 CHAPTER 70--STRENGTHENING AND IMPROVEMENT OF ELEMENTARY AND SECONDARY 
                                 SCHOOLS
 
                   SUBCHAPTER XIV--GENERAL PROVISIONS
 
                       Part E--Uniform Provisions
 
Sec. 8896. By-pass determination process


(a) Review

                           (1) In general

        (A) The Secretary shall not take any final action under section 
    8894 of this title until the State educational agency, local 
    educational agency, educational service agency, or consortium of 
    such agencies affected by such 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) 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 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) If such affected agency or consortium is dissatisfied with 
    the Secretary's final action after a proceeding under paragraph (1), 
    such agency or consortium may, within 60 days after notice of such 
    action, file with the United States court of appeals for the circuit 
    in which such State is located a petition for review of that action.
        (B) A copy of the petition shall be forthwith transmitted by the 
    clerk of the court to the Secretary.
        (C) 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 this action, as provided in section 2112 of title 
    28.

                        (3) Findings of fact

        (A) 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.
        (B) Such new or modified findings of fact shall likewise be 
    conclusive if supported by substantial evidence.

                          (4) Jurisdiction

        (A) Upon the filing of such petition, the court shall have 
    jurisdiction to affirm the action of the Secretary or to set such 
    action aside, in whole or in part.
        (B) 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.

(b) Determination

    Any determination by the Secretary under this section shall continue 
in effect until the Secretary determines, in consultation with such 
agency or consortium 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 such agency or 
consortium to meet the applicable requirements of section 8893 of this 
title or any other provision of this chapter.

(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 such services, including the 
administrative costs of arranging for those services, from the 
appropriate allocation or allocations under this chapter.

(d) Prior determination

    Any by-pass determination by the Secretary under this Act as in 
effect on the day preceding October 20, 1994, shall remain in effect to 
the extent the Secretary determines that such determination is 
consistent with the purpose of this section.

(Pub. L. 89-10, title XIV, Sec. 14506, as added Pub. L. 103-382, title 
I, Sec. 101, Oct. 20, 1994, 108 Stat. 3904.)

                       References in Text

    This Act, as in effect on the day preceding October 20, 1994, 
referred to in subsec. (d), is Pub. L. 89-10, as added by Pub. L. 100-
297, title I, Sec. 1001, Apr. 28, 1988, 102 Stat. 140, as amended, known 
as the Elementary and Secondary Education Act of 1965, which was 
classified generally to chapter 47 (Sec. 2701 et seq.) of this title 
prior to the general amendment of that Act by Pub. L. 103-382, title I, 
Sec. 101, Oct. 20, 1994, 108 Stat. 3519.

                  Section Referred to in Other Sections

    This section is referred to in sections 6321, 8894 of this title.
