Although a student with ADHD qualifies for help under § 504 of the Rehabilitation Act of 1973, the Baltimore city school system does not have to extend that assistance to the student because he is enrolled in a private school, not a public school; the 4th Circuit affirms judgment for the school system.
Because we do not read Section 504 to apply an affirmative obligation on school districts to provide services to private school students and because plaintiffs, the student and his parents, retain full educational discretion, we affirm the district court ruling.
Appellants argue that the relevant regulation, 34 C.F.R. § 104.33(a), provides the student with a free appropriate public education (FAPE) at a public school even while he continues to enroll in and attend a private school.
The plain language of the statute and the regulations does not make clear whether public schools are required to provide services to students enrolled in private schools. While Appendix A to Part 104 explains that a public school need not pay for services when a parent accesses those services from a provider other than the public school, it does not answer whether a private school student can access those services from the public school itself. Where a regulation is ambiguous we must grant deference to an agency’s interpretation of its own regulation.
The purpose of Section 504 dos not extend as far as appellants assert it should. Public schools are only required to make a FAPE available on equal terms to all eligible children within their district. Because the school system here provided the student with access to a FAPE on equal terms with all other eligible students in the district, it has satisfied Section 504’s imperative.
Overall, the administrative guidance, statutory purpose, case law and policy considerations compel our holding that the student is not entitled to Section 504 services if he remains enrolled at a private institution.
Further, we reject appellants’ argument that the school system’s requirement that private school students cease enrollment in private religious institutions and enroll in public schools in order to access Section 504 services is a violation of their constitutional rights under Wisconsin v. Yoder,i406 U.S. 205 (1972) and Pierce v. Society of Sisters, 268 U.S. 510 (1925). The critical distinction is that those two cases addressed laws requiring that students attend public schools or face criminal repercussions, while appellants retain full discretion over which school the student attends. The school system’s policy does not substantially infringe on appellants’ right to attend a private religious school.
Judgment for the school system affirmed.
D.L. v. Baltimore City Board of School Comm’rs (Gregory) No. 11-2041, Jan. 16, 2013; USDC at Baltimore, Md. (Garbis) David G.C. Arnold for appellants; Leslie R. Stellman for appellee. VLW 013-2-012, 13 pp.