KDM ex rel. WJM v. Reedsport School District

Opinion by Judge SCHWARZER; Dissent by Judge KLEINFELD.

WJM’s son, KDM, is a minor who is legally blind and has cerebral palsy. As such, KDM is a “child with disabilities” entitled to special education and related services under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1485 (1994). Oregon provides such services to children enrolled in public schools. The Oregon administrative regulation leaves it to the discretion of individual school districts whether to provide such services to children enrolled in private school but specifically provides that “such special education and related services shall be provided in a religiously-neutral setting.” OAR 581-15-166 (the “regulation”). 1 Defendant Reedsport School District (“District”) is willing to provide such services to KDM, but not at KDM’s parochial school. We must decide whether the District’s refusal to provide services at the- school violates the IDEA or KDM’s rights under the Free Exercise, Establishment, or Equal Protection Clauses of the Constitution.

I. FACTUAL AND PROCEDURAL BACKGROUND

While attending public school, KDM received from the District the services of a vision specialist,…

dissenting:

Under today’s decision, the government may discriminate against people based on their exercise of religion, so long as the discriminatory burdens it imposes are not more substantial than requiring a blind child with cerebral palsy to leave his school building and go down the street to a fire hall. That is quite a surprise. Fortunately, that is not the law in most of the rest of the country. The Supreme Court, 1 and the Third, 2 Sixth, 3 and Eighth 4 Circuits have all held to the contrary — -the Eighth Circuit in a case materially identical to this one. Unfortunately, that will be the law in this circuit, if the majority opinion stands.

The reason that the majority gets the wrong answer is that it asks the wrong *1053 question. The majority formulates the question in this case as whether the regulation requiring special education to be provided in “a religiously-neutral setting” 5 imposes “an impermissible burden on [RDM’s and his parents’] free exercise of religion.” Because going down the street to the fire hall is only a slight inconvenience, the majority concludes that the government may burden religion to this extent, even though a student with the same…