FROM: Sid Hemsley, Senior Law Consultant
DATE: October 31, 2008
RE: Special Education for annexed students
One of the City' s questions is whether the city must immediately become responsible for the special education of children who come into the city by its annexation of territory in which the children live?
Surprisingly, that question is not directly answered by either the Tennessee state law or by federal law. But when all of those laws and the administrative regulations adopted by the state and federal departments of education listed immediately below are considered together, it seems clear that the answer is that the school system in which the child lives, even if the child goes to a school in another political subdivision or even to a private school, is responsible for the special education of children who qualify for such education. But it is also true that under Tennessee state law and regulations local educational agencies can contract with other school systems and other entities to provide such education. .
It is said in the recent U.S. Supreme Court case of Schaffer ex rel. Schaffer v. Weast, 546 U.S.49 (2005), that:
IDEA [Individuals With Disabilities in Education Act] is " frequently described as a model of ' cooperative federalism.'" Little Rock School Dist. v. Mauney, 183 F.3d 816, 830 (C.A. 8 1999). Itleaves to the States the primary responsibility for developing and executing educational programs for handicapped children, [but] imposes significant requirements to be followed in the discharge of that responsibility.... [At 52]
The Court describes the way in the IDEA is " cooperative," by pointing to the requirement that it is the state which develops the policies and procedures that comply with the IDEA, and that " Local educational agencies (school boards or other administrative bodies) can receive IDEA funds only if they certify to a state educational agency that they are acting in accordance with the State' s policies and procedures. '1412(a)(`1)" [At 52] While the word " cooperative" is a giant stretch, considering that the IDEA is a huge and expensive federal mandate for school systems all over the United States, what the U.S. Supreme Court said about the states being responsible for " developing and executing educational programs for handicapped children," is true. In addressing a question similar to the one in the City' s, the Supreme Judicial Court of Massachusetts in City of Salem v. Bureau of Special Education Appeals of the Department of Education, 829 N.E.2d 641 (2005), barely mentioned the IDEA, and then only to support the proposition that the child in question was entitled to a special education under federal law. It resolved the question of which local education agency was obligated to pay for the residential special education when the child' s father and mother lived in different school districts, entirely on the Massachusetts special education law.
Tennessee' s special education law is found in Tennessee Code Annotated, Title 49, Chapter 10. The administrative rules the State Board of Education has adopted under the authority of that statutory scheme are found in Tenn. Comp. R. and Regs.0520-1-9-.01 et seq.. That law and those rules contain detailed provisions governing special education in Tennessee. Tenn. Comp. R. and Regs. 0520-1-09-.01 adopts by reference the Compilation of Federal Regulations contained in 34 C.F.R. Parts 300 and 301 in their entirety, which are the federal regulations governing special education (although it appears that Part 301 has been collapsed into Part 300, and that Part 301 has been " Reserved" ). Those federal rules implement 20 U.S.C. '1400 et seq., which is the main federal statute mandating special education. All of those laws and regulations read together indicate that in Tennessee even though an annexing municipality can contract with another school system to perform its special educational functions, the school district in which special educations students reside is responsible for such education. That appears to be true even in the cases of students attending private schools.
Tennessee Code Annotated, '49-10-103(g)(1) says, " It is the responsibility of local governments and school districts to expend efforts on behalf the education of each child with disabilities equal to the effort expended on account of the education of each child who does not have a disability."
Tenn. Comp. R. and Regs. 0520-1-9.05, provides that:
A free appropriate public education (FAPE) shall be available to all children with disabilities, ages three (3) through the school year the student turns twenty-two (22), including those children who have been suspended or expelled from school for more than ten
(10) school days in a school year. To meet this obligation each local education agency shall: [There follows a list of obligations of the local education agency in the provision of special education.]
The definition of " Local education agency" in 34 C.F.R. '300.28 is
a public board of education or other public authority legally constituted within a state for either administrative control or direction of, or to perform a service functions for, public elementary or secondary schools in a city, county, township, school district, or other political subdivision of a State, or for a combination of school districts or counties as are recognized in a State as an administrative agency for its public elementary schools or secondary schools.
There is no doubt that in the case of municipalities that have school systems in Tennessee, the Local education agency is the city school system. [See for example, Tennessee Code Annotated, Title 49, Chapter 2, which several times speaks of the " local board of education" in terms that distinguish the county and city school systems, where the latter exist.
Tennessee Code Annotated, '49-10-106 provides that any local school district can " independently provide education, corrective and supporting services for children with disabilities..." or do it through a " special education services association..." In addition, Tennessee Code Annotated, '49-10-107 provides that " Nothing in parts 1-6 in this chapter shall be construed to prevent a school district from providing educational, corrective or supporting services for children with disabilities by contracting with another school district to provide such services for children with disabilities from such other district." I have thoroughly checked the federal law and regulations on special education and find nothing that intercepts that kind of arrangement (although, should it become an issue, there are provisions therein that make it clear that where there are disputes over which entity pays for special education, the special education cannot be interrupted).
Tennessee Code Annotated, '49-10-106 and 107 are a bit confusing on the question of what a city school district' s obligation is to children who have been annexed into the city but who temporarily continue to attend school in the county' s school system. Tennessee Code Annotated, '49-10-108 provides that" Every school district shall test and examine, or cause to be tested and examined, each child attending the public and private schools within it boundaries in order to determine whether each child is disabled." But if the city school district has that obligation with respect to children in private schools within its district, it seems difficult for it to argue that it has no similar obligation with respect to children annexed into the city school system, but who still temporarily attend the county' s schools, although we will discuss one possible exception below. As indicated above, the city school system could contract with the county school system to perform special education functions, including disability testing, for its children attending county schools, but the overall responsibility for the provision of special education services remains in the hands of the city school system in which the child or children at issue reside. .
Indeed,underTenn. Comp. R. and Regs.0520-01-9-.09 "Each local education agency" has an extremely broad range of responsibilities as to locating children with disabilities and providing them with special education, one or which responsibilities is " Ensures that children with disabilities who are enrolled in private schools or facilities by the local education agency are provided special education and related services, in accordance with the IEP, at no cost to them or to their parents." I suspect that the phrase " or facilities" would be interpreted broadly by the courts to include other school systems in which children from a particular local education agency are being educated.
I earlier alluded to a possible exception. That possible exception arises under provisions of the state' s annexation law that speak of schools in annexed territory. What is the effect of the annexation laws on schools generally, and on special education in particular? Tennessee Code Annotated, '6-51-102(b)(2) requires an annexing municipality to adopt a plan of services for the territory to be annexed. plan of services. If the city has a school system, the plan of services must include a school component: " If a municipality maintains a separate school system, the plan shall also include schools and provisions specifically addressing the impact, if any, of annexation on school attendance zones." Presumably, the requirement in Tennessee Code Annotated, '6-51-102(b)(3), that the plan of services should include a " reasonable implementation schedule" applies to educational services being offered in the existing city, including both general education and special education. Where, as in the City, the city contemplates that special education services in the annexed territory be temporarily provided by contract with the county school system or some other entity, it is probably essential that such information be included in the plan of services.
But a threshold question is generated by Tennessee Code Annotated, '6-51-102(b)(6), which reads:
If a municipality operates a school system, and if the municipality annexes territory during the school year, any student may continue to attend such student' s present school until the beginning of the next succeeding school year unless the respective boards of education have provided otherwise by agreement.
Arguably, the agreement between the boards of education could provide for a shorter, as well as a longer, term than specified i n that statute. But if we assume that the annexation occurs during the school year, but no contract was entered into covering the period between the annexation and the beginning of the next school year, which school board would be responsible for the general and special education of students who were receiving it in county schools? I concluded above that under the state laws and regulations it is the duty of the annexing city' s school board to furnish special education services in territory annexed to the city, but that it can do so through a contract with the county. But where, as under Tennessee Code Annotated, '6- 51-102(b)(6), students annexed into the city during the school year, have a statutory right to attend county schools until the succeeding school year, it may be that the county board of education remains obligated for both the general and special education of children who elect to stay in county schools for the statutorily allowed period, even where there is no contract between the city and county school systems. Presumably, however, the county school system would continue to be entitled to the ADA funding, and to any special education funds, that it was receiving for students generally, and for special education students in particular, for the period those students were in the county schools under the above statute..
Tennessee Code Annotated, '6-51-111(a) provides that:
Uponreferendum approval of an annexation resolution as provided in this part, an annexing municipality and any affected instrumentality of the state of Tennessee, including, but not limited to ...school district, ....shall attempt to reach agreement in writing for allocation and conveyance to the annexing municipality of any or all public functions, rights, duties, property assets and liabilities of such state instrumentality that justice and reason may require under the circumstances.
Subsection (b) of the same statue provides that if the parties cannot reach an agreement in writing within 60 days after the operative date of the annexation, any the issues on which they disagree will be settled by arbitration.
Counties were held in Hamilton County v. City of Chattanooga, 310 S.W.3d 153 (1958) to be " an affected instrumentality of the state" within the meaning of Tennessee Code Annotated, '6-51-111. Apparently there is no school or other property the city expects the county to transfer to the city school system as a consequence of the annexations in question. But it may be that if there is a dispute about what school system is required to provide special education for the period between annexation and the beginning of the succeeding school year, that may be a question over a " public function, right or duty" subject to arbitration.