KDM ex rel. WJM v. Reedsport School District

196 F.3d 1046, 99 Daily Journal DAR 11509, 99 Cal. Daily Op. Serv. 9019, 1999 U.S. App. LEXIS 29800, 1999 WL 1029494

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 15, 1999
• Docket: Nos. 98-35186, 98-35187
• Status: Published

Opinions

Opinion by Judge SCHWARZER; Dissent by Judge KLEINFELD.

SCHWARZER, Senior District Judge:

WJM’s son, KDM, is a minor who is legally blind and has cerebral palsy. As such, KDM is a “child with disabilities” entitled to special education and related services under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1485 (1994). Oregon provides such services to children enrolled in public schools. The Oregon administrative regulation leaves it to the discretion of individual school districts whether to provide such services to children enrolled in private school but specifically provides that “such special education and related services shall be provided in a religiously-neutral setting.” OAR 581-15-166 (the “regulation”).¹ Defendant Reedsport School District (“District”) is willing to provide such services to KDM, but not at KDM’s parochial school. We must decide whether the District’s refusal to provide services at the- school violates the IDEA or KDM’s rights under the Free Exercise, Establishment, or Equal Protection Clauses of the Constitution.

I. FACTUAL AND PROCEDURAL BACKGROUND

While attending public school, KDM received from the District the services of a vision specialist, physical therapy and special equipment at his school. Motivated by sincerely-held religious beliefs, KDM’s parents transferred him to Harbor Baptist Church School (“Harbor Baptist”), a sectarian school. After the transfer, the District continued to supply him with special equipment (braillers, computers and other special equipment) at his new school. However, viewing the Harbor School setting as not religiously-neutral, it no longer supplied the vision specialist at the school. Instead, it provided that service at a fire hall down the street from Harbor Baptist. The adequacy of the service is not in dispute nor is it disputed that it is safe for KDM to travel to and from the fire hall, transportation being provided by the District. The service is provided for approximately ninety minutes twice a week. If this service were provided at Harbor Baptist, it would be provided in a room separate from the classroom because providing it in class could be disruptive to the instruction both of KDM and the other students in the classroom.

KDM brought this action through his father, WJM, against the District and Norma Paulus, Oregon’s Superintendent for Public Instruction, for declaratory and in-junctive relief requiring the defendants to place a vision specialist at Harbor Baptist. Plaintiff, in substance, made three claims: First, that defendants’ refusal to provide a vision specialist at School violates the IDEA; second, that it violates the Free Exercise and Establishment clauses of the First Amendment; and, third, that it denies plaintiff the equal protection of the laws. Following a bench trial on stipulated facts, the district court entered judgment holding that the IDEA did not require the district to provide services at a private school, but that the Oregon regulation which permits services to be offered private school students only in a religiously-neutral setting violated the Free Exercise, Establishment and Equal Protection Clauses and enjoined its enforcement.² We have subject matter jurisdiction under 20 U.S.C. § 1415(e)(2) and appellate jurisdiction under 28 U.S.C. § 1291 (1994), and review the district court’s legal conclusions de novo. See Walters v. Reno, 145 F.3d 1032, 1047 (9th Cir.1998), cert. denied, — U.S. -, 119 S.Ct. 1140, 143 L.Ed.2d 208 (1999). We now reverse the judgment.³

II. THE IDEA DOES NOT REQUIRE THE DISTRICT TO PROVIDE SERVICES AT RDM’s PRIVATE SCHOOL

Plaintiff cross-appealed, contending that the IDEA requires the District to provide KDM with services on site at Harbor Baptist. While the IDEA requires states to provide some measure of special education and related services to disabled children in private schools, see 20 U.S.C.A. § 1412(a)(10)(A) and (C) (Supp.1998); see also 34 C.F.R. § 300.403-.452, since its amendment in 1997, the act has specifically provided that “[s]uch services may be provided to children with disabilities on the premises of private, including parochial, schools, to the extent consistent with law.” 20 U.S.C.A. § 1412(a)(10)(A)(i)(II) (emphasis added). Every circuit that has considered whether the IDEA as amended in 1997 requires services to be provided on site at a private school has concluded it does not. See Foley v. Special Sch. Dist., 153 F.3d 863, 865 (8th Cir.1998) (“Clare and her parents now have no individual right under IDEA to the special education and related services in question, so they have no right to a federal court decree mandating that those services be provided at a particular location.”); Russman v. Board of Educ., 150 F.3d 219, 221-22 (2d Cir.1998) (“[S]tates are required to provide to children voluntarily enrolled in private schools only those services that can be purchased with a proportionate amount of the federal funds received under the program .... [The] statute does not require a school district to provide on-site services to a disabled child who is voluntarily enrolled in private school.”); Fowler v. Unified Sch. Dist. No. 259, 128 F.3d 1431, 1436-37 (10th Cir.1997) (“[T]he [school district’s] sole obligation is to spend on such students ... ‘a proportionate amount of Federal funds,’.... ”); K.R. v. Anderson Community Sch. Corp., 125 F.3d 1017, 1018 (7th Cir.1997) (affirming prior decision, 81 F.3d 673 (7th Cir.1996), that the IDEA does not require provision of services at a private school), cert. denied, — U.S. -, 118 S.Ct. 1360, 140 L.Ed.2d 510 (1998); Cefalu v. East Baton Rouge Parish Sch. Bd., 117 F.3d 231, 233 (5th Cir.1997) (“We therefore hold unambiguously that the defendants were not legally obligated to provide an on-site sign language interpreter to the plaintiff at the private school.”). We agree with those courts and conclude that the district court properly declined to grant plaintiff relief under the IDEA.

III. THE OREGON REGULATION AS APPLIED DOES NOT VIOLATE THE FEDERAL CONSTITUTION

A. The Free Exercise Clause

The narrow question before us is whether the free exercise rights of KDM and his parents were impermissibly burdened by the application of Oregon’s regulation, which precludes the District from providing special education services to KDM at the sectarian school he attended. In deciding that question we are guided by the distinction the Supreme Court has recognized in the Establishment Clause context between a statute’s invalidity on its face and its invalidity in particular applications. See Bowen v. Kendrick, 487 U.S. 589, 602, 108 S.Ct. 2562, 101 L.Ed.2d 520 (1988); see also Hunt v. McNair, 413 U.S. 734, 742, 93 S.Ct. 2868, 37 L.Ed.2d 923 (1973) (examining only “the transaction presently before [the court]” and not “the statute as a whole”); Zobrest v. Catalina Foothills Sch. Dist., 963 F.2d 1190, 1194 n. 3 (9th Cir.1992) (considering “only the validity of one very specific proposed application of the statutes at issue”), rev’d on other grounds, 509 U.S. 1, 113 S.Ct. 2462, 125 L.Ed.2d 1 (1993). Whatever the impact of the regulation might be in other factually distinct situations, cf. Zobrest, 963 F.2d at 1192 (failure to provide sign-language interpreter in the classroom for plaintiff effectively forced his parents to choose between foregoing a sectarian education or paying for the cost of the interpreter themselves) and Peter v. Wedl, 155 F.3d 992 (8th Cir.1998) (failure to provide spastic quadriplegic student with needed full-time paraprofessional while in school forced choice between foregoing sectarian education or paying for the paraprofessional), this is not a case in which the regulation impinges on plaintiffs’ free exercise rights. The parties stipulated that the service provided to KDM at the fire hall down the street from the school twice a week for ninety minutes is in compliance with KDM’s statutory individualized education plan, the adequacy of which is not in dispute, and that he could safely travel there-indeed, the vision specialist comes to KDM’s school, picks him up and then returns him to his school. Moreover, plaintiffs have stipulated that the vision specialist’s services would not be provided in-class at Harbor Baptist but in a separate room. Thus, there is no support for the district court’s finding that the regulation forces KDM and his parents to choose between enrolling at Harbor Baptist and receiving special education at the fire hall or enrolling at a nonreligious school and receiving in-class services. In sum, there is no showing that application of the regulation to KDM’s case burdens KDM’s or his parents’ free exercise of their religion.

While the Oregon regulation is not “neutral” because it restricts the provision of services to “religiously-neutral settings,” cf. Employment Division v. Smith, 494 U.S. 872, 878, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), as applied here it does not have “the object or purpose ... [of] suppression of religion or religious conduct.” Church of The Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993). KDM is not subjected to “[o]fficial action that targets religious conduct for distinctive treatment.” Id. at 534, 113 S.Ct. 2217. His case is wholly unlike Brown v. Borough of Mahaffey, 35 F.3d 846 (3d Cir.1994), involving the deliberate installation by the city of a gate impeding access to a particular revival meeting, or Hartmann v. Stone, 68 F.3d 973 (6th Cir.1995), involving an Army regulation banning all religious practice by day care providers on the base. Nor is Peter v. Wedl analogous because under the facts of that case, as noted, plaintiff indeed was forced to choose between enrolling in the sectarian school or receiving services essential to his ability to attend school. 155 F.3d at 1001.

That the regulation, standing alone, “discriminates” against students in religious schools, i.e., treats them differently by denying them state services on the school grounds, does not result in a burden on the free exercise of religion by someone in the position of KDM or his parents. We agree with the court in Strout v. Albanese, 178 F.3d 57 (1st Cir.1999), cert. denied, — U.S. -, 120 S.Ct. 329, — L.Ed.2d - (1999), upholding, against a Free Exercise challenge, a Maine statute funding grants to private schools for students in communities without public education facilities, provided the schools are nonsectarian. The court distinguished Lukumi because there was no evidence of “a substantial animus ... that motivated the law in question.” Id. at 65. Here, the District’s solicitousness in accommodating KDM could hardly be said to reflect a purpose to “suppress[ ] religion or religious conduct.” The mere fact that the District makes its service to KDM available in the fire hall down the street from his school does not amount to suppression of religion or religious conduct.

We conclude that Oregon’s regulation as applied to KDM and his parents does not impose an impermissible burden on their free exercise of religion.

B. The Establishment Clause

The district court also found that the Oregon regulation violates the Establishment Clause because it requires the State Superintendent of Education to decide on a case-by-case basis whether particular settings are religious. Since Zobrest, the mere presence of a public employee on religious premises clearly is not enough to invoke the Establishment Clause. See Zobrest, 509 U.S. at 13, 113 S.Ct. 2462; see also Agostini v. Felton, 521 U.S. 203, 234, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) (“[A]fter Zobrest we no longer presume that public employees will inculcate religion simply because they happen to be in a sectarian environment.”).

In Agostini the Supreme Court held that monthly visits by supervisors to parochial school classrooms to ensure that remedial education provided by public school teachers remained secular did not result in excessive entanglement under the test of Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2125, 29 L.Ed.2d 745 (1971). Agostini is merely the latest in a line of cases rejecting an entanglement claim when applied to the making of judgments by officials overseeing regulatory schemes concerning the religious character of activities. See Hernandez v. CIR, 490 U.S. 680, 696-97, 109 S.Ct. 2136, 104 L.Ed.2d 766 (1989) (“[R]outine regulatory interaction which involves no inquiries into religious doctrine, ... and no ‘detailed monitoring and close administrative contact’ between secular and religious bodies, does not of itself violate the nonentanglement command.” (citations omitted)); Mueller v. Allen, 463 U.S. 388, 403, 103 S.Ct. 3062, 77 L.Ed.2d 721 (1983) (finding no entanglement despite the fact that state officials required to determine whether textbooks were religious); Board of Educ. v. Allen, 392 U.S. 236, 245, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968) (same).

We conclude that the regulation does not offend the entanglement prong of the Lemon test. We need go no further because the district court did not determine that it offended the first (secular purpose), or second (primary effect to advance or inhibit religion), prong of the test.

C. The Equal Protection Clause

The district court held that the regulation violates the Equal Protection Clause because it “has the effect of allowing in-class services to disabled students at non-religious schools while prohibiting in-class services to disabled students at religious schools, both public and private.... Absent an anti-establishment interest, however, such a distinction lacks a rational, let alone compelling, justification.” Because parochial school students are not a suspect class, scrutiny of their treatment by the state is under the rational basis test. See City of New Orleans v. Dukes, 427 U.S. 297, 303-04, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976); Zobrest, 963 F.2d at 1197 n. 6. While under Zobrest the federal Establishment Clause raises no bar to providing on-site services to disabled students at sectarian schools, for purposes of equal protection analysis, Oregon’s interpretation of its constitutional separation requirement remains a legitimate state interest. The parties stipulated that “[t]he State of Oregon interprets Article I, § 5, of its constitution to require the provision of special education and related services in a religiously-neutral setting.” See Or. Const. art. I, § 5; Lowe v. City of Eugene, 254 Or. 518, 463 P.2d 360, 364 (1969) (describing art. I, § 5 as an expression of Oregon’s commitment to the doctrine of separation of church and state); see also Cooper v. Eugene Sch. Dist. No. 4J, 301 Or. 358, 723 P.2d 298, 312 (1986) (upholding Oregon state statute prohibiting school teacher from wearing religious dress while on duty, finding religious garb incompatible “with the school’s commitment to maintaining ... the atmosphere of religious freedom and neutrality....”); Strout, 178 F.3d at 67 (“The Maine legislature rationally could have believed that including sectarian schools within its funding scheme would or might violate the establishment clause.” (Campbell, J., concurring)); Luetkemeyer v. Kaufmann, 364 F.Supp. 376, 382 (W.D.Mo.1973), aff'd, 419 U.S. 888, 95 S.Ct. 167, 42 L.Ed.2d 134 (1974) (finding no equal protection violation by Missouri’s denial of bus service to parochial school student because of state’s legitimate interest in maintaining separation of church and state). We conclude that KDM and his parents have not been denied the equal protection of the laws.⁴

CONCLUSION

The judgment is REVERSED.

1 . OAR 581-15-166 states in full:

Public Educational Agency Responsibility for Children Placed by Parents in Private Schools

(1) If a child with a disability, who is three through the age of eligibility for kindergarten, is offered a free and appropriate public education by the Department of Education and the parent of the child unilaterally enrolls the child in a private school, the child shall not have an individual entitlement to receive special education and related services from the Department of Education. Consistent with the procedures set forth in OAR 581-15-171, the Department of Education shall determine which children with disabilities shall receive services, what services shall be provided and how those services shall be provided, including the location for delivery of those services.

(2) If a child with a disability, who is at the age of eligibility for kindergarten through age 21, is offered a free appropriate public education by the child's resident school district and the parent of the child unilaterally enrolls the child in a private school, the child shall not have an individual entitlement to receive special education and related services from the child's resident school district. Consistent with the procedures set forth in OAR 581 — 15— 171, resident school districts shall determine which children with disabilities shall receive services, what services shall be provided and how those services shall be provided, including the location for the delivery of those services.

(3) Such special education and related services shall be provided in a religiously-neutral setting.

(4) The Department of Education and school districts shall provide such children with genuine opportunities for equitable participation in special education consistent with the number of children and their needs.

2 . The record does not disclose whether Reedsporl or other school districts provide services at nonsectarian private schools, but the regulation does not preclude them from doing so.

3 . Because the court entered judgment only on Counts III and IV, plaintiff's constitutional claims, our mandate is limited to those counts.

4 . In Zobrest, moreover, we rejected an equal protection claim on the ground that the Free Exercise Clause does not create a fundamental right to on-site special education services. See Zobrest, 963 F.2d at 1196 n. 6; see also Norwood v. Hariison, 413 U.S. 455, 461-62, 93 S.Ct. 2804, 37 L.Ed.2d 723 (1973) (denial of public funds to private schools not an equal protection violation). Although this court’s judgment in Zobrest was reversed on the Establishment Clause ground, the Free Exercise portion of the opinion remains intact. See Chas. Wolff Packing Co. v. Court of Indus. Relations, 267 U.S. 552, 562, 45 S.Ct. 441, 69 L.Ed. 785 (1925) (quoting Mutual Life Ins. Co. v. Hill, 193 U.S. 551, 553-54, 24 S.Ct. 538, 48 L.Ed. 788 (1904) ("[A] judgment of reversal is not necessarily an adjudication by the appellate court of any other than the question in terms discussed and decided.”)).