# United Stat es Court of Appeals For the First C ircuit

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, PAwas on brief for appellants. Dean B. Eggert with whom Jennifer L. Murphyand Wadleigh, Starr & Peters, PLLC were on brief for appellee.

July 1, 2004-2- CAMPBELL, Senior Circuit Judge . A ppeali ng 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 disabl ed public school students under the rubric of free and appropriate public education (FAPE), nor to the due process hearing providedto public school students alone. Appel lants 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 Am endmen t 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

summar y j udgment and denied summary judgment to appellants. GaryS. v. Manchester Sch. Dist. , 241 F. Supp. 2d 111, 123 (D.N.H. 2003).-3- On appeal, appellants reiterate their contentions. After carefullyconsidering 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 publishedMemorandum and Order. Id. at 117-123. We see, therefore, no need to go over ye t again a ll of the groundwork coveredthere. 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 tha t 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 , acco rdi ng 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).-4-

Gary S. , 241 F. Supp. 2d at 120-21.

IDEAand its regulations, the district court says, do not target religiously motivated conduct andis "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 con stitut ional claim, the district court found no violation of free exercise rights. Id. We do not disagree.

Appellants reject the dist rict court's analysis. They ask us to read Smith as limited to instances of socially harmful or criminal conduct. They poin t 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 S ec. D iv. , 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 hel p produce armaments. Holding that the denial of a public benefit in these circumstances burdenedplain tiff's religion, the Court ruled that, in order to jus tif yan action having such an effect under the free-exercise clause, the government had to demonstrate that the withholding of-5-

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 likenedthe 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, theysay, by withholding from him the identical benefits granted to his peers at public schools.

It is not al ways easy to predict what analytical framework the Supreme Court will apply to the vari ous, f actually dissimilar free exercise cases that arise. Smithrejected a free exercise claim involving the r elig iously-based use of peyote, an illega l subs tance. Writing for five of the Justices, Justice Scalia endorsed the constitutionality of neutral, generally applicable laws even when they imp inged incidentally upon individual religious practices. Smith , 494 U.S. at 881, 885. The Smith majority expresslylimited 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' p re sent argument that-6-

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 goodlaw, albeit reflective when written of the thinking of a

narrow majority of justi ces, 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); Cityof 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 Har v. L. Rev. 1810, 1853 (2004) (describing the "current Smith-Boerne doctrine"); Notes, "They Drew

a Circ le That S hut 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 reiteratedits 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 o f D iscrimination , 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 fundamenta l reas on causes us to reject appellants' First Amendment arguments. We c a nnot accept appellants' contention that providing to all disabledattendees at private schools, both sectarian and secular, few er b enefits than those granted to public school attendees is truly analogous to denying unemployment benefits to persons fired because of their religiously-inspiredinsistence 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 themhad their religiously-motivated refusal to work

on a certain day or at a certain job not been erroneouslyviewed 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 deprivedof a generally available public benefit. Rather, the benefits to wh ich ap pellants lay claim under the First Amendment

are benefits the federal government has earmarke d so lely for students enrolledin the nation's public schools -- benefits still1 T o be sure, the Court has recently permitted a stat e

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. -8- avail able 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 onlyif they transfer them to a public school. To be sure, parents have a protected right to sendtheir 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. Norwoodv. Harrison , 413 U.S. 455, 462 (1973) (in affirming "right of private schools to exist and operate . . . [ Pierce ] s aidnothing of any supposed right of private or parochial schools to share with public schools in state largesse, on an equal basis or otherwise."). 12 We recognize the disability program providedto Andrew is not

one furnished directly by the Catholic school, but is instead run bypublic authorities for children who attend private school. But we see no distinction in principle. It is, of course, also true that th e federal government and state are here actually funding programs for disabled children such as Andrew, the complaint being not th e tot al 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 andstate governments are entitled to fund programs associatedwith 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 expectedin our society nor required.

-9-

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 up on C ongress's mere failure to provide to disabled children attending private religious schools the identical financi a l and other benefits it confers upon those attending public sc hool s. 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" upo n 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 be3 Afurther anomaly of such a holding woul d be that only

persons such as appellants, with a declared religious belief in the necessityof sending thei r chil dren to private schools, would be entitledunder the First Amendment to the funding sought. Other students, including those in secular private schools, wouldlack 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 constitutionallysuspect. 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 pro gram] . If any roomexists between the two Religion Clauses, it must be here. We neednot venture further into this difficult area in order to upholdthe [funding program] as currently operated by the State of Washington."). -10- curedby 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 findfree exe rcise 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 wit h pare nts 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 permittedto share with public schools in state largesse on an equa l ba sis. See, e.g. , Norwoodv. Harrison , 413 U.S. at 462; Harris v. McRae , 448 U.S. 297, 317-18 (1 980); 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 (1 st 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 und er th e 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 l ikely, no funding to private schools, religious and otherwise. This methodology leaves all parents with ultimate

recou rse 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 nec essitate 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 g ove rnment's failure to provide to disabled children attendi ng C atholic schools the same benefits as it provides to disabled public school children applies-12-

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 thei r children at religious schools. Theyassert 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 In ternal Revenue , 490 U.S. 680, 699 (1989) (stating, "It is not within the judicial ken to question the cen tralit y 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 t he insurmountable hur dle 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 free4 Appellants 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 shouldbe analyzed under heig hte ned scrutiny. They concede that the Supreme Court foundthere 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 appliedthis particular mode of heightened scrutiny analysis, we decline to embark upon this path. -13- 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 infringedupon their fundamental right to dire ct Andrew's upbringing and education 4 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, shouldbe subjected to strict scrutiny. See Pierc e , 26 8 U.S. at 534-35. To be sure, if a req uir ement imposed by a state significantlyinterferes with the exercise of a fundamental right, it cannot be upheld unle ss it is supported by sufficiently important state interests and is closely tailored to effectuate onlythose interests. See, e.g. , Cruzan v. Director, Missouri-14-

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 inte rfere 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. Ta xation with Repres entati on of Washington , 461 U.S. 540, 549 (1983); see also Buckleyv. Valeo , 424 U.S. 1, 143-44 (1976) (declining to apply strict scrutiny to statute that provid es f ederal 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 andconclude, as did the district court, that the statutory classification at issue here between publi c an d private school students bears a rational relationship to the furtherance of a legitimate governmental purpose. Regan , 461 U.S. at 547. The Equal Protection claus e requ ires that all persons "similarly-15-

situatedshould be t rea ted 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, t hat accommodate competing

concerns both public andprivate, 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.3d478, 486 (2d Cir. 2002) (stating, "the [IDEA's] administrative system . . . is designed to ensure that disabled students receive the free appropriate public ed ucatio n to which they are entitled

. . . ."). Accordingly, the distinctions made here between students in public school as opposed to children who are unilaterallyplaced in private s chools 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 overwhelm in g responsibility of providing the same services to disabled students enrolled unilaterally in private schools.-16- IV. Lastly, we agree with the district court that appellants' substan tiv e due process claim fails. Appellants argue that the federal law requires them to for ego 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 studen ts w ho receive special education services at Manchester receive. As appellants allege that the gov ernment has attempted to condition

access to a government benef it on the relinquishment of a consti tuti onal right, the district court correctly analyzed this claimunde r the framework of the "unconstitutional conditions" doctrine. The court noted that both t he S upreme Court and the First Circuit have "consistently refused to invalidate laws which condition a parent's abilityto 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 stat ed a bove, 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.