Congress passed the Individuals with Disabilities Education Act (IDEA) to assure that all students with disabilities were provided with a free appropriate public education in the least restrictive environment. (The law was originally titled the Education for All Handicapped Children Act. It was given its present title in 1990. For purposes of clarity, the current title will be used throughout this article.) The U.S. Supreme Court has defined an appropriate education as a program of instruction that is reasonably calculated to confer educational benefit and which is developed in accord with the IDEA's procedural requirements (Board of Education v. Rowley, 1982). The Court made it clear, however, that appropriate does not necessarily mean best.
IDEA further requires public school districts to provide special education and related services to students with disabilities who have been voluntarily enrolled in private schools by their parents [IDEA [sections] 1413(a)(4)(A)]. In addition, the federal regulations promulgated to implement the IDEA stipulate that when students with disabilities are enrolled in parochial or other private schools, and receive special education and related services from a public school, the public school is required to initiate and conduct meetings to develop, review, and revise an individualized education program (IEP) for each child (Assistance to States for the Education of Children with Disabilities, [sections] 300.349, 1994).
Furthermore, a set of regulations promulgated by the U.S. Department of Education, known as the Education Department General Administrative Regulations (1995) (EDGAR) provide additional requirements. The EDGAR regulations state that a school district must provide students enrolled in private schools with a genuine opportunity for equitable participation in a program of benefits [34 C.ER. [sections] 76.651(a)(1)]. The program of benefits provided for a student enrolled in a private school must be comparable in quality to the benefits provided to students enrolled in the public schools [34 C.F.R. [sections] 76.654(a)]. In developing a program of benefits, public school officials must consult with representatives of the private school and consider (a) which students will receive benefits, (b) how the students' needs will be identified, (c) what benefits will be provided, (d) how the benefits will be provided, and (e) how the program will be evaluated [34 C.ER. [sections] 76.652(a)(1)-(5)]. The EDGAR regulations have been a factor in much of the litigation surrounding special education.
Although most school officials understand the obligation to provide special education and related services to parochial school students who have disabilities, they are justifiably concerned about how those services can be provided without violating the Establishment Clause of the First Amendment to the U.S. Constitution. The Establishment Clause creates what has come to be known as "a wall of separation between church and state." Until the recent U.S. Supreme Court decision in Agostini v. Fehon (1997) it was generally thought that most special education services could not be provided on site at a sectarian school (Osborne, 1994).
Prior U.S. Supreme Court decisions had ruled that direct instructional services could not be provided by a public school district on the premises of a parochial school, but that some supportive services were allowed. This generated a fair number of lawsuits under IDEA concerned with how special education students attending religious schools could receive needed special education services. Now that the Supreme Court has held that direct instructional services may be provided on the premises of a parochial school, two important questions remain: Must private school students with disabilities be provided with the same level of services as their public school peers? Are school districts required to provide parochial school students with on-site special education services? The Individuals with Disabilities Education Act Amendments of 1997 and recent court decisions provide some answers. Those amendments will be analyzed in light of prior court decisions to answer the previous questions.
ESTABLISHMENT CLAUSE DECISIONS
Litigation involving the Establishment Clause and programs provided by the public schools to parochial school students is not new. Since 1947 when the Supreme Court first addressed the issue of aid to nonpublic schools in Everson v. Board of Education, on more than two dozen occasions it has been called upon to determine the constitutionality of various publicly-funded programs that have been provided to parochial school students. Although some of these opinions have now been overturned by the Agostini ruling, it is helpful to review some of those earlier decisions for a better understanding of how the issues developed historically.
In 1971 the Supreme Court established a three-part test for determining whether a given service, program, practice, or policy violates the Establishment Clause. Under the standard enumerated in Lemon v. Kurtzman the activity in question must
1. Have a secular purpose,
2. Not have the primary effect of either advancing or inhibiting religion, and
3. Not create an excessive entanglement between government and religion.
Although several members of the current Supreme Court question the continued viability of the Lemon test (Underwood & Mead, 1996), it is still frequently employed by lower courts in determining whether a given program is constitutional.
It is well established that public funds cannot be used to sponsor programs that result in a direct financial benefit to a parochial school. For example, state statutes that provide salary supplements to parochial school staff or reimbursements to sectarian schools for expenses related to teaching secular subjects are unconstitutional (Lemon v. Kurtzman, 1971). Likewise, statutes providing for reimbursement or grants to parents of parochial school children for tuition at parochial schools have been struck down in the past (Committee for Public Education v. Nyquist, 1973; Sloan v. Lemon, 1973). In addition, the direct loan of instructional materials to parochial schools and the provision of on-site auxiliary services, such as remedial reading, accelerated instruction, guidance counseling, and testing, have been invalidated (Meek v. Pittenger, 1975).
However, there have been some services that were acceptable to the high Court. Most of these allowable services tend to benefit the individual child without providing any direct financial aid to the parochial school. For example, the Court has approved of the loan of textbooks to parochial school students as long as the textbooks are nonreligious and are not adapted to religious purposes (Board of Education v. Allen, 1968; Cochran v. Louisiana, 1930; Meek v. Pittenger, 1975; Wolman v. Walter, 1977). Under a principle that has come to be known as the child benefit theory, parochial school students may be transported to their school (Everson v. Board of Education, 1947) and they may be provided with diagnostic and health services on site (Wolman v. Walter). Standardized tests may be administered by the public school district to parochial school students as long as they are the same ones administered to the public school students Wolman v. Walter). At the same time school districts should minimize the involvement of the parochial school staff in the administration of these tests by using instruments that are commercially developed and scored. Early decisions also held that remedial and therapeutic services could not be provided on site, but may be provided at a neutral location (Committee for Public Education v. Regan, 1980; Wolman v. Walter).
In general, subsidies that have had the effect of promoting the religious mission of the parochial schools by resulting in a direct financial benefit to the schools have not passed constitutional muster. Programs or services that have benefited students without relieving the parochial school of any financial obligations have been upheld. The Court also has approved programs that provide indirect financial aid to a parochial school as long as the aid provided was part of a general welfare program available to all students regardless of the school attended (Mudler v. Allen, 1983; Witters v. Washington, 1986).
Ban on Providing Direct On-Site Services
In a 1985 case the Court held that two programs, in which classes for nonpublic school students were offered at public expense in classrooms leased from private schools, were unconstitutional. In one of the programs remedial and enrichment courses, taught by public school teachers, were offered during the school day to supplement the core curriculum. In the other, after-school classes, taught by private school teachers paid through public stipends, were offered. Although these programs were offered in some nonsectarian private schools, they were being conducted primarily in parochial schools. In Grand Rapids School District v. Ball (1985) the Court held that these programs impermissibly advanced religion in three ways:
1. The teachers could inculcate particular religious tenets or beliefs, either intentionally or unintentionally.
2. The programs could provide a symbolic link between government and religion.
3. The programs could promote religion by providing a subsidy to the primary religious mission of the schools.
On the same day the Supreme Court decided the Grand Rapids case, it struck down the practice of providing on-site Title I programs to students attending parochial schools. In Aguilar v. Felton the Court held that Title I remedial services could not be provided on the premises of a parochial school because doing so violated the third prong of the Lemon test. The case arose when taxpayers challenged the practice of using federal Title I funds to pay the salaries of public school personnel who taught English as a second language, remedial reading, and remedial math classes, and provided guidance services in the parochial schools. The teachers and counselors had been advised to avoid involvement with religious activities, bar religious materials from their classrooms, and minimize contact with parochial school staff. However, the Court found that the supervisory system that had been established to monitor the services being provided by the Title I teachers and the cooperation that was necessary to maintain the program resulted in an excessive entanglement between the church and the government.
Effect on Special Education
Following the decisions in Grand Rapids and Aguilar, many school districts stopped the practice of providing special education services on the premises of parochial schools, out of a concern that this practice would also be held to be unconstitutional. Instead, public school districts met their statutory obligation to provide special education services to parochial school students by offering the instruction off site or at a neutral location. (When services are offered off the parochial school premises, the public school district may be required to provide the student with transportation between sites [Felter v. Cape Girardeau School District, 1993].) This arrangement created some inconvenience, but was an acceptable alternative for most parochial school students who had mild to moderate disabilities. However, it was not a viable alternative for students who had severe disabilities. For many of these students, special education services must be provided on site or not at all.
In 1993 the Supreme Court had the opportunity to review a situation where services could only be provided on site. In Zobrest v. Catalina Foothills School District the Court held that providing a sign-language interpreter on the premises of a parochial school did not violate the Establishment Clause. Yet, the Court did not rule that a school district is required to provide such services on site.
The lawsuit arose when the parents of a student with a hearing impairment who attended a parochial school requested that the public school district supply the student with a sign-language interpreter for all of his classes. After obtaining an opinion from the county attorney, school officials refused that request but offered to provide the sign-language interpreter within the public schools if the student chose to enroll. The federal district and appeals courts upheld the school district's decision. These courts held that providing a sign-language interpreter at the parochial school would violate the Establishment Clause by failing the second prong of the Lemon test. In other words, providing such a service would have the effect of advancing religion according to these lower court decisions. Throughout the litigation the school district maintained that it would be willing to provide the sign-language interpreter at the parochial school but that it was unconstitutional to do so.
The Supreme Court, however, overturned the lower courts' decisions, ruling that it was not unconstitutional to provide the on-site sign-language interpreter. In a split decision, the high Court held that the services of a sign-language interpreter were part of a general government program that distributes benefits neutrally to any child qualifying as disabled under IDEA, whether the school attended is sectarian or nonsectarian, public or private. By giving the parents the freedom of choice to select a school, the Court reasoned that IDEA ensured that a government-paid interpreter would be present in a parochial school only as a result of the parents' private decision. According to the Court, IDEA creates no financial incentive for parents to choose a parochial school and the interpreter's presence there could not be attributed to state decision making.
Furthermore, the Court stated that the only economic benefit the parochial school would receive was indirect. The Court maintained that providing the interpreter would not relieve the parochial school of any costs it otherwise would have borne. Noting that the student, not the school, was the primary beneficiary of IDEA, the Court held that aiding the student did not amount to a direct subsidy of the parochial school.
Finally, the Court noted that the task of a sign-language interpreter was quite different from that of a teacher or guidance counselor. The court opined that a sign-language interpreter would not add or subtract from the pervasively religious environment in which the student's parents chose to place him. The Court conceded that while a signlanguage interpreter would simply translate what was presented to the whole class, teachers or counselors could interject thoughts, ideas, and philosophies of their own.
In reaching its decision the high Court found that the Zobrest situation was analogous to those in Mueller v. Allen and Witters v. Washington Department of Services for the Blind. In the former case the Court upheld a state statute that allowed parents to take a state income tax deduction for certain expenses incurred in the education of their children. The Court held that since the deduction was available to all parents, whether or not the children attended public or private schools, it did not violate the Lemon test. In the latter case the Court upheld vocational aid to a student who is blind who was studying for the ministry at a private Christian college, finding that the aid was generally available without regard for the sectarian or nonsectarian nature of the school attended. In these cases the Court held that government programs that neutrally provide benefits to a broad class of individuals without regard to religion do not violate the Constitution simply because religious institutions may receive an indirect financial benefit.
The Zobrest ruling apparently indicated that it would not be unconstitutional to provide on-site services whereby the person providing the services is not in a position to proselytize the student. However, the decision did not specifically allow all special education services to be provided on site. Since the Court made a distinction between the role of a sign-language interpreter and those of teachers or counselors, it was assumed that the decision did not allow the provision of general instructional services (Osborne, 1994). It is interesting to note that in one decision that pre ceded the Zobrest ruling, a state supreme court upheld a school district's refusal to provide counseling and other therapy services on the premises of a parochial school (Wright v. Saco School Department, 1992). The school district's refusal was based on a state law that mandated that all special education services must be provided at a public school or a neutral site. The court stated that the purpose of this law was to avoid conflict with the Establishment Clause.
In response to the Aguilar decision, a school district in the state of New York stopped providing special education services on site at a sectarian school operated by the Satmar Hasidic sect because the sect believed in segregation of the sexes outside the home. Thus, it went against their religious principles to have their children sent to a public school, where the sexes were integrated, to receive special education services. The result was that almost all of the children with disabilities in the sect were not receiving appropriate special education services. The state legislature responded by passing a law that created a special school district whose boundaries were coterminous with the sect's village. The sole public school in the district provided educational services to students with disabilities. However, the creation of this district was challenged on constitutional grounds. The highest state court in New York held that the statute violated the Establishment Clause.
In Board of Education of Kiryas Joel Village School District v. Grumet (1994), the Supreme Court agreed that the creation of the special school district departed from the constitutional mandate of neutrality toward religion. The Court found that the state law resulted in a forbidden fusion of governmental and religious functions in that it delegated power to an electorate defined by common religious belief and practice. Thus, the Court held that the creation of the special school district crossed the line between permissible accommodation of religion to impermissible establishment of religion.
Recognizing that the dilemma the school district and Satmar Hasidic sect faced was created by the Aguilar decision, Chief Justice Rehnquist and Justices O'Connor, Kennedy, Scalia, and Thomas indicated that it may be time to rethink the prohibition on providing on-site services. Justice O'Connor went so far as to characterize the Aguilar decision as being hostile to religion. This set the stage for the Court to revisit the issue.
Agostini v. Felton
Encouraged by the Zobrest and Grumet opinions, the New York City Board of Education petitioned for relief from the Aguilar ruling in Agostini v. Felton (1997). A federal trial court and the appeals court for the second circuit, recognizing that they were still bound by Aguilar, denied the requested relief. The Supreme Court, the only court with the authority to overturn one of its own decisions, agreed to hear the appeal. In a five to four ruling, the Court lifted its previous ban on providing Title I services on the premises of a parochial school.
Writing for the majority, Justice O'Connor stated that the Aguilar decision was no longer good law in that it was not consistent with the Court's subsequent Establishment Clause decisions. These subsequent decisions, according to O'Connor, had undermined the assumptions upon which Aguilar had been decided.
Significantly, O'Connor noted that the Court had abandoned its presumption that the presence of public school teachers on parochial school grounds inevitably resulted in the impermissible inculcation of religion in their students or created a symbolic union between government and religion. Referring to Zobrest, O'Connor found that the Court assumed that the interpreter would dutifully discharge her responsibilities and comply with the ethical guidelines established by her profession. O'Connor further stated that there was no reason to confine this assumption to sign-language interpreters. In other words, the assumption could be made that a teacher also would not depart from her assigned duties and embark on religious indoctrination. O'Connor summarized by saying that in all relevant respects the provision of Title I instructional services was identical to the provision of a sign-language interpreter.
Aguilar had also held that the monitoring that would be required, to assure that public school teachers would not inculcate their students, created an excessive entanglement between government and religion. Since the presumption that properly trained teachers would impermissibly indoctrinate parochial school students had been abandoned, the Court also abandoned its assumption that pervasive monitoring of those teachers was required. Thus the excessive entanglement problem dissolved.
Finally, the Court held that providing Title I services on site did not amount to a subsidization of religion. The Court was not persuaded that the Title I services in question supplanted services that would otherwise be provided by the parochial schools or relieved the religious schools of any costs they otherwise would have borne in educating their students.
MUST ON-SITE SERVICES BE PROVIDED?
One question that remains unanswered by the Zobrest decision is whether IDEA or other federal regulations require a school district to provide services on the premises of a parochial school since doing so does not violate the Establishment Clause. This was not an issue in Zobrest because the school district contended from the outset that it was willing to provide the services on site if it was not forbidden from doing so.
In a lawsuit that was very similar to Zobrest, the Fourth Circuit Court of Appeals held that IDEA did not require a school district to provide the services of a cued speech interpreter on the premises of a parochial school (Goodall v. Staffed County School Board, 1991). The court held that the district had met its obligations under IDEA by offering the requested services at a public school. In a 1995 action involving the same litigants, the court noted that its 1991 decision was not overturned by the Supreme Court's ruling in Zobrest.
Many other courts have wrestled with the issue. In addition to IDEA's regulations, these courts have considered the requirements of the EDGAR regulations as well. As the discussion that follows indicates, these courts are divided on the question of whether school districts are required to provide services on site under federal statutes and regulations.
Several courts have held that although IDEA requires a school district to provide special education and related services to students with disabilities who have been placed in private schools by their parents, it is not required to provide those services on location at the private school. These courts have basically held that when a public school makes the necessary services available at a public facility, it has discharged its obligations (Cefalu v. East Baton Rouge, 1997; Foley v. Special School District of St. Louis County, 1996; K. R. v. Anderson Community School Corporation, 1996; Peter v. Johnson, 1997; Tribble v. Montgomery, 1992). In the Cefalu decision, the court held that if a private school student was able to show a genuine need for on-site services, the burden was shifted to the school district to present a justifiable reason to deny those services. That decision was later withdrawn, however, and the court held that a school district was not legally obligated to provide an on-site sign language interpreter.
Other courts have disagreed and have held that under the EDGAR regulations a school district is required to provide on-site services. These courts interpreted the EDGAR regulations to require that school districts provide private school students with services that are comparable in quality, scope, and opportunity for participation to those provided for public school students (Fowler v. Unified School District, 1997; Natchez-Adams School District v. Searing, 1996; Russman v. Board of Education, 1997). In the Fowler case, the court held that the school district was not required to pay the full costs of a full-time sign-language interpreter for a student enrolled in a private school but must pay for those services up to an amount equal to, but not more than, the average cost to the district to provide that same service to similarly situated students in the public schools. The court further stated that the school district should be given a degree of discretion in determining the average cost.
The Anderson, Fowler, and Russman decisions were all appealed to the U.S. Supreme Court. However, the high Court has sent them back to the respective appeals courts to be re-examined in light of Congress's 1997 IDEA amendment (Walsh, 1997). A discussion of this follows.
Department of Education Policy Statements
In several policy interpretation letters, the U.S. Department of Education had stated that a school district is not necessarily required to provide services on the premises of a private school (Livingston Letter, 1991; Schmidt Letter, 1993; Williams Letter, 1991). Even though policy interpretation letters do not have the force of a statute or regulation, courts generally defer to an agency's interpretation of its own rules unless it is clearly contrary to established law (Peter v. Johnson, 1997).
The 1997 amendments to IDEA clearly state that a school district may provide special education and related services on the premises of a private school, including a parochial school. The amendments also indicate that school districts do not need to spend more on a parochial school child than a public school child for the same services. Consequently, a parochial school student may receive lesser services if the cost of providing services to the parochial student is greater than the cost of providing similar services to a public school child. Or, in the alternative, a school district may be required to pay for services for a parochial school student only to an amount equal to what it would spend if that child were enrolled in a public school (Individuals with Disabilities Education Act Amendments of 1997).
IMPLICATIONS FOR PRACTICE
The question of whether school districts are required to provide and pay for special education and related services for children voluntarily enrolled by their parents in private schools has been controversial for some time. The question became more complicated when the children were enrolled in a parochial school due to the possibility of violating the Establishment Clause of the First Amendment by providing on-site services.
The U.S. Supreme Court has recently clarified one issue by lifting its ban on providing onsite Title I services in sectarian schools. In Agostini, the Court has made it very clear that public school districts may provide special education and related services on the premises of religious schools. Now that the ban has been lifted, questions remain as to whether a parochial school student has an entitlement to receive the same level of services as public school counterparts and whether special education services must be provided on site.
Congress, in its most recent amendments to IDEA, has stated that school districts may provide services on location at a private school. In choosing the word may, Congress has made it clear that school districts are not required to provide on-site services. Thus, school districts may exercise some discretion in how and where they will provide services to private school students with disabilities. Prior to this amendment, several courts had ruled that a school district had met its obligation by making services available within the public schools. Other courts, however, had ruled that on-site services were required by IDEA and other federal regulations. Further litigation can be expected in this area, but given the wording in the amendments it is likely that courts will rule that on-site services are not required.
One objection school districts have raised in the past to providing on-site services is that it is not cost effective. For reasons of economy, school districts have generally centralized services for students with low-incidence disabilities. For example, a school district may place all of its students who have hearing impairments in one school so that the same services do not need to be duplicated in several schools throughout the district. Courts have upheld this practice (Barnett v. Fairfax County School Board, 1989). Providing an onsite service to a single private school student that is already available within the public schools can be unduly expensive.
Congress has addressed this problem in the 1997 amendments. By stating that a school district is not required to spend more on a private school student than it does on average for similarly situated public school students, Congress has limited the amount the district must spend to provide services to private school students. For example, if teachers aides in the school district generally attend to the needs of three students, a school district would be required to pay for only one third of the cost of an aide that attends to the needs of one parochial school student.
Again, the amendments will likely generate their own wave of litigation. It is always difficult to predict what courts will do, but it is conceivable that courts will rule that parochial school students have an entitlement to some degree of services. Even though it was decided before the 1997 amendments were passed, the rationale adopted by the Tenth Circuit Court of Appeals in Fowler appears to be a reasonable way to resolve the issue. Adapting the decision to the requirements of the 1997 amendments, courts may hold that school districts must spend the same amount to provide services to a parochial school child that it would have spent on that same child if he or she had remained in the public schools.
Questions are sure to arise regarding how a school district determines the average cost of educating a student with disabilities. The Fowler court held that school districts must be given broad discretion in calculating the average cost and as long as their basis for such a calculation is rational, it should be given substantial deference by the court.
As it now stands, it seems clear that parochial school students with disabilities are entitled to some level of special education and related services. However, they are not necessarily entitled to the same level of services they would receive if they attended a public school. Furthermore, school districts are given some discretion regarding where and how those services will be provided. While it is not forbidden to provide the services on the premises of a sectarian school, school districts are not required to do so.
Agostini v. Felton, 117 S. Ct. 1997 (1997).
Aguilar v. Felton, 473 U.S. 402, 105 S. Ct. 3232, 87 L. Ed. 2d 290, 25 Ed. Law Rep. 1022 (1985).
Assistance to States for the Education of Children with Disabilities, 34 C.F.R. [sections] 300 et seq. (IDEA regulations 1994).
Barnett v. Fairfax County School Board, 721 F. Supp. 757, 56 Ed. Law Rep. 804 (E.D. Va. 1989), aff'd 1927 F.2d 146, 66 Ed. Law Rep. 64 (4th Cir. 1991).
Board of Education v. Allen, 392 U.S. 236, 88 S. Ct. 1923, 20 L. Ed. 2d 1060 (1968).
Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 102 S. Ct. 3034, 73 L. Ed.2d 690, 5 Ed. Law Rep. 34 (1982).
Board of Education of Kiryas Joel Village School District v. Grumet, 512 U.S. 687, 114 S. Ct. 2481, 129 L. Ed. 2d 546, 91 Ed. Law Rep. 810 (1994).
Cefalu v. East Baton Rouge Parish School Board, 117 F.3d 231, 119 Ed. Law Rep. 338 (5th Cir. 1997); previous decision at 103 F.3d 393, 115 Ed. Law Rep. (5th Cir. 1997) withdrawn.
Cochran v. Louisiana State Board of Education, 281 U.S. 370, 50 S. Ct. 335, 74 L. Ed. 1157 (1930). Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756, 93 S. Ct. 2955, 37 L. Ed. 2d 948 (1973).
Committee for Public Education and Religious Liberty v. Regan, 444 U.S. 646, 100 S. Ct. 840, 63 L. Ed. 2d 94 (1980).
Education Department General Administrative Regulations, 34 C.F.R. [sections] 76.1 et seq. (EDGAR regulations).
Everson v. Board of Education, 330 U.S. 1, 67 S. Ct. 504, 91 L. Ed. 2d 711 (1947).
Felter v. Cape Girardeau School District, 810 F. Supp. 1062, 80 Ed. Law Rep. 595 (E.D. Mo. 1993).
Foley v. Special School District of St. Louis County, 927 E Supp. 1214, 110 Ed. Law Rep. 630 (E.D. Mo. 1996).
Fowler v. Unified School District, 107 F.3d 797, 116 Ed. Law Rep. 547 (10th Cir. 1997), vac'd and rem'd 117 S. Ct. 2503 (1997) (mem.).
Goodall v. Stafford County School Board, 930 F.2d 363, 67 Ed. Law Rep. 79 (4th Cir. 1991), 60 F.3d 168, 101 Ed. Law Rep. 676 (1995).
Grand Rapids School District v. Ball, 473 U.S. 373, 105 S. Ct. 3216, 87 L. Ed. 2d 267, 25 Ed. Law Rep. 1006 (1985).
Individuals with Disabilities Education Act, 20 U.S.C. [section] 1400 et seq. Originally entitled the Education for All Handicapped Children Act.
Individuals with Disabilities Education Act Amendments of 1997, P.L. 105-17.
K. R. v. Anderson Community School Corporation, 81 F.3d 673, 108 Ed.Law Rep. 533 (7th Cir. 1996), vac'd and rem'd 117 S. Ct. 2505 (1997) (mem.).
Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971).
Livingston Letter, 17 EHLR 523 (OSEP 1991). Meek v. Pittenger, 421 U.S. 349, 95 S. Ct. 1753, 44 L. Ed. 2d 217 (1975).
Mueller v. Allen, 463 U.S. 388, 103 S. Ct. 3062, 77 L. Ed. 2d 721, 11 Ed. Law Rep. 763 (1983).
Natchez-Adams School District v. Searing, 918 E Supp. 1028, 108 Ed. Law Rep. 174 (S.D. Miss. 1996).
Osborne, A. G. (1994). Providing special education and related services to parochial school students in the wake of Zobrest. Education Law Reporter, 87, 329-339.
Peter v. Johnson, 958 E Supp. 1383, 117 Ed. Law Rep. 943 (D. Minn. 1997).
Russman v. Board of Education of the Enlarged City School District of the City of Watervliet, 945 E Supp. 37, 114 Ed. Law Rep. 796 (N.D.N.Y. 1995), aff'd 85 F.3d 1050 (2d Cir. 1997), vac'd and rem'd 117 S. Ct. 2502 (1997) (mem.).
Schmidt Letter, 20 IDELR 1224 (OSEP 1993). Sloan v. Lemon, 413 U.S. 825, 93 S. Ct. 2982, 37 L. Ed. 2d 939 (1973).
Tribble v. Montgomery County Board of Education, 798 E Supp. 668, 77 Ed. Law Rep. 784 (M.D. Ala. 1992).
Underwood, J. K., & Mead, J. E (1996). Establishment of religion analysis: The Lemon test or just lemonade? Journal of Law & Education, 25, 55-82.
Walsh, M. (1997). Court voids religious-freedom law, defers on special education cases. Education Week, 16(40), 21.
Williams Letter, 18 IDELR 742 (OSEP 1991).
Witters v. Washington Department of Services for the Blind, 474 U.S. 481, 106 S. Ct. 748, 88 L. Ed. 2d 846, 29 Ed. Law Rep. 496 (1986).
Wolman v. Walter, 433 U.S. 229, 97 S. Ct. 2593, 53 L. Ed. 2d 714 (1977).
Wright v. Saco School Department, 610 A.2d 257 (Me. 1992).
Zobrest v. Catalina Foothills School District, 509 U.S. 1, 113 S. Ct. 2462, 125 L. Ed.2d 1, 83 Ed. Law Rep. 930 (1993). 89102.
ALLAN G. OSBORNE, JR. (CEC MA Federation), Assistant Principal, Snug Harbor Community School, Quincy, MA. PHILIP DIMATTIA (CEC MA Federation), Associate Professor, School of Education, Boston College, MA. CHARLES J. RUSSO, Professor and Chair, Department of Educational Administration, University of Dayton, OH.
Address correspondence to Allan G. Osborne, 94 Acorn Street, Millis, MA 02054. E-mail: AGOsborne@aol.com
Manuscript received November 1996; revision accepted 1997.