§8896. By-pass determination process

(a) Review

(1) In general

(A) The Secretary shall not take any final action under section 8894 of this title until the State educational agency, local educational agency, educational service agency, or consortium of such agencies affected by such action has had an opportunity, for not less than 45 days after receiving written notice thereof, to submit written objections and to appear before the Secretary to show cause why that action should not be taken.

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

(2) Petition for review

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

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

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

(3) Findings of fact

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

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

(4) Jurisdiction

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

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

(b) Determination

Any determination by the Secretary under this section shall continue in effect until the Secretary determines, in consultation with such agency or consortium and representatives of the affected private school children, teachers, or other educational personnel that there will no longer be any failure or inability on the part of such agency or consortium to meet the applicable requirements of section 8893 of this title or any other provision of this chapter.

(c) Payment from State allotment

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

(d) Prior determination

Any by-pass determination by the Secretary under this Act as in effect on the day preceding October 20, 1994, shall remain in effect to the extent the Secretary determines that such determination is consistent with the purpose of this section.

(Pub. L. 89–10, title XIV, §14506, as added Pub. L. 103–382, title I, §101, Oct. 20, 1994, 108 Stat. 3904 .)

References in Text

This Act, as in effect on the day preceding October 20, 1994, referred to in subsec. (d), is Pub. L. 89–10, as added by Pub. L. 100–297, title I, §1001, Apr. 28, 1988, 102 Stat. 140 , as amended, known as the Elementary and Secondary Education Act of 1965, which was classified generally to chapter 47 (§2701 et seq.) of this title prior to the general amendment of that Act by Pub. L. 103–382, title I, §101, Oct. 20, 1994, 108 Stat. 3519 .

Section Referred to in Other Sections

This section is referred to in sections 6321, 8894 of this title.