears again in the Mills decision, the District Court at one point
referring to the need for “an appropriate educational program,” 348 F. Supp., at 879, and at another point speaking of a “suitable
publicly-supported educatio n,” id., at 878. Both cases also refer to th e need for an “adequate” education. See 334 F. Supp., at
1266; 348 F. Supp ., at 878. The use of “appropriate” in th e language of the Act, although by no means definitive, suggests that
Congress used the word as much to describe the settings in which handicapped children should be educated as to prescribe the
substantive content or supportive services of their education. For example, 1412(5) requires that handicapped children be
educated in classrooms with nonhand icapped children “to the maximum extent appropri ate.” [458 U.S. 176, 198] Similarl y,
1401(19) provides that, “whenever appropriate,” handicapped children should attend and participate in the meeting at which their
IEP is drafted. In addition, the definition of “free appropriate publ ic education” itself states that instruction given handicapped
children should be at an “appropriate preschool, elementary, or secondary school” level. 1401(18)(C). The Act’s use of the word
“appropriate” thus seems to reflect Congress’ recognition that some settings simply are not suitable environments for the
participation of some handicapped children. At the very least, these statutory uses of the word refute the contention that Congress
used “appropriate” as a term of art which concisely expresses the standard found by the lower courts.

[ Footnote 22 ] See also 121 Cong. Rec. 19492 (1975) (remarks of Sen. Williams); id., at 19504 (remarks of Sen. Humphrey).

[ Footnote 23 ] This view is supported by the congressional i ntention, frequently expressed in the legislat ive history, that
handicapped children be enab led to achieve a reasonable degree of self-sufficiency. After referring to statistics showing that
many handicapped children were excluded from public education, the Senate Report states: “The long range implications of these
statistics are that public agencies and taxpayers will spend billions of dollars over the lifetimes of these individuals to maintain
such persons as dependents and in a minimally acceptable lifestyle. With proper education services, many would be able to
become productive citizens, contributing to society instead of being forced to remain burdens. Others, through such services,
would increase their independence, thus reducing their dependence on society.” S. Rep., at 9. See also H. R. Rep., at 11.
Similarly, one of the principal Senate spon sors of the Act stated that “providing approp riate educational services now means that
many of these individuals will be able to become a contributing part of our society, and they will not have to depend on
subsistence payments from public funds.” 121 Cong. Rec. 19492 (1975) (remarks of Sen. Williams). See also id., at 25541
(remarks of Rep. Harkin); id., at 37024-37025 (remarks of Rep. Brademas); id., at 37027 (remarks of Rep. Gude); id., at 37410
(remarks of Sen. Randolph); id., at 374 16 (remarks of Sen. Williams). The desire to provide hand icapped children with an
attainable degree of personal independ ence obviously anticipated that state educati onal programs would confer educational
benefits upon such children. But at the same time, the goal of achieving some degree of self-sufficiency in most cases is a good
deal more modest than the potential-maximizing goal adopted by the lower courts. Despite its frequent mention, we cannot
conclude, as did the dissent in the Court of Appeals, that self-sufficiency was itself the substantive [458 U.S. 176, 202] standard
which Congress imposed upon the States. Because many mildly handicapped children will achieve self-sufficiency without state
assistance while personal independence for the severely handicapped may be an unreachable goal, “self-sufficiency” as a
substantive standard is at once an inadequate protection and an overly demanding requirement. We thus view these references in
the legislative history as evidence of Congress’ intention that the services provided handicapped children be educationally
beneficial, whatever the nature or severity of their handicap.

[ Footnote 24 ] Title 20 U.S.C. 1412(5) requires that participating States establish “procedures to assure that, to the maximum
extent appropriate, handicapp ed children, including child ren in public or private institu tions or other care facilities, are educated
with children who are not handicap ped, and that special classes, separate schoo ling, or other removal of handicapped ch ildren
from the regular educational environment occurs o nly when the [458 U.S. 176, 203] nature or severity of the handicap is such
that education in regular classes with the use o f supplementary aids and services cannot be achieved satisfactorily.”

[ Footnote 25 ] We do not hold today that every handicapped child who is advancing from grade to grade in a regular public
school system is automatically receiving a “free appropriate public education.” In this case, however, we find Amy’s academic
progress, when considered with the special services and professional consideration accorded by the Furnace Woods school
administrators, to be dispositive.

[ Footnote 26 ] In defending the decisions of the District Court and the Court of Appeals, respondents and the United States rely
upon isolated statements in the legislative h istory concerning the achievement of maximum potential, see H. R. Rep., at 1 3, as
support for their contention that Congress intended to impose greater substantive requirements than we have found. These
statements, however, are too thin a reed on which to base an interpretation of the Act which disregards both its language and the
balance of its legislative history. “Passing references and isolated phrases are not controlling when analyzing a legislati ve
history.” Department of State v. Washington Post Co., 456 U.S. 595, 600 (1982). Moreover, even were we to agree that these

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statements evince a congressional intent to maximize each child’s potential, we could not hold that Congress had successfully
imposed that burden upon the States. “[L]egislation enacted pursuant to the spending power is much in the nature of a contract:
in return for federal funds, the States agree to comply with federally imposed conditions. The legitimacy of Congress’ power to
legislate under the spending power thu s rests on whether the State voluntarily and kno wingly accepts the terms of the `contract.’ .
. . Accordingly, if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously.”
Pennhurst State School v. Halderman, 451 U.S. 1, 17 (1981) (footnote omitted). As already demonstrated, the Act and its history
impose no requirements on the States like tho se imposed by the District Court and the Cou rt of Appeals. A fortiori Congress has
not done so unambiguously, as required in the valid exercise of its spending power.

[ Footnote 27 ] This inquiry will require a court not only to satisfy itself that the State has adopted the state plan, policies, and
assurances required by the Act, [458 U.S. 176, 207] but also to determine that the State has created an IEP for the child in
question which conforms with the requirements of 1401(19).

[ Footnote 28 ] When the handicapped child is being educated in the regular classrooms of a public school system, the
achievement of passing marks and advancement from grade to grade will be one important factor in determining educational
benefit. See Part III, supra.

[ Footnote 29 ] In this case, for example, both the state hearing officer and the District Court were presented with evidence as to
the best method for educating the deaf, a questio n long debated among scholars. See Large, Special P roblems of the Deaf Under
the Education for All Handicapped Children Act of 1975, 58 Wash. U. L. Q. 213, 229 (1980). The District Court accepted the
testimony of respondents’ experts that there was “a trend supported by studies showing the greater degree of success of students
brought up in deaf households using [the method of communication used by the Rowleys].” 483 F. Supp., at 535.

[ Footnote 30 ] It is clear that Congress was aware of the States’ traditional rol e in the formulation and execution of edu cational
policy. “Historically, the States have had the primary responsibility for the education of children at the elementary and secondary
level.” 121 Cong. Rec. 19498 (1975) (remarks of Sen. Dole). See also Epperson v. Arkansas, 393 U.S. 97, 104 (1968) (“By and
large, public education in our Nation is committed to the control of state and local authorities”).

[ Footnote 31 ] In addition to providing for extensive parental involvement in the formulation of state and local policies, as well
as the preparation of individual educational programs, the Act ensures that States will receive the advice of experts in the field of
educating handicapped children. As a condition for receiving federal funds under the Act, States must create “an advisory panel,
appointed by the Governor or any other official authorized under State law to make such appointments, composed of individuals
involved in or concerned with the education of handicapped children, including handicapped individuals, teachers, parents or
guardians of handicapped children, State and local education officials, and administrators of programs for handicapped children,
which (A) advises the State educational agency of unmet needs within the State in the education of handicapped children, [and]
(B) comments publicly on any rules or regulations pro posed for issuance by the State regarding the educat ion of handicapped
children.” 1413(a)(12).

[ Footnote 32 ] Because the District Court declined to reach respondents’ contention that petitioners had failed to comply with
the Act’s procedural requirements in developin g Amy’s IEP, 483 F. Supp., at 533, n . 8, the case must be remanded for further
proceedings consistent with this opinion.

JUSTICE BLACKMUN, concurring in the judgment.

Although I reach the same result as the Court does today, I read the legislative history and goals
of the Education of the Handicapped Act differently. Congress unambiguously stated that it
intended to “take a more active role under its responsibility for equal protection of the laws to
guarantee that handicapped children are provided equal educational opportunity.” S. Rep. No. 94-
168, p. 9 (1975) (emphasis added). See also 20 U.S.C. 1412(2)(A)(i) (requiring States to
establish plans with the “goal of providing full educational opportunity to all handicapped
children”).

As I have observed before, “[i]t seems plain to me that Congress, in enacting [this statute],
intended to do more than merely set out politically self-serving but essentially meaningless
language about what the [handicapped] deserve at the hands of state . . . authorities.” Pennhurst

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State School v. Halderman, 451 U.S. 1, 32 (1981) (opinion concurring in part and concurring in
judgment). The clarity of the legislative [458 U.S. 176, 211] intent convinces me that the relevant
question here is not, as the Court says, whether Amy Rowley’s individualized education program
was “reasonably calculated to enable [her] to receive educational benefits,” ante, at 207,
measured in part by whether or not she “achieve[s] passing marks and advance[s] from grade to
grade,” ante, at 204. Rather, the question is whether Amy’s program, viewed as a whole, offered
her an opportunity to understand and participate in the classroom that was substantially equal to
that given her nonhandicapped classmates. This is a standard is predicated on equal educational
opportunity and equal access to the educational process, rather than upon Amy’s achievement of
any particular educational outcome.

In answering this question, I believe that the District Court and the Court of Appeals should have
given greater deference than they did to the findings of the School District’s impartial hearing
officer and the State’s Commissioner of Education, both of whom sustained petitioners’ refusal to
add a sign-language interpreter to Amy’s individualized education program. Cf. 20 U.S.C.
1415(e)(2) (requiring reviewing court to “receive the records of the administrative proceedings”
before granting relief). I would suggest further that those courts focused too narrowly on the
presence or absence of a particular service – a sign-language interpreter – rather than on the total
package of services furnished to Amy by the School Board.

As the Court demonstrates, ante, at 184-185, petitioner Board has provided Amy Rowley
considerably more than “a teacher with a loud voice.” See post, at 215 (dissenting opinion). By
concentrating on whether Amy was “learning as much, or performing as well academically, as
she would without her handicap,” 483 F. Supp. 528, 532 (SDNY 1980), the District Court and
the Court of Appea ls paid too litt le attention to w hether, on the enti re record, responden t’s
individual ized edu cati on pr ogram off ered her an educati onal oppo rtun ity [458 U.S. 176, 212]
substantially equal to that provided her nonhandicapped classmates. Because I believe that
standard has been satisfied here, I agree that the judgment of the Court of Appeals should be
reversed.

JUSTICE WHITE, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join,
dissenting.

In order to reach its result in this case, the majority opinion contradicts itself, the language of the
statute, and the legislative history. Both the majority’s standard for a “free appropriate education”
and its standard for judicial review disregard congressional intent.

The majority first turns its attention to the meaning of a “free appropriate public education.” The
Act provides:

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(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 majority reads this statutory language as establishing a congressional intent limited to
bringing “previously excluded handicapped children into the public education systems of the
States and [requiring] the States to adopt procedures which would result in individ ualized
consideration of and instruction for each child.” Ante, at 189. In its attempt to constrict the
definition of “appropriate” and the thrust of the Act, the majority opinion states: “Noticeably
absent from the language of the statute is any substantive standard prescribing the level of
educ atio n to b e accorde d han dica pped chil dren . Cer tain ly [458 U.S. 176, 213] the language of the
statute contains no requirement like the one imposed by the lower courts – that States maximize
the potential of handicapped children `commensurate with the opportunity provided to other
children.'” Ante, at 189-190, quoting 483 F. Supp. 528, 534 (SDNY 1980).

I agree that the language of the Act does not contain a substantive standard beyond requiring that
the education offered must be “appropriate.” However, if there are limits not evident from the
face of the statute on what may be considered an “appropriate education,” they must be found in
the purpose of the statute or its legislative history. The Act itself announces it will provide a “full
educational opportunity to all handicapped children.” 20 U.S.C. 1412(2)(A) (emphasis added).
This goal is repeated throughout the legislative history, in statements too frequent to be “`passing
references and isol ated phrases.'” 1 Ante, at 204, n. 26, quoting Department of State v.
Washington Post Co., 456 U.S. 595, 600 (1982). These statements elucidate the meaning of
“appropriate.” According to the Senate Report, for example, the Act does “guarantee that
handicapped children are provided equal educational opportunity.” S. Rep. No. 94-168, p. 9
(1975) (emphasi s added). This pro mise appears thro ughout the legisla tive history. See 121 Cong.
Rec. 19482-19483 (1975) (remarks of Sen. Randolph); id., at 19504 (Sen. Humphrey); id., at
19505 (Sen. Beall); id., at 23704 (Rep. Brademas); id., at 25538 (Rep. Cornell); id., at 25540
(Rep. Grassley); id., at 37025 (Rep. Perkins); id., at [458 U.S. 176, 214] 37030 (Rep. Mink); id.,
at 37412 (Sen. Taft); id., at 37413 (Sen. Williams); id., at 37418-37419 (Sen . Cranston); id., at
37419-37420 (Sen. Beall). Indeed, at times the purpose of the Act was described as tailoring each
handicapped child’s educational plan to enable the child “to achieve his or her maximum
potential.” H. R. Rep. No. 94-332, pp. 13, 19 (1975); see 121 Cong. Rec. 23709 (1975). Senator
Stafford, one of the sponsors of the Act, declared: “We can all agree that education [given a
handicapped child] should be equivalent, at least, to the one those children who are not
handicapped receive.” Id., at 19483. The legislative history thus directly supports the conclusion
that the Act intends to give handicapped children an educational opportunity commensurate with
that given other children.

The majority opinion announces a different substantive standard, that “Congress did not impose
upon the States any greater substantive educational standard than would be necessary to make
such access meaningful.” Ante, at 192. While “meaningful” is no more enlightening than
“appropriate,” the Court purports to clarify itself. Because Amy was provided with some
specialized instruction from which she obtained some benefit and because she passed from grade
to grade, she was receiving a meaningful and therefore appropriate education. 2 [458 U.S. 176,

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215]

This falls far short of what the Act intended. The Act details as specifically as possible the kind
of specialized education each handicapped child must receive. It would apparently satisfy the
Court’s standard of “access to specialized instruction and related services which are individually
designed to provide educational benefit to the handicapped child,” ante, at 201, for a deaf child
such as Amy to be given a teacher with a loud voice, for she would benefit from that service. The
Act requires more. It defines “special education” to mean “specifically designed instruction, at no
cost to parents or guardians, to meet the unique needs of a handicapped child . . . .” 1401(16)
(emphasis added). 3 Providing a teacher with a loud voice would not meet Amy’s needs and
would not satisfy the Act. The basic floor of opportunity is instead, as the courts below
recognized, intended to eliminate the effects of the handicap, at least to the extent that the child
will be given an equal opportunity to learn if that is reasonably possible. Amy Rowley, without a
sign-language interpreter, comprehends less than half of what is said in the classroom – less than
half of what normal children comprehend. This is hardly an equal opportunity to learn, even if
Amy makes passing grades.

Despite its reliance on the use of “appropriate” in the definition of the Act, the majority opinion
speculates that “Congress used the word as much to describe the settings in which [458 U.S. 176,
216] handicapped children should be educated as to prescribe the substantive content or
supportive services of their education.” Ante, at 197, n. 21. Of course, the word “appropriate” can
be applied in many ways; at times in the Act, Congress used it to recommend mainstreaming
handicapped children; at other points, it used the word to refer to the content of the
individualized education. The issue before us is what standard the word “appropriate”
incorporates when it is used to modify “education.” The answer given by the Court is not a
satisfactory one.

The Court’s discussion of the standard for judicial review is as flawed as its discussion of a “free
appropriate public education.” According to the Court, a court can ask only whether the State has

“complied with the procedures set forth in the Act” and whether the individualized education
program is “reasonably calculated to enable the child to receive educational benefits.” Ante, at
206, 207. Both the language of the Act and the legislative history, however, demonstrate that

Congress intended the courts to conduct a far more searching inquiry.

The majority assigns major significance to the review provision’s being found in a section
entitled “Proced ural safeguards.” But w here else would a pro vision for judi cial review belong?
The majority does acknowledge that the current language, specifying that a 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 preponderance of the evidence, shall grant such relief as the
court determines is appropriate,” 1415(e)(2), was substituted at Conference for language that
would have restricted the role of the reviewing court much more sharply. It is clear enough to me
that Congress decided to reduce substantially judicial deference to state administrative decisions.

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The legislative history shows that judicial review is not limited to procedural matters and that the
state educational agencies are given first, but not final, responsibility for the [458 U.S. 176, 217]
content of a handicapped child’s education. The Conference Committee directs courts to make an
“independent decision.” S. Conf. Rep. No. 94-455, p. 50 (1975). The deliberate change in the
review provision is an unusually clear indication that Congress intended courts to undertake
substantive review instead of relying on the conclusions of the state agency.

On the floor of the Senate, Senator Williams, the chief sponsor of the bill, Committee Chairman,
and floor manager responsible for the legislation in the Senate, emphasized the breadth of the
review provisions at both the administrative and judicial levels:

“Any parent or guardian may present a complaint concerning any matter regarding the
identification, evaluation, or educational placement of the child or the provision of a free
appropriate public education to such child. In this regard, Mr. President, I would like to stress
that the language referring to `free appropriate education’ has been adopted to make clear that
a complaint may involve matters such as questions respecting a child’s individualized
education program, questions of whether special education and related services are being
provided without charge to the parents or guardians, questions relating to whether the
services provided a child meet the standards of the State education agency, or any other
question within the scope of the definition of f̀ree appropriate public education.’ In addition,
it should be clear that a parent or guardian may present a complaint alleging that a State or
local education agency has refused to provide services to which a child may be entitled or
alleging that the State or local educational agency has erroneously classified a child as a
handicapped child when, in fact, that child is not a handicapped child.” 121 Cong. Rec.
37415 (1975) (emphasis added).

There is no doubt that the state agency itself must make substantive decisions. The legislative
history reveals that the [458 U.S. 176, 218] courts are to consider, de novo, the same issues.
Senator Williams explicitly stated that the civil action permitted under the Act encompasses all
matters related to the original complaint. Id., at 37416.

Thus, the Court’s limitations on judicial review have no support in either the language of the Act
or the legislative history. Congress did not envision that inquiry would end if a showing is made
that the child is receiving passing marks and is advancing from grade to grade. Instead, it
intended to permit a full and searching inquiry into any aspect of a handicapped child’s education.
The Court’s standard, for example, would not permit a challenge to part of the IEP; the legislative
history demonstrates beyond doubt that Congress intended such challenges to be possible, even if
the plan as developed is reasonably calculated to give the child some benefits.

Parents can challenge the IEP for failing to supply the special education and related services
needed by the individual handicapped child. That is what the Rowleys did. As the Government
observes, “courts called upon to review the content of an IEP, in accordance with 20 U.S.C. []
1415(e) inevitably are required to make a judgment, on the basis of the evidence presented,
concerning whether the educational methods proposed by the local school district are
`appropriate’ for the handicapped child involved.” Brief for United States as Amicus Curiae 13.

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The courts below, as they were required by the Act, did precisely that.

Under the judicial review provisions of the Act, neither the District Court nor the Court of
Appeals was bound by the State’s construction of what an “appropriate” education means in
general or by what the state authorities considered to be an appropriate education for Amy
Rowley. Because the standard of the courts below seems to me to reflect the congressional
purpose and because their factual findings are not clearly erroneous, I respectfully dissent.

[ Footnote 1 ] The Court’s opinion relies heavily on the statement, which occurs throughout the legislative history, that, at the
time of enactment, one million of the roughly eight million handicapped children in the United States were excluded entirely
from the public school system and more than half were receiving an inappropriate education. See, e. g., ante, at 189, 195, 196-
197, n. 20. But this statement was often li nked to statements urging equal education al opportunity. See, e. g., 121 Co ng. Rec.
19502 (1975) (remarks of Sen. Cranston); id., at 23702 (remarks of Rep. Brademas). That is, Congress wanted not only to bring
handicapped children into the schoolhouse, but also to benefit them once they had entered.

[ Footnote 2 ] As further support for its conclusio n, the majority opinion turns to Pennsylvania Assn. for Retarded Children v.
Commonwealth, 334 F. Supp. 1257 (ED Pa. 1971), 343 F. Supp. 279 (1972) (PARC), and Mills v. Board of Education of
District of Columbia, 348 F. Supp. 866 (DC 1972). That these decisions served as an impetus for the Act does not, however,
establish them as the limits of the Act. In any case, the very language that the majority quotes from Mills, ante, at 193, 199, sets a
standard not of some education, but of educational opportunity equal to that of nonhandicapped children. Indeed, Mills, relying
on decisions since called into question by this Court’s opinion in San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1
(1973), states: “In Hobson v. Hansen, [269 F. Supp. 401 (DC 1967),] Judge Wright found that denying poor public school
children educational opportunity equal to [458 U.S. 176, 215] that available to more affluent public school ch ildren was violative
of the Due Process Clause of the Fifth Amendment. A fortiori, the defendants’ conduct here, denying plaintiffs and their class not
just an equal publicly supported education but all publicly supported education while providing such education to other children,
is violative of the Due Process Clause.” 348 F . Supp., at 875. Whatever the effect of Rodrigu ez on the validity of this reasoning,
the statement exposes the majority’s mischaracterization of the opinio n and thus of the assumptions of the legislatu re that passed
the Act.

[ Footnote 3 ] “Related services” are “transportation, and su ch developmental, corrective, and other su pportive services . . . as
may be required to assist a handicapped child to benefit from special education.” 1401(17). [458 U.S. 176, 219]

Mills v. Board of Education, DC, 348 F.Supp. 866 (D. DC 1972)

United States District Court, District of Columbia.

Peter MILLS et al., Plaintiffs,

BOARD OF EDUCATION OF the DISTRICT OF COLUMBIA et al., Defendants.

Civ. A. No. 1939‑71.

Aug. 1, 1972.

Julian Tepper and Stanley Herr, NLADA, National Law Office, Patricia M. Wald, Washington, D. C., and Paul R. Dimond, Cambridge, Mass., for plaintiffs.

C. Francis Murphy, Corp. Counsel, D. C., John A. Earnest, and Stephan Shane Stark, Asst. Corp. Counsels, Washington, D. C., for defendants.

Ralph Wolff and G. Dan Bowling, Washington, D. C., for defendant Charles I. Cassell.

John M. Newsome, Washington, D. C., Sp. Counsel for defendant John L. Johnson.

MEMORANDUM OPINION, JUDGMENT AND DECREE

WADDY, District Judge.

This is a civil action brought on behalf of seven children of school age by their next friends in which they seek a declaration of rights and to enjoin the defendants from excluding them from the District of Columbia Public Schools and/or denying them publicly supported education and to compel the defendants to provide them with immediate and adequate education and educational facilities in the public schools or alternative placement at public expense. They also seek additional and ancillary relief to effectuate the primary relief. They allege that although they can profit from an education either in regular classrooms with supportive services or in special classes adopted to their needs, they have been labelled as behavioral problems, mentally retarded, emotionally disturbed or hyperactive, and denied admission to the public schools or excluded therefrom after admission, with no provision for alternative educational placement or periodic review. The action was certified as a class action under Rule 23(b)(1) and (2) of Federal Rules of Civil Procedure by order of the Court dated December 17, 1971.

The defendants are the Board of Education of the District of Columbia and its members, the Superintendent of Schools for the District of Columbia and subordinate school officials, the Commissioner of the District of Columbia and certain subordinate officials and the District of Columbia.

THE PROBLEM

The genesis of this case is found (1) in the failure of the District of Columbia to provide publicly supported education and training to plaintiffs and other “exceptional” children, members of their class, and (2) the excluding, suspending, expelling, reassigning and transferring of “exceptional” children from regular public school classes without affording them due process of law.

The problem of providing special education for “exceptional” children (mentally retarded, emotionally disturbed, physically handicapped, hyperactive and other children with behavioral problems) is one of major proportions in the District of Columbia. The precise number of such children cannot be stated because the District has continuously failed to comply with Section 31‑208 of the District of Columbia Code which requires a census of all children aged 3 to 18 in the District to be taken. Plaintiffs estimate that there are “… 22,000 retarded, emotionally disturbed, blind, deaf, and speech or learning disabled children, and perhaps as many as 18,000 of these children are not being furnished with programs of specialized education.” According to data prepared by the Board of Education, Division of Planning, Research and Evaluation, the District of Columbia provides publicly supported special education programs of various descriptions to at least 3880 school age children [FN1] However, in a 1971 report to the Department of Health, Education and Welfare, the District of Columbia Public Schools admitted that an estimated 12,340 handicapped children were not to be served in the 1971‑72 school year. [FN2]

FN1. See the following reports compiled by the District of Columbia Board of Education, Division of Planning, Research and Evaluation:

(1) Regularly Funded Special Education Programs in the District of Columbia Public Schools, 1970‑71;

(2) ESEA Title III Federal Programs of Special Education in the District of Columbia Public Schools, 1970‑71;

(3) Membership: Special Education Programs and Services, 1970‑71: Non Public School Resources.

FN2. See report entitled, “Description of Projected Activities for Fiscal Year 1972 for the Education of Handicapped Children,” March 15, 1971.

Each of the minor plaintiffs in this case qualifies as an “exceptional” child.

Plaintiffs allege in their complaint and defendants admit as follows:

“PETER MILLS is twelve years old, black, and a committed dependent ward of the District of Columbia resident at Junior Village. He was excluded from the Brent Elementary School on March 23, 1971, at which time he was in the fourth grade. Peter allegedly was a ‘behavior problem’ and was recommended and approved for exclusion by the principal. Defendants have not provided him with a full hearing or with a timely and adequate review of his status. Furthermore, Defendants have failed to provide for his reenrollment in the District of Columbia Public Schools or enrollment in private school. On information and belief, numerous other dependent children of school attendance age at Junior Village are denied a publicly‑supported education. Peter remains excluded from any publicly‑supported education.

“DUANE BLACKSHEARE is thirteen years old, black, resident at Saint Elizabeth’s Hospital, Washington, D. C., and a dependent committed child. He was excluded from the Giddings Elementary School in October, 1967, at which time he was in the third grade. Duane allegedly was a “behavior problem.” Defendants have not provided him with a full hearing or with a timely and adequate review of his status. Despite repeated efforts by his mother, Duane remained largely excluded from all publicly‑supported education until February, 1971. Education experts at the Child Study Center examined Duane and found him to be capable of returning to regular class if supportive services were provided. Following several articles in the Washington Post and Washington Star, Duane was placed in a regular seventh grade classroom on a two‑hour a day basis without any catch‑up assistance and without an evaluation or diagnostic interview of any kind. Duane has remained on a waiting list for a tuition grant and is now excluded from all publicly‑supported education.

“GEORGE LIDDELL, JR., is eight years old, black, resident with his mother, Daisy Liddell, at 601 Morton Street, N. W., Washington, D. C., and an AFDC recipient. George has never attended public school because of the denial of his application to the Maury Elementary School on the ground that he required a special class. George allegedly was retarded. Defendants have not provided him with a full hearing or with a timely and adequate review of his status. George remains excluded from all publicly‑supported education, despite a medical opinion that he is capable of profiting from schooling, and despite his mother’s efforts to secure a tuition grant from Defendants.

“STEVEN GASTON is eight years old, black, resident with his mother, Ina Gaston, at 714 9th Street, N. E., Washington, D. C. and unable to afford private instruction. He has been excluded from the Taylor Elementary School since September, 1969, at which time he was in the first grade. Steven allegedly was slightly brain‑damaged and hyperactive, and was excluded because he wandered around the classroom. Defendants have not provided him with a full hearing or with a timely and adequate review of his status. Steven was accepted in the Contemporary School, a private school, provided that tuition was paid in full in advance. Despite the efforts of his parents, Steven has remained on a waiting list for the requisite tuition grant from Defendant school system and excluded from all publicly‑supported education.

“MICHAEL WILLIAMS is sixteen years old, black, resident at Saint Elizabeth’s Hospital, Washington, D. C., and unable to afford private instruction. Michael is epileptic and allegedly slightly retarded. He has been excluded from the Sharpe Health School since October, 1969, at which time he was temporarily hospitalized. Thereafter Michael was excluded from school because of health problems and school absences. Defendants have not provided him with a full hearing or with a timely and adequate review of his status. Despite his mother’s efforts, and his attending physician’s medical opinion that he could attend school, Michael has remained on a waiting list for a tuition grant and excluded from all publicly‑supported education.

“JANICE KING is thirteen years old, black, resident with her father, Andrew King, at 233 Anacostia Avenue, N. E., Washington, D. C., and unable to afford private instruction. She has been denied access to public schools since reaching compulsory school attendance age, as a result of the rejection of her application, based on the lack of an appropriate educational program. Janice is brain‑damaged and retarded, with right hemiplegia, resulting from a childhood illness. Defendants have not provided her with a full hearing or with a timely and adequate review of her status. Despite repeated efforts by her parents, Janice has been excluded from all publicly‑supported education.

“JEROME JAMES is twelve years old, black, resident with his mother, Mary James, at 2512 Ontario Avenue, N. W., Washington, D. C., and an AFDC recipient. Jerome is a retarded child and has been totally excluded from public school. Defendants have not given him a full hearing or a timely and adequate review of his status. Despite his mother’s efforts to secure either public school placement or a tuition grant, Jerome has remained on a waiting list for a tuition grant and excluded from all publicly supported education.” [FN3]

FN3. The Court is informed that since the filing of this action some of the named plaintiffs have been placed in private schools, some in public schools, and others remain excluded.

Although all of the named minor plaintiffs are identified as Negroes the class they represent is not limited by their race. They sue on behalf of and represent all other District of Columbia residents of school age who are eligible for a free public education and who have been, or may be, excluded from such education or otherwise deprived by defendants of access to publicly supported education.

Minor plaintiffs are poor and without financial means to obtain private instruction. There has been no determination that they may not benefit from specialized instruction adapted to their needs. Prior to the beginning of the 1971‑72 school year minor plaintiffs, through their representatives, sought to obtain publicly supported education and certain of them were assured by the school authorities that they would be placed in programs of publicly supported education and certain others would be recommended for special tuition grants at private schools. However, none of the plaintiff children were placed for the 1971 Fall term and they continued to be entirely excluded from all publicly supported education. After thus trying unsuccessfully to obtain relief from the Board of Education the plaintiffs filed this action on September 24, 1971.

THERE IS NO GENUINE ISSUE OF MATERIAL FACT

Congress has decreed a system of publicly supported education for the children of the District of Columbia. [FN4] The Board of Education has the responsibility of administering that system in accordance with law and of providing such publicly supported education to all of the children of the District, including these “exceptional” children. [FN5]

FN4. District of Columbia Code, 31‑101‑et seq.

FN5. District of Columbia Code, 31‑103.

Defendants have admitted in these proceedings that they are under an affirmative duty to provide plaintiffs and their class with publicly supported education suited to each child’s needs, including special education and tuition grants, and also, a constitutionally adequate prior hearing and periodic review. They have also admitted that they failed to supply plaintiffs with such publicly supported education and have failed to afford them adequate prior hearing and periodic review. On December 20, 1971 the plaintiffs and defendants agreed to and the Court signed an interim stipulation and order which provided in part as follows:

“Upon consent and stipulation of the parties, it is hereby ORDERED that:

“1. Defendants shall provide plaintiffs Peter Mills, Duane Blacksheare, Steven Gaston and Michael Williams with a publicly‑supported education suited to their (plaintiffs’) needs by January 3, 1972.

“2. Defendants shall provide counsel for plaintiffs, by January 3, 1972, a list showing, for every child of school age then known not to be attending a publicly‑supported educational program because of suspension, expulsion, exclusion, or any other denial of placement, the name of the child’s parent or guardian, the child’s name, age, address and telephone number, the date of his suspension, expulsion, exclusion or denial of placement and, without attributing a particular characteristic to any specific child, a breakdown of such list, showing the alleged causal characteristics for such nonattendance and the number of children possessing such alleged characteristics.

“3. By January 3, 1972, defendants shall initiate efforts to identify remaining members of the class not presently known to them, and also by that date, shall notify counsel for plaintiffs of the nature and extent of such efforts. Such efforts shall include, at a minimum, a system‑wide survey of elementary and secondary schools, use of the mass written and electronic media, and a survey of District of Columbia agencies who may have knowledge pertaining to such remaining members of the class. By February 1, 1972, defendants shall provide counsel for plaintiffs with the names, addresses and telephone numbers of such remaining members of the class then known to them.

“4. Pending further action by the Court herein, the parties shall consider the selection and compensation of a master for determination of special questions arising out of this action with regard to the placement of children in a publicly‑supported educational program suited to their needs.”

On February 9, 1972, the Board of Education passed a Resolution which included the following:

“Special Education

“7. All vacant authorized special education positions, whether in the regular, Impact Aid, or other Federal budgets, shall be filled as rapidly as possible within the capability of the Special Education Department. Regardless of the capability of the Department to fill vacant positions, all funds presently appropriated or allotted for special education, whether in the regular, Impact Aid, or other Federal budgets, shall be spent solely for special education.

“8. The Board requests the Corporation Counsel to ask the United States District Court for an extension of time within which to file a response to plaintiffs’ motion for summary judgment in Mills v. Board of Education on the grounds that (a) the Board intends to enter into a consent judgment declaring the rights of children in the District of Columbia to a public education; and (b) the Board needs time (not in excess of 30 days) to obtain from the Associate Superintendent for Special Education a precise projection on a monthly basis the cost of fulfilling those budgets.

“9. The Board directs the Rules Committee to devise as soon as possible for the purpose of Mills v. Board of Education rules defining and providing for due process and fair hearings; and requests the Corporation Counsel to lend such assistance to the Board as may be necessary in devising such rules in a form which will meet the requirements of Mills v. Board of Education.

“10. It is the intention of the Board to submit for approval by the Court in Mills v. Board of Education a Memorandum of Understanding setting forth a comprehensive plan for the education, treatment and care of physically or mentally impaired children in the age range from three to twenty‑one years. It is hoped that the various other District of Columbia agencies concerned will join with the Board in the submission of this plan.

“It is the further intention of the Board to establish procedures to implement the finding that all children can benefit from education and, have a right to it, by providing for comprehensive health and psychological appraisal of children and the provision for each child of any special education which he may need. The Board will further require that no change in the kind of education provided for a child will be made against his wishes or the wishes of his parent or guardian unless he has been accorded a full hearing on the matter consistent with due process.”

Defendants failed to comply with that consent order and there is now pending before the Court a motion of the plaintiffs to require defendants to show cause why they should not be held in contempt for such failure to comply.

On January 21, 1972 the plaintiffs filed a motion for summary judgment and a proposed order and decree for implementation of the proposed judgment and requested a hearing. On March 1, 1972 the defendants responded as follows:

“1. The District of Columbia and its officers who are named defendants to this complaint consent to the entrance of a judgment declaring the rights of the plaintiff class to the effect prayed for in the complaint, as specified below, such rights to be prospectively effective as of March 1, 1972:

That no child eligible for a publicly supported education in the District of Columbia public schools shall be excluded from a regular public school assignment by a Rule, policy, or practice of the Board of Education of the District of Columbia or its agents unless such child is provided (a) adequate alternative educational services suited to the child’s needs, which may include special education or tuition grants, and (b) a constitutionally adequate prior hearing and periodic review of the child’s status, progress, and the adequacy of any educational alternative.

It is submitted that the entrance of a declaratory judgment to this effect renders plaintiffs’ motion for summary judgment moot.

“2. For response to plaintiffs’ motion for a hearing, defendants respectfully request that this Court hold a hearing as soon as practicable at which defendants will present a plan to implement the above declaratory judgment and at which the Court may decide whether further relief is appropriate.”

The Court set the date of March 24, 1972, for the hearing that both parties had requested and specifically ordered the defendants to submit a copy of their proposed implementation plan no later than March 20, 1972.

On March 24, 1972, the date of the hearing, the defendants not only had failed to submit their implementation plan as ordered but were also continuing in their violation of the provisions of the Court’s order of December 20, 1971. At the close of the hearing on March 24, 1972, the Court found that there existed no genuine issue of a material fact; orally granted plaintiffs’ motion for summary judgment, and directed defendants to submit to the Court any proposed plan they might have on or before March 31, 1972. [FN6] The defendants, other than Cassell, failed to file any proposal within the time directed. However, on April 7, 1972, there was sent to the Clerk of the Court on behalf of the Board of Education and its employees who are defendants in this case the following documents:

FN6. Defendant Cassell filed a separate Answer to the Complaint consenting to the relief prayed for and also filed a memorandum in support of plaintiff’s proposed Order and Decree.

1. A proposed form of Order to be entered by the Court.

2. An abstract of a document titled “A District of Columbia Plan for Identification, Assessment, Evaluation, and Placement of Exceptional Children”.

3. A document titled “A District of Columbia Plan for Identification, Assessment, Evaluation, and Placement of Exceptional Children”. [FN7]

FN7. The Board of Education has not adopted this plan.

4. Certain Attachments and Appendices to this Plan.

The letter accompanying the documents contained the following paragraph:

“These documents express the position of the Board of Education and its employees as to what should be done to implement the judgment of the Honorable Joseph C. Waddy, the District Judge presiding over this civil action. The contents of these documents have not been endorsed by the other defendants in this case.”

None of the other defendants have filed a proposed order or plan. Nor has any of them adopted the proposal submitted by the Board of Education. Throughout these proceedings it has been obvious to the Court that the defendants have no common program or plan for the alleviation of the problems posed by this litigation and that this lack of communication, cooperation and plan is typical and contributes to the problem.

PLAINTIFFS ARE ENTITLED TO RELIEF

Plaintiffs’ entitlement to relief in this case is clear. The applicable statutes and regulations and the Constitution of the United States require it.

Statutes and Regulations

Section 31‑201 of the District of Columbia Code requires that:

“Every parent, guardian, or other person residing [permanently or temporarily] in the District of Columbia who has custody or control of a child between the ages of seven and sixteen years shall cause said child to be regularly instructed in a public school or in a private or parochial school or instructed privately during the period of each year in which the public schools of the District of Columbia are in session …”

Under Section 31‑203, a child may be “excused” from attendance only when

“…. upon examination ordered by … [the Board of Education of the District of Columbia], [the child] is found to be unable mentally or physically to profit from attendance at school: Provided, however, That if such examination shows that such child may benefit from specialized instruction adapted to his needs, he shall attend upon such instruction.”

Failure of a parent to comply with Section 31‑201 constitutes a criminal offense. D.C.Code 31‑207. The Court need not belabor the fact that requiring parents to see that their children attend school under pain of criminal penalties presupposes that an educational opportunity will be made available to the children. The Board of Education is required to make such opportunity available. It has adopted rules and regulations consonant with the statutory direction. Chapter XIII of the Board Rules contains the following:

1.1‑All children of the ages hereinafter prescribed who are bona fide residents of the District of Columbia are entitled to admission and free tuition in the Public Schools of the District of Columbia, subject to the rules, regulations, and orders of the Board of Education and the applicable statutes.

14.1‑Every parent, guardian, or other person residing permanently or temporarily in the District of Columbia who has custody or control of a child residing in the District of Columbia between the ages of seven and sixteen years shall cause said child to be regularly instructed in a public school or in a private or parochial school or instructed privately during the period of each year in which the Public Schools of the District of Columbia are in session, provided that instruction given in such private or parochial school, or privately, is deemed reasonably equivalent by the Board of Education to the instruction given in the Public Schools.

14.3‑The Board of Education of the District of Columbia may, upon written recommendation of the Superintendent of Schools, issue a certificate excusing from attendance at school a child who, upon examination by the Department of Pupil Appraisal, Study and Attendance or by the Department of Public Health of the District of Columbia, is found to be unable mentally or physically to profit from attendance at school: Provided, however, that if such examination shows that such child may benefit from specialized instruction adapted to his needs, he shall be required to attend such classes.

Thus the Board of Education has an obligation to provide whatever specialized instruction that will benefit the child. By failing to provide plaintiffs and their class the publicly supported specialized education to which they are entitled, the Board of Education violates the above statutes and its own regulations.

The Constitution‑Equal Protection and Due Process

The Supreme Court in Brown v. Board of Education, 347 U.S. 483, 493, 74 S.Ct. 686, 691, 98 L.Ed. 873 (1954) stated:

“Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms. (emphasis supplied)

Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884, decided the same day as Brown, applied the Brown rationale to the District of Columbia public schools by finding that:

“Segregation in public education is not reasonably related to any proper governmental objective, and thus it imposes on Negro children of the District of Columbia a burden than constitutes an arbitrary deprivation of their liberty in violation of the Due Process Clause.”

In Hobson v. Hansen, 269 F.Supp. 401 (D.C.D.C.1967) Circuit Judge J. Skelly Wright considered the pronouncements of the Supreme Court in the intervening years and stated that “… the Court has found the due process clause of the Fourteenth Amendment elastic enough to embrace not only the First and Fourth Amendments, but the self‑incrimination clause of the Fifth, the speedy trial, confrontation and assistance of counsel clauses of the Sixth, and the cruel and unusual clause of the Eighth.” (269 F.Supp. 401 at 493, citations omitted). Judge Wright concluded “(F)rom these considerations the court draws the conclusion that the doctrine of equal educational opportunity‑the equal protection clause in its application to public school education‑is in its full sweep a component of due process binding on the District under the due process clause of the Fifth Amendment.”

In Hobson v. Hansen, supra, Judge Wright found that denying poor public school children educational opportunities equal to that available to more affluent public school children was violative of the Due Process Clause of the Fifth Amendment. A fortiori, the defendants’ conduct here, denying plaintiffs and their class not just an equal publicly supported education but all publicly supported education while providing such education to other children, is violative of the Due Process Clause.

Not only are plaintiffs and their class denied the publicly supported education to which they are entitled many are suspended or expelled from regular schooling or specialized instruction or reassigned without any prior hearing and are given no periodic review thereafter. Due process of law requires a hearing prior to exclusion, termination of classification into a special program. Vought v. Van Buren Public Schools, 306 F.Supp. 1388 (E.D.Mich.1969); Williams v. Dade County School Board, 441 F.2d 299 (5th Cir.1971); Cf. Soglin v. Kauffman, 295 F.Supp. 978 (W.D.Wis.1968); Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir.1961), cert. den., 368 U.S. 930, 82 S.Ct. 368, 7 L.Ed.2d 193 (1961); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970).

The Defense

The Answer of the defendants to the Complaint contains the following:

“These defendants say that it is impossible to afford plaintiffs the relief they request unless:

(a) The Congress of the United States appropriates millions of dollars to improve special education services in the District of Columbia; or

(b) These defendants divert millions of dollars from funds already specifically appropriated for other educational services in order to improve special educational services. These defendants suggest that to do so would violate an Act of Congress and would be inequitable tochildren outside the alleged plaintiff class.”

This Court is not persuaded by that contention.

The defendants are required by the Constitution of the United States, the District of Columbia Code, and their own regulations to provide a publicly‑supported education for these “exceptional” children. Their failure to fulfill this clear duty to include and retain these children in the public school system, or otherwise provide them with publicly‑ supported education, and their failure to afford them due process hearing and periodical review, cannot be excused by the claim that there are insufficient funds. In Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1969) the Supreme Court, in a case that involved the right of a welfare recipient to a hearing before termination of his benefits, held that Constitutional rights must be afforded citizens despite the greater expense involved. The Court stated at page 266, 90 S.Ct. at page 1019, that “the State’s interest that his [welfare recipient] payments not be erroneously terminated, clearly outweighs the State’s competing concern to prevent any increase in its fiscal and administrative burdens.” Similarly the District of Columbia’s interest in educating the excluded children clearly must outweigh its interest in preserving its financial resources. If sufficient funds are not available to finance all of the services and programs that are needed and desirable in the system then the available funds must be expended equitably in such a manner that no child is entirely excluded from a publicly supported education consistent with his needs and ability to benefit therefrom. The inadequacies of the District of Columbia Public School System whether occasioned by insufficient funding or administrative inefficiency, certainly cannot be permitted to bear more heavily on the “exceptional” or handicapped child than on the normal child.

IMPLEMENTATION OF JUDGMENT

This Court has pointed out that Section 31‑201 of the District of Columbia Code requires that every person residing in the District of Columbia “… who has custody or control of a child between the ages of seven and sixteen years shall cause said child to be regularly instructed in a public school or in a private or parochial school or instructed privately ….” [FN8] It is the responsibility of the Board of Education to provide the opportunities and facilities for such instruction.

FN8. This requirement is equally applicable to the Department of Human Resources, Social Services Administration, with respect to wards committed to them pursuant to D.C.Code Sections 3‑116 and 3‑117.

The Court has determined that the Board likewise has the responsibility for implementation of the judgment and decree of this Court in this case. Section 31‑103 of the District of Columbia Code clearly places this responsibility upon the Board. It provides:

“The Board shall determine all questions of general policy relating to the schools, shall appoint the executive officers hereinafter provided for, define their duties, and direct expenditures.”

The lack of communication and cooperation between the Board of Education and the other defendants in this action shall not be permitted to deprive plaintiffs and their class of publicly supported education. Section 31‑104b of the District of Columbia Code dictates that the Board of Education and the District of Columbia Government must coordinate educational and municipal functions:

“(a) The Board of Education and the Commissioner of the District of Columbia shall jointly develop procedures to assure the maximum coordination of educational and other municipal programs and services in achieving the most effective educational system and utilization of educationl facilities and services to serve broad community needs. Such procedures shall cover such matters as‑

“(1) design and construction of educational facilities to accommodate civic and community activities such as recreation, adult and vocational education and training, and other community purposes;

“(2) full utilization of educational facilities during nonschool hours for community purposes;

“(3) utilization of municipal services such as police, sanitation, recreational, maintenance services to enhance the effectiveness and stature of the school in the community;

“(4) arrangements for cost‑sharing and reimbursements on school and community programs involving utilization of educational facilities and services; and

“(5) other matters of mutual interest and concern.

“(b) The Board of Education may invite the Commissioner of the District of Columbia or his designee to attend and participate in meetings of the Board on matters pertaining to coordination of educational and other municipal programs and services and on such other matters as may be of mutual interest.” (Emphasis supplied).

If the District of Columbia Government and the Board of Education cannot jointly develop the procedures and programs necessary to implement this Court’s order then it shall be the responsibility of the Board of Education to present the irresolvable issue to the Court for resolution in a timely manner so that plaintiffs and their class may be afforded their constitutional and statutory rights. If any dispute should arise between the defendants which requires for its resolution a degree of expertise in the field of education not possessed by the Court, the Court will appoint a special master pursuant to the provisions of Rule 53 of the Federal Rules of Civil Procedure to assist the Court in resolving the issue.

Inasmuch as the Board of Education has presented for adoption by the Court a proposed “Order and Decree” embodying its present plans for the identification of “exceptional” children and providing for their publicly supported education, including a time table, and further requiring the Board to formulate and file with the Court a more comprehensive plan, [FN9] the Court will not now appoint a special master as was requested by plaintiffs. Despite the defendants’ failure to abide by the provisions of the Court’s previous orders in this case and despite the defendants’ continuing failure to provide an education for these children, the Court is reluctant to arrogate to itself the responsibility of administering this or any other aspect of the Public School System of the District of Columbia through the vehicle of a special master. Nevertheless, inaction or delay on the part of the defendants, or failure by the defendants to implement the judgment and decree herein within the time specified therein will result in the immediate appointment of a special master to oversee and direct such implementation under the direction of this Court. The Court will include as a part of its judgment the proposed “Order and Decree” submitted by the Board of Education, as modified in minor part by the Court, and will retain jurisdiction of the cause to assure prompt implementation of the judgment. Plaintiffs’ motion to require certain defendants to show cause why they should not be adjudged in contempt will be held in abeyance for 45 days.

FN9. The plaintiffs’ proposed “Order and Decree” suggests plans, procedures and time tables similar to those proposed by defendant, Board of Education.

JUDGMENT AND DECREE

Plaintiffs having filed their verified complaint seeking an injunction and declaration of rights as set forth more fully in the verified complaint and the prayer for relief contained therein; and having moved this Court for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, and this Court having reviewed the record of this cause including plaintiffs’ Motion, pleadings, affidavits, and evidence and arguments in support thereof, and defendants’ affidavit, pleadings, and evidence and arguments in support thereof, and the proceedings of pre‑trial conferences on December 17, 1971, and January 14, 1972, it is hereby ordered, adjudged and decreed that summary judgment in favor of plaintiffs and against defendants be, and hereby is, granted, and judgment is entered in this action as follows:

1. That no child eligible for a publicly supported education in the District of Columbia public schools shall be excluded from a regular public school assignment by a Rule, policy, or practice of the Board of Education of the District of Columbia or its agents unless such child is provided (a) adequate alternative educational services suited to the child’s needs, which may include special education or tuition grants, and (b) a constitutionally adequate prior hearing and periodic review of the child’s status, progress, and the adequacy of any educational alternative.

2. The defendants, their officers, agents, servants, employees, and attorneys and all those in active concert or participation with them are hereby enjoined from maintaining, enforcing or otherwise continuing in effect any and all rules, policies and practices which exclude plaintiffs and the members of the class they represent from a regular public school assignment without providing them at public expense (a) adequate and immediate alternative education or tuition grants, consistent with their needs, and (b) a constitutionally adequate prior hearing and periodic review of their status, progress and the adequacy of any educational alternatives; and it is further ORDERED that:

3. The District of Columbia shall provide to each child of school age a free and suitable publicly‑supported education regardless of the degree of the child’s mental, physical or emotional disability or impairment. Furthermore, defendants shall not exclude any child resident in the District of Columbia from such publicly‑supported education on the basis of a claim of insufficient resources.

4. Defendants shall not suspend a child from the public schools for disciplinary reasons for any period in excess of two days without affording him a hearing pursuant to the provisions of Paragraph 13.f., below, and without providing for his education during the period of any such suspension.

5. Defendants shall provide each identified member of plaintiff class with a publicly‑supported education suited to his needs within thirty (30) days of the entry of this order. With regard to children who later come to the attention of any defendant, within twenty (20) days after he becomes known, the evaluation (case study approach) called for in paragraph 9 below shall be completed and within 30 days after completion of the evaluation, placement shall be made so as to provide the child with a publicly supported education suited to his needs.

In either case, if the education to be provided is not of a kind generally available during the summer vacation, the thirty‑day limit may be extended for children evaluated during summer months to allow their educational programs to begin at the opening of school in September.

6. Defendants shall cause announcements and notices to be placed in the Washington Post, Washington Star‑Daily News, and the Afro‑American, in all issues published for a three week period commencing within five (5) days of the entry of this order, and thereafter at quarterly intervals, and shall cause spot announcements to be made on television and radio stations for twenty (20) consecutive days, commencing within five (5) days of the entry of this order, and thereafter at quarterly intervals, advising residents of the District of Columbia that all children, regardless of any handicap or other disability, have a right to a publicly‑supported education suited to their needs, and informing the parents or guardians of such children of the procedures required to enroll their children in an appropriate educational program. Such announcements should include the listing of a special answering service telephone number to be established by defendants in order to (a) compile the names, addresses, phone numbers of such children who are presently not attending school and (b) provide further information to their parents or guardians as to the procedures required to enroll their children in an appropriate educational program.

7. Within twenty‑five (25) days of the entry of this order, defendants shall file with the Clerk of this Court, an up‑to‑date list showing, for every additional identified child, the name of the child’s parent or guardian, the child’s name, age, address and telephone number, the date of his suspension, expulsion, exclusion or denial of placement and, without attributing a particular characteristic to any specific child, a breakdown of such list, showing the alleged causal characteristics for such nonattendance (e. g., educable mentally retarded, trainable mentally retarded, emotionally disturbed, specific learning disability, crippled/other health impaired, hearing impaired, visually impaired, multiple handicapped) and the number of children possessing each such alleged characteristic.

8. Notice of this order shall be given by defendants to the parent or guardian of each child resident in the District of Columbia who is now, or was during the 1971‑72 school year or the 1970‑71 school year, excluded, suspended or expelled from publicly‑supported educational programs or otherwise denied a full and suitable publicly‑supported education for any period in excess of two days. Such notice shall include a statement that each such child has the right to receive a free educational assessment and to be placed in a publicly‑ supported educational program suited to his needs. Such notice shall be sent by registered mail within five (5) days of the entry of this order, or within five (5) days after such child first becomes known to any defendant. Provision of notification for non‑reading parents or guardians will be made.

9. a. Defendants shall utilize public or private agencies to evaluate the educational needs of all identified “exceptional” children and, within twenty (20) days of the entry of this order, shall file with the Clerk of this Court their proposal for each individual placement in a suitable educational program, including the provision of compensatory educational services where required.

b. Defendants, within twenty (20) days of the entry of this order, shall, also submit such proposals to each parent or guardian of such child, respectively, along with a notification that if they object to such proposed placement within a period of time to be fixed by the parties or by the Court, they may have their objection heard by a Hearing Officer in accordance with procedures required in Paragraph 13.e., below.

10. a. Within forty‑five (45) days of the entry of this order, defendants shall file with the Clerk of the Court, with copy to plaintiffs’ counsel, a comprehensive plan which provides for the identification, notification, assessment, and placement of class members. Such plan shall state the nature and extent of efforts which defendants have undertaken or propose to undertake to

(1) describe the curriculum, educational objectives, teacher qualifications, and ancillary services for the publicly‑supported educational programs to be provided to class members; and,

(2) formulate general plans of compensatory education suitable to class members in order to overcome the present effects of prior educational deprivations,

(3) institute any additional steps and proposed modifications designed to implement the matters decreed in paragraph 5 through 7 hereof and other requirements of this judgment.

11. The defendants shall make an interim report to this Court on their performance within forty‑five (45) days of the entry of this order. Such report shall show:

(1) The adequacy of Defendants’ implementation of plans to identify, locate, evaluate and give notice to all members of the class.

(2) The number of class members who have been placed, and the nature of their placements.

(3) The number of contested hearings before the Hearing Officers, if any, and the findings and determinations resulting therefrom.

12. Within forty‑five (45) days of the entry of this order, defendants shall file with this Court a report showing the expunction from or correction of all official records of any plaintiff with regard to past expulsions, suspensions, or exclusions effected in violation of the procedural rights set forth in Paragraph 13 together with a plan for procedures pursuant to which parents, guardians, or their counsel may attach to such students’ records any clarifying or explanatory information which the parent, guardian or counsel may deem appropriate.

13. Hearing Procedures.

a. Each member of the plaintiff class is to be provided with a publicly‑ supported educational program suited to his needs, within the context of a presumption that among the alternative programs of education, placement in a regular public school class with appropriate ancillary services is preferable to placement in a special school class.

b. Before placing a member of the class in such a program, defendants shall notify his parent or guardian of the proposed educational placement, the reasons therefor, and the right to a hearing before a Hearing Officer if there is an objection to the placement proposed. Any such hearing shall be held in accordance with the provisions of Paragraph 13.e., below.

c. Hereinafter, children who are residents of the District of Columbia and are thought by any of the defendants, or by officials, parents or guardians, to be in need of a program of special education, shall neither be placed in, transferred from or to, nor denied placement in such a program unless defendants shall have first notified their parents or guardians of such proposed placement, transfer or denial, the reasons therefor, and of the right to a hearing before a Hearing Officer if there is an objection to the placement, transfer or denial of placement. Any such hearings shall be held in accordance with the provisions of Paragraph 13.e., below.

d. Defendants shall not, on grounds of discipline, cause the exclusion, suspension, expulsion, postponement, interschool transfer, or any other denial of access to regular instruction in the public schools to any child for more than two days without first notifying the child’s parent or guardian of such proposed action, the reasons therefor, and of the hearing before a Hearing Officer in accordance with the provisions of Paragraph 13.f., below.

e. Whenever defendants take action regarding a child’s placement, denial of placement, or transfer, as described in Paragraphs 13.b. or 13.c., above, the following procedures shall be followed.

(1) Notice required hereinbefore shall be given in writing by registered mail to the parent or guardian of the child.

(2) Such notice shall:

(a) describe the proposed action in detail;

(b) clearly state the specific and complete reasons for the proposed action, including the specification of any tests or reports upon which such action is proposed;

(d) inform the parent or guardian of the right to object to the proposed action at a hearing before the Hearing Officer;

(e) inform the parent or guardian that the child is eligible to receive, at no charge, the services of a federally or locally funded diagnostic center for an independent medical, psychological and educational evaluation and shall specify the name, address and telephone number of an appropriate local diagnostic center;

(f) inform the parent or guardian of the right to be represented at the hearing by legal counsel; to examine the child’s school records before the hearing, including any tests or reports upon which the proposed action may be based, to present evidence, including expert medical, psychological and educational testimony; and, to confront and cross‑examine any school official, employee, or agent of the school district or public department who may have evidence upon which the proposed action was based.

(3) The hearing shall be at a time and place reasonably convenient to such parent or guardian.

(4) The hearing shall be scheduled not sooner than twenty (20) days waivable by parent or child, nor later than forty‑five (45) days after receipt of a request from the parent or guardian.

(5) The hearing shall be a closed hearing unless the parent or guardian requests an open hearing.

(6) The child shall have the right to a representative of his own choosing, including legal counsel. If a child is unable, through financial inability, to retain counsel, defendants shall advise child’s parents or guardians of available voluntary legal assistance including the Neighborhood Legal Services Organization, the Legal Aid Society, the Young Lawyers Section of the D. C. Bar Association, or from some other organization.

(7) The decision of the Hearing Officer shall be based solely upon the evidence presented at the hearing.

(8) Defendants shall bear the burden of proof as to all facts and as to the appropriateness of any placement, denial of placement or transfer.

(9) A tape recording or other record of the hearing shall be made and transcribed and, upon request, made available to the parent or guardian or his representative.

(10) At a reasonable time prior to the hearing, the parent or guardian, or his counsel, shall be given access to all public school system and other public office records pertaining to the child, including any tests or reports upon which the proposed action may be based.

(11) The independent Hearing Officer shall be an employee of the District of Columbia, but shall not be an officer, employee or agent of the Public School System.

(12) The parent or guardian, or his representative, shall have the right to have the attendance of any official, employee or agent of the public school system or any public employee who may have evidence upon which the proposed action may be based and to confront, and to cross‑examine any witness testifying for the public school system.

(13) The parent or guardian, or his representative, shall have the right to present evidence and testimony, including expert medical, psychological or educational testimony.

(14) Within thirty (30) days after the hearing, the Hearing Officer shall render a decision in writing. Such decision shall include findings of fact and conclusions of law and shall be filed with the Board of Education and the Department of Human Resources and sent by registered mail to the parent or guardian and his counsel.

(15) Pending a determination by the Hearing Officer, defendants shall take no action described in Paragraphs 13.b. or 13.c., above, if the child’s parent or guardian objects to such action. Such objection must be in writing and postmarked within five (5) days of the date of receipt of notification hereinabove described.

f. Whenever defendants propose to take action described in Paragraph 13.d., above, the following procedures shall be followed.

(1) Notice required hereinabove shall be given in writing and shall be delivered in person or by registered mail to both the child and his parent or guardian.

(2) Such notice shall

(a) describe the proposed disciplinary action in detail, including the duration thereof;

(b) state specific, clear and full reasons for the proposed action, including the specification of the alleged act upon which the disciplinary action is to be based and the reference to the regulation subsection under which such action is proposed;

(d) inform the child and the parent or guardian of the time and place at which the hearing shall take place;

(e) inform the parent or guardian that if the child is thought by the parent or guardian to require special education services, that such child is eligible to receive, at no charge, the services of a public or private agency for a diagnostic medical, psychological or educational evaluation;

(f) inform the child and his parent or guardian of the right to be represented at the hearing by legal counsel; to examine the child’s school records before the hearing, including any tests or reports upon which the proposed action may be based; to present evidence of his own; and to confront and cross‑examine any witnesses or any school officials, employees or agents who may have evidence upon which the proposed action may be based.

(3) The hearing shall be at a time and place reasonably convenient to such parent or guardian.

(4) The hearing shall take place within four (4) school days of the date upon which written notice is given, and may be postponed at the request of the child’s parent or guardian for no more than five (5) additional school days where necessary for preparation.

(5) The hearing shall be a closed hearing unless the child, his parent or guardian requests an open hearing.

(6) The child is guaranteed the right to a representative of his own choosing, including legal counsel. If a child is unable, through financial inability, to retain counsel, defendants shall advise child’s parents or guardians of available voluntary legal assistance including the Neighborhood Legal Services Organization, the Legal Aid Society, the Young Lawyers Section of the D. C. Bar Association, or from some other organization.

(7) The decision of the Hearing Officer shall be based solely upon the evidence presented at the hearing.

(8) Defendants shall bear the burden of proof as to all facts and as to the appropriateness of any disposition and of the alternative educational opportunity to be provided during any suspension.

(9) A tape recording or other record of the hearing shall be made and transcribed and, upon request, made available to the parent or guardian or his representative.

(10) At a reasonable time prior to the hearing, the parent or guardian, or the child’s counsel or representative, shall be given access to all records of the public school system and any other public office pertaining to the child, including any tests or reports upon which the proposed action may be based.

(11) The independent Hearing Officer shall be an employee of the District of Columbia, but shall not be an officer, employee or agent of the Public School System.

(12) The parent or guardian, or the child’s counsel or representative, shall have the right to have the attendance of any public employee who may have evidence upon which the proposed action may be based and to confront and to cross‑examine any witness testifying for the public school system.

(13) The parent or guardian, or the child’s counsel or representative, shall have the right to present evidence and testimony.

(14) Pending the hearing and receipt of notification of the decision, there shall be no change in the child’s educational placement unless the principal (responsible to the Superintendent) shall warrant that the continued presence of the child in his current program would endanger the physical well‑being of himself or others. In such exceptional cases, the principal shall be responsible for insuring that the child receives some form of educational assistance and/or diagnostic examination during the interim period prior to the hearing.

(15) No finding that disciplinary action is warranted shall be made unless the Hearing Officer first finds, by clear and convincing evidence, that the child committed a prohibited act upon which the proposed disciplinary action is based. After this finding has been made, the Hearing Officer shall take such disciplinary action as he shall deem appropriate. This action shall not be more severe than that recommended by the school official initiating the suspension proceedings.

(16) No suspension shall continue for longer than ten (10) school days after the date of the hearing, or until the end of the school year, whichever comes first. In such cases, the principal (responsible to the Superintendent) shall be responsible for insuring that the child receives some form of educational assistance and/or diagnostic examination during the suspension period.

(17) If the Hearing Officer determines that disciplinary action is not warranted, all school records of the proposed disciplinary action, including those relating to the incidents upon which such proposed action was predicated, shall be destroyed.

(18) If the Hearing Officer determines that disciplinary action is warranted, he shall give written notification of his findings and of the child’s right to appeal his decision to the Board of Education, to the child, the parent or guardian, and the counsel or representative of the child, within three (3) days of such determination.

(19) An appeal from the decision of the Hearing Officer shall be heard by the Student Life and Community Involvement Committee of the Board of Education which shall provide the child and his parent or guardian with the opportunity for an oral hearing, at which the child may be represented by legal counsel, to review the findings of the Hearing Officer. At the conclusion of such hearing, the Committee shall determine the appropriateness of and may modify such decision. However, in no event may such Committee impose added or more severe restrictions on the child.

14. Whenever the foregoing provisions require notice to a parent or guardian, and the child in question has no parent or duly appointed guardian, notice is to be given to any adult with whom the child is actually living, as well as to the child himself, and every effort will be made to assure that no child’s rights are denied for lack of a parent or duly appointed guardian. Again provision for such notice to non‑readers will be made.

15. Jurisdiction of this matter is retained to allow for implementation, modification and enforcement of this Judgment and Decree as may be required.

PENNSYLVANIA ASSN. FOR RETARDED CHILDREN v. PENNSYLVANIA

Decided October 8, 1971

ORDER, INJUNCTION CONSENT AGREEMENT and Appendix

And now, this 7th day of October, 1971, the parties having consented through their counsel to certain findings and conclusions and to the relief to be provided to the named plaintiffs and to the members of their class, the provisions of the Consent Agreement between the parties set out below are hereby approved and adopted and it is hereby so ordered.

And for the reasons set out below it is ordered that defendants the Commonwealth of Pennsylvania, the Secretary of the Department of Education, the State Board of Education, the Secretary of the Department of Public Welfare, the named defendant school districts and intermediate units and each of the School Districts and Intermediate Units in the Commonwealth of Pennsylvania, their officers, employees, agents and successors be and they hereby are enjoined as follows:

(a) from applying Section 1304 of the Public School Code of 1949, 24 Purd. Stat. Sec. 13-1304, so as to postpone or in any way to deny to any mentally retarded child access to a free public program of education and training;

(b) from applying Section 1326 or Section 1330(2) of the School Code of 1949, 24 Purd. Stat. Secs. 13-1326, 13-1330(2) so as to postpone, to terminate or in any way to deny to any mentally retarded child access to a free public program of education and training;

(c) from applying Section 1371(1) of the School Code of 1949, 24 Purd. Stat. Sec. 13-1371(1) so as to deny to any mentally retarded child access to a free public program of education and training;

(d) from applying Section 1376 of the School Code of 1949, 24 Purd. Stat. Sec. 13-1376, so as to deny tuition or tuition and maintenance to any mentally retarded person except on the same terms as may be applied to other exceptional children, including brain damaged children generally;

(e) from denying homebound instruction under Section 1372(3) of the School Code of 1949, 24 Purd. Stat. Sec. 13-1372(3) to any mentally retarded child merely because no physical disability accompanies the retardation or because retardation is not a short-term disability.

(f) from applying Section 1375 of the School Code of 1949, 24 Purd. Stat. Sec. 13-1375, so as to deny to any mentally retarded child access to a free public program of education and training;

(g) to immediately re-evaluate the named plaintiffs, and to accord to each of them, as soon as possible but in no event later than October 13, 1971, access to a free public program of education and training appropriate to his learning capacities;

(h) to provide, as soon as possible but in no event later than September 1, 1972, to every retarded person between the ages of six and twenty-one years as of the date of this Order and thereafter, access to a free public program of education and training appropriate to his learning capacities;

(i) to provide, as soon as possible but in no event later than September 1, 1972, wherever defendants provide a preschool program of education and training for children aged less than six years of age, access to a free public program of education and training appropriate to his learning capacities to every mentally retarded child of the same age.

The above Orders are entered as interim Orders only and without prejudice, pending notice, as described in Paragraph 3 below, to the class of plaintiffs and to the class of defendants determined in Paragraphs 1 and 2 below.

Any member of the classes so notified who may wish to be heard before permanent Orders are entered shall enter his appearance and file a written statement of objections with the Clerk of this Court on or before October 20, 1971. Any objections so entered will be heard by the Court at 10 o’clock on October 22, 1971.

CONSENT AGREEMENT

The Complaint in this action having been filed on January 7, 1971, alleging the unconstitutionality of certain Pennsylvania statutes and practices under the Equal Protection Clause of the Fourteenth Amendment and certain pendent claims; a three-judge court having been constituted, after motion, briefing and argument thereon, on May 26, 1971; an Order and Stipulation having been entered on June 18, 1971, requiring notice and a due process hearing before the educational assignment of any retarded child may be changed; and evidence having been received at preliminary hearing on August 12, 1971;

Now, therefore, this 7th of October 1971, the parties being desirous of effecting an amicable settlement of this action, the parties by their counsel agree, subject to the approval and Order of this Court, as follows:

1. This action may and hereby shall be maintained by plaintiffs as a class action on behalf of all mentally retarded persons, residents of the Commonwealth of Pennsylvania, who have been, are being, or may be denied access to a free public program of education and training while they are, or were, less than twenty-one years of age.

It is expressly understood, subject to the provisions of Paragraph 44 below, that the immediate relief hereinafter provided shall be provided to those persons less than twenty-one years of age as of the date of the Order of the Court herein.

2. This action may and hereby shall be maintained against defendant school districts and intermediate units as a class action against all of the School Districts and Intermediate Units of the Commonwealth of Pennsylvania.

3. Pursuant to Rule 23, Fed. R. Civ. P., notice of the extent of the Consent Agreement and the proposed Order approving this Consent Agreement, in the form set out in Appendix A, shall be given as follows:

(a) to the class of defendants, by the Secretary of Education, by mailing immediately a copy of this proposed Order and Consent Agreement to the Superintendent and the Director of Special Education of each School District and Intermediate Unit in the Commonwealth of Pennsylvania;

(b) to the class of plaintiffs, (i) by the Pennsylvania Association for Retarded Children, by immediately mailing a copy of this proposed Order and Consent Agreement to each of its Chapters in fifty-four counties of Pennsylvania; (ii) by the Department of Justice, by causing an advertisement in the form set out in Appendix A, to be placed in one newspaper of general circulation in each County in the Commonwealth; and (iii) by delivery of a joint press release of the parties to the television and radio stations, newspapers, and wire services in the Commonwealth.

II.

4. Expert testimony in this action indicates that all mentally retarded persons are capable of benefiting from a program of education and training; that the greatest number of retarded persons, given such education and training, are capable of achieving self-sufficiency, and the remaining few, with such education and training, are capable of achieving some degree of self-care; that the earlier such education and training begins, the more thoroughly and the more efficiently a mentally retarded person will benefit from it; and, whether begun early or not, that a mentally retarded person can benefit at any point in his life and development from a program of education and training.

5. The Commonwealth of Pennsylvania has undertaken to provide a free public education to all of its children between the ages of six and twenty-one years, and, even more specifically, has undertaken to provide education and training for all of its exceptional children.

6. Having undertaken to provide a free public education to all of its children, including its exceptional children, the Commonwealth of Pennsylvania may not deny any mentally retarded child access to a free public program of education and training.

7. It is the Commonwealth’s obligation to place each mentally retarded child in a free, public program of education and training appropriate to the child’s capacity, within the context of a presumption that, among the alternative programs of education and training required by statute to be available, placement in a regular public school class is preferable to placement in a special public school class and placement in a special public school class is preferable to placement in any other type of program of education and training.

III.

Section 1304

8. Section 1304 of the School Code of 1949, as amended, 24 Purd. Stat. Sec. 13-1304, provides:

“Admission of beginners

The admission of beginners to the public schools shall be confined to the first two weeks of the annual school term in districts operating on an annual promotion basis, and to the first two weeks of either the first or the second semester of the school term to districts operating on a semi-annual promotion basis. Admission shall be limited to beginners who have attained the age of five years and seven months before the first day of September if they are to be admitted in the fall, and to those who have attained the age of five years and seven months before the first day of February if they are to be admitted at the beginning of the second semester. The board of school directors of any school district may admit beginners who are less than five years and seven months of age, in accordance with standards prescribed by the State Board of Education. The board of school directors may refuse to accept or retain beginners who have not attained a mental age of five years, as determined by the supervisor of special education or a properly certificated public school psychologist in accordance with standards prescribed by the State Board of Education.

“The term ‘beginners,’ as used in this section, shall mean any child that should enter the lowest grade of the primary school or the lowest primary class above the kindergarten level.”

9. The Secretary of Education, the State Board of Education, the named School Districts and Intermediate Units, on their own behalf and on behalf of all School Districts and Intermediate Units in the Commonwealth of Pennsylvania, each of them, for themselves, their officers, employees, agents, and successors agree that they shall cease and desist from applying Section 1304 so as to postpone or in any way to deny access to a free public program of education and training to any mentally retarded child.

10. The Attorney General of the Commonwealth of Pennsylvania (hereinafter “the Attorney General”) agrees to issue an Opinion declaring that Section 1304 means only that a school district may refuse to accept into or to retain in the lowest grade of the regular primary school or the lowest regular primary class above the kindergarten level, any child who has not attained a mental age of five years.

11. The Attorney General of the Commonwealth of Pennsylvania shall issue an Opinion thus construing Section 1304, and the State Board of Education (hereinafter “the Board”) shall issue regulations to implement said construction and to supersede Sections 5-200 of the Pupil Attendance Regulations, copies of which Opinion and Regulations shall be filed with the Court and delivered to counsel for plaintiffs on or before October 25, 1971, and they shall be issued and promulgated respectively on or before October 27, 1971.

12. The aforementioned Opinion and Regulations shall (a) provide for notice and an opportunity for a hearing as set out in this Court’s Order of June 18, 1971, before a child’s admission as a beginner in the lowest grade of a regular primary school, or the lowest regular primary class above kindergarten, may be postponed; (b) require the automatic re-evaluation every two years of any educational assignment other than to a regular class, and (c) provide for an annual re-evaluation at the request of the child’s parent or guardian, and (d) provide upon each such re-evaluation for notice and an opportunity for a hearing as set out in this Court’s Order of June 18, 1971.

13. The aforementioned Opinion and Regulations shall also require the timely placement of any child whose admission to regular primary school or to the lowest regular primary class above kindergarten is postponed, or who is not retained in such school or class, in a free public program of education and training pursuant to Sections 1371 through 1382 of the School Code of 1949, as amended 24 Purd. Stat. Sec. 13-1371 through Sec. 13-1382.

Section 1326

14. Section 1326 of the School Code of 1949, as amended, 24 Purd. Stat. Sec. 13-1326, provides:

“Definitions

The term ‘compulsory school age,’ as hereinafter used, shall mean the period of a child’s life from the time the child’s parents elect to have the child enter school, which shall be not later than at the age of eight (8) years, until the age of seventeen (17) years. The term shall not include any child who holds a certificate of graduation from a regularly accredited senior high school.”

15. The Secretary of Education, the State Board of Education, the named School Districts and Intermediate Units, on their own behalf and on behalf of all School Districts and Intermediate Units in the Commonwealth of Pennsylvania, each of them, for themselves, their officers, employees, agents and successors agree that they shall cease and desist from applying Section 1326 so as to postpone, to terminate, or in any way to deny access to a free public program of education and training to any mentally retarded child.

16. The Attorney General agrees to issue an Opinion declaring that Section 1326 means only that parents of a child have a compulsory duty while the child is between eight and seventeen years of age to assure his attendance in a program of education and training; and Section 1326 does not limit the ages between which a child must be granted access to a free, public program of education and training. Defendants are bound by Section 1301 of the School Code of 1949, 24 Purd. Stat. Sec. 13-1301, to provide free public education to all children six to twenty-one years of age. In the event that a parent elects to exercise the right of a child six through eight years and/or seventeen through twenty-one years of age to a free public education, defendants may not deny such child access to a program of education and training. Furthermore, if a parent does not discharge the duty of compulsory attendance with regard to any mentally retarded child between eight and seventeen years of age, defendants must and shall take those steps necessary to compel the child’s attendance pursuant to Section 1327 of the School Code of 1949, 24 Purd. Stat. Sec. 13-1327, and related provisions of the School Code, and to the relevant regulations with regard to compulsory attendance promulgated by the Board.

17. The Attorney General shall issue an Opinion thus construing Section 1326, and related Sections, and the Board shall promulgate Regulations to implement said construction, copies of which Opinion and Regulations shall be filed with the Court and delivered to plaintiffs’ counsel on or before October 25, 1971, and they shall be issued and promulgated respectively on or before October 27, 1971.

Section 1330(2)

18. Section 1330(2) of the School Code of 1949, as amended, 24 Purd. Stat. Sec. 13-1330(2) provides:

“Exceptions to compulsory attendance.

The provisions of this act requiring regular attendance shall not apply to any child who:

* * *

(2) Has been examined by an approved mental clinic or by a person certified as a public school psychologist or psychological examiner, and has been found to be unable to profit from further public school attendance, and who has been reported to the board of school directors and excused, in accordance with regulations prescribed by the State Board of Education.”

19. The Secretary of Education, the State Board of Education, the named School Districts and Intermediate Units, on their own behalf and on behalf of all School Districts and Intermediate Units, each of them, for themselves, their officers, employees, agents, and successors agree that they shall cease and desist from applying Section 1330(2) so as to terminate or in any way to deny access to a free public program of education and training to any mentally retarded child.

20. The Attorney General agrees to issue an Opinion declaring that Section 1330(2) means only that a parent may be excused from liability under the compulsory attendance provisions of the School Code when, with the approval of the local school board and the Secretary of Education and a finding by an approved clinic or public school psychologist or psychological examiner, the parent elects to withdraw the child from attendance. Section 1330(2) may not be invoked by defendants, contrary to the parents’ wishes, to terminate or in any way to deny access to a free public program of education and training to any mentally retarded child. Furthermore, if a parent does not discharge the duty of compulsory attendance with regards to any mentally retarded child between eight and seventeen years of age, defendants must and shall take those steps necessary to compel the child’s attendance pursuant to Section 1327 and related provisions of the School Code and to the relevant regulations with regard to compulsory attendance promulgated by the Board.

21. The Attorney General shall issue an Opinion so construing Section 1330(2) and related provisions and the Board shall promulgate Regulations to implement said construction and to supersede Section 5-400 of the Pupil Attendance Regulations, a copy of which Opinion and Regulations shall be filed with the Court and delivered to counsel for plaintiff on or before October 25, 1971, and they shall be issued and promulgated respectively on or before October 27, 1971.

Pre-School Education

22. Defendants, the Commonwealth of Pennsylvania, the Secretary of Education, the State Board of Education, the named School Districts and Intermediate Units, on their own behalf and on behalf of all School Districts and Intermediate Units in the Commonwealth of Pennsylvania, the Secretary of Public Welfare, each of them, for themselves, their officers, employees, agents and successors agree that they shall cease and desist from applying Section 1371(1) of the School Code of 1949, as amended, 24 Purd. Stat. Sec. 13-1371(1) so as to deny access to a free public program of education and training to any mentally retarded child, and they further agree that wherever the Department of Education through its instrumentalities, the School Districts and Intermediate Units, or the Department of Public Welfare through any of its instrumentalities provides a pre-school program of education and training to children below the age of six, they shall also provide a program of education and training appropriate to their learning capacities to all retarded children of the same age.

23. Section 1371(1) of the School Code of 1949, as amended, 24 Purd. Stat. Sec. 13-1371(1), provides:

“Definition of exceptional children; reports; examination

(1) The term ‘exceptional children’ shall mean children of school age who deviate from the average in physical, mental, emotional or social characteristics to such an extent that they require special educational facilities or services and shall include all children in detention homes.”

24. The Attorney General agrees to issue an Opinion declaring that the phrase “children of school age” as used in Section 1371 means children aged six to twenty-one and also, whenever the Department of Education through any of its instrumentalities, the local School District, Intermediate Unit, or the Department of Public Welfare, through any of its instrumentalities, provides a pre-school program of education or training for children below the age of six, whether kindergarten or however so called, means all mentally retarded children who have reached the age less than six at which pre-school programs are available to others.

25. The Attorney General shall issue an Opinion thus construing Section 1371 and the Board shall issue regulations to implement said construction, copies of which Opinion and Regulations shall be filed with the Court and delivered to counsel for plaintiffs on or before October 25, 1971, and they shall be issued and promulgated respectively on or before October 27, 1971.

Tuition and Tuition and Maintenance

26. The Secretary of Education, the State Board of Education, the named School Districts and Intermediate Units, on their own behalf and on behalf of all School Districts and Intermediate Units in the Commonwealth of Pennsylvania, each of them, for themselves, their officers, employees, agents and successors agree that they shall cease and desist from applying Section 1376 of the School Code of 1949, as amended, 24 Purd. Stat. Sec. 13-1376, so as to deny tuition or tuition and maintenance to any mentally retarded person.

27. The Attorney General agrees to issue an Opinion, and the Council of Basic Education of the State Board of Education agrees to promulgate Regulations, construing the term “brain damage” as used in Section 1376 and as defined in the Board’s “Criteria for Approval . . . of Reimbursement” so as to include thereunder all mentally retarded persons, thereby making available to them tuition for day school and tuition and maintenance for residential school up to the maximum sum available for day school or residential school, whichever provides the more appropriate program of education and training. Copies of the aforesaid Opinion and Regulations shall be filed with the Court and delivered to counsel for plaintiff on or before October 25, 1971, and they shall be issued and promulgated respectively on or before October 27, 1971.

28. Defendants may deny or withdraw payments of tuition or tuition and maintenance whenever the school district or intermediate unit in which a mentally retarded child resides provides a program of special education and training appropriate to the child’s learning capacities into which the child may be placed.

29. The decision of defendants to deny or withdraw payments of tuition or tuition and maintenance shall be deemed a change in educational assignment as to which notice shall be given and an opportunity for a hearing afforded as set out in this Court’s order of June 18, 1971.

Homebound Instruction

30. Section 1372(3) of the School Code of 1949, as amended, 24 Purd. Stat. Sec. 13-1372(3), provides in relevant part:

“Standards; plans; special classes or schools

* * *

(3) Special Classes or Schools Established and Maintained by School Districts.

* * * If * * * it is not feasible to form a special class in any district or to provide such education for any [exceptional] child in the public schools of the district, the board of school directors of the district shall secure such proper education and training outside the public schools of the district or in special institutions, or by providing for teaching the child in his home. * * *”

31. The Secretary of Education, the State Board of Education, the named School Districts and Intermediate Units, on their own behalf and on behalf of all School Districts and Intermediate Units in the Commonwealth of Pennsylvania, each of them, for themselves, their officials, employees, agents and successors agree that they shall cease and desist from denying homebound instruction under Section 1372(3) to mentally retarded children merely because no physical disability accompanies the retardation or because retardation is not a short-term disability.

32. The Attorney General agrees to issue an Opinion declaring that a mentally retarded child, whether or not physically disabled, may receive homebound instruction and the State Board of Education and/or the Secretary of Education agrees to promulgate revised Regulations and forms in accord therewith, superseding the “Homebound Instruction Manual” (1970) insofar as it concerns mentally retarded children.

33. The aforesaid Opinion and Regulations shall also provide:

(a) that homebound instruction is the least preferable of the programs of education and training administered by the Department of Education and a mentally retarded child shall not be assigned to it unless it is the program most appropriate to the child’s capacities;

(b) that homebound instruction shall involve education and training for at least five hours a week;

(c) that an assignment to homebound instruction shall be re-evaluated not less than every three months, and notice of the re-evaluation and an opportunity for a hearing thereon shall be accorded to the parent or guardian, as set out in the Order of this Court dated June 18, 1971;

34. Copies of the aforementioned Opinion and Regulations shall be filed with the Court and delivered to counsel for plaintiffs on or before October 25, 1971, and they shall be issued and promulgated respectively on or before October 27, 1971.

Section 1375

35. Section 1375 of the School Code of 1949, as amended, 24 Purd. Stat. Sec. 13-1375, provides:

“Uneducable children provided for by Department of Public Welfare

“The State Board of Education shall establish standards for temporary or permanent exclusion from the public school of children who are found to be uneducable and untrainable in the public schools. Any child who is reported by a person who is certified as a public school psychologist as being uneducable and untrainable in the public schools, may be reported by the board of school directors to the Superintendent of Public Instruction and when approved by him, in accordance with the standards of the State Board of Education, shall be certified to the Department of Public Welfare as a child who is uneducable and untrainable in the public schools. When a child is thus certified, the public schools shall be relieved of the obligation of providing education or training for such child. The Department of Public Welfare shall thereupon arrange for the care, training and supervision of such child in a manner not inconsistent with the laws governing mentally defective individuals.”

36. Defendants the Commonwealth of Pennsylvania, the Secretary of Education, the State Board of Education, the named School Districts and Intermediate Units, on their own behalf and on behalf of all School Districts and Intermediate Units in the Commonwealth of Pennsylvania, and the Secretary of Public Welfare, each of them, for themselves, their officers, employees, agents and successors agree that they shall cease and desist from applying Section 1375 so as to deny access to a free public program of education and training to any mentally retarded child.

37. The Attorney General agrees to issue an Opinion declaring that since all children are capable of benefiting from a program of education and training, Section 1375 means that insofar as the Department of Public Welfare is charged to “arrange for the care, training and supervision” of a child certified to it, the Department of Public Welfare must provide a program of education and training appropriate to the capacities of that child.

38. The Attorney General agrees to issue an Opinion declaring that Section 1375 means that when it is found, on the recommendation of a public school psychologist and upon the approval of the local board of school directors and the Secretary of Education, as reviewed in the due process hearing as set out in the Order of this Court dated June 18, 1971, that a mentally retarded child would benefit more from placement in a program of education and training administered by the Department of Public Welfare than he would from any program of education and training administered by the Department of Education, he shall be certified to the Department of Public Welfare for placement in a program of education and training.

39. To assure that any program of education and training administered by the Department of Public Welfare shall provide education and training appropriate to a child’s capacities the plan referred to in Paragraph 49 below shall specify, inter alia,

(a) the standards for hours of instruction, pupil-teacher ratios, curriculum, facilities, and teacher qualifications that shall be met in programs administered by the Department of Public Welfare;

(b) the standards which will qualify any mentally retarded person who completes a program administered by the Department of Public Welfare for a High School Certificate or a Certificate of Attendance as contemplated in Sections 8-132 and 8-133 of the Special Education Regulations;

(c) the reports which will be required in the continuing discharge by the Department of Education of its duty under Section 1302(1) of the Administrative Code of 1929, as amended, 71 P.S. Sec. 352(1), to inspect and to require reports of programs of education and training administered by the Department of Public Welfare, which reports shall include, for each child in such programs an annual statement of educational strategy (as defined in Section 8-123 of the Special Education Regulations) for the coming year and at the close of the year an evaluation of that strategy;

(d) that the Department of Education shall exercise the power under Section 1926 of the School Code of 1949, as amended, 24 Purd. Stat. Sec. 19-1926 to supervise the programs of education and training in all institutions wholly or partly supported by the Department of Public Welfare, and the procedures to be adopted therefor.

40. The Attorney General agrees to issue an Opinion so construing Section 1375 and the Board to promulgate Regulations implementing said construction, which Opinion and Regulations shall also provide:

(a) that the Secretary of Education shall be responsible for assuring that every mentally retarded child is placed in a program of education and training appropriate to his learning capacities, and to that end, by Rules of Procedure requiring that reports of the annual census and evaluation, under Section 1371(2) of the School Code of 1949, as amended, 24 Purd. Stat. 13-1371(2), be made to him, he shall be informed as to the identity, condition, and educational status of every mentally retarded child within the various school districts.

(b) that should it appear that the provisions of the School Code relating to the proper education and training of mentally retarded children have not been complied with or the needs of the mentally retarded child are not being adequately served in any program administered by the Department of Public Welfare, the Department of Education shall provide such education and training pursuant to Section 1372(5) of the School Code of 1949, as amended, 21 Purd. Stat. Sec. 13-1372(5).

(c) that the same right to notice and an opportunity for a hearing as is set out in the Order of this Court of June 18, 1971, shall be accorded on any change in educational assignment among the programs of education and training administered by the Department of Public Welfare.

(d) that not less than every two years the assignment of any mentally retarded child to a program of education and training administered by the Department of Public Welfare shall be re-evaluated by the Department of Education and upon such re-evaluation, notice and an opportunity to be heard shall be accorded as set out in the Order of this Court, dated June 18, 1971.

40. Copies of the aforesaid Opinion and Regulations shall be filed with the Court and delivered to counsel for plaintiffs on or before October 25, 1971, and they shall be issued and promulgated respectively on or before October 27, 1971.

IV.

41. Each of the named plaintiffs shall be immediately re-evaluated by defendants and, as soon as possible, but in no event later than October 13, 1971, shall be accorded access to a free public program of education and training appropriate to his learning capacities.

42. Every retarded person between the ages of six and twenty-one years as of the date of this Order and thereafter shall be provided access to a free public program of education and training appropriate to his capacities as soon as possible but in no event later than September 1, 1972.

43. Wherever defendants provide a pre-school program of education and training for children less than six years of age, whether kindergarten or howsoever called, every mentally retarded child of the same age as of the date of this Order and hereafter shall be provided access to a free public program of education and training appropriate to his capacities as soon as possible but in no event later than September 1, 1972.

44. The parties explicitly reserve their right to hearing and argument on the question of the obligation of defendants to accord compensatory educational opportunity to members of the plaintiff class of whatever age who were denied access to a free public program of education and training without notice and without a due process hearing while they were aged six years to twenty-one years, for a period equal to the period of such wrongful denial.

45. To implement the aforementioned relief and to assure that it is extended to all members of the class entitled to it, Dr. Herbert Goldstein and Dennis E. Haggerty, Esquire are appointed Masters for the purpose of overseeing a process of identification, evaluation, notification, and compliance hereinafter described.

46. Notice of this Order and of the Order of June 18, 1971, in form to be agreed upon by counsel for the parties, shall be given by defendants to the parents and guardian of every mentally retarded person, and of every person thought by defendants to be mentally retarded, of the ages specified in Paragraphs 42 and 43 above, now resident in the Commonwealth of Pennsylvania, who while he was aged four years to twenty-one years was not accorded access to a free public program of education and training, whether as a result of exclusion, postponement, excusal, or in any other fashion, formal or informal.

47. Within thirty days of the date of this Order, defendants shall formulate and shall submit to the Masters for their approval a satisfactory plan to identify, locate, evaluate and give notice of all the persons described in the foregoing paragraph, and to identify all persons described in Paragraph 44, which plan shall include, but not be limited to, a search of the records of the local school districts, of the intermediate units, of County MH/MR units, of the State Schools and Hospitals, including the waiting lists for admission thereto, and of interim care facilities, and, to the extent necessary, publication in newspapers and the use of radio and television in a manner calculated to reach the persons described in the foregoing paragraph. A copy of the proposed plan shall be delivered to counsel for plaintiffs who shall be accorded a right to be heard thereon.

48. Within ninety days of the date of this Order, defendants shall identify and locate all persons described in paragraph 46 above, give them notice and provide for their evaluation, and shall report to the Masters the names, circumstances, the educational histories and the educational diagnosis of all persons so identified.

49. By February 1, 1972, defendants shall formulate and submit to the Masters for their approval a plan, to be effectuated by September 1, 1972, to commence or recommence a free public program of education and training for all mentally retarded persons described in Paragraph 46 above and aged between four and twenty-one years as of the date of this Order, and for all mentally retarded persons of such ages hereafter. The plan shall specify the range of programs of education and training, their kind and number, necessary to provide an appropriate program of education and training to all mentally retarded children, where they shall be conducted, arrangements for their financing, and, if additional teachers are found to be necessary, the plan shall specify recruitment, hiring, and training arrangements. The plan shall specify such additional standards and procedures, including but not limited to those specified in Paragraph 39 above, as may be consistent with this Order and necessary to its effectuation. A copy of the proposed plan will be delivered to counsel for plaintiffs who shall be accorded a right to be heard thereon.

50. If by September 1, 1972, any local school district or intermediate unit is not providing a free public education to all mentally retarded persons 4 to 21 years of age within its responsibility, the Secretary of Education, pursuant to Section 1372(5) of the Public School Code of 1949, 24 Purd. Stat. 1372(5) shall directly provide, maintain, administer, supervise, and operate programs for the education and training of these children.

51. The Masters shall hear any members of the plaintiff class who may be aggrieved in the implementation of this Order.

52. The Masters shall be compensated by defendants.

53. This Court shall retain jurisdiction of the matter until it has heard the final report of the Masters on or before October 15, 1972.

(s) Thomas K. Gilhool

(s) J. Shane Creamer

Attorney for Plaintiffs

Attorney General

(s) Ed Weintraub

Deputy Attorney General

Attorneys for Defendants

Acknowledged:

(s) Dr. David H. Kurtzman

Secretary of Education

(s) Dr. William F. Ohrtman

Director, Bureau of Special Education

(s) Mrs. Helene Wohlgemuth

Secretary of Public Welfare

(s) Edward R. Goldman

Commissioner of Mental Retardation.

APPENDIX

NOTICE *

To: (1) All parents and guardians of mentally retarded persons resident in the Commonwealth of Pennsylvania

[(2) All School Districts and Intermediate Units in the Commonwealth of Pennsylvania]

Notice is hereby given (1) that a proposed Order approving a Consent Agreement and issuing certain Injunctions in Pennsylvania Association for Retarded Children et al. v. Commonwealth of Pennsylvania, E.D. Pa., C.A. No. 71-42, is on file with the Clerk of the United States District Court and available for inspection there and in the offices of the Superintendent of each School District and Intermediate Unit in the Commonwealth of Pennsylvania and of each County Chapter of the Pennsylvania Association for Retarded Children.

(2) That the above mentioned action, on behalf of all mentally retarded persons who have been denied access to a free, public program of education and training, was begun on January 7, 1971, raising certain procedural and substantive claims against the laws and practices of the Commonwealth of Pennsylvania, the Department of Education, the Department of Public Welfare, 12 named School Districts and Intermediate Units and the class of all School Districts and Intermediate Units in the Commonwealth, because of their failure to provide a free public education to all mentally retarded children.

(3) That the proposed Order would approve a Consent Agreement entered into by the named parties on October 7, 1971, providing that each mentally retarded child shall be accorded access to a program of education and training, that notice and an opportunity for a hearing shall be accorded before any change in the educational assignment of mentally retarded children, that certain sections of the Public School Code shall be so construed, and that certain Regulations so providing shall be promulgated thereunder, and that a Special Master shall be appointed to oversee the identification by defendants of all mentally retarded children who have been denied an education and the formulation and implementation by defendants of a plan to provide a free, public program of education and training to all mentally retarded children as soon as possible and no later than September 1, 1972, and would also issue certain Injunctions consistent with the Consent Agreement.

(4) That the parents or guardian of any mentally retarded child [or any school district or intermediate unit] who may wish to make an objection to the Proposed Order approving the Consent Agreement may do so by entering an appearance and filing a statement of objections with the Clerk of the United States District Court for the Eastern District of Pennsylvania, 9th and Chestnut Streets, Philadelphia, on or before October 20, 1971. Hearing thereon shall be held before the Court at 10:00 o’clock A.M., October 22, 1971.

TIMOTHY W. v. ROCHESTER N.IL SCHOOL DLIS’MICT
United States Court of Appeals, 1989.

875 F.2d 954 (1st Cir.)

BOWNES, Circuit Judge.

Plaintiff-appellant Timothy W. appeals an order of the district court which held that under
the Education for All Handicapped Children Act, a handicapped child is not eligible for special
education if he cannot benefit from that education, and that Timothy W., a severely retarded and
multiply handicapped child was not eligible under that standard. We reverse.

I. BACKGROUND

Timothy W. was born two months prematurely on December 8, 1975 with severe
respiratory problems, and shortly thereafter experienced an intracranial hemorrhage, subdural
effusions, seizures, hydrocephalus, and meningitis. As a result, Timothy is multiply handicapped
and profoundly mentally retarded. He suffers from complex developmental disabilities, spastic
quadriplegia, cerebral palsy, seizure disorder and cortical blindness. His mother attempted to obtain
appropriate services for him, and while he did receive some services from the Rochester Child
Development Center, he did not receive any educational program from the Rochester School
District when he became of school age.

* * *

On July 5, 1988, the district court rendered its opinion entitled “Order on Motion for
Judgment on the Pleadings or in the Alternative, Summary Judgment.” The record shows that the
court had before it all the materials and reports submitted in the course of the administrative
hearings, and the testimony from the two-day hearing. The court made rulings of law and findings
of fact. It first ruled that “under EAHCA [the Education for All Handicapped Children Act], an
initial determination as to the child’s ability to benefit from special education, must be made in
order for a handicapped child to qualify for education under the Act.” After noting that the New
Hampshire statute * * * was intended to implement the EAHCA, the court held: “Under New
Hampshire law, an initial decision must be made concerning the ability of a handicapped child to
benefit from special education before an entitlement to the education can exist.” The court then
reviewed the materials, reports and testimony and found that “Timothy W. is not capable of
benefitting from special education …. As a result, the defendant [school district] is not obligated to
provide special education under either EAHCA [the federal statute] or RSA 186-C [the New
Hampshire statute].” Timothy W. has appealed this order. Neither party objected to the procedure
followed by the court.

The primary issue is whether the district court erred in its rulings of law. Since we find that

it did, we do not review its findings of fact.

* * *

The language of the Act could not be more unequivocal. The statute is permeated with the
words “all handicapped children” whenever it refers to the target population. It never speaks of any
exceptions for severely handicapped children. Indeed, as indicated supra, the Act gives priority to
the most severely handicapped. Nor is there any language whatsoever which requires as a
prerequisite to being covered by the Act, that a handicapped child must demonstrate that he or she
will “benefit” from the educational program. Rather, the Act speaks of the state’s responsibility to
design a special education and related services program that will meet the unique “needs” of all
handicapped children. The language of the Act in its entirety makes clear that a “zero-reject” policy
is at the core of the Act, and that no child, regardless of the severity of his or her handicap, is to
ever again be subjected to the deplorable state of affairs which existed at the time of the Act’s
passage, in which millions of handicapped children received inadequate education or none at all. In
summary, the Act mandates an appropriate public education for all handicapped children,
regardless of the level of achievement that such children might attain.

* * *

In mandating a public education for all handicapped children, Congress explicitly faced the

issue of the possibility of the non-educability of the most severely handicapped. The Senate Report
stated, “The Committee recognizes that in many instances the process of providing special
education and related services to handicapped children is not guaranteed to produce any particular
outcome.” * * * The report continued: “The Committee has deleted the language of the bill as
introduced which required objective criteria and evaluation procedures by which to assure that the
short term instructional goals were met.” * * *

Thus, the district court’s major holding, that proof of an educational benefit is a prerequisite
before a handicapped child is entitled to a public education, is specifically belied, not only by the
statutory language, but by the legislative history as well. We have not found in the Act’s
voluminous legislative history, nor has the school district directed our attention to, a single
affirmative averment to support a benefit/eligibility requirement. But there is explicit evidence of a
contrary congressional intent, that no guarantee of any particular educational outcome is required
for a child to be eligible for public education.

* * *

The district court relied heavily on Board of Education of Hendrick Hudson Central School

District v. Rowley, 458 U.S. 176 * * * (1982), in concluding that as a matter of law a child is not
entitled to a public education unless he or she can benefit from it. The district court, however, has
misconstrued Rowley. In that case, the Supreme Court held that a deaf child, who was an above
average student and was advancing from grade to grade in a regular public school classroom, and
who was already receiving substantial specialized instruction and related services, was not entitled,
in addition, to a full time sign-language interpreter, because she was already benefitting from the
special education and services she was receiving. The Court held that the school district was not
required to maximize her educational achievement. It stated, “if personalized instruction is being
provided with sufficient supportive services to permit the child to -benefit from the instruction. . . .
the child is receiving a ‘free appropriate public education’ as defined by the Act,” * * * and that

“certainly the language of the statute contains no requirement . . . that States maximize the potential
of handicapped children.” * * *

Rowley focused on the level of services and the quality of programs that a state must
provide, not the criteria for access to those programs. * * * The Court’s use of “benefit” in Rowley
was a substantive limitation placed on the state’s choice of an educational program; it was not a
license for the state to exclude certain handicapped children. In ruling that a state was not required
to provide the maximum benefit possible, the Court was not saying that there must be proof that a
child will benefit before the state is obligated to provide any education at all. Indeed, the Court in
Rowley explicitly acknowledged Congress’ intent to ensure public education to all handicapped
children without regard to the level of achievement that they might attain.

Congress expressly ‘recognize[d] that in many instances the process of providing special
education and related services to handicapped children is not guaranteed to produce any
particular outcome.’ * * * Thus, the intent of the Act was more to open the door of public
education to handicapped children on appropriate terms than to guarantee any particular
level of education once inside.

* * * (emphasis added).

Rowley simply does not lend support to the district court’s finding of a benefit/eligibility standard in
the Act. As the Court explained, while the Act does not require a school to maximize a child’s
potential for learning, it does provide a “basic floor of opportunity” for the handicapped, consisting
of “access to specialized instruction and related services.” * * * (emphasis added). Nowhere does
the Court imply that such a “floor” contains a trap door for the severely handicapped. Indeed,
Rowley explicitly states: “[t]he Act requires special educational services for children ‘regardless of
the severity of their handicap,”‘ * * * and “[t]he Act requires participating States to educate a wide
spectrum of handicapped children, from the marginally hearing-impaired to the profoundly retarded
and palsied.” * * * See also Abrahamson, 701 F.2d at 227 (“A school committee is required by the
Act merely to ensure that the child be placed in a program that provides opportunity for some
educational progress.”) (emphasis added). This is a far cry from a requirement of proof that
educational benefit will definitely result, before a child is entitled to receive that education.

* * *

CONCLUSION

The statutory language of the Act, its legislative history, and the case- law construing it,
mandate that all handicapped children, regardless of the severity of their handicap, are entitled to a
public education. The district court erred in requiring a benefit/eligibility test as a prerequisite to
implicating the Act. School districts cannot avoid the provisions of the Act by returning to the
practices that were widespread prior to the Act’s passage, and which indeed were the impetus for
the Act’s passage, of unilaterally excluding certain handicapped children from a public education on
the ground that they are uneducable.

The law explicitly recognizes that education for the severely handicapped is to be broadly
defined, to include not only traditional academic skills, but also basic functional life skills, and that
educational methodologies in these areas are not static, but are constantly evolving and improving.
It is the school district’s responsibility to avail itself of these new approaches in providing an
education program geared to each child’s individual needs. The only question for the school district
to determine, in conjunction with the child’s parents, is what constitutes an appropriate
individualized education program (IEP) for the handicapped child. We emphasize that the phrase
“appropriate individualized education program” cannot be interpreted, as the school district has
done, to mean “no educational program.”

We agree with the district court that the Special Education Act of New Hampshire * * *
implements the federal statute. Its policy and purpose is as unequivocal as that of the federal Act:

It is hereby declared to be the policy of the state that all children in New Hampshire be
provided with equal educational opportunities. It is the purpose of this chapter to insure that
the state board of education and the school districts of the state provide a free and
appropriate public education for all educationally handicapped children.

* * * (emphasis added). For the reasons already stated, we hold that the New Hampshire statute is
not subject to a benefit/eligibility test.

The judgment of the district court is reversed, judgment shall issue for Timothy W. The
case is remanded to the district court which shall retain jurisdiction until a suitable individualized
education program (IEP) for Timothy W. is effectuated by the school district. Timothy W. is
entitled to an interim special educational placement until a final IEP is developed and agreed upon
by the parties. The district court shall also determine the question of damages.

Costs are assessed against the school district.

Cases

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