Lead Opinion
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 Wes-tendorps 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 qua-driparesis, 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 nonpublie school if that nonpublic school is a religious or sectarian school.” Erickson Dep. (May
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) ¶ 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 schools] regardless of whether they are religious or secular in nature.
Id. ¶ 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 Pis.’ 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,
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, — U.S. -, -,
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) ¶ 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
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. ¶ 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. ¶¶ 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 “[vjery little” about Aaron’s disabilities, Kod-rich 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, 508 U.S. at 534,
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.” 20 U.S.C. § 1412(1) (1994). While the parties agree that Aaron has a disability and that he is entitled under IDEA to the services of a paraprofessional paid by ISD No. 273, they disagree on whether IDEA entitles him to those services at Calvin Christian School.
On June 4, 1997, three months after the district court granted summary judgment against the Westendorps on them 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 20 U.S.C. A. § 1412(a)(10)(C)(i) (West Supp. 1998) (IDEA will “not require a local educational agency to pay for the cost of edu-i cation, including special education and relat-! ed 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 placej the child in such private school or facility”). In Foley v. Special School Distnct of St. Louis County,
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, — U.S. -, -,
IDEA had the “goal of providing a free appropriate public education for all children with disabilities.” 20 U.S.C. § 1413(a)(2) (1994). “The word ‘public’ is a term of art which refers to ‘public expense,’ whether at public or private schools.” Dreher v. Amphitheater Unified Sch. Dist.,
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,” 20 U.S.C. § 1413(a)(4)(B) (1994), while disabled students enrolled in private schools by their parents were also entitled to participate in publicly-funded special education programs “to the extent consistent with the number and location of children with disabilities in the State who are enrolled in private elementary and secondary schools.” 20 U.S.C. § 1413(a)(4)(A) (1994).
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. 34 C.F.R. § 300.452 (1996). In meeting the needs of disabled students enrolled by their parents in private schools, school districts were required to provide services that were “comparable in quality, scope, and opportunity for participation to the program benefits that the subgrantee provides for students enrolled in public schools.” 34 C.F.R. § 76.654(a) (1996). Consistent with IDEA, the availability of these services was nevertheless limited by the “number and location” of disabled children in the state. 34 C.F.R. § 300.451(a) (1996); see also 34 C.F.R. § 76.651(a)(2) (1996) (school districts “shall provide that opportunity to participate in a manner that is consistent with the number of eligible private school students and their needs”). While some services could be provided to private school students at public schools, school districts were also allowed to provide special education services to students at private schools. See 34 C.F.R. § 76.659(a), (b) (1996).
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 dis
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. 34 C.F.R. § 76.654. Use of the word “comparable” strongly suggests that the provision of services will usually take place outside the public school. Otherwise, the regulation would simply provide that any services for the disabled available at a public school must be open to private 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,
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,
Y.
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.
Notes
. 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 "[tjhese 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 paren-tally-enrolled private school students with disabilities were entitled to "comparable” services, 34 C.F.R. § 76.654(a), we must reject the Department of Education's suggestion that no such entitlement exists. See Shalala v. St. Paul-Ramsey Med. Ctr.,
Dissenting Opinion
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
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.” 20 U.S.C. § 1413(a)(4)(B)© (1994). In contrast, disabled students who were unilaterally placed in private schools by their parents were only entitled to participate in special education programs and services “to the extent consistent with the number and location of’ disabled students within the state. Id. at § 1413(a)(4)(A) (1994).
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
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 KR. 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 34 C.F.R. § 76.654(a) (1996), which required that the benefits a school district provided for private school students be “comparable in quality, scope, and opportunity for participation to” the benefits provided for public school students. However, as explained in Anderson, the regulation was “not by its terms a mandate that private school students shall receive full benefits.”
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,