§ 7704. — Policies and procedures relating to children residing on Indian lands.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 20USC7704]
TITLE 20--EDUCATION
CHAPTER 70--STRENGTHENING AND IMPROVEMENT OF ELEMENTARY AND SECONDARY
SCHOOLS
SUBCHAPTER VIII--IMPACT AID
Sec. 7704. Policies and procedures relating to children residing
on Indian lands
(a) In general
A local educational agency that claims children residing on Indian
lands for the purpose of receiving funds under section 7703 of this
title shall establish policies and procedures to ensure that--
(1) such children participate in programs and activities
supported by such funds on an equal basis with all other children;
(2) parents of such children and Indian tribes are afforded an
opportunity to present their views on such programs and activities,
including an opportunity to make recommendations on the needs of
those children and how the local educational agency may help such
children realize the benefits of such programs and activities;
(3) parents and Indian tribes are consulted and involved in
planning and developing such programs and activities;
(4) relevant applications, evaluations, and program plans are
disseminated to the parents and Indian tribes; and
(5) parents and Indian tribes are afforded an opportunity to
present their views to such agency regarding such agency's general
educational program.
(b) Records
A local educational agency that claims children residing on Indian
lands for the purpose of receiving funds under section 7703 of this
title shall maintain records demonstrating such agency's compliance with
the requirements contained in subsection (a) of this section.
(c) Waiver
A local educational agency that claims children residing on Indian
lands for the purpose of receiving funds under section 7703 of this
title shall not be required to comply with the requirements of
subsections (a) and (b) of this section for any fiscal year with respect
to any Indian tribe from which such agency has received a written
statement that the agency need not comply with those subsections because
the tribe is satisfied with the provision of educational services by
such agency to such children.
(d) Technical assistance and enforcement
The Secretary shall--
(1) provide technical assistance to local educational agencies,
parents, and Indian tribes to enable such agencies, parents, and
tribes to carry out this section; and
(2) enforce this section through such actions, which may include
the withholding of funds, as the Secretary determines to be
appropriate, after affording the affected local educational agency,
parents, and Indian tribe an opportunity to present their views.
(e) Complaints
(1) In general
(A) Any tribe, or its designee, which has students in attendance
at a local educational agency may, in its discretion and without
regard to the requirements of any other provision of law, file a
written complaint with the Secretary regarding any action of a local
educational agency taken pursuant to, or relevant to, the
requirements of this section.
(B) Within ten working days from receipt of a complaint, the
Secretary shall--
(i) designate a time and place for a hearing into the
matters relating to the complaint at a location in close
proximity to the local educational agency involved, or if the
Secretary determines there is good cause, at some other location
convenient to both the tribe, or its designee, and the local
educational agency;
(ii) designate a hearing examiner to conduct the hearing;
and
(iii) notify the affected tribe or tribes and the local
educational agency involved of the time, place, and nature of
the hearing and send copies of the complaint to the local
educational agency and the affected tribe or tribes.
(2) Hearing
The hearing shall be held within 30 days of the designation of a
hearing examiner and shall be open to the public. A record of the
proceedings shall be established and maintained.
(3) Evidence; recommendations; cost
The complaining tribe, or its designee, and the local
educational agency shall be entitled to present evidence on matters
relevant to the complaint and to make recommendations concerning the
appropriate remedial actions. Each party to the hearing shall bear
only its own costs in the proceedings.
(4) Findings and recommendations
Within 30 days of the completion of the hearing, the hearing
examiner shall, on the basis of the record, make written findings of
fact and recommendations concerning appropriate remedial action, if
any, which should be taken. The hearing examiner's findings and
recommendations, along with the hearing record, shall be forwarded
to the Secretary.
(5) Written determination
Within 30 days of the Secretary's receipt of the findings,
recommendations, and record, the Secretary shall, on the basis of
the record, make a written determination of the appropriate remedial
action, if any, to be taken by the local educational agency, the
schedule for completion of the remedial action, and the reasons for
the Secretary's decision.
(6) Copies provided
Upon completion of the Secretary's final determination, the
Secretary shall provide the complaining tribe, or its designee, and
the local educational agency with copies of the hearing record, the
hearing examiner's findings and recommendations, and the Secretary's
final determination. The final determination of the Secretary shall
be subject to judicial review.
(7) Consolidation
In all actions under this subsection, the Secretary shall have
discretion to consolidate complaints involving the same tribe or
local educational agency.
(8) Withholding
If the local educational agency rejects the determination of the
Secretary, or if the remedy required is not undertaken within the
time established and the Secretary determines that an extension of
the time established will not effectively encourage the remedy
required, the Secretary shall withhold payment of all moneys to
which such local agency is eligible under section 7703 of this title
until such time as the remedy required is undertaken, except where
the complaining tribe or its designee formally requests that such
funds be released to the local educational agency, except that the
Secretary may not withhold such moneys during the course of the
school year if the Secretary determines that such withholding would
substantially disrupt the educational programs of the local
educational agency.
(9) Rejection of determination
If the local educational agency rejects the determination of the
Secretary and a tribe exercises the option under section 1101(d) of
the Education Amendments of 1978, to have education services
provided either directly by the Bureau of Indian Affairs or by
contract with the Bureau of Indian Affairs, any Indian students
affiliated with that tribe who wish to remain in attendance at the
local educational agency against whom the complaint which led to the
tribal action under such subsection (d) of this section was lodged
may be counted with respect to that local educational agency for the
purpose of receiving funds under section 7703 of this title. In such
event, funds under such section shall not be withheld pursuant to
paragraph (8) and no further complaints with respect to such
students may be filed under paragraph (1).
(f) Construction
This section is based upon the special relationship between the
Indian nations and the United States and nothing in this section shall
be construed to relieve any State of any duty with respect to any
citizens of that State.
(Pub. L. 89-10, title VIII, Sec. 8004, as added Pub. L. 103-382, title
I, Sec. 101, Oct. 20, 1994, 108 Stat. 3759.)
References in Text
Section 1101(d) of the Education Amendments of 1978, referred to in
subsec. (e)(9), is section 1101(d) of Pub. L. 95-561, Nov. 1, 1978, 92
Stat. 2315, set out below.
Prior Provisions
A prior section 8004 of Pub. L. 89-10 was renumbered section 9004
and was classified to section 3384 of this title, prior to the general
amendment of Pub. L. 89-10 by Pub. L. 103-382.
Contract Authority of Indian Tribes if Remedial Action Is Not Taken;
Election To Have Services Provided by Bureau Schools; Special
Regulations
Section 1101(d) of Pub. L. 95-561 directed Secretary of Health,
Education, and Welfare, in cooperation with Commissioner of Education,
within one year of Nov. 1, 1978, to promulgate special regulations which
would provide that where a local educational agency had not undertaken
the remedial action required by the Commissioner under 20 U.S.C.
240(b)(3)(C)(vi), the affected tribes could elect for the Bureau of
Indian Affairs to provide educational services provided by the local
educational agency.
Section Referred to in Other Sections
This section is referred to in section 7705 of this title.
