MEMORANDUM
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 Afrequently
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described as a model of >cooperative federalism. Little Rock School
Dist. v. Mauney, 183 F.3d 816, 830 (C.A. 8 1999). It Aleaves 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 TN ADC 0520-1-9-.01 et seq.. That law and those rules
contain detailed provisions governing special education in Tennessee. TN ADC 0520-1-.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
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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.”
TN ADC 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.
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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, under TN ADC 0520-1-9-.09 “Each local education agency” has an extremely
broad range of responsibilities to as to locating children with disabilities and providing them with
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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 IAP, 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, ' 6-51102(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
succeed 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 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
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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:
Upon adoption of an annexation ordinance or upon referendum
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, ' 651-111. Apparently there is no school or other property the city expects the county to transfer to
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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.
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