Peck by Peck v. Lansing School Dist.

• Decision Date: 29 June 1998
• Docket Number: 97-1231,Nos. 96-2193,s. 96-2193
• Citation: 148 F.3d 619
• Parties: 127 Ed. Law Rep. 729 Elizabeth PECK, by her next friend Mark PECK, Plaintiff-Appellee, v. LANSING SCHOOL DISTRICT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 619

148 F.3d 619

127 Ed. Law Rep. 729

Elizabeth PECK, by her next friend Mark PECK, Plaintiff-Appellee, v. LANSING SCHOOL DISTRICT, Defendant-Appellant.

Nos. 96-2193, 97-1231.

United States Court of Appeals, Sixth Circuit.

Argued Jan. 29, 1998.

Decided June 29, 1998.

Michael L. Bevins (briefed), Sharon L. LaPointe (argued and briefed), Beekman & LaPointe, Okemos, MI, for Defendant-Appellant. Jonathan E. Maire (argued and briefed), Street, Grua, Maire & Young, Lansing, MI, for Plaintiff-Appellee.

Before: JONES, DAUGHTREY, and COLE, Circuit Judges.

COLE, J., delivered the opinion of the court, in which NATHANIEL R. JONES, J., joined. DAUGHTREY, J. (p. 629), delivered a separate concurring opinion.

OPINION

COLE, Circuit Judge.

In this IDEA action, Defendant-Appellant Lansing (Michigan) School District appeals the district court's grant of summary judgment in favor of Plaintiff-Appellee Elizabeth Peck, in which the district court determined that the Lansing School District could provide physical and occupational therapy to Elizabeth on the premises of the parochial school that she attends, without excessive entanglement of government and religion in violation of the Establishment Clause. For the reasons that follow, we AFFIRM the judgment of the district court.

I. BACKGROUND

A. Facts

Elizabeth Peck, twelve years of age, suffers from a rare condition known as osteogenesis imperfecta. Osteogenesis imperfecta, also known as "brittle bone disease," is genetically transmitted and affects the connective tissues of the body. Osteogenesis imperfecta has its primary effect on a person's bones, causing them to be weak and malformed; affected individuals are generally short in stature with bowed limbs and suffer from frequent fractures. Osteogenesis imperfecta patients are of normal intelligence, and prognosis for a normal life expectancy depends upon the severity of the disease. Elizabeth's form of osteogenesis imperfecta is classified as "Type III," which means that she has severe bone fragility, progressive growth retardation and skeletal deformities. Elizabeth resides with her parents within the Lansing School District, but voluntarily attends Our Savior Lutheran School, a parochial school that is located within the district. Our Savior Lutheran School's stated mission is to provide a Christian atmosphere that permeates the educational program.

The Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § § 1401 et seq., was enacted to ensure a "free and appropriate public education" (FAPE) to qualified, disabled persons. The IDEA defines FAPE as "special education and related services" that are provided at public expense and supervision. See 20 U.S.C. § 1401(a)(8). ¹ Elizabeth is considered a "child with a disability" for purposes of the IDEA, as well as a "handicapped person" for purposes of the Michigan Mandatory Special Education Act; thus, Elizabeth qualifies for the services provided by these acts.

The Lansing School District began providing services to Elizabeth pursuant to the IDEA in 1987. In 1992, when Elizabeth began attending Our Savior Lutheran School, the Lansing School District provided a health care aide to Elizabeth on the premises of Our Savior Lutheran School each school day from 1:30 to 2:00 p.m. to assist Elizabeth in afternoon toileting. Additionally, the Lansing School District provided a teacher consultant to visit Our Savior Lutheran School once monthly to discuss Elizabeth's progress and school adjustment skills with her teachers. The Lansing School District further provided physical therapy (PT) and occupational therapy (OT) to Elizabeth at her home twice weekly.

In June 1994, the Pecks met with the Lansing School District to develop an Individualized Educational Plan (IEP), a plan for Elizabeth for the 1994-95 school year as required by the IDEA. The Pecks and the Lansing School District agreed on the type and the amount of services, as well as the goals and objectives set out in the IEP. The Pecks requested that the Lansing School District provide Elizabeth's PT and OT at Our Savior Lutheran School rather than their home, preferably during her scheduled physical education period. The Pecks' request was based on their assertion that the provision of PT and OT to Elizabeth at their home disrupted Elizabeth's daily schedule. When the therapy was provided in the afternoon, Elizabeth was forced to either leave school early or forego doing her homework or engage in other after-school activities; when the therapy was provided in the morning before school, Elizabeth's sleep patterns were disrupted. The Pecks therefore contended that the Lansing School District must provide Elizabeth's PT and OT at Our Savior Lutheran School, because at that time, the IDEA required a school district to provide benefits to private school students with disabilities which are comparable to the benefits provided for students enrolled in public schools. ² Thus, because students in public schools could receive PT and OT at their schools, Elizabeth also should be able to receive those services at her school. The Lansing School District refused the Pecks' request, stating that the Establishment Clause of the First Amendment to the United States Constitution precluded its provision of those services at Our Savior Lutheran School, because provision of these services at a parochial school would constitute excessive entanglement of government and religion.

B. Procedural History

The Pecks then requested a hearing, as provided by the IDEA, see 20 U.S.C. § 1415(f), regarding whether the Establishment Clause precluded the Lansing School District from providing PT and OT to Elizabeth at Our Savior Lutheran School. Following the hearing, the local hearing officer, Vicki Wozniak, issued a decision on April 29, 1995, determining that:

1. Our Savior Lutheran School would benefit by having OT and PT services provided on-site.

2. OT and PT services contain an "instructional component." ³

3. Entanglement between government and religion would be excessive.

4. Elizabeth would receive the benefit of the service if the Lansing School District provided it off-site. She has benefitted from the service provided to her at home.

5. "The issue of entitlement will not be used to decide this case."

6. Elizabeth would receive a FAPE if the Lansing School District provided the services off-site.

7. The services should "on a legal basis" be provided off-site since they have an instructional component. The Lansing School District can provide the services off-site so that a FAPE is provided.

8. Districts should decide, on a case by case basis, which services they can provide off-site, to avoid unnecessary, and thus excessive, government entanglement with religion.

Based on these conclusions, Wozniak determined that the Lansing School District could not provide PT and OT services at a parochial school such as Our Savior Lutheran School, because doing so would violate the Establishment Clause. Accordingly, Wozniak concluded that the Lansing School District must provide Elizabeth's PT and OT at a religiously-neutral site.

The Pecks appealed Wozniak's decision to the Michigan Department of Education. State Hearing Officer William P. Sosnowsky affirmed Wozniak's decision; however, Sosnowsky overruled Wozniak's conclusion that PT and OT were instructional services, instead finding that PT and OT were auxiliary services. Sosnowsky nonetheless upheld Wozniak's determination, finding that neither instructional nor auxiliary services could be provided at a parochial school without violating the Establishment Clause.

Thereafter, the Pecks filed suit in the United States District Court for the Western District of Michigan, asserting violations of the IDEA, the Michigan Mandatory Special Education Act, 42 U.S.C. § 1983, the Religious Freedom Restoration Act, the Michigan Civil Rights Act, and the Michigan School Code. With respect to their IDEA claim, the Pecks contended that the Lansing School District's refusal to provide PT and OT to Elizabeth at Our Savior Lutheran School violated the IDEA. The Lansing School District filed a counterclaim, alleging that Sosnowsky erred in overruling Wozniak's findings that PT and OT were instructional services. Both parties thereafter sought summary judgment.

Upon review of the motions, the district court determined that summary judgment could not be granted to either party because the record was not sufficiently developed to determine the following issues: how and under what circumstances could the services be provided at Our Savior Lutheran School; what possible issues of entanglement would arise from the provision of the services at the school; where, when and how the services could be provided off-site; and the potential impact upon Elizabeth in providing the services off-site. The parties agreed that the case should be remanded to Wozniak for additional factfinding.

Wozniak held hearings on July 19, July 24, and August 1, 1996, and filed supplemental findings of fact on August 4, 1996. Among other findings, Wozniak concluded that there were four possible issues of entanglement between government and religion arising from the Lansing School District's provision of PT and OT services at Our Savior Lutheran School: (1) the increased time necessary for Lansing School District's supervision of staff; (2) the need for additional contact between the Lansing School District and Our Savior Lutheran School; (3) the possibility of Lansing School District staff being uncomfortable during religious activities and unconsciously modeling the observed religious behavior; and (4) the possibility of PT and OT staff being seen as employees of Our Savior Lutheran School.

After consideration of the additional findings of fact, the district court heard the arguments of the parties on their motions for summary judgment on August 12, 1996. Following the arguments, the district court orally granted the Pecks' motion...