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Published in Print: December 6, 2000, as Court Lets Stand Rule on Spec. Ed. Services in Religious Schools

Court Lets Stand Rule on Spec. Ed. Services in Religious Schools

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The U.S. Supreme Court declined last week to hear the appeal of an Oregon family that had challenged a state rule barring the provision of special education services on the premises of religious schools.

The family, along with religious-liberty groups that joined its side, argued that the state administrative rule violated its First Amendment right to free exercise of religion.

But the state of Oregon told the justices that the family's concerns would soon be moot because the rule was being repealed.

In 1997, the Supreme Court ruled in Agostini v. Felton that federally funded Title I instructors could provide services on the premises of religious schools without violating the First Amendment's prohibition against a government establishment of religion. That ruling reversed a 1985 decision by the high court, in Aguilar v. Felton, that had barred the remedial instruction from taking place on religious school premises.

And in 1993, the court ruled in Zobrest v. Catalina Foothills School District that special education services provided under the Individuals with Disabilities Education Act at a religious school did not violate the establishment clause.

But some state constitutions and rules prohibit the delivery of remedial and special education services by public school employees at religious schools. The appeal in District (Case No. 00-131) concerns an Oregon state school board rule requiring that special education services be provided in a "religiously neutral setting."

The appeal in K.D.M. v. Reedsport School District (Case No. 00-131) concerns an Oregon state school board rule requiring that special education services be provided in a "religiously neutral set-ting."

The rule was challenged by the parents of Kai Moore, a 14-year-old boy who is blind and has cerebral palsy.

After the boy transferred from the 960-student Reedsport district to a Baptist school, his parents asked that he be allowed to receive periodic services from a vision specialist at the religious school. The school dis-trict, citing the state regulation, refused to provide the services at the Baptist school and instead offered them at a nearby firehouse.

After exhausting an administrative appeal, the Moore family sued the district and the state in federal district court, where they won a ruling that the state regulation violated the First Amendment's clause on free exercise of religion.

In a 2-1 ruling last year, a panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, reversed the district court and ruled for the school district and the state. The majority said the regulation did not substantially burden the family's free exercise of religion.

In their appeal to the Supreme Court, the Moore family and the Becket Fund for Religious Liberty argued that the 9th Circuit court's ruling conflicted with a 1998 ruling in a similar case by the U.S. Court of Ap-peals for the 8th Circuit, in St. Louis.

The Oregon regulation and others like it subject children to "shameful discriminatory treatment that would not be tolerated were it based on any suspect classification other than religion," the Moore family argued in its Supreme Court brief.

The justices appeared to be interested in the issue presented by the case. They requested that Oregon reply to the appeal after the state had initially passed up its chance to do so.

But the state's reply provides a possible explanation for why the Supreme Court declined without comment on Nov. 27 to take the case. The state told the justices that the state school board was in the process of repealing the regulation that requires the delivery of special education in a religiously neutral site. The repeal was to become final after Dec. 7, the state said.

Look-Alike Expulsion

Separately last week, the high court declined to hear an Illinois school district's appeal in a case in which a student's expulsion for possession of a substance that looked like an illegal drug was overturned by the state courts.

In 1995, then-freshman Christopher Scionti was expelled for one year from Burlington (Ill.) Central High School for possession of a white powder. The powder tested negative for controlled substances, but the Central Community Unit School District had a discipline policy prohibiting possession of so-called "look-alike drugs."

Mr. Scionti sued the 2,300-student district in state court, arguing that he did not receive his due process rights to learn the identities of student witnesses and cross- examine them. A state trial court judge agreed, ruling that Mr. Scionti had been "denied the most minimal rights" under the U.S. Constitution. The student won reinstatement to school and a $153,660 damages award.

A state appeals court agreed with the lower court's ruling, and the Illinois Supreme Court declined to take the case.

The federal Supreme Court justices declined without comment to hear the appeal in Board of Education of Central Community School District 301 v. Scionti (No. 00-406).

Vol. 20, Issue 14, Page 23

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