KDM v. Reedsport Sch. Dist.

• Decision Date: 01 March 1999
• Docket Number: No. 98-35186,N,98-35186
• Parties: (9th Cir. 1999) KDM, a minor, by and through WJM, his father and next friend, Plaintiff-Appellant, v. REEDSPORT SCHOOL DISTRICT; NORMA PAULUS, in her official capacity as Oregon Superintendent of Public Instruction, Defendants-Appellees. KDM, a minor, by and through WJM, his father and next friend, Plaintiff-AppellantCross-Appellee, v. REEDSPORT SCHOOL DISTRICT, Defendant, and NORMA PAULUS, in her official capacity as Oregon Superintendent of Public Instruction, Defendant-Appellee-Cross-Appellant. o. 98-35187
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1046

196 F.3d 1046 (9th Cir. 1999)

KDM, a minor, by and through WJM, his father and next friend, Plaintiff-Appellant, v. REEDSPORT SCHOOL DISTRICT; NORMA PAULUS, in her official capacity as Oregon Superintendent of Public Instruction, Defendants-Appellees.

KDM, a minor, by and through WJM, his father and next friend, Plaintiff-AppellantCross-Appellee, v. REEDSPORT SCHOOL DISTRICT, Defendant and NORMA PAULUS, in her official capacity as Oregon Superintendent of Public Instruction, Defendant-Appellee-Cross-Appellant.

No. 98-35186, No. 98-35187

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted March 1, 1999--Portland, Oregon

Filed November 15, 1999

David C. Gibbs, III, Gibbs & Craze, Seminole, Florida, and Harold B. Scoggins, III, Farleigh, Wada & Witt, P.C., Portland, Oregon, for the plaintiffs-appellants/cross-appellees.

Janet A. Metcalf, Assistant Attorney General, Salem, Oregon, for the defendant-cross-appellant/appellee.

Appeal from the United States District Court for the District of Oregon; Michael R. Hogan, Chief Judge, Presiding. D.C. No. CV-96-06075-MRH, D.C. No. CV-96-06075-MRH

Before: Andrew J. Kleinfeld and Michael Daly Hawkins, Circuit Judges, and William W Schwarzer,^* Senior District Judge.

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. SS 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 injunctive 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. S 1415(e)(2) and appellate jurisdiction under 28 U.S.C. S 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, 67 U.S.L.W. 3337 (U.S. Mar. 8, 1999). We now reverse the judgment.³

II. THE IDEA DOES NOT REQUIRE THE DISTRICT TO PROVIDE SERVICES AT KDM'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. S 1412(a)(10)(A) and (C) (Supp. 1998); see also 34 C.F.R. S 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. S 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, 118 S. Ct. 1360 (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 (1988); see also Hunt v. McNair, 413 U.S. 734, 742 (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 (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 ...