Gary S. v. Manchester School DistrictGary S. v. Manchester School District
MEMORANDUM AND ORDER
Andrеw S. is a disabled child who attends a Catholic elementary school but receives special education services from the Manchester School District pursuant to the Individuals with Disabilities Education Act (IDEA),
Andrew’s parents accept the hearing officer’s interprеtation of the IDEA. Nevertheless, they argue that the Act: (1) im-permissibly burdens their right to send Andrew to private school in violation of the Fourteenth Amendment’s Due Process and Equal Protection Clauses; (2) denies them a suitable forum in which to litigate their dispute in violation of their Fourteenth Amendment right to procedural due process; and (3) penalizes them for their decision to send their child to a religious school in violation of the First Amendment’s Free Exercise Clause and the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C.2000bb et seq. (1994 & Supp. 2002). They also argue that they are entitled to a hearing under the Special Education Law even if their challenges to the IDEA are unavailing.
The matter is before me on cross-motions for summаry judgment. I address the parties’ arguments by first describing the differences in the way in which federal and state law treat disabled children who attend public and private school. I then briefly describe the facts of the ease and analyze each claim in turn.
I.
A. The IDEA
The IDEA is a federal grant program under which a state’s eligibility to receive funds is conditioned upon its adoption of laws and regulations that make a “free appropriate public education” available to the state’s disabled children.
The parents of a disabled student are entitled to an “impartial due process hearing” to challengе a local school district’s compliance with the IDEA’S free appropriate public education requirement.
See
Until Congress enacted the Individuals with Disabilities Education Act Amendments of 1997 (“the 1997 Amendments”), Pub L. No. 105-17 (1997), the law was unclear as to whether a participating state’s statutory duty to make a free appropriate public education available to its disabled students entitled disabled students voluntarily placed in private school to an individually enforceable right to receive services.
1
Before the IDEA was amended, it provided only that participating states must assure that, “[t]o the extent consistent with the number and location of children with disabilities in the State who are enrolled in private elementary and secondary schools, provision is made for the participation of such children in the program assisted or carried out under this subchapter by providing for such children special education and related services ...”
The 1997 Amendments resolved uncertainty surrounding the issue by adding language stating that the IDEA
does not require a local educational agency to pay for the cost of education, including special education and related services, of a child with a disability at a private school or facility if that agency made a free appropriate public education available to the child and the parents elected to place the child in such private school or facility.
20 U.S.C. 1412(a)(l0)(C)(i). In light of this provision, it is now beyond reasonable dispute that a disabled child who has been placed by his parents in a private school does not have an individually enforceable right to receive special education and related services.
See K.R.,
Because а disabled student in private school does not have an individually enforceable right to receive special education and related services, the IDEA does not give the child’s parents a corresponding right to an impartial due process hearing.
2
See
B. New Hampshire Law
Nеw Hampshire implements the IDEA through its Special Education Law.
The New Hampshire Department of Education has adopted by reference the federal regulations that pertain to the provision of special education services to disabled students in private school. See Ed. 1117.03. The state regulations thus make clear that disabled students in private schools and their parents (i) have no individually enforceable right under state law to receive services, (ii) are entitled only to an IEP that is consistent with what the IDEA characterizes as a “services plan;” and (iii) must use the state complaint process rather than the due process hearing process to raise any complaint concerning the adequacy of services. See id. These regulations became effective on July 1, 2001.
Prior to July 1, 2001, the Law’s implementing regulations were less clear concerning the rights of disabled children in private school. They required local school districts to spend “the same average amount of IDEA program funds” for disabled students in public and private school unless “the average cost of meeting the needs of [disabled students in private school] is different from the average cost of meeting the needs of students enrolled in public schools,” in which case, the district was required to spend “a different average amount of program benefits for private school students.” Ed. 1117.04 (1996). The regulations also required local school districts to offer private school students benefits that were comparable in “quality, scope and opportunity for participation.” Ed. 1117.03 (1996).
The regulations authorized the parents of disabled children to file complaints with the Department concerning violations of either the IDEA or the Special Education Law and rеquired the Department to investigate such complaints, issue written decisions, and take corrective action if warranted. See Ed. 1127.001-1127.02 (1996). The regulations also established procedures for “Administrative Due Process Hearings” which authorized a parent of a disabled child to initiate a hearing to challenge “the identification, evaluation, or educational placement of the child or the provision of a free appropriate public education to - the child.” Ed. 1128.03(a)(1),(b)(1996). Finally, the regulations stated that “[t]he right of the parent to ... invoke due process procedures if the parent feels that [good faith efforts to assist the student in achieving the objectives and goals listed in the individualized education program] are not being made shall not be limited.” Ed. 1109.10(c)(1996).
II.
Each year since 1997, Andrew’s parents have met with a team of educators from the District to develop an IEP for Andrew for the upcoming school year. Andrew’s IEPs for the 1999-2000 and 2000-01 school years specified that the District would provide him .with one hour per week of speech and language services for the entire school year at a local public elementary school. The District also agreed to transport Andrew from and to his Catholic school so that he could receive the required services. Notwithstanding the District’s agreements, Andrew did not receive any services in either year until October. Further, because the District failed to provide Andrew with reliable transportation, he missed an additional 10 sessions and part of 5 others during the 2000-01 school year.
Andrew’s parents filed a state complaint with the New Hampshire Department of Education on October 17, 2001. While the state complaint was pending, they commenced this action challenging the hearing officer’s denial of their request for a due process hearing. The Department of Education ultimately dismissed the state complaint on March 21, 2002. Andrew’s parents elected to proceed with this action rather than seek judicial review of the denial of their state сomplaint in the New Hampshire Supreme Court.
III.
Andrew’s parents present several arguments to support their claim that the IDEA’S private school provisions are either are unconstitutional or violate RFRA. They also assert that they are entitled to a due process hearing under the Special Education Law. I begin by addressing their challenges to the IDEA. 5
A. The IDEA
1. Substantive Due Process
In
Pierce v. Society of Sisters,
The law of unconstitutional conditions is anything but clear. In certain contexts, the Supreme Court has condemned government attempts to condition the provisiоn of a government benefit on a recipient’s agreement to relinquish a constitutional right.
See, e.g., Legal Servs. Corp. v. Velazquez,
Several factors lead me to conclude that this case fits comfortаbly within the above-cited precedents. First, while a dif
Second, the private school provisions do not significantly threaten a parent’s right to control her child’s education. The IDEA requires local school districts to spend a proportional amount of their IDEA funds on the education of disabled children in private school and it provides the parents of such children with a meaningful opportunity to challenge a local school district’s actions by filing a state complaint. It is unlikely under such circumstances that many parents who would otherwise choose to enroll their children in private school would feel compelled to forgo that right merely because they would otherwise lose an individually enforceable right to services and the right to a due process hearing. Thus, the IDEA’S private school provisions are not improperly coercive because they do not place undue pressure on a parent’s right to send her child to private school.
Finally, it is significant that the condition imposed by the IDEA’S private school provisions — relinquishment of the right to educate a child in private school — -is closely related to the benefit at stake — an individually enforceable right to receive special education services and the ability to obtain a hearing challenging the adequacy of those services. If Congress had attempted to сondition access to an educational subsidy on the relinquishment of an unrelated constitutional right, say the recipient’s Fourth Amendment right to be free from unreasonable searches and seizures, I might well view the matter differently. Such a condition would likely be impermissible because it bears no relationship to the benefit at issue. This is not the case here. Accordingly, I am unpersuaded by Andrew’s parents’ substantive due process claim.
2. Equal Protection Clause
Andrew’s parents also rely on
Pierce
as the foundation for their Equal Protection Claim. Their argument is that: (1)
Pierce
recognizes that parents have a fundamental right to educate their children in private schools; (2) infringements on fundamental rights must be justified by a compelling state interest; (3) the IDEA infringes the fundamental right of parеnts to place their children in private school by permitting states to deny them benefits that are available to the parents of children who attend public school; and (4) the
This argument fails because it erroneously assumes that government infringes a fundamental right when it refuses to subsidize that right. The Supreme Court rejected this assumption in
Regan v. Taxation with Representation of Washington,
3. Procedural Due Process
Andrew’s parents argue that the IDEA violates their right to procedural due process because it does not require the Department of Education to give them a hearing on their challenge to the adequacy of Andrew’s benefits. The short answer to this argument is that the due process clause does not еntitle them to a hearing because the IDEA does not give them a protectable property interest in the services that Andrew is receiving from the District. As I have already noted, the IDEA does not give Andrew an individually enforceable right to receive special education services. The fact that the District must spend a proportional share of its IDEA funding on the education of disabled students in private school gives him nothing more than a “mere expectation” that he will receive benefits. This is not sufficient to trigger an entitlement to a hearing when his benefits are threatened.
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See O’Bannon v. Town Court Nursing Center,
4. Free Exercise
Andrew’s parents next claim that the IDEA violates their rights under the First Amendment’s Free Exercise Clause.
Before 1990, any law that substаntially burdened religiously motivated conduct was deemed to violate the First Amendment’s Free Exercise Clause unless the law served a compelling state interest.
See, e.g., Hernandez v. Commissioner,
Andrew’s parents accept the District’s assertion that the IDEA is a neutral law of general applicability. Nevertheless, they argue that the Act’s private school provisions must be justified by a compelling interest because the provisions substantially burden both their constitutional right to freely exercise their religious beliefs and their constitutional right to control Andrew’s education. They thus invoke a narrow exception recognized in
Smith
for “hybrid” claims that join a free exercise claim with another constitutional claim.
See Smith,
The
Smith
court developed the hybrid claim exception in an effort to explain several past decisions which invalidated on free exercise grounds laws that appeared to be neutral and generally applicable.
See id.
It has not yet explained, however, how a court should evaluate such claims. Fortunately, the First Circuit has addressed the issue, holding that the exception can be invoked only if the plaintiff has joined a free exercise challenge with another independently viable constitutional claim.
See Brown v. Hot, Sexy and Safer Productions, Inc.,
V. RFRA
Having failed to state a viable free exercise claim, Andrew’s parents seek to restate their argument as an RFRA claim.
RFRA provides that “[gjovernment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability ... [unless] it demonstrates that application of the burden to the person — (1) is in furtherance of a compelling government interest; and (2) is the least restrictive means of furthering that government’s interest.”
To establish a claim under RFRA, Andrew’s parents must demonstrate that their inability to obtain a due process hearing substantially burdens their right to practice their Catholic faith.
See
42 U.S.C.2000bb-l(a). Andrew’s parents attempt to satisfy this requirement by citing their beliefs that their “religious faith obligates [them] to educate [their] children in a religious environment that will assist [them] in teaching [their] children about [their] beliefs and practices” and that “[they] must honor these requirements by sending [their] children to Catholic schools when such schools are available to [them] and [they] are able to do so.” While I accept the sincerity of these beliefs, they do not establish that the IDEA’S private school provisions substantially burden their ability to practice their Catholic faith. As the First Circuit observed in rejecting a similar claim under the Free Exercise Clause, the Catholic faith does not require parents to educate their children in Catholic schools.
See Strout,
B. The Special Education Law
Andrew’s parents contend that they are entitled to a due process hearing under New Hampshire’s Special Education Law. I disagree.
The Special Education Law provides that a parent’s right to appeal decisions regаrding her child’s IEP is “as provided in rules adopted in accordance with RSA 541-A by the State Board of Education.” N.H.Rev.Stat. Ann. 186-C:7. When the state hearing officer denied Andrew’s parents’ request for a due process hearing, the regulations that were then in effect unequivocally required them to pursue their challenge through the state complaint process rather than through a due process hearing. See Ed. 1117.03 (1996).
Andrew’s parents first contend that I should disregard the current regulations because they are inconsistent with the Special Education Law. They argue that the law gives Andrew an individually enforceable right to obtain special education services and that their right to a due process hearing necessarily flows from Andrew’s right to receive services.
I reject this argument because it is based on the incorrect premise that the Special Education Law gives disabled students in private school an individually enforceable right to receive special education services. While the Law gives disabled students an entitlement to attend an approved program to implement their IEPs,
see
N.H.Rev.Stat. Ann. 186-C:9, it does not state whether a local school district satisfies this entitlement by offering special education services to its disabled children in a public school setting. The Department of Education, following the IDEA, has concluded that the Special Education Law does not give disabled children an individually enforceable right to receive services if their parents enroll them in private school. Because the Department’s interpretation is plausible, I defer to its interpretation and reject Andrew’s parents’ claim that the Special Education Law entitles them to a due process hearing.
See New Hampshire Retirement System v. Sununu,
The New Hampshire Supreme Court has summarized its jurisprudence regarding the retrospective application of legislation in
In re Wal-Mart Stores,
[W]hen the legislature is silent as to whether a statute should apply prospectively or retrospectively, as is the case here, our interpretation turns on whether the statute affects the parties substantive or procedural rights. When the rights affected by the statute are substantive, there is a presumption of prop-seetivity. When the statute is remedial or procedural in nature, however, the presumption is reversed, and the statute ■is usually deemed to apply retroactively to those pending cases which on the effective date of the statute have not yet gone beyond the procedural stage to which the statute pertains. In the final analysis, however, the question of retrospective application rest[s] on a determination of fundamental fairness, because the underlying purpose of all legislation is to promote justice.
See id.
at 638,
What is at stake in this case is Andrew’s parents’ ability to obtain a due process hearing. Because this is a matter of procedure rather than substance, the regulations are subject to a presumption under New Hampshire law that they should apply to all cases in which a request for a hearing was pending when the regulations went into effect. See id. While the presumption might be overcome by evidence that it would be fundamentally unfair to apply the regulations retrospectively, Andrew’s parents have failed to produce any evidence to support such a contention. Accordingly, I reject their claim that the current regulations are inapplicable.
IV.
For the reasons set forth herein, I grant the District’s motion for summary judgment (Doc. No. 11) and deny Andrew’s parents’ cross motion for summary judgment (Doc. No. 10).
SO ORDERED.
Notes
. A disabled child who has been placed in a private school by a local school distriсt has the same substantive and procedural rights under the IDEA as a disabled child who has been enrolled by his parents in public school.
See
. A disabled student in private school has a right to an impartial due process hearing to challenge a local school district’s failure to properly identify, locate, or evaluate the student.
See
. An IEP is identified in the Special Education Law as "a written plan for the education of an educationally disabled child that has been developed by a school district in accordance with rules adopted by the state board of education and that provides necessary special education or special education . and educationally related services within an approved program.”
. Compensatory education is relief awarded under the IDEA to remedy past violations.
See Pihl v. Massachusetts Dept. of Educ.,
. The IDEA does not require states to deny a due prоcess hearing to the parents of disabled children in private school. It merely permits states to do so without jeopardizing their ability to receive federal funds. The hearing officer’s decision to deny Andrew’s parents a hearing thus is necessarily based on New Hampshire’s Special Education Law rather than the IDEA. Accordingly, the District might well have argued that Andrew’s parents' challenges to the IDEA are unavailing because state law rather than federal law denies them a right to a hearing. I decline to dispose of plaintiffs' IDEA claims on this basis for two reasons. First, the District does not make this argument. Second, Andrew’s parents would have redirected their constitutional challenges to the Spеcial Education Law if I had denied them the opportunity to assert them with respect to the IDEA. Thus, I would have had to address the merits of their constitutional claims in an almost identical context even if I had declined to address their challenges to the IDEA.
. See, e.g., Mitchell N. Berman, Conversion Without Baselines: Unconstitutional Conditions in Three Dimensions, 90 Geo. L.Rev. 1 (2001); Lynn A. Baker, The Prices of Rights: Toward a Positive Theory of Unconstitutional Conditions, 75 Cornell L.Rev. 1185, 1186 (1990); Cass R. Sustein, Why the Unconstitutional Conditions Doctrine is an Anochronism (With Particular Reference to Religion, Speech and Abortion), 70 BU L.Rev. 593 (1990); Kathleen M. Sullivan, Unconstitutional Conditions, 102 Harv. L.Rev. 1413 (1989).
. Although Andrew's parents do not press the point, I also reject any claim that the Special Education Law gives Andrew a protectable property interest in obtaining benefits. The Speсial Education Law was enacted to implement the IDEA. As the law’s current regulations unequivocally establish, it follows the IDEA in not giving the parents of disabled children in private school an individually enforceable right to obtain services. See Ed. 1117.03. Thus, state law does not give either Andrew or his parents a protectable property interest in receiving benefits.
. The District of Columbia Circuit follows
Brown. Henderson v. Kennedy,