Peter v. Wedl

• Decision Date: 27 October 1998
• Docket Number: No. 97-3608,B,No. 273,E,No. 877,877,273,97-3608
• Citation: 1998 WL 612747,155 F.3d 992
• Parties: 129 Ed. Law Rep. 594 Joan PETER; Sarah Peter, a minor, by and through her parent and natural guardian Joan Peter, Plaintiffs, Krista Westendorp; Douglas Westendorp; Aaron Westendorp, a minor, by and through his parents and natural guardians Krista Westendorp and Douglas Westendorp, Appellants, v. Robert WEDL, Commissioner, Minnesota Department of Children, Families and Learning; Arne Carlson, Governor, State of Minnesota; Independent School District,uffalo, Minnesota, Defendants, Independent School District,dina, Minnesota, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 992

155 F.3d 992

129 Ed. Law Rep. 594

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

No. 97-3608.

United States Court of Appeals,

Eighth Circuit.

Submitted June 11, 1998.

Decided Sept. 15, 1998.

Rehearing and Suggestion for Rehearing En Banc Denied Oct.

27, 1998. ^*

Michael S. Paulsen, Minneapolis, MN, argued (Daniel L. Bowles, Daniel T. Kadlec, Bloomington, MN, on the brief), for Appellants.

Paul C. Ratwik, Minneapolis, MN, argued (Brian D. Maguire, Minneapolis, MN, on the brief), for Appellees.

Before BEAM, ROSS, and MAGILL, Circuit Judges.

MAGILL, Circuit Judge.

Aaron Westendorp is a severely disabled child who requires a full-time paraprofessional to function in a school classroom. Minnesota Independent School District No. 273 (ISD No. 273) refused to provide Aaron with a paraprofessional as long as he attended a private religious school, and Aaron's parents brought this suit for damages and equitable relief against the school district. The Westendorps alleged that, by denying Aaron a paraprofessional in his private religious school, ISD No. 273 violated their rights of free speech, free exercise of religion, and equal protection under the First and Fourteenth Amendments, as well as their rights under the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. §§ 2000bb to 2000bb-4 (1994), the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-1491o (1994), and Minnesota state law. The district court granted summary judgment in favor of ISD No. 273, and Aaron's parents now appeal. We reverse.

I.

Aaron is a twelve-year-old boy who lives in Edina, Minnesota. Aaron suffers from a brain stem lesion which causes spastic quadriparesis, a partial paralysis from the eyes down. Although Aaron has normal cognitive abilities, he cannot speak, and communicates through finger signing. He breathes through a tracheostomy tube and eats through a gastrostomy tube. Because of his severe physical disabilities, Aaron requires a full-time paraprofessional while in school. The paraprofessional assists Aaron with his disabilities, translates his finger spelling, and adapts classroom tasks for Aaron. The cost of a paraprofessional is approximately $10,000 per year, and is the same whether Aaron attends a public school or a private school.

Aaron's parents wish him to attend Calvin Christian School, a K-8 private religious school in Edina. Aaron's two sisters attended Calvin Christian School, and Aaron was able to attend the school from 1991 until 1994. During this time, the Westendorps' church paid for Aaron's paraprofessional. When the Westendorps changed churches, however, the burden to pay for the paraprofessional fell on them. With help from relatives, the Westendorps could afford Aaron's tuition, but they could not afford the cost of a paraprofessional. Because ISD No. 273 would not pay for a paraprofessional for Aaron if he attended Calvin Christian School, the Westendorps were forced to transfer Aaron to a public school in Edina. Aaron has attended an Edina public school, with the services of an ISD No. 273-funded paraprofessional, from 1994 until the present.

When ISD No. 273 first refused to provide Aaron a paraprofessional if he attended Calvin Christian School, Minnesota law prohibited school districts from providing such services at private religious schools. See Minn. R. 3525.1150 subpt. 2 (allowing special education services only at a "neutral site"); Minn.Stat. § 123.932 subdivision 9 (defining "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"). Wayne Erickson, the manager of the Division of Special Education in the Minnesota Department of Children, Families and Learning, explained that, under this rule, a school district "[m]ay not provide special instruction services in a nonpublic school if that nonpublic school is a religious or sectarian school." Erickson Dep. (May 22, 1997) at 46, reprinted in J.A. at 270. By contrast, where a student in a private nonreligious school required special education services that "can very easily be provided in the child's regular classroom without impairing [the child's] ability to operate," Erickson stated that "it would be the state's policy it should be provided in the regular classroom." Id. at 57-58, reprinted in J.A. at 281-82; see also Minn. R. 3525.1150 subpt. 1 (providing that school districts must "make available special education to all students who are disabled regardless of whether they attend a nonpublic school").

Penny Kodrich, the Director of Special Services for ISD No. 273, acknowledged that Minnesota Rule 3525.1150 prohibited ISD No. 273 from providing services to Aaron at Calvin Christian School, see Kodrich Dep. (July 17, 1997) at 68-69, reprinted in J.A. at 453-54, and that Minnesota Rule 3525.1150 was an "independent rationale for the School District's policy" of refusing services at private schools. See Kodrich Aff. (July 17, 1997) p 6, reprinted in J.A. at 152-53. However, Kodrich also asserted that, in order to ensure the quality and integration of services and to contain costs:

It has been the consistent policy of Independent School District 273 to not provide direct on-site special education and related services to disabled school-age students who have been placed by their parents or guardians in private schools. That policy applies to all private school[s] regardless of whether they are religious or secular in nature.

Id. p 2, reprinted in J.A. at 150.

Despite its unwritten "consistent policy" of not providing special education services to students at private schools, ISD No. 273 has provided special education services to students at private nonreligious preschools, see ISD No. 273's Answers to Pls.' First Set of Interrogs. (June 15, 1997) at 2, reprinted in J.A. at 521 ("the School District has provided students who were placed by their parents in non-sectarian private preschool programs with direct on-site special education and related services"), as well as at the homes of home-schooled disabled children. See Kodrich Dep. at 122, reprinted in J.A. at 507. While Kodrich admitted that at least one other disabled student had been denied paraprofessional services at a private religious school by ISD No. 273, Kodrich could not recall any student who had been denied paraprofessional services at a private nonreligious school. See id. at 73-78, reprinted in J.A. at 458-63.

On July 26, 1996, the Westendorps brought this suit against ISD No. 273 and the State of Minnesota, seeking injunctive and declaratory relief and damages. The Westendorps were joined in their suit against the state by the parents of Sarah Peter, a disabled Minnesota child who was similarly denied special education services at a private religious school by Independent School District No. 877 (ISD No. 877).

On March 26, 1997, the district court granted summary judgment against the Westendorps on their IDEA claim. See Peter v. Johnson, 958 F.Supp. 1383, 1399-1400 (D.Minn.1997). The district court concluded "that the statute and its regulations do not require the State defendants or local school districts to provide on-site paraprofessional services to the plaintiffs at private schools as a component of their individualized education program." Id.

On June 23, 1997, the Supreme Court held that public school districts may provide secular teaching services at a private religious school without offending the Establishment Clause. See Agostini v. Felton, 521 U.S. 203, 117 S.Ct. 1997, 2016, 138 L.Ed.2d 391 (1997). Following this decision, the State of Minnesota, ISD No. 273, and ISD No. 877 stipulated to an injunction against the enforcement of Minnesota Rule 3525.1150. On August 5, 1997, the district court granted a preliminary injunction providing that "[t]he State Defendants are hereby enjoined and restrained from enforcing Rule 3525.1150 insofar as it prohibits provision of special education services to Plaintiffs Sarah Peter and Aaron Westendorp on the premises of a private religious school." Order (Aug. 5, 1997) at 1, reprinted in Appellants' Addendum at 48. Minnesota Rule 3525.1150 was subsequently amended to no longer distinguish between private religious schools and private nonreligious schools. Following the district court's grant of the injunction, ISD No. 877 agreed to provide services to Sarah Peter at her private religious school, and the Westendorps and ISD No. 273 became the sole parties to this suit.

Despite the injunction and ISD No. 877's change of heart, ISD No. 273 continued to refuse to provide services to Aaron if he attended Calvin Christian School. The district court denied a preliminary injunction requiring ISD No. 273 to provide such services, see Order (Aug. 12, 1997) at 9, reprinted in Appellants' Addendum at 58, and subsequently granted summary judgment against the Westendorps' remaining constitutional and state law claims. See Order (Sept. 2, 1997) at 2-3, reprinted in Appellant's Addendum at 60-61.

The Westendorps now appeal the grant of summary judgment against them on their free speech, free exercise, equal protection, and IDEA claims. Following the Supreme Court's decision that RFRA is unconstitutional as applied to state law, see City of Boerne v. Flores, 521 U.S. 507, ----, 117 S.Ct. 2157, 2172, ...