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
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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).
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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
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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."). 
-7-

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
1To 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. 

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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
2We 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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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 nonreceipt 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
3A 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.").

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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
-11-

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. § 2000bb1(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
4Appellants 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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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
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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
-15-

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.