SEC. 8018.
BY-PASS DETERMINATION PROCESS
Section Summary
ESSA
SEC. 8018. BY-PASS DETERMINATION PROCESS.
Section 8504(a)(1)(A), <<NOTE: 20 USC 7884.>> as redesignated by
section 8001 of this Act, is amended by striking ``9502'' and inserting
``8502''.
NCLB Text
`SEC. 9504. <<NOTE: 20 USC 7884.>> BY-PASS DETERMINATION PROCESS.
``(a) Review.--
``(1) In general.--
``(A) Written objections.--The Secretary shall not
take any final action under section 9502 until the State
educational agency, local educational agency,
educational service agency, consortium of those
agencies, or entity affected by the action has had an
opportunity, for not less than 45 days after receiving
written notice thereof, to submit written objections and
to appear before the Secretary to show cause why that
action should not be taken.
``(B) Prior to reduction.--Pending final resolution
of any investigation or complaint that could result in a
determination under this section, the Secretary may
withhold from the allocation of the affected State
educational agency or local educational agency the
amount estimated by the Secretary to be necessary to pay
the cost of those services.
``(2) Petition for review.--
``(A) Petition.--If the affected agency, consortium,
or entity is dissatisfied with the Secretary's final
action after a proceeding under paragraph (1), the
agency, consortium, or entity may, within 60 days after
notice of that action, file with the United States court
of appeals for the circuit in which the State is located
a petition for review of that action.
``(B) Transmission.--A copy of the petition shall be
forthwith transmitted by the clerk of the court to the
Secretary.
``(C) Filing.--The Secretary, upon receipt of the
copy of the petition, shall file in the court the record
of the proceedings on which the Secretary based the
action, as provided in section 2112 of title 28, United
States Code.
``(3) Findings of fact.--
``(A) In general.--The findings of fact by the
Secretary, if supported by substantial evidence, shall
be conclusive, but the court, for good cause shown, may
remand the case to the Secretary to take further
evidence and the Secretary may then make new or modified
findings of fact and may modify the Secretary's previous
action, and shall file in the court the record of the
further proceedings.
[[Page 115 STAT. 1979]]
``(B) New or modified findings.--Any new or modified
findings of fact shall likewise be conclusive if
supported by substantial evidence.
``(4) Jurisdiction.--
``(A) In general.--Upon the filing of a petition,
the court shall have jurisdiction to affirm the action
of the Secretary or to set the action aside, in whole or
in part.
``(B) Judgment.--The judgment of the court shall be
subject to review by the Supreme Court of the United
States upon certiorari or certification as provided in
section 1254 of title 28, United States Code.
``(b) Determination.--Any determination by the Secretary under this
section shall continue in effect until the Secretary determines, in
consultation with that agency, consortium, or entity and representatives
of the affected private school children, teachers, or other educational
personnel, that there will no longer be any failure or inability on the
part of the agency, consortium, or entity to meet the applicable
requirements of section 9501 or any other provision of this Act.
``(c) Payment From State Allotment.--When the Secretary arranges for
services pursuant to this section, the Secretary shall, after
consultation with the appropriate public and private school officials,
pay the cost of those services, including the administrative costs of
arranging for those services, from the appropriate allocation or
allocations under this Act.
``(d) Prior Determination.--Any by-pass determination by the
Secretary under this Act as in effect on the day preceding the date of
enactment of the No Child Left Behind Act of 2001 shall remain in effect
to the extent the Secretary determines that that determination is
consistent with the purpose of this section.
