Gary S . v . Manchester School Dist. CV-02-004-B 1/16/03 P
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Gary and Sylvie S., individually and on behalf of their son, Andrew S .
v. Civil N o . 02-004-B Opinion N o . 2003 DNH 010 P Manchester School District
MEMORANDUM AND ORDER
Andrew S . is a disabled child who attends a Catholic
elementary school but receives special education services from
the Manchester School District pursuant to the Individuals with
Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq. (2000
& Supp. 2001) and New Hampshire’s Special Education Law, N.H.
Rev. Stat. Ann. 186-C. Andrew’s parents sought a hearing before
the New Hampshire Department of Education after becoming
dissatisfied with the services Andrew was receiving. A hearing
officer denied their request because he determined that neither
the IDEA nor the Special Education Law entitle the parents of a disabled child to a hearing unless their child is enrolled in
public school.
Andrew’s parents accept the hearing officer’s interpretation
of the IDEA. Nevertheless, they argue that the Act: (1)
impermissibly burdens their right to send Andrew to private
school in violation of the Fourteenth Amendment’s Due Process and
Equal Protection Clauses; (2) denies them a suitable forum in
which to litigate their dispute in violation of their Fourteenth
Amendment right to procedural due process; and (3) penalizes them
for their decision to send their child to a religious school in
violation of the First Amendment’s Free Exercise Clause and the
Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. 2000bb et
seq. (1994 & Supp. 2002). They also argue that they are entitled
to a hearing under the Special Education Law even if their
challenges to the IDEA are unavailing.
The matter is before me on cross-motions for summary
judgment. I address the parties’ arguments by first describing
the differences in the way in which federal and state law treat
disabled children who attend public and private school. I then
briefly describe the facts of the case and analyze each claim in
turn.
-2- I.
A. The IDEA
The IDEA is a federal grant program under which a state’s
eligibility to receive funds is conditioned upon its adoption of
laws and regulations that make a “free appropriate public
education” available to the state’s disabled children. 20 U.S.C.
' 1412(a)(1). The Act defines a “free appropriate public
education” as “special education and related services that - (A)
have been provided at public expense, under public supervision
and direction and without charge; (b) meet the standards of the
State educational agency; (c) include an appropriate preschool,
elementary or secondary school education in the State involved;
and (d) are provided in conformity with the individualized
education program required under Section 1414(d) of this title.”
20 U.S.C. § 1401(8). “Special Education” is “specially designed
instruction” designed to “meet the unique needs of the child,” 20
U.S.C. § 1401(25), and “related services” includes transportation
and other supportive services that may be required to assist the
child in deriving benefit from special education services. 20
U.S.C. § 1401(22).
-3- The parents of a disabled student are entitled to an
“impartial due process hearing” to challenge a local school
district’s compliance with the IDEA’s free appropriate public
education requirement. See 20 U.S.C. § 1415(f); 34 C.F.R. §
300.507. The right to a due process hearing includes the rights
to (1) have an attorney attend the hearing; (2) present evidence
and cross-examine witnesses; (3) require the local school
district to disclose expert evaluations; (4) require the state to
produce a written or electronic verbatim record of the hearing;
and (5) require the hearing officer to produce a written or
electronic decision that includes findings of fact. See 20
U.S.C. § 1415(f)(2), ( h ) .
Until Congress enacted the Individuals with Disabilities
Education Act Amendments of 1997 (“the 1997 Amendments”), Pub L .
N o . 105-17 (1997), the law was unclear as to whether a
participating state’s statutory duty to make a free appropriate
public education available to its disabled students entitled
disabled students voluntarily placed in private school to an
individually enforceable right to receive services.1 Before the
1 A disabled child who has been placed in a private school by a local school district has the same substantive and procedural rights under the IDEA as a disabled child who has been enrolled by his parents in public school. See 20 U.S.C. §
-4- IDEA was amended, it provided only that participating states must
assure that, “[t]o the extent consistent with the number and
location of children with disabilities in the State who are
enrolled in private elementary and secondary schools, provision
is made for the participation of such children in the program
assisted or carried out under this subchapter by providing for
such children special education and related services . . . ” 20
U.S.C. § 1413(a)(4)(A)(1996). Some courts construed this
provision to give disabled students in private school an
individually enforceable right to comparable benefits. See,
e.g., Peter v . Wedl, 155 F.3d 9 9 2 , 1000-01 (8th Cir. 1998).
Other courts held that the IDEA did not require a local school
district to provide comparable benefits if the agency had offered
the student a free appropriate education in a public school
setting. See, e.g., K.R. v . Anderson Cmty. Sch. Corp., 81 F.3d
673, 680 (7th Cir. 1996), vacated and remanded for
reconsideration in light of 1997 Amendments to IDEA, 521 U.S.
1114 (1997), and on remand, 125 F.3d 1017 (7th Cir. 1997)
(reaffirming prior decision).
1412(a)(10)(B)(i); 34 C.F.R. §§ 300.400-300.402. When I refer to disabled children in private school in this Memorandum and Order, I mean only children who have been voluntarily enrolled in private school by their parents.
-5- The 1997 Amendments resolved uncertainty surrounding the
issue by adding language stating that the IDEA
does not require a local educational agency to pay for the cost of education, including special education and related services, of a child with a disability at a private school or facility if that agency made a free appropriate public education available to the child and the parents elected to place the child in such private school or facility.
20 U.S.C. 1412(a)(10)(C)(i). In light of this provision, it is
now beyond reasonable dispute that a disabled child who has been
placed by his parents in a private school does not have an
individually enforceable right to receive special education and
related services. See K.R., 125 F.3d at 1019. Instead, a local
school district need only spend a proportional amount of its
total IDEA funding on the provision of services to disabled
students in private school. See 20 U.S.C. § 1412(a)(10)(A)(i);
34 C.F.R. § 300.453(a).
Because a disabled student in private school does not have
an individually enforceable right to receive special education
and related services, the IDEA does not give the child’s parents
a corresponding right to an impartial due process hearing.2 See
2 A disabled student in private school has a right to an impartial due process hearing to challenge a local school district’s failure to properly identify, locate, or evaluate the
-6- 34 C.F.R. § 300.457(a). Instead, states must adopt “state
complaint” procedures for resolving complaints brought by the
parents of disabled children in private school. See 34 C.F.R. §§
300.457(c), 300.660. When a parent invokes the state complaint
process, the state must: (1) conduct an on-site investigation;
(2) give the parent an opportunity to submit additional evidence;
(3) review all relevant information; and (4) issue a written
decision with findings of fact. See 34 C.F.R. § 300.661. If the
state determines that a complaint has merit, it must determine
“[h]ow to remediate the denial of those services, including, as
appropriate, the awarding of money reimbursement or other
corrective action appropriate to the needs of the child.” 34
C.F.R. § 300.660(b)(1). A parent may appeal an adverse ruling on
a complaint to the New Hampshire Supreme Court. See N.H. Code
Admin. R. Ann. Ed. 1127.04(C) (2001) (“[a]ny party who is
aggrieved by the final written decision of the commissioner
[resolving a state complaint] may appeal in accordance with Ed.
2 0 0 " ) ; Ed. 214.01 (“[a]ll appeals of the state board action shall
be in accordance with RSA 5 4 1 " ) ; N.H. Rev. Stat. Ann. 541:6 (1997
student. See 34 C.F.R. § 300.457(b). This entitlement is not at issue here.
-7- & Supp. 2002) (“applicant may appeal by petition to the Supreme
Court”).
B. New Hampshire Law
New Hampshire implements the IDEA through its Special
Education Law. N.H. Rev. Stat. Ann. § 186-C. The Law requires
local school districts to develop an individualized education
plan (“IEP”) 3 for every disabled student residing in the
district. See N.H. Rev. Stat. Ann. § 186-C:7. It also provides
that every disabled student “shall be entitled to attend an
approved program which can implement the child’s individualized
education plan.” N.H. Rev. Stat. Ann. § 186-C:9. An “approved
program: is “a program of special education that has been
approved by the state board of education and that is monitored by
a school district . . . for the benefit of educationally disabled
3 An IEP is identified in the Special Education Law as “a written plan for the education of an educationally disabled child that has been developed by a school district in accordance with rules adopted by the state board of education and that provides necessary special education or special education and educationally related services within an approved program.” N.H. Rev. Stat. Ann. § 186-C:2-III. The IDEA adopts a somewhat different definition of an IEP. See 20 U.S.C. §§ 1401(12); 1436. Moreover, the IDEA does not require a participating state to provide a disabled student in a private school with an IEP. See 34 C.F.R. § 300.341(a)(1). Instead, local educational agencies are required to prepare a less comprehensive “services plan” for such students. See 34 C.F.R. § 300.452(b).
-8- children . . . .” N.H. Rev. Stat. Ann. § 186-C:2-II. The
parents of a disabled student are entitled “to appeal decisions
of the school district regarding such child’s individualized
education plan as provided in rules adopted in accordance with
RSA 541-A by the state board of education.” N.H. Rev. Stat. Ann.
§ 186-C:7 I I . It also states that “[a]ny action against a local
school district seeking to enforce special education rights under
state or federal law shall be commenced by requesting an
administrative due process hearing . . . .” N.H. Rev. Stat. Ann.
§ 186-C:16-b-I. The law does not explicitly distinguish between
disabled students in private school and disabled students in
The New Hampshire Department of Education has adopted by
reference the federal regulations that pertain to the provision
of special education services to disabled students in private
school. See Ed. 1117.03. The state regulations thus make clear
that disabled students in private schools and their parents (i)
have no individually enforceable right under state law to receive
services, (ii) are entitled only to an IEP that is consistent
with what the IDEA characterizes as a “services plan;” and (iii)
must use the state complaint process rather than the due process
-9- hearing process to raise any complaint concerning the adequacy of
services. See id. These regulations became effective on July 1 ,
2001.
Prior to July 1 , 2001, the Law’s implementing regulations
were less clear concerning the rights of disabled children in
private school. They required local school districts to spend
“the same average amount of IDEA program funds” for disabled
students in public and private school unless “the average cost of
meeting the needs of [disabled students in private school] is
different from the average cost of meeting the needs of students
enrolled in public schools,” in which case, the district was
required to spend “a different average amount of program benefits
for private school students.” Ed. 1117.04 (1996). The
regulations also required local school districts to offer private
school students benefits that were comparable in “quality, scope
and opportunity for participation.” Ed. 1117.03 (1996).
The regulations authorized the parents of disabled children
to file complaints with the Department concerning violations of
either the IDEA or the Special Education Law and required the
Department to investigate such complaints, issue written
decisions, and take corrective action if warranted. See Ed.
-10- 1127.001-1127.02 (1996). The regulations also established
procedures for “Administrative Due Process Hearings” which
authorized a parent of a disabled child to initiate a hearing to
challenge “the identification, evaluation, or educational
placement of the child or the provision of a free appropriate
public education to the child.” Ed. 1128.03(a)(1),(b)(1996).
Finally, the regulations stated that “[t]he right of the parent
to . . . invoke due process procedures if the parent feels that
[good faith efforts to assist the student in achieving the
objectives and goals listed in the individualized education
program] are not being made shall not be limited.” Ed.
1109.10(c)(1996).
II.
Each year since 1997, Andrew’s parents have met with a team
of educators from the District to develop an IEP for Andrew for
the upcoming school year. Andrew’s IEPs for the 1999-2000 and
2000-01 school years specified that the District would provide
him with one hour per week of speech and language services for
the entire school year at a local public elementary school. The
District also agreed to transport Andrew from and to his Catholic
-11- school so that he could receive the required services.
Notwithstanding the District’s agreements, Andrew did not receive
any services in either year until October. Further, because the
District failed to provide Andrew with reliable transportation,
he missed an additional 10 sessions and part of 5 others during
the 2000-01 school year.
To make up for the missed sessions, Andrew’s parents
attempted to secure the District’s agreement to include
compensatory education4 in his IEP for the 2001-02 school year.
On June 1 9 , 2001, after the District refused this request and the
parties were unable to agree on other aspects of the proposed
IEP, Andrew’s parents filed a complaint with the New Hampshire
Department of Education and requested an impartial due process
hearing. The District responded with a motion to dismiss arguing
that because Andrew’s parents had voluntarily enrolled him in
private school, neither the IDEA nor the Special Education Law
entitled them to a due process hearing. On September 7 , 2001,
the hearing officer assigned to the case agreed and granted the
District’s motion.
4 Compensatory education is relief awarded under the IDEA to remedy past violations. See Phil v . Massachusetts Dept. of Educ., 9 F.3d 1 8 4 , 188 (1st Cir. 1993).
-12- Andrew’s parents filed a state complaint with the New
Hampshire Department of Education on October 1 7 , 2001. While the
state complaint was pending, they commenced this action
challenging the hearing officer’s denial of their request for a
due process hearing. The Department of Education ultimately
dismissed the state complaint on March 2 1 , 2002. Andrew’s
parents elected to proceed with this action rather than seek
judicial review of the denial of their state complaint in the New
Hampshire Supreme Court.
III.
Andrew’s parents present several arguments to support their
claim that the IDEA’s private school provisions are either are
unconstitutional or violate RFRA. They also assert that they are
entitled to a due process hearing under the Special Education
Law. I begin by addressing their challenges to the IDEA.5
5 The IDEA does not require states to deny a due process hearing to the parents of disabled children in private school. It merely permits states to do so without jeopardizing their ability to receive federal funds. The hearing officer’s decision to deny Andrew’s parents a hearing thus is necessarily based on New Hampshire’s Special Education Law rather than the IDEA. Accordingly, the District might well have argued that Andrew’s parents’ challenges to the IDEA are unavailing because state law rather than federal law denies them a right to a hearing. I
-13- A. The IDEA
1. Substantive Due Process
In Pierce v . Society of Sisters, 268 U.S. 5 1 0 , 534-35
(1928), the United States Supreme Court invalidated a state law
that required parents to send their children to public school.
The Court reasoned that the law violated a parent’s right under
the Fourteenth Amendment’s Due Process Clause to control her
child’s upbringing and education. See id. Andrew’s parents rely
on Pierce in arguing that the IDEA improperly conditions their
ability to obtain a due process hearing on their agreement to
surrender their fundamental right to enroll Andrew in private
school. Because Andrew’s parents do not base their substantive
due process claim on the assumption that either state or federal
law gives parents an entitlement to government funding for their
children’s education, I understand them to assert an
“unconstitutional condition” claim. Such claims are generally
decline to dispose of plaintiffs’ IDEA claims on this basis for two reasons. First, the District does not make this argument. Second, Andrew’s parents would have redirected their constitutional challenges to the Special Education Law if I had denied them the opportunity to assert them with respect to the IDEA. Thus, I would have had to address the merits of their constitutional claims in an almost identical context even if I had declined to address their challenges to the IDEA.
-14- made when government attempts to condition access to a government
benefit on the relinquishment of a constitutional right.
The law of unconstitutional conditions is anything but
clear. In certain contexts, the Supreme Court has condemned
government attempts to condition the provision of a government
benefit on a recipient’s agreement to relinquish a constitutional
right. See, e.g., Legal Servs. Corp. v . Velazquez, 531 U.S. 533,
549 (2001) (federal funds for provision of legal services cannot
be conditioned upon relinquishment of right to represent
litigants in challenges to welfare laws); Nollan v . California
Coastal Comm’n, 483 U.S. 825, 837 (1987) (building permit cannot
be conditioned upon relinquishment of unrelated property right);
FCC v . League of Women Voters of California, 468 U.S. 3 6 4 , 402
(1984) (federal funds for non-commercial broadcasting stations
cannot be conditioned on relinquishment of right to
editorialize). On other occasions, for reasons that are
difficult to discern given the above-cited precedents, the Court
has declined to use the doctrine to invalidate selective
subsidies that burden other constitutional rights. See South
Dakota v . Dole, 483 U.S. 203, 209-210 (1987) (federal funds may
be conditioned on state’s adoption of 21 year-old drinking a g e ) ;
-15- Rust v . Sullivan, 500 U.S. 173, 196 (1991) (federal funds for
family planning service providers may be conditioned on
relinquishment of right to engage in abortion counseling). This
lack of clarity has sparked a rich body of academic writing that
attempts to bring coherence to this difficult area of law.6 I
need not wade into this doctrinal quagmire to resolve this case,
however, because both the Supreme Court and the First Circuit
have consistently refused to invalidate laws which condition a
parent’s ability to obtain educational benefits on the parent’s
relinquishment of her right to send her child to private school.
See Norwood v . Harrison, 413 U.S. 455, 462 (1973) (Pierce “said
nothing of any supposed right of private or parochial schools to
share with public schools in state largesse on an equal basis or
otherwise.”); Strout v . Albanese, 178 F.3d 5 7 , 66 (1st Cir. 1999)
(“fundamental right [to direct a child’s upbringing and
education] does not require the state to directly pay for a
6 See, e.g., Mitchell N . Berman, Conversion Without Baselines: Unconstitutional Conditions in Three Dimensions, 90 Geo. L . Rev. 1 (2001); Lynn A . Baker, The Prices of Rights: Toward a Positive Theory of Unconstitutional Conditions, 75 Cornell L . Rev. 1185, 1186 (1990); Cass R. Sustein, Why the Unconstitutional Conditions Doctrine is an Anochronism (With Particular Reference to Religion, Speech and Abortion), 70 BU L . Rev. 593 (1990); Kathleen M . Sullivan, Unconstitutional Conditions, 102 Harv. L . Rev. 1413 (1989).
-16- sectarian education”). See also Harris v . McCrae, 448 U.S. 2 9 7 ,
318 (1980) (dictum) (“It cannot be that because government may
not . . . prevent parents from sending their child to a private
school . . . government, therefore, has an affirmative
constitutional obligation to ensure that all persons have the
financial resources to . . . send their children to private
schools.”); Maher v . Roe, 432 U.S. 4 6 4 , 477 (1977) (dictum)
(“Pierce casts no shadow over a state’s power to favor public
education by funding it . . . ” ) .
Several factors lead me to conclude that this case fits
comfortably within the above-cited precedents. First, while a
different result might well be required if the evidence had
indicated that Congress enacted the IDEA’s private school
provisions in an effort to penalize private school students, I
find no support in the language, structure, or function of the
IDEA for drawing such an inference. The IDEA does not
categorically deny funding to parents who choose to enroll their
children in private school. To the contrary, it requires local
educational agencies to spend a proportional amount of their
total IDEA funds on the provision of services to disabled
students in private school. Rather than suggesting improper
-17- animus toward private school students, the IDEA’s private school
provisions more likely reflect the rational judgment that local
school districts require significant flexibility in determining
how to manage the limited funds that the federal government is
willing to make available for the education of disabled children
in private school. The specific provision that Andrew’s parents
challenge — the limitation on their right to a due process
hearing — follows logically from the congressional determination
that private school students do not have an individually
enforceable right to obtain services. Since Andrew’s parents
have offered no countervailing evidence on this point, I decline
to read into the IDEA a bias against private school students that
does not appear to exist.
Second, the private school provisions do not significantly
threaten a parent’s right to control her child’s education. The
IDEA requires local school districts to spend a proportional
amount of their IDEA funds on the education of disabled children
in private school and it provides the parents of such children
with a meaningful opportunity to challenge a local school
district’s actions by filing a state complaint. It is unlikely
under such circumstances that many parents who would otherwise
-18- choose to enroll their children in private school would feel
compelled to forgo that right merely because they would otherwise
lose an individually enforceable right to services and the right
to a due process hearing. Thus, the IDEA’s private school
provisions are not improperly coercive because they do not place
undue pressure on a parent’s right to send her child to private
school.
Finally, it is significant that the condition imposed by the
IDEA’s private school provisions — relinquishment of the right to
educate a child in private school — is closely related to the
benefit at stake — an individually enforceable right to receive
special education services and the ability to obtain a hearing
challenging the adequacy of those services. If Congress had
attempted to condition access to an educational subsidy on the
relinquishment of an unrelated constitutional right, say the
recipient’s Fourth Amendment right to be free from unreasonable
searches and seizures, I might well view the matter differently.
Such a condition would likely be impermissible because it bears
no relationship to the benefit at issue. This is not the case
here. Accordingly, I am unpersuaded by Andrew’s parents’
substantive due process claim.
-19- 2. Equal Protection Clause
Andrew’s parents also rely on Pierce as the foundation for
their Equal Protection Claim. Their argument is that: (1) Pierce
recognizes that parents have a fundamental right to educate their
children in private schools; (2) infringements on fundamental
rights must be justified by a compelling state interest; (3) the
IDEA infringes the fundamental right of parents to place their
children in private school by permitting states to deny them
benefits that are available to the parents of children who attend
public school; and (4) the infringement is not permissible
because it does not serve a compelling state interest.
This argument fails because it erroneously assumes that
government infringes a fundamental right when it refuses to
subsidize that right. The Supreme Court rejected this assumption
in Ryan v . Taxation with Representation of Washington,461 U.S.
540, 549 (1997), when it held that “a legislature’s decision not
to subsidize the exercise of a fundamental right does not
infringe the right and thus is not subject to strict scrutiny.”
To hold otherwise here would permit Andrew’s parents to revive
their moribund substantive due process claim by recharacterizing
it as an equal protection challenge. This is not something that
-20- the Supreme Court precedent permits. See Norwood, 413 U.S. at
462 (“It has never been held that if private schools are not
given some share of public funds allocated for education that
such schools are isolated into a classification violative of the
Equal Protection Clause.”). Accordingly, I reject plaintiffs’
equal protection claim.
3. Procedural Due Process
Andrew’s parents argue that the IDEA violates their right to
procedural due process because it does not require the Department
of Education to give them a hearing on their challenge to the
adequacy of Andrew’s benefits. The short answer to this argument
is that the due process clause does not entitle them to a hearing
because the IDEA does not give them a protectable property
interest in the services that Andrew is receiving from the
District. As I have already noted, the IDEA does not give Andrew
an individually enforceable right to receive special education
services. The fact that the District must spend a proportional
share of its IDEA funding on the education of disabled students
in private school gives him nothing more than a “mere
expectation” that he will receive benefits. This is not
sufficient to trigger an entitlement to a hearing when his
-21- benefits are threatened.7 See O’Bannon v . Town Court Nursery
Center, 447 U.S. 773, 785 (1980); Hoffman v . City of Warwick, 909
F.2d 6 0 8 , 619-21 (1st Cir. 1990).
4. Free Exercise
Andrew’s parents next claim that the IDEA violates their
rights under the First Amendment’s Free Exercise Clause.
Before 1990, any law that substantially burdened religiously
motivated conduct was deemed to violate the First Amendment’s
Free Exercise Clause unless the law served a compelling state
interest. See, e.g., Hernandez v . Commissioner, 490 U.S. 6 8 0 ,
699 (1989); Sherbert v . Verner, 374 U.S. 3 9 8 , 403 (1963). The
Court substantially limited the scope of these precedents in
Employment Div. Dep’t of Human Resources of Ore. v . Smith, 494
U.S. 8 7 2 , 879 (1990), by exempting most “neutral laws of general
applicability” from the compelling interest test. Under current
practice, a law ordinarily need not be justified by a compelling
7 Although Andrew’s parents do not press the point, I also reject any claim that the Special Education Law gives Andrew a protectable property interest in obtaining benefits. The Special Education Law was enacted to implement the IDEA. As the law’s current regulations unequivocally establish, it follows the IDEA in not giving the parents of disabled children in private school an individually enforceable right to obtain services. See Ed. 1117.03. Thus, state law does not give either Andrew or his parents a protectable property interest in receiving benefits.
-22- interest if it is “neutral” in that it is not targeted at
religiously motivated conduct and “generally applicable” in that
it does not selectively burden religious conduct. See Church of
Lukumi Babalu Aye, Inc. v . Hialeah, 508 U.S. 5 2 0 , 532-35, 542-43
(1993).
Andrew’s parents accept the District’s assertion that the
IDEA is a neutral law of general applicability. Nevertheless,
they argue that the Act’s private school provisions must be
justified by a compelling interest because the provisions
substantially burden both their constitutional right to freely
exercise their religious beliefs and their constitutional right
to control Andrew’s education. They thus invoke a narrow
exception recognized in Smith for “hybrid” claims that join a
free exercise claim with another constitutional claim. See
Smith, 494 U.S. at 881-82.
The Smith court developed the hybrid claim exception in an
effort to explain several past decisions which invalidated on
free exercise grounds laws that appeared to be neutral and
generally applicable. See id. It has not yet explained,
however, how a court should evaluate such claims. Fortunately,
the First Circuit has addressed the issue, holding that the
-23- exception can be invoked only if the plaintiff has joined a free
exercise challenge with another independently viable
constitutional claim. See Brown v . Hot, Sexy and Safer Prods.,
Inc., 68 F.3d 525, 539 (1st Cir. 1995). Using this test,
Andrew’s parents have failed to demonstrate that they have a
viable hybrid rights claim because, as I have already noted,
their substantive due process claim is deficient.8 Accordingly,
I deny Andrew’s parents’ free exercise claim.
V. RFRA
Having failed to state a viable free exercise claim,
Andrew’s parents seek to restate their argument as an RFRA claim.
RFRA provides that “[g]overnment shall not substantially
burden a person’s exercise of religion even if the burden results
from a rule of general applicability . . . [unless] it
8 The District of Columbia Circuit follows Brown. Henderson v . Kennedy, 253 F.3d. 1 2 , 19 (D.C. Cir. 2001). In contrast, the Ninth and Tenth Circuits require only that a plaintiff must make out a “colorable claim” that another constitutional right has been violated. See Miller v . Reed, 176 F.3d 1202, 1207 (9th Cir. 1999); Swanson v . Guthrie Indep. Sch. Dist. N o . 1-4, 135 F.3d 6 9 4 , 700 (10th Cir. 1998). This distinction is inconsequential in this case because plaintiffs have failed to make out even a colorable claim that they have been deprived of their right to control Andrew’s education.
-24- demonstrates that application of the burden to the person - (1)
is in furtherance of a compelling government interest; and (2) is
the least restrictive means of furthering that government’s
interest.” 42 U.S.C. § 2000bb-1. The Act’s stated purpose is
“to restore the compelling interest test as set forth in Sherbert
v . Verner, 374 U.S. 398 (1693) and Wisconsin v . Yoder, 406 U.S.
205 (1972) and to guarantee its application in all cases where
free exercise of religion is substantially burdened.” 42 U.S.C.
§ 2000bb(b). Although the Supreme Court held in City of Boerne
v . Flores, 521 U.S. 5 0 7 , 536 (1997), that Congress exceeded its
power under Section 5 of the Fourteenth Amendment in attempting
to apply RFRA to the activities of state and local governments.,
Congress has since amended RFRA to apply only to “federal law and
the implementation of that law,” 42 U.S.C. § 2000bb-3 (Supp.
2002). Thus, RFRA remains a potentially viable foundation for a
cause of action challenging the implementation of federal law by
a state actor acting under color of federal law.
To establish a claim under RFRA, Andrew’s parents must
demonstrate that their inability to obtain a due process hearing
substantially burdens their right to practice their Catholic
faith. See 42 U.S.C. 2000bb-1(a). Andrew’s parents attempt to
-25- satisfy this requirement by citing their beliefs that their
“religious faith obligates [them] to educate [their] children in
a religious environment that will assist [them] in teaching
[their] children about [their] beliefs and practices” and that
“[they] must honor these requirements by sending [their] children
to Catholic schools when such schools are available to [them] and
[they] are able to do so.” While I accept the sincerity of these
beliefs, they do not establish that the IDEA’s private school
provisions substantially burden their ability to practice their
Catholic faith. As the First Circuit observed in rejecting a
similar claim under the Free Exercise Clause, the Catholic faith
does not require parents to educate their children in Catholic
schools. See Strout, 178 F.3d at 6 5 . Thus, the Court concluded,
a law which denies educational funding for children who attend
sectarian schools does not substantially burden a central tenant
of the Catholic faith. See id. On this point, the present case
is indistinguishable from Strout. Accordingly, I deny Andrew’s
parents’ RFRA claim.
B. The Special Education Law
Andrew’s parents contend that they are entitled to a due
-26- process hearing under New Hampshire’s Special Education Law. I
disagree.
The Special Education Law provides that a parent’s right to
appeal decisions regarding her child’s IEP is “as provided in
rules adopted in accordance with RSA 541-A by the State Board of
Education.” N.H. Rev. Stat. Ann. 186-C:7. When the state
hearing officer denied Andrew’s parents’ request for a due
process hearing, the regulations that were then in effect
unequivocally required them to pursue their challenge through the
state complaint process rather than through a due process
hearing. See Ed. 1117.03 (1996).
Andrew’s parents first contend that I should disregard the
current regulations because they are inconsistent with the
Special Education Law. They argue that the law gives Andrew an
individually enforceable right to obtain special education
services and that their right to a due process hearing
necessarily flows from Andrew’s right to receive services.
I reject this argument because it is based on the incorrect
premise that the Special Education Law gives disabled students in
private school an individually enforceable right to receive
special education services. While the Law gives disabled
-27- students an entitlement to attend an approved program to
implement their IEPs, see N.H. Rev. Stat. Ann. 186-C:9, it does
not state whether a local school district satisfies this
entitlement by offering special education services to its
disabled children in a public school setting. The Department of
Education, following the IDEA, has concluded that the Special
Education Law does not give disabled children an individually
enforceable right to receive services if their parents enroll
them in private school. Because the Department’s interpretation
is plausible, I defer to its interpretation and reject Andrew’s
parents’ claim that the Special Education Law entitles them to a
due process hearing. See New Hampshire Retirement System v .
Sununu, 126 N.H. 1 0 4 , 108 (1985); N.H. Dep’t of Revenue Admin. v .
Public Emp. Labor Relations Bd., 117 N.H. 976, 977-78 (1977).
Andrew’s parents next argue that because they made their
request for a due process hearing on June 1 9 , 2001, the current
regulations which went into effect on July 1 , 2001 are
inapplicable. They instead claim that the regulations which were
in effect when they requested a hearing gave them an entitlement
to a hearing. Their argument requires me to determine whether
the current regulations should be applied retrospectively to
-28- hearing requests that were pending when the regulations went into
effect.
The New Hampshire Supreme Court has summarized its
jurisprudence regarding the retrospective application of
legislation in In re Wal-Mart Stores, 145 N.H. 635 (2000).
There, the court stated:
[W]hen the legislature is silent as to whether a statute should apply prospectively or retrospectively, as is the case here, our interpretation turns on whether the statute affects the parties substantive or procedural rights. When the rights affected by the statute are substantive, there is a pre- sumption of propsectivity. When the statute is remedial or procedural in nature, however, the presumption is reversed, and the statute is usually deemed to apply retroactively to those pending cases which on the effective date of the statute have not yet gone beyond the procedural stage to which the statute pertains. In the final analysis, however, the question of retrospective application rest[s] on a determination of fundamental fairness, because the underlying purpose of all legislation is to promote justice.
See id. at 638 (internal quotation marks and citations omitted).
What is at stake in this case is Andrew’s parents’ ability
to obtain a due process hearing. Because this is a matter of
procedure rather than substance, the regulations are subject to a
presumption under New Hampshire law that they should apply to all
-29- cases in which a request for a hearing was pending when the
regulations went into effect. See id. While the presumption
might be overcome by evidence that it would be fundamentally
unfair to apply the regulations retrospectively, Andrew’s parents
have failed to produce any evidence to support such a contention.
Accordingly, I reject their claim that the current regulations
are inapplicable.
IV.
For the reasons set forth herein, I grant the District’s
motion for summary judgment (Doc. N o . 11) and deny Andrew’s
parents’ cross motion for summary judgment (Doc. N o . 1 0 ) .
SO ORDERED.
Paul Barbadoro Chief Judge
January 1 6 , 2003
cc: Scott Johnson, Esq. Dean Eggert, Esq.
-30-