D. L. v. Baltimore City Bd of Sch Comm

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 1:10-cv-02834-MJG Paper copies to all parties and the district court. [999023468]. [11-2041]

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PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
D.L., by and through his Parents
and Guardians, K.L. and S.L.;
K.L.; S.L., in their own right,
Plaintiffs-Appellants,
v.
BALTIMORE CITY BOARD OF SCHOOL
COMMISSIONERS,
Defendant-Appellee,
and
BALTIMORE CITY PUBLIC SCHOOLS,
Defendant.
NATIONAL SCHOOL BOARDS
ASSOCIATION; MARYLAND
ASSOCIATION OF BOARDS OF
EDUCATION; VIRGINIA SCHOOL
BOARDS ASSOCIATION,
Amici Supporting Appellee.





No. 11-2041



Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, Senior District Judge.
(1:10-cv-02834-MJG)
Argued: October 25, 2012
Decided: January 16, 2013

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D.L. v. BALTIMORE CITY BOARD OF SCHOOL COMMISSIONERS

Before NIEMEYER, GREGORY, and THACKER,
Circuit Judges.

Affirmed by published opinion. Judge Gregory wrote the
opinion, in which Judge Niemeyer and Judge Thacker joined.

COUNSEL
ARGUED: David G. C. Arnold, West Conshohocken, Pennsylvania, for Appellants. Leslie Robert Stellman, HODES,
PESSIN & KATZ, PA, Towson, Maryland, for Appellee. ON
BRIEF: Katharine A. Linzer, LINZER LAW, LLC, Towson,
Maryland, for Appellants. Tammy L. Turner, Tiffany Sharnay
Puckett, Stephanie J. Robinson, CITY BOARD OF SCHOOL
COMMISSIONERS, Baltimore, Maryland, for Appellee.
Francisco M. Negrón, Jr., NATIONAL SCHOOL BOARDS
ASSOCIATION, Alexandria, Virginia; John F. Cafferky,
Andrea D. Gemignani, BLANKINGSHIP & KEITH, PC,
Fairfax, Virginia, for Amici Supporting Appellee.

OPINION
GREGORY, Circuit Judge:
Appellants D.L. and his parents, K.L. and S.L., appeal the
district court’s grant of summary judgment to the Baltimore
City Board of School Commissioners ("BCBSC") and Baltimore City Public Schools. They contend that Section 504 of
the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("Section
504"), compels BCBSC to provide D.L. educational services
related to certain disorders even though D.L. is enrolled
exclusively in a private religious school. They also claim that
BCBSC’s requirement that D.L. attend a public school in

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order to receive Section 504 services is unconstitutionally
burdensome on their right to make educational decisions
under Wisconsin v. Yoder, 406 U.S. 205 (1972), and Pierce v.
Society of Sisters, 268 U.S. 510 (1925). Because we do not
read Section 504 to apply an affirmative obligation on school
districts to provide services to private school students and
because Appellants retain full educational discretion, we
affirm the district court’s ruling.
I.
D.L., who was in eighth grade when he and his parents
filed this case in 2010, has suffered from difficulties with
attentiveness, focus, and impulsivity since he was in kindergarten. In 2007, D.L.’s parents brought him to a specialist
who diagnosed him with Attention Deficit Hyperactivity Disorder ("ADHD") and anxiety. In 2009, BCBSC determined
that D.L. did not qualify for services under the Individuals
with Disabilities Education Act, 20 U.S.C. § 1400 ("IDEA"),
but that he was eligible under Section 504. However, BCBSC
informed D.L.’s parents that they could not provide Section
504 services unless D.L. enrolled in one of the district’s public schools. Because Maryland law does not permit simultaneous dual enrollment in a private and public school, D.L.
would have had to withdraw from his Yeshiva—a private religious school he attended at the time—to enroll in a local public school.
D.L.’s parents challenged BCBSC’s position before a Hearing Examiner appointed by BCBSC. After the examiner
decided that Section 504 does not require that BCBSC allow
D.L. to access special education services while enrolled in a
non-public school, the parents brought suit in the United
States District Court of Maryland. BCBSC filed a motion for
summary judgment, and D.L. and his parents responded with
their own motion for partial summary judgment. On August

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30, 2011, the court granted BCBSC’s motion and denied
Appellants’. Appellants timely appealed.1
II.
We review the district court’s grant of a motion for summary judgment de novo. Nader v. Blair, 549 F.3d 953, 958
(4th Cir. 2008). Summary judgment is appropriate only where
there is no genuine issue of material fact and the movant is
entitled to judgment as a matter of law. Seremeth v. Bd. of
Cnty. Comm’rs Frederick Cnty., 673 F.3d 333, 336 (4th Cir.
2012). In determining whether a genuine issue of material fact
exists, we view the facts, and draw all reasonable inferences,
in the light most favorable to the non-moving party. Bonds v.
Leavitt, 629 F.3d 369, 380 (4th Cir. 2011).
Section 504 states that "[n]o otherwise qualified individual
with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation
in, be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial
assistance . . . ." 29 U.S.C. § 794. The implementing regulations for Section 504 require that public schools make a FAPE
available "to each qualified handicapped person who is in the
recipient’s jurisdiction . . . ." 34 C.F.R. § 104.33(a). An
appropriate education includes "provision of regular or special
education and related aids and services that . . . are designed
to meet individual educational needs of handicapped persons
. . . ." 34 C.F.R. § 104.33(b)(1). As long as the public schools
make a FAPE available, they bear no obligation to pay for a
child’s education in a private school. 34 C.F.R.
§ 104.33(c)(4).
1

While this appeal was pending, D.L. enrolled at a boarding school in
Richmond, Virginia for the 2012-13 school year. We ordered the parties
to submit supplemental briefing on the question of whether D.L.’s move
to Richmond rendered this case moot. As of December 26, 2012, D.L. has
left the Richmond program and returned home to Baltimore. As such,
there is no grounds for a mootness finding and we do not consider it here.

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Appellants argue that these regulations mandate that
BCBSC provide D.L. with a FAPE at a public school even
while he continues to enroll in and attend a private school.
They read the language, "provide each Section 504 eligible
student within its jurisdiction with a [FAPE]" to mean that
public schools need to go further than just making the education available. See 34 C.F.R. § 104.33(a).
The plain language of the statute and the regulations does
not make clear whether public schools are required to provide
services to students enrolled in private schools. While
§ 104.33(c)(4) does state that public schools need not finance
a child’s "education" in private school, it is unclear whether
the term "education" here encompasses special education services. Appendix A to Part 104 of the regulations provides
some clarification, "[i]f . . . a recipient offers adequate services and if alternate placement is chosen by a student’s parent or guardian, the recipient need not assume the cost of the
outside services." 34 C.F.R. § 104 app. A. However, while the
Appendix explains that a public school need not pay for services when a parent accesses those services from a provider
other than the public school, it does not answer whether a private school student can access those services from the public
school itself.
The Department of Education’s Office for Civil Rights
issued a direct clarification of the disputed regulation in an
opinion letter. OCR Response to Veir Inquiry Re: Various
Matters, 20 IDELR 864 (1993) ("Letter to Veir"). Letter to
Veir states, in part, "[w]here a district has offered an appropriate education, a district is not responsible under Section 504,
for the provision of educational services to students not
enrolled in the public education program based on the personal choice of the parent or guardian." Id. Appellants attempt
to parry Letter to Veir by arguing that it is a response to questions related to the provision of services at home for a
homeschooled student whereas D.L. is willing to come to the
public school to receive services. However, while the question

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posed to OCR in Letter to Veir does specifically request clarification about whether a public school must provide services
at home, OCR does not similarly cabin its response.
Where a regulation is ambiguous we must grant deference
to an agency’s interpretation of its own regulation. Auer v.
Robbins, 519 U.S. 452 (1997); see also Christensen v. Harris
Cnty., 529 U.S. 576, 588 (2000); Humanoids Grp. v. Rogan,
375 F.3d 301, 306 (4th Cir. 2004). We grant Auer deference
even when the agency interpreting its regulation issues its
interpretation through an informal process, such as an opinion
letter. Humanoids Grp., 375 F.3d at 306; Bassiri v. Xerox
Corp., 463 F.3d 927, 930 (9th Cir. 2006) (Department of
Labor’s interpretation of its own regulations as explained in
opinion letters deserved Auer deference). Where an agency
has made an interpretation of its own regulation, as the
Department of Education has done in Letter to Veir, that interpretation is controlling unless it is "plainly erroneous or
inconsistent with the regulation." See Auer, 519 U.S. at 461.
A comparison of IDEA and Section 504 lends support to
Letter to Veir’s interpretation of 34 C.F.R. § 104.33(c)(4). A
requirement that extends to provision of services while students are enrolled in private schools creates an inescapable
conflict with the limitations that Congress placed on school
district responsibilities under IDEA. Before Congress
amended IDEA in 1997, courts had interpreted IDEA as
granting eligible children enrolled in private schools an individual right to special education and services. Foley v. Special
Sch. Dist. of St. Louis Cnty., 153 F.3d 863, 864 (8th Cir.
1998). The 1997 amendments, however, clarified that states
only had to allocate a proportionate amount of funds received
from the federal government to eligible students in private
schools.2 20 U.S.C. § 1412(a)(10)(A)(i). The amendments and
2

The amount of funds a state receives from the federal government is
only a small fraction of the cost of providing for the special education of
students. Russman v. Bd. of Educ. of City of Watervliet, 150 F.3d 219, 221
(2d Cir. 1998). As such, a state is only required to allocate a proportionate
amount of this small fraction to eligible private school students. Id.

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related regulations established that "[n]o parentally-placed
private school child with a disability has an individual right
to receive some or all of the special education and related services that the child would receive if enrolled in a public
school." 34 C.F.R. § 300.137. Under Appellants’ interpretation of Section 504, however, school districts would have to
provide and fully fund services that an eligible private school
student requested under a Section 504 plan. Because all students who are eligible for services under IDEA are also covered for those services under Section 504, this scenario would
entitle all IDEA-eligible students in a private school to full
services using Section 504. See Letter to Williams, 21 IDELR
73 (OSEP 1994). In other words, Appellants’ interpretation of
Section 504 would create an individual right to special education and related services where none exists. This interpretation flies directly in the face of the limitations that Congress
imposed on school districts’ obligations under IDEA by reading an affirmative obligation into Section 504, an antidiscrimination statute. See Sellers v. Sch. Bd. of City of
Manassas, Va., 141 F.3d 524, 528 (4th Cir. 1998).
Nonetheless, Appellants argue that Section 504 must be
interpreted broadly because it is a remedial statute. See Consol. Rail Corp. v. Darrone, 465 U.S. 624, 634 (1984) (stating
that Section 504 has a remedial purpose). Indeed, the
Supreme Court has given credence to the familiar canon of
statutory construction that remedial legislation should receive
a broad interpretation to effectuate its purposes. Tcherepnin v.
Knight, 389 U.S. 332, 336 (1967). Appellants believe this
canon compels the conclusion that Section 504 requires
school districts to provide services to all eligible students,
including private school students, within their jurisdiction.
The purpose of Section 504 does not, however, extend as
far as Appellants assert that it should. Section 504 and its
implementing regulations prohibit discrimination on the basis
of disability, not on the basis of school choice. See 34 C.F.R.
§ 104.4(b)(1)(ii)-(vii); Burke Cnty. Bd. of Educ. v. Denton,

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895 F.2d 973, 984 (4th Cir. 1990). Further, we have noted that
Section 504 "is not intended to impose an affirmative obligation on all recipients of federal funds." Id. Public schools are
only required to make a FAPE available on equal terms to all
eligible children within their district. Because BCBSC provided D.L. with access to a FAPE on equal terms with all
other eligible students in the district, it has satisfied Section
504’s imperative.
Appellants argue that the universal coverage of Section
504’s "child find obligation" implies that the district is
responsible for universal provision of services. A school district must meet its child find obligations by "[u]ndertak[ing]
to identify and locate every qualified handicapped person" in
the school’s district and "[t]ak[ing] appropriate steps to notify
handicapped persons and their parents or guardians of the
recipient’s duty." 34 C.F.R. § 104.32(a)-(b). Indeed, courts
and commentators alike have recognized the child find obligation as an affirmative obligation. See N.G. v. District of
Columbia, 556 F. Supp. 2d 11, 16 (D.D.C. 2008); Amy L.
MacArdy, Jamie S. v. Milwaukee Public Schools: Urban
Challenges Cause Systemic Violations of the IDEA, 92 Marq.
L. Rev. 857, 863 (2009). But, the affirmative obligation is to
ensure universal access and awareness, not universal provision. Because of Section 504 and its child find provision, children like D.L. know they have the opportunity to enroll in
public school to take advantage of services available to all eligible individuals. But, this child find obligation differs from
a school district’s obligations for service provision under Section 504, which are not affirmative. See Burke Cnty. Bd. of
Educ., 895 F.2d at 984. Section 504 and its implementing regulations do not require that public schools provide access to
eligible individuals that opt out of the program by enrolling
in private schools.
The practical and programmatic challenges associated with
reading an affirmative universal service provision requirement
into Section 504 provide additional support for limiting ser-

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vice provision to students enrolled in public schools. Many of
the services provided under Section 504 must take place in
"real time" during class. Harvey C. Parker, The ADHD Handbook for Schools 93-128 (2006) (discussing nine prevalent
classroom-based interventions used for children with ADHD).
For instance, for a student with ADHD, schools often need to
implement individualized structuring, cueing, and reinforcement while a class session is taking place to improve behavior
and learning. See Gerard A. Gioia & Peter K. Isquith, New
Perspectives on Educating Children with ADHD: Contributions of the Executive Functions, 5 J. Health Care L. & Pol’y
124, 147-51 (2002). A public school would have to send its
staff to D.L.’s private school to initiate and implement these
methodologies. Coordination between teachers, psychologists,
aides, and other public school staff is essential to carrying out
an effective Section 504 program. It would be taxing on staff
and budgets alike to organize this sort of coordination where
the child is split between school sites. Last, it would be
extremely difficult to coordinate the calendars, start and stop
times, and transportation of multiple private and religious
schools with each public school where service provision takes
place.
Appellants rely heavily on a single case out of the Pennsylvania Supreme Court to rebut the many arguments that work
against their interpretation. In Lower Merion School District
v. Doe, 931 A.2d 640, 641 (Pa. 2007), a kindergarten-aged
child, Doe, was not eligible for special education services
under IDEA, but did qualify to receive occupational therapy
under Section 504. Pursuant to a Pennsylvania law allowing
dual enrollment, Doe’s parents placed him in a private all-day
kindergarten program to attend classes and in a public school
to receive the therapy that the school district offered. Id. The
school district refused to provide services to Doe unless the
student took classes at the public school. Id. The court interpreted both Section 504 and Pennsylvania’s implementing
regulations that state that a school district must provide services to any eligible student enrolled in the district. Id. at 643-

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44. The regulations did not specify that a student must actually take classes to gain access to services. Id. at 644. As such,
the court concluded that "[s]ince Doe is entitled to § 504 benefits and dually enrolled in private school and the District’s
school, we hold the District is required to provide appropriate
§ 504 entitlements." Id. at 645.
Lower Merion fails to lend insight into this case because
the court’s analysis hinges on Pennsylvania’s dual enrollment
provisions. Unlike Pennsylvania, Maryland does not permit
dual enrollment. While the Lower Merion court does engage
in analysis of Section 504’s FAPE requirements, it does not
specify whether such requirements would apply where a student is not dually enrolled. The Third Circuit limited Lower
Merion’s holding accordingly when it decided in a subsequent
case that a student was not entitled to Section 504 services
because she did not continue her enrollment in a public school
after she had transferred to a private school. Lauren W. ex rel.
Jean W. v. DeFlaminis, 480 F.3d 259, 273-74 (3d Cir. 2007).
It is also notable that the Lower Merion court ignored Letter
to Veir, which would have directly contradicted the court’s
holding if Doe was not dually enrolled.
Appellants attempt to avoid this interpretation of Lower
Merion by arguing that Maryland’s laws prohibiting dual
enrollment violate the Supremacy Clause of the United States
Constitution. See U.S. Const. art. VI, cl. 2. The argument is
circular. Maryland’s prohibition against dual enrollment only
violates the Supremacy Clause if Section 504 requires provision of services to students regardless of their school choice.
Because we hold that it does not, there is no conflict between
Maryland’s law and Section 504.
Overall, the administrative guidance, statutory purpose,
case law, and policy considerations compel our holding that
D.L. is not entitled to Section 504 services if he remains
enrolled at a private institution.

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We next address whether BCBSC’s prerequisite that private school students cease enrollment in private religious
institutions and enroll in public schools in order to access Section 504 services is a violation of their constitutional rights
under Pierce, 268 U.S. 510 and Yoder, 406 U.S. 205.
In Pierce, the Supreme Court struck down an Oregon law
that would have forced parents to send their children to public
schools. 268 U.S. at 530-31. The Court explained that "[t]he
child is not the mere creature of the state; those who nurture
him and direct his destiny have the right, coupled with the
high duty, to recognize and prepare him for additional obligations." Id. at 535. In Yoder, members of the Amish religion
were convicted for violating Wisconsin’s compulsory education law requiring that students attend school until the age of
16. 406 U.S. at 207. The church members argued that a compulsory education system violated their First and Fourteenth
Amendment rights because their religious beliefs required that
they leave school after the eighth grade to separate themselves
from worldly influence. Id. at 209-10. The Court held for the
church members, noting that they had presented extensive
evidence that compulsory education "would gravely endanger
if not destroy the free exercise of [their] religious beliefs." Id.
at 219.
The critical distinction is that Pierce and Yoder addressed
laws requiring that students attend public schools or face
criminal repercussions, while Appellants retain full discretion
over which school D.L. attends. Nonetheless, Appellants
argue that BCBSC’s interpretation of the law creates an undue
burden on their constitutional rights, presumably by forcing a
decision between religious and educational freedom, on the
one hand, and bearing the increased cost of services, on the
other.
BCBSC’s policy may raise the overall cost of D.L.’s private education, but this does not offend D.L.’s constitutional
rights. The Supreme Court has explained that a statute does

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not violate the Free Exercise Clause merely because it causes
economic disadvantage on individuals who choose to practice
their religion in a specific manner. Braunfield v. Brown, 366
U.S. 599, 606 (1961). In McCarthy v. Hornbeck, 590 F. Supp.
936 (D. Md. 1984), parents of children attending private religious schools brought a Free Exercise claim against the Maryland schools. They alleged that a school transportation system
that provides transportation exclusively to public school students places an impermissible burden on the free exercise of
religion because it "conditions eligibility for an otherwise
available general welfare benefit upon the non-assertion of
plaintiffs’ right to send their children to private, churchrelated schools." Id. at 938-39. The court found that the
school transportation system did not infringe on plaintiffs’
rights because "at most [it placed] an indirect economic burden on plaintiffs’ right to freely exercise their religion." Id. at
945. Similarly, BCBSC’s policy does not substantially
infringe on Appellants’ right to attend a private religious
school. D.L.’s parents must shoulder the full cost of their
decision to exercise their religious beliefs. Here, the full cost
of education includes the cost of services that D.L. needs to
address his challenges.
Appellants’ assertion that BCBSC’s policy creates an
undue burden also clashes with case law upholding government’s ability to make policies and curricular decisions in the
best educational interest of students. In Hooks v. Clark
County School District, 228 F.3d 1036, 1037-38 (9th Cir.
2000), a family argued that it was unconstitutional for a
school district to deny speech therapy services at a public
school to an IDEA-eligible homeschooled child. The court
held that "attaching receipt of IDEA services to institutional
school attendance . . . constitutes ‘reasonable government regulation’ that does not offend our Constitution. Id. at 1042
(quoting Runyon v. McCrary, 427 U.S. 160, 178 (1976)). The
court explained that while the plaintiff might "have a constitutional right to educate [their child] at home, they do not have

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a constitutional right to state-funded speech therapy services."
Hooks, 228 F.3d at 1042.
Similarly, in Swanson v. Guthrie Independent School District No. I-L, 135 F.3d 694, 699 (10th Cir. 1998), plaintiffs
argued that they had a constitutional right to homeschool their
child pursuant to their religious beliefs and send their children
to a public school on a part-time basis to take selected
courses. The school board prevented them from doing so
because of a policy prohibiting part-time attendance. Id. The
court held that the school district’s policy was proper because
the district had the right to allocate resources and control curriculum as it saw fit. Id. at 700.
The right to a religious education does not extend to a right
to demand that public schools accommodate Appellants’ educational preferences. BCBSC has legitimate financial, curricular, and administrative reasons to require that D.L. enroll
exclusively in a public school in order to take advantage of
Section 504 services. The school board need not serve up its
publicly funded services like a buffet from which Appellants
can pick and choose. See Swanson, 135 F.3d at 700.
Because Appellants retain full discretion over school
enrollment and because BCBSC has taken reasonable measures to fulfill its mission, we find that BCBSC’s policies
place no undue burden upon Appellants’ constitutional rights.
III.
For the reasons discussed above, we affirm the decision of
the district court.
AFFIRMED