School districts in New Jersey frequently push back against parents of children with disabilities, their advocates, and their lawyers seeking special education services for those children. The districts argue that, even if a child needs certain services, they need not provide those services because the costs, which come from public funds, are prohibitive.

So, the argument goes, schools should be given a pass for "doing their best," so long as they acted in good faith. School districts routinely make this argument publicly, privately, in courtrooms, and in amicus briefs. (Unfortunately, parents' advocates and lawyers expect to hear this argument more and more frequently during and in the aftermath of the financial crisis brought about by the COVID-19 pandemic.)

But the "it's too expensive" defense is nonsense in the special education law context, even now, during an unprecedented global pandemic and an attendant financial crisis. If a school district accepts federal funding, it must provide a minimum level of special education services to its students.

In fact, Congress expressly instructed the U.S. Department of Education, as part of the CARES Act, to report back on whether obligations under the Individuals with Disabilities Education Act and Section 504 of the Rehabilitation Act of 1973 should be relaxed or even waived during the pandemic. U.S. Secretary of Education Betsy DeVos responded just as expressly, saying that "[w]hile the Department has provided extensive flexibility to help schools transition, there is no reason for Congress to waive any provision designed to keep students learning."

Compliance as a Prerequisite to Funding

The federal law that mandates the provision of special education services to every child who needs them in order to access a "free appropriate public education," the Individuals with Disabilities Education Act, 20 U.S.C. 1400, et seq., is not a compulsory statute.

As the statute makes clear, "a State is eligible for assistance … for a fiscal year if the State submits a plan that provides assurances to the Secretary [of Education] that the State has in effect policies and procedures to ensure that the State meets each of the following conditions…." 20 U.S.C. 1412(a). In this same paragraph, the statute mandates the provision of a "free appropriate public education" in the least restrictive environment to every eligible child, along with compliance with other requirements of the IDEA.

For the 2020 fiscal year, New Jersey received just shy of $400 million from the federal government in special education grants under the IDEA for school-age children.

Unlike the federal minimum wage, with which every covered employer must either comply or suffer penalties, compliance with the IDEA is merely a condition of federal education funding.  Any agency (school district or state department of education) that does not want to comply with the IDEA is free to turn down federal education funding and go it alone.

Or, as the U.S. Department of Education put it: "Any state that does not want to abide by a federal program's requirements can simply choose not to accept the federal funds associated with that program. While most states choose to accept and use federal program funds, in the past, a few states have forgone funds for various reasons." U.S. Dep't of Edu., "10 Facts About K-12 Education Funding," available at https://www2.ed.gov/about/overview/fed/10facts/index.html.

In practical terms, New Jersey school districts (and the state Department of Education) have two real choices: turn down federal funding or comply with the IDEA. They almost always accept the funding, but many still publicly complain about its conditions. These complaints have no legal effect. But they do sometimes grab the attention of local newspapers, local voters, and (sometimes) even administrative law judges deciding individual cases brought by parents against school districts for special education services. And in the current crisis, such arguments may gain traction in the court of public opinion, despite the fact that they are legally infirm.

"It's too Expensive" Is a Losing Argument in Court

The IDEA does not recognize cost as a factor in choosing a program for an individual student. Each student must be provided with a free appropriate public education in the least restrictive environment, without regard to cost.

For this reason, courts rarely if ever express a concern about the school district litigant's budget. But school districts often urge trial courts to show an undue concern for the cost of providing a student with a free appropriate public education—even when the federal government is partially picking up the tab for special education services through the funds it provides the districts.

For example, in Borough of Palmyra, Bd. of Educ. v. F.C. Through R.C., 2 F. Supp. 2d 637, 645 (D.N.J. 1998), the local school board predicted "dire financial consequences" if it could not obtain a stay of an administrative decision to pay $12,115 in private school tuition. In rejecting the board's argument of the "public interest" in saving the money, the late U.S. District Judge Jerome Simandle noted that the tuition amount must be viewed in the context of the board's budget, which exceeded $10 million. He also noted that "there is a strong public interest in enforcing the orders of administrative law judges and seeing that the Board complies with its duty to provide a free appropriate education to its learning[-]disabled students." Id.

More recently, U.S. District Judge Jose Linares rejected the same argument, made by another school board, in N. Highlands Reg'l High Sch. Bd. of Educ. v. C.E., CV 18-8999 (JLL), 2018 WL 5630761, at *6 (D.N.J. Oct. 31, 2018). In so doing, he noted that "Congress made a determination that the interim financial burden of educating students with special needs is better borne by school districts rather than by parents." Id.

And on the specific issue of a stay of payment pending a school district's appeal, the Third Circuit has made the law clear. In Susquenita Sch. Dist. v. Raelee S. By & Through Heidi S., 96 F.3d 78, 84 (3d Cir. 1996), that court held that "the policies underlying the IDEA and its administrative process favor imposing financial responsibility upon the local school district as soon as there has been an administrative panel or judicial decision establishing the pendent placement."

New Jersey federal courts are not outliers here; other federal courts have taken the same approach.

In Bd. of Educ. of Jacksonville Sch. Dist. v. C.P. & O.P., No. 3:15-CV-3228, 2016 WL 164987, at *10 (C.D. Ill. 2016), the court rejected the district's "public interest" argument in support of a stay of the obligation to pay tuition, and held that "[w]here Congress has created a special enforcement system, the public interest is on the side of maintaining that system's integrity."

In Dep't of Educ., Hawaii v. C.B. ex rel. Donna B., CIV. 11-00576 SOM, 2012 WL 220517, at *5 (D. Haw. Jan. 24, 2012), the court cited a 2005 District of New Mexico decision that held "whatever threat of irreparable financial harm [the school district] may suffer as a result of its present obligation to reimburse the [parents] is outweighed by the much greater and more irreparable threat of harm to the child, who benefits from the relief awarded by the [administrative] decision."

Budgetary Concerns Must Give Way to Legal Obligations, Even Now

School districts are not without options, nor is it improper for them to consider budgetary constraints, when providing special education services. But school districts cannot allow those budgetary constraints to trump their legal obligation to provide every student with a free appropriate public education, which is a condition of federal funding for special education. In short, districts must provide everyone a free appropriate public education in the least restrictive setting, or they're on their own as to special education funding.

Almost three decades ago, Justice Sandra Day O'Connor described the options available to school districts regarding special education services: "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." Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 15 (1993).

In practice, school districts that receive federal funding conditioned on compliance with the IDEA have options as to each individual student. Districts can pay for a student's appropriate education at a private school, ideally in collaboration and with agreement by the parents. Or they can provide an appropriate education in the public-school context. What they cannot do is offer only an inappropriate program and then defend it on the basis of budgetary constraints.

Of course, if any New Jersey school district board members dispute the underlying basis of federal funding for special education—that their districts' receipt of federal education funding under the IDEA requires them to provide special education services necessary to ensure every student in their district receives a free appropriate public education without consideration of cost concerns—they have the option to opt out of federal funding, liberating themselves from the constraints that acceptance of it imposes.

But in light of how vital federal education funding is to the operations of local New Jersey school districts—again, they'll receive about $400 million in grants from the federal government in fiscal year 2020 just for special education services for school-age children—their complaints about the obligation to comply with federal conditions on that funding are unseemly, unwarranted, and unavailing.

John D. Rue is the principal at John Rue & Associates in Lake Hopatcong, and lead counsel in C.P. v. N.J. Dep't of Educ., No. 19-cv-12807 (D.N.J.). His firm is a private public interest law firm assisting clients with all aspects of education law issues.