United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 97-2419

___________

Daniel Foley and Margaret Foley, * 

as parents of Clare Keely Foley, *

*

Plaintiffs - Appellants, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri.

Special School District of St. Louis *

County, *

*

Defendant - Appellee. *

___________

Submitted: January 15, 1998

Filed: August 14, 1998

___________

Before LOKEN, FLOYD R. GIBSON, and MURPHY, Circuit Judges.

___________

LOKEN, Circuit Judge.

This is an appeal from the denial of equitable relief compelling the Special

School District of St. Louis County (SSD) to provide special education and related

services to a child at the private religious school where she was voluntarily placed by

her parents, rather than at a public school one mile away. We conclude the child has

no individual right to such services under the 1997 amendments to the Individuals with

Disabilities Education Act, 20 U.S.C. §§ 1400-1419 (IDEA). Accordingly, we affirm.
The HONORABLE DAVID D. NOCE, United States Magistrate Judge for the 1

Eastern District of Missouri. See 28 U.S.C. § 636(c).

-2-

Clare Foley is an eleven year-old girl who is mildly mentally retarded. Her

parents, Daniel and Margaret Foley, placed Clare in St. Peter’s Catholic School but

requested special education services from SSD. An evaluation team determined that

Clare should have one hour of occupational therapy, one-half hour of physical therapy,

and one hour of language services per week. The Foleys demanded those services in

Clare’s classroom at St. Peter’s but SSD refused, construing state law as precluding

public school educators from providing special education services on the premises of

parochial schools. SSD offered the Foleys a dual enrollment alternative under which

Clare would travel from St. Peter’s to a nearby public school to receive the special

education services. The Foleys accepted this arrangement under protest and requested

an IDEA due process hearing. See 20 U.S.C. § 1415(g), formerly 20 U.S.C. § 1415(c);

Mo. Rev. Stat. § 162.961. Prior to the hearing, SSD and the Foleys stipulated that the

Foleys voluntarily placed Clare at St. Peter’s after SSD offered Clare a free appropriate

public education at Keysor public elementary school. Thus, the issue is whether Clare

has a right to special education services at her private school. 

The Hearing Panel rejected the Foleys’ claim because the Missouri Constitution

and Missouri’s IDEA State Plan prohibit providing public education services in a

sectarian school, and because SSD afforded Clare “equitable participation” in its

special education programs and “complied with all applicable policies, regulations,

laws, and the Constitution of the State of Missouri.” The Foleys sought judicial review

in the district court under 20 U.S.C. § 1415(i)(2), formerly 20 U.S.C. § 1415(e)(2). In

two orders issued March 29, 1996, and April 7, 1997, the district court granted

1

summary judgment for SSD, concluding that IDEA does not require SSD to provide

special education services at a private school. Foley v. Special Sch. Dist. of St. Louis

County, 927 F. Supp. 1214 (E.D. Mo. 1996), and 968 F. Supp. 481 (E.D. Mo. 1997).
-3-

One month after the Foleys commenced this appeal, Congress enacted the

Individuals with Disabilities Education Act Amendments of 1997, Pub. L. No. 105-17,

111 Stat. 37 (1997) (the “1997 Amendments”). Courts previously construed IDEA as

granting children with disabilities who voluntarily attend private school a right to

special education and related services. This led to litigation, such as this case, over

where such services must be provided. See Russman v. Sobol, 85 F.3d 1050, 1054-55

(2d Cir. 1996), vacated and remanded, 117 S. Ct. 2502 (1997), construing prior 20

U.S.C. § 1413(a)(4) and 34 C.F.R. § 300.403; Fowler v. Unified Sch. Dist. No. 259,

107 F.3d 797 (10th Cir.), vacated and remanded, 117 S. Ct. 2503 (1997). The 1997

Amendments addressed this problem in detail by amending 20 U.S.C. § 1412(a) -- the

section setting forth conditions States must meet to be eligible for federal education

assistance -- to include a new subsection (10), which provides in relevant part:

(A) Children enrolled in private school by their parents

 (i) In general. To the extent consistent with the number and location

of children with disabilities in the State who are enrolled by their parents

in private elementary and secondary schools, provision is made for the

participation of those children in the program assisted or carried out under

this subchapter by providing for such children special education and

related services in accordance with the following requirements . . . :

 (I) Amounts expended for the provision of those services by a

local educational agency shall be equal to a proportionate amount

of Federal funds made available under this subchapter.

 (II) Such services may be provided to children with

disabilities on the premises of private, including parochial,

schools, to the extent consistent with law.

* * * * * 

(C) Payment for education of children enrolled in private schools 

 without consent of or referral by the public agency
-4-

 (i) In general. Subject to subparagraph (A), this subchapter does not

require a local educational agency to pay for the cost of education,

including special education and related services, of a child with a

disability at a private school or facility if that agency made a free

appropriate public education available to the child and the parents elected

to place the child in such private school or facility.

As the Foleys seek prospective equitable relief only, the 1997 Amendments govern this

appeal. See Landgraf v. USI Film Products, 511 U.S. 244, 273 (1994). 

The Foleys argue that new § 1412(a)(10)(A) gives Clare a right to special

education services at St. Peter’s because that location is more beneficial educationally

and no more costly than providing the services at a public school. Relying on

§ 1412(a)(10)(C)(i), SSD argues that the Foleys’ claim must be rejected because SSD

is not “require[d] . . . to pay for the cost of . . . special education . . . at [Clare’s]

private school.” The Fifth and Seventh Circuits agree with SSD’s interpretation of the

1997 Amendments. See K.R. v. Anderson Community Sch. Corp., 125 F.3d 1017,

1019 (7th Cir. 1997), cert. denied, 118 S. Ct. 1360 (1998); Cefalu v. East Baton Rouge

Parish Sch. Bd., 117 F.3d 231, 233 (5th Cir. 1997). 

The 1997 Amendments expressly provide that public school agencies are not

required to pay the costs of special education services for a particular child; States are

required only to spend proportionate amounts on special education services for this

class of students as a whole. 20 U.S.C. §§ 1412(a)(10)(A)(i)(I), 1412(a)(10)(C)(i).

Thus, whatever their rights under prior law, Clare and her parents now have no

individual right under IDEA to the special education and related services in question,

so they have no right to a federal court decree mandating that those services be
This construction of the 1997 Amendments is consistent with the Department 2

of Education’s proposed regulations interpreting those amendments:

20 C.F.R. § 300.450 Definition of “private school children with

disabilities.” As used in this part, private school children with

disabilities means children with disabilities enrolled by their parents in

private schools or facilities other than children [who have been placed in

private school by a public agency as a means of providing special

education services, and children who have not been provided a free

appropriate public education]. 

20 C.F.R. § 300.454(a) No individual right to special education

and related services. No private school child with a disability has an

individual right to receive some or all of the special education and related

services that the child would receive if enrolled in a public school.

20 C.F.R. § 300.457(a) Due process inapplicable. The

procedures in §§ 300.504-300.515 do not apply to complaints that [a local

education agency] has failed to meet the requirements of §§ 300.452-

300.462, including the provision of services indicated on the child’s IEP.

62 Fed. Reg. 55026, 55094-95 (1997); see also proposed 20 C.F.R. § 300.403, 62 Fed.

Reg. at 55093-94. Although the Tenth Circuit declined to follow the proposed

regulations for reasons it did not explain in Fowler v. Unified Sch. Dist. No. 259, 128

F.3d 1431, 1438 n.6 (10th Cir. 1997), that case is distinguishable because the child in

Fowler was entitled to relief under state law. 

-5-

provided at a particular location. This change in prior law compels us to conclude that

the Foleys have no statutory right to the relief they seek. 

2

Alternatively, even if we construed the 1997 Amendments as granting private

school children a right to some level of special education services, we cannot read

§ 1412(a)(10)(A)(i)(II) -- which provides that such services “may be provided” on the

premises of private schools “to the extent consistent with law” -- as mandating that

such services be provided on private school premises when that is inconsistent with
-6-

Missouri law. Missouri’s refusal to allow public school educators on private school

premises may not be mandated by the First Amendment, see Agostini v. Felton, 117 S.

Ct. 1997 (1997), and it may even be unfortunate education policy. But we find nothing

in the 1997 Amendments authorizing federal courts to override such a state policy.

Rather, the 1997 Amendments provide a less intrusive remedy by authorizing the

Secretary of Education to invoke the “by-pass” provisions of § 1412(f) whenever state

law frustrates the provision of services under § 1412(a)(10)(A). Cf. Pulido v. Cavazos,

934 F.2d 912, 915 (8th Cir. 1991). 

For the foregoing reasons, the judgment of the district court is affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.