Opinion by Judge SCHWARZER; Dissent by Judge KLEINFELD.
SCHWARZER, Senior District Judge:
WJM's son, KDM, is a minor who is legally blind and has cerebral palsy. As such, KDM is a "child with disabilities" entitled to special education and related services under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-1485 (1994). Oregon provides such services to children enrolled in public schools. The Oregon administrative regulation leaves it to the discretion of individual school districts whether to provide such services to children enrolled in private school but specifically provides that "such special education and related services shall be provided in a religiously-neutral setting." OAR 581-15-166 (the "regulation").
I. FACTUAL AND PROCEDURAL BACKGROUND
While attending public school, KDM received from the District the services of a vision specialist, physical therapy and special equipment at his school. Motivated by sincerely-held religious beliefs, KDM's parents transferred him to Harbor Baptist Church School ("Harbor Baptist"), a sectarian school. After the transfer, the District continued to supply him with special equipment (braillers, computers and other special equipment) at his new school. However, viewing the Harbor School setting as not religiously-neutral, it no longer supplied the vision specialist at the school. Instead, it provided that service at a fire hall down the street from Harbor Baptist. The adequacy of the service is not in dispute nor is it disputed that it is safe for KDM to travel to and from the fire hall, transportation being provided by the District. The service is provided for approximately ninety minutes twice a week. If this service were provided at Harbor Baptist,
KDM brought this action through his father, WJM, against the District and Norma Paulus, Oregon's Superintendent for Public Instruction, for declaratory and injunctive relief requiring the defendants to place a vision specialist at Harbor Baptist. Plaintiff, in substance, made three claims: First, that defendants' refusal to provide a vision specialist at School violates the IDEA; second, that it violates the Free Exercise and Establishment clauses of the First Amendment; and, third, that it denies plaintiff the equal protection of the laws. Following a bench trial on stipulated facts, the district court entered judgment holding that the IDEA did not require the district to provide services at a private school, but that the Oregon regulation which permits services to be offered private school students only in a religiously-neutral setting violated the Free Exercise, Establishment and Equal Protection Clauses and enjoined its enforcement.
II. THE IDEA DOES NOT REQUIRE THE DISTRICT TO PROVIDE SERVICES AT KDM's PRIVATE SCHOOL
Plaintiff cross-appealed, contending that the IDEA requires the District to provide KDM with services on site at Harbor Baptist. While the IDEA requires states to provide some measure of special education and related services to disabled children in private schools, see 20 U.S.C.A. § 1412(a)(10)(A) and (C) (Supp.1998); see also 34 C.F.R. § 300.403-.452, since its amendment in 1997, the act has specifically provided that "[s]uch services may be provided to children with disabilities on the premises of private, including parochial, schools, to the extent consistent with law." 20 U.S.C.A. § 1412(a)(10)(A)(i)(II) (emphasis added). Every circuit that has considered whether the IDEA as amended in 1997 requires services to be provided on site at a private school has concluded it does not. See Foley v. Special Sch. Dist., 153 F.3d 863, 865 (8th Cir.1998) ("Clare and her parents now have no individual right under IDEA to the special education and related services in question, so they have no right to a federal court decree mandating that those services be provided at a particular location."); Russman v. Board of Educ., 150 F.3d 219, 221-22 (2d Cir.1998) ("[S]tates are required to provide to children voluntarily enrolled in private schools only those services that can be purchased with a proportionate amount of the federal funds received under the program . . . . [The] statute does not require a school district to provide on-site services to a disabled child who is voluntarily enrolled in private school."); Fowler v. Unified Sch. Dist. No. 259, 128 F.3d 1431, 1436-37 (10th Cir.1997) ("[T]he [school district's] sole obligation is to spend on such students . . . `a proportionate amount of Federal funds,'. . . ."); K.R. v. Anderson Community Sch. Corp., 125 F.3d 1017, 1018 (7th Cir.1997) (affirming prior decision, 81 F.3d 673 (7th Cir.1996), that the IDEA does not require provision of services at a private school), cert. denied, ___ U.S. ___, 118 S.Ct. 1360, 140 L.Ed.2d 510 (1998); Cefalu v. East Baton Rouge Parish
III. THE OREGON REGULATION AS APPLIED DOES NOT VIOLATE THE FEDERAL CONSTITUTION
A. The Free Exercise Clause
The narrow question before us is whether the free exercise rights of KDM and his parents were impermissibly burdened by the application of Oregon's regulation, which precludes the District from providing special education services to KDM at the sectarian school he attended. In deciding that question we are guided by the distinction the Supreme Court has recognized in the Establishment Clause context between a statute's invalidity on its face and its invalidity in particular applications. See Bowen v. Kendrick, 487 U.S. 589, 602, 108 S.Ct. 2562, 101 L.Ed.2d 520 (1988); see also Hunt v. McNair, 413 U.S. 734, 742, 93 S.Ct. 2868, 37 L.Ed.2d 923 (1973) (examining only "the transaction presently before [the court]" and not "the statute as a whole"); Zobrest v. Catalina Foothills Sch. Dist., 963 F.2d 1190, 1194 n. 3 (9th Cir.1992) (considering "only the validity of one very specific proposed application of the statutes at issue"), rev'd on other grounds, 509 U.S. 1, 113 S.Ct. 2462, 125 L.Ed.2d 1 (1993). Whatever the impact of the regulation might be in other factually distinct situations, cf. Zobrest, 963 F.2d at 1192 (failure to provide sign-language interpreter in the classroom for plaintiff effectively forced his parents to choose between foregoing a sectarian education or paying for the cost of the interpreter themselves) and Peter v. Wedl, 155 F.3d 992 (8th Cir.1998) (failure to provide spastic quadriplegic student with needed full-time paraprofessional while in school forced choice between foregoing sectarian education or paying for the paraprofessional), this is not a case in which the regulation impinges on plaintiffs' free exercise rights. The parties stipulated that the service provided to KDM at the fire hall down the street from the school twice a week for ninety minutes is in compliance with KDM's statutory individualized education plan, the adequacy of which is not in dispute, and that he could safely travel there-indeed, the vision specialist comes to KDM's school, picks him up and then returns him to his school. Moreover, plaintiffs have stipulated that the vision specialist's services would not be provided in-class at Harbor Baptist but in a separate room. Thus, there is no support for the district court's finding that the regulation forces KDM and his parents to choose between enrolling at Harbor Baptist and receiving special education at the fire hall or enrolling at a nonreligious school and receiving in-class services. In sum, there is no showing that application of the regulation to KDM's case burdens KDM's or his parents' free exercise of their religion.
While the Oregon regulation is not "neutral" because it restricts the provision of services to "religiously-neutral settings," cf. Employment Division v. Smith, 494 U.S. 872, 878, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), as applied here it does not have "the object or purpose . . . [of] suppression of religion or religious conduct." Church of The Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993). KDM is not subjected to "[o]fficial action that targets religious conduct for distinctive treatment." Id. at 534, 113 S.Ct. 2217. His case is wholly unlike Brown v. Borough of Mahaffey, 35 F.3d 846 (3d Cir.1994), involving the deliberate installation by the city of a gate impeding access to a particular revival meeting, or Hartmann v. Stone, 68 F.3d 973 (6th Cir.1995), involving an Army regulation banning all religious practice by day care providers on the base. Nor is Peter v. Wedl analogous because under the
That the regulation, standing alone, "discriminates" against students in religious schools, i.e., treats them differently by denying them state services on the school grounds, does not result in a burden on the free exercise of religion by someone in the position of KDM or his parents. We agree with the court in Strout v. Albanese, 178 F.3d 57 (1st Cir.1999), cert. denied, ___ U.S. ___, 120 S.Ct. 329, ___ L.Ed.2d ___ (1999), upholding, against a Free Exercise challenge, a Maine statute funding grants to private schools for students in communities without public education facilities, provided the schools are nonsectarian. The court distinguished Lukumi because there was no evidence of "a substantial animus . . . that motivated the law in question." Id. at 65. Here, the District's solicitousness in accommodating KDM could hardly be said to reflect a purpose to "suppress religion or religious conduct." The mere fact that the District makes its service to KDM available in the fire hall down the street from his school does not amount to suppression of religion or religious conduct.
We conclude that Oregon's regulation as applied to KDM and his parents does not impose an impermissible burden on their free exercise of religion.
B. The Establishment Clause
The district court also found that the Oregon regulation violates the Establishment Clause because it requires the State Superintendent of Education to decide on a case-by-case basis whether particular settings are religious. Since Zobrest, the mere presence of a public employee on religious premises clearly is not enough to invoke the Establishment Clause. See Zobrest, 509 U.S. at 13, 113 S.Ct. 2462; see also Agostini v. Felton, 521 U.S. 203, 234, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) ("[A]fter Zobrest we no longer presume that public employees will inculcate religion simply because they happen to be in a sectarian environment.").
In Agostini, the Supreme Court held that monthly visits by supervisors to parochial school classrooms to ensure that remedial education provided by public school teachers remained secular did not result in excessive entanglement under the test of Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2125, 29 L.Ed.2d 745 (1971). Agostini is merely the latest in a line of cases rejecting an entanglement claim when applied to the making of judgments by officials overseeing regulatory schemes concerning the religious character of activities. See Hernandez v. CIR, 490 U.S. 680, 696-97, 109 S.Ct. 2136, 104 L.Ed.2d 766 (1989) ("[R]outine regulatory interaction which involves no inquiries into religious doctrine, . . . and no `detailed monitoring and close administrative contact' between secular and religious bodies, does not of itself violate the nonentanglement command." (citations omitted)); Mueller v. Allen, 463 U.S. 388, 403, 103 S.Ct. 3062, 77 L.Ed.2d 721 (1983) (finding no entanglement despite the fact that state officials required to determine whether textbooks were religious); Board of Educ. v. Allen, 392 U.S. 236, 245, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968) (same).
We conclude that the regulation does not offend the entanglement prong of the Lemon test. We need go no further because the district court did not determine that it offended the first (secular purpose), or second (primary effect to advance or inhibit religion), prong of the test.
C. The Equal Protection Clause
The district court held that the regulation violates the Equal Protection Clause because it "has the effect of allowing in-class services to disabled students at non-religious schools while prohibiting in-class services to disabled students at religious
The judgment is REVERSED.
KLEINFELD, Circuit Judge, dissenting:
Under today's decision, the government may discriminate against people based on their exercise of religion, so long as the discriminatory burdens it imposes are not more substantial than requiring a blind child with cerebral palsy to leave his school building and go down the street to a fire hall. That is quite a surprise. Fortunately, that is not the law in most of the rest of the country. The Supreme Court,
The reason that the majority gets the wrong answer is that it asks the wrong
The technical reason why the majority's formulation is wrong is that the majority asks a question developed in cases involving neutral laws of general applicability, even though, as the majority concedes, this case involves a non-neutral law. The substantial burden test has only been applied to free exercise challenges of neutral and generally applicable laws, and it survives Employment Division v. Smith,
When the government, by a law not neutral on its face, treats people of one or all religions better or worse than others, the constitutional question is traditionally formulated so that the answer has to be "No!" Church of Lukumi Babalu Aye, Inc. v. Hialeah
The law at issue in this case, requiring special education to be provided in "a religiously-neutral setting,"
The majority puts us at odds with three other circuits to have considered analogous issues. In the rare cases where states have burdened religion, even insubstantially, by laws that are not neutral, courts
In Brown v. Borough of Mahaffey,
Similarly, in Hartmann v. Stone,
Peter v. Wedl
The majority has not offered any persuasive distinction between this case and the Supreme Court decision in Lukumi or the Third, Sixth, and Eighth Circuit decisions. The majority says Lukumi does not apply here because Oregon's regulation does not have as its object suppression of religion or religious conduct. I am not sure why the majority thinks this is
The majority attempts to limit Lukumi to situations where there is evidence that substantial animus to repress religion motivated the law in question. That is a misreading. Lukumi considered the anti-Santeria animus that motivated an arguably facially neutral law against animal sacrifice as a basis for treating the law as non-neutral. The Court held that "[f]acial neutrality is not determinative .... [because t]he Free Exercise Clause, like the Establishment Clause, extends beyond facial discrimination."
The majority fails to adequately distinguish the Third, Sixth, and Eighth Circuit decisions. The majority claims to distinguish Brown on the ground that it involved the deliberate burdening of a religious exercise, but that distinction is false; the Oregon regulation at issue here intentionally distinguishes between religious and "religiously-neutral" private schools. That is a deliberate burdening of one, and a benefitting of the other. The majority says Hartmann involved a regulation "banning all religious practices by day care providers on the base," but does not say why this should be distinguished from banning all special education services in religious settings. They are the same for this purpose. The majority's attempt to distinguish Peter makes no sense because, there, as here, the regulation allowed special education services only at a religiously "neutral site."
The government can no more discriminate against religion in general than against a particular religion. The claimed interest of Oregon, on which today's majority relies, "in achieving greater separation of church and State than is already ensured under the Establishment Clause of the Federal Constitution—is limited by the Free Exercise Clause ...."
One traditional test of the correctness of a legal proposition is to apply it to a case where we can be confident of the right answer, and see whether the proposition yields the wrong answer. We do the same thing to test a spreadsheet, by entering data where we know what the answer should be to see if the spreadsheet properly generates it. The majority today concludes that so long as the practice of religion is not more substantially burdened than requiring a blind child with cerebral palsy to leave his school building and go down the street for special education services, the government may treat that child less favorably than others on account of
The Free Exercise Clause prohibits government anticlericalism as vigorously as the Establishment Clause prohibits government from preferring a particular religion. Our revolution, unlike, say, the French, Mexican, or Russian, evinced no hostility to any organized religion. Our founding manifesto, the Declaration of Independence, says that people are "endowed by their Creator" with their fundamental rights. The Establishment Clause and the Free Exercise Clause are not in tension, as though one said people can practice their religion, and the other said "but not in public." The Free Exercise and Establishment Clauses complement each other, both advancing the purpose of freedom of religion. One guarantees individuals the right to freely exercise their religion, and the other assures that this free exercise will be unburdened by government preference for a different religion.