D.L. v. Baltimore City Board of School Commissioners

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

D.L., by and through his Parents 

and Guardians, K.L. and S.L.;

K.L.; S.L., in their own right,

Plaintiffs-Appellants,

v.

BALTIMORE CITY BOARD OF SCHOOL

COMMISSIONERS,

Defendant-Appellee,

and

 No. 11-2041

BALTIMORE CITY PUBLIC SCHOOLS,

Defendant.

NATIONAL SCHOOL BOARDS

ASSOCIATION; MARYLAND

ASSOCIATION OF BOARDS OF

EDUCATION; VIRGINIA SCHOOL

BOARDS ASSOCIATION,

Amici Supporting Appellee.



Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Marvin J. Garbis, Senior District Judge.

(1:10-cv-02834-MJG)

Argued: October 25, 2012

Decided: January 16, 2013

2 D.L. v. BALTIMORE CITY BOARD OF SCHOOL COMMISSIONERS

Before NIEMEYER, GREGORY, and THACKER,

Circuit Judges.

Affirmed by published opinion. Judge Gregory wrote the

opinion, in which Judge Niemeyer and Judge Thacker joined.

COUNSEL

ARGUED: David G. C. Arnold, West Conshohocken, Penn-

sylvania, for Appellants. Leslie Robert Stellman, HODES,

PESSIN & KATZ, PA, Towson, Maryland, for Appellee. ON

BRIEF: Katharine A. Linzer, LINZER LAW, LLC, Towson,

Maryland, for Appellants. Tammy L. Turner, Tiffany Sharnay

Puckett, Stephanie J. Robinson, CITY BOARD OF SCHOOL

COMMISSIONERS, Baltimore, Maryland, for Appellee.

Francisco M. Negrón, Jr., NATIONAL SCHOOL BOARDS

ASSOCIATION, Alexandria, Virginia; John F. Cafferky,

Andrea D. Gemignani, BLANKINGSHIP & KEITH, PC,

Fairfax, Virginia, for Amici Supporting Appellee.

OPINION

GREGORY, Circuit Judge:

Appellants D.L. and his parents, K.L. and S.L., appeal the

district court’s grant of summary judgment to the Baltimore

City Board of School Commissioners ("BCBSC") and Balti-

more City Public Schools. They contend that Section 504 of

the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("Section

504"), compels BCBSC to provide D.L. educational services

related to certain disorders even though D.L. is enrolled

exclusively in a private religious school. They also claim that

BCBSC’s requirement that D.L. attend a public school in

D.L. v. BALTIMORE CITY BOARD OF SCHOOL COMMISSIONERS 3

order to receive Section 504 services is unconstitutionally

burdensome on their right to make educational decisions

under Wisconsin v. Yoder, 406 U.S. 205 (1972), and Pierce v.

Society of Sisters, 268 U.S. 510 (1925). Because we do not

read Section 504 to apply an affirmative obligation on school

districts to provide services to private school students and

because Appellants retain full educational discretion, we

affirm the district court’s ruling.

I.

D.L., who was in eighth grade when he and his parents

filed this case in 2010, has suffered from difficulties with

attentiveness, focus, and impulsivity since he was in kinder-

garten. In 2007, D.L.’s parents brought him to a specialist

who diagnosed him with Attention Deficit Hyperactivity Dis-

order ("ADHD") and anxiety. In 2009, BCBSC determined

that D.L. did not qualify for services under the Individuals

with Disabilities Education Act, 20 U.S.C. § 1400 ("IDEA"),

but that he was eligible under Section 504. However, BCBSC

informed D.L.’s parents that they could not provide Section

504 services unless D.L. enrolled in one of the district’s pub-

lic schools. Because Maryland law does not permit simulta-

neous dual enrollment in a private and public school, D.L.

would have had to withdraw from his Yeshiva—a private reli-

gious school he attended at the time—to enroll in a local pub-

lic school.

D.L.’s parents challenged BCBSC’s position before a Hear-

ing Examiner appointed by BCBSC. After the examiner

decided that Section 504 does not require that BCBSC allow

D.L. to access special education services while enrolled in a

non-public school, the parents brought suit in the United

States District Court of Maryland. BCBSC filed a motion for

summary judgment, and D.L. and his parents responded with

their own motion for partial summary judgment. On August

4 D.L. v. BALTIMORE CITY BOARD OF SCHOOL COMMISSIONERS

30, 2011, the court granted BCBSC’s motion and denied

Appellants’. Appellants timely appealed.1

II.

We review the district court’s grant of a motion for sum-

mary judgment de novo. Nader v. Blair, 549 F.3d 953, 958

(4th Cir. 2008). Summary judgment is appropriate only where

there is no genuine issue of material fact and the movant is

entitled to judgment as a matter of law. Seremeth v. Bd. of

Cnty. Comm’rs Frederick Cnty., 673 F.3d 333, 336 (4th Cir.

2012). In determining whether a genuine issue of material fact

exists, we view the facts, and draw all reasonable inferences,

in the light most favorable to the non-moving party. Bonds v.

Leavitt, 629 F.3d 369, 380 (4th Cir. 2011).

Section 504 states that "[n]o otherwise qualified individual

with a disability in the United States . . . shall, solely by rea-

son of her or his disability, be excluded from the participation

in, be denied the benefits of, or be subjected to discrimination

under any program or activity receiving Federal financial

assistance . . . ." 29 U.S.C. § 794. The implementing regula-

tions for Section 504 require that public schools make a FAPE

available "to each qualified handicapped person who is in the

recipient’s jurisdiction . . . ." 34 C.F.R. § 104.33(a). An

appropriate education includes "provision of regular or special

education and related aids and services that . . . are designed

to meet individual educational needs of handicapped persons

. . . ." 34 C.F.R. § 104.33(b)(1). As long as the public schools

make a FAPE available, they bear no obligation to pay for a

child’s education in a private school. 34 C.F.R.

§ 104.33(c)(4).

1

While this appeal was pending, D.L. enrolled at a boarding school in

Richmond, Virginia for the 2012-13 school year. We ordered the parties

to submit supplemental briefing on the question of whether D.L.’s move

to Richmond rendered this case moot. As of December 26, 2012, D.L. has

left the Richmond program and returned home to Baltimore. As such,

there is no grounds for a mootness finding and we do not consider it here.

D.L. v. BALTIMORE CITY BOARD OF SCHOOL COMMISSIONERS 5

Appellants argue that these regulations mandate that

BCBSC provide D.L. with a FAPE at a public school even

while he continues to enroll in and attend a private school.

They read the language, "provide each Section 504 eligible

student within its jurisdiction with a [FAPE]" to mean that

public schools need to go further than just making the educa-

tion available. See 34 C.F.R. § 104.33(a).

The plain language of the statute and the regulations does

not make clear whether public schools are required to provide

services to students enrolled in private schools. While

§ 104.33(c)(4) does state that public schools need not finance

a child’s "education" in private school, it is unclear whether

the term "education" here encompasses special education ser-

vices. Appendix A to Part 104 of the regulations provides

some clarification, "[i]f . . . a recipient offers adequate ser-

vices and if alternate placement is chosen by a student’s par-

ent or guardian, the recipient need not assume the cost of the

outside services." 34 C.F.R. § 104 app. A. However, while the

Appendix explains that a public school need not pay for ser-

vices when a parent accesses those services from a provider

other than the public school, it does not answer whether a pri-

vate school student can access those services from the public

school itself.

The Department of Education’s Office for Civil Rights

issued a direct clarification of the disputed regulation in an

opinion letter. OCR Response to Veir Inquiry Re: Various

Matters, 20 IDELR 864 (1993) ("Letter to Veir"). Letter to

Veir states, in part, "[w]here a district has offered an appropri-

ate education, a district is not responsible under Section 504,

for the provision of educational services to students not

enrolled in the public education program based on the per-

sonal choice of the parent or guardian." Id. Appellants attempt

to parry Letter to Veir by arguing that it is a response to ques-

tions related to the provision of services at home for a

homeschooled student whereas D.L. is willing to come to the

public school to receive services. However, while the question

6 D.L. v. BALTIMORE CITY BOARD OF SCHOOL COMMISSIONERS

posed to OCR in Letter to Veir does specifically request clari-

fication about whether a public school must provide services

at home, OCR does not similarly cabin its response.

Where a regulation is ambiguous we must grant deference

to an agency’s interpretation of its own regulation. Auer v.

Robbins, 519 U.S. 452 (1997); see also Christensen v. Harris

Cnty., 529 U.S. 576, 588 (2000); Humanoids Grp. v. Rogan,

375 F.3d 301, 306 (4th Cir. 2004). We grant Auer deference

even when the agency interpreting its regulation issues its

interpretation through an informal process, such as an opinion

letter. Humanoids Grp., 375 F.3d at 306; Bassiri v. Xerox

Corp., 463 F.3d 927, 930 (9th Cir. 2006) (Department of

Labor’s interpretation of its own regulations as explained in

opinion letters deserved Auer deference). Where an agency

has made an interpretation of its own regulation, as the

Department of Education has done in Letter to Veir, that inter-

pretation is controlling unless it is "plainly erroneous or

inconsistent with the regulation." See Auer, 519 U.S. at 461.

A comparison of IDEA and Section 504 lends support to

Letter to Veir’s interpretation of 34 C.F.R. § 104.33(c)(4). A

requirement that extends to provision of services while stu-

dents are enrolled in private schools creates an inescapable

conflict with the limitations that Congress placed on school

district responsibilities under IDEA. Before Congress

amended IDEA in 1997, courts had interpreted IDEA as

granting eligible children enrolled in private schools an indi-

vidual right to special education and services. Foley v. Special

Sch. Dist. of St. Louis Cnty., 153 F.3d 863, 864 (8th Cir.

1998). The 1997 amendments, however, clarified that states

only had to allocate a proportionate amount of funds received

from the federal government to eligible students in private

schools.2 20 U.S.C. § 1412(a)(10)(A)(i). The amendments and

2

The amount of funds a state receives from the federal government is

only a small fraction of the cost of providing for the special education of

students. Russman v. Bd. of Educ. of City of Watervliet, 150 F.3d 219, 221

(2d Cir. 1998). As such, a state is only required to allocate a proportionate

amount of this small fraction to eligible private school students. Id.

D.L. v. BALTIMORE CITY BOARD OF SCHOOL COMMISSIONERS 7

related regulations established that "[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 ser-

vices that the child would receive if enrolled in a public

school." 34 C.F.R. § 300.137. Under Appellants’ interpreta-

tion of Section 504, however, school districts would have to

provide and fully fund services that an eligible private school

student requested under a Section 504 plan. Because all stu-

dents who are eligible for services under IDEA are also cov-

ered for those services under Section 504, this scenario would

entitle all IDEA-eligible students in a private school to full

services using Section 504. See Letter to Williams, 21 IDELR

73 (OSEP 1994). In other words, Appellants’ interpretation of

Section 504 would create an individual right to special educa-

tion and related services where none exists. This interpreta-

tion flies directly in the face of the limitations that Congress

imposed on school districts’ obligations under IDEA by read-

ing an affirmative obligation into Section 504, an anti-

discrimination statute. See Sellers v. Sch. Bd. of City of

Manassas, Va., 141 F.3d 524, 528 (4th Cir. 1998).

Nonetheless, Appellants argue that Section 504 must be

interpreted broadly because it is a remedial statute. See Con-

sol. Rail Corp. v. Darrone, 465 U.S. 624, 634 (1984) (stating

that Section 504 has a remedial purpose). Indeed, the

Supreme Court has given credence to the familiar canon of

statutory construction that remedial legislation should receive

a broad interpretation to effectuate its purposes. Tcherepnin v.

Knight, 389 U.S. 332, 336 (1967). Appellants believe this

canon compels the conclusion that Section 504 requires

school districts to provide services to all eligible students,

including private school students, within their jurisdiction.

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. See 34 C.F.R.

§ 104.4(b)(1)(ii)-(vii); Burke Cnty. Bd. of Educ. v. Denton,

8 D.L. v. BALTIMORE CITY BOARD OF SCHOOL COMMISSIONERS

895 F.2d 973, 984 (4th Cir. 1990). Further, we have noted that

Section 504 "is not intended to impose an affirmative obliga-

tion on all recipients of federal funds." Id. Public schools are

only required to make a FAPE available on equal terms to all

eligible children within their district. Because BCBSC pro-

vided D.L. with access to a FAPE on equal terms with all

other eligible students in the district, it has satisfied Section

504’s imperative.

Appellants argue that the universal coverage of Section

504’s "child find obligation" implies that the district is

responsible for universal provision of services. A school dis-

trict must meet its child find obligations by "[u]ndertak[ing]

to identify and locate every qualified handicapped person" in

the school’s district and "[t]ak[ing] appropriate steps to notify

handicapped persons and their parents or guardians of the

recipient’s duty." 34 C.F.R. § 104.32(a)-(b). Indeed, courts

and commentators alike have recognized the child find obliga-

tion as an affirmative obligation. See N.G. v. District of

Columbia, 556 F. Supp. 2d 11, 16 (D.D.C. 2008); Amy L.

MacArdy, Jamie S. v. Milwaukee Public Schools: Urban

Challenges Cause Systemic Violations of the IDEA, 92 Marq.

L. Rev. 857, 863 (2009). But, the affirmative obligation is to

ensure universal access and awareness, not universal provi-

sion. Because of Section 504 and its child find provision, chil-

dren like D.L. know they have the opportunity to enroll in

public school to take advantage of services available to all eli-

gible individuals. But, this child find obligation differs from

a school district’s obligations for service provision under Sec-

tion 504, which are not affirmative. See Burke Cnty. Bd. of

Educ., 895 F.2d at 984. Section 504 and its implementing reg-

ulations do not require that public schools provide access to

eligible individuals that opt out of the program by enrolling

in private schools.

The practical and programmatic challenges associated with

reading an affirmative universal service provision requirement

into Section 504 provide additional support for limiting ser-

D.L. v. BALTIMORE CITY BOARD OF SCHOOL COMMISSIONERS 9

vice provision to students enrolled in public schools. Many of

the services provided under Section 504 must take place in

"real time" during class. Harvey C. Parker, The ADHD Hand-

book for Schools 93-128 (2006) (discussing nine prevalent

classroom-based interventions used for children with ADHD).

For instance, for a student with ADHD, schools often need to

implement individualized structuring, cueing, and reinforce-

ment while a class session is taking place to improve behavior

and learning. See Gerard A. Gioia & Peter K. Isquith, New

Perspectives on Educating Children with ADHD: Contribu-

tions of the Executive Functions, 5 J. Health Care L. & Pol’y

124, 147-51 (2002). A public school would have to send its

staff to D.L.’s private school to initiate and implement these

methodologies. Coordination between teachers, psychologists,

aides, and other public school staff is essential to carrying out

an effective Section 504 program. It would be taxing on staff

and budgets alike to organize this sort of coordination where

the child is split between school sites. Last, it would be

extremely difficult to coordinate the calendars, start and stop

times, and transportation of multiple private and religious

schools with each public school where service provision takes

place.

Appellants rely heavily on a single case out of the Pennsyl-

vania Supreme Court to rebut the many arguments that work

against their interpretation. In Lower Merion School District

v. Doe, 931 A.2d 640, 641 (Pa. 2007), a kindergarten-aged

child, Doe, was not eligible for special education services

under IDEA, but did qualify to receive occupational therapy

under Section 504. Pursuant to a Pennsylvania law allowing

dual enrollment, Doe’s parents placed him in a private all-day

kindergarten program to attend classes and in a public school

to receive the therapy that the school district offered. Id. The

school district refused to provide services to Doe unless the

student took classes at the public school. Id. The court inter-

preted both Section 504 and Pennsylvania’s implementing

regulations that state that a school district must provide ser-

vices to any eligible student enrolled in the district. Id. at 643-

10 D.L. v. BALTIMORE CITY BOARD OF SCHOOL COMMISSIONERS

44. The regulations did not specify that a student must actu-

ally take classes to gain access to services. Id. at 644. As such,

the court concluded that "[s]ince Doe is entitled to § 504 ben-

efits and dually enrolled in private school and the District’s

school, we hold the District is required to provide appropriate

§ 504 entitlements." Id. at 645.

Lower Merion fails to lend insight into this case because

the court’s analysis hinges on Pennsylvania’s dual enrollment

provisions. Unlike Pennsylvania, Maryland does not permit

dual enrollment. While the Lower Merion court does engage

in analysis of Section 504’s FAPE requirements, it does not

specify whether such requirements would apply where a stu-

dent is not dually enrolled. The Third Circuit limited Lower

Merion’s holding accordingly when it decided in a subsequent

case that a student was not entitled to Section 504 services

because she did not continue her enrollment in a public school

after she had transferred to a private school. Lauren W. ex rel.

Jean W. v. DeFlaminis, 480 F.3d 259, 273-74 (3d Cir. 2007).

It is also notable that the Lower Merion court ignored Letter

to Veir, which would have directly contradicted the court’s

holding if Doe was not dually enrolled.

Appellants attempt to avoid this interpretation of Lower

Merion by arguing that Maryland’s laws prohibiting dual

enrollment violate the Supremacy Clause of the United States

Constitution. See U.S. Const. art. VI, cl. 2. The argument is

circular. Maryland’s prohibition against dual enrollment only

violates the Supremacy Clause if Section 504 requires provi-

sion of services to students regardless of their school choice.

Because we hold that it does not, there is no conflict between

Maryland’s law and Section 504.

Overall, the administrative guidance, statutory purpose,

case law, and policy considerations compel our holding that

D.L. is not entitled to Section 504 services if he remains

enrolled at a private institution.

D.L. v. BALTIMORE CITY BOARD OF SCHOOL COMMISSIONERS 11

We next address whether BCBSC’s prerequisite that pri-

vate school students cease enrollment in private religious

institutions and enroll in public schools in order to access Sec-

tion 504 services is a violation of their constitutional rights

under Pierce, 268 U.S. 510 and Yoder, 406 U.S. 205.

In Pierce, the Supreme Court struck down an Oregon law

that would have forced parents to send their children to public

schools. 268 U.S. at 530-31. The Court explained that "[t]he

child is not the mere creature of the state; those who nurture

him and direct his destiny have the right, coupled with the

high duty, to recognize and prepare him for additional obliga-

tions." Id. at 535. In Yoder, members of the Amish religion

were convicted for violating Wisconsin’s compulsory educa-

tion law requiring that students attend school until the age of

16. 406 U.S. at 207. The church members argued that a com-

pulsory education system violated their First and Fourteenth

Amendment rights because their religious beliefs required that

they leave school after the eighth grade to separate themselves

from worldly influence. Id. at 209-10. The Court held for the

church members, noting that they had presented extensive

evidence that compulsory education "would gravely endanger

if not destroy the free exercise of [their] religious beliefs." Id.

at 219.

The critical distinction is that Pierce and Yoder addressed

laws requiring that students attend public schools or face

criminal repercussions, while Appellants retain full discretion

over which school D.L. attends. Nonetheless, Appellants

argue that BCBSC’s interpretation of the law creates an undue

burden on their constitutional rights, presumably by forcing a

decision between religious and educational freedom, on the

one hand, and bearing the increased cost of services, on the

other.

BCBSC’s policy may raise the overall cost of D.L.’s pri-

vate education, but this does not offend D.L.’s constitutional

rights. The Supreme Court has explained that a statute does

12 D.L. v. BALTIMORE CITY BOARD OF SCHOOL COMMISSIONERS

not violate the Free Exercise Clause merely because it causes

economic disadvantage on individuals who choose to practice

their religion in a specific manner. Braunfield v. Brown, 366

U.S. 599, 606 (1961). In McCarthy v. Hornbeck, 590 F. Supp.

936 (D. Md. 1984), parents of children attending private reli-

gious schools brought a Free Exercise claim against the Mary-

land schools. They alleged that a school transportation system

that provides transportation exclusively to public school stu-

dents places an impermissible burden on the free exercise of

religion because it "conditions eligibility for an otherwise

available general welfare benefit upon the non-assertion of

plaintiffs’ right to send their children to private, church-

related schools." Id. at 938-39. The court found that the

school transportation system did not infringe on plaintiffs’

rights because "at most [it placed] an indirect economic bur-

den on plaintiffs’ right to freely exercise their religion." Id. at

945. Similarly, BCBSC’s policy does not substantially

infringe on Appellants’ right to attend a private religious

school. D.L.’s parents must shoulder the full cost of their

decision to exercise their religious beliefs. Here, the full cost

of education includes the cost of services that D.L. needs to

address his challenges.

Appellants’ assertion that BCBSC’s policy creates an

undue burden also clashes with case law upholding govern-

ment’s ability to make policies and curricular decisions in the

best educational interest of students. In Hooks v. Clark

County School District, 228 F.3d 1036, 1037-38 (9th Cir.

2000), a family argued that it was unconstitutional for a

school district to deny speech therapy services at a public

school to an IDEA-eligible homeschooled child. The court

held that "attaching receipt of IDEA services to institutional

school attendance . . . constitutes ‘reasonable government reg-

ulation’ that does not offend our Constitution. Id. at 1042

(quoting Runyon v. McCrary, 427 U.S. 160, 178 (1976)). The

court explained that while the plaintiff might "have a constitu-

tional right to educate [their child] at home, they do not have

D.L. v. BALTIMORE CITY BOARD OF SCHOOL COMMISSIONERS 13

a constitutional right to state-funded speech therapy services."

Hooks, 228 F.3d at 1042.

Similarly, in Swanson v. Guthrie Independent School Dis-

trict No. I-L, 135 F.3d 694, 699 (10th Cir. 1998), plaintiffs

argued that they had a constitutional right to homeschool their

child pursuant to their religious beliefs and send their children

to a public school on a part-time basis to take selected

courses. The school board prevented them from doing so

because of a policy prohibiting part-time attendance. Id. The

court held that the school district’s policy was proper because

the district had the right to allocate resources and control cur-

riculum as it saw fit. Id. at 700.

The right to a religious education does not extend to a right

to demand that public schools accommodate Appellants’ edu-

cational preferences. BCBSC has legitimate financial, curricu-

lar, and administrative reasons to require that D.L. enroll

exclusively in a public school in order to take advantage of

Section 504 services. The school board need not serve up its

publicly funded services like a buffet from which Appellants

can pick and choose. See Swanson, 135 F.3d at 700.

Because Appellants retain full discretion over school

enrollment and because BCBSC has taken reasonable mea-

sures to fulfill its mission, we find that BCBSC’s policies

place no undue burden upon Appellants’ constitutional rights.

III.

For the reasons discussed above, we affirm the decision of

the district court.

AFFIRMED