BILL HONIG, CALIFORNIA SUPERINTENDENT OF PUBLIC INSTRUCTION, PETITIONER V. JOHN DOE, ET AL. No. 86-728 In the Supreme Court of the United States October Term, 1986 On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit Brief for the United States as Amicus Curiae Supporting Petitioner TABLE OF CONTENTS Questions presented Interest of the United States Statement Summary of argument Argument: I. The court below erred in enjoining the school district from indefinitely suspending respondents A. The "stay-put" provision does not deny courts their traditional equitable discretion with respect to the issuance of declaratory and injunctive relief B. The district court abused its equitable discretion when it enjoined a local school district from indefinitely suspending, pending completion of expulsion proceedings, children whose handicap-related misconduct endangered themselves or others II. The Education of the Handicapped Act does not require that a state education agency provide direct educational services wherever a local school district is unable or unwilling to provide those services to a particular handicapped child QUESTION PRESENTED 1. Whether the courts below erred in enjoining, pursuant to the "stay-put" provision of the Education of the Handicapped Act, 20 U.S.C. 1415(e)(3), a local school district from indefinitely suspending, pending completion of expulsion proceedings, a child whose handicap-related misconduct endangered himself and others. 2. Whether the Education of the Handicapped Act requires that a state education agency provide direct educational services wherever a local school district is unable or unwilling to provide those services to a particular handicapped child. INTEREST OF THE UNITED STATES The United States distributes federal funds under the Education of the Handicapped Act (EHA), 20 U.S.C. 1400 et seq., and has a substantial interest in questions of federal statutory interpretation, such as the one involved in this case, which will determine, in part, the uses to which those federal funds are put. In addition, under 20 U.S.C. 1234c(e)(2), the Secretary of Education may refer to the Attorney General for enforcement any final cease and desist order directing the withholding of federal funds; thus, the Department of Justice's litigative interests may be affected by the outcome of this case. For similar reasons, the United States participated as amicus curiae before this Court in another case involving the EHA. See Hendrick Hudson Dist. Bd. of Educ. v. Rowley, 458 U.S. 176 (1982). STATEMENT 1. Congress enacted the Education of the Handicapped Act (EHA) (20 U.S.C. 1400 et seq.) in 1975 "to assure that all handicapped children have available to them * * * a free appropriate public education which emphasizes special education and related services designed to meet their unique needs, to assure that the rights of handicapped children and their parents or guardians are protected, to assist States and localities to provide for the education of all handicapped children, and to assess and assure the effectiveness of efforts to educate handicapped children" (20 C.S.C. 1400(c)). Under the EHA, state and local education agencies that comply with extensive statutory goals and procedures receive substantial federal funds to use in the education of handicapped children. At the present time, all states, including the State of California, participate in the EHA program. /1/ At the state level, the EHA requires the pertinent public education authority to demonstrate that it "has in effect a policy that assures all handicapped children the right to a free appropriate public education" (20 U.S.C. 1412(1)). The state agency must file with, and have approved by, the Secretary of Education, a plan that describes in detail the state's goals, programs, and timetables for educating handicapped children in its jurisdiction. 20 U.S.C. 1412, 1413. The state authority must also show that, to "the maximum extent appropriate," it will educate handicapped children "with children who are not handicapped" (20 U.S.C. 1412(4)). Where, however, "the nature or severity of the handicap is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily," the state agency may provide that handicapped children will receive their "free appropriate public education" in separate classes or institutional settings (ibid.). /2/ At the local level, the EHA requires the pertinent public education authority annually to prepare an "individualized educational program" (IEP) for each handicapped child on its enrollment. 20 U.S.C. 1401(18) and (22). The IEP describes the specially designed instruction and services necessary to meet the unique needs of the particular handicapped child. 20 U.S.C. 1401 (19). It is prepared at a meeting between a qualified representative of the local educational agency, the child's teacher, the child's parents or guardian, and, where appropriate, the child himself. See ibid. It ensures that the local agency tailors its "free appropriate public education" to each handicapped child's needs. 20 U.S.C. 1414(a)(5). At both the state and local levels, the EHA requires that various "procedural safeguards" be made available to the parents of handicapped children. 20 U.S.C. 1415(a). Specifically, parents must receive: (a) an opportunity "to examine all relevant records with respect to the identification, evaluation, and educational placement of the child"; (b) prior written notice whenever the responsible education agency proposes (or refuses) to change a child's educational placement or program; (c) a full explanation of their procedural rights as parents; (d) "an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child"; and (e) an "opportunity for an impartial due process hearing" with respect to any such complaint. 20 U.S.C. 1415(b)(1) and (2). These procedures ensure that interested parents can participate effectively in the educational decisionmaking process. See Hendrick Hudson Dist. Bd. of Educ. v. Rowley, 458 U.S. 176, 204-205 (1982). The EHA also requires that "any party aggrieved by the findings and decision" rendered in any such "impartial due process hearing" have appellate recourse. If the initial hearing is held at the local or regional level, the aggrieved party may appeal to the state educational agency. 20 U.S.C. 1415(c). Thereafter, the aggrieved party may "bring a civil action with respect to the complaint * * * in any State court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy" (20 U.S.C. 1415(e)(2)). The court is directed to "receive the records of the administrative proceedings, * * * hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, * * * grant such relief as (it) determines is appropriate" (ibid.). The so-called "stay-put" provision of the statute instructs, however, that, "(d)uring the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents or guardian otherwise agree, the child shall remain in the then current educational placement of such child * * *" (20 U.S.C. 1415(e)(3)). But see 34 C.F.R. 300.513 (Comment) (1986) ("this does not preclude the agency from using its normal procedures for dealing with children who are endangering themselves or others"). Finally, the EHA requires the state educational agency to provide special education and related services directly to handicapped children in certain circumstances. 20 U.S.C. 1415(d). Specifically, the state agency must provide direct education services to handicapped children wherever it determines (a) that "a local agency * * * is unable or unwilling to establish and maintain" the necessary programs, (b) that a local agency "is unable or unwilling to be consolidated with other local educational agencies in order to establish and maintain such programs," or (c) that the state "has one or more handicapped children who can best be served by a regional or State center designed to meet the needs of such children" (ibid.). "The State educational agency may provide such education and services in such manner, and at such locations * * *, as it considers appropriate" (ibid.). The Secretary of Education is authorized to withhold federal funds from any state or local education agency that fails its statutory obligations. 20 U.S.C. 1414(b)(2), 1416. 2. a. Respondent John Doe is an emotionally disturbed child with aggressive tendencies in certain circumstances (Pet. App. A3), a condition that renders him "handicapped" within the meaning of the EHA. See 20 U.S.C. 1401(1). In April 1980, respondent Doe entered the Louise Lombard School, a developmental center for handicapped children, pursuant to an IEP prepared for him by the San Francisco Unified School District (SFUSD) (Pet. App. A3). In November 1980, however, respondent Doe assaulted another student and broke a school window (ibid.). After respondent Doe admitted doing these acts, the school's principal suspended him for five days, directed that he receive homework assignments, and, after meeting with respondent Doe, his mother, and their attorney, recommended to the school's Student Placement Committee (SPC) that respondent Doe be expelled (id. at A3-A4; J.A. 68 n.1, 209). The SPC agreed and notified respondent Doe's mother that it would meet with her, if she wished, on November 25, 1980 to discuss its recommendation to SFUSD (Pet. App. A4). Pursuant to California statute, /3/ the SPC continued respondent Doe's suspension indefinitely (ibid.). By letter, respondent Doe protested that the expulsion hearing should be cancelled and that an IEP team should be convened (Pet. App. A4). SFUSD apparently ignored this request, leading respondent Doe to file this action in federal district court against SFUSD, various SFUSD officials, and petitioner, the California Superintendent of Public Instruction (ibid.). /4/ Respondent Doe alleged, among other things, that he could not be expelled for his misconduct (since it was a manifestation of his handicap), that the extended suspension pending completion of expulsion proceedings violated the EHA, and that petitioner should intervene and directly provide the educational services that SFUSD had wrongfully ceased providing to him (id. at A5-A6). /5/ The complaint prayed for declaratory, injunctive, and monetary relief (id. at A6). On November 24, 1980, the day before the scheduled conference, SFUSD cancelled the expulsion proceeding and began providing respondent Doe with home teaching (Pet. App. A4; J.A. 201). On December 2, 1980, the district court issued a temporary restraining order directing SFUSD to readmit respondent Doe to the Louise Lombard School (Pet. App. A4). Then, on December 12, 1980, the court preliminarily enjoined SFUSD from excluding respondent Doe pending efforts to find him an alternate placement (J.A. 63-66). On December 15, 1980, respondent Doe reentered the Louise Lombard School (Pet. App. A4). b. Respondent Jack Smith, like respondent Doe, is an emotionally disturbed child with aggressive tendencies, rendering him "handicapped" within the meaning of the EHA (Pet. App. A5). In February 1980, an IEP team recommended that he receive, on a trial basis, a special education program in a regular classroom setting at the A.P. Giannini School (ibid.). Respondent Smith entered that program in September 1980 (ibid.). He misbehaved on several occasions, /6/ however, and, with his grandparents' consent, was soon reduced to a half-day program (ibid.). On November 14, 1980, respondent Smith made sexual comments to several female students (Pet. App. A5). After respondent Smith admitted doing these acts, the school's principal suspended him for five days and recommended to the SPC that respondent Smith be expelled (ibid.). The SPC concurred and notified respondent Smith's grandparents that it would meet with them, if they wished, on December 2, 1980, to discuss the matter (ibid.). The SPC continued respondent Smith's suspension indefinitely pending resolution of the expulsion proceeding, again pursuant to California law (ibid.). By letter, respondent Smith protested to SPC that its actions were improper (Pet. App. A5). On December 1, 1980, SPC cancelled the proposed meeting and offered either to return respondent Smith to the half-day program at A.P. Giannini School or to provide him with home tutoring; it would not, however, return him to the full-day program (ibid.). Respondent Smith chose the home tutoring, which commenced on December 10, 1980 (ibid.). He then became aware of, and successfully petitioned for leave to intervene in, respondent Doe's suit (ibid.), joining respondent Doe's allegations and demanding that he be returned to the full-day program at A.P. Giannini School (id. at A5-A6). 3. In a series of orders, the district court granted respondents' prayers for relief, albeit only in part (Pet. App. A40-A45, A46-A52, A53-A59). On May 25, 1982, the court held that the Eleventh Amendment barred recovery of damages from petitioner, but not from SFUSD or SFUSD officials (id. at A6; J.A. 182-197). On June 17, 1983, the court granted partial summary judgment to respondents and awarded declaratory and injunctive relief (J.A. 217-230). The court concluded that "the balance of hardships tips decidedly in favor of (respondents)," reasoning that, while "the hardships to defendant and the public interest in maintaining a safe and secure school environment are not insubstantial, these hardships and interests must be viewed in light of the strong national policy expressed in the EHA * * * (that) the loss of even a short period of appropriate educational services can cause immeasurable damage to a handicapped child" and that Congress has mandated that the school "provide alternative arrangements within a current placement until an appropriate placement is found or agreement is reached with (respondents') guardians" (J.A. 224-225). See also J.A. 221. Accordingly, on December 2, 1983, the court entered a sweeping order barring SFUSD and its various officials from, among other things: (a) taking any disciplinary action other than a two-day or five-day suspension against a handicapped student for handicap-related misconduct; (b) failing to convene a multidisciplinary team within five days of proposing to change a handicapped student's placement because of misconduct; (c) making an IEP decision on anything other than a majority-rule basis; or (d) affecting any change in a handicapped student's placement without parental consent during the pendency of the EHA proceedings. Pet. App. A40-A45. The court also required SFUSD and its officials to pay damages of $1600 to each respondent, pursuant to a settlement agreement negotiated by the parties. See id. at A40. Finally, on April 23, 1984, the court entered a similarly sweeping order against petitioner, providing identical declaratory and injunctive relief (id. at A46-A52), and, in addition, holding that petitioner must "provide services directly when, in any individual case, (he) determine(s) that a local education agency is unable or unwilling to establish and maintain programs of free appropriate public education" (id. at A51). 4. The Ninth Circuit affirmed in part, reversed in part, and modified in part (Pet. App. A1-A39). It disagreed with the district court's ruling "that handicapped children may not have their programs reduced, or be subjected to any other disciplinary measures save the two- and five-day suspensions * * *, for conduct that is a manifestation of their handicaps" (id. at A17), finding that suspensions for fixed periods up to 30 days do not amount "to either a change in placement or the deprivation of an appropriate public education" (id. at A18). It further found the district court's rulings that "an IEP team must convene within five days of the education agency's decision to seek a handicapped pupil's expulsion for misconduct," and that an IEP team's "decision() shall be made by majority rule," were unsupported by the statute (id. at A24-A25, A26). But it agreed that petitioner and the other defendants must be enjoined from changing the current educational placement of any handicapped student without parental consent during the pendency of EHA proceedings (id. at A19-A21) and that petitioner must provide direct educational services wherever, as here, a local school district is unable or unwilling to provide such services to a particular handicapped child (id. at A31-A33). /7/ On the interim placement issue, the court noted (Pet. App. A19) that the EHA'S "'stay put' provision, 20 U.S.C. 1415(e)(3) * * *, provides that '(d)uring the pendency of any (review under the EHA), unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then current educational placement of such child * * *.'" The court indicated that it was "sympathetic" with the reasoning of courts holding that the "stay-put" provision does not prevent a school from altering a handicapped student's placement when he endangers himself or others (Pet. App. A20, citing Jackson v. Franklin County Sch. Bd., 765 F.2d 535, 538 (5th Cir. 1985); S-1 v. Turlington, 635 F.2d 342, 348 n.9 (5th Cir.), cert. denied, 454 U.S. 1030 (1981)). But it nevertheless concluded that "section 1415(e)(3) does not list any exceptions to its automatic injunction" and therefore that, in this respect, the district court's award of declaratory and injunctive relief must be affirmed (Pet. App. A21). The court added that "(t)his limitation does not leave educators helpless," since "(t)hey have recourse to the gamut of lesser disciplinary measures and program variations that do not rise to the level of changes of placement" and since, "in extraordinary circumstances(,) (they may) seek judicial relief should existing procedures prove inadequate to cope with truly exigent circumstances" (ibid.). On the direct educational services issue, the court rejected petitioner's argument that 20 U.S.C. 1414(d) "requires it to provide service directly, not in individual instances of local inaction, but only when localities maintain no programs of special education whatsoever" (Pet. App. A31-A32). It noted (id. A32 (emphasis in original)) that 20 U.S.C. 1414(d)(3) "specifically requires direct action when a local education agency 'has one or more handicapped children who can best be served by a regional or State center designed to meet the needs of such children,'" and it found it "incontrovertable that, whenever the local agency refuses or wrongfully neglects to provide a handicapped child with a free appropriate education, that child 'can best be served' on the regional or state level" (Pet. App. A32). The court added, however, that a state is "obliged to intervene directly in an individual case (only where) * * * (t)he breach (is) significant (as in this case)," where "the child's parents or guardian (have) give(n) the responsible state officials adequate notice of the local agency's noncompliance, and (where) the state (has) be(en) afforded a reasonable opportunity to compel local compliance" (id. at A32-A33). SUMMARY OF ARGUMENT 1. The court of appeals' conclusion that the "stay-put" provision is an "automatic injunction" that must issue in all but the most extraordinary circumstances is contrary to well-established principles of equity jurisprudence. This Court has long recognized that the grant of jurisdiction to ensure compliance with a statute does not obligate a federal judge sitting as a chencellor in equity to grant an injunction for every violation of law. To the contrary, except where the purpose, structure, and legislative history of a statute clearly indicate an intent on the part of Congress to foreclose the exercise of equitable discretion, the Court has said that equitable relief is available only where there is irreparable injury, inadequate alternative remedies, and a balance of equities that favors issuance of such relief. See Amoco Production Co. v. Gambell, No. 85-1239 (Mar. 24, l987); Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982). Here, the EHA'S purpose, structure and legislative history in fact indicate that Congress envisioned a remedial framework in which competing interests may be reconciled by a court of equity. The EHA'S overall substantive objective is the provision of a "free appropriate public education" to handicapped children. The "stay-put" provision is a means of promoting this objective, and equitable enforcement of the "stay-put" provision is only sometimes necessary to insure that this substantive policy objective is achieved. Moreover, the EHA'S general remedial provision confers broad discretion on courts to grant relief that is "appropriate" in light of the statute's substantive purpose. Congress did not indicate that it intended to except from this broad grant of discretion cases seeking equitable enforcement of the "stay-put" provision. To the contrary, the legislative history indicates that Congress envisioned a "flexible approach" that would meet the needs of both the child and the states, which is precisely what the exercise of equitable discretion provides. The district court here abused its equitable discretion when it enjoined a local school district from indefinitely suspending, pending completion of expulsion proceedings, two children whose handicap-related misconduct endangered themselves and others. No irreparable injury was shown to result from the change in placement. The bare denial of the instrumental right to stay in a current placement does not constitute such an injury. In general, a change in placement arising from a child's endangering behavior is not sufficiently likely to undermine the statute's substantive objective of providing a "free appropriate public education" to justify injunctive or declaratory relief. A child's violent behavior is one indication that his current placement is not appropriate. Moreover, due process hearings, interim placement, and restitution are adequate remedies in these circumstances and, in any event, the balance of equities weighs against issuance of equitable relief. The responsibility of state and local governments properly to educate their students would be irreparably undermined if they had to keep a child whose handicap-related misconduct endangers others in his current placement. 2. The court below further erred in requiring petitioner to provide direct educational services wherever a local school is unable or unwilling to provide those services to a particular handicapped child. The EHA contemplates that local school districts, not the state, will prepare a child's IEP and provide the necessary educational services. The state agency is required to provide direct educational services only in limited circumstances, and these circumstances do not include situations in which the local school is simply unable or unwilling to provide those services to a particular child. In such circumstances, the child's best interests are served by requiring the local education agency, not the state education agency, to provide the required services. ARGUMENT I. THE COURT BELOW ERRED IN ENJOINING THE SCHOOL DISTRICT FROM INDEFINITELY SUSPENDING RESPONDENTS The courts below declared that the indefinite suspension, pending completion of expulsion proceedings, of a child whose handicap-related misconduct endangers himself or others violates the "stay-put" provision of the EHA and therefore must be enjoined. See Pet. App. A19-A21; J.A. 221, 224-225. This "stay-put" provision (20 U.S.C. 1415(e)(3) states, in pertinent part, that: During the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents or guardian otherwise agree, the child shall remain in the then current educational placement of such child * * *. We frankly doubt that Congress intended this provision to apply in circumstances where a child's handicap-related misconduct endangers himself or others (see 34 C.F.R. 300.513 (Comment) 1986)). Such a rigid rule could defeat the very protections for the handicapped that Congress intended the EHA to create, by discouraging the placement of handicapped children in the least restrictive environment, if there is any perceived risk of dangerous conduct. But the Court need not and should not decide this issue here. Regardless of the "stay-put" provision's applicability in such circumstances, the declaratory and injunctive relief ordered by the district court, and approved by the court of appeals, is plainly inappropriate and, on this basis alone, the judgment of court below should be reversed. A. The "Stay-Put" Provision Does Not Deny Courts Their Traditional Equitable Discretion With Respect To The Issuance Of Declaratory And Injunctive Relief Though it gave lip-service to the balancing of the parties' hardships (see J.A. 63-66, 224), the district court in this case treated the "stay-put" provision as a congressional mandate calling for issuance of declaratory and injunctive relief in any circumstance in which that provision is violated. See J.A. 224-225. In summarily affirming this aspect of the district court's order, the court of appeals even more bluntly held that the "stay-put" provision is an "automatic injunction" that must issue in all but the most "extraordinary circumstances." See Pet. App. A21. These analyses confuse the right arguably granted to handicapped children by the "stay-put" provision with the remedies that should be used to enforce it. 1. This Court has long recognized that equitable remedies (such as injunctive and declaratory relief) should not issue as a matter of course. Amoco Production Co. v. Gambell, No. 85-1239 (Mar. 24, 1987), slip op. 9; Weinberger v. Romero-Barcelo, 456 U.S. 305, 311 (1982); Eccles v. Peoples Bank of Lakewood Village, 333 U.S. 426, 431 (1948). Rather, it has admonished that such remedies "should issue only where the intervention of a court of equity 'is essential in order effectually to protect property rights against injuries otherwise irremediable" (Cavanaugh v. Looney, 248 U.S. 453, 456 (1919)). It has thus repeatedly stated that the basis for issuing equitable relief "is irreparable injury and inadequacy of legal remedies" and that "'(t)he grant of jurisdiction to ensure compliance with a statute hardly suggests an absolute duty to do so under any and all circumstances'"; "a federal judge sitting as chancellor is not mechanically obligated to grant an injunction for every violation of law" (Amoco Production Co., slip op. 9 (citation omitted)). Of course, "Congress may intervene and guide or control the exercise of the courts' discretion" (Weinberger v. Romero-Barcelo, 456 U.S. at 313). Thus, in TVA v. Hill, 437 U.S. 153 (1978), the Court found that the Endangered Species Act of 1973, 16 U.S.C. 1531 et seq., required a district court to enjoin completion of the Tellico Dam in order to preserve the snail darter, reasoning that the statute creates a flat ban on the destruction of critical habitats and that the principal objective of that statute, as opposed to the bare fact of a statutory violation, could be vindicated only by the issuance of an injunction. But, in cases following Hill, the Court has emphasized that it will "not lightly assume that Congress has intended to depart from established (equity) principles" (Weinberger v. Romero-Barcelo, 456 U.S. at 313). See also Amoco Production Co., slip op. 9-10. Thus, where injunctive and declaratory relief are not absolutely necessary to vindicate the substantive objectives of a particular statute, the Court has said that a statute will not be read to foreclose the exercise of traditional equitable discretion. For example, in Weinberger v. Romero-Barcelo, supra, the Court held that, even though Section 301(a) of the Federal Water Pollution Control Act (FWPCA) states that "the discharge of any pollutant by any person (without a permit) shall be unlawful" (33 U.S.C. 1311(a)), a district court had appropriately refused to enjoin the Navy from so violating the statute (by discharging ordnance into the sea without a permit). The Court noted that "(t)he integrity of the Nation's waters, * * * not the permit process, is the purpose of the FWPCA" (456 U.S. at 314), and that the issuance of equitable relief was not necessary to vindicate either "the purpose (or) function of the permit system" -- i.e., the integrity of the Nation's waters (id. at 315). The Court further noted that other remedies, such as fines and criminal penalties, were available to enforce the permit requirement itself (id. at 314) and that the statute's overall scheme and legislative history contemplated the exercise of discretion and balancing of equities (id. at 315-319). Accordingly, the Court refused to "read the FWPCA as foreclosing completely the exercise of the court's discretion," and reversed an appellate decision ordering a district court to enjoin a violation of the permit requirement (id. at 320). More recently, in Amoco Production Co. v. Gambell, supra, the Court held that, even though Section 810 of the Alaska National Interest Lands Conservation Act (ANILCA) provides that no lease of land of Alaskan Natives "shall be effected until the head of (the) Federal agency (having primary jurisdiction over such lands)" gives appropriate notice, conducts a statutorily required hearing, and determines that the restriction of subsistence uses on land of Alaskan Natives is necessary (16 U.S.C. 3120), a district court had appropriately refused to enjoin the Secretary of Interior from granting certain oil and gas leases to several oil companies notwithstanding his failure to comply with Section 810's provisions. The Court noted that Section 810's procedural requirements are designed only "to protect Alaskan subsistence resources from unnecessary destruction" (Amoco Production Co., slip op. 11) and that "there is no clear indication in (Section) 810 that Congress intended to deny federal district courts their traditional equitable discretion in enforcing the provision" (ibid.). Moreover, it found that the court of appeals' presumption that "irreparable damage" would occur if the Secretary's action was not enjoined was "contrary to traditional equitable principles and had no basis in ANILCA" (id. at 12), noting that, while the statute "expressly declared that preservation of subsistence resources is a public interest," Congress "established a framework for reconciliation, where possible, of competing public interests" (id. at 13). Accordingly, the Court held that the court of appeals had "erred in directing the issuance of a preliminary injunction" to enforce the environmental impact analysis process (ibid.). 2. Here, as in Romero$-Barcelo and Amoco Production Co., there is no basis for concluding, as the court of appeals did, that the "stay put" provision amounts to an "automatic injunction," such that the district court's injunctive and declaratory relief could be affirmed without any balancing of equities. Assuming arguendo that the literal language of 20 U.S.C. 1415(e)(3) gives even a child whose handicap-related misconduct endangers himself or others a right to have his current placement maintained pending the completion of expulsion proceedings, neither the existence of this right nor the statutory language creating it addresses the distinct and separate issue whether it is appropriate for a district court to enjoin or declare unlawful a particular violation of the "stay-put" provision. Rather, as in Romero-Carcelo and Amoco Production Co., the EHA'S overall objective, its structure, and its legislative history indicate that Congress envisioned a remedial framework in which competing interests are reconciled by a court of equity. The EHA'S overall objective is "to assure that all handicapped children have available to them * * * a free appropriate public education which emphasizes special education and related services designed to meet their unique needs, to assure that the rights of handicapped children and their parents or guardians are protected, (and) to assist States and localities to provide for the education of all handicapped children" (20 U.S.C. 1400(c)). The "stay-put" provision exists to promote this substantive policy objective. But, as with the permit requirement in FWPCA and the environmental impact analysis requirement in ANILCA, the "stay-put" requirement is simply a means for effecting the substantive policy objective of the statute -- the provision of a "free appropriate public education." It should be enforced in a manner that furthers that objective. See Burlington Sch. Comm. v. Massachusetts Dep't of Educ., 471 U.S. 359, 371-374 (1985) (notwithstanding the literal language of 20 U.S.C. 1415(e)(3), parents may unilaterally change placement of child and recover reimbursement for expenses incurred if the original placement is ultimately found inappropriate). Such enforcement is best achieved by allowing case-by-case consideration of whether the extraordinary remedies of declaratory and injunctive relief should be granted or withheld. See generally Weinberger v. Romero-Barcelo, 456 U.S. at 314; Amoco Production Co., slip op. 11. Thus, even if the school's actions violated the statute, the language of the stay-put provision is best understood as allowing the court's traditional balancing of equities in determining a remedy. The statute's general remedial provision reinforces this conclusion. That provision, which immediately precedes the "stay-put" provision in the statutory scheme, states that the court is authorized to "grant such relief as (it) determined is appropriate" (20 U.S.C. 1415(e)(2)). This Court has said that "these words confer broad discretion on the court," requiring only that "the relief if to be 'appropriate' in light of the purpose of the Act" (Burlington Sch. Comm., 471 U.S. at 369). Congress did not indicate that this broad discretion is inappropriate in the context of the stay-put provision. The legislative history of the EHA also supports the exercise of equitable discretion in the decision whether to enjoin or declare unlawful violations of the "stay-put" provision. Congress "favor(ed) a proper interim placement pending the resolution of disagreements over the IEP" (Burlington Sch. Comm., 471 U.S. at 373). "The conferees (were) cognizant that an impartial due process hearing may be required to assure that the rights of the child have been completely protected. (They) did feel, however, that the placement, or change in placement, should not be unnecessarily delayed while long and tedious administrative appeals were being exhausted. Thus(,) the conference adopted a flexible approach to try to meet the needs of both the child and the State." 121 Cong. Rec. 37412 (1975) (Sen. Stafford). /8/ This desire to maintain a "flexible approach to try to meet the needs of both the child and the 'state" makes clear that Congress did not intend to curb the traditional authority of the federal courts, once a violation has been established, to fashion a remedy that is responsive to the equities of the particular case at hand. To the extent the courts below concluded to the contrary, they were clearly wrong. /9/ B. The District Court Abused Its Equitable Discretion When It Enjoined A Local School District From Indefinitely Suspending, Pending Completion Of Expulsion Proceedings, Children Whose Handicap-Related Misconduct Endangered Themselves Or Others Of course, a court's traditional equitable discretion is quite broad and the issuance of declaratory or injunctive relief may be reversed only if that discretion has been abused. See Burlington Sch. Comm., 471 U.S. at 369; see generally Doran v. Salem, Inc., 422 U.S. 931, 932 (1975). As noted above, however, this Court has said that equitable relief may not issue where there has been no irreparable injury or alternative remedies are adequate (Weinberger v. Romero-Barcelo, 456 U.S. at 311-313; Rondeau v. Mosinee Paper Corp., 422 U.S. 49, 59-65 (1975)), and, in any event, that "a court must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief" (Amoco Production Co., slip op. 9). See also Yakus v. United States, 321 U.S. 414, 440 (1944). Viewed in these terms, the issuance of declaratory and injunctive relief in this case -- where maintaining a handicapped child's current placement endangers others -- constituted an abuse of equitable discretion. /10/ 1. Respondents have not demonstrated the irreparable injury that is necessary to invoke a court's equitable powers. That injury does not follow from the mere denial of a statutory right. See pages 16-18, supra. Nor can the necessary irreparable injury be "presumed" from the change in placement itself. As this Court noted in Amoco Production Co., a presumption of irreparable injury "is contrary to traditional equitable principles * * *" (slip op. 12). Accord, Rondeau v. Mosinee Paper Corp., 422 U.S. at 58-63 (irreparable injury may not be presumed from delay in filing forms required by the Williams Act). Thus, in Amoco Production Co., the Court refused to presume that irreparable injury to the environment had occurred where the Secretary of Interior allowed certain oil companies to begin exploration activities on federally protected lands even though he had not conducted a statutorily required-environmental impact assessment. Rather, the Court said, a court must determine, on the basis of facts presented at trial, whether the violation of a procedural requirement "is sufficiently likely" to undermine the substantive policy objective of the statute absent the issuance of the requested injunction. Amoco Production Co., slip op. 12. In this case, there has been no sufficient showing that the failure to leave a dangerous child in his present placement is likely to undermine the substantive objective that the "stay-put" provision is intended to advance -- the provision of a "free appropriate public education" to the handicapped child. Without discussing the issue of what placement might ultimately be found appropriate for respondents, and thus without confronting the question of what substantive opportunities they were being denied that they were in fact entitled to receive, the district court gave controlling significance to the literal language of the "stay-put" provision (J.A. 64-65, 224-225). The court of appeals, in giving force to the "automatic injunction" of Section 1415(e)(3) without any discussion of equities, even more clearly found an identity between a change in placement and a right to injunctive and declaratory relief. Pet. App. A21. These rulings are in error. The EHA specifically contemplates that a child's current placement may be changed for good reason. It provides that current placements must be monitored and revised as necessary in view of the changing needs of the student. See 20 U.S.C. 1413(a)(11), 1414(a)(5). Sound educational policy is reflected in the statute's general presumption in favor of continuity and avoidance of unnecessary dislocation in the child's educational environment. Doe v. Brookline Sch. Comm., 722 F.2d at 915. But where the child has become a threat to the safety of others by engaging in violent conduct, that continuity has already been interrupted. Further, the EHA and its regulations recognize that the child's conduct is a sure indication that the current educational placement is no longer appropriate for him. /11/ Thus, where a dangerous child is involved, a mere change in placement is not sufficiently likely to undermine the provision of a "free appropriate public education." Accord Burlington Sch. Comm., 471 U.S. at 371-374 (child is not irreparably harmed by parents' unilateral change in his placement). 2. Of course, even if the necessary "irreparable injury" were sufficiently likely to occur, adequate alternative remedies (such that declaratory and injunctive relief should not issue) are often available to a child who is removed from his current educational setting because he constitutes a threat to himself or others. The courts below erred in failing to examine these alternatives. To begin with, no child, handicapped or otherwise, may be suspended for misconduct without receiving at least a "rudimentary" due process hearing to establish that he in fact engaged in the alleged misconduct. See Goss v. Lopez, 419 U.S. 565, 581 (1975). This due process hearing ensures that the child is not subjected to arbitrary or capricious action by school officials. Second, since the statute requires the provision of a free appropriate public education to all handicapped children, a school that changes the current placement of a child pending the completion of EHA proceedings because of handicap-related misconduct that endangers others has a continuing obligation to provide that child with other appropriate interim educational services. In a particular case, an appropriate interim placement might be a smaller class (with greater supervision), home tutoring, or some type of private educational service. The adequacy of the alternative placement may, of course, itself be challenged in the "impartial due process hearing," the state review process, and, ultimately, in court. See 20 3u.s.c. 1415(b)(1)(E), (b)(2), (c) and (e)(2). /12/ Finally, as this Court noted in Burlington Sch. Comm. v. Massachusetts Dep't of Educ., supra, if the child's parents should determine that the proposed interim placement does not provide the child with the educational services that they believe are statutorily appropriate, they may unilaterally obtain an appropriate placement at their own expense and, at the culmination of the EHA proceedings, seek restitution from the erring school district. See slip op. 12-14. Thus, both parties have a financial incentive to insist on the appropriate placement for the child. 3. Even if these alternative remedies were inadequate in a particular case, however, the balance of equities would still weigh against issuance of injunctive or declaratory relief wherever a child poses a significant danger to himself or others. A child who poses a significant threat of serious harm cannot be accommodated in a setting with other students. Interim measures a school may take to protect other students from sudden dangerous conduct (by, for example, assigning a full-time attendant to the student) may not be effective to prevent harm and may not prevent other adverse educational consequences to the student or others in the classroom. /13/ Indeed, the interim measures that the school might adopt to protect the student's classmates and teachers might themselves be substantially inconsistent with provision of an adequate education to the student or others. Nothing in the EHA suggests that Congress intended to forbid the consideration of these concerns by courts, thus leading to the conclusion that equitable relief should not issue in cases involving dangerous students. Note, Enforcing the Right to an "Appropriate" Education, 92 Harv. L. Rev. 1121-1124 (1978); cf. Amoco Production Co., slip op. 13 (public interest in enforcing federal environmental statutes is not so important that it automatically outweighs other public interests). /14/ Nor did the EHA intend that school districts confronted with a dangerous student be required to maintain him in a classroom with other students; the EHA contemplates that schools will retain sufficient discretion to maintain a safe and effective educational environment for all students. See Hendrick Hudson Dist. Bd. of Educ. v. Rowley, 458 U.S. at 207, 209. Accordingly, other courts of appeals have held that a local school district should not be enjoined from changing the current placement of a child whose handicap-related misconduct endangers himself or others. For example, in Jackson v. Franklin County Sch. Bd., 765 F.2d 535, 538 (1985), the Fifth Circuit affirmed a district court ruling that a male handicapped student who had engaged in sexual misconduct with a female student was not entitled to remain in public school pending resolution of EHA proceedings. The court reasoned that "section 1415(e)(3) does not bar a court from exercising its traditional equity powers to modify the placement of a handicapped child during the pendency of his IEP appeal," and that, in exercising this authority, courts must recognize that "public schools unquestionably retain their authority to remove any student, handicapped or otherwise, who disrupts the educational process or poses a threat to a safe school environment." Likewise, in Victoria L. by Carol A. v. District Sch. Bd., 741 F.2d 369, 374 (1984), the Eleventh Circuit held that a handicapped student, who, among other things, brought a razor blade and a martial arts weapon to school, and threatened to injure and kill another student, could be excluded during the pendency of EHA proceedings; the court noted that "Congress had no intent to deprive local school boards of their traditional authority and responsibility to insure a safe school environment," and that changing the placement of a dangerous handicapped student pending the resolution of the EHA proceedings is a "proper() exercise() (of) the traditional disciplinary authority that (schools) retain() under the EHA." See also Stacey G. v. Pasadena Independent Sch. Dist., 695 F.2d 949, 955 & n.5 (5th Cir. 1983); S-1 v. Turlington, 635 F.2d 342, 348 & n.9 (5th Cir.), cert. denied, 454 U.S. 1030 (1981); 34 C.F.R. 300.513 (Comment) ("While the placement may not be changed, this does not preclude the agency from using its normal procedures for dealing with children who are endangering themselves or others."); but cf. Doe v. Brookline Sch. Comm., 722 F.2d at 917-919. These decisions reflect the only sensible balancing of the equities at issue in such cases. Accordingly, we believe that the courts below abused their equitable discretion in requiring petitioner and the other defendants to put respondents back in their current educational placements. II. THE EDUCATION OF THE HANDICAPPED ACT DOES NOT REQUIRE THAT A STATE EDUCATION AGENCY PROVIDE DIRECT EDUCATIONAL SERVICES WHEREVER A LOCAL SCHOOL DISTRICT IS UNABLE OR UNWILLING TO PROVIDE THOSE SERVICES TO A PARTICULAR HANDICAPPED CHILD The court below also held (Pet. App. A31-A32) that EHA requires a state educational agency (such as petitioner) to provide direct educational services wherever a local school district (such as SFUSD) is unable or unwilling to provide those services to a particular handicapped child. The EHA does not contain any such requirement. The EHA assumes that most handicapped children will receive their education from local school districts. The state is responsible, under the EHA, for creating and overseeing implementation of a plan that establishes statewide goals, programs, and timetables under which handicapped children will be educated. See 20 U.S.C. 1412, 1413. /15/ The local school districts, by contrast, are responsible for preparing a child's annual IEP -- the modus operandi of the statute -- and for making the necessary educational services available. See 20 U.S.C. 1401(18), (19) and (22). Congress believed that "the State should remain ultimately responsible and accountable * * * for the attainment of the goal of educating all handicapped children," but that "the role of the local educational districts as providers of direct services (would be) paramount" (121 Cong. Rec. 37410 (1975) (remarks of Senator Randolph)). See also S. Conf. Rep. 94-455, supra, at 44 ("The Conferees note that the local educational agency has the major responsibility in providing direct services to handicapped children."). This allocation of responsibility is indispensable to the achievement of the purposes of the Act. One of Congress' principal reasons for enacting the EHA was to insure that handicapped children receive education "to the maximum extent appropriate * * * with children who are not handicapped." 20 U.S.C. 1412(5). The placement of handicapped children in the least restrictive environment cannot occur unless local school districts act as the major providers of direct services. To be sure, the EHA does require the state educational agency to provide direct educational services in a few limited circumstances. In enacting the EHA, Congress underscored that some school districts would be too small to establish programs of sufficient size and scope (H.R. Rep. 94-332, 94th Cong., 1st Sess. 17-18 (1975)), and that some severely handicapped children would need services that, economically speaking, could only be provided on a state or regional basis (S. Conf. Rep. 94-455, supra, at 45). Thus, it enacted 20 U.S.C. 1414(d), which provides, in pertinent part, that: Whenever a State educational agency determines that a local educational agency -- (1) is unable or unwilling to establish and maintain programs of free appropriate public education which meet the requirements established in subsection (a) of this section; (2) is unable or unwilling to be consolidated with other local educational agencies in order to establish and maintain such programs; or (3) has one or more handicapped children who can best be served by a regional or State center designed to meet the needs of such children; the State educational agency shall use the payments which would have been available to such local educational agency to provide * * * services directly to handicapped children residing in the area served by such local educational agency. But none of 20 U.S.C. 1414(d)'s provisions require a state agency to provide direct educational services just because a local school district is unable or unwilling to provide those services to a particular handicapped child. Specifically, 20 U.S.C. 1414(d)(1) applies where a local agency is "unable or unwilling to establish and maintain programs of free appropriate public education" (emphasis added). Thus, it plainly concerns only situations in which the local agency has failed to provide services to handicapped children generally, not where it has failed to provide services to a particular child. Similarly, 20 U.S.C. 1414(d)(2) applies where a local agency is "unable or unwilling to be consolidated * * * in order to establish * * * programs" (emphasis added). Again, the provision clearly concerns situations in which there is a systemic, rather than a particular, failure of the local agency to provide services. Only 20 U.S.C. 1414(d)(3) requires the state to take direct action in individual cases. But that obligation arises only where a child would be "best served at a State or regional center," and it is not, as the court below suggested (Pet. App. A32), "incontrovertible that, whenever the local agency refuses or wrongfully neglects to provide a handicapped child with a free appropriate education, that child 'can best be served' on the regional or state level. /16/ To the contrary, where the local agency has services appropriate to the child's educational needs, and the local agency wrongfully refuses to serve that child, the child is "best served" by compelling the local agency to provide those services. The statutory violation would only be compounded by concluding, prior to the statutorily required consideration of the individual child's educational needs, that a child should not be served by the local education agency. /17/ This interpretation of 20 U.S.C. 1414(d)(3) does not, as respondents suggest (Br. in Opp. 14), allow handicapped children to fall in a "no man's land" for which neither the state nor the local agency will claim responsibility. Under its general supervisory authority (20 U.S.C. 1412(6)), the state agency is required to take necessary action to assure that local agencies comply with the EHA, including any remedies available under State law to force compliance. The district court was correct in assessing state responsibility for ensuring a free appropriate public education. Where the district court erred, however, was in determining that the appropriate remedy in this case was to require the State to provide these services directly. Wherever a local agency refuses to provide desired services, a child's parents should file a complaint with the state. 20 U.S.C. 1415(b)(2), 1415(c). If the state determines that such services should have been provided, it must direct the local agency to provide them. If the local agency persists in its refusal, the state must compel the local agency to fulfill its responsibilities. 20 U.S.C. 1412(6). And if both the local agency and the state fail to satisfy their responsibilities, the child's parents may seek "appropriate" relief from a state or federal court (20 U.S.C. 1415(3)(2) or from the Secretary of Education (20 U.S.C. 1416(a)). In short, the statutory scheme adequately ensures that handicapped children will receive the educational services to which they are entitled. CONCLUSION The judgment of the court of appeals should be reversed in relevant part. Respectfully submitted. CHARLES FRIED Solicitor General WM. BRADFORD REYNOLDS Assistant Attorney General DONALD B. AYER Deputy Solicitor General MICHAEL CARVIN Deputy Assistant Attorney General WALTER W. BARNETT DENNIS J. DIMSEY IRVING L. GORNSTEIN Attorneys WENDELL L. WILKIE General Counsel Department of Education APRIL 1987 /1/ We are advised by the Department of Education that, for the fiscal year ending September 30, 1986, the State of California received approximately $100.7 million under Part B of the EHA program. The federal grants do not underwrite the total cost of providing appropriate educational services to the approximately 370,000 eligible handicapped children in California; rather, the federal funds supplement state funds that are also earmarked for this purpose. See 20 U.S.C. 1413(a)(9)(B). /2/ See also 34 C.F.R. 300.552 (Comment 1) (1986) ("where a handicapped child is so disruptive in a regular classroom that the education of other students is significantly impaired, the needs of the handicapped child cannot be met in that environment"). /3/ Under California law (Cal. Educ. Code Section 48911(g) (West Supp. 1987)), a school may extend a student's suspension indefinitely pending resolution of expulsion proceedings "only if the superintendent or the superintendent's designee has determined, following a meeting in which the pupil and the pupil's parent or guardian are invited to participate, that the presence of the pupil at the school or in an alternative school placement would cause a danger to persons or property or a threat of disrupting the instructional process." See also Cal. Educ. Code Section 48915.5(g) (West Supp. 1987). /4/ At the time respondent Doe filed the suit, Wilson Riles was the California Superintendent of Public Instruction. Petitioner Bill Honig is Mr. Rile's successor in office. See Pet. App. A54. /5/ The complaint alleged causes of action under EHA, Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, and 42 U.S.C. 1983 (Pet. App. A5-A6). /6/ This misbehavior included acts of theft, extortion, pulling a fire alarm, and making sexual remarks to female students (J.A. 149, 152, 211). /7/ The court based its rulings on the EHA, finding that, under this Court's decision in Smith v. Robinson, 468 U.S. 992 (1984), EHA is the exclusive remedy for claims of discrimination against handicapped children. Pet. App. A8. /8/ The remaining legislative history merely restates the statutory requirement. See S. Conf. Rep. 94-455, 94th Cong., 1st Sess. 50 (1975); H.R. Conf. Rep. 94-664, 94th Cong., 1st Sess. 50 (1975); 121 Cong. Rec. 37416 (1975) (Sen. Williams). /9/ This error is not adequately tempered, as the court below sought to do (Pet. App. A21), by allowing "educational agencies in extraordinary circumstances (to) seek judicial relief should existing procedures prove inadequate to cope with truly exigent circumstances." Cf. Doe v. Brookline Sch. Comm., 722 F.2d 910, 917-919 (1st Cir. 1983) (suggesting that burden of proving that equitable relief is inappropriate should be placed on school officials). This approach suggests that, prior to the culmination of administrative proceedings, the EHA authorizes a court to entertain a cause-of-action by a school district seeking assurances that its actions will not violate the EHA. The statutory language, however, suggests that all parties must exhaust administrative remedies prior to seeking judicial review, whether for declaratory relief or otherwise. See 20 U.S.C. 1415(e)(2); Smith v. Robinson, 468 U.S. 992, 1010-1011 (1984). This approach is also inconsistent with the EHA'S requirement that "appropriate" placement issues be decided initially by local and state education authorities, with the participation of parents, in the IEP process and, if necessary, in the elaborate impartial due process hearing porcedure created by the statute. Indeed, the court of appeals' approach presumes, contrary to this Court's admonitions, that a court should hold expedited hearings and make interim decisions concerning a student's appropriate placement. In practice, the district court will not have a fully developed administrative record or sufficient expertise to make the delicate special education decisions required for "appropriate" placement of handicapped childrens (see Hendrick Hudson Dist. Bd. of Educ. v. Rowley, 458 U.S. at 206-209; Smith v. Robinson, 468 U.S. at 1010-1011), and cannot act with sufficient speed and accuracy to prevent a possibly dangerous child from doing harm to himself or others. See Jackson v. Franklin County Sch. Bd., 765 F.2d 535, 538 (5th Cir. 1985). /10/ Our discussion of "dangerous" children concerns only those handicapped students who pose a tangible threat to other persons, not children whose behavior is merely unruly or disruptive. /11/ Cf. 20 U.S.C. 1412(5)(B) (emphasis added) ("special classes, separate schooling, or other removal of handicapped children from the regular educational environment (may) occur() * * * when the nature or severity of the handicap is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily"); 34 C.F.R. 300.552 (Comment 1) (1986) ("'where a handicapped child is so disruptive in a regular classroom that the education of other students is significantly impaired, the needs of the handicapped child cannot be met in that environment'"). /12/ Respondents Doe and Smith filed this federal court action without exhausting these administrative remedies. Ordinarily, the failure to exhaust these administrative remedies would make the action premature for judicial review. See 20 U.S.C. 1415 (e)(2); see also Timms v. Metropolitan Sch. Dist., 722 F.2d 1310, 1316-1317 (7th Cir. 1983); Riley v. Ambach, 668 F.2d 635, 640 (2d Cir. 1981). The school district, however, apparently ignored respondents' initial requests that EHA proceedings be initiated and arguably was dilatory in providing interim placements to respondents once the EHA proceedings were in fact initiated. See Pet. App. A4, A5. In these circumstances, it would have been futile for respondents to resort to the administrative process and, accordingly, we do not quarrel with the assumption of jurisdiction over this matter by the courts below. See Christopher T. v. San Francisco Unified Sch. Dist., 553 F. Supp. 1107 (N.D.Cal. 1982). /13/ It appears, in any event, that such action could constitute a change in "related services," which would amount to a change in placement under the EHA. 20 U.S.C. 1401(16) and (19). /14/ Moreover, requiring schools to maintain such children in their current placement will create a substantial disincentive to the placement of handicapped children with non-handicapped children in the first instance. School officials who realize that they will be required to retain handicapped students in their current placement, regardless of how harmful those students' subsequent behavior proves to be, will tend initially to place handicapped students in the most isolated, as opposed to the least restrictive, environment. School officials will, for example, be less likely to adopt "conditional" placements in regular school settings, such as that initially established for respondent Smith in this case. See Pet. App. A5. Such incentives obviously are antithetical to the voluntary, nonadversarial educational decisionmaking process that lies at the heart of the EHA scheme. See 20 U.S.C. 1412(5)(B), 1414(a)(1)(C)(iv). /15/ The EHA gives the state agency general supervisory responsibility (20 U.S.C. 1412(6)), directs it to establish and maintain a system ot guarantee procedural safeguards with respect to the provision of a free appropriate public education by local education agencies (20 U.S.C. 1415(a)), to establish an administrative complaint resolution procedure (20 U.S.C. 1415(b) and (c)), to review and approve local agency plans before granting federal money to those agencies (20 U.S.C. 1414(b)(1)), and to cease providing EHA funds to local agencies that do not comply with the statute (20 U.S.C. 1414(b)(2)). /16/ The cases cited by the court below (Pet. App. A32) do not support its construction of 20 U.S.C. 1414(d). Kruelle v. New Castle County Sch. Dist., 642 F.2d 687, 697 (3d Cir. 1981), and S-1 v. Turlington, 635 F.2d at 350, involved interpretations of 20 U.S.C. 1412(6), not 20 U.S.C. 1414(d), and did not in fact require a state to provide direct services to any particular handicapped child. Georgia Ass'n of Retarded Citizens v. McDaniel, 511 F. Supp. 1263, 1278 (N.D. Ga. 1981), aff'd, 716 F.2d 1565 (11th Cir. 1983), vacated on other grounds, 468 U.S. 1213 (1984), cert. denied, 469 U.S. 1228 (1985), did involve 20 U.S.C. 1414(d) (as well as 20 U.S.C. 1412(6)), and did admonish that a state must "make sure that local agencies provide adequate services to handicapped children, or * * * provide directly such services," but did not suggest that the state must provide those services in every situation in which a local agency has failed to provide services to a particular child. /17/ This flaw is not cured, as the court below suggested (Pet. App. A32-A33), by limiting a state's responsibility to provide such direct services to circumstances in which the local agency's breach is "significant," the state agency has received notice of it, and the state has a reasonable opportunity to compel local compliance. Putting aside the fact that these limitations have absolutely no nexus to the stature (and thus highlight the essentially legislative process in which the court below was engaged), the limitations do not change the fact that, because of the court order, the state will be placing the handicapped child in a center that is not best suited to the child's particular needs.