Federal appeals court won’t revisit Oregon student’s religious-liberty claim

Friday, April 28, 2000

A federal appeals court has turned away an effort by parents of a disabled student to require an Oregon public school to provide certain health services to the student after he started attending a Baptist school.

On April 25, the 9th U.S. Circuit Court of Appeals voted not rehear a case decided last November when a three-judge panel of the 9th Circuit voted 2-1 that the Reedsport School District did not abridge the student’s religious liberties when it refused to send a vision specialist into a church-run school.

In 1996, the student, called KDM in court documents, and his parents sued the school district, arguing the district’s denial of governmental assistance was based solely on the family’s enrollment of the student in the Harbor Baptist Church School. The family argued that the district’s action amounted to hostility toward religion.

KDM, who is blind and has cerebral palsy, was provided a vision specialist, physical therapy and special equipment while a student within the Reedsport district. Upon his transfer to the Baptist school, however, the public school district would provide KDM with the vision specialist only at a fire hall down the street from his new school. The district did continue providing KDM with special equipment, such as Braille readers and computers. Reedsport defended its action by citing an Oregon law that says federally funded services could only be offered in a religiously neutral setting.

Judge William W. Schwarzer, writing for the panel’s majority in KDM v. Reedsport, said, “this is not a case in which the regulation impinges on plaintiff’s free exercise rights.” Schwarzer concluded that Reedsport’s action did not force “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.”

The sole dissenter, Judge Andrew J. Kleinfeld, accused the majority of misconstruing religious-liberty jurisprudence and of concluding that government discrimination against people of faith is constitutional.

Attorneys for KDM then asked for a rehearing either by the same three-judge panel or the entire 19-member circuit.

Kleinfeld was one of six 9th Circuit judges who voted on April 25 to rehear the case. A majority, however, denied both requests for a rehearing.

Judge Diarmuid F. O’Scannlain proffered a written dissent, saying the case should have been reviewed.

Citing the 1993 U.S. Supreme Court decision in Church of Lukumi Babalu Aye v. Hialeah, O’Scannlain wrote: “While a facially neutral law may be unconstitutional if its true object ‘is to infringe upon or restrict practices because of their religious motivation,’ a law that is non-neutral on its face, like the Oregon regulation at issue here, triggers strict (and almost always fatal) scrutiny — even in the absence of extrinsic evidence suggesting that the law was the result of anti-religious bigotry or animus.”

Barbara Weller, an attorney for KDM, returned a call from The Freedom Forum Online after this story’s original posting. She said a decision had been made to appeal the circuit’s ruling to the U.S. Supreme Court. Weller said the issue could be resolved without further litigation if Congress would pass legislation requiring public school districts to provide the federally funded education services to all disabled children within their districts regardless of where the students are being educated.