Peter v. WedlPeter v. Wedl
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),
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");
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,
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,
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,
II.
This Court reviews the district court's grant of summary judgment de novo. See Kraft v. Ingersoll-Rand Co.,
In their complaint, the Westendorps alleged that ISD No. 273's "policies and actions violate Plaintiffs' rights under the equal protection clause of the Fourteenth Amendment to the U.S. Constitution." Compl. (July 26, 1997) p 51, reprinted in J.A. at 29. We conclude that the district court erred in granting summary judgment against the Westendorps on this claim.
Prior to the district court's injunction against the enforcement of Minnesota Rule 3525.1150 and the rule's subsequent amendment, Minnesota Rule 3525.1150 explicitly discriminated against children who attended private religious schools. While children who attended private nonreligious schools could receive government-funded special education services directly at their private schools, students like Aaron could not. Government discrimination based on religion violates the Free Exercise Clause of the First Amendment, see Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,
"[I]f the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral, and it is invalid unless it is justified by a compelling interest and is narrowly tailored to advance that interest." Lukumi,
If ISD No. 273 denied a paraprofessional to Aaron Westendorp at Calvin Christian School because of Minnesota Rule 3525.1150's unconstitutional distinction between private religious schools and private nonreligious schools, or otherwise because of the religious nature of Calvin Christian School, then ISD No. 273's action is illegal and the plaintiffs are entitled to the relief that they seek. ISD No. 273 conceded that it relied on Minnesota Rule 3525.1150 when it denied services to Aaron at Calvin Christian School, see Kodrich Aff. p 6, reprinted in J.A. at 152-53 (Minnesota Rule 3525.1150 was an "independent rationale for the School District's policy"), and further conceded that Minnesota Rule 3525.1150 prevented it from providing services to Aaron at Calvin Christian School. See Kodrich Dep. at 68-69, reprinted in J.A. at 453-54. ISD No. 273 nevertheless contends that in denying services to Aaron it "followed its long-standing policy, which it maintains today, of not providing direct, on-site special education and related services at private schools, regardless of their religious or secular orientation." Appellee's Br. at 3.
ISD No. 273's invocation of a "long-standing policy" rings hollow in light of its actual practice of providing services to disabled children at private nonreligious preschools and at home schools. Indeed, ISD No. 273's alleged policy has not been used to deny students at private nonreligious schools paraprofessional services, and appears to manifest itself only when disabled children at private religious schools request these services. While ISD No. 273 has alleged that it created its policy to ensure the quality and integration of services and to contain costs, see Kodrich Aff. pp 3-5, reprinted in J.A. at 150-52, this appears to be a mere ad hoc rationalization of an irrational practice. ISD has not attempted to explain how the goals of its alleged policy are served by denying services to students at private religious schools but allowing these services to students at home schools or at private nonreligious preschools, and there is no evidence that any of these goals are furthered by denying Aaron a paraprofessional at Calvin Christian School. It is undisputed that the cost to ISD No. 273 is the same whether it funds a full-time, one-on-one paraprofessional for Aaron at Calvin Christian School or at a public school, and ISD No. 273 has not argued that the services of a paraprofessional would be of a lower quality at Calvin Christian School than if they were provided by the same paraprofessional at a public school, or that the integration of Aaron's services would somehow be impaired at Calvin Christian School. Indeed, Kodrich admitted that she knew "[v]ery little" about Aaron's disabilities, Kodrich Dep. at 50, reprinted in J.A. at 435, and she expressed no knowledge of the opportunities offered by Calvin Christian School.
Viewed in its entirety, the evidence in this case strongly suggests that ISD No. 273's policy is a mere pretext for religious discrimination. Cf. Lukumi,
III.
The Westendorps also appeal the district court's grant of summary judgment on their claim under IDEA. IDEA is designed to encourage states to develop special education programs for disabled students. In return for federal funding, IDEA requires participating states to have "in effect a policy that assures all children with disabilities the right to a free appropriate public education."
On June 4, 1997, three months after the district court granted summary judgment against the Westendorps on their IDEA claim, comprehensive amendments to IDEA became law. See Individuals with Disabilities Education Act Amendments of 1997, Pub.L. No. 105-17, 111 Stat. 37 (1997). In amending IDEA, Congress substantially limited the rights of disabled children enrolled by their parents in a private school. See
We must address, however, whether ISD No. 273 engaged in violations of IDEA as it existed prior to its amendment in 1997. Because "the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one," South Dakota v. Yankton Sioux Tribe,
IDEA had the "goal of providing a free appropriate public education for all children with disabilities."
The pre-amendment version of IDEA required participating states to provide special education services to private school students. Disabled students enrolled by the state in private schools were entitled to publicly-funded special education services "at no cost to their parents or guardian,"
In implementing IDEA, the Department of Education promulgated regulations requiring school districts to "provide special education and related services designed to meet the needs of private school children with disabilities residing in" their jurisdictions.
Several courts have considered whether the pre-amendment version of IDEA entitled a disabled student enrolled by his parents in a private school to publicly-funded services at the private school. In Fowler v. Unified School District No. 259,
[W]e are faced here with the question of whether an individual disabled child, who requires an individualized service which only benefits him if it is provided to him on-site, throughout his educational day, is entitled to that individualized service at the private school he has chosen to attend.
We conclude that, in such a situation, the District must pay for that service an amount up to, but not more than, the average cost to the District to provide that same service to [similarly-disabled] students in the public school setting.
Id. at 807-08. On remand from the Supreme Court, the Tenth Circuit held that the 1997 amendments to IDEA did not affect a disabled student's rights under the pre-amendment version of IDEA, and reinstated its earlier analysis. See Fowler,
In Russman ex rel. Russman v. Sobol,
are more consistent with mandatory entitlements than with discretionary authority. Where the cost of special services does not vary with where they are provided, the IDEA and regulations regarding voluntary private school students make little sense if such services may be made available only in the public schools. The statute and regulations require that necessary services be provided to disabled private school students according to their needs rather than the name of their school, and state that such services must be "comparable in quality, scope, and opportunity for participation" to those offered to public school students.
Id. at 1056-57 (citation omitted). On remand, however, the court held that "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." Russman,
Other courts, however, held that pre-amendment IDEA did not require a school district to provide services to parentally-enrolled disabled students at private schools. See K.R. ex rel. M.R. v. Anderson Community Sch. Corp.,
We are persuaded that "Congress clearly intended that disabled students voluntarily placed in a private school by their parents [were] to be active participants in and beneficiaries of programs established under the IDEA." Fowler,
Under the plain language of IDEA and its implementing regulations, Aaron was entitled to receive services as a private school student. Because of the nature of his disability, Aaron required one-on-one assistance from a paraprofessional throughout his school day. Accordingly, off-site assistance could not meet his special education needs if Aaron were to remain a private school student. While school districts "can and must have considerable discretion in determining how best to serve disabled students," Fowler,
ISD No. 273's denial of all services to Aaron at Calvin Christian School was not "comparable" to offering direct services to students at a public school; rather, comparable services would have included the services of a paraprofessional. See Russman,
Because we hold that ISD No. 273 violated Aaron's rights under IDEA by denying him a paraprofessional at Calvin Christian School, we must remand to the district court for a determination of the proper scope of relief. The parties have stipulated to nominal damages of one dollar. See Stipulation (Aug. 29, 1997) at 2, reprinted in J.A. at 629. While the Westendorps continue to seek injunctive relief for this violation, "[t]he remedy of an injunction is preventive and looks only to the future[, and] can not be invoked for the purpose of punishment for wrongful acts already committed." Minneapolis & St. Louis Ry. Co. v. Pacific Gamble Robinson Co.,
IV.
Finally, the Westendorps argue that, even if ISD No. 273's actions were not motivated by religious animus, its refusal of a paraprofessional to Aaron at Calvin Christian School violates the constitution by conditioning the receipt of generally available government services on the Westendorps' foregoing of a constitutional right. It is undisputed that Aaron has the right to receive special education services if he attends a public school. It is also clear that the Westendorps have the constitutional right to choose the education that Aaron shall receive. See Pierce v. Society of Sisters,
While "the government may not deny a benefit to a person because he exercises a constitutional right," Regan v. Taxation With Representation of Wash.,
In light of our remand on other bases, however, we need not reach this issue. See Clinton v. Jones,
V.
We reverse the district court's grant of summary judgment to ISD No. 273, and we remand for a factual determination of whether ISD No. 273's denial of services to Aaron Westendorp at Calvin Christian School was motivated by religious animus. In addition, we remand this matter to the district court for a determination of the proper relief to the plaintiffs for the defendant's past violation of IDEA.
ROSS, Circuit Judge, dissenting.
I disagree with the majority that the district court erred in granting summary judgment in favor of ISD No. 273, and thus dissent.
As to the Westendorps' religious discrimination claim, the majority believes that the evidence "strongly suggests" that the school district's "long-standing policy, which it maintains today, of not providing direct, on-site special education and related services at private schools, regardless of their religious or secular orientation" is a "mere pretext for religious discrimination." Maj. Op. at 997. To me, the fact that the school district has provided special education services at a nonreligious private preschool and to a home- schooled student does not raise an inference that it has discriminated on the basis of religion in refusing to provide on-site services in the K-12 classroom setting, which is the issue in this case. Moreover, in concluding there is a disputed issue of fact as to pretext, the majority has improperly engaged in fact finding and ignored the parties' stipulation that "the material facts of this case are not in dispute." Indeed, in the course of its opinion, the majority transforms a finding of a disputed fact into a finding of undisputed fact. On page 16, the majority states that ISD No. 273 "simply denied [Aaron] services at Calvin Christian School because it is a private religious school" and "would have denied services to any disabled student at a private religious school." While it is undisputed that the school district denies on-site services to students at private schools, it is not undisputed that services are denied because of the religious nature of the school.
In addition, the majority's characterization of the school district's policy as "a mere ad hoc rationalization of an irrational policy" ignores the evidence. Maj. Op. at 997. Penny Kodrich, the school district's director of special services, stated that the policy was long-standing and was designed to maintain control over the quality of the district's programs and personnel, foster integrated teamwork and communication between special education and regular staff, and maximize benefits to students based on limited financial resources. Kodrich further stated that if the school district had to provide on-site services at private schools these goals would be frustrated. For example, regarding quality concerns, Kodrich explained that the special services staff work as part of an integrated team with the general education staff and if services were provided at private schools, the school district would have no control over the selection, training, and coordination of private staff members.
Regarding cost considerations, Kodrich explained that the school district "constantly endeavors to provide the maximum educational benefit to a large population of disabled students based on a very limited set of resources." J.A. at 152. She further explained that "[b]y pooling direct special education resources in public school sites the School District can realize economic efficiencies by sharing and integrating resources." Id. In particular, she noted that the services of a paraprofessional "can and are frequently shared by more than one student" and that "[i]f the school district was required to send individual paraprofessionals out to remote sites, the savings realized by these efficiencies would be lost." Id. In addition, Wayne Erickson, manager of the state division of special education, stated that, based on his financial analysis, provision of on-site services to disabled private school students would result in additional expenditures of at least $10,814,027.00 for school districts and $5,882,830.00 for the state. Id. at 144. He also stated that it was impossible to estimate additional costs if school districts provided on-site services at private schools since special education students enrolled in public schools might then choose private schools. Id. at 145. Thus, the majority incorrectly states that "there is no evidence that ISD No. 273 denied services at Calvin Christian School because economies of scale, or geographical considerations, [made] it economically infeasible to provide certain services at private school locations." Maj. Op. at 1001 (internal quotation omitted).
Moreover, and importantly, the majority ignores the Supreme Court's admonition that "courts are not to 'substitute their own notion of sound educational policy for those of the school authorities which they review.' " Fort Zumwalt Sch. Dist. v. Clynes,
I also disagree with the majority's holding that ISD No. 273's conduct violated the IDEA before it was amended in 1997. The pre-amended statute provided that disabled students who were placed in private schools by the state or school district were entitled to "special education and related services ... at no cost to their parents or guardian."
In 1997 Congress amended the statute to make clear 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."
In enacting the 1997 Amendments, Congress merely "clarif[ied] the responsibility of public school districts to children with disabilities who are placed by their parents in private schools." S.Rep. No. 17, 105th Cong. 1st. Sess. 13 (1997). Thus, I believe the amended IDEA applies to all of the Westendorps' IDEA claims and precludes relief. See K.R. ex rel. M.R. v. Anderson Community Sch. Corp.,
Even if the 1997 Amendments are not controlling, I do not believe that the pre-amended IDEA required that a school district provide on-site services to a disabled student who was unilaterally placed at a private school. "The goal of IDEA is to provide access to public education for all handicapped students." Fort Zumwalt Sch. Dist.,
The majority is persuaded by the Tenth Circuit's analysis in Fowler v. Unified Sch. Dist. No. 259,
Unlike the majority and the Tenth Circuit, I agree with the Seventh Circuit that "[w]here the public school makes available the necessary service at a public institution, giving the disabled student a genuine opportunity to participate, and nothing in the record indicates that it has otherwise abused its discretion, the public school has discharged its obligation" under the pre-amended IDEA. Anderson,
In this case, the majority relies on
Thus, the majority's "determination that a full-time instructional assistant was the only 'comparable' alternative ... fail[s] to take into account the discretion afforded public schools in deciding which services to provide." Id. Moreover, and, "not insignificantly," the majority's determination conflicts with the DOE's interpretation of the regulations. Id. at 678. As the majority notes, the DOE's position was that the "regulations d[id] not confer on every parentally-placed child with a disability an individual entitlement to services." Maj. Op. at 1000 n. 2 (internal quotation omitted). Because the DOE's interpretation was not plainly erroneous or inconsistent with the regulations, "it must be given controlling weight." Board of Regents v. Shalala,
In sum, I believe that in providing the services of a paraprofessional to Aaron "at a public site and declining to provide an instructional assistant to a single student in the private school, it is evident that [ISD No. 273] fairly exercised its discretion to consider the number of eligible private school students and their needs in deciding what benefits w[ould] be provided." Anderson,
Notes
Judge Fagg, Judge Loken, and Judge Murphy would grant the suggestion
Although the record reveals an obvious dispute regarding ISD No. 273's motivation for denying Aaron a paraprofessional at Calvin Christian School, the parties stipulated, without providing any recitation of facts, "that the material facts of this case are not in dispute, and that the record before the Court" is complete. Stipulation (Aug. 29, 1997) at 3, reprinted in J.A. at 630. While "stipulations of fact fairly entered into are controlling and conclusive," Sims v. Wyrick,
ISD No. 273 has relied on interpretive letters issued by the Department of Education which contend that "[t]hese regulations do not confer on every parentally-placed child with a disability an individual entitlement to services." Letter to Burch, 23 Individuals with Disabilities Educ. L. Rep. 560, 562 (1995); see also Letter to McConnell, 22 Individuals with Disabilities Educ. L. Rep. 369, 369 (1994) ("parentally-placed children with disabilities do not have an individual entitlement to services"). Because the regulations implementing IDEA were clear that parentally-enrolled private school students with disabilities were entitled to "comparable" services,