## 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 Specia l School Di strict of St. Louis County (SSD) to provide special education and relate d 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 F oley is an eleven year-old girl who is mildly mentally retarded. He r par ents, Daniel and Margaret Foley, placed Clare in St. Peter’s Catholic School bu t 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 precludin g publi c school educators from providing special education services on the premises of par ochial 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 specia l education services. The Foleys accepted thi s 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 C lare a free appropriate public education at Keysor public elemen tary school. Thus, the issue is whether Clare has a right to special education services at her private school.
The Hearing Panel rejected the Foleys’ c laim 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 it s spec ial education programs and “complied with all applicable policies, regulations , laws, and the Constitution of the State of Missouri.” The F oleys sought judicial review in the district court under 20 U.S.C. § 14 15(i)(2), formerly 20 U.S.C. § 1415(e)(2). In two ord ers issued March 29, 1996, and April 7, 1997, the district court grante d 1
summ ary judgment for SSD, concluding that IDEA does not require SSD to provid e special education services a t 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 mon th after the Foleys commenced this appeal, Congress enacted th e Individuals with Disabilities Education Act A mendments of 1997, Pub. L. No. 105-17, 111 Stat. 37 (1997) (the “1997 Am endments”). Courts previously construed IDEA as gr anting children with disabilities who voluntarily attend private school a right t o special education and related services. This led to litigation, such as this case, ove r where such services must be provided. See Russm an v. Sobol , 85 F.3d 1050, 1054-55 (2 d Cir. 1996), vacated and remanded , 117 S. Ct. 2502 (1997), construing prior 2 0 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 sectio n setting forth conditions States must meet to be eligible for federal educatio n 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 t

he extent consistent with the number and location of children with disabili ties in the State who are enrolled by their parents in priv ate elementary and secondary schools, provision is made for th e participation of those children in the program assisted o r carried out under th is subchapter by providing for such children special education an d related services in accordance with the following requirements . . . : (I ) Amounts expended for the provision of those services by a local edu cational 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 fre e 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 1 997 Amendments govern this appeal. See Landgraf v. USI Film Products , 511 U.S. 244, 273 (1994).

The Fole ys argue that new § 1412(a)(10)(A) gives Clare a right to specia l 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 o n § 1412(a)(10)(C)(i), SSD arg ues that the Foleys’ claim must be rejected because SSD is not “requi re[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 19 97 Amendments. See K.R. v. Anderson Community Sch. Corp. , 125 F.3d 1017 , 1019 (7th Cir. 1997), cert. denied , 118 S. Ct. 1360 (1998); Cef alu 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 no t required to pay the costs of spe cial education services for a particular child; States are requ ired only to spend proportionate amounts on special education services for thi s 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 n o individ ual 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 beThis 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 “privat e school children with dis abilities.” As used in this part, private school children with disa bilities means children with disabilities enrolled by their parents i n private schools or fa cilities other than children [who have been placed in private s chool by a public agency as a means of providing specia l education services, and children who have not been provided a fre e 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 a n 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. Th e procedures in §§ 300.504-300.515 do not apply to complaints th at [a local edu cation agency] has failed to meet the requirements of §§ 300.452

- 300.462, including the provi sion 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 propose d regulations for reas ons 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 la w compels us to conclude that the Foleys have no statutory right to the relief they seek. 2

Alternat ively, even if we construed the 1997 Amendments as granting privat e school children a right to some level of special education services, we cannot rea d § 1412(a)(10)(A)(i)(II) -- whic h provides that such services “ may be provided” on the pre mises of private schools “to the extent consistent with law” -- as mandating tha t such services be provided on private school premises when that is in consistent with-6-

Mi ssouri law. Missouri’s refusal to allow public school educators on private schoo l premises may not be mandated by the First Ame ndment, 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 th e Secretary of Education to invoke the “by-pa ss” 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.