United States Court of Appeals
For the First Circuit
No. 03-1211
GARY S. AND SYLVIE S., INDIVIDUALLY AND ON BEHALF OF
THEIR SON ANDREW S.,
Plaintiffs, Appellants,
v.
MANCHESTER SCHOOL DISTRICT,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, Chief U.S. District Judge]
[Hon. James R. Muirhead, Magistrate Judge]
Before
Lipez, Circuit Judge,
Campbell and Stahl, Senior Circuit Judges.
Scott F. Johnson with whom Stein, Volinsky & Callaghan, PA was
on brief for appellants.
Dean B. Eggert with whom Jennifer L. Murphy and Wadleigh,
Starr & Peters, PLLC were on brief for appellee.
July 1, 2004
CAMPBELL, Senior Circuit Judge. Appealing from an
adverse judgment of the district court, the parents of Andrew S.,
a disabled child who is attending a Catholic elementary school,
assert that the Individuals with Disabilities Education Act (IDEA),
20 U.S.C. §§ 1400-87, is unconstitutional as applied to their son.
While he, like other disabled children who go to private schools,
receives some educational services under federal and state law, he
is not entitled by law to the panoply of services available to
disabled public school students under the rubric of free and
appropriate public education (FAPE), nor to the due process hearing
provided to public school students alone. Appellants argue that
the difference in treatment of their disabled son, who is attending
a religious school, from other disabled students, who are attending
public schools, violates the Free Exercise Clause of the First
Amendment to the federal constitution, the Due Process and Equal
Protection clauses of the federal constitution, and the federal
Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. §§ 2000bb-1
to -4.
The district court considered these contentions upon
cross motions for summary judgment. Rejecting appellants' claims,
it granted the appellee Manchester School District's motion for
summary judgment and denied summary judgment to appellants.
Gary S. v. Manchester Sch. Dist., 241 F. Supp. 2d 111, 123 (D.N.H.
2003).
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On appeal, appellants reiterate their contentions. After
carefully considering them, we find ourselves in agreement with
the district court. In disposing of this appeal, we are also in
substantial accord with much of the reasoning contained in its
published Memorandum and Order. Id. at 117-123. We see,
therefore, no need to go over yet again all of the groundwork
covered there. Nor need we restate the background facts already
described in detail in the district court's opinion. Id. at 113-
17. We add, however, at some length, our own analysis of several
of the key issues.
I.
Appellants' lead argument on appeal is that the district
court erred in determining that the federal law did not violate
Andrew's and his parents' free exercise rights under the First
Amendment. They reject the district court's assertion that the
Supreme Court's decision in Employment Div. Dep't of Human Res. of
Oregon v. Smith, 494 U.S. 872 (1990), is controlling. Smith,
according to the district court, exempted most "neutral laws of
general applicability" from the compelling interest test. In the
district court's view,
[A] law ordinarily need not be justified by a
compelling interest if it is "neutral" in that
it is not targeted at religiously motivated
conduct and "generally applicable" in that it
does not selectively burden religious conduct.
See Church of Lukumi Balalu Aye, Inc. v. City
of Hialeah, 508 U.S. 520, 532-35, 542-43
(1993).
-3-
Gary S., 241 F. Supp. 2d at 120-21.
IDEA and its regulations, the district court says, do not
target religiously motivated conduct and is "generally applicable"
in that it does not selectively burden religious conduct. For
these reasons, and because appellants' First Amendment claim is not
"hybrid," i.e. is not linked to a separate constitutional claim,
the district court found no violation of free exercise rights. Id.
We do not disagree.
Appellants reject the district court's analysis. They
ask us to read Smith as limited to instances of socially harmful or
criminal conduct. They point out that Smith did not purport to
overrule the Supreme Court's holdings in the cases of Hobbie v.
Unemployment Appeals Comm'n, 480 U.S. 136 (1987), Thomas v. Review
Bd. of the Indian Employment Sec. Div., 450 U.S. 707 (1981), and
Sherbert v. Verner, 374 U.S. 398 (1963). In Hobbie and Sherbert,
the complainants were denied unemployment benefits following
discharge because of their religiously-based refusal to work on
Saturday, complainant's religion's Sabbath. In Thomas, the
complainant was denied unemployment benefits after discharge based
on his religiously-based refusal to help produce armaments.
Holding that the denial of a public benefit in these circumstances
burdened plaintiff's religion, the Court ruled that, in order to
justify an action having such an effect under the free-exercise
clause, the government had to demonstrate that the withholding of
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the benefit served a compelling governmental interest and was the
least restrictive means to that end. Hobbie, 480 U.S. at 141-45;
Thomas, at 718-20; Sherbert, 374 U.S. at 403. Appellants have
likened the denial of educational disability benefits here to those
situations, asking us similarly to apply strict scrutiny. If we
do, appellants contend, we will find that Andrew's attendance at a
Catholic school is mandated by his parents' sincerely-held
religious beliefs. No compelling governmental interest is served,
they say, by withholding from him the identical benefits granted to
his peers at public schools.
It is not always easy to predict what analytical
framework the Supreme Court will apply to the various, factually
dissimilar free exercise cases that arise. Smith rejected a free
exercise claim involving the religiously-based use of peyote, an
illegal substance. Writing for five of the Justices, Justice
Scalia endorsed the constitutionality of neutral, generally
applicable laws even when they impinged incidentally upon
individual religious practices. Smith, 494 U.S. at 881, 885. The
Smith majority expressly limited Hobbie, Thomas and Sherbert to the
unemployment compensation field. Smith, 494 U.S. 883-84. While,
as appellants point out, Justice Scalia in Smith also distinguished
Hobbie, Thomas and Sherbert on the narrower ground that the use of
peyote was illegal, 494 U.S. at 876, the majority's overall message
is unmistakably contrary to appellants' present argument that
-5-
Hobbie, Thomas and Sherbert -- and, in particular, the "compelling
interest" test -- are broadly applicable here. Smith, insofar as
can be told from reading the Court's more recent precedent, remains
good law, albeit reflective when written of the thinking of a
narrow majority of justices, some of whom no longer serve. See,
e.g., Watchtower Bible and Tract Soc'y of N.Y. v. Vill. of
Stratton, 536 U.S. 150, 159 (2002) (discussing in dicta that lower
court relied on Smith standard); City of Boerne v. Flores, 521 U.S.
507, 536 (1997) (invalidating statute that sought to "restore the
compelling interest test as set forth in Sherbert v. Verner, . . .
and Wisconsin v. Yoder," that had been rejected in Smith); Richard
C. Schragger, The Role of the Local in the Doctrine and Discourse
of Religious Liberty, 117 Harv. L. Rev. 1810, 1853 (2004)
(describing the "current Smith-Boerne doctrine"); Notes, "They Drew
a Circle That Shut Me In": The Free Exercise Implications of
Zelman v. Simmons-Harris, 117 Harv. L. Rev. 919, 924 (2004)
("Although the Smith rule has been criticized by several Justices
- both at the time of the decision and subsequently - the Court has
reiterated its commitment to the rule and rebuffed a congressional
attempt to change it.") (footnotes omitted); Ming Hsu Chen, Note,
Two Wrongs Make a Right: Hybrid Claims of Discrimination, 79
N.Y.U.L. Rev. 685, 710 (2004) ("Notwithstanding any of its flaws,
[Smith] remains good law.").
-6-
We also agree, for the reasons the district court stated,
that this case is not a "hybrid" one. Hence, we conclude that the
district court analyzed the case under the correct standard.
Gary S., 241 F. Supp. 2d at 121.
While we could perhaps leave the free exercise analysis
there, an even more fundamental reason causes us to reject
appellants' First Amendment arguments. We cannot accept
appellants' contention that providing to all disabled attendees at
private schools, both sectarian and secular, fewer benefits than
those granted to public school attendees is truly analogous to
denying unemployment benefits to persons fired because of their
religiously-inspired insistence upon celebrating the Sabbath or not
producing weapons.
The state unemployment benefits denied in Hobbie, Thomas,
Sherbert were public benefits, available to all. Plaintiffs would
have received them had their religiously-motivated refusal to work
on a certain day or at a certain job not been erroneously viewed by
local authorities as misconduct. While appellants say their son's
attendance at a Catholic school is likewise a religiously-motivated
act, there is a basic difference. He and they are not being
deprived of a generally available public benefit. Rather, the
benefits to which appellants lay claim under the First Amendment
are benefits the federal government has earmarked solely for
students enrolled in the nation's public schools -- benefits still
-7-
available for Andrew were he sent to a public school, though not
otherwise. Since the early days of public education in this
country, public financial aid has commonly been limited to public
rather than independent schools. While the parents of private
school attendees pay the same taxes as public school parents, the
former's tax money normally supports their own children's education
only if they transfer them to a public school. To be sure, parents
have a protected right to send their children to private schools if
they so desire. Pierce v. Soc'y of Sisters, 268 U.S. 510, 534-35
(1925) (state law compelling public school attendance "unreasonably
interferes with the liberty of parents and guardians to direct the
upbringing and education of children under their control"). But as
the very term "private" denotes, it is not ordinarily expected that
such schools will be publicly funded, and there is no precedent
requiring such funding. Norwood v. Harrison, 413 U.S. 455, 462
(1973) (in affirming "right of private schools to exist and
operate . . . [Pierce] said nothing of any supposed right of
private or parochial schools to share with public schools in state
largesse, on an equal basis or otherwise.").1
1
To be sure, the Court has recently permitted a state
legislature to provide for attendance at private schools at public
expense if it so desires. Cf. Zelman v. Simmons-Harris, 536 U.S.
639, 662-63 (2002) (Ohio pilot school voucher program in which 96%
of participating students in Cleveland received publicly-funded
tuition aid to attend religious schools did not violate
Establishment Clause). But the voucher approach remains so far the
exception rather than the rule in our nation as a whole.
-8-
Given the traditional pattern that has so far prevailed
of financing public education via the public schools, it would be
unreasonable and inconsistent to premise a free exercise violation
upon Congress's mere failure to provide to disabled children
attending private religious schools the identical financial and
other benefits it confers upon those attending public schools.
Unlike unemployment benefits that are equally available to all,
private school parents can have no legitimate expectancy that they
or their children's schools will receive the same federal or state
financial benefits provided to public schools. Thus, the non-
receipt of equal funding and programmatic benefits cannot be said
to impose any cognizable "burden" upon the religion of those
choosing to attend such schools.2 Persons opting to attend private
schools, religious or otherwise, must accept the disadvantages as
well as any benefits offered by those schools. They cannot insist,
as a matter of constitutional right, that the disadvantages be
2
We recognize the disability program provided to Andrew is not
one furnished directly by the Catholic school, but is instead run
by public authorities for children who attend private school. But
we see no distinction in principle. It is, of course, also true
that the federal government and state are here actually funding
programs for disabled children such as Andrew, the complaint being
not the total absence of a program but that Andrew's program and
rights are less comprehensive than those accorded to public school
students. Again, we see no difference in principle. The federal
and state governments are entitled to fund programs associated with
private schools if they so desire, provided they do not run afoul
of the Establishment Clause. Our point is not that such funding is
never allowed, but that it is not commonly expected in our society
nor required.
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cured by the provision of public funding. It follows that denying
the benefits here, to which appellants have no cognizable
entitlement, do not burden their free exercise rights.
Indeed, if we were to find a burden here on appellants'
right of free exercise, it would follow logically that we should
find free exercise violations whenever a state, city or town
refuses to fund programs of other types at religious schools, at
least insofar as the absence of funding adversely affects students
with parents who believe their faith requires attendance at a
religious school.3 Yet, as noted supra, it is clear there is no
federal constitutional requirement that private schools be
permitted to share with public schools in state largesse on an
equal basis. See, e.g., Norwood v. Harrison, 413 U.S. at 462;
Harris v. McRae, 448 U.S. 297, 317-18 (1980); Maher v. Roe, 432
3
A further anomaly of such a holding would be that only
persons such as appellants, with a declared religious belief in the
necessity of sending their children to private schools, would be
entitled under the First Amendment to the funding sought. Other
students, including those in secular private schools, would lack a
right to such funding. Cf. Locke v. Davey, 124 S. Ct. 1307, 1315
(2004) (stating, "Given the historic and substantial state interest
at issue, we therefore cannot conclude that the denial of funding
for vocational religious instruction alone is inherently
constitutionally suspect. Without a presumption of
unconstitutionality, [respondent's] claim must fail. The State's
interest in not funding the pursuit of devotional degrees is
substantial and the exclusion of such funding places a relatively
minor burden on [those involved in the funding program]. If any
room exists between the two Religion Clauses, it must be here. We
need not venture further into this difficult area in order to
uphold the [funding program] as currently operated by the State of
Washington.").
-10-
U.S. 464, 477 (1977); see also Locke, 124 S. Ct. at 1315; Strout v.
Albanese, 178 F.3d 57, 66 (1st Cir. 1999) (stating, "fundamental
right [to direct child's upbringing and education] does not require
the state to directly pay for a sectarian education").
Accordingly, we see no basis for holding that the federal
government violates appellants' free exercise rights under the
First Amendment by favoring disabled public school attendees in
respect to IDEA's programs and benefits. In so doing, the federal
government does no more than state and local governments do
everyday by funding public school programs while providing lesser
or, more likely, no funding to private schools, religious and
otherwise. This methodology leaves all parents with ultimate
recourse to the public schools whenever the balance of services
associated with attendance at a private school appears to them to
be unsatisfactory; but the option thus available can necessitate
their having to choose, as here, between alternatives each of which
may seem imperfect. In any event, we cannot say that the federal
government's structuring of benefits here violates appellants' free
exercise rights.
II.
Our above-stated conclusion that no cognizable burden on
religion has been caused by the federal government's failure to
provide to disabled children attending Catholic schools the same
benefits as it provides to disabled public school children applies
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with equal force to appellants' RFRA claim. 42 U.S.C. § 2000bb-
1(a) (stating in part, "[g]overnment shall not substantially burden
a person's exercise of religion even if the burden results from a
rule of general applicability, . . . .").
The district court rejected appellants' RFRA claim,
finding no burden upon religion given this court's Strout decision
that "the Catholic faith does not require parents to educate their
children in Catholic schools." Gary S., 241 F. Supp. 2d at 122
(citing Strout, 178 F.3d at 65). Appellants contend on appeal that
it is irrelevant whether the Catholic religion as a whole requires
Catholic parents to educate their children at religious schools.
They assert that they personally believe, on religious grounds,
that such a requirement exists. Their sincere personal belief is
enough, they argue, to demonstrate the centrality to their faith of
Catholic school attendance. See Hernandez v. Comm'r of Internal
Revenue, 490 U.S. 680, 699 (1989) (stating, "It is not within the
judicial ken to question the centrality of particular beliefs or
practices to a faith, or the validity of particular litigants'
interpretations of those creeds.") (citation omitted).
Assuming, without deciding, that appellants' personal
religious belief suffices for RFRA purposes, they still face the
insurmountable hurdle we have discussed in the previous section,
namely that the mere non-funding of private secular and religious
school programs does not "burden" a person's religion or the free
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exercise thereof. 42 U.S.C. § 2000bb-1(a). There is no need to
repeat what we have already said on this point. It suffices to say
we find no cognizable "burden" being imposed here upon appellants'
exercise of their religion, hence no occasion to apply RFRA.
III.
Likewise, appellants' equal protection claim fails, as
the district court ruled. Appellants assert that IDEA has
infringed upon their fundamental right to direct Andrew's
upbringing and education4 because it deprives him of FAPE and a due
process hearing while offering these benefits to students who
receive special education services at public school and, therefore,
should be subjected to strict scrutiny. See Pierce, 268 U.S. at
534-35.
To be sure, if a requirement imposed by a state
significantly interferes with the exercise of a fundamental right,
it cannot be upheld unless it is supported by sufficiently
important state interests and is closely tailored to effectuate
only those interests. See, e.g., Cruzan v. Director, Missouri
4
Appellants also argue that the distinctions made here deny
their child the right to access an adequate education and a "basic
floor of educational opportunity" and therefore should be analyzed
under heightened scrutiny. They concede that the Supreme Court
found there is no fundamental right to education, but argue that
the Court left open the issue of whether the denial of a "minimally
adequate education" would be subjected to heightened scrutiny. See
San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973).
As appellants have failed to provide any precedential example of a
court's actually having applied this particular mode of heightened
scrutiny analysis, we decline to embark upon this path.
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Dep't of Health, 497 U.S. 261, 303 (1990). Here, however, just as
non-funding of private secular and religious school programs does
not "burden" a free exercise of religion, it does not significantly
interfere with the appellants' fundamental right to direct the
upbringing and education of children under their control. See
Pierce, 268 U.S. at 534-35. The Supreme Court has held "in several
contexts that a legislature's decision not to subsidize the
exercise of a fundamental right does not infringe the right, and
thus is not subject to strict scrutiny." Regan v. Taxation with
Representation of Washington, 461 U.S. 540, 549 (1983); see also
Buckley v. Valeo, 424 U.S. 1, 143-44 (1976) (declining to apply
strict scrutiny to statute that provides federal funds for
candidates who enter primary campaigns but does not provide funds
for candidates who do not run in party primaries); Harris, 448 U.S.
at 316-18 (stating, "although government may not place obstacles in
the path of a [person's] exercise . . . of freedom of [speech], it
need not remove those not of its own creation."); Maher, 432 U.S.
at 476-77.
Accordingly, we apply rational basis scrutiny to the IDEA
and conclude, as did the district court, that the statutory
classification at issue here between public and private school
students bears a rational relationship to the furtherance of a
legitimate governmental purpose. Regan, 461 U.S. at 547. The
Equal Protection clause requires that all persons "similarly
-14-
situated should be treated alike." Cleburne v. Cleburne Living
Ctr., 473 U.S. 432, 439 (1985). A legislature has "substantial
latitude to establish classifications that roughly approximate the
nature of the problem perceived, that accommodate competing
concerns both public and private, and that account for limitations
on the practical ability of the State to remedy every ill." Plyler
v. Doe, 457 U.S. 202, 216 (1982). The primary purpose of the IDEA
is to guarantee a free and appropriate public education. See
Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 125 (7th Cir. 2003)
("We agree with the reasoning of these courts that IDEA's primary
purpose is to ensure FAPE . . . ."); Polera v. Bd. of Educ., 288
F.3d 478, 486 (2d Cir. 2002) (stating, "the [IDEA's] administrative
system . . . is designed to ensure that disabled students receive
the free appropriate public education to which they are entitled
. . . ."). Accordingly, the distinctions made here between
students in public school as opposed to children who are
unilaterally placed in private schools are rational. The burden
placed on local educational authorities to make FAPE available is
heavy. Congress acted rationally when it chose not to subject
local educational authorities to the even greater and perhaps
overwhelming responsibility of providing the same services to
disabled students enrolled unilaterally in private schools.
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IV.
Lastly, we agree with the district court that appellants'
substantive due process claim fails. Appellants argue that the
federal law requires them to forego their religious beliefs and
their right to control their child's education in order to obtain
the same right to FAPE and due process that other students who
receive special education services at Manchester receive. As
appellants allege that the government has attempted to condition
access to a government benefit on the relinquishment of a
constitutional right, the district court correctly analyzed this
claim under the framework of the "unconstitutional conditions"
doctrine. The court noted that both the Supreme Court and the
First Circuit have "consistently refused to invalidate laws which
condition a parent's ability to obtain educational benefits on the
parent's relinquishment of her right to send her child to private
school." See Norwood, 413 U.S. at 462 (1973); Strout, 178 F.3d at
66; Harris, 448 U.S. at 318; Maher, 432 U.S. at 477. Moreover, for
the reasons stated above, appellants' claim fails because
appellants are not forced to forego their religious beliefs or
their right to control their child's education in order to obtain
these government benefits.
We AFFIRM the decision of the district court.
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