K.R. by M.R. v. Anderson Community School Corp., 95-2497

• Citation: 81 F.3d 673
• Decision Date: 28 May 1996
• Docket Number: No. 95-2497,95-2497
• Parties: 108 Ed. Law Rep. 533, 15 A.D.D. 783 K.R., an infant, by her parents and next friends M.R. and K.R.R., and M.R. and K.R.R., Plaintiffs-Appellees, v. ANDERSON COMMUNITY SCHOOL CORPORATION, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 673

81 F.3d 673

108 Ed. Law Rep. 533, 15 A.D.D. 783

K.R., an infant, by her parents and next friends M.R. and K.R.R., and M.R. and K.R.R., Plaintiffs-Appellees, v. ANDERSON COMMUNITY SCHOOL CORPORATION, Defendant-Appellant.

No. 95-2497.

United States Court of Appeals,

Seventh Circuit.

Argued Feb. 22, 1996.

Decided April 12, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied May 28, 1996.

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 94 C 766--David F. Hamilton, Judge.

Milo G. Gray, Jr. (argued), Gary W. Ricks, Indiana Protection & Advocacy Services, Indianapolis, IN, for Plaintiffs-Appellees.

David W. Gotshall (argued), Anderson Community School Corporation, Anderson, IN, for Defendant-Appellant.

Lisa F. Tanselle, Indiana School Boards Association, Indianapolis, IN, Amicus Curiae for Indiana School Boards Association.

William Kanter, Frank A. Rosenfeld, Department of Justice, Civil Division, Appellate Section, Washington, DC, for Amicus Curiae U.S.

Craig J. Bobay, Hunt, Suedhoff, Borror & Eilbacher, Fort Wayne, IN, for Amicus Curiae Indiana Federation of Catholic School Families.

Jeffrey Spitzer-Resnick, Wisconsin Coalition for Advocacy, Madison, WI, for Amicus Curiae Wisconsin Coalition for Advocacy.

Before CUMMINGS, EASTERBROOK and DIANE P. WOOD, Circuit Judges.

CUMMINGS, Circuit Judge.

K.R. is a multiply handicapped student in need of a full-time instructional assistant to attend school. If K.R. attended public school, she would indisputably be entitled to all services prescribed by her individual education plan ("IEP") under the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. ("IDEA"), including the instructional assistant. However, K.R.'s parents have opted out of the public system and have voluntarily placed K.R. in a private parochial school. The question, therefore, is whether the IDEA or its accompanying regulations require Anderson Community Schools to provide the instructional assistant at the private school. The district court held that the public school was obligated to provide the service and issued a permanent injunction and declaratory judgment in favor of K.R. Because the IDEA and its regulations do not entitle K.R. to the full range of services at a private school, but rather give the public school discretion in cases such as this, we now reverse.

I.

It is not disputed that K.R. is a child with disabilities who is eligible under the IDEA for special educational and related services. K.R. was a six-year-old kindergarten student at the time this dispute arose. She suffers from myelomeningocele, spina bifida, and hydrocephalus with a shunt, which create difficulties with expressive language, motor skills, and mobility, requiring her to use a wheelchair. She thus needs assistance with positioning for activities, reaching and grasping, self-help skills, motor movements, mobility, and expression. Implementation of her IEP (determined in conformity with the IDEA) requires, among other necessary related services, a full-time instructional assistant.

K.R. received services from community agencies prior to attending public school at Anderson Community Schools. At age three, K.R. was enrolled in the pre-school program at the public school where she received various services related to her disabilities. In the spring and summer of 1993, case conference meetings were held to work out K.R.'s IEP for the 1993-1994 school year in anticipation of her continued attendance at public school. The IEP provided for placement in a kindergarten class with related services for speech therapy, occupational therapy, transportation, and a full-time instructional assistant. During the conference, K.R.'s parents asked whether K.R. would receive all of the services if she attended St. Mary's School, a private parochial school. The public school told K.R.'s parents that it would not provide an instructional assistant if she attended private school. Nonetheless, K.R.'s parents voluntarily enrolled her at St. Mary's for kindergarten. During K.R.'s attendance at St. Mary's, the public school has provided K.R. with speech therapy, occupational therapy, and physical therapy at a public school site, as well as transportation to that site. Since the local system determined that it would not provide K.R. with an instructional assistant on site at the private school, and since St. Mary's chose not to provide the service itself, K.R.'s mother attended St. Mary's with her to fulfill the duties of an instructional assistant prior to the district court's decision.

K.R.'s parents requested a due process hearing, which was held on October 26, 1993. The hearing officer concluded that the public school is not obligated to provide an instructional assistant at the private school. The Indiana Board of Special Education Appeals upheld the decision on April 7, 1994. Having exhausted their administrative remedies, K.R. and her parents filed a complaint in the district court. On May 25, 1995, the district court issued a permanent injunction and declaratory judgment holding that the public school was required to provide a full-time instructional assistant at the private school. K.R. ex rel. M.R. v. Anderson Community Sch. Corp., 887 F.Supp. 1217 (S.D.Ind.1995). The district court based its decision on a regulation that requires the special education services to private school students be "comparable" to the services provided to public school students.

II.

The IDEA's statutory scheme is typical of a federal granting program. The statute provides federal grants to states, which in turn fund local school districts, for assistance in educating disabled students. The states that elect to participate in the program receive a grant of not more than forty percent of the average per pupil expenditure for all students nationwide multiplied by the number of disabled students in the particular state receiving the grant. 20 U.S.C. § 1411(a). According to the United States Department of Education ("DOE"), federal grants supply only about eight percent of the funds needed to provide disabled students with special services. Nonetheless, a state that accepts IDEA grants must have in effect a policy that "assures all children with disabilities the right to a free appropriate public education" and a plan that assures such an education will be available. 20 U.S.C. § 1412(1) & (2)(B). The local school district must prepare for each disabled child an IEP that identifies the special education and related services that are necessary to meet that child's needs, and the district must then offer to provide those services at full public expense. 20 U.S.C. §§ 1412(4), 1414(a)(5). The district must place the child in a private school at public expense if it is unable to provide the necessary services in a public school. 20 U.S.C. § 1413(a)(4)(B).

The statute and accompanying regulations then specifically address the situation where parents voluntarily place their child in a private school. The statute 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 ....

20 U.S.C. § 1413(a)(4). The regulations help clarify the public school's obligation with respect to disabled students in private schools. If the 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, Section 300.452 states, "[e]ach [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, "[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.

Section 300.451 also requires the local agency to meet the requirements of 34 C.F.R. §§ 76.651-76.662 (we will call this series of regulations the "cross-referenced" regulations). 34 C.F.R. § 300.451(b). These cross-referenced regulations address conditions that the state and the subgrantees (local public schools) must meet regarding students in private schools, and they form the basis of the district court's opinion. 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) & (2). It shall consult with students' representatives regarding which 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 the following "on a basis comparable to that used" for public school students:

(a) The needs of students enrolled in private schools.

(b) The number of those students who will participate in a project.

(c) The benefits that the [agency] will provide under the program to those students.

34 C.F.R. § 76.653. Finally, at least for our purposes, "[t]he program benefits that [an agency]...