COLUMBIA – South Carolina Superintendent Mick Zais said Friday he’s asking legislative leaders to add $36 million for special education to the 2012-13 budget after the federal education agency denied his request to delay a funding cut.

Zais said the infusion is needed to avoid further penalties, as he continues his appeal.

The cut in federal money is a punishment for the state not spending enough on students with disabilities in the 2009-10 school year. The penalty was initially set to start last October. But the U.S. Department of Education decided last August to delay the punishment by a year.

Zais appealed the penalty and is still seeking a hearing before Education Secretary Arne Duncan.

Zais last month requested another one-year delay pending a final decision. But federal officials denied that request in a letter dated April 5.

“Having already delayed the reduction once, we believe it is in the best interests of students with disabilities for the state to prepare now,” wrote deputy secretary Anthony Miller. “We intend to proceed with the reduction in the state’s allotment on Oct. 1, 2012, absent a countervailing decision from the secretary in the interim.”

In a footnote, he reminded Zais that an assistant secretary delayed the reduction “specifically in order to provide the state time to plan.”

Zais’ appeal asks that the entire penalty be waived, or at the very least be a one-time cut, rather than continue perpetually.

“The policy of penalizing poor children for something three years ago makes no sense to me,” Zais said.

The Republican state schools chief said he could even understand a one-time penalty, but not an annual reduction. If Duncan upholds the penalty, Zais plans to continue to dispute it through federal courts or Congress. Therefore, he said, legislators could fund the $36 million with one-time cash.

He will formally make the request to the chairmen of the House and Senate budget-writing committees by Monday. The House has already approved its spending plan for 2012-13, which the Senate Finance Committee is in the process of tweaking.

The state spends $410 million on South Carolina’s nearly 100,000 special needs students in public schools – 14 percent of the entire student population, according to the education agency. Local districts provide additional funding.

The cut would come from the $183 million the state would otherwise receive from the federal government for students with various disabilities. Federal law bars states from spending less money on special education from one year to the next, though states can apply for an exemption.

The $36 million punishment is what’s left from an initial threat last June to reduce the state’s allotment by $111.5 million for not spending enough on special education over the previous three years, due to budget cuts during and following the Great Recession.

The federal government approved a waiver for 2008-09, a partial waiver for 2009-10 and forgave the entire shortfall for 2010-11 after the agency rushed to distribute $75.3 million to districts days before South Carolina’s fiscal year ended last June 30. The money was cobbled together from better-than-expected sales tax collections and lower-than-expected prices for school bus diesel fuel.

Part of Zais’ argument in the appeal is that the agency’s 16-month delay in issuing a decision on the state’s waiver request for the fiscal year that ended June 30, 2010 – referring to the June notice – made it impossible to rectify that shortfall.