Foley v. Special School Dist. of St. Louis County, 4:95 CV 448 DDN.

• Decision Date: 07 April 1997
• Docket Number: No. 4:95 CV 448 DDN.,4:95 CV 448 DDN.
• Citation: 968 F.Supp. 481
• Parties: Daniel and Margaret FOLEY, as parents and next friend of Clare Foley, Plaintiffs, v. The SPECIAL SCHOOL DISTRICT OF ST. LOUIS COUNTY, Defendant.
• Court: U.S. District Court — Eastern District of Missouri

968 F.Supp. 481

Daniel and Margaret FOLEY, as parents and next friend of Clare Foley, Plaintiffs, v. The SPECIAL SCHOOL DISTRICT OF ST. LOUIS COUNTY, Defendant.

No. 4:95 CV 448 DDN.

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

April 7, 1997.

Michael H. Finkelstein, Missouri Protection & Advocacy Services, Jefferson City, MO, for Plaintiffs.

Celynda L. Brasher, Peper and Martin, James G. Thomeczek, Thomeczek Law Firm, St. Louis, MO, for Defendant.

MEMORANDUM

This action is before the court upon the motion of the defendant for summary judgment under Rule 56(c), Federal Rules of Civil Procedure (Doc. No. 25), and the motion of plaintiff for reconsideration (Doc. No. 31). The parties have consented to the exercise of authority by a United States Magistrate Judge under 28 U.S.C. § 636(c)(3).

Plaintiffs Daniel and Margaret Foley commenced this action under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-1485, seeking judicial review of a three-member due process panel hearing held pursuant to 20 U.S.C. § 1415 and Missouri Revised Statutes § 162.961. Plaintiffs allege that the Special School District of St. Louis County ("SSD") is required under the IDEA to provide certain educational and related services to their daughter, Clare Foley ("Clare"), at St. Peter's Catholic School ("St.Peter's"), a private school. They ask the court to reverse the decision of the three-member hearing panel (which denied the request of services at St. Peter's), find that SSD has violated the law by failing to provide special education services to Clare at St. Peter's, order that such services as requested be provided, and award attorneys' fees and costs to plaintiffs.

On March 29, 1996, this court entered partial summary judgment in favor of defendant SSD, concluding that the services offered to Clare by the district fulfill the defendant's responsibility under the IDEA. Foley v. Special School District, 927 F.Supp. 1214 (E.D.Mo.1996).¹ In doing so, this court rejected plaintiffs' argument that Zobrest v. Catalina Foothills School District, 509 U.S. 1, 113 S.Ct. 2462, 125 L.Ed.2d 1 (1993), mandated that the services requested by the Foleys be provided to Clare at St. Peter's. Zobrest held that there was no First Amendment prohibition under the Establishment Clause to a school district placing a public employee in a parochial school to aid a student. Id. at 12-13, 113 S.Ct. at 2469. However, as this court noted, that case did not hold that the school district was required to do so under the IDEA.

After granting defendant's motion for partial summary judgment, the court ordered the parties to advise the court of whether any further proceedings were necessary on the issue of plaintiffs' allegations of procedural violations of the IDEA, which had not been argued in the summary judgment pleadings. The parties then filed their responses and the court ordered that the "Suggestions in Support of Disposing of All Remaining Issues" (Doc. No. 25), filed by the defendant on April 12, 1996, be considered a motion for summary judgment on the issues raised therein. Plaintiffs subsequently filed a motion for reconsideration of this court's order granting partial summary judgment to SSD.

Motion for reconsideration

Plaintiffs' motion for reconsideration of this court's order of partial summary judgment relies on the recent decision in Russman v. Sobol, 85 F.3d 1050 (2d Cir.1996), which the court did not have the benefit of when considering the issues in this case. Plaintiffs argue that Russman supports their position that the IDEA requires SSD to provide the therapeutic services requested by Clare Foley in her private school setting. Defendant opposes the motion and distinguishes the Russman case from the instant case.

After this court rendered its decision granting partial summary judgment to the defendant, four circuit courts of appeal issued decisions considering the extent to which a school district must provide services to a student who is voluntarily placed in a private school by parents and whether the school district must provide these services on-site at a private school. Before reviewing those decisions, the court will set out the relevant statutory and regulatory provisions.

The IDEA requires participating states and their public education agencies, such as the SSD, to provide all students with disabilities with a free appropriate public education ("FAPE"). 20 U.S.C. §§ 1400(c) and 1412(1); Honig v. Doe, 484 U.S. 305, 308, 310, 108 S.Ct. 592, 596, 597, 98 L.Ed.2d 686 (1988). A "free appropriate public education" is defined 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(a)(5) of this title.

20 U.S.C. § 1401(a)(18). The Act's requirement of providing a FAPE is satisfied when the state provides personalized instruction with sufficient support services to allow the disabled child to benefit educationally from that instruction; the requirement of a FAPE does not require the state to maximize each child's potential commensurate with the opportunity provided to nondisabled children. Board of Education v. Rowley, 458 U.S. 176, 189-190, 199-200, 202, 102 S.Ct. 3034, 3042, 3047-48, 3049, 73 L.Ed.2d 690 (1982). The intent of the IDEA was "more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside." Id. at 192, 102 S.Ct. at 3042.

The statute also addresses the issue of disabled children who are enrolled in private schools. The IDEA requires that each state's plan

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; and

(B) that —

(i) children with disabilities in private schools and facilities will be provided special education and related services (in conformance with an individualized education program as required by this subchapter) at no cost to their parents or guardian, if such children are placed in or referred to such schools or facilities by the State or appropriate local educational agency as the means of carrying out the requirements of this subchapter or any other applicable law requiring the provision of special education and related services to all children with disabilities within such State....

20 U.S.C. § 1413(a)(4)(A) and (B). The corresponding regulations promulgated by the United States Department of Education state that, if parents voluntarily place their child in a private school, "the public agency is not required by this part to pay for the child's education at the private school or facility. However, the public agency shall make services available to the child as provided under §§ 300.450-300.452." 34 C.F.R. § 300.403.

In turn, § 300.452 states that "each local educational agency shall 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. Section 300.451 further requires the local agency to ensure that, "to 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.

Section 300.451 also requires the local agency to meet the requirements of 34 C.F.R. §§ 76.651-76.662. 34 C.F.R. § 300.451(b). These regulations address conditions that the state and the local public schools must meet regarding students in private schools. Under these regulations, the local agency "shall provide students enrolled in private schools with a genuine opportunity for equitable participation" and do so "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) and (2). It shall consult with students' representatives regarding where children will receive benefits, what benefits they will receive, how the children's needs will be identified, and how the benefits will be provided. 34 C.F.R. § 76.652(a). Further, the local agency shall determine, "on a basis comparable to that used" for public school students, (1) the needs of students enrolled in private schools, (2) the number of those students who will participate in a project, and (3) the benefits that the agency will provide under the program to those students. 34 C.F.R. § 76.653. In addition, the 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).

The issue in this case is whether the statute and the regulations require SSD to provide occupational, speech and physical therapy services to Clare, a student voluntarily enrolled at a private, parochial school, on-site at the private school. This court has held it is not. One of the decisions relied upon by this court in its earlier opinion was Goodall v. Stafford County School Board, 930 F.2d 363 (4th Cir.), cert. denied, 502 U.S. 864, 112 S.Ct. 188, 116 L.Ed.2d 149 (1991), in which the court held that the school district complied with the IDEA by offering the...