ELIZABETH PECK, ,
by her next friend MARK PECK
Plaintiff- Appellee,
v.
LANSING SCHOOL DISTRICT,
Defendant-Appellant.
Nos. 96-2193; 97- 1231
Appeal from the United States District
Court for the Western District of Michigan at Lansing.
No. 95-00112--David W. McKeague, District Judge.
Argued: January 29, 1998
Decided and Filed: June 29, 1998
Before: JONES, DAUGHTREY, and COLE,
Circuit Judges.
COUNSEL ARGUED: Sharon L. LaPointe,
BEEKMAN & LAPOINTE, Okemos, Michigan, for Appellant. Jonathan
E. Maire, STREET, GRUA, MAIRE & YOUNG, Lansing, Michigan,for Appellee.
ON BRIEF: Sharon L. LaPointe,
Michael L. Bevins, BEEKMAN & LAPOINTE, Okemos, Michigan, for Appellant.
Jonathan E. Maire, STREET, GRUA, MAIRE & YOUNG, Lansing, Michigan,
for Appellee.
COLE, J., delivered the opinion of the
court, in which JONES, J., joined. DAUGHTREY, J., (p. 19), delivered
a separate concurring opinion.
OPINION
R. GUY COLE, JR., Circuit Judge.
In this IDEA action, Defendant-Appellant
Lansing (Michigan) School District appeals the district court's grant
of summary judgment in favor of Plaintiff-Appellee Elizabeth Peck,
in which the district court determined that the Lansing School District
could provide physical and occupational therapy to Elizabeth on the
premises of the parochial school that she attends, without excessive
entanglement of government and religion in violation of the Establishment
Clause. For the reasons that follow, we AFFIRM the judgment of the
district court.
I. BACKGROUND
A. Facts
Elizabeth Peck, twelve years of age,
suffers from a rare condition known as osteogenesis imperfecta. Osteogenesis
imperfecta, also known as "brittle bone disease," is genetically transmitted
and affects the connective tissues of the body. Osteogenesis imperfecta
has its primary effect on a person's bones, causing them to be weak
and malformed; affected individuals are generally short in stature
with bowed limbs and suffer from frequent fractures. Osteogenesis
imperfecta patients are of normal intelligence, and prognosis for
a normal life expectancy depends upon the severity of the disease.
Elizabeth's form of osteogenesis imperfecta is classified as "Type
III," which means that she has severe bonefragility, progressive growth
retardation and skeletal deformities. Elizabeth resides with her parents
within the Lansing School District, but voluntarily attends Our Savior
Lutheran School, a parochial school that is located within the district.
Our Savior Lutheran School's stated mission is to provide a Christian
atmosphere that permeates the educational program.
The Individuals with Disabilities Education
Act (IDEA), 20 U.S.C. § § 1401 et seq., was enacted to ensure
a "free and appropriate public education" (FAPE) to qualified, disabled
persons. The IDEA defines FAPE as "special education and related services"
that are provided at public expense and supervision. See 20 U.S.C.
§ 1401(a)(8).1 Elizabeth is considered a "child with
a disability" for purposes of the IDEA, as well as a "handicapped
person" for purposes of the Michigan Mandatory Special Education Act;
thus, Elizabeth qualifies for the services provided by these acts.
The Lansing School District began providing
services to Elizabeth pursuant to the IDEA in 1987. In 1992, when
Elizabeth began attending Our Savior Lutheran School, the Lansing
School District provided a health care aide to Elizabeth on the premises
of Our Savior Lutheran School each school day from 1:30 to 2:00 p.m.
to assist Elizabeth in afternoon toileting.
Additionally, the Lansing School District
provided a teacher consultant to visit Our Savior Lutheran School
once monthly to discuss Elizabeth's progress and school adjustment
skills with her teachers. The Lansing School District further provided
physical therapy (PT) and occupational therapy (OT) to Elizabeth at
her home twice weekly.
In June 1994, the Pecks met with the
Lansing School District to develop an ndividualized Educational Plan
(IEP), a plan for Elizabeth for the 1994-95 school year as required
by the IDEA. The Pecks and the Lansing School District agreed on the
type and the amount of services, as well as the goals and objectives
set out in the IEP.
The Pecks requested that the Lansing
School District provide Elizabeth's PT and OT at Our Savior Lutheran
School rather than their home, preferably during her scheduled physical
education period. The Pecks' request was based on their assertion
that the provision of PT and OT to Elizabeth at their home disrupted
Elizabeth's daily schedule. When the therapy was provided in the afternoon,
Elizabeth was forced to either leave school early or forego doing
her homework or engage in other after-school activities; when the
therapy was provided in the morning before school, Elizabeth's sleep
patterns were disrupted.
The Pecks therefore contended that the
Lansing School District must provide Elizabeth's PT and OT at Our
Savior Lutheran School, because at that time, the IDEA required a
school district to provide benefits to private school students with
disabilities which are comparable to the benefits provided for students
enrolled in public schools.2 Thus, because students in
public schools could receive PT and OT at their schools, Elizabeth
also should be able to receive those services at her school. The Lansing
School District refused the Pecks' request, stating that the Establishment
Clause of the First Amendment to the United States Constitution precluded
its provision of those services at Our Savior Lutheran School, because
provision of these services at a parochial school would constitute
excessive entanglement of government and religion.
B. Procedural History
The Pecks then requested a hearing, as
provided by the IDEA, see 20 U.S.C. § 1415(f), regarding whether
the Establishment Clause precluded the Lansing School District from
providing PT and OT to Elizabeth at Our Savior Lutheran School. Following
the hearing, the local hearing officer, Vicki Wozniak, issued a decision
on April 29, 1995, determining that:
1. Our Savior Lutheran School
would benefit by having OT and PT services provided on-site.
2. OT and PT services contain an "instructional
component." 3
3. Entanglement between government
and religion would be excessive.
4. Elizabeth would receive the benefit
of the service if the Lansing School District provided it off-site.
She has benefitted from the service provided to her at home.
5. "The issue of entitlement will not
be used to decide this case."
6. Elizabeth would receive a FAPE if
the Lansing School District provided the services off-site.
7. The services should "on a legal
basis" be provided off-site since they have an instructional component.
The Lansing School District can provide the services off-site so
that a FAPE is provided.
8. Districts should decide, on a case
by case basis, which services they can provide off-site, to avoid
unnecessary, and thus excessive, government entanglement with religion.
Based on these conclusions, Wozniak determined
that the Lansing School District could not provide PT and OT services
at a parochial school such as Our Savior Lutheran School, because doing
so would violate the Establishment Clause. Accordingly, Wozniak concluded
that the Lansing School District must provide Elizabeth's PT and OT
at a religiously-neutral site.
The Pecks appealed Wozniak's decision
to the Michigan Department of Education. State Hearing Officer William
P. Sosnowsky affirmed Wozniak's decision; however, Sosnowsky overruled
Wozniak's conclusion that PT and OT were instructional services, instead
finding that PT and OT were auxiliary services. Sosnowsky nonetheless
upheld Wozniak's determination, finding that neither instructional
nor auxiliary services could be provided at a parochial school without
violating the Establishment Clause.
Thereafter, the Pecks filed suit in the
United States District Court for the Western District of Michigan,
asserting violations of the IDEA, the Michigan Mandatory Special Education
Act, 42 U.S.C. § 1983, the Religious Freedom Restoration Act,
the Michigan Civil Rights Act, and the Michigan School Code. With
respect to their IDEA claim, the Pecks contended that the Lansing
School District's refusal to provide PT and OT to Elizabeth at Our
Savior Lutheran School violated the IDEA. The Lansing School District
filed a counterclaim, alleging that Sosnowsky erred in overruling
Wozniak's findings that PT and OT were instructional services. Both
parties thereafter sought summary judgment.
Upon review of the motions, the district
court determined that summary judgment could not be granted to either
party because the record was not sufficiently developed to determine
the following issues: how and under what circumstances could the services
be provided at Our Savior Lutheran School; what possible issues of
entanglement would arise from the provision of the services at the
school; where, when and how the services could be provided off- site;
and the potential impact upon Elizabeth in providing the services
off- site. The parties agreed that the case should be remanded to
Wozniak for additional fact finding.
Wozniak held hearings on July 19, July
24, and August 1, 1996, and filed supplemental findings of fact on
August 4, 1996.
Among other findings, Wozniak concluded
that there were four possible issues of entanglement between government
and religion arising from the Lansing School District's provision
of PT and OT services at Our Savior Lutheran School:
(1) the increased time necessary
for Lansing School District's supervision of staff;
(2) the need for additional contact
between the Lansing School District and Our Savior Lutheran School;
(3) the possibility of Lansing School
District staff being uncomfortable during religious activities and
unconsciously modeling the observed religious behavior; and
(4) the possibility of PT and OT staff
being seen as employees of Our Savior Lutheran School.
After consideration of the additional findings
of fact, the district court heard the arguments of the parties on their
motions for summary judgment on August 12, 1996. Following the arguments,
the district court orally granted the Pecks' motion for summary judgment
on their IDEA claim and granted the Lansing School District's motion
for summary judgment on the Pecks' claims under the Religious Freedom
Restoration Act and 42 U.S.C. § 1983. Finally, the district court
dismissed the Pecks' state law claims without prejudice, finding the
claims to be moot.4
In its ruling, the district court expressly
determined that it did not consider the issue of Elizabeth's entitlement
toservices, stating that "the sole issue before the hearing officer
[Wozniak] relating to the Individualized Education Plan was where
those services could legally be performed. . . . Accordingly, the
issue before the court . . . is limited to the location of these services
under the IDEA."
The district court determined that the
provision of PT and OT at Our Savior Lutheran School would not constitute
excessive entanglement between government and religion. After considering
the four possible types of entanglement identified by Wozniak, the
district court concluded that "any minimal entanglement that might
exist in this case is not unnecessary and thus not excessive under
the establishment clause under the facts of this case." The district
court's order provided that Our Savior Lutheran School would be responsible
to transport Elizabeth to its school library for PT and OT services,
so that Lansing School District employees would not have to enter
the classrooms at the parochial school.
The district court followed with a written
order setting forth its conclusions, stating that "the Defendant Lansing
School District shall provide on a regular basis the physical therapy
and occupational therapy services called for in the Individualized
Educational Program (IEP) developed for plaintiff in June 1996 5 .
. . [and] shall provide said services in the library of Our Savior
Lutheran School. . . ." The Lansing School District then filed a timely
notice of appeal of the district court's order, docketed as No. 96-2193.
C. Additional Procedural History
After the Lansing School District filed
its notice of appeal, a procedural difficulty arose. During the preparation
of the joint appendix for the appeal, the Lansing School District
became aware that the entire administrative record had never been
properly filed with the district court. The Lansing School District
contacted the Pecks, and then filed a motion for relief from judgment
- in which the Pecks joined - based upon the fact that the district
court did not consider the entire administrative record. At the same
time, the Lansing School District filed a motion for remand with this
court, pursuant to the procedures set forth in First Nat'l Bank
v. Hirsch, 535 F.2d 343 (6th Cir. 1976).
The district court issued an order certifying
that it was not inclined to grant the motion for relief from judgment.
Thereafter, Lansing School District filed a motion for rehearing with
respect to that order and, in addition, filed the remainder of the
administrative record that it had highlighted to indicate the portions
that it believed to be "material." The district court issued an order
on January 31, 1997, denying the motion for rehearing, and stating
that it considered the administrative record that had been filed and
found nothing to indicate that the district court should alter or
amend its judgment. The Lansing School District then filed a timely
notice of appeal of the district court's order denying its motion
for rehearing, docketed as No. 97-1231. The appeals were consolidated
for purposes of briefing and submission and are now ripe for consideration.
II. STANDARD OF
REVIEW
We review a grant of summary judgment
de novo, using the same standards as those employed by the district
court. See Peoples Bank & Trust Co. v. Aetna Cas. & Sur.
Co., 113 F.3d 629, 633 (6th Cir. 1997). Under the IDEA, a district
court uses a "modified de novo" standard for reviewing state administrative
determinations. Doe v. Metropolitan Nashville Public Schools,
133 F.3d 384, 386 (6th Cir. 1998) (citing Doe v. Board of Educ.,
9 F.3d 455, 458 (6th Cir. 1993) and applying Board of Educ. v. Rowley,
458 U.S. 176, 201 (1982)), petition for cert. filed, 66 USLW 3750
(May 13, 1998).
This standard involves a de novo review,
but requires that the district courts "`give due weight to the state
administrative proceedings in reaching its decision.'" Id.
(quoting Doe, 9 F.3d at 458). Therefore, a reviewing courtmust
give a hearing officer's decision proper consideration and cannot
substitute its own notions of "sound educational policy" for those
of the school authorities. Rowley, 458 U.S. at 206.
"Due weight" has never been definitively
defined in this circuit, but we have recently stated what due weight
does not mean. Due weight does not mean "that the district court can
simply adopt the state administrative findings without an independent
re-examination of the evidence." Metropolitan Nashville Public
Schools, 133 F.3d at 387.
III. ANALYSIS
The Lansing School District has filed
two notices of appeal in this case, an appeal of the district court's
grant of summary judgment to the Pecks on their IDEA claim (No. 96-2193)
and an appeal of the district court's order that denied rehearing
of the district court's order certifying that it was not inclined
to grant the Lansing School District's motion for relief from judgment
(No. 97-1231). We begin with the latter appeal.
A. Failure to Consider the Entire
Administrative Record
In the context of appeal No. 97-1231-
the Lansing School District's appeal of the district court's order
that denied rehearing of its order certifying that it was not inclined
to grant the Lansing School District's motion for relief from judgment
- the Lansing School District argues that the district court's failure
to consider the entire administrative record constitutes reversible
error.6 At the time the district court entered the order,
jurisdiction of the case was vested in this court. It is well settled
that the filing of a notice of appeal operates to transfer jurisdiction
of a case to the court of appeals; the district court is thereafter
without jurisdiction. See, e.g., Hogg v. United States, 411
F.2d 578 (6th Cir. 1969).
In the present case, the Lansing School
District correctly filed its motion for relief from judgment in the
district court and a motion for remand in this court, pursuant to
the procedures set out in First Nat'l Bank v. Hirsch, 535 F.2d
343 (6th Cir. 1976). However, the district court certified that it
was not inclined to grant the motion, so this court never remanded
the case to the district court. Thereafter, the Lansing School District
filed a motion for rehearing of the district court's certification
in the district court. In response, the district court issued a written
decision, denying the motion for rehearing. However, jurisdiction
rested solely with this court at the time that the district court
attempted to rule on the motion for rehearing. Because the district
court was without jurisdiction to enter the order, the district court's
order was without effect and cannot serve as the basis of an appeal.
Accordingly, we dismiss that appeal and the issue raised therein.
B. District Court's Grant of Summary
Judgment
The Lansing School District contests
the district court's grant of summary judgment in favor of the Pecks
on their IDEA claim, in which the district court determined that the
Lansing School District's provision of PT and OT to Elizabeth at Our
Savior Lutheran School would not violate the Establishment Clause.
On appeal, the Lansing School District advances three arguments:
(1) that Elizabeth is not
entitled to PT and OT services under the 1997 amendments to the
IDEA;
(2) that the district court erred
by failing to give appropriate weight to the findings of the hearing
officer; and
(3) that the district court erred
in applying the relevant law.
We now consider each argument in turn.
1. Entitlement to Services
The Lansing School District argues that
Elizabeth's continued entitlement to services is at issue in this
case, contending that the issue was raised at the administrative level
and that the Pecks raised the issue in their complaint to the district
court. We find that the Lansing School District's arguments are unavailing.
The hearing officer and the district court expressly stated that the
sole issue considered in this case was the proper location of Elizabeth's
PT and OT services; her entitlement to services was not at issue in
this case.
Further, we find no merit to Lansing
School District's argument that the Pecks raised the issue in their
complaint to the district court. In their complaint, the Pecks merely
cited to the provisions of the IDEA that related to their claim regarding
the furnishing of services at Our Savior Lutheran School; a citation
to the IDEA in this fashion is not equivalent to raising the issue
of entitlement. Accordingly, it would not be appropriate for this
court to consider the issue of entitlement, as it was not considered
by the district court nor by the hearing officer at the administrative
level, and the record is not adequate to address that issue.We note,
however, that the IDEA was amended in 1997, after the time that the
parties filed briefs in this case.7 We express no opinion
regarding Elizabeth's present entitlement to PT and OT services under
the 1997 amendments to the IDEA.8
2. Findings of the Hearing Officer
The Lansing School District argues that
the district court failed to give due weight to the following findings
made by Wozniak, the local hearing officer:
(1) that the Establishment Clause
prohibited the Lansing School District from providing services to
Elizabeth at her parochial school because doing so would
(A) advance religion by (i)
benefitting Our Savior Lutheran, (ii) causing a religious effect on
the Lansing School District staff and (iii) creating a perceived symbolic
union between the two schools, and
(B) result in excessive entanglement by increased contact and supervision;
and
(2) that OT and PT are instructional
services.
As previously stated, a district court is
required to give "due weight" to the findings of a hearing officer.
See Rowley, 458 U.S. at 206. Although due weight has not been
precisely defined, that term does not mean that the district court must
agree with the hearing officer's findings, which is the argument that
the Lansing School District advances. Moreover, the Lansing School District
does not argue that the district court disregarded the findings of the
hearing officer but, rather, that the district court did not accord
due weight to the hearing officer's findings that particular facts resulted
in a violation of the Establishment Clause.
Although the district court was bound
to give weight to all the findings of the hearing officer, the district
court was certainly free to disagree with that officer as to the interpretation
of the Establishment Clause. See Metropolitan Nashville Public
Schools, 133 F.3d at 387.
We conclude that the district court gave
appropriate weight to Wozniak's findings. The district court was concerned
mainly with the issue of entanglement and therefore requested that
Wozniak identify possible issues of entanglement. After Wozniak did
so, the district court carefully considered those issues, but concluded
that there was no genuine issue of material fact that any minimal
entanglement possible in this case rose to the level of an Establishment
Clause violation.
The Lansing School District also contests
the district court's finding that OT and PT were not instructional
services. Although Wozniak concluded otherwise, that conclusion was
overruled by Sosnowsky at the next level of administrative review.
In addition, the district court noted that Wozniak did not base her
conclusion in this regard on any specific facts. Accordingly, we find
no merit to the Lansing School District's argument that the district
court did not give appropriate weight to Wozniak's findings that PT
and OT were instructional services.
3. Applicable Law
The Lansing School District argues that
the district court misapplied the test set forth in Lemon v. Kurtzman,
403 U.S. 602 (1971), in determining whether the provision of PT and
OT at Our Savior Lutheran violated the Establishment Clause. Before
addressing the merits of this argument, we begin with a brief discussion
of Establishment Clause case law. At the core of the Establishment
Clause is the idea that government cannot "favor religion over nonreligion,
nor sponsor a particular sect, nor try to encourage participation
or abnegation of religion." Walz v. Tax Comm'n, 397 U.S. 664,
694 (1970) (Harlan, J., concurring).
In 1971, the Supreme Court set out the
often-cited test to determine whether a statute or the application
of a statute violates the Establishment Clause:
First, the statute must have a secular
legislative purpose; second, its principal or primary effect must
be one that neither advances nor inhibits religion; finally, the statute
must not foster an excessive government entanglement with religion.
Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).
Thereafter, the Court applied the Lemon
test in Establishment Clause cases, such as Aguilar v. Felton,
473 U.S. 402 (1985), overruled by Agostini v. Felton , 117
S. Ct. 1997 (1997) and its companion case, School Dist. v. Ball,
473 U.S. 373 (1985), overruled by Agostini, 117 S. Ct. at 1997.
In Aguilar, the Court had barred the New York City Board of
Education from sending public school teachers into sectarian private
schools to teach remedial classes, and in Ball, the Court had
found that Grand Rapids' Shared Time program which provided remedial
services to students in nonpublic schools violated the Establishment
Clause.
To summarize these two cases:
Distilled to essentials, the Court's
conclusion that the Shared Time program in Ball had the impermissible
effect of advancing religion rested on three assumptions: (i) any
public employee who works on the premises of a religious school is
presumed to inculcate religion in her work; (ii) the presence of public
employees on private school premises creates a symbolic union between
church and state; and (iii) any and all public aid that directly aids
the educational function of religious schools impermissibly finances
religious indoctrination, even if the aid reaches such schools as
a consequence of private decisionmaking.
Additionally, in Aguilar, there
was a fourth assumption: that New York City's Title I program necessitated
an excessive government entanglement with religion because public
employees who teach on the premises of religious schools must be closely
monitored to ensure that they do not inculcate religion. Agostini,
117 S. Ct. at 2010.
After Aguilar and Ball,
the Supreme Court decided Zobrest v. Catalina Foothills Sch. Dist.,
509 U.S. 1 (1993), without relying upon nor overruling the Lemon test.
In Zobrest, the Court addressed whether it was permissible
for a deaf high school student to bring his state-employed sign-language
interpreter, provided under the IDEA, with him to his Catholic high
school.
The Court held that it was permissible,
expressly disavowing the notion that "the Establishment Clause [laid]
down [an] absolute bar to the placing of a public employee in a sectarian
school." Id. at 13. Thus, in Zobrest, the Court began
to repudiate the assumptions regarding inculcation and the symbolic
link between the government and religion that had been set forth in
Aguilar and Ball.
The state of the law completely changed,
however, with the Supreme Court's 5-4 decision in Agostini v. Felton.
117 S. Ct. 1997 (1997). In Agostini, the Court expressly overruled
Aguilar and Ball, invalidating the assumptions made
in those cases that led to the conclusion that the provision of services
at a parochial school impermissibly advances religion. Id.
at 2016. In addition, the Court confirmed that despite criticism,9
the Lemon criteria remain viable considerations. Id. at 2010,
2015.
The Court reaffirmed the need to ascertain
whetherlaws have a secular purpose and a primary effect other than
advancing religion, and incorporated the third prong of the Lemon
test, the entanglement prong, into the second prong of the Lemon test,
the effects calculus. Id. at 2010, 2016.
According to the Agostini Court,
a federally funded program providing services on parochial school
campuses does not run afoul of the Establishment Clause as long as
the instruction is supplemental to regularly provided services, the
award of funding is based on neutral criteria, and the program imposes
adequate safeguards to ensure that the instruction is secular. See
id. at 2016.
In the present case, the district court
analyzed the Establishment Clause under both Zobrest and Lemon
and found that no constitutional violation occurred under either standard.
The district court determined that the first two prongs of the Lemon
test were not applicable to the present case, and as to the third
prong - entanglement - any minimal entanglement was necessary and,
therefore, was not excessive. The Lansing School District disputes
the district court's finding regarding the second prong of the Lemon
test: whether the primary effect is one that neither advances nor
inhibits religion. The Lansing School District argues that the primary
effect of the provision of services to Elizabeth at Our Savior Lutheran
School is one that advances religion because the services impermissibly
supplant Our Savior Lutheran School's special education services,
rather than supplement Our Savior Lutheran School's services, which
is permissible.
The Lansing School District's argument
was specifically rejected by the Supreme Court in Agostini.
See id. at 2013-14. The Agostini Court found that there
was no evidence that all sectarian schools provide remedial instruction,
such that the provision of remedial services supplanted services rather
than supplemented services. The Court further noted that there was
no logical basis to conclude, as the school district argued, that
the provision of remedial services at a parochial school was an impermissible
supplanting of services when performed on-site at the parochial school,
but was not an impermissible supplanting of services when performed
at a neutral site. See id.
Likewise, in the present case, there
is no evidence that Our Savior Lutheran School provided PT and OT
services, such that the provision of those services by the Lansing
School District would be an impermissible supplanting of services.
In addition, as in Agostini, Lansing School District's position
that the provision of services at a neutral site is acceptable runs
afoul of its argument that it is the provision of PT and OT services
that constitutes an impermissible supplanting of services.
Under the Agostini analysis, the
Lansing School District has no valid argument that the Establishment
Clause is violated by its provision of PT and OT services at Our Savior
Lutheran School. All the arguments advanced by the Lansing School
District are based on the assumptions set forth in Aguilar
and Ball that were expressly overruled by the Court in Agostini.
The IDEA certainly has a secular purpose and its primary effect is
one that does not advance religion. See School Comm. v. Department
of Educ., 471 U.S. 359, 369 (1985) (stating that the purpose of
the IDEA "is principally to provide handicapped children with a free
appropriate public education which emphasizes special education and
related services designed to meet their unique needs").
Accordingly, we affirm the district court's
grant of summary judgment in favor of the Pecks on their IDEA claim.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM
the judgment of the district court.
CONCURRENCE
MARTHA CRAIG DAUGHTREY, Circuit Judge,
concurring. I concur in the conclusion that Agostini v. Felton,
117 S.Ct. 1997 (1997), now controls our analysis of the First Amendment
implications of the Individualized Educational Programs developed
for Elizabeth Peck prior to the 1997-1998 school year. I write separately,
however, to emphasize that this case does not present us with a question
of the propriety of future state-funded services at Our Savior Lutheran
School under the Individuals with Disabilities Education Act (IDEA).
As noted by Judge Cole, the IDEA was
amended, effective June 4, 1997, to provide that the Act no longer
requires a local educational agency to pay for educational services
for a disabled child at a private school "if that agency made a free
appropriate public education available to the child and the parents
elected to place the child in such private school or facility." 20
U.S.C. § 1412(a)(10)(C)(i).
FOOTNOTES
[1] Prior to the 1997 amendments to the
IDEA, FAPE was defined at 20 U.S.C. § 1401 (a)(18).
[2] As will be discussed later, the IDEA
was amended in 1997. The current statute does not require a local
education agency to pay for services at a private school, if the agency
made a FAPE available to the child and the parents elected to place
the child in a private school. See 20 U.S.C. § 1412(a)(10)(C)(i)
(1997).
[3] The issue of whether a service is
"instructional" or not is relevant to the Pecks' contention that the
United States Supreme Court's decision in Zobrest v. Catalina Foothills
Sch. Dist., 509 U.S. 1 (1993), distinguished the provision of
"auxiliary or related services" from the provision of "instructional
services" for purposes of Establishment Clause analysis. The Pecks
argue that because PT and OT were auxiliary services, Zobrest - in
which the Court allowed the provision of auxiliary services at a parochial
school - controlled the present case, rather than Aguilar v. Felton,
473 U.S. 402 (1985) or School Dist. v. Ball, 473 U.S. 373 (1985),
in which the Court found that the Establishment Clause precluded the
provision of instructional services at religious schools. As will
be discussed later, Aguilar and Ball have since been
overruled. See Agostini v. Felton, 117 S. Ct. 1997 (1997).
[4] The district court never expressly
ruled on the Lansing School District's counterclaim. However, in its
ruling, the district court stated that PT and OT services did not
have an instructional component and were therefore auxiliary services.
[5] The parties acknowledge that the
IEP from which this action arose was prepared on June 8, 1994. Pursuant
to the IDEA and its regulations[,] subsequent IEPs have been prepared
annually pursuant to 34 C.F.R. § 300.343(d). This order incorporates
Elizabeth Peck's most recent IEP.
[6] The relief that the Lansing School
District is requesting in No. 97-1231 is not quite clear. The Lansing
School District has not asked this court to remand the case to the
district court for a review of the entire administrative record, an
obvious remedy for its allegation that the district court failed to
consider the entire record. Rather, the Lansing School District states
that [a]though the failure to receive and consider the administrative
record constitutes reversible error, Appellant requests that this
Court consider and rule upon the substantive issues on appeal. A remand
to the lower court for receipt and review of the entire administrative
record would only delay the need for this Court to ultimately decide
these issues. The lower court believes it had sufficient information
to rule on these substantive issues. The court ultimately received
the record after the filing of the parties' motions for relief from
judgment and/or for rehearing/new trial. Following the court's cursory
review, the judge noted that nothing in the record would change the
court's ultimate decision. . . . A remand would be futile and ultimately
delay resolution of these important issues affecting the education
of students with handicaps. Appellant's Brief at 19.
[7] The relevant amended portion of the
statute states:
[T]his subchapter does not require a
local educational agency to pay for the cost of education, including
special education and related services, of a child with a disability
at a private school or facility if that agency made a free appropriate
public education available to the child and the parents elected to
place the child in such private school or facility. 20 U.S.C. §
1412(a)(10)(C)(i).
[8] In addition, we note that we do not
construe the district court's order which stated that "the Defendant
Lansing School District shall provide on a regular basis the physical
therapy and occupational therapy services. . . ." as an order that
entitles Elizabeth to PT and OT services. The sole issue before the
district court was whether those services could be provided at Our
Savior Lutheran School.
[9] See, e.g., Kent Greenawalt, Quo
Vadis: The Status and Prospects of "Tests" Under the Religion Clauses,
1995 Sup. Ct. Rev. 323, 359-60 (noting the current Justices' dissatisfaction
with the Lemon test on the ground that it provides for either too
much or too little separation of government and religion in particular
cases); Public Funding of Special Education in Parochial Schools,
111 Harv. L. Rev. 279, 285 (1997) (stating, with respect to the Lemon
test, that "although the Court has not explicitly renounced it, this
standard has fallen into disrepute").
You can find this case at the Findlaw:
http://laws.findlaw.com/6th/980194p.html
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