On October 25, 2012, a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit (VA, MD, NC, SC, WV) heard oral arguments in D.L. v. Board of School Commissioners of Baltimore City (BSCBC), No. 11-2041. The question before the Fourth Circuit three-judge panel is whether a disabled student, who was unilaterally placed in a private school, is entitled to special education services under Section 504 of the Rehabilitation Act (Section 504) at a public school district’s expense.
Leslie Stellman, a COSA member from Maryland who argued on behalf of BSCBC, has kindly provided Legal Clips with the following detailed summary of the oral arguments that took place before the three-judge panel:
Mr. Arnold, Plaintiffs’ counsel, first urged the panel to read 34 C.F.R. Section 104.33 of OCR’s Section 504 regulations as requiring access to special education services for private school children. Judge Niemeyer asked whether the regulation really said that, reminding Mr. Arnold that Section 504 is merely a non-discrimination law. He asked Mr. Arnold, “Can you cherry pick your services, for instance, if there are free lunches provided by the school system, can a child in a private school insist upon going to the public school for the free lunch?” He reminded Mr. Arnold that the district court had found that “you had to be a student in the city school system” to receive the services D.L. seeks, to which Mr. Arnold replied, “but Section 104.33 requires it.”
Judge Niemeyer asked about OCR’s Letter to Viers, which he believed was controlling, which states that private school students are not entitled to services from the local school district. Reminding Mr. Arnold again that Section 504 was a non-discrimination law, Judge Niemeyer asked him whether he is saying, “I don’t want education; just the services.” Mr. Arnold conceded that all he wanted was “stand-alone services,” but that he was prepared to avoid the problem created by Letter to Viers by accepting those services in the public, not the private, school. He then raised Lower Merion Sch. Dist. v. Doe, 593 Pa. 437 (2007), which allowed for stand-alone services to a private school student. Judge Niemeyer stated, “but that’s the Supreme Court of Pennsylvania, and we are the Fourth Circuit.” Judge Niemeyer reminded Mr. Arnold that in Lower Merion, the child was dual enrolled in both the public and private schools, to which Mr. Arnold conceded that the student’s enrollment in public school was only to access special education services. Judge Niemeyer asked Mr. Arnold, “Isn’t it true that in Maryland, you can’t be enrolled in both,” which Mr. Arnold conceded, stating that there was a “regulatory conflict” between Section 104.33 and other provisions of the OCR regulations. He went on to state that Section 504 required that “all handicapped people be treated the same way,” which is violated when private school kids are treated differently than those in public school.
Judge Thacker asked Mr. Arnold if D.L. only wanted to be enrolled in the public school “part-time” so that he could “pick and choose” the services he wanted. Judge Niemeyer asked whether, if FAPE is offered, how could Section 504 require such services be delivered to private school students. Mr. Arnold insisted that his client was prepared to receive the services in a Baltimore public school building, but Judge Niemeyer replied that that was just a matter of “geography.” Mr. Arnold returned to Section 104.33, which he said “preempted” any other interpretation, insisting that “if you live in the jurisdiction, they can’t keep you out.”
Judge Gregory (a former school board attorney) asked Mr. Arnold how one could limit the services provided the student to just outsourced ones, given that accommodations require a “holistic approach,” including in-class services and accommodations such as longer test-taking time, refocusing, etc. Mr. Arnold said, “the private school can do those things, which we are not seeking.” He stated that the law did not require “maximizing of education,” and that due to their religious concerns, the parents were prepared to forego such “maximization of education” in favor of the services they seek from the public school system.
Judge Niemeyer reminded Mr. Arnold that the “objective of Section 504 is that you don’t discriminate, but you’re saying, ‘there is a duty to provide FAPE,’ yet in this case it is more complex because treatment [for D.L.’s learning disabilities] could be integrated.” He reminded Mr. Arnold that in Lower Merion, “the student was in the school system. Here, [D.L.'s] not in the school system at all. Lots of people who enroll in public school take religious school education on the side, and our Court recently upheld that right” (presumably referring to Moss v. Spartanburg Cnty. Sch. Dist., No. 11-1448 (4th Cir. July 2012)).
Judge Gregory then reiterated the question, “isn’t Section 504 just a non-discrimination law,” to which Mr. Arnold replied, “no.” Judge Gregory responded that “you read out the language of the statute that says, ‘solely by reason of disability.’ Your client is not being discriminated based upon his disability, but because he is not in the public school district.” Mr. Arnold insisted that “the regulation sweeps broader, covering everyone in the jurisdiction,” to which Judge Niemeyer asked, “Broader than the statute?” Mr. Arnold conceded, “no.” Judge Gregory concluded by noting that “in Pennsylvania, a child was in the ‘ambiant’ of the district; here, he’s not. The reason he is not allowed to enroll for this purpose in Baltimore City has a rational basis, which is to limit the services to only enrolled students.”
Mr. Stellman reports he then made the following arguments:
The case was moot based upon D.L. being transferred to a boarding school in Richmond, Virginia, which is 150 miles from where the services D.L. seeks were to be performed. The only basis upon which D.L. claims his case now avoids mootness is his continuing demand for “compensatory education.” Mr. Stellman explained that “compensatory education” is not available under Section 504; it is only available as a remedy under the IDEA for a failure to provide FAPE over time, and it is often manifested in adding additional years of educational services beyond age 21, citing G. v. Fort Bragg (4th Cir.) and P.P. v. West Chester Area Sch. Dist. (3d Cir.). Thus, the demand for such relief does not keep the case a viable controversy under Article III, particularly since the services D.L. seeks are supposed to be performed in a “Baltimore City public school facility,” which is impractical, even if they are offered (as Mr. Arnold suggested in his supplemental brief on mootness) during holidays or in the summer, since school personnel may not be available then.
Turning to the merits, Mr. Stellman stated that Section 504, as interpreted by the U.S. Supreme Court in Southeastern Community College v. Davis, is purely a non-discrimination law, and it is not intended to allow for “affirmative action,” much less cherry-picking services by privately-placed students. There was no burden on the parents’ freedom of religious exercise, for as the Fourth Circuit said in Goodall v. Stafford Sch. Dist., the additional cost of receiving special education services (in that case, a transliterator in a religious school for a hearing impaired student) did not impinge upon parental religious choice. Moreover, Mr. Stellman noted, the courts have consistently held that it does not violate the Free Exercise Clause when a government refuses to subsidize religious activities or education.
Mr. Stellman focused briefly on the Spending Clause problem inherent in requiring a school district to provide cherry-picked special education related services to private school students under Section 504, noting that in Barnes v. Gorman, the U.S. Supreme Court rejected punitive damages in Section 504 cases because in accepting federal funds, schools and universities did not anticipate such a consequence. Mr. Stellman explained that as recently as the 2012 NFIB v. Sibelius decision (the Affordability Care Act), the U.S. Supreme Court struck down, as “coercive,” the parts of the ACA requiring states to abandon all Medicaid funds because of a failure to comply with unanticipated requirements under the new law. Mr. Stellman cautioned the panel that the U.S. Supreme Court was looking more carefully at Spending Clause problems inherent in excessive demands placed on public schools, particularly under Section 504 and Title IX, where there is no money that goes along with these laws (as opposed to IDEA, where there is money that comes with compliance).
Finally, Mr. Stellman distinguished Lower Merion, explaining that the case wended its way through the Pennsylvania state courts because the issue turned on Pennsylvania’s peculiar dual enrollment law, which Maryland has not adopted. Mr. Stellman concluded that Maryland does not allow for dual enrollment, thus D.L.’s parents could not demand D.L. to be enrolled in a Baltimore City school for the limited purpose of receiving services – something Pennsylvania law and Pennsylvania courts allow.
Mr. Stellman reports that he was asked virtually no questions, and that Mr. Arnold’s brief rebuttal consisted of reiterating his argument that Lower Marion applies to this case.
Legal Clips sincerely thanks Mr. Stellman for his thorough summary.
[Editor's Note: In April 2012, Legal Clips referenced the amicus brief NSBA filed with the Fourth Circuit in D.L. v. BSCBC. Joined on the brief by the Maryland Association of Boards of Education and the Virginia School Boards Association, the NSBA informed the appellate court that adoption of the parents' position has significant legal and practical consequences for public schools. Specifically, it would significantly undercut IDEA's limitations on the provision of services to privately-placed students, and would add significant financial burdens to school districts.
NSBA also stated that the parents' interpretation of OCR's Section 504 regulations is inconsistent with the statute itself, in that Section 504, a non-discrimination statute, does not contemplate the federal government's reach extending to disabled students voluntarily placed in private school by their parents/guardians.
NSBA's amicus brief was written by COSA members John F. Cafferky and Andrea D. Gemignani of Blankingship & Keith.]