Special Education Case Law Update – Week of January 14, 2013
D.L. v. Baltimore City Board Of School Commissioners, et al., 2013 U.S. App. LEXIS 1073 (4th Cir. Jan 16, 2013)
In this appellate challenge pursuant to Section 504 of the Rehabilitation Act, D.L.’s parent argue that Section 504 compelled Baltimore City Public Schools (BCPS) to provide D.L. with educational services related to certain disorders even though D.L. was enrolled exclusively in a private school. Agreeing with the earlier decisions of an administrative hearing examiner and the U.S District Court of Maryland, the Fourth Circuit found for BCPS.
D.L., an eighth grade student at the time of this case, suffered from attentiveness, focus, and impulsivity control since kindergarten. In 2007 he was diagnosed with Attention Deficit Hyperactivity Disorder, and in 2009 BCPS determined that while D.L. did not qualify for services under the Individuals with Disabilities Education Act (IDEA) he was eligible for services under Section 504. However, BCPS informed D.L.’s parents that unless D.L. enrolled in one of the district’s public schools it could not provide Section 504 services. Because Maryland law does not permit simultaneous dual enrollment in a public and private school, D.L. would have had to withdraw from the private religious school in which he was enrolled.
Section 504 states that “[n]o otherwise qualified individual with a disability in the United States . . . shall, solely by reason 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.” The implementing regulations for Section 504 require that the public school make a free appropriate public education (FAPE) to each qualified child in the district, including the provision of regular or special education aids and services designed to meet the individual needs of that child.
D.L. parents argued that these regulations required BCPS to provide D.L a FAPE at a public school even while he is enrolled and attending a private school, asserting the regulatory language required BCPS to go further than just making a FAPE available. While the Court acknowledged that the plain language of the statute and regulations were not clear in this regard, it relied on an opinion letter issued by the Department of Education’s Office for Civil Rights stating that a district is not obligated by Section 504 for the provision of educational services to students not enrolled in the public education program based on a personal choice of the parent(s). The Court found that it was required to grant deference to the opinion letter as the Department of Education’s interpretation of its own regulations. The Court further noted that a comparison of the IDEA and Section 504 supported the opinion letter. Essentially, the Court found that the IDEA and its regulations establish that no parentally-placed child has a right to receive any special education or related services that the child would receive if enrolled in a public school. Because all students who are eligible for services under the IDEA are also eligible for services under Section 504, the Court noted that the parent’s argument would entitle all IDEA-eligible students in a private school to nevertheless receive full services under Section 504, contrary to the express language of the IDEA. Further holding that Section 504 prohibits discrimination on the basis of disability, but not school choice, the Court discussed the financial and logistical burdens that would be imposed on a district should the district be obligated to provide Section 504 services at private schools.
Addressing a related challenge by the parents – that BCPS’s prerequisite that private school students withdraw from private religious institutions and enroll in public schools to access Section 504 services is a violation of Constitutional rights – the Court found that the parents retained full discretion over which school D.L. attends. The Court held that the Free Exercise Clause of the Constitution was not violated merely because BCPS’s actions pursuant to Maryland law caused economic disadvantage to individuals who choose to practice their religion in a specific manner. D.L.’s parents were required to shoulder the full cost of their decision to exercise their religious beliefs, including as here, the full cost of services that D.L. required to address his challenges. The parents’ case and appeal was dismissed.