Peter by and through Peter v. Wedl

• Court: U.S. District Court — District of Minnesota
• Writing for the Court: Mason
• Citation: Peter by and through Peter v. Wedl, 18 F.Supp.2d 1002 (D. Minn. 1998)
• Decision Date: 12 August 1998
• Docket Number: No. CIV. 4-96-642(DSD/JMM).,CIV. 4-96-642(DSD/JMM).
• Parties: Joan PETER, Sarah Peter, a minor, By and Through her parent and natural guardian Joan PETER, Krista Westendorp, Douglas Westendorp and Aaron Westendorp, a minor, by and through his parents and natural guardians Krista Westendorp and Douglas Westendorp, Plaintiffs, v. Robert WEDL, Commissioner, Minnesota Department of Children, Families and Learning, Arne H. Carlson, Governor, State of Minnesota, Independent School District No. 877 (Buffalo, Minnesota) and Independent School District No. 273 (Edina, Minnesota), Defendants.

18 F.Supp.2d 1002

Joan PETER, Sarah Peter, a minor, By and Through her parent and natural guardian Joan PETER, Krista Westendorp, Douglas Westendorp and Aaron Westendorp, a minor, by and through his parents and natural guardians Krista Westendorp and Douglas Westendorp, Plaintiffs, v. Robert WEDL, Commissioner, Minnesota Department of Children, Families and Learning, Arne H. Carlson, Governor, State of Minnesota, Independent School District No. 877 (Buffalo, Minnesota) and Independent School District No. 273 (Edina, Minnesota), Defendants.

No. CIV. 4-96-642(DSD/JMM).

United States District Court, D. Minnesota.

August 12, 1998.

COPYRIGHT MATERIAL OMITTED

J. Matthew Szymanski, Gammon & Grange, McLean, VA, for Plaintiffs.

Steven Liss, Rachel Kaplan, Minnesota Atty. Gen. Office, St. Paul, MN, for Defendants.

ORDER

MASON, United States Magistrate Judge.

The above matter came on for hearing upon Plaintiffs' Application for an Award of Attorneys' Fees and Expenses Against the State Defendants¹ [Docket No. 123], pursuant to the provisions of 42 U.S.C. § 1988. The Motion is before the undersigned for an Order, pursuant to 28 U.S.C. § 636(c) and related Rules of this Court. The parties waived their right to proceed before a United States District Judge and voluntarily consented to have proceedings on said Motion conducted and determined by the undersigned U.S. Magistrate Judge, including an Order for the entry of judgment thereon. It was so ordered by District Judge David S. Doty. [Docket No. 146].

Plaintiffs seek an award of $272,494.80 for legal services "(a) on the merits from preparation of plaintiffs' pre-litigation demand letter until the July 31, 1997 Stipulation by the State Defendants granting plaintiffs full relief and mooting their claims against the State, and (b) for the fee recovery effort commencing July 1, 1997 and continuing to the present." Docket No. 123 (emphasis in original). J. Matthew Szymanski, Esq., appeared on behalf of Plaintiffs; Steven B. Liss, Esq. and Rachel L. Kaplan, Esq. appeared on behalf of the State Defendants.

FINDINGS OF FACT

The Parties

Plaintiffs Sarah Peter and Aaron Westendorp are disabled children. Sarah Peter is a child with Down's Syndrome. She resides with her mother, Joan Peter, in Buffalo, Minnesota, within the geographical boundaries of Independent School District No. 877. Aaron Westendorp is a child with disabilities resulting from a brain stem lesion. He has facial paralysis and spastic quadri paresis, breathes through a permanent tracheostomy, eats through a permanent gastrostomy tube, and is unable to speak. He has full cognitive functions, however, and is able to communicate through use of finger spelling. Complaint at ¶ 32. He resides with his parents Douglas Westendorp and Krista Westendorp in Edina, Minnesota, within the geographical boundaries of Independent School District No. 273.

Plaintiff Choice in Education Foundation, Inc., is a nonprofit advocacy corporation whose members include parents of children with special education needs, and religious schools and organizations.

Allegations in the Complaint

The Complaint was filed on July 26, 1996. It alleges violations of 42 U.S.C. § 1983 for deprivation of Plaintiffs' rights under the free speech clause and the free exercise clause of the First Amendment to the United States Constitution, and under the equal protection clause of the Fourteenth Amendment to the United States Constitution. The Complaint also sought relief for the alleged violation of the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb, et seq., and the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 ("IDEA"), et seq. Most of the underlying facts pertinent to this dispute are set forth in the District Court's Order of March 26, 1997, Peter v. Johnson, 958 F.Supp. 1383 (D.Minn.1997).

The principal allegation of Plaintiffs' Complaint against the School Districts is that Sarah Peter and Aaron Westendorp should have been provided on-site paraprofessional services at private religious schools. The allegation against the State Defendants is that their Rule on that subject (Minn. Rule 3525.1150, subparts 1 and 2) was unconstitutional, when read in connection with the provisions of Minn.Stat. § 123.932, subds. 3 and 9. The Complaint asked for a declaration of the invalidity of the Rule, and an injunction requiring the School Districts to refrain "from denying special education services of any kind, including on-premises services, on the basis of the religious nature of the private school chosen by the parents of an otherwise eligible child." The Complaint also sought costs and attorneys' fees pursuant to 42 U.S.C. § 1988.

Plaintiffs' Complaint specifically challenged Minnesota's regulations and policies which implement the State's policies and plan under the IDEA. The IDEA states that children with disabilities are to be provided with a "free appropriate public education." 20 U.S.C. § 1400(c). The IDEA is implemented in Minnesota under the state statute and regulations. Minn.Stat. § 120.17; Minn. Rules ch. 3525.

Minnesota Rule 3525.1150, subp. 1, provides in part: "Districts shall identify and make available special education to all students who are disabled regardless of whether they attend a nonpublic school...."

Minnesota Rule 3525.1150, subp. 2 provides: "Special education services provided indirectly or directly or the pupil must be provided at a neutral site that is consistent with Minnesota Statutes, section 123.932, subdivision 9." That Statute defines "neutral site" as "a public center, a nonsectarian nonpublic school, a mobile unit located off the nonpublic school premises, or any other location off the nonpublic school premises which is neither physically nor educationally identified with the functions of the nonpublic school."

Under Minn.Stat. § 123.932, subd. 3, "non-public school" means "any school, church or religious organization, or home school" wherein a Minnesota resident may legally fulfill the compulsory instruction requirements. "It does not mean a public school." Id.

Under Minn.Stat. § 123.932, subd. 3a, a "nonsectarian nonpublic school" means "any nonpublic school as defined in subdivision 3, which is not church related, is not controlled by a church, and does not promote a religious belief." A nonpublic sectarian school is not included in the definition of a "neutral site." Peter v. Johnson, 958 F.Supp. 1383 at 1388 (D.Minn.1997).

Plaintiffs' Complaint alleged that "[t]he effect of Minnesota State Rule 3525.1150, in connection with the referenced Minnesota Statutes, is to deny on-premises special education services to otherwise eligible students attending private religious schools, but to authorize such services for eligible students attending private non-religious schools, where such services are deemed an appropriate part of a child's IEP." Complaint at ¶ 16.²

Early Motions

Plaintiffs, the School District Defendants and the State Defendants brought early Motions for dispositive relief. Plaintiffs filed a Motion for Preliminary Injunction pursuant to Rule 65(a) of the Federal Rules of Civil Procedure [Docket Nos. 3, 5 & 20]. Plaintiff sought an order:

"enjoining, restraining, and forbidding defendants from denying state special education services, including on-premises services, to otherwise eligible handicapped children on the basis of the fact that a child attends, or through his parents seeks to attend, a nonpublic school that is religious in nature or point of view, or includes religion in the content of its educational program, during the pendency of this litigation; and from enforcing any state rule, regulation, or policy to the contrary ....; and that Plaintiffs be awarded their reasonable costs and attorneys' fees incurred herein, pursuant to 42 U.S.C. § 1988, as supported by fee application to be filed subsequently."

[Docket Nos. 3 & 20].

Plaintiffs also filed a Motion for Partial Summary Judgment, seeking "an Order granting summary judgment in Plaintiffs' favor on Count V of the Plaintiffs' Complaint" [Docket No. 67]. (Count V of the Complaint contained Plaintiff's IDEA claim. Docket No. 1, at ¶ 55.) In Plaintiffs' Memorandum of Law in Support of their Motion for Partial Summary Judgment, Plaintiffs argued that this case was controlled by Zobrest v. Catalina Foothills School District, 509 U.S. 1, 113 S.Ct. 2462, 125 L.Ed.2d 1 (1993). Plaintiffs argued that any reliance on earlier cases like Meek v. Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217 (1975), Aguilar v. Felton, 473 U.S. 402, 105 S.Ct. 3232, 87 L.Ed.2d 290 (1985), and Grand Rapids v. Ball, 473 U.S. 373, 105 S.Ct. 3248, 87 L.Ed.2d 267 (1985), was misplaced. Docket No. 68, at 24-26.

The State Defendants moved to Dismiss Plaintiffs' claims on various grounds [Docket No. 13]. The School Districts also filed Motions to Dismiss Plaintiff's Complaint pursuant to Rule 12 of the Federal Rules of Civil Procedure [Docket Nos. 14 & 15].

Decision on Early Motions

The District Court issued its decision on those Motions on March 26, 1997 [Docket No. 79]. Peter v. Johnson, 958 F.Supp. 1383 (D.Minn.1997). The Court denied Plaintiffs' Motion for Preliminary Injunction and Plaintiffs' Motion for Partial Summary Judgment. Defendants' Motion to Dismiss the IDEA Count (Count V), was granted. In addition, the Court dismissed Plaintiff Choice in Education Foundation, Inc. as a Plaintiff. The other Motions were denied.

In its Opinion, the District Court found that the Peters and the Westendorps had standing to bring their claims, even though Sarah Peter and Aaron Westendorp were not currently enrolled in private schools. Peter, 958 F.Supp. at 1391. The Court then construed Plaintiffs' Section 1983 claims to be alleged against the State Defendants in their official capacities, and dismissed Plaintiffs' claims to the extent that they were asserted against the State Defendants in their individual capacities. The...