Federal appellate court rules disabled student unilaterally enrolled in private school is not entitled to Section 504 services

D.L. v. Baltimore City Bd. of Sch. Comm’rs, No. 11-2041 (4th Cir. Jan. 16, 2013)

Abstract: A three-judge panel of the U.S. Court of Appeals for the Fourth Circuit (MD, NC, SC, VA, WV) has ruled that a disabled student unilaterally placed in a private school is not entitled to special education services under Section 504 of the Rehabilitation Act (Section 504). The panel concluded that the administrative guidance from the U.S. Department of Education’s Office for Civil Rights (OCR), Section 504′s statutory purpose, related case law, and policy considerations compel the panel’s holding that the student is not entitled to Section 504 services if he remains enrolled at a private institution.

The panel also held that the school district’s requirement that private school students must cease enrollment in private religious institutions and enroll in public school in order to avail themselves of Section 504 services is not unconstitutional. It pointed out that such a regulation “does not violate the Free Exercise Clause merely because it causes economic disadvantage on individuals who choose to practice their religion in a specific manner.”

Facts/Issues: After attending private school for several years, the parents of D.L., a disabled student, requested an evaluation from the public school district to see if D.L. was eligible for special education services. Although the Baltimore City school system determined that D.L. was eligible for Section 504 services based on his disabilities, it denied the services because he attends a private school. The parents filed an administrative complaint.

The hearing officer agreed that D.L. could not get Section 504 services even if he was enrolled at both a private and public school. He had to be enrolled at a public school full-time. The parents then appealed that decision to federal court. A Maryland federal district court upheld the hearing officer’s ruling in favor of the Baltimore City Board of School Commissioners (BCBSC).  The parents appealed to the Fourth Circuit.

Ruling/Rationale: The Fourth Circuit panel affirmed the district court’s decision. In its analysis, the panel identified two issues raised by D.L. on appeal: (1) whether D.L. is entitled to educational services related to his disability under Section 504 even though he is enrolled exclusively in a private religious school; and (2) whether BCBSC’s requirement that D.L. attend public school in order to receive Section 504 services violates his right to the free exercise of religion under the First Amendment of the U.S. Constitution.

Addressing whether a disabled student enrolled in and attending a private school is entitled to a free appropriate public education (FAPE) under Section 504, the panel first noted that neither the statute nor its implementing regulations makes it clear whether public schools are required to provide services to private school students. Unlike D.L., the panel read OCR’s opinion in Letter to Veir, 20 IDELR 864 (1993), as limiting the provision of Section 504 services to eligible disabled students attending public schools.

The panel found that the 1997 amendments to the Individuals with Disabilities Education Act (IDEA) support this reading because those amendments and related regulations state: “[n]o parentally-placed private school child with a disability has an individual right to receive some or all of the special education and related services that the child would receive if enrolled in a public school.” The panel determined that if it followed D.L.’s reasoning, an eligible disabled student attending private school could avail himself of services under Section 504 that he would otherwise be denied under the IDEA, creating an individual right to special education and related services where none exists. The panel concluded that such an “interpretation flies directly in the face of the limitations that Congress imposed on school districts’ obligations under IDEA by reading an affirmative obligation into Section 504, an anti-discrimination statute.”

The panel also rejected D.L.’s argument that Section 504 should be interpreted broadly because it is a remedial statute, and, thus, requires school districts to provide services to all eligible students, including private school students, within their jurisdiction. While the panel agreed that Section 504 is remedial, it concluded the “purpose of Section 504 does not, however, extend as far as Appellants assert that it should. Section 504 and its implementing regulations prohibit discrimination on the basis of disability, not on the basis of school choice.”

The panel, likewise, found unpersuasive D.L.’s reliance on Section 504′s “child find obligation” as mandating universal coverage for all eligible students. The panel stressed that this obligation is to “ensure universal access and awareness, not universal provision.” It also pointed out that the practical difficulties involved in providing universal coverage supported limiting Section 504 services to students in public schools.

Finally, the panel found D.L.’s reliance on the Pennsylvania Supreme Court’s decision in Lower Merion School District v. Doe, 931 A.2d 640, 641 (Pa. 2007), misplaced. While the state court there ruled that a disabled student enrolled in a private school was entitled to Section 504 services, it did so on the basis that the student held dual private/public school enrollment as allowed by state law. The panel concluded that “Lower Merion fails to lend insight into this case because the court’s analysis hinges on Pennsylvania’s dual enrollment provisions,” and emphasized that unlike Pennsylvania, Maryland does not permit dual enrollment.

The panel also rejected D.L.’s contention that Maryland’s lack of a dual enrollment statute violates the U.S. Constitution’s Supremacy Clause. According to the panel, Maryland’s prohibition against dual enrollment only violates the Supremacy Clause if Section 504 requires provision of services to students regardless of their school choice. Because the panel held that it does not, there is no conflict between Maryland’s law and Section 504.

The panel then took up the issue of whether BCBSC’s prerequisite that private school students cease enrollment in private religious institutions and enroll in public schools in order to access Section 504 services is a violation of D.L.’s constitutional right to the free exercise of religion. It found D.L.’s reliance on Pierce v. Society of Sisters, 268 U.S. 510 (1925), and Wisconsin v. Yoder, 406 U.S. 205 (1972), unavailing because both those cases involved laws compelling conduct that burdens religion. In contrast, Section 504′s restriction only burdens the individual financially.

The panel stated that “BCBSC’s policy may raise the overall cost of D.L.’s private education, but this does not offend D.L.’s constitutional rights. The Supreme Court has explained that a statute does not violate the Free Exercise Clause merely because it causes economic disadvantage on individuals who choose to practice their religion in a specific manner.”

The panel also pointed out that D.L.’s “assertion that BCBSC’s policy creates an undue burden also clashes with case law upholding the government’s ability to make policies and curricular decisions in the best educational interest of students.” Ultimately, the panel found BCBSC’s requirement reasonable, and left D.L. and his parents with full discretion over school enrollment while placing no undue burden on their constitutional rights.

D.L. v. Baltimore City Bd. of Sch. Comm’rs, No. 11-2041 (4th Cir. Jan. 16, 2013)

[Editor's Note: In November 2012, Legal Clips published a summary of the oral arguments in D.L. that was provided by Leslie Stellman, a COSA member from Maryland who argued on behalf of BSCBC. As Mr. Stellman's summary of the panel's questions to D.L.'s attorney reveal, the judges were skeptical of the reliance on the Lower Merion case. That skepticism was borne out in the panel's rejection of that case's precedential value for the proposition that Section 504 provides services to students enrolled in private school. In addition, a link to NSBA's amicus brief in D.L. is available in the Editor's Note accompanying that summary.]

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