## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-3608

___________ Joan Peter; Sarah Peter, a minor, by and * through her parent and natural guardian * Joan Peter, *
* Plaintiffs, *
* Krista Westendorp; Douglas Westendorp;* Aaron Westendorp, a minor, by and * through his parents and natural guardians * Krista Westendorp and Douglas * Westendorp, *
* Appellants, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota. Robert Wedl, Commissioner, Minnesota * Department of Children, Families and * Learning; Arne Carlson, Governor, State * of Minnesota; Independent School * District, No. 877, Buffalo, Minnesota, *
* Defendants, *
*
* Independent School District, No. 273, * Edina, Minnesota, *
* Appellees. *-2- ___________ Submitted: June 11, 1998 Filed: September 15, 1998

___________ Before BEAM, ROSS, and MAGILL, Circuit Judges.

___________ MAGILL, Circuit Judge.

Aa ronWestendorp is a severely disabled child who requires a full-tim e para professional to function in a school classroom. Minnesota Independent Schoo l Distr ict No. 273 (ISD No. 273) refused to provide Aaron with a paraprofessional a s long as he attended a private religious school, and Aaron's parents brought this suit for damages and equitable relief against the school district. The Westendorps alleged that, by denying Aaron a paraprofessional in his private religious school, ISD No. 27 3 violated their rights of free speech, free exercise of religion, and equal protection under the F irst and Fourteenth Amendments, as well as their rights under the Religiou s Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. §§ 2000bb to 2000bb-4 (1994), the Ind ividuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-1491 o (1994), and Minnesota state law. The district court granted summary j udgment in favor of ISD No. 273, and Aaron's parents now appeal. We reverse.

I.

Aaron is a twelve-year-old boy who lives in Edina, Minnesota. Aaron suffers from a brain stem lesion which causes spastic quadriparesis, a part ial paralysis from the eye s down. Although Aaron has normal cognitive abilities, he cannot speak, an d communicates through finger signing. He breathes through a tracheostomy tube and-3-

eats through a gastrostomy tube. Because of his severe physical disabilities, Aaro n require s a full-time paraprofessional while in school. The paraprofessional assist s Aaron with his disabilities, translates his fin ger spelling, and adapts classroom tasks for Aaron. The cost of a paraprofessional is approximately $10,000 per year, and is th e same whether Aaron attends a public school or a private school.

Aaron's pa rents wish him to attend Calvin Christian School, a K-8 privat e
re ligious school in Edina. Aaron's two sisters attended Calvin Christian School, an d Aaron was able to attend the school from 1991 until 1994. During this time, th e Westendorps' church paid for Aaron's paraprofessional. When the Westendorp s change d churches, however, the burden to pay for the paraprofessional fell on them

. With help from rela

tives, the Westendorps could afford Aaron's tuition, but they could not afford the cost of a paraprofessional. Because ISD No. 273 would not pay for a parapr ofessional for Aaron if he attended Calvin Christian School, the Westendorp s were forced to transfer Aaron to a public school in Edi na. Aaron has attended an Edina public school, with the services of an ISD No. 273-funded paraprofessional, from 1994 until the present.

When ISD No. 273 first refused to provide Aaron a paraprofessional if h e attended Calvin Christian School, Minnesota law prohibited school districts fro m providing such servi ces at private religious schools. See Minn. R. 3525.1150 subpt. 2 (al lowing special education services only at a "neutral site"); Minn. Stat. § 123.93 2 sub division9 (defining "neutral site" as "a public center, a nonsectarian nonpubli c school, a mobile unit located off the nonpublic school premises, or any other location off the nonpublic school premises which is neither physically nor educationall y identified wi th the functions of the nonpublic school"). Wayne Erickson, the manager of the Division of Special Education in the Minnesota Dep artment of Children, Families and Learning, explained that, under this rule, a school district "[m]aynot provide special instruction services in a nonpublic school if that nonpublic school is a religious o r sectarian school." Erickson Dep. (May 22, 1997) at 46, reprinted in J.A. at 270. By-4-

contrast, where a student in a private nonreligious school required special educatio n service s that "can very easily be provided in the child's regular classroom withou t impairing [the child's] ability to operate," Erickson stated that "it would be the state' s policy it should be provided i n the regular classroom." Id. at 57-58, reprinted in J.A. at 281-82; see also Minn. R. 3525.1150 subpt. 1 (providing that school districts mus t "make available special education to all students who are disabled re gardless of whether they attend a nonpublic school").
Penny Kodrich, the Director of Special Services for ISD No. 273, acknowledged that Minnesota Rule 3525.1150 prohibited ISD No. 273 from providing services t o Aaron at Calvin Christian School, see Kodri ch Dep. (July 17, 1997) at 68-69, reprinted in J.A. at 453-54, and that Minnesota Rule 3525.1150 was an "independent rational e fo r the School District's policy" of refusing services at private schools. See Kodric h Af f. (July 17, 1997) ¶ 6, reprinted in J.A. at 152-53. However, Kodrich also asserted that, in order to ensure the quality and integration of services and to contain costs:
It has been the consistent policy of Independ ent School District 273 to not prov ide direct on-site special education and related services to disable d
sc hool-age students who have been placed by their parents or guardian s in pr ivate schools. That policy applies to all private school[s] regardless of whether they are religious or secular in nature.

Id. ¶ 2, reprinted in J.A. at 150.
Despite its unwritten "consistent policy" of not providing special educatio n services t o students at private schools, ISD No. 273 has provided special educatio n
s e rvices to students at private nonreligious preschools, see ISD No. 273's Answers to Pls.' First Set of Interrogs. (June 15, 1997) at 2, reprinted in J.A. at 521 ("the Schoo l District has provided students who were placed by their parents in non-sectarian private preschool programs with direct on-site sp ecial education and related services"), as well-5-

as at the homes of home-schooled disabled children. See Kodrich Dep. at 122 , reprinted in

J.A. at 507. While Kodrich admitted that at least one other disabled student had been denied paraprofessional services at a private religious school by ISD No. 273, Kodrich could not recall any student who had been denied paraprofessional services at a private nonreligious school. See id. at 73-78, reprinted in J.A. at 458-63.
On July 26, 1996, the Westendorps brought this suit agains t ISD No. 273 and the State of Minnesota, seeking injunctive and declaratory relief and damages. Th e Westendorps were jo ined in their suit against the state by the parents of Sarah Peter, a disable d Minnesota child who was similarly denied special education services at a private religious school by Independent School District No. 877 (ISD No. 877).

On Mar ch 26, 1997, the district court granted summary judgment against th e Weste ndorps on their IDEA claim. See Peter v. Johnson , 958 F. Supp. 1383, 1399

- 1400 (D. Minn. 1997). The district court concl uded "that the statute and its regulations do not req uire the State defendants or local school districts to provide on-sit e paraprofess ional services to the plaintiffs at private schools as a component of thei r individualized education program." Id.

On June 23, 1997, the Supreme Court held that public school districts ma y provide secular teaching services at a private religious school without offending th e Establishment Clause. See Agostini v. Felton , 117 S. Ct. 1997, 2016 (1997 ). Following this decision, the State of Minnesota, ISD No. 273, and ISD No. 877 stipulated to an injunction against the enforce ment of Minnesota Rule 3525.1150. On August 5, 1997, the district court granted a preliminary injunction providing that "[t]he State Defendants are hereby enjoined and restrained from enforcing Rule 3525.1150 insofa r as it prohibits provision of special education service s to Plaintiffs Sarah Peter and Aaron Westendorp on th e premises of a private religious school." Order (Aug. 5, 1997) at 1, reprinted in Appel lants' Addendum at 48. Minnesota Rule 3525.1150 was subsequently amended to no longer distinguish between private religious schools and-6-

private nonreligious school s. Following the district court's grant of the injunction, ISD No. 877 agreed to provide services to Sarah Peter at her private religious school, and the Westendorps and ISD No. 273 became the sole parties to this suit.
Despite the injunction and ISD No. 877's change of heart, ISD No. 2 73 continued to refuse to provide services to Aaron if he attended Calvin Christian School. Th e dis trict court denied a preliminary injunction requiring ISD No. 273 to provide suc h services, see Order (Aug. 12, 1997) at 9, reprinted in Appellants' Addendum at 58, and subs equently granted summary judgment against the Westendorps' remainin g consti tutional and state law claims. See Order (Sept. 2, 1997) at 2-3, reprinted i n Appellant's Addendum at 60-61.

The Wes tendorps now appeal the grant of summary judgment against them o n theirfre e speech, free exercise, equal protection, and IDEA claims. Following th e Supreme Court's decision that RFRA is unconstitutional as applied tostate law, see City of Boerne v. Flores , 117 S. Ct. 2157, 2172 (1997), the p laintiffs abandoned their RFRA cla im. See Order (Aug. 12, 1997) at 4, reprinted in Appellants' Addendum at 53. I n addition, the Westendorps have abandoned their state law claims for prospective relief,

see Pls.' Fed. R. App. P. 28(j) Letter (June 5, 1998) at 1, following the amendment of Mi nnesota's special education provisions. See 1998 Minn. Sess. Law Serv. Ch. 39 8 (H.F. 2874) art. 2, § 53(a) (West) (providing that Minneso ta law will no longer "impose requirements that exceed federal law").

II.

This Court reviews the dis trict court's grant of summary judgment de novo. See Kraft v. Ingersoll-Rand Co. , 1 36 F.3d 584, 585 (8th Cir. 1998). Summary judgment is only proper if, taking the ev idence "in the light most favorable to the nonmoving party, there is no genuine issue of material fact, and the movant is entitled to judgment as a matter of law." Id. at 586. "At the summary judgment stage, the court should not-7-

weigh the evidence, make credibility determinations, or attempt to determine the truth of the matter . Rather, the court's function is to determine whether a dispute about a material fact is genuine . . . ." Quick v. Donaldson Co. , 90 F.3d 1372, 1376-77 (8th Cir. 1996). "[A] genuine issue of material fact exi sts if: (1) there is a dispute of fact; (2) the disputed fact is material to t he outcome of the case; and (3) the dispute is genuine, that is, a reasonable jury could return a verdict for either party." RSBI Aerospace, Inc. v. Affiliated FM Ins. Co. , 49 F.3d 399, 401 (8th Cir. 1995).

In thei r complaint, the Westendorps alleged that ISD No. 273's "policies an d actions violate Plaintiffs' rights under the equal protection clause of the Fourteenth Amendment

to the U.S. Constitution." Compl. (July 26, 1997) ¶ 51, reprinted in J.A. at 29. We conclu de that the district court erred in granting summary judgment against the Westendorps on this claim.

Prior to the district court's in junction against the enforcement of Minnesota Rule 3525.1150 and the rule's subsequent a mendment, Minnesota Rule 3525.1150 explicitly discrimi nated against children who attended private religious schools. While children wh o attended private nonreligious schools could receive government-funded specia l educ ation services directly at their private schools, students like Aaron could not

. Government discrimination based on religion violates the Free Exercise Clause of the First Am endment, see Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah , 508 U.S. 520, 532 (19 93) ("the First Amendment forbids an official purpose to disapprove of a particular religion or of religion in general"), the Free Speech Clause of the Firs t Amendment, see Rosenberger v. Rector and Visitors of Univ. of Va. , 515 U.S. 819, 830 (1995) ("ideologically driven attempts to suppress a particular point of view ar e pre sumptively unconstitutional in funding, as in other contexts" (quotations omitted)), and the Equal Protection Clause of the Fourteenth Amendment. See Native American Council of Tribes v. Solem , 691 F.2d 382, 384 (8th Cir. 1982); cf. Romer v. Evans , 517 U.S. 620, 633 (1996) ("Equal protection of the laws is not achieved throug h indiscriminate imposi tion of inequalities. . . . A law declaring that in general it shall be-8-

more difficult for one group of citizens than for all others to seek aid from th e government

is itself a denial of equal protection of the laws in the most literal sense." (quotations and citations omitted)).

"[I]f the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral, and it is invalid unless it is justified by a compelling interest and is narrowly tailored to advance that interest." Lukumi , 508 U.S. at 533 (citation omitted). The only compelling interest identified by the State o f Minnesota t o justify Minnesota Rule 3525.1150 was that the rule was necessary t o avoi d a violation of the Establishment Clause. See Tr. of Mot. Hr'g (Nov. 8, 1996) at 35-36, reprinted in

J.A. at 190-91. This pos ition was highly questionable in light of the Supreme Court's decision in Zobrest v. Catalina Foothills School District , 509 U.S. 1, 10 (1993) ( holding that the government can provide a sign language interpreter to a disab ledstudent at a private religious school without violating the Establishmen t Clause), and the State of Minnesota abandoned this argument following the Suprem e Court's decision in Agosti ni , 117 S. Ct. at 2016 (holding that the Establishment Clause was not violate d when public teachers taught nonreligious subjects at private religious schools). Because Minnesota Rule 3525.1150 cannot be justified as a narrowly tailored

means of a voiding a violation of the Establishment Clause, it violated the plaintiffs ' rights to free exercise of religion, free speech, and equal protection, and the distric t court properly enjoined its enforcement.

If ISD No. 273 denied a paraprofessional to Aaron Westendorp at Calvi n Ch ristianSchool because of Minnesota Rule 3525.1150's unconstitutional distinctio n betwe en private religious schools and private nonreligious schools, or otherwis e because of the religious nature of Calvin Christian School, then ISD No. 273's action is illegal and the plaintiffs are entitled to the relief that they seek. ISD No. 27 3 conceded that it relied on Minnes ota Rule 3525.1150 when it denied services to Aaron at Calvin Christian School, see Kodrich Aff. ¶ 6, reprinted inJ.A. at 152-53 (Minnesota Rule 3525.1150 was an "independent rationale for the School District's policy"), and-9-

further concede d that Minnesota Rule 3525.1150 prevented it from providing services to Aaron at Calvin Christian School. See Kodrich Dep. at 68-69, reprinted in J.A. a t 453 -54. ISD No. 273 nevertheless contends that in denying services to Aaron i t "followed its long-standing policy, which it maintains today, of not providing direct, onsite special education and related services at private schools, regardless o f their religious or secular orientation." Appellee's Br. at 3.

ISD No. 273's invocation of a "long-standing policy" rings hollow in light of its actua lpractice of providing services to disabled children at private nonreligiou s presc hools and at home schools. Indeed, ISD No. 273's alleged policy has not bee n
use d to deny students at private nonreligious schools paraprofessional services, an d appears to manifest itself only when disabled children at private religious school s reque stthese services. While ISD No. 273 has alleged that it created its policy t o ensure the qualityand integration of services and to contain costs, see Kodrich Aff. ¶¶ 3-5, reprinted in J.A. at 150-52, this appears to be a mere ad hoc rationalization of an irrational practice. ISD has not attempted to explain how the goals of its alleged policy are served by denying services to students at private religious schools b ut allowing these services to students at home schools or at private nonreligious preschools, and there is no evidence th at any of these goals are furthered by denying Aaron a paraprofessional at Cal vin Christian School. It is undisputed that the cost to ISD No. 273 is the sam e whether it funds a full-time, one-on-one paraprofessional for Aaron at Calvin Christian School or at a public school, and ISD No. 273 has not argued that the services of a pa raprofessional would be of a lower quality at Calvin Christian School than if the y
were provided by the same paraprofessional at a public school, or that the integration of Aaron's services would somehow be impaired at Calvin Christian School. Indeed, Kodrich admitted that she k new "[v]ery little" about Aaron's disabilities, Kodrich Dep. at 50, reprinted in J.A. at 435, and she expressed no knowledge of the opportunitie s offered by Calvin Christian School.Although the record reveals an obvious dispute regarding ISD No. 273' s 1 motivation for denying Aaron a paraprofessional at Calvin Christian School, the parties stipulated, without providing any recitation of facts, "that the material facts of this case are not in dispute, and that the record befo re the Court" is complete. Stipulation (Aug. 29, 1997) at 3, reprinted in J.A. at 630. While "stipulations of fact fairly entered into are controlling and con clusive," Sims v. Wyrick , 743 F.2d 607, 610 (8th Cir. 1984), a stipulation that is devoid of facts provid es little direction for this Court. Because there exists in this case a disputed question of material fact that is not answered by th e parties' stipulation, summary judgment was improperly granted.
-10- Viewedin its entirety, the evidence in this case strongly suggests that ISD No. 273's policy is a mere pretext for religious disc rimination. Cf. Lukumi , 508 U.S. at 534 ("The Free Exercise Clause protec ts against governmental hostility which is masked as well as overt."). We must therefore reject the district court's conclusion that "there is no evidence in the record that [ISD No. 273] treated children differently on the basis of whether they attended nonpublic nonreligious schools or nonpublic religious schools, notwithstan ding the language of Rule 3525.1150." Order (Aug. 12, 1997) at 6 , reprinted in

Appellants' Addendum at 55. Because "[s]ummary judgment is notoriously inappropriate for determination of claims i n which issues of intent, good faith and other subj ective feelings play dominant roles," Pfizer, Inc. v. Rectifier Corp. (In r e Coor dinatedPretrial Proceedings in Antibiotic Antitrust Actions) , 538 F.2d 180, 18 5 (8th Cir. 1976), we may not grant summary judgment to the Westendorps on this claim, despite t he strength of the evidence suggesting that Aaron has been the victim o f invidious discrimination. Accordingly, we remand this matter to the district court for

afactual determination of whether ISD No. 273 based its denial of services to Aaron at Calvin Christian School on its purported religion-neutral policy, or if its denial was based on the religious animus contained in Minnesota Rule 3525.1150. 1

III.-11-

The Westen dorps also appeal the district court's grant of summary judgment on thei r claim under IDEA. IDEA is designed to encourage states to develop specia l education programs for disabled stu dents. In return for federal funding, IDEA requires participa ting states to have "in effect a policy that assures all children with disabilities the right to a free appropriate public education." 20 U.S.C. § 1412(1) (1994). While the parties agree that Aaron has a disability and that he is entitled under IDEA to th e services of a paraprofessional paid by ISD No. 273, they disagree on whether IDE A entitles him to those services at Calvin Christian School.

On June 4, 1997, three months after the distr ict court granted summary judgment agains t the Westendorps on their IDEA claim, comprehensive amendments to IDE A became l aw. See Individuals with Disabilities Education Act Amendments of 1997 , Pub. L. No. 105-17, 111 Stat. 37 (1997). In amending IDEA, Congress substantially limited the rights of disabled chil dren enrolled by their parents in a private school. See 20 U.S.C. A. § 1412(a)(10)(C)(i) (West Supp. 1998) (IDEA will "not require a loca l ed ucational agency to pay for the cost of education, including special education an d related services, of a

child with a disability at a private school or facility if that agency made a free app ropriate public education available to the child and the parents elected to place the child in such private school or facility"). In Foley v. Special School District of S t. Louis County , No. 97-2419 (8th Cir. Aug. 14, 1998), this Court held that "[t]he 1997 Amendments expressly provide that public school agencies are not required to pay the costs of special education services fo r a particular child," and that disabled children

an d their "parents now have no individual right under IDEA to [specific] specia l education and r elated services . . ., so they have no right to a federal court decre e mandating that those services be provided at a part icular location." Id. (slip op. at 4-5). Accordingly, Aaron has no r ight under the 1997 Amendments to receive ISD No. 273- funded services at Calvin Christian School.
We must address, however, whether ISD No. 273 engage d in violations of IDEA as it existed prior to its amendment in 1997. Because "the views of a subsequent-12-

Congress form a hazardous basis for inferring the intent of an earlier one, " South Dakota v. Yankton Sioux Tribe , 118 S. Ct. 789, 803 (1998) (quotatio ns omitted), we reject ISD No. 273 's argument that our interpretation of the pre-amendment version of IDEA i s
co ntrolled by the 1997 amendments. See Fowler v. Unified Sch. Dist. No. 259 , 128 F.3d 143 1, 1436 (10th Cir. 1997) (1997 amendments to IDEA are to be applied "only to events occurring after [their] effective date").

IDEA had the "goal of providing a free appropriate public education for al l children with disabilities." 20 U.S.C. § 1413(a)(2) (1994). "The word 'public' is a term of art which refers to 'public exp ense,' whether at public or private schools." Dreher v. Amphithea ter

Unified Sch. Dist. , 22 F.3d 228, 233 n.10 (9th Cir. 1994). State s receivin g grants under IDEA had to "provide that all children residing within th e jurisdiction of the local educational agency or the intermediate educational unit who are disabled, r egardless of the severity of their disability, and are in need of specia l educat ion and related services will be identified, located, and evaluated," 20 U.S.C. § 1414(a) (1)(A) (1994), and had to "establish a goal of providing full educationa l opportunities to all children with disabilities." 20 U.S.C. § 1414(a)(1)(C) (1994).

The pre -amendment version of IDEA required participating states to provid e special education services to private school stude nts. Disabled students enrolled by the state i n private schools were entitled to publicly-funded special education services "at no cost to their parents or guardian, " 20 U.S.C. § 1413(a)(4)(B) (1994), while disabled students enrolled

in private schools by their parents were also entitled to participate in publicly-funded

special education programs "to the extent consistent with the number and location of children with disabilities in the State who are enrolled in privat e elementary and secondary schools." 20 U.S.C. § 1413(a)(4)(A) (1994).

In impl ementing IDEA, the Department of Education promulgated regulation s requiring school districts to "provide s pecial education and related services designed to meet the needs of private school children with disabilities residing in" their-13-

jurisdictions. 34 C.F.R. § 300.452 (1996). In meeting the needs of disabled students enrolledby their parents in private schools, school districts were required to provid e services that were "comparable in quality, scope, and opportunity for participation t o the p rogram benefits that the subgrantee provides for students enrolled in publi c schools." 34 C.F.R. § 76.654(a) (1996). Consistent with IDEA, the availabi lity of these services was nev ertheless limited by the "number and location" of disabled children in the state. 34 C.F.R. § 300.451(a) (1996); see also 34 C.F.R. § 76.651(a)(2) (1996 ) (schoo ldistricts "shall provide that opportunity to participate in a manner that i s consistent with the number of eli gible private school students and their needs"). While

som e services could be provided to private school students at public schools, schoo l districts were also allowed to provide special education services to students at private schools. See 34 C.F.R. § 76.659(a), (b) (1996).

Several courts have considered whether the pre-amendment version of IDE A entitled a disabled student enrolled by his parents in a private school to publicly-funded services at the p rivate school. In Fowler v. Unified School District No. 259 , 107 F.3d 797 (10th Cir.), vacated and remanded for reconsideration in l ight of 1997 Amendments to IDEA , 117 S. Ct. 2503, and on remand , 12 8 F.3d 1431 (10th Cir. 1997) (reaffirming prior de cision), the Tenth Circuit held "that the IDEA and its regulations create n o autom atic right to any and all special education services at a private school site for all students voluntar

ily attending such a school." Id. at 805. However, the court went on to "reject the proposition that the District has unfettered discretion to simply den y [ser vices to a disabled student at a private school], and claim to have fulfilled it s obligations under the IDEA by offering those services to [the student] at a publi c school." Id. at 806. The court explained:

[W]e are faced here with the question of whether an individual disable d child, who requires an individualized service which only benefits him if it is provided to him on-site, throughout his educational day, is entitled t o tha t individualized service at the private school he has chosen to attend

.-14-

We conclude that, in such a situation, the District mu st pay for that service
an amou nt up to, but not more than, the average cost to the District t o provid e that same service to [similarly-disabled] students in the publi c school setting.

Id. at 807-08. On remand from the Supreme Court, the Tenth Circuit held that the 1997 amendments to IDEA did not affect a disabled student's rights un der the pre-amendment version of IDEA, and reinstated its earlier analysis. See Fowler , 128 F.3d at 1436.

In R ussman ex rel. Russman v. Sobol , 85 F.3d 1050, 1056 (2d Cir. 1996) , vacated and remanded for reconsideration in light of 1997 Amendments to IDEA sub

nom. Board of Educ. of the Enlarged City Sch. Dist. v. Russman ex rel. Russman , 117 S. Ct. 2502 (1997), and on remand sub nom. Russman v. M ills , No. 95-7756, 1998 WL 417452 (2d Cir. July 24, 1998), the Second Circuit held that pre-amendment IDEA and its implementing regulations

are more consistent with mandatory entitlements than with discretionary authori ty. Where the cost of special services does not vary with wher e they are provided, the IDEA and regulations regarding voluntary private school students make little sense if such services may be made available only in the public schools. The statute and regulations require tha t
nece ssary services be provided to disabled private school student s according to their needs rather than the name of their school, and state that such servi ces must be "comparable in quality, scope, and opportunity for particip ation" to those offered to public school students. 34 C.F.R. § 76 .654. Use of the word "comparable" strongly suggests that th e provi sionof services will usually take place outside the public school

. Otherwise, the regulation would simply provide that any services for the disabled available at a public school must be open to private schoo l students.ISD No . 273 has relied on interpretive letters issued by the Department o f 2 Education which contend that "[t]hese regulations do not confer on every parentallyplacedchild with a disability an individual entitlement to services." Letter to Burch,
-15- Id. at 1056-57 (citation omitted). On remand, however, the court held that "IDEA as amended does not require a school district to provide on-site special-education services to a disabled child voluntarily enrolled in priva te school." Russman , 1998 WL 417452, at *1.

Other courts, however, held that pre-amendment IDEA did not require a school district to provide services to parentally-enrolled disabled students at private schools. See K.R. ex rel. M.R. v. Anderson Community Sch. Corp. , 81 F.3d 673, 678 (7th Cir. 1996), vacated and remanded for reconsideration in light of 1997 Amendments t o IDEA , 117 S. Ct. 2502, and on remand , 125 F.3d 1017 (7th Cir. 1997) (reaffirmin g prior decision), cert. denied , 118 S. Ct. 1360 (1998); Cefalu ex rel. Cefalu v. East Baton Rouge Parish Sch. Bd. , 117 F.3 d 231, 233 (5th Cir. 1997) (reconsidering prior opinion in light of 1997 amendments to IDEA, and ho lding that school district was not required to provide services to a disabled student at a private school).

We are persuaded that "Congress clearly intended that disabled student s voluntarily placed in a private school by their parents [were] to be active participants in and beneficiaries of programs established under the IDEA." Fowler , 107 F.3d at 805 (q uotations omitted). IDEA was clear that, "consistent with the number and locatio n of" disabled students enrolled by their parents in private schools, students like Aaro n had a righ t to publicly-funded special education services. See 20 U.S.C. § 1413(a)(4)(A). While Aaron's rights may not have been identical to those of a disabled ch ild enrolled in a private school by the state, see Fowler , 107 F.3d at 805, he wa s nevertheless entitled to special education services that were "comparable in quality , scope, an d opportunity for participation" to those services provided to public schoo l students. 34 C.F.R. § 76.654(a). 223 Individuals with Disabilities Educ. L. Rep. 560, 562 (1995); see also Letter t o

McConnell , 22 Individuals with Disabilities Educ. L. Rep. 369, 369 (1994 ) ("parentally-placedchildren with disabilities do not have an individual entitlement to
serv ices"). Because the regulations implementing IDEA were clear that parentally

enro lledprivate school students with disabilities were entitled to "comparable "
se rvices, 34 C.F.R. § 76.654(a), we must reject the Department of Education' s suggestion that no such ent itlement exists. See Shalala v. St. Paul-Ramsey Med. Ctr. , 50 F.3d 52 2, 529 (8th Cir. 1995) (although we accept agency interpretations o f ambiguous regulations unless they are clearly erroneo us, "we are not at liberty to allow the agency to imply language that does not exist in the regulation" (quotation s omitted)); see also Newton v. Chater , 9 2 F.3d 688, 693 (8th Cir. 1996) ("While courts must give deference to an agen cy's interpretation of its own regulations, courts are not bound by them and they are not conclusive.").
-16- Under the plain l anguage of IDEA and its implementing regulations, Aaron was entitled to receive services as a private school student. Because of the nature of hi s disability, Aaron required one-on-one assistance from a paraprofessional throughout his school day. Accordingly, off-site assistance coul d not meet his special education needs if Aaron were to remain a private school student. While school districts "can and must have considerable discretion in determining how best to serve disabled students, " Fowler , 107 F.3d at 807, there is nothing in this record to suggest that ISD No. 273 ever considered how "best" to serveAaron. Rather, it simply denied him services at Calvin Christian School because it is a private religious schoo l. Here, there is no evidence that ISD No. 273 denied services at Calvin Christian School because "economies of scale,

or geogr aphical considerations, [made] it economically infeasible to provide certai n services at private school locations." Id. at 807 n.11. Rather, ISD No. 273 would have deniedservices to any disabled student at a private religious school, regardless of the circumstances of the individual case.

ISD No. 273's denial of all servic es to Aaron at Calvin Christian School was not "compara ble" to offering direct services to students at a public school; rather , comparable services would have included the services of a paraprofessional. See-17-

Russm an , 85 F.3d at 1056 ("Where the cost of special services does not vary with where they are p rovided, the IDEA and regulations regarding voluntary private school students m ake little sense if such services may be made available only in the publi c schools."). ISD No. 273 did not "provide special education and related service s designed to meet the needs of private school children with disabilities residing in [its] jurisdiction," 34 C.F.R. § 300.452 , but instead only agreed to meet Aaron's needs once he became a public school student. This action is not supported by IDEA or it s implementing regulations, and it violated Aaron's rights under IDEA.

Because we hold that ISD No. 273 violated Aaron's rights under IDEA b y denying him

a paraprofessional at Calvin Christian School, we must remand to th e district co urt for a determination of the proper scope of relief. The parties hav e stipulated to nominal damages of one dollar. See Stipulation (Aug. 29, 1997) at 2 , r e printed inJ.A. at 629. While the Westendorps continue to seek injunctive relief for this violation, "[t]he remedy of an injunction is preventive and looks only to the future[, and] can not be invoked for the purpose of punishment for wrongful acts alread y committed." Minneapolis & St. Louis Ry. Co. v. Pacific Gamble Robinson Co. , 18 1 F.2d 812, 814 (8th Cir. 1950). However, the Westendorps have cited to autho rity which suggests that, under IDEA, equitable relief for past i njuries may nevertheless be proper. See Florence County Sch. Dist. F our v. Carter ex rel. Carter , 510 U.S. 7, 15-16 (1993) (citing 20 U.S.C. § 1415(e)(2)). W e leave the question of a proper remedy in this case to the "broad discretion" of the district court. Id. (quotations omitted).

IV.
Finally, the Westendorps argue that, even if ISD No. 273's actions were no t motivated by religious animus, its refusal of a paraprofessional to Aaron at Calvi n Ch ristianSchool violates the constitution by conditioning the receipt of generall y available g overnment services on the Westendorps' foregoing of a constitutional right. It is undisputed that Aaron has the right to receive special education services if he-18-

atten ds a public school. It is also clear that the Westendorps have the constitutiona l right to choose the education that Aaron shall receive. See Pierce v. Society of Sisters , 268 U.S. 510, 534-35 (1925) (discu ssing "the liberty of parents and guardians to direct the upbrin ging and education of children under their control," which "excludes an y genera lpower of the State to standardize its children by forcing them to accep t instruction from public teachers only"); see also Wisconsin v. Yoder , 406 U.S. 205 , 233-34 ( 1972). If the Westendorps exercise their right to send Aaron to the school of thei r choice, however, ISD No. 273 will not provide special education services t o Aaron. SeeKodrich Dep. at 114, reprinted in J.A. at 499. The Westendorps therefore argue that ISD No. 273 has unconstitutionally conditioned their receipt of a generally available right upon their forbearance of a constitutional right. See, e.g. , Thomas v

. Review Bd . of the Ind. Employment Sec. Div. , 450 U.S. 707, 717-18 (1981) ("Where th e state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated b y religio us belief, thereby putting substantial pressure on an adherent to modify hi s behavior and to violate his beliefs, a burden upon reli gion exists. While the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial.").
While "the government m ay not deny a benefit to a person because he exercises a constitutional right," Regan v. Taxation With Representation of Wash. , 461 U.S. 540, 545 ( 1983), the government's "decision not to subsidize the exercise of a fundamental right does not infringe the right, and thus is not subject to strict scrutiny." Id. at 549. Indeed, the Supreme Court has been extremely hesitant to suggest that private school

s t udents have a constitutional entitlement to the same benefits that are given to public school students by the government. See, e.g. , Norwo od v. Harrison , 413 U.S. 455, 462 (1973) ("I n Pierce , the Court affirmed the right of private schools to exist and t o operate; it said nothing of any supposed right of private or parochial schools to shar e with public schools in state largesse, on an equal basis or otherwise. It has never been held th at if private schools are not given some share of public funds allocated fo r education that such schools are isolated into a classification violative of the Equal-19-

Protection C lause. It is one thing to say that a State may not prohibit the maintenance of private schools and qui te another to say that such schools must, as a matter of equal protection, receive state aid.").
In light of our remand on other bases, however, we need not reach thi s issue. See Clinton v. J ones , 117 S. Ct. 1636, 1642 n.11 (1997) ("If there is one doctrine mor e deeply roo ted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality unless such adjudication i s
un avoidable." (quotations and alteration omitted)). Accordingly, we leave this matter for another day.

V.

We reverse the district court's grant of summary judgment to ISD No. 273, and

we remand for a factual determination of whether ISD No. 273's denial of services to Aaron Westendorp at Calvin Christian School was motivated by religious animus. In addi tion, we remand this matter to the district court for a determination of the prope r relief to the plaintiffs for the defendant's past violation of IDEA.
ROSS, Circuit Judge, dissenting.

I disagr ee with the majority that the district court erred in granting summary judgment in favor of ISD No. 273, and thus dissent.
As to the Westendorps' reli gious discrimination claim, the majority believes that the evidence " strongly suggests" that the school district's "long-standing policy, which it maintains today, of not providing direct, on-site special education and related services at private schools, regardless of their reli gious or secular orientation" is a "mere pretext for religious discrimination." Maj. Op. at 9. To me, the fact that the school district has provided special educ ation services at a nonreligious private preschool and to a home--20-

schoole d student does not raise an inference that it has discriminated on the basis o f rel igion in refusing to provide on-site services in the K-12 classroom setting, which is the issue in this case. Moreover, in concluding there is a disputed issue of fact as t o pretext, the majority has improperly engaged in fact finding and ignored the parties ' stipulation that "the material facts of this c ase are not in dispute." Indeed, in the course of its opinion, the majority transforms a finding of a disputed fact into a finding o f undisput ed fact. On page 16, the majority states that ISD No. 273 "simply denie d [Aaron] services at Calvin Christian School becaus e it is a private religious school" and "w ould have denied services to any disabled student at a private religious school. " Whi le it is undisputed that the school district denies on-site services to students a t private s chools, it is not undisputed that services are denied because of the religiou s nature of the school.

In additi on, the majority's characterization of the school district's policy as " a
mere ad hoc rationalization of an irrational policy" ignores the evidence. Maj. Op. at 9. Penny Kodrich, the school district's director of special serv ices, stated that the policy was long-standing and was designed to maintain control over the quality of the district's pr ograms and personnel, foster integrated teamwork and communication betwee n special education and regul ar staff, and maximize benefits to students based on limited financial resources. Kodrich further stated that if the school district had to provide onsite services at private schools these goals wou ld be frustrated. For example, regarding quality c oncerns, Kodrich explained that the special services staff work as part of a n integrated team with the general education staff and if services were provided at private schools, the school district would have no control over the selection, training, an d coordination of private staff members.
Regard ing cost considerations, Kodrich explained that the school distric t "constantly endeavors to provide the maximum educational be nefit to a large population of disabled students based on a very limi ted set of resources." J.A. at 152. She further explained that "[b]y pooling direct special education resources in public school sites-21-

the S chool District can realize economic efficiencies by sharing and integratin g resources." Id. In particular, she noted that the services of a paraprofessional "can and

are frequ ently shared by more than one student" and that "[i]f the school district wa s requiredto send individual paraprofessionals out to remote sites, the savings realized by these efficiencies wo uld be lost." Id. In addition, Wayne Erickson, manager of the state division of special education, stated that, bas ed on his financial analysis, provision of on-site services to disabled private school students would result in additiona l expe nditures of at least $10,814,027.00 for school districts and $5,882,830.00 for the
state. Id. at 144. He also stated that it was impossible to estimate additional costs if

sc hool districts provided on-site services at private schools since special educatio n students enrolled in public schools might then choose private scho ols. Id. at 145. Thus, the majority incorrectly states that "there is no evidence that ISD No. 273 denie d services at Calvin Christian School because economies of scale, or geographica l considerations, [made] it economically infeasible to provide certain services at private school locations." Maj. Op. at 16 (internal quotation omitted).
Moreover, and importantly, the majority ignores t he Supreme Court's admonition that "courts are not to 'substitute the ir own notion of sound educational policy for those of the sc hool authorities which they review.' " Fort Zumwalt Sch. Dist. v. Clynes , 119 F.3 d 607, 610 (8th Cir. 1997) (quoting Board of Educ. v. Rowley , 458 U.S.176, 20 6 (1982), cer t. denied , 118 S. Ct. 1840 (1998)). This is so because "[c]ourts 'lack th e special izedknowledge and experience necessary to resolve persistent and difficul t quest ions of educational policy[.]' " Id. at 613 (quoting Rowley , 458 U.S. at 208)

. Especially difficult questions facing school districts concern "implement[ing] the policy of educating all disabled students" in light of limited financial resources, and "th e sufficiency of that educa

tion must be evaluated in light of the available resources." Id. at 612.

I also disagree with the majority's holding that ISD No. 273's conduct violate d the IDEA before it was amended in 1997. The pre-amended statute provided that-22-

disabled students who were placed in private schools by the state or school district were entitled to "special education and related services . . . at no cost to their parents o r guardian. " 20 U.S.C. § 1413(a)(4)(B)(i) (1994). In contrast, disabled students wh o
were unilaterally placed in private schools by their parents were only entitled t o participate in special education programs and services "to the extent consistent with the numbe r and location of" disabled students within the state. Id. at § 1413(a)(4)(A ) (1994).

In 1997 Con gress amended the statute to make clear that the IDEA "does no t requ ire a local educational agency to pay for the cost of education, including specia l education and related services, of a child with a disability at a private school or facility if tha t agency made a free appropriate public education available to the child and th e pa rents elected to place the child in such private school or facility." 20 U.S.C.A

. §1412(a)(10)(C)(i) (West Supp. 1 998). As the majority concedes, "Aaron has no right under the 1997 Amendments to receive ISD No. 273-funded services at Calvin C hristian School." Maj. Op. at 11 (citing Foley v. Special Sch. Dist. of St. Louis County , No. 97- 2419, 1998 WL 473146, at *2 (8th Cir. Aug. 14 , 1998) ("1997 Amendments expressly provide that public school agencies are not required to pay the cost of special education services for a particular child")).
In enacting the 1997 Amendments, Congress merely "clarif[ied] the responsibility of public school districts to childre n with disabilities who are placed by their parents in private schools." S. Rep. No. 17, 105th Cong. 1st. Sess. 13 (1997). Thus, I believe the amended IDEA applies to all of the Westendorps' IDEA claims and precludes relief

. See K.R. ex rel. M.R. v. Anderson Community Sch. Corp. , 81 F.3d 6 73 (7th Cir. 1996),

v a cated and remanded for reconsideration in light of 1997 Amendments to IDEA ,117 S. Ct. 250 2, and on remand , 125 F.3d 1017, 1019 (7th Cir. 1997) (1997 Amendments

were "legislative clarification"), cert. denied , 118 S. Ct. 1360 (1998); Donald B. v

. Board of Sch. Comm'r , 117 F.3d 1371, 1373 n.2 (11th Cir.-23-

1997) (1997 Amendments "do not alter substantively" § 1413(a)(4)); Cefalu ex rel

. Cefalu v. East Baton Rouge Parish Sch. Bd. , 117 F .3d 231, 232 (5th Cir. 1997) (same).

Even if the 1997 Amendments are not controlling, I do not believe that the preamended IDEA required that a school district provide on-site services to a disable d st udent who was unilaterally placed at a private school. "The goal of IDEA is t o provide access to public education for all handicapped students." Fort Zumwalt Sch. Dist. , 119 F.3d at 612. "IDEA does not require that a school either maximiz e a student's potentia lor provide the best possible education at public expense." Id. "The statut e only requi res that a public school provide sufficient specialized services so that th e student bene fits from his education." Id. Moreover, this court has held that the pre

amende d IDEA and "regulations promulgated thereunder g[a]ve the school distric t discretion in selecting the location where it w[ould] educate a handicapped child. " Schuldt v. Mank ato Ind. Sch. Dist. No. 77 , 937 F.2d 1357, 1361 (8th Cir. 1991), cert. denied , 502 U.S. 1059 (1992). It is undisputed that ISD No. 273 provides Aaron a parap rofessional at a public school, and his parents have not questioned the quality of the services that Aaron receives.

Th e majority is persuaded by the Tenth Circuit's analysis in Fowler v. Unifie d Sch. Dist. No. 259 , 107 F.3d 797, vacated and remanded for reconsideration in light of 1997 Amendments to IDEA , 117 S. Ct. 2503, and on remand , 128 F.3d 1 431 (10th Cir. 1997). In F owler , the Tenth Circuit "recognized that the IDEA and its regulation s afford considerable discretion to [school districts] to determine the manner and extent of services to be provided" to disabled students in private schools. 107 F.3d at 806

. Although the court did

not believe that the school district was obligated to provide onsite services of a full-time interpreter at a pri vate school, id , it held that a school district had to "pay for that service an amount up to, but not more than, the average cost to the Dist rict to provide that same service to hearing-impaired students in the public school setting." Id. at 807-08. However, the court acknowledged that its holding appeared to conflict with IDEA regulations, id. at 808 n.12, the interpretation of the Department-24-

of Education (DOE), id. at 804-05, and the Seventh Circuit's decision in Anderson , id. at 806.

Unlike the majority and the Tenth Circuit, I agree with the Seventh Circuit that "[w]here the public school makes available t he necessary service at a public institution, giving the disabled student a genuine opportunity to participate, and nothing in th e record indicates that it has otherwise abused its discretion, the public school ha s discharged its obligation" under the pre-amended IDEA. Anderson , 81 F.3 d at 680; see also Goodall v. Stafford C ounty Sch. Bd. , 930 F.2d 363, 369 (4th Cir.) (school district fulf illed its statutory obligation by offering disabled student services of speec h interpreter at public school), cert. denied , 502 U.S. 864 (1991).
In this case, the majority relie s on 34 C.F.R. § 76.654(a) (1996), which required th at the benefits a school district provided for private school students be "comparable in quality, s cope, and opportunity for participation to" the benefits provided for public school students. However, as explained in Anderson , the regulation was "not by it s terms a mandate that private school students shall receive full b enefits." 81 F.3d at 679. Rather, "read in light of the statutory scheme . . . and the other regulations, . . . the only

re asonable interpretation of Section 76.654(a) is that the comparability requiremen t [wa]s limited to the program benefits that [a district] provide[d]." Anderson , 81 F.3d at 679 (in ternal quotation omitted). In other words, because public school districts ha d "di scretion over what benefits to provide[,]" the regulation only required that "whe n benefits [ we]re provided . . . that they [would] be comparable to benefits for publi c school students." Id.
Thus, the majority's "determination that a fu ll-time instructional assistant was the only 'compar able' alternative . . . fail[s] to take into account the discretion afforde d pub lic schools in deciding which services to provide." Id. Moreover, and, "no t insignificantly ," the majority's determination conflicts with the DOE's interpretation of the regulations. Id. at 678. As the majority notes, the DOE's position was that the-25-

"regulat ions d[id] not confer on every parentally-placed child with a disability a n in dividual entitlement to services." Maj. Op. at 15 n.2 (internal quotation omitted)

. Becaus e the DOE's interpretation was not plainly erroneous or inconsistent with th e regulations, "it must be given controlling weight." Board o f Regents v. Shalala , 53 F.3d 940, 943 (8th Cir. 1995).
In sum, I believe that in providing the servic es of a paraprofessional to Aaron "at a public site and declining to provide a n instructional assistant to a single student in the private school, it is evident that [ISD No. 273] fairlyexercised its discretion to consider the number of eligible private school students and their needs in deciding what benefits w[ould] be provided." Anderson , 81 F.3d at 680. Because "there is no evidence here tha t [ISD No. 273] eschewed its responsibility under the IDEA," id. , and because I believe that the

district court properly rejected the Westendorps' other claims, I would affirm the grant of summary judgment in favor of ISD No. 273. I thus dissent.

A true copy.

Attest:

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