ROANOKE TIMES 
                      Copyright (c) 1997, Roanoke Times

DATE: Thursday, February 6, 1997             TAG: 9702060063
SECTION: VIRGINIA                 PAGE: C-3  EDITION: METRO 
DATELINE: RICHMOND
SOURCE: Associated Press

APPEALS COURT: U.S. MUST GIVE VA. SPECIAL EDUCATION MONEY FUNDS WERE WITHHELD OVER REFUSAL TO EDUCATE EXPELLED STUDENTS

A federal appeals court ruled Wednesday that the federal government had no right to withhold money from Virginia because the state refuses to educate special education students who are expelled or suspended.

In an 11-2 decision, the 4th U.S. Circuit Court of Appeals reversed a three-judge panel's ruling that sided with the U.S. Education Department.

At stake is about $50 million in federal special education money.

Virginia contends that it has a right to discipline special education students whose misbehavior is not related to their disabilities.

In the earlier 2-1 ruling, the three-judge panel said federal law requires states to have a policy ``that assures all children with disabilities the right to a free appropriate public education.''

But the full appeals court adopted the dissenting opinion of Judge Michael Luttig, who said the law does not require the state to do more for disabled students than it does for students who are not disabled.

``This disciplinary tool has proven to be one of the most effective means of instilling a sense of personal responsibility and accountability in the few obstinately antisocial among the state's youths,'' he said.

Virginia Attorney General Jim Gilmore agreed.

``If teachers cannot maintain order in our classrooms, it is our children who ultimately suffer. The federal policy was unfair to teachers, students and parents,'' he said.

In 1994, another 4th Circuit panel found the federal government could not withhold the money without giving the state an administrative hearing. A hearing examiner and U.S. Education Secretary Richard Riley subsequently upheld the Education Department's original ruling.

The federal government emphasized that the Individuals with Disabilities Education Act did not bar the expulsion of students who misbehaved, but it required instruction in some type of alternative setting.

Virginia contended that it was not obligated to provide alternative services for disabled students because state law does not require local school boards to provide such services for students who are not disabled.

In 1994, 126 of the 128,000 disabled students in the state were suspended for reasons unrelated to their disability.

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