Appeals court: School district did not violate student’s religious liberties

Wednesday, November 17, 1999

An Oregon public school district did not violate a disabled student's religious liberties by refusing to provide certain health-care services for him while he attended a religious school, a federal appeals court has ruled.

In 1996 a student and his parents sued the Reedsport School District, accusing it of using a state law that they contend is unconstitutional to deny special education services to disabled students in private schools. A federal law grants funds to states to provide disabled students with the services.

The student, referred to in court documents as KDM, is blind and has cerebral palsy. While attending a Reedsport public school in 1996, KDM received the services of a vision specialist, physical therapy and special equipment. After KDM's parents transferred him to Harbor Baptist Church School, the Reedsport district continued to supply him with the special equipment, such as Braille readers and computers, but would not allow the vision specialist to provide services to KDM at the religious school.

Instead the vision specialist would pick KDM up from the Baptist school and take him to a fire hall down the street to provide the services. The school district cited an Oregon regulation that said the federally funded services could only be offered in a religiously neutral setting.

In their lawsuit against the Reedsport school district, KDM and his parents argued that in its refusal to provide the services at the Baptist school, the district acted with hostility toward religion and impinged on the family's right to freely practice their religion.

Last year a federal district court agreed, saying the Oregon regulation violated the free-exercise rights of KDM and his parents and subverted the establishment clause of the First Amendment. The court concluded that the Oregon regulation forced KDM to choose between staying at the Baptist school or going back to the public school to receive in-class services. The court also said the state law violated the establishment clause because it required the state superintendent to decide on a case-by-case basis whether a particular setting was religious or not.

On Nov. 15, a three-judge panel of the 9th U.S. Circuit Court of Appeals voted 2-1 to reverse the lower court's decision. Judge William W. Schwarzer, writing for the majority in KDM v. Reedsport School District, concluded that the free-exercise rights of KDM and his parents were not impermissibly burdened by the Oregon regulation and the school district's application of it and that the Oregon regulation did not unconstitutionally entangle church and state.

“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 education plan, the adequacy of which is not in dispute,” Schwarzer wrote. “Moreover, [KDM and his parents] 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.”

Judge Andrew J. Kleinfeld dissented, saying that under the majority'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.”

Kleinfeld said the Oregon regulation, requiring special education to be provided in a 'religiously neutral setting,' should have been seen by the majority as an infringement on the religious liberties of KDM and his parents.

“Handicapped children at secular private schools get special education in their schools, but handicapped children at religious private schools must leave school to get the same special education,” Kleinfeld wrote. “This law violates the Constitution because it distinguishes between people and burdens some of them on account of their religious practices.”

Kleinfeld also wrote that the establishment and free-exercise clauses of the First Amendment are not in “tension” but complement each other to protect religious freedom. He said the clauses entitle Americans “to a government that does not discriminate against them because of their religion, even with the burdens that those who do not bear them see as merely a slight inconvenience.”

A call placed to the attorney for KDM and his family has not been returned.