Cefalu on Behalf of Cefalu v. East Baton Rouge Parish School Bd., 95-31045

• Decision Date: 03 January 1997
• Docket Number: No. 95-31045,95-31045
• Parties: 115 Ed. Law Rep. 252, 19 A.D.D. 787 Charles Tony CEFALU, Jr., Behalf of his minor son rpi Charles Tony CEFALU, III, Plaintiff-Appellee, v. EAST BATON ROUGE PARISH SCHOOL BOARD; State of Louisiana, Through the Department of Education, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 393

103 F.3d 393

115 Ed. Law Rep. 252, 19 A.D.D. 787

Charles Tony CEFALU, Jr., Behalf of his minor son rpi

Charles Tony CEFALU, III, Plaintiff-Appellee, v. EAST BATON ROUGE PARISH SCHOOL BOARD; State of Louisiana, Through the Department of Education, Defendants-Appellants.

No. 95-31045.

United States Court of Appeals, Fifth Circuit.

Jan. 3, 1997.

Rhesa Hawkins Barksdale, Circuit Judge, filed dissenting opinion.

Tammy Lynn Pruet, Baton Rouge, LA, for Plaintiff-Appellee.

Robert L. Hammonds, Hammonds & Sills, Baton Rouge, LA, for East Baton Rouge Parish School Bd, Defendant-Appellant.

Gwendolyn H. Gregory, Alexandria, VA, for National School Bd. Association (NSBA), amicus curiae.

Scott S. Partridge, Frilot, Partridge, Kohnke & Clements, New Orleans, LA, Douglas Richard Cyrex, Monique C. Duplessis, Gonzales, LA, for Alexander Graham Bell Association for the Deaf (A.G. Bell), National Ass'n of the Deaf (NAD), Nat. Cued Speech Ass'n (NCSA), and La. Ass'n of the Deaf (LAD), amici curiae.

Appeal from the United States District Court for the Middle District of Louisiana.

Before POLITZ, Chief Judge, and JOLLY and BARKSDALE, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

The single question presented by this appeal is whether, under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., a school board is legally obligated to provide a sign language interpreter to a disabled student voluntarily enrolled in private school. The district court found that the IDEA required the school board to provide the on-site interpreter, and the school board appeals. We vacate the decision of the district court and remand this case for further consideration in the light of our opinion.

I

Charles Tony Cefalu, III ("Cefalu") has suffered from a hearing impairment since birth. Cefalu attended public schools until the conclusion of the 1992-93 school year. Cefalu's individualized education program ("IEP"), prepared in accordance with the requirements of the IDEA, included the services of a sign language interpreter.

In June 1993, the Supreme Court held that a public school district did not violate the Establishment Clause by providing services under the IDEA to students voluntarily attending parochial schools. Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 113 S.Ct. 2462, 125 L.Ed.2d 1 (1993). Thereafter, Cefalu's parents withdrew their consent from a previously devised IEP, which included a sign language interpreter at a public school, and enrolled Cefalu at Redemptorist High School, a private school. The Cefalus then requested that a sign language interpreter be provided at Redemptorist. The school board refused the Cefalus' request and again offered a sign language interpreter at the public school. The Cefalus refused to consent and requested an IDEA due process hearing. See 20 U.S.C. § 1415(b)(2).

In October 1993, the administrative hearing officer ruled that the school board was not obligated to provide Cefalu with an interpreter while at Redemptorist, because the offer to provide an interpreter at the public school provided Cefalu with an opportunity for a free appropriate public education. The decision of the hearing officer was affirmed on appeal to the state level review commission. See 20 U.S.C. § 1415(c). Cefalu then sought review in federal court. See 20 U.S.C. § 1415(e)(2).

The federal district court heard cross-motions for summary judgment. Based upon the record, consisting of the administrative record and a joint stipulation, the court granted Cefalu's motion and ordered the school board to provide a sign language interpreter at Redemptorist. The court denied the board's motion to stay the judgment pending appeal. The board did not seek a stay from this court.

II

A

We review the district court's grant of summary judgment de novo, using the standard utilized by the district court. See, e.g., Brock v. Chater, 84 F.3d 726, 727 (5th Cir.1996). In conducting judicial review of an IDEA administrative decision, the court "shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." 20 U.S.C. § 1415(e)(2).

B

(1)

This appeal requires us to interpret the IDEA and its regulations. The IDEA provides federal grants to states, which in turn provide funds to local school districts to establish special education and related services for children with disabilities. States that accept the funds are required to adopt a policy and a plan that "assures all children with disabilities the right to a free appropriate public education." 20 U.S.C. § 1412. The IDEA defines a "free appropriate public education" to include

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(a)(5) of this title.

20 U.S.C. § 1401(a)(18). "The word 'public' is a term of art which refers to 'public expense,' whether at public or private schools." Dreher v. Amphitheater Unified Sch. Dist., 22 F.3d 228, 233 n. 10 (9th Cir.1994) (citing Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12-14, 114 S.Ct. 361, 365, 126 L.Ed.2d 284 (1993)).

Local school districts receiving funds under the IDEA are required to prepare an IEP for each disabled student, whether in public or private school. The IEP must identify the special education and related services that are necessary to meet that student's needs, and the district must offer to provide those services at public expense. 20 U.S.C. §§ 1412(4), 1414(a)(1), 1414(a)(5). If the district is unable to provide the necessary services to the disabled student, then the student must be placed in a private school that can address the student's needs at public expense. 20 U.S.C. § 1413(a)(4)(B). These mandatory private school students are distinguished under the IDEA and its regulations from students, such as Cefalu, who voluntarily are enrolled in private schools.

Students voluntarily attending private schools are addressed by the provision requiring each state's plan to

set forth policies and procedures to assure--

(A) that, to 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). The school district is not required to pay a student's private school tuition if he is voluntarily enrolled in private school; however, the district "shall make services available to the child as provided" by other regulations enacted pursuant to the IDEA. 34 C.F.R. § 300.403.

The other regulations referenced above require each local educational agency to "provide special education and related services designed to meet the needs of private school children with disabilities residing in the jurisdiction of the agency." 34 C.F.R. § 300.452. Additionally, local agencies are to ensure that, "[t]o the extent consistent with their number and location in the State, provision is made for the participation of private school children with disabilities in the program assisted or carried out under this part by providing them with special education and related services." 34 C.F.R. § 300.451(a). Local education agencies are also charged with "provid[ing] students enrolled in private schools with a genuine opportunity for equitable participation" and "provid[ing] that opportunity to participate in a manner that is consistent with the number of eligible private school students and their needs." 34 C.F.R. § 76.651(a)(1) & (2). The local agency is required to consult with private school students' representatives regarding which students will receive benefits, how the students' needs will be identified, what benefits will be provided, and how benefits will be provided. 34 C.F.R. § 76.652(a). Local educational agencies are to determine the needs of private school students, the number of private school students to be participants in a project, and the benefits that the agency will provide to those students using a "basis comparable to that used ... in providing for participation of public school students." 34 C.F.R. § 76.653. Finally, "[t]he program benefits that [an agency] provides for students enrolled in private schools must be comparable in quality, scope, and opportunity for participation to the program benefits that the [agency] provides for students enrolled in public schools." 34 C.F.R. § 76.654(a).

It is clear, therefore, that the IDEA differentiates among three categories of disabled students: (1) those attending public schools; (2) those placed in private schools by local school districts; and (3) those attending private schools voluntarily. With respect to public school students, the IDEA requires that all children with disabilities receive a free appropriate public education that covers the expense of special education and related services. 20 U.S.C. §§ 1412(1), 1412(2)(B), 1412(4), 1414(a)(5). Students placed in private schools by local school districts are to receive the same benefits as those attending public schools. 20 U.S.C. § 1413(a)(4)(B). The regulations require that students voluntarily attending private schools be provided with an "equitable opportunity for participation" in the program "to the extent consistent with the number and location" of such students. 34 C.F.R. § 76.651(a)(1) & (2). Today, we are required to address the application...