Felter v. Cape Girardeau School Dist.

• Decision Date: 04 February 1993
• Docket Number: No. 1:92CV0014SNL.,1:92CV0014SNL.
• Citation: 810 F. Supp. 1062
• Court: U.S. District Court — Eastern District of Missouri
• Parties: Pamela FELTER, Charles Felter and Sarah Felter, a minor, Plaintiffs, v. CAPE GIRARDEAU SCHOOL DISTRICT, et al., Defendants.

810 F. Supp. 1062

Pamela FELTER, Charles Felter and Sarah Felter, a minor, Plaintiffs, v. CAPE GIRARDEAU SCHOOL DISTRICT, et al., Defendants.

No. 1:92CV0014SNL.

United States District Court, E.D. Missouri, Southeastern Division.

January 19, 1993.

Order on Reconsideration February 4, 1993.

Gail Wechsler, Kenneth Chackes, St. Louis, MO, for plaintiffs.

John J. Horgan, Moser and Marsalek, St. Louis, MO, for defendants.

MEMORANDUM

LIMBAUGH, District Judge.

This matter is before the Court upon plaintiffs' Motion for Partial Summary Judgment on the issue of liability and on plaintiffs' claims for declaratory and injunctive relief. Plaintiffs filed a four-count Complaint alleging that defendants, in refusing to provide transportation from plaintiff Sarah Felter's parochial school to her special education classes at public school, have: (1) violated plaintiff Sarah Felter's right to a free and appropriate public education in violation of the Individuals with Disabilities Education Act (hereinafter "IDEA") and its implementing regulations; (2) violated the Rehabilitation Act, 29 U.S.C. § 794 and its implementing regulations; (3) violated plaintiffs' rights to the free exercise of religion in violation of the First and Fourteenth Amendments of the U.S. Constitution and 42 U.S.C. § 1983, and plaintiffs' right to liberty of conscience and belief in violation of Art. I, Sec. 5 of the Missouri Constitution; and (4) denying plaintiffs' Equal Protection of the law in violation of the Fifth and Fourteenth Amendments of the U.S. Constitution, 42 U.S.C. § 1983, and Art. I, Sec. 2 of the Missouri Constitution.

I. Standard for Summary Judgment

Courts have repeatedly recognized that summary judgment is a harsh remedy that should be granted only when the moving party has established his right to judgment with such clarity as not to give rise to controversy. New England Life Mut. Ins. Co. v. Null, 554 F.2d 896, 901 (8th Cir. 1977). Summary judgment motions, however, "can be a tool of great utility in removing factually insubstantial cases from crowded dockets, freeing courts' trial time for those that really do raise genuine issues of material fact." Mt. Pleasant v. Associated Elec. Co-Op. Inc., 838 F.2d 268, 273 (8th Cir.1988).

Pursuant to Fed.R.Civ.P. 56(c), a district court may grant a motion for summary judgment if all of the information before the court demonstrates that "there is no genuine issue as to material fact and the moving party is entitled to judgment as a matter of law." Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467, 82 S.Ct. 486, 488, 7 L.Ed.2d 458 (1962). The burden is on the moving party. Mt. Pleasant, 838 F.2d at 273. After the moving party discharges this burden, the nonmoving party must do more than show that there is some doubt as to the facts. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986). Instead, the nonmoving party bears the burden of setting forth specific facts showing that there is sufficient evidence in its favor to allow a jury to return a verdict for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).

In passing on a motion for summary judgment, the court must review the facts in a light most favorable to the party opposing the motion and give that party the benefit of any inferences that logically can be drawn from those facts. Buller v. Buechler, 706 F.2d 844, 846 (8th Cir.1983). The court is required to resolve all conflicts of evidence in favor of the nonmoving party. Robert Johnson Grain Co. v. Chem. Interchange Co., 541 F.2d 207, 210 (8th Cir. 1976). With these principles in mind, the Court turns to an examination of the facts.

II. Facts

Plaintiff Sarah Felter (hereinafter "Sarah") is enrolled at St. Mary's Cathedral School, a private, parochial school. This enrollment is at the choice of her parents. She also receives special education services at the local public school, pursuant to IDEA, under an Individualized Education Program (hereinafter "IEP") formulated by a team of persons including representatives of defendant Cape Girardeau School District. Sarah attends parochial school for most of the school day, but attends a special education class at the local public school each weekday afternoon as part of her IEP. At a meeting of the IEP team on November 8, 1991, representatives of the School District agreed that "transportation is necessary as a related service for Sarah due to lack of mobility, visual impairment, and school location." Exhibit A to plaintiffs' Complaint. At the same meeting, defendant School District offered three options for providing special education services to Sarah at the public school: (1) providing transportation to and from home if she were a "full day public school student;" (2) providing transportation from the public school to Sarah's home after the end of the school day; and (3) providing a special education class at a different public school close to the home of Sarah's afterschool caregiver, with no transportation provided. None of the options provided for transportation from the public sidewalk in front of the parochial school to the public school special education class, as was sought by plaintiffs.

On or about December 2, 1991, the Felters, through their attorney, requested a due process hearing from the School District on the issue of the transportation component of Sarah's IEP. On or about December 9, 1991, the attorney for plaintiffs received a letter from the representative of defendant Department of Elementary and Secondary Education (hereinafter "DESE") stating that the "issue of whether a child attending parochial school could be transported, by a public school bus, from the parochial school to a public school (to receive special education services) ... would not be an issue hearable under the PL94-142 due process procedures." Exhibit D of plaintiff's Complaint. "Your recourse would be to proceed directly to a court of competent jurisdiction." Exhibit D of plaintiff's Complaint. This action was filed subsequent to receipt of the December 9, 1991 letter from defendant DESE by plaintiffs' attorney.

III. Analysis

A. IDEA Claim

Plaintiffs argue that under IDEA, Sarah is entitled to transportation as a related service to Sarah's IEP due to Sarah's lack of mobility, her visual impairment, and the location of the schools. Defendants argue that the IDEA, by its clear statutory terms does not require defendants to provide Sarah with transportation between the parochial school and the public school, and furthermore, to do so would violate the Missouri Constitution. The Individuals with Disabilities Education Act (IDEA) expressly requires that entities providing special education services must also provide "related services designed to meet ... the unique needs" of each child with a disability. 20 U.S.C. § 1400(c). "The term `related services' means transportation, and such developmental, corrective, and other supportive services ... as may be required to assist a child with a disability to benefit from special education...." 20 U.S.C. § 1401(a)(17). In addition, the United States Department of Education has promulgated regulations pursuant to the IDEA. 34 C.F.R. 300.13 states:

(a) As used in this part, the term `related services' means transportation and such developmental, corrective, and other supportive services as are required to assist a handicapped child to benefit from a special education....

* * * * * *

(b)(13) "Transportation" includes:

(i) Travel to and from school and between schools,

* * * * * *

Comment. With respect to related services, the Senate Report states:

The Committee bill provides a definition of "related services," making it clear that all such related services may not be required for each individual child....

34 C.F.R. 300.13. The Department has also issued 34 C.F.R. 76.654, entitled "Benefits for private school students." The regulation states:

(a) Comparable benefits. The program benefits that a subgrantee provides for students enrolled in private schools must be comparable in quality, scope, and opportunity for participation to the program benefits that the subgrantee provides for students enrolled in public schools.

(b) Same benefits. If a subgrantee uses funds under a program for public school students in a particular attendance area, or grade or age level, the subgrantee shall ensure equitable opportunities for participation by students enrolled in private schools who —

(1) Have the same needs as the public school students to be served; and

(2) Are in that group, attendance area, or age or grade level.

34 C.F.R. 76.654.

Policy rulings by the Office of Special Education Programs (hereinafter "OSEP") have addressed the issue as to whether a public entity should provide transportation as a related service to a student attending parochial school needing the related service. In its policy letter in the case of OSERS, 1988, Exon, Education for the Handicapped Law Reporter (hereinafter "EHLR") 213:125, OSEP stated that "a general rule that services will only be offered at the public school site and that the public school is not responsible for providing transportation to any private school child who is handicapped is inconsistent with Federal regulations." Id. at 213:126. Similarly, in OSERS, 1988, Cunningham, EHLR 213:125, the agency stated that although transportation must be considered on a case-by-case basis, "the attitude that private school children `should arrange to show up to receive services' is inherently suspect." Id. In OSERS, 1986, Hoffman, EHLR 211:405, the agency addressed an inquiry as to whether a public school district that provides special education classes at the public schools can require parents to transport their children from the private to the public school and...