                    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.                  *
                                      ___________

                               Submitted: June 11, 1998
                                   Filed: September 15, 1998

                                      ___________

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

MAGILL, Circuit Judge.

       Aaron Westendorp is a severely disabled child who requires a full-time
paraprofessional to function in a school classroom. Minnesota Independent School
District No. 273 (ISD No. 273) refused to provide Aaron with a paraprofessional as
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. 273
violated their rights of free speech, free exercise of religion, and equal protection under
the First and Fourteenth Amendments, as well as their rights under the Religious
Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. §§ 2000bb to 2000bb-4 (1994),
the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-1491o
(1994), and Minnesota state law. The district court granted summary judgment 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 partial paralysis from the
eyes down. Although Aaron has normal cognitive abilities, he cannot speak, and
communicates through finger signing. He breathes through a tracheostomy tube and


                                           -2-
eats through a gastrostomy tube. Because of his severe physical disabilities, Aaron
requires a full-time paraprofessional while in school. The paraprofessional assists
Aaron with his disabilities, translates his finger spelling, and adapts classroom tasks for
Aaron. The cost of a paraprofessional is approximately $10,000 per year, and is the
same whether Aaron attends a public school or a private school.

        Aaron's parents wish him to attend Calvin Christian School, a K-8 private
religious school in Edina. Aaron's two sisters attended Calvin Christian School, and
Aaron was able to attend the school from 1991 until 1994. During this time, the
Westendorps' church paid for Aaron's paraprofessional. When the Westendorps
changed churches, however, the burden to pay for the paraprofessional fell on them.
With help from relatives, 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
paraprofessional for Aaron if he attended Calvin Christian School, the Westendorps
were forced to transfer Aaron to a public school in Edina. 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 he
attended Calvin Christian School, Minnesota law prohibited school districts from
providing such services at private religious schools. See Minn. R. 3525.1150 subpt. 2
(allowing special education services only at a "neutral site"); Minn. Stat. § 123.932
subdivision 9 (defining "neutral site" as "a public center, a nonsectarian nonpublic
school, a mobile unit located off the nonpublic school premises, or any other location
off the nonpublic school premises which is neither physically nor educationally
identified with the functions of the nonpublic school"). Wayne Erickson, the manager
of the Division of Special Education in the Minnesota Department of Children, Families
and Learning, explained that, under this rule, a school district "[m]ay not provide special
instruction services in a nonpublic school if that nonpublic school is a religious or
sectarian school." Erickson Dep. (May 22, 1997) at 46, reprinted in J.A. at 270. By

                                           -3-
contrast, where a student in a private nonreligious school required special education
services that "can very easily be provided in the child's regular classroom without
impairing [the child's] ability to operate," Erickson stated that "it would be the state's
policy it should be provided in 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 must
"make available special education to all students who are disabled regardless 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 to
Aaron at Calvin Christian School, see Kodrich Dep. (July 17, 1997) at 68-69, reprinted
in J.A. at 453-54, and that Minnesota Rule 3525.1150 was an "independent rationale
for the School District's policy" of refusing services at private schools. See Kodrich
Aff. (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 Independent School District 273 to not
       provide direct on-site special education and related services to disabled
       school-age students who have been placed by their parents or guardians
       in private 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 education
services to students at private schools, ISD No. 273 has provided special education
services 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 School
District has provided students who were placed by their parents in non-sectarian private
preschool programs with direct on-site special education and related services"), as well


                                           -4-
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 against ISD No. 273 and the
State of Minnesota, seeking injunctive and declaratory relief and damages. The
Westendorps were joined in their suit against the state by the parents of Sarah Peter, a
disabled Minnesota child who was similarly denied special education services at a
private religious school by Independent School District No. 877 (ISD No. 877).

     On March 26, 1997, the district court granted summary judgment against the
Westendorps on their IDEA claim. See Peter v. Johnson, 958 F. Supp. 1383, 1399-
1400 (D. Minn. 1997). The district court concluded "that the statute and its regulations
do not require the State defendants or local school districts to provide on-site
paraprofessional services to the plaintiffs at private schools as a component of their
individualized education program." Id.

       On June 23, 1997, the Supreme Court held that public school districts may
provide secular teaching services at a private religious school without offending the
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 enforcement 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 insofar as it prohibits
provision of special education services to Plaintiffs Sarah Peter and Aaron Westendorp
on the premises of a private religious school." Order (Aug. 5, 1997) at 1, reprinted in
Appellants' Addendum at 48. Minnesota Rule 3525.1150 was subsequently amended
to no longer distinguish between private religious schools and

                                           -5-
private nonreligious schools. 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. 273 continued
to refuse to provide services to Aaron if he attended Calvin Christian School. The
district court denied a preliminary injunction requiring ISD No. 273 to provide such
services, see Order (Aug. 12, 1997) at 9, reprinted in Appellants' Addendum at 58, and
subsequently granted summary judgment against the Westendorps' remaining
constitutional and state law claims. See Order (Sept. 2, 1997) at 2-3, reprinted in
Appellant's Addendum at 60-61.

       The Westendorps now appeal the grant of summary judgment against them on
their free speech, free exercise, equal protection, and IDEA claims. Following the
Supreme Court's decision that RFRA is unconstitutional as applied to state law, see City
of Boerne v. Flores, 117 S. Ct. 2157, 2172 (1997), the plaintiffs abandoned their RFRA
claim. See Order (Aug. 12, 1997) at 4, reprinted in Appellants' Addendum at 53. In
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
Minnesota's special education provisions. See 1998 Minn. Sess. Law Serv. Ch. 398
(H.F. 2874) art. 2, § 53(a) (West) (providing that Minnesota law will no longer "impose
requirements that exceed federal law").

                                           II.

       This Court reviews the district court's grant of summary judgment de novo. See
Kraft v. Ingersoll-Rand Co., 136 F.3d 584, 585 (8th Cir. 1998). Summary judgment is
only proper if, taking the evidence "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

                                          -6-
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 exists if: (1) there is a dispute of fact; (2) the
disputed fact is material to the 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 their complaint, the Westendorps alleged that ISD No. 273's "policies and
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 conclude that the district court erred in granting summary judgment against
the Westendorps on this claim.

       Prior to the district court's injunction against the enforcement of Minnesota Rule
3525.1150 and the rule's subsequent amendment, Minnesota Rule 3525.1150 explicitly
discriminated against children who attended private religious schools. While children
who attended private nonreligious schools could receive government-funded special
education services directly at their private schools, students like Aaron could not.
Government discrimination based on religion violates the Free Exercise Clause of the
First Amendment, see Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508
U.S. 520, 532 (1993) ("the First Amendment forbids an official purpose to disapprove
of a particular religion or of religion in general"), the Free Speech Clause of the First
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 are
presumptively 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 through
indiscriminate imposition of inequalities. . . . A law declaring that in general it shall be

                                            -7-
more difficult for one group of citizens than for all others to seek aid from the
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 of
Minnesota to justify Minnesota Rule 3525.1150 was that the rule was necessary to
avoid 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 position 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
disabled student at a private religious school without violating the Establishment
Clause), and the State of Minnesota abandoned this argument following the Supreme
Court's decision in Agostini, 117 S. Ct. at 2016 (holding that the Establishment Clause
was not violated when public teachers taught nonreligious subjects at private religious
schools). Because Minnesota Rule 3525.1150 cannot be justified as a narrowly tailored
means of avoiding a violation of the Establishment Clause, it violated the plaintiffs'
rights to free exercise of religion, free speech, and equal protection, and the district
court properly enjoined its enforcement.

       If ISD No. 273 denied a paraprofessional to Aaron Westendorp at Calvin
Christian School because of Minnesota Rule 3525.1150's unconstitutional distinction
between private religious schools and private nonreligious schools, or otherwise
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. 273
conceded that it relied on Minnesota Rule 3525.1150 when it denied services to Aaron
at Calvin Christian School, see Kodrich Aff. ¶ 6, reprinted in J.A. at 152-53 (Minnesota
Rule 3525.1150 was an "independent rationale for the School District's policy"), and

                                           -8-
further conceded 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. at
453-54. ISD No. 273 nevertheless contends that in denying services to Aaron it
"followed its long-standing policy, which it maintains today, of not providing direct, on-
site special education and related services at private schools, regardless of 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
actual practice of providing services to disabled children at private nonreligious
preschools and at home schools. Indeed, ISD No. 273's alleged policy has not been
used to deny students at private nonreligious schools paraprofessional services, and
appears to manifest itself only when disabled children at private religious schools
request these services. While ISD No. 273 has alleged that it created its policy to
ensure the quality and 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 but allowing these
services to students at home schools or at private nonreligious preschools, and there is
no evidence that any of these goals are furthered by denying Aaron a paraprofessional
at Calvin Christian School. It is undisputed that the cost to ISD No. 273 is the same
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
paraprofessional would be of a lower quality at Calvin Christian School than if they
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 knew "[v]ery little" about Aaron's disabilities, Kodrich Dep.
at 50, reprinted in J.A. at 435, and she expressed no knowledge of the opportunities
offered by Calvin Christian School.




                                            -9-
       Viewed in its entirety, the evidence in this case strongly suggests that ISD No.
273's policy is a mere pretext for religious discrimination. Cf. Lukumi, 508 U.S. at 534
("The Free Exercise Clause protects 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,
notwithstanding 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 in which issues of intent, good faith and other
subjective feelings play dominant roles," Pfizer, Inc. v. Rectifier Corp. (In re
Coordinated Pretrial Proceedings in Antibiotic Antitrust Actions), 538 F.2d 180, 185
(8th Cir. 1976), we may not grant summary judgment to the Westendorps on this claim,
despite the strength of the evidence suggesting that Aaron has been the victim of
invidious discrimination. Accordingly, we remand this matter to the district court for
a factual 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.




       1
         Although the record reveals an obvious dispute regarding ISD No. 273's
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 before 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 conclusive," Sims v. Wyrick, 743 F.2d 607, 610 (8th Cir. 1984), a
stipulation that is devoid of facts provides little direction for this Court. Because there
exists in this case a disputed question of material fact that is not answered by the
parties' stipulation, summary judgment was improperly granted.

                                            -10-
       The Westendorps also appeal the district court's grant of summary judgment on
their claim under IDEA. IDEA is designed to encourage states to develop special
education programs for disabled students. In return for federal funding, IDEA requires
participating 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 the
services of a paraprofessional paid by ISD No. 273, they disagree on whether IDEA
entitles him to those services at Calvin Christian School.

       On June 4, 1997, three months after the district court granted summary judgment
against the Westendorps on their IDEA claim, comprehensive amendments to IDEA
became law. 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 children 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 local
educational agency to pay for the cost of education, including special education and
related services, of a child with a disability at a private school or facility if that agency
made a free appropriate 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 St. 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 for a particular child," and that disabled children
and their "parents now have no individual right under IDEA to [specific] special
education and related services . . ., so they have no right to a federal court decree
mandating that those services be provided at a particular location." Id. (slip op. at 4-5).
Accordingly, Aaron has no right under the 1997 Amendments to receive ISD No. 273-
funded services at Calvin Christian School.

        We must address, however, whether ISD No. 273 engaged in violations of IDEA
as it existed prior to its amendment in 1997. Because "the views of a subsequent

                                            -11-
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) (quotations omitted), we reject ISD
No. 273's argument that our interpretation of the pre-amendment version of IDEA is
controlled by the 1997 amendments. See Fowler v. Unified Sch. Dist. No. 259, 128
F.3d 1431, 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 all
children with disabilities." 20 U.S.C. § 1413(a)(2) (1994). "The word 'public' is a term
of art which refers to 'public expense,' whether at public or private schools." Dreher v.
Amphitheater Unified Sch. Dist., 22 F.3d 228, 233 n.10 (9th Cir. 1994). States
receiving grants under IDEA had to "provide that all children residing within the
jurisdiction of the local educational agency or the intermediate educational unit who are
disabled, regardless of the severity of their disability, and are in need of special
education 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 educational
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 provide
special education services to private school students. Disabled students enrolled by the
state in 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 private
elementary and secondary schools." 20 U.S.C. § 1413(a)(4)(A) (1994).

       In implementing IDEA, the Department of Education promulgated regulations
requiring school districts to "provide special education and related services designed to
meet the needs of private school children with disabilities residing in" their

                                          -12-
jurisdictions. 34 C.F.R. § 300.452 (1996). In meeting the needs of disabled students
enrolled by their parents in private schools, school districts were required to provide
services that were "comparable in quality, scope, and opportunity for participation to
the program benefits that the subgrantee provides for students enrolled in public
schools." 34 C.F.R. § 76.654(a) (1996). Consistent with IDEA, the availability of these
services was nevertheless 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)
(school districts "shall provide that opportunity to participate in a manner that is
consistent with the number of eligible private school students and their needs"). While
some services could be provided to private school students at public schools, school
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 IDEA
entitled a disabled student enrolled by his parents in a private school to publicly-funded
services at the private school. In Fowler v. Unified School District No. 259, 107 F.3d
797 (10th Cir.), vacated and remanded for reconsideration in light of 1997 Amendments
to IDEA, 117 S. Ct. 2503, and on remand, 128 F.3d 1431 (10th Cir. 1997) (reaffirming
prior decision), the Tenth Circuit held "that the IDEA and its regulations create no
automatic right to any and all special education services at a private school site for all
students voluntarily attending such a school." Id. at 805. However, the court went on
to "reject the proposition that the District has unfettered discretion to simply deny
[services to a disabled student at a private school], and claim to have fulfilled its
obligations under the IDEA by offering those services to [the student] at a public
school." Id. at 806. The court explained:

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


                                          -13-
      We conclude that, in such a situation, the District must pay for that service
      an amount up to, but not more than, the average cost to the District to
      provide that same service to [similarly-disabled] students in the public
      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 under the pre-amendment
version of IDEA, and reinstated its earlier analysis. See Fowler, 128 F.3d at 1436.

       In Russman 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. Mills, 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
      authority. Where the cost of special services does not vary with where
      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 that
      necessary services be provided to disabled private school students
      according to their needs rather than the name of their school, and state that
      such services must be "comparable in quality, scope, and opportunity for
      participation" to those offered to public school students. 34 C.F.R. §
      76.654. Use of the word "comparable" strongly suggests that the
      provision of 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 school
      students.




                                          -14-
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 private 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 to
IDEA, 117 S. Ct. 2502, and on remand, 125 F.3d 1017 (7th Cir. 1997) (reaffirming
prior decision), cert. denied, 118 S. Ct. 1360 (1998); Cefalu ex rel. Cefalu v. East Baton
Rouge Parish Sch. Bd., 117 F.3d 231, 233 (5th Cir. 1997) (reconsidering prior opinion
in light of 1997 amendments to IDEA, and holding 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 students
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
(quotations omitted). IDEA was clear that, "consistent with the number and location
of" disabled students enrolled by their parents in private schools, students like Aaron
had a right 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
child enrolled in a private school by the state, see Fowler, 107 F.3d at 805, he was
nevertheless entitled to special education services that were "comparable in quality,
scope, and opportunity for participation" to those services provided to public school
students. 34 C.F.R. § 76.654(a).2


      2
       ISD No. 273 has relied on interpretive letters issued by the Department of
Education which contend that "[t]hese regulations do not confer on every parentally-
placed child with a disability an individual entitlement to services." Letter to Burch,

                                          -15-
       Under the plain language of IDEA and its implementing regulations, Aaron was
entitled to receive services as a private school student. Because of the nature of his
disability, Aaron required one-on-one assistance from a paraprofessional throughout his
school day. Accordingly, off-site assistance could 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 serve Aaron. Rather, it simply denied him services at Calvin
Christian School because it is a private religious school. Here, there is no evidence that
ISD No. 273 denied services at Calvin Christian School because "economies of scale,
or geographical considerations, [made] it economically infeasible to provide certain
services at private school locations." Id. at 807 n.11. Rather, ISD No. 273 would have
denied services to any disabled student at a private religious school, regardless of the
circumstances of the individual case.

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


23 Individuals with Disabilities Educ. L. Rep. 560, 562 (1995); see also Letter to
McConnell, 22 Individuals with Disabilities Educ. L. Rep. 369, 369 (1994)
("parentally-placed children with disabilities do not have an individual entitlement to
services"). Because the regulations implementing IDEA were clear that parentally-
enrolled private school students with disabilities were entitled to "comparable"
services, 34 C.F.R. § 76.654(a), we must reject the Department of Education's
suggestion that no such entitlement exists. See Shalala v. St. Paul-Ramsey Med. Ctr.,
50 F.3d 522, 529 (8th Cir. 1995) (although we accept agency interpretations of
ambiguous regulations unless they are clearly erroneous, "we are not at liberty to allow
the agency to imply language that does not exist in the regulation" (quotations
omitted)); see also Newton v. Chater, 92 F.3d 688, 693 (8th Cir. 1996) ("While courts
must give deference to an agency's interpretation of its own regulations, courts are not
bound by them and they are not conclusive.").

                                          -16-
Russman, 85 F.3d at 1056 ("Where the cost of special services does not vary with
where 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."). ISD No. 273 did not "provide special education and related services
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 its
implementing regulations, and it violated Aaron's rights under IDEA.

        Because we hold that ISD No. 273 violated Aaron's rights under IDEA by
denying him a paraprofessional at Calvin Christian School, we must remand to the
district court for a determination of the proper scope of relief. The parties have
stipulated to nominal damages of one dollar. See Stipulation (Aug. 29, 1997) at 2,
reprinted in J.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 already
committed." Minneapolis & St. Louis Ry. Co. v. Pacific Gamble Robinson Co., 181
F.2d 812, 814 (8th Cir. 1950). However, the Westendorps have cited to authority which
suggests that, under IDEA, equitable relief for past injuries may nevertheless be proper.
See Florence County Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 15-16 (1993)
(citing 20 U.S.C. § 1415(e)(2)). We 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 not
motivated by religious animus, its refusal of a paraprofessional to Aaron at Calvin
Christian School violates the constitution by conditioning the receipt of generally
available government services on the Westendorps' foregoing of a constitutional right.
It is undisputed that Aaron has the right to receive special education services if he

                                           -17-
attends a public school. It is also clear that the Westendorps have the constitutional
right to choose the education that Aaron shall receive. See Pierce v. Society of Sisters,
268 U.S. 510, 534-35 (1925) (discussing "the liberty of parents and guardians to direct
the upbringing and education of children under their control," which "excludes any
general power of the State to standardize its children by forcing them to accept
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
their choice, however, ISD No. 273 will not provide special education services to
Aaron. See Kodrich 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
the 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 by
religious belief, thereby putting substantial pressure on an adherent to modify his
behavior and to violate his beliefs, a burden upon religion exists. While the compulsion
may be indirect, the infringement upon free exercise is nonetheless substantial.").

       While "the government may 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
students have a constitutional entitlement to the same benefits that are given to public
school students by the government. See, e.g., Norwood v. Harrison, 413 U.S. 455, 462
(1973) ("In Pierce, the Court affirmed the right of private schools to exist and to
operate; it said nothing of any supposed right of private or parochial schools to share
with public schools in state largesse, on an equal basis or otherwise. It has never been
held that if private schools are not given some share of public funds allocated for
education that such schools are isolated into a classification violative of the Equal

                                           -18-
Protection Clause. It is one thing to say that a State may not prohibit the maintenance
of private schools and quite 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 this issue. See
Clinton v. Jones, 117 S. Ct. 1636, 1642 n.11 (1997) ("If there is one doctrine more
deeply rooted than any other in the process of constitutional adjudication, it is that we
ought not to pass on questions of constitutionality unless such adjudication is
unavoidable." (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
addition, we remand this matter to the district court for a determination of the proper
relief to the plaintiffs for the defendant's past violation of IDEA.

ROSS, Circuit Judge, dissenting.

     I disagree 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' religious 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 religious 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 education services at a nonreligious private preschool and to a home-

                                           -19-
schooled student does not raise an inference that it has discriminated on the basis of
religion 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 to
pretext, the majority has improperly engaged in fact finding and ignored the parties'
stipulation that "the material facts of this case are not in dispute." Indeed, in the course
of its opinion, the majority transforms a finding of a disputed fact into a finding of
undisputed fact. On page 16, the majority states that ISD No. 273 "simply denied
[Aaron] services at Calvin Christian School because it is a private religious school" and
"would have denied services to any disabled student at a private religious school."
While it is undisputed that the school district denies on-site services to students at
private schools, it is not undisputed that services are denied because of the religious
nature of the school.

        In addition, 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 services, stated that the policy
was long-standing and was designed to maintain control over the quality of the district's
programs and personnel, foster integrated teamwork and communication between
special education and regular staff, and maximize benefits to students based on limited
financial resources. Kodrich further stated that if the school district had to provide on-
site services at private schools these goals would be frustrated. For example, regarding
quality concerns, Kodrich explained that the special services staff work as part of an
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, and
coordination of private staff members.

       Regarding cost considerations, Kodrich explained that the school district
"constantly endeavors to provide the maximum educational benefit to a large population
of disabled students based on a very limited set of resources." J.A. at 152. She further
explained that "[b]y pooling direct special education resources in public school sites

                                           -20-
the School District can realize economic efficiencies by sharing and integrating
resources." Id. In particular, she noted that the services of a paraprofessional "can and
are frequently shared by more than one student" and that "[i]f the school district was
required to send individual paraprofessionals out to remote sites, the savings realized
by these efficiencies would be lost." Id. In addition, Wayne Erickson, manager of the
state division of special education, stated that, based on his financial analysis, provision
of on-site services to disabled private school students would result in additional
expenditures 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
school districts provided on-site services at private schools since special education
students enrolled in public schools might then choose private schools. Id. at 145. Thus,
the majority incorrectly states that "there is no evidence that ISD No. 273 denied
services at Calvin Christian School because economies of scale, or geographical
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 the Supreme Court's admonition
that "courts are not to 'substitute their own notion of sound educational policy for those
of the school authorities which they review.' " Fort Zumwalt Sch. Dist. v. Clynes, 119
F.3d 607, 610 (8th Cir. 1997) (quoting Board of Educ. v. Rowley, 458 U.S.176, 206
(1982), cert. denied, 118 S. Ct. 1840 (1998)). This is so because "[c]ourts 'lack the
specialized knowledge and experience necessary to resolve persistent and difficult
questions 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 "the
sufficiency of that education 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 violated
the IDEA before it was amended in 1997. The pre-amended statute provided that

                                           -21-
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 or
guardian." 20 U.S.C. § 1413(a)(4)(B)(i) (1994). In contrast, disabled students who
were unilaterally placed in private schools by their parents were only entitled to
participate in special education programs and services "to the extent consistent with the
number and location of" disabled students within the state. Id. at § 1413(a)(4)(A)
(1994).

        In 1997 Congress amended the statute to make clear that the IDEA "does not
require a local educational agency to pay for the cost of education, including special
education and related services, of a child with a disability at a private school or facility
if that agency made a free appropriate public education available to the child and the
parents elected to place the child in such private school or facility." 20 U.S.C.A.
§1412(a)(10)(C)(i) (West Supp. 1998). As the majority concedes, "Aaron has no right
under the 1997 Amendments to receive ISD No. 273-funded services at Calvin Christian
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 children 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 673 (7th Cir. 1996),
vacated and remanded for reconsideration in light of 1997 Amendments to IDEA,117
S. Ct. 2502, 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.


                                           -22-
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 pre-
amended IDEA required that a school district provide on-site services to a disabled
student who was unilaterally placed at a private school. "The goal of IDEA is to
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 maximize a student's
potential or provide the best possible education at public expense." Id. "The statute
only requires that a public school provide sufficient specialized services so that the
student benefits from his education." Id. Moreover, this court has held that the pre-
amended IDEA and "regulations promulgated thereunder g[a]ve the school district
discretion in selecting the location where it w[ould] educate a handicapped child."
Schuldt v. Mankato 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
paraprofessional at a public school, and his parents have not questioned the quality of
the services that Aaron receives.

      The majority is persuaded by the Tenth Circuit's analysis in Fowler v. Unified
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 1431 (10th Cir.
1997). In Fowler, the Tenth Circuit "recognized that the IDEA and its regulations
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 on-
site services of a full-time interpreter at a private 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
District 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

                                             -23-
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 the necessary service at a public institution,
giving the disabled student a genuine opportunity to participate, and nothing in the
record indicates that it has otherwise abused its discretion, the public school has
discharged its obligation" under the pre-amended IDEA. Anderson , 81 F.3d at 680; see
also Goodall v. Stafford County Sch. Bd., 930 F.2d 363, 369 (4th Cir.) (school district
fulfilled its statutory obligation by offering disabled student services of speech
interpreter at public school), cert. denied, 502 U.S. 864 (1991).

       In this case, the majority relies on 34 C.F.R. § 76.654(a) (1996), which required
that the benefits a school district provided for private school students be "comparable
in quality, scope, and opportunity for participation to" the benefits provided for public
school students. However, as explained in Anderson, the regulation was "not by its
terms a mandate that private school students shall receive full benefits." 81 F.3d at 679.
Rather, "read in light of the statutory scheme . . . and the other regulations, . . . the only
reasonable interpretation of Section 76.654(a) is that the comparability requirement
[wa]s limited to the program benefits that [a district] provide[d]." Anderson, 81 F.3d at
679 (internal quotation omitted). In other words, because public school districts had
"discretion over what benefits to provide[,]" the regulation only required that "when
benefits [we]re provided . . . that they [would] be comparable to benefits for public
school students." Id.

       Thus, the majority's "determination that a full-time instructional assistant was the
only 'comparable' alternative . . . fail[s] to take into account the discretion afforded
public schools in deciding which services to provide." Id. Moreover, and, "not
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

                                            -24-
"regulations d[id] not confer on every parentally-placed child with a disability an
individual entitlement to services." Maj. Op. at 15 n.2 (internal quotation omitted).
Because the DOE's interpretation was not plainly erroneous or inconsistent with the
regulations, "it must be given controlling weight." Board of Regents v. Shalala, 53 F.3d
940, 943 (8th Cir. 1995).

       In sum, I believe that in providing the services of a paraprofessional to Aaron "at
a public site and declining to provide an instructional assistant to a single student in the
private school, it is evident that [ISD No. 273] fairly exercised 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
that [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.




                                           -25-
