Big Spring Independent School District v. Texas Education Agency - Admin Decision (Folder)

    I S
* -̂̂ 1 . - . '  4 ' '  f ’  .‘ ^  ,

- V ' 4 . V

'-JH  . * - ] ! ^ ^ '
' '  ^4'% ^

,l^r=S’ 'A f   ̂ ■J’

4 .  '  .-‘ I , ' , ,  ■

■ « 4  . # %
■ ' f f  ;■ ■!: •■I'. .V



ADMINISTRATIVE PROCEEDING 

IN THE ■

DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE 

NATIONAL SCIENCE FOUNDATION

In the Matter o f BIG SPRING INDEPENDENT 
SCHOOL DISTRICT, TEXAS

(here ina fte r ca lle d  "School D is t r ic t " ) ,

and

TEXAS EDUCATION AGENCY'.......  ....  ̂ '

(he re ina fte r ca lle d  "State Agency") 

Respondents.

DOCKET NO. S-61

RULING ON MOTION FOR RECONSIDERATION OF SCOPE OF 

TERMINATION ORDER OR, IN THE ALTERNATIVE FOR REMAND





i

h  i

On February 12, 1975, we, the Reviewing Au tho rity , issued a f in a l dec is ion , 
w ith ru lin g s  and Order, in  the above captioned proceeding. However, we 
did not inc lude ce rta in  T it le  I (20 U.S.C. 241a-244) funds in  our Order' 
o f term ination. Moreover, on Februap' 24, 1976, we suspended our Order o f 
term ination and remanded the proceeding to the Adm in istra tive  Law Judge 
fo r  s p e c if ic  find ings re la t iv e  to the app lica tio n  o f Sections 207, 208 
and 209 o f the Department o f Labor and Department o f Health, Education, and 
Welfare Appropriation Act o f 1976. On May 27, 1975, the Department (HEW) 
addressed a motion to us, urging us to reconsider the scope o f our Order 
o f term ination and to amend i t  to  inc lude those T it le  I funds which were, 
not included in  that Order. On June 17, 1975, we denied the May_27 motion 
because i t  was unaccompanied by any supporting reasons or a u th o r it ie s , 
w ith leave to the Department to r e f i le  i t s  motion, w ith appropriate 
supporting argument, w ith in  ten days. In denying the May 27 motion and 
granting leave to r e f i le ,  we requested the Department to address i t s e l f  
to the scope o f the coverage o f T it le  I w ith respect to the general 
education programs of school d is t ic t s ,  and d irected  the Department's 
a tten tion  to Hatonabah v. Board o f Education o f Gallip-~McKinley County 
School D is t r ic t ,  355 F.Supp. 715 (1973). On June 29, 1975, the Department 
submitted the in s tan t motion to us, repeating i t s  request fo r  reconsiderat­
ion o f the scope o f our Order o f term ination o f February 12, and renewing 
i.ts claim  that the T it le  I funds in  question should be-terminated.

For the reasons stated below, the in s tan t motion fo r  reconsideration is  
denied.

We read the Hatonabah case to characte rize  T it le  I funds (20 U.S.C. 241a 
et. seq. ) as spec ia l and supplemental funds intended to be used only fo r 
Ip e c ia l prograrzs to meet the needs o f a spec ia l group, namely educationa lly  
deprived ch ild ren . As such, T it le  I funds are not operational funds which 
go to support a l l  student se rv ice s , such as Impact Act; T it le  I funds were 
not intended to support a school d is t r i c t 's  general or basic elementary and 
secondary educational programs. Accord ing ly , d isc r im in a tion , a lle ged ly  
d ire c t  or in fe c t io u s , in  the adm in istra tion  o f T it le  I funded programs 
must be sp e c i f ic a l ly  proved before such funds can be terminated under the 
authority  o f Tay lor County v. F inch , 414 F.2d 1068 (5th C ir . 1969). Merely 
to show d isc rim ina tion  w ith in  the operation o f a school d is t r i c t 's  general 
elementary and secondary educational program w i l l  not s u ff ic e  to invoke 
the in fe c t io n  theory to include and a ffe c t  spec ia l and adjunct programs. 
(See our decis ion and ru lin gs in  Tupelo Municipal Separate School D is t r ic t ,  
M is s is s ip p i,  CR-590, September 24, 1970 and J asper Independent School D is- 
t ic t ,  Texas, CR-774, Septem ber 22, 1970) To invoke the in fe c tio n  theory, 
in  spec ia l and adjunct programs, something more sp e c if ic  l ik e  d ire c t 
evidence o f de le terious e ffe c ts , impact and re su lts  is  requ ired; in fe c t io n  
cannot be b land ly  assumed as pervasive as i t  is  in  the case where there is  
d iscrim inato ry  adm in istration o f programs d ire c t ly  supporting the general



elementary and secondary educational program o f a school d is t r i c t .

In the in s tan t proceeding, nothing e x is ts  in  the record which is  .s p e c if ic  
enough to convince us that the T it le  I funded programs themselves were 
being d is c r im in a to r ily  adm inistered, o r tha t the d isc rim ina tion  which 
otherw ise .ex isted in  the Respondent's system in fected  those T i t le  I 
programs.'

In passing, i t  should be mentioned tha t T it le  I funds were apparently 
conceived to help "shed the harmful e ffe c ts  o f d isc rim ina tion  which 
impact" on students "both d a ily  in  the course o f th e ir  stud ies and 
cum ulative ly over th e ir  years o f school attendance", and i t  would be 
both an anomaly and an anachronism to term inate such funds w ithout 
s p e c if ic  proof o f d isc rim ina tion  in  the adm in istra tion o f programs 
u t i l i z in g  such funds. T it le  I funds are therapeutic in  nature, and 
the lo g ica l approach is  to th ink  o f a therapy as curing and n e u tra liz ­
ing an in fe c t io n ; not in te rp re tin g  the in fe c tio n  as n eu tra liz in g  the 
therapy. T it le  I funds are intended^ among other th in gs , to a id in  
curing the past e ffe c ts  o f d isc r im in a tio n , and th e ir  term ination ought 
not to be automatic, summary or p re c ip itous. Terminating T it le  I funds 
upon a mere assumption o f in fe c t io n  would be lik e  throwing out the baby 
w ith the bath water. •

The Department's in s u ff ic ie n c y  in  the in s tan t proceeding has been a 
fa ilu r e  to meet i t s  burden o f proof because o f a lack o f proof o f s p e c if ic s , 
and we w i l l  not remand a proceeding merely to cure such a procedural 
defect. Consequently, the a lte rn a t iv e  request in  the in s tan t motion fo r 
remand is  likew ise  denied.

With regard to the Department's observation that we ordered term ination 
o f Federal f in a n c ia l assistance under three programs which had not been 
terminated by the Adm in istra tive  Law Judge, s u ff ic e  i t  to  say th a t, under 
the au tho rity  o f 45 CFR §§ 81.92 and 81.38, the Reviewing Authority  has 
the power to take no tice  o f, consider and act upon the e n t ire  ex is tin g  
record o f the proceeding once the A u tho r ity 's  ju r is d ic t io n  has been 
p roperly invoked by the f i l in g  o f exceptions. Acco rd ing ly , we took notice 
that those three programs, not mentioned by the Adm in istra tive  Law Judge, 
were fo r  d ire c t  use in  the general elementary and secondary educational 
program o f the Respondent school d is t r i c t ,  and were, the re fo re , subject 
to  term ination.



A. Moody. Men*sr

u n ve r  Morse, Member

DATED: Ju ly  30, 1975



CERTIFICATE OF SERVICE

I hereby c e r t if y  that I caused one copy o f the attached document to 
be mailed th is  day to each o f the fo llow ing  persons at the addresses given 
below:

Honorable Robert S. Davie 
Adm in istra tive  Law Judge 
Room 10A38, Federal Bu ild ing  
819 Tay lor S tree t 
Fort Worth, Texas 761Q2

Hr. A rthur J. Kusinski 
A ss is tan t to  the General Counsel 
National Science Foundation 
1800 G S tree t, N.W.
Washington, D.C. 20550

Mr. Je rry  H. Luck, Attorney 
Department o f Health, Education 
and Welfare

O ffice  o f the General Counsel 
Room 3265, North Bu ild ing  
330 Independence Avenue, S.W. 
Washington, D.C. 20201

Mr. S. H. Anderson 
Big Spring Independent School 

D is t r ic t
Post O ff ice  Box 590 
Big Spring, Texas 79720

Honorable J . W. Edgar 
Commissioner o f Education 
Texas Education Agency 
Austin , Texas 78711

Hr. G u ilfo rd  L. Jones 
JONES, MILSTEAD, JONES & MCKINNEY 
Post O ffice  Drawer 2398 
Big Spring, Texas 79720

DOCKET NO. S-61 

DATED: Ju ly  31, 1976
is. Mable Lee. Hearing C lerk 

Revievnng Authority  (CR)
Boom 4525 North Bu ild ing  
330 Independence Avenue, S.W 
Washington, D.C. 20201 
COriginal and two copies)



CERTIFICATE OF SERVICE

I hereby c e r t ify  that I caused one copy o f the attached document to 
be mailed th is  day to each o f the fo llow ing  persons a t the addresses given 
below:

ii-' I
i

Honorable Robert S. Davie 
Adm in istra tive  Law Judge 
Room 10A38, Federal Bu ild ing  
819 Taylor S tree t 
Fort Worth, Texas 761Q2

Mr. Arthur J. Kusinski 
A ss istan t to the General Counsel 
National Science Foundation 
1800 G S tree t, N.W.
Washington, D.C. 20550

Mr. Je rry  H. Luck, Attorney 
Department o f Health, Education 
and Welfare

O ffice  o f the General Counsel 
Room 3265, North Bu ild ing  
330 Independence Avenue, S.W. 
Washington, D.C. 20201

Mr. S. M. Anderson 
Big Spring Independent School 

D is t r i ct
Post O ffice  Box 590 
Big Spring, Texas 79720

Honorable J . W. Edgar 
Commissioner o f Education 
Texas Education Agency 
Austin , Texas 78711

Mr. G u ilfo rd  L. Jones 
JONES, MILSTEAD, JONES & MCKINNEY 
Post O ffice  Drawer 2398 
B ig Spring, Texas 79720

DOCKET NO. S-61 

DATED: . 1975
Ms. Mable Lee, Hearing C lerk 
Reviewing Authority  (CR)
Boom 4525 North Bu ild ing  
330 Independence Avenue, S.W 
Washington, D.C. 20201 
(O rig ina l and two copies)



L J / i ix U ' A. Moody. Keioisr

U liv e r  Morse, Member