JOAN PETER, SARAH PETER, A
by and through her parent and natural guardian,
KRISTA WESTENDORP; DOUGLAS WESTENDORP;
AARON WESTENDORP, a minor, by and through his
parents and natural guardians
KRISTA WESTENDORP AND DOUGLAS WESTENDORP,
ROBERT WEDL, Commissioner, Minnesota
Department of Children, Families and Learning;
ARNE CARLSON, Governor, State of Minnesota;
INDEPENDENT SCHOOL DISTRICT, No. 877, Buffalo, Minnesota,
INDEPENDENT SCHOOL DISTRICT NO. 273,
Appeal from the United States v. District
Court for the District of Minnesota.
Submitted: June 11, 1998
Filed: September 15, 1998
Before BEAM, ROSS, and MAGILL, Circuit
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
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.
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
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
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 "may
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) _ 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. _ 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.
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, 117 S. Ct. 1997, 2016 (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 non-religious
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
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, 117 S. Ct. 2157, 2172 (1997), the plaintiffs
abandoned their RFRA claim. See Order (Aug. 12, 1997) at 4, reprinted
in Appellants’ Addendum at 53. In addition, the Westendorps have abandoned
their state law claims for prospective relief, see Pls.’ Fed. R. App.
P. 28(j) Letter (June 5, 1998) at 1, following the amendment of Minnesota’s
special education provisions. See 1998 Minn. Sess. Law Serv. Ch. 398
(H.F. 2874) art. 2, _ 53(a) (West) (providing that Minnesota law will
no longer "impose requirements that exceed federal law").
This Court reviews the district court’s
grant of summary judgment de novo. See Kraft v. Ingersoll-Rand
Co., 136 F.3d 584, 585 (8th Cir. 1998). Summary judgment
is only proper if, taking the evidence "in the light most favorable
to the nonmoving party, there is no genuine issue of material fact,
and the movant is entitled to judgment as a matter of law." Id. at
"At the summary judgment stage, the court
should not weigh the evidence, make credibility determinations, or
attempt to determine the truth of the matter. Rather, the court’s
function is to determine whether a dispute about a material fact is
genuine . . . " Quick v. Donaldson Co., 90 F.3d 1372, 1376-77
(8th Cir. 1996). "[A] genuine issue of material fact exists
if: (1) there is a dispute of fact; (2) the disputed fact is material
to the outcome of the case; and (3) the dispute is genuine, that is,
a reasonable jury could return a verdict for either party." RSBI
Aerospace, Inc. v. Affiliated FM Ins. Co., 49 F.3d 399, 401 (8th
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 non-religious 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, 508 U.S. 520,
532 (1993) ("the First Amendment forbids an official purpose to disapprove
of a particular religion or of religion in general"), the Free Speech
Clause of the First Amendment, see Rosenberger v. Rector and Visitors
of Univ. of Va., 515 U.S. 819, 830 (1995) ("ideologically driven
attempts to suppress a particular point of view are presumptively
unconstitutional in funding, as in other contexts" (quotations omitted)),
and the Equal Protection Clause of the Fourteenth Amendment. See Native
American Council of Tribes v. Solem, 691 F.2d 382, 384 (8th
Cir. 1982); cf. Romer v. Evans, 517 U.S. 620, 633 (1996) ("Equal
protection of the laws is not achieved through indiscriminate imposition
of inequalities . . . A law declaring that in general it shall be
more difficult for one group of citizens than for all others to seek
aid from the government is itself a denial of equal protection of
the laws in the most literal sense." (quotations and citations omitted))."[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, 508 U.S. at 533 (citation omitted).
The only compelling interest identified
by the State of Minnesota to justify Minnesota Rule 3525.1150 was
that the rule was necessary to avoid a violation of the Establishment
Clause. See Tr. of Mot. Hr’g (Nov. 8, 1996) at 35-36, reprinted in
J.A. at 190-91.
This position was highly questionable
in light of the Supreme Court’s decision in Zobrest v. Catalina
Foothills School District, 509 U.S. 1, 10 (1993) (holding that
the government can provide a sign language interpreter to a disabled
student at a private religious school without violating the Establishment
Clause), and the State of Minnesota abandoned this argument following
the Supreme Court’s decision in Agostini, 117 S. Ct. at 2016
(holding that the Establishment Clause was not violated when public
teachers taught non-religious subjects at private religious schools).
Because Minnesota Rule 3525.1150 cannot be justified as a narrowly
tailored means of avoiding a violation of the Establishment Clause,
it violated the plaintiffs’ rights to free exercise of religion, free
speech, and equal protection, and the district court properly enjoined
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
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 non-religious preschools
and at home schools. Indeed, ISD No. 273’s alleged policy has not
been used to deny students at private non-religious 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 "[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, 508 U.S.
at 534 ("The Free Exercise Clause protects against governmental hostility
which is masked as well as overt."). We must therefore reject the
district court’s conclusion that "there is no evidence in the record
that [ISD No. 273] treated children differently on the basis of whether
they attended nonpublic non-religious schools or nonpublic religious
schools, notwithstanding the language of Rule 3525.1150." Order (Aug.
12, 1997) at 6, reprinted in Appellants’ Addendum at 55. Because "[s]ummary
judgment is notoriously inappropriate for determination of claims
in which issues of intent, good faith and other subjective feelings
play dominant roles," Pfizer, Inc. v. Rectifier Corp. (In
re Coordinated Pretrial Proceedings in Antibiotic Antitrust Actions),
538 F.2d 180, 185 (8th Cir. 1976), we may not grant summary
judgment to the Westendorps on this claim, despite the strength of
the evidence suggesting that Aaron has been the victim of invidious
Accordingly, we remand this matter to
the district court for a factual determination of whether ISD No.
273 based its denial of services to Aaron at Calvin Christian School
on its purported religion-neutral policy, or if its denial was based
on the religious animus contained in Minnesota Rule 3525.1150.(1)
(1) 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, 743 F.2d 607, 610 (8th Cir. 1984),
a stipulation that is devoid of facts provides little direction for
this Court. Because there exists in this case a disputed question
of material fact that is not answered by the parties’ stipulation,
summary judgment was improperly granted.
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
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 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 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
In Foley v. Special School District
of St. Louis County, No. 97-2419 (8th Cir. Aug. 14,
1998), this Court held that "the 1997 Amendments expressly provide
that public school agencies are not required to pay the costs of special
education services for a particular child," and that disabled children
and their "parents now have no individual right under IDEA to [specific]
special education and related services . . . so they have no right
to a federal court decree mandating that those services be provided
at a particular location." Id. (slip op. at 4-5).
Accordingly, Aaron has no right under
the 1997 Amendments to receive ISD No. 273-funded services at Calvin
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, 118 S. Ct. 789, 803 (1998) (quotations
omitted), we reject ISD No. 273’s argument that our interpretation
of the pre-amendment version of IDEA is controlled by the 1997 amendments.
See Fowler v. Unified Sch. Dist. No. 259, 128 F.3d 1431, 1436
(10th Cir. 1997) (1997 amendments to IDEA are to be applied
"only to events occurring after [their] effective date").
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., 22 F.3d 228, 233
n.10 (9th Cir. 1994).
States receiving grants under IDEA had
to "provide that all children residing within the jurisdiction of
the local educational agency or the intermediate educational unit
who are disabled, regardless of the severity of their disability,
and are in need of special education and related services will be
identified, located, and evaluated," 20 U.S.C. _ 1414(a)(1)(A) (1994),
and had to "establish a goal of providing full educational opportunities
to all children with disabilities." 20 U.S.C. _ 1414(a)(1)(C) (1994).
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,
107 F.3d 797 (10th Cir.), vacated and remanded for reconsideration
in light of 1997 Amendments to IDEA, 117 S. Ct. 2503, and on remand,
128 F.3d 1431 (10th Cir. 1997) (reaffirming prior decision),
the Tenth Circuit held "that the IDEA and its regulations create no
automatic right to any and all special education services at a private
school site for all students voluntarily attending such a school."
Id. at 805. However, the court went on to "reject the proposition
that the District has unfettered discretion to simply deny [services
to a disabled student at a private school], and claim to have fulfilled
its obligations under the IDEA by offering those services to [the
student] at a public school." Id. at 806. The court explained:
We 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.
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, 128 F.3d
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
In Russman ex rel. Russman v. Sobol,
85 F.3d 1050, 1056 (2d Cir. 1996), vacated and remanded for reconsideration
in light of 1997 Amendments to IDEA sub nom. Board of Educ. of
the Enlarged City Sch. Dist. v. Russman ex rel. Russman, 117 S.
Ct. 2502 (1997), and on remand sub nom. Russman v. Mills, No.
95-7756, 1998 WL 417452 (2d Cir. July 24, 1998), the Second Circuit
held that pre-amendment IDEA and its implementing regulations 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, 1998 WL 417452, at 1.
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., 81 F.3d 673, 678 (7th
Cir. 1996), vacated and remanded for reconsideration in light of 1997
Amendments to IDEA, 117 S. Ct. 2502, and on remand, 125 F.3d 1017
(7th Cir. 1997) (reaffirming prior decision), cert. denied,
118 S. Ct. 1360 (1998); Cefalu ex rel. Cefalu v. East Baton Rouge
Parish Sch. Bd., 117 F.3d 231, 233 (5th Cir. 1997)
(reconsidering prior opinion in light of 1997 amendments to IDEA,
and holding that school district was not required to provide services
to a disabled student at a private school).
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, 107 F.3d at
805 (quotations omitted). IDEA was clear that, "consistent with the
number and location of" disabled students enrolled by their parents
in private schools, students like Aaron had a right to publicly-funded
special education services. See 20 U.S.C. _ 1413(a)(4)(A).
While Aaron’s rights may not have been
identical to those of a disabled child enrolled in a private school
by the state, see Fowler, 107 F.3d at 805, he was nevertheless
entitled to special education services that were "comparable in quality,
scope, and opportunity for participation" to those services provided
to public school students. 34 C.F.R. _ 76.654(a).(2)
(2) ISD No. 273 has relied on interpretive
letters issued by the Department of Education which contend that "these
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, 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.,
50 F.3d 522, 529 (8th Cir. 1995) (although we accept agency
interpretations of ambiguous regulations unless they are clearly erroneous,
"we are not at liberty to allow the agency to imply language that
does not exist in the regulation" (quotations omitted)); see also
Newton v. Chater, 92 F.3d 688, 693 (8th Cir. 1996)
("While courts must give deference to an agency’s interpretation of
its own regulations, courts are not bound by them and they are not
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, 107 F.3d at 807, there is nothing in this
record to suggest that ISD No. 273 ever considered how "best" to serve
Aaron. Rather, it simply denied him services at Calvin Christian School
because it is a private religious school. Here, 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."
Id. at 807 n.11. Rather, ISD No. 273 would have denied services to
any disabled student at a private religious school, regardless of
the circumstances of the individual case.
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, 85 F.3d at 1056 ("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.").
ISD No. 273 did not "provide special
education and related services designed to meet the needs of private
school children with disabilities residing in [its] jurisdiction,"
34 C.F.R. _ 300.452, but instead only agreed to meet Aaron’s needs
once he became a public school student. This action is not supported
by IDEA or its implementing regulations, and it violated Aaron’s rights
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, "the 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., 181 F.2d
812, 814 (8th Cir. 1950).
However, the Westendorps have cited to
authority which suggests that, under IDEA, equitable relief for past
injuries may nevertheless be proper. See Florence County Sch. Dist.
Four v. Carter ex rel. Carter, 510 U.S. 7, 15-16 (1993) (citing
20 U.S.C. _ 1415(e)(2)). We leave the question of a proper remedy
in this case to the "broad discretion" of the district court. Id.
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
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, 268 U.S. 510, 534-35 (1925) (discussing "the
liberty of parents and guardians to direct the upbringing and education
of children under their control," which "excludes any general power
of the State to standardize its children by forcing them to accept
instruction from public teachers only"); see also Wisconsin v.
Yoder, 406 U.S. 205, 233-34 (1972).
If the Westendorps exercise their right
to send Aaron to the school of their choice, however, ISD No. 273
will not provide special education services to Aaron. See Kodrich
Dep. at 114, reprinted in J.A. at 499. The Westendorps therefore argue
that ISD No. 273 has unconstitutionally conditioned their receipt
of a generally available right upon their forbearance of a constitutional
right. See, e.g., Thomas v. Review Bd. of the Ind. Employment Sec.
Div., 450 U.S. 707, 717-18 (1981) ("Where the state conditions
receipt of an important benefit upon conduct proscribed by a religious
faith, or where it denies such a benefit because of conduct mandated
by religious belief, thereby putting substantial pressure on an adherent
to modify his behavior and to violate his beliefs, a burden upon religion
exists. While the compulsion may be indirect, the infringement upon
free exercise is nonetheless substantial.").
While "the government may not deny a
benefit to a person because he exercises a constitutional right,"
Regan v. Taxation With Representation of Wash., 461 U.S. 540,
545 (1983), the government’s "decision not to subsidize the exercise
of a fundamental right does not infringe the right, and thus is not
subject to strict scrutiny." Id. at 549.
Indeed, the Supreme Court has been extremely
hesitant to suggest that private school students have a constitutional
entitlement to the same benefits that are given to public school students
by the government. See, e.g., Norwood v. Harrison, 413 U.S.
455, 462 (1973) ("In Pierce, the Court affirmed the right of
private schools to exist and to operate; it said nothing of any supposed
right of private or parochial schools to share with public schools
in state largesse, on an equal basis or otherwise. It has never been
held that if private schools are not given some share of public funds
allocated for education that such schools are isolated into a classification
violative of the Equal Protection Clause. It is one thing to say that
a State may not prohibit the maintenance of private schools and quite
another to say that such schools must, as a matter of equal protection,
receive state aid.").
In light of our remand on other bases,
however, we need not reach this issue. See Clinton v. Jones,
117 S. Ct. 1636, 1642 n.11 (1997) ("If there is one doctrine more
deeply rooted than any other in the process of constitutional adjudication,
it is that we ought not to pass on questions of constitutionality
unless such adjudication is unavoidable." (quotations and alteration
Accordingly, we leave this matter for
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 9. 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 9. 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
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
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 16 (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,
119 F.3d 607, 610 (8th Cir. 1997) (quoting Board of
Educ. v. Rowley, 458 U.S.176, 206 (1982), cert. denied, 118 S.
Ct. 1840 (1998)). This is so because "[c]ourts ‘lack the specialized
knowledge and experience necessary to resolve persistent and difficult
questions of educational policy[.]’ " Id. at 613 (quoting Rowley,
458 U.S. at 208). Especially difficult questions facing school districts
concern "implementing the policy of educating all disabled students"
in light of limited financial resources, and "the sufficiency of that
education must be evaluated in light of the available resources."
Id. at 612.
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)(i) (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 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.A. _1412(a)(10)(C)(i)
(West Supp. 1998).
As the majority concedes, "Aaron has
no right under the 1997 Amendments to receive ISD No. 273-funded services
at Calvin Christian School." Maj. Op. at 11 (citing Foley v. Special
Sch. Dist. of St. Louis County, No. 97-2419, 1998 WL 473146, at
*2 (8th Cir. Aug. 14, 1998) ("1997 Amendments expressly
provide that public school agencies are not required to pay the cost
of special education services for a particular child")).
In enacting the 1997 Amendments, Congress
merely "clarified 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., 81 F.3d 673 (7th
Cir. 1996), vacated and remanded for reconsideration in light of 1997
Amendments to IDEA,117 S. Ct. 2502, and on remand, 125 F.3d 1017,
1019 (7th Cir. 1997) (1997 Amendments were "legislative
clarification"), cert. denied, 118 S. Ct. 1360 (1998); Donald B.
v. Board of Sch. Comm’r, 117 F.3d 1371, 1373 n.2 (11th
Cir. 1997) (1997 Amendments "do not alter substantively" _ 1413(a)(4));
Cefalu ex rel. Cefalu v. East Baton Rouge Parish Sch. Bd.,
117 F.3d 231, 232 (5th Cir. 1997) (same).
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., 119 F.3d at 612. "IDEA does not require that a school
either maximize a student’s potential or provide the best possible
education at public expense." Id. "The statute only requires that
a public school provide sufficient specialized services so that the
student benefits from his education." Id.
Moreover, this court has held that the
pre-amended IDEA and "regulations promulgated thereunder g[a]ve the
school district discretion in selecting the location where it w[ould]
educate a handicapped child." Schuldt v. Mankato Ind. Sch. Dist.
No. 77, 937 F.2d 1357, 1361 (8th Cir. 1991), cert.
denied, 502 U.S. 1059 (1992).
It is undisputed that ISD No. 273 provides
Aaron a paraprofessional at a public school, and his parents have
not questioned the quality of the services that Aaron receives.
The majority is persuaded by the Tenth
Circuit’s analysis in Fowler v. Unified Sch. Dist. No. 259,
107 F.3d 797, vacated and remanded for reconsideration in light of
1997 Amendments to IDEA, 117 S. Ct. 2503, and on remand, 128 F.3d
1431 (10th Cir. 1997). In Fowler, the Tenth Circuit
"recognized that the IDEA and its regulations afford considerable
discretion to school districts to determine the manner and extent
of services to be provided" to disabled students in private schools.
107 F.3d at 806. Although the court did not believe that the school
district was obligated to provide on-site services of a full-time
interpreter at a private school, id, it held that a school district
had to "pay for that service an amount up to, but not more than, the
average cost to the District to provide that same service to hearing-impaired
students in the public school setting." Id. at 807-08. However, the
court acknowledged that its holding appeared to conflict with IDEA
regulations, id. at 808 n.12, the interpretation of the Department
of Education (DOE), id. at 804-05, and the Seventh Circuit’s decision
in Anderson, id. at 806.
Unlike the majority and the Tenth Circuit,
I agree with the Seventh Circuit that "where 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, 81 F.3d at 680; see also Goodall v. Stafford
County Sch. Bd., 930 F.2d 363, 369 (4th Cir.) (school
district fulfilled its statutory obligation by offering disabled student
services of speech interpreter at public school), cert. denied, 502
U.S. 864 (1991).
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." 81 F.3d at 679.
Rather, "read in light of the statutory
scheme . . . and the other regulations, . . . the only reasonable
interpretation of Section 76.654(a) is that the comparability requirement
was limited to the program benefits that [a district] provide[d]."
Anderson, 81 F.3d at 679 (internal quotation omitted). In other
words, because public school districts had "discretion over what benefits
to provide[,]" the regulation only required that "when benefits [we]re
provided . . . that they [would] be comparable to benefits for public
school students." Id.
Thus, the majority’s "determination that
a full-time instructional assistant was the only ‘comparable’ alternative
. . fails 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 did not confer on every parentally-placed
child with a disability an individual entitlement to services." Maj.
Op. at 15 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,
53 F.3d 940, 943 (8th Cir. 1995).
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 would be provided." Anderson,
81 F.3d at 680. Because "there is no evidence here that ISD No. 273
eschewed its responsibility under the IDEA," id., and because I believe
that the district court properly rejected the Westendorps’ other claims,
I would affirm the grant of summary judgment in favor of ISD No. 273.
I thus dissent.
A true copy.
CLERK, U.S. COURT OF APPEALS, EIGHTH
Decisions from the Court of Appeals of the Eighth Circuit can be