Russman v. Board of Educ. of City of Watervliet
| Decision Date | 24 July 1998 |
| Docket Number | Docket No. 95-7756 |
| Citation | 150 F.3d 219 |
| Parties | 128 Ed. Law Rep. 576 Colleen RUSSMAN, a child with disabilities, by her parents, Patricia and Paul RUSSMAN, Plaintiff-Appellee, v. BOARD OF EDUCATION OF THE ENLARGED CITY SCHOOL DISTRICT OF THE CITY OF WATERVLIET, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Nancy M. Maurer, Disabilities Law Project, Albany Law School Clinic, Albany, New York, for Plaintiff-Appellee.
Jay Worona, New York State School Boards Association, Albany, New York (Stephen F. Bailly, Hicks & Bailly, Albany, New York, of counsel) for Defendant-Appellant.
Stephen J. McGrath, Assistant Corporation Counsel of the City of New York, New York City (Paul A. Crotty, Corporation Counsel of the City of New York, of counsel) for Amicus Curiae the Board of Education of the City of New York.
David Zwiebel, Director of Government Affairs & General Counsel, Agudath Israel of America, New York City, for Amicus Curiae Agudath Israel of America.
Before: WINTER, Chief Judge, OAKES and WALKER, Circuit Judges.
In June 1996, we affirmed the late Judge Cholakis's grant of summary judgment in favor of Colleen Russman and her parents, holding that the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. ("IDEA"), required the Board of Education of the Enlarged City School District of Watervliet, New York (the "school district") to provide Colleen, a mentally retarded student, with a consultant teacher and teacher's aide on the premises of the private school in which she planned to enroll. See Russman v. Sobol, 85 F.3d 1050 (2d Cir.1996), vacated sub nom. Board of Educ. v. Russman, --- U.S. ----, 117 S.Ct. 2502, 138 L.Ed.2d 1008 (1997). In June 1997, however, the Supreme Court granted the school district's petition for a writ of certiorari, vacated our judgment, and remanded to us "for further consideration in light of the Individuals with Disabilities Education Act Amendments of 1997." Russman, --- U.S. at ---- - ----, 117 S.Ct. at 2502-03. Having considered letter briefs addressing the effect of the 1997 Amendments, we now hold that the IDEA as amended does not require a school district to provide on-site special-education services to a disabled child voluntarily enrolled in private school. Accordingly, we reverse the decision of the district court and remand for further proceedings consistent with this opinion.
We assume familiarity with the facts described in our prior decision, Russman v. Sobol, 85 F.3d 1050 (2d Cir.1996), vacated sub nom. Board of Educ. v. Russman, --- U.S. ----, 117 S.Ct. 2502, 138 L.Ed.2d 1008 (1997), and in the two opinions of the district court, Russman v. Board of Educ., 945 F.Supp. 37 (N.D.N.Y.1995); Russman v. Board of Educ., No. 93-CV-905, 1994 WL 903488 (N.D.N.Y. June 24, 1994). We therefore give only a brief sketch of the facts and procedural history here.
Colleen Russman, now sixteen years old, has been identified since 1986 as mentally retarded. Under her Individualized Educational Program ("IEP"), Colleen is to receive the assistance of a consultant teacher and a teaching aide, as well as occupational and speech therapy, in order to allow her to be "mainstreamed." The parties agree that Colleen is entitled to receive these educational services but disagree over where they are to be provided. The Russmans contend that the school district must provide services to Colleen on the premises of St. Brigid's Regional Catholic School ("St. Brigid's"), a sectarian school in which the Russmans plan to enroll Colleen. The school district maintains that it is not required to provide on-site special-education services to a student enrolled in a private school and chooses not to do so in this case.
In our prior decision, we upheld Judge Cholakis's grant of summary judgment in favor of the Russmans. We first rejected the school district's claim that the Establishment Clause prohibited the implementation of Colleen's IEP on the premises of St. Brigid's and held that under Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 113 S.Ct. 2462, 125 L.Ed.2d 1 (1993), the services required by Colleen could be constitutionally provided there. See Russman, 85 F.3d at 1053-54. Second, we held that the school district was statutorily required to do so. Because the IDEA and its accompanying regulations "require that necessary services be provided to disabled private school students according to their needs rather than the name of their school," id. at 1056, and because there had been no showing by the school district that providing Colleen services at St. Brigid's would cost more than providing them on public school grounds, we held that the school district had to provide Colleen with the consultant and teacher's aide on-site. See id. at 1057.
As noted, the Supreme Court granted the school district's petition for a writ of certiorari, vacated our judgment, and remanded to us "for further consideration in light of the Individuals with Disabilities Education Act Amendments of 1997." Russman, --- U.S. at ---- - ----, 117 S.Ct. at 2502-03.
The amended IDEA provides in pertinent part:
(i) In general To the extent consistent with the number and location of children with disabilities in the State who are enrolled by their parents in private elementary and secondary schools, provision is made for the participation of those children in the program assisted or carried out under this subchapter by providing for such children special education and related services in accordance with the following requirements, unless the Secretary has arranged for services to those children under subsection (f) of this section:
(I) Amounts expended for the provision of those services by a local educational agency shall be equal to a proportionate amount of Federal funds made available under this subchapter.
(II) Such 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. § 1412(a)(10)(A).
In the school district's view of the amended statute, a participating state must allocate a proportionate share of federal money to disabled students voluntarily enrolled in private schools but is not required to provide on-site services to such students. Because the federal funds received by a state under the IDEA are only a fraction of the cost of educating a state's disabled children, see Brief for the United States as Amicus Curiae at 2, K.R. v. Anderson Community Sch. Corp., --- U.S. ----, 117 S.Ct. 2502, 138 L.Ed.2d 1007 (1997) (No. 96-323) children choosing to attend private school would, under the district's view, be entitled as a group to only a proportionate amount of that fraction. The district argues in addition that whatever services a district is obligated to provide to a disabled student voluntarily enrolled in private school need not be provided on the private school's premises.
We agree with the school district. The amended IDEA "specifies that the total amount of money that must be spent to provide special education and related services to children in the State with disabilities who have been placed by their parents in private schools is limited to a proportional amount ... of the Federal funds available under part B." H.R.Rep. No. 105-95, at 92-93 (1997), reprinted in 1997 U.S.C.C.A.N. 78, 90. States are, therefore, not obligated under the statute to expend their own funds on disabled children who have voluntarily enrolled in private school. Accord Fowler v. Unified Sch. Dist. No. 259, 128 F.3d 1431, 1439 (10th Cir.1997); K.R. v. Anderson Community Sch. Corp., 125 F.3d 1017, 1019 (7th Cir.1997). Rather, states 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. Accord Fowler, 128 F.3d at 1436-37; Cefalu v. East Baton Rouge Parish Sch. Bd., 117 F.3d 231, 232 (5th Cir.1997).
Assuming that Colleen is individually entitled to a proportionate share of federal funds to...
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