Tammy Clark v. Dr. Sharon Banks

* The Honorable Denise Page Hood, United States District Judge for the Eastern District of
Michigan.
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0642n.06
Filed: August 24, 2006
No. 05-2287
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
TAMMY CLARK,
Plaintiff-Appellant,
v.
DR. SHARON BANKS, in her official capacity as
Superintendent of Lansing School District, WILLIAM
DEFRANCE, in his official capacity as Superintendent,
Eaton Rapids Public Schools, JENNIFER
GRANHOLM, in her official capacity as Governor of
the State of Michigan, and MICHAEL P. FLANAGAN,
in his official capacity as Superintendent of Public
Instruction, Michigan Department of Education
Defendants-Appellees.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE WESTERN
DISTRICT OF MICHIGAN
Before: BOGGS, Chief Judge; COLE, Circuit Judge; and HOOD, District Judge. *
PER CURIAM. Tammy Clark, a resident of the Ingham Intermediate School
District (ISD) in Michigan, challenges the constitutionality and legality of Michigan’s “school of
choice” system, as it applies to students requiring special education. She seeks to enroll her
developmentally disabled son, B.C., in the Eaton Rapid Public Schools (ERPS), which is part of a

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different ISD, despite the failure of the two ISDs to reach an agreement on the terms of his
enrollment, as required by the governing state statute. She now appeals from summary judgment
entered in favor of the defendants, who are school and government officials. The district court
found a rational basis for Michigan’s statutory scheme. We affirm the district court’s grant of
summary judgment.
I
Tammy Clark seeks to enroll her son, B.C., in the Eaton Rapid Public Schools
(ERPS) under Michigan’s School of Choice statute. As of August 2005, B.C. was six years old. He
lives with his mother, Tammy Clark, in Lansing, Michigan. It is conceded that he has
developmental disabilities that entitle him to special education services. Clark has worked in the
Eaton Rapids area for roughly eight years. B.C. attends day care there. Clark sought in November
2003 to enroll her child in the Eaton Rapids school district, for the 2004-2005 school year, even
though she does not live there.
At the time of Clark’s November 2003 enrollment request, ERPS was accepting applications
for enrollment by non-resident applicants residing in a district located in a contiguous intermediate
district under the State School Aid Act of 1979, Mich. Comp. Laws Ann. §388.1705c. Also at that
time, the number of qualified non-resident applicants eligible for acceptance under the statute
appears not to have exceeded the positions available for non-resident pupils at ERPS. For the 2004-
2005 school year, ERPS accepted at least 67 school of choice students from other school districts.
The State of Michigan divides itself into 57 Intermediate School Districts. Each ISD has
constituent member local districts, and every local district in the State is a constituent of one of these
57 ISDs. Defendant-Appellee Eaton Rapids Public Schools (ERPS) is a constituent local district

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of the Eaton ISD, and Defendant-Appellee Lansing School District (LSD) is a constituent local
district of the Ingham ISD. Each ISD oversees, inter alia, the provision of special education and
related services to the students in the ISD’s constituent local districts. Statutorily, ISDs must
“[d]evelop, establish, and continually evaluate and modify in cooperation with its constituent
districts, a plan for special education which shall provide for the delivery of special-education
programs and services” to “each handicapped person . . . who is a resident of 1 of its constituent
districts . . . .” M.C.L. § 380.1711(a) and (f). The plans must be approved by the State. M.C.L. §
380.1701(b). In implementing these plans, as the State points out, ISDs often create a “center
program” for special-education students who are members of its constituent districts. Thus,
statutorily, special education is managed on an ISD-wide basis.
Roughly 80% of a school district’s revenue comes from the State through a per pupil
foundation allowance. The State School Aid Act controls which students a district may claim in
membership and how those students are counted. The foundation allowance is paid for pupils who
are enrolled in regular daily attendance in the district on the pupil membership count days.
Additionally, the State pays a district 28.6% of its total approved costs incurred in providing special
education and related services. The federal government also provides funds for special education.
ISDs also receive operational funds from the State. A local school district is not permitted to ask
its voters to increase funding for special education through additional property taxes, but ISDs can
and do ask voters to approve millage requests for special-education operating expenses across the
ISD.
Typically, both general and special education students attend school in their districts of
residence. Under M.C.L. § 380.1147, they have a statutory right to do so. However, under other

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state provisions, they may also attend school in other districts. At issue in this case is the portion
of the State School Aid Act, M.C.L. § 388.l705c, that allows transfers.
General education students have a more streamlined process than do special education
students to apply for enrollment in schools outside their own ISDs. Due to the higher costs of
special education, the approval of applications by special education students is conditional on an
agreement between the two school districts (each from different ISDs) as to how the special
education services and funding will be provided. ERPS and LSD were not able to reach an
agreement on the financial arrangements necessary to permit approval of B.C.’s application.
II
Clark filed a complaint in the United States District Court for the Western District of
Michigan on December 27, 2004, against Sharon Banks, William DeFrance, Jennifer Granholm, and
Thomas D. Watkins, Jr., in their official capacities as superintendent of LSD, superintendent of
ERPS, Governor of the State of Michigan, and Superintendent of Public Instruction of the Michigan
Department of Education, respectively. The complaint sought damages, declaratory, and injunctive
relief.
The essential gravamen of Clark’s claim is that B.C. is suffering discrimination due to his
special education needs. Were he a “typical,” non-special education student, he would have been
admitted into the school district to which he had applied. The defendants have consequently, in his
view, denied him “an equal opportunity to take advantage of the benefits of the school of choice
provision of the State School Aid Act of 1979, in violation of the Equal Protection Clause of the
Constitution.” He claims that the defendants have “intentionally discriminated against [him] on the
basis of his disability and recklessly disregarded his rights under Section 504 of the Rehabilitation

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Act of 1973, 29 U.S.C. § 794, Section II of the Americans with Disabilities Act, 42 U.S.C. § 12132
et seq., and the Persons with Disabilities Civil Rights Act, Mich. Comp. Laws Ann. § 37.1102 et
seq.”
The district court granted summary judgment in favor of the defendants on August 17, 2005.
The district court issued a lengthy opinion explaining its order. The court framed the central
question of the case as “whether the decision by the Michigan Legislature to require school districts
to enter into a written agreement regarding the costs of special education prior to permitting a
student to attend a public school of their choice violates” the provisions cited by Clark.
As the district court noted, “Michigan voters fundamentally altered the manner in which
school districts are funded” roughly ten years earlier, through amendment to the state constitution.
See Mich. Const. of 1963 art. 9, § 11. Prior to that amendment, “the majority of a school district’s
revenue came from local property taxes.” The amendment,
vastly changed this system. Currently, each school district receives
funding directly from the state based on a per membership per pupil
foundation allowance (‘foundation allowance’) as defined in Mich.
Comp. Laws § 388.1620. The amount of the foundation allowance
for each school district is determined through a weighted formula
based upon the number of students who are enrolled and in regular
attendance in the school district on two pupil membership count days.
Mich. Comp. Laws § 388.1606(4), (8).
In addition to the foundation allowance, the state reimburses school
districts and ISDs for 28.6138% of their total approved costs of
special education and 70.4165% of total approved costs of special
education transportation. Mich. Comp. Laws § 388.1651a(2). ISDs
also annually receive additional aid from the state to ‘be used to
comply with requirements of this act and the revised school code . .
. and for which funding is not provided elsewhere in this act, and to
provide technical assistance to districts . . . .’ Mich. Comp. Laws §
388.1681(1). ISDs and school districts also receive federal funding
for special education pursuant to the Individuals with Disabilities
Education Act (IDEA).

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In addition to the funding from the state, ISDs are also statutorily
authorized to, with voter approval, levy ad valorem property taxes for
operational costs, and costs of special and vocational education
programs. See Mich. Comp. Laws. §§ 380.625a (ISD ‘may levy ad
valorem property taxes for operating purposes at a rate not to exceed
1.5 times the number of mills allocated to the [ISD] for those
purposes in 1993.”); 380.1724a (special education millage); 380.681
(vocational education millage).
The district court described the Michigan school of choice system as a “voluntary program
in which each school district determines whether or not it will accept nonresident applicants for
enrollment.” The court noted that M.C.L. § 388.1705c governs the “procedure by which a school
district may enroll students from outside the district when it . . . determines that it will accept
applications for enrollment from nonresident students who reside in a district located in a contiguous
ISD.” The court emphasized that, under governing statutes, a school district retained the choice as
to whether it would accept applications from nonresidents. However,
[a]fter choosing to accept nonresident applicants, there is very little
discretion left to a school district in selecting or denying enrollment.
Both statutes expressly prohibit a school district from granting or
refusing enrollment ‘based on intellectual, academic, artistic, or other
ability, talent, or accomplishment, or lack thereof, or based on a
mental or physical disability.’ Mich. Comp. Laws §§ 388.1705(6);
388.1705c(6). Further, a school district cannot grant or deny
enrollment ‘based upon religion, race, color, national origin, sex,
height, weight, marital status, or athletic ability, or, generally, in
violation of state or federal law prohibiting discrimination.’ Id. §§
388 1705(8); 338.1705c(8).
Both statutes also provide that if the number of available positions in
the school, grade, or program ‘the school district shall accept for
enrollment al of the qualified nonresident applicants eligible for
acceptance.’ Id. §§ 388 1705(13); 338.1705c(13). If, however, the
number of qualified nonresident applicants exceeds the available
positions in the grade, school, or program, ‘the district shall use a
random draw system’ to fill the available positions. Id.
(emphasis supplied)

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The court noted that a particular set of additional rules governs cases such as the one now
appealed, in which a student from a contiguous ISD applies to enroll in a school district. The court
quoted and cited Mich. Comp. Laws § 388.1705c(18), which provides:
In order for a district or intermediate district to enroll pursuant to this
section a nonresident pupil who resides in a district located in a
contiguous intermediate district and who is eligible for special
education programs and services according to statute or rule, or who
is a child with disabilities, as defined under the Individuals with
Disabilities Education Act, title VI of Public Law 91-230, the
enrolling district shall have a written agreement with the resident
district of the pupil for the purpose of providing the pupil with a free
appropriate public education. The written agreement shall include,
but is not limited to, an agreement on the responsibility for the
payment of the added costs of special education programs and
services for the pupil.
It is conceded that such a written agreement is not needed for a general education student.
It is further conceded that such an agreement is not needed when a nonresident student seeks to
enroll in a school district within the same ISD.
When B.C. applied in November 2003 for admission to the ERPS for the 2004-2005 school
year, James Ewing, Special Services Director for ERPS, wrote a letter to Tammy Clark informing
her that B.C. would not be recommended for enrollment due to the written agreement requirement
of § 388.1705c(18). He noted also that he had spoken with Jonathan Schelke, Director of Special
Education for Lansing Public Schools, who informed him that LSD would provide B.C. with special
education services.
Clark renewed her application for enrollment in June 2004. ERPS agreed to accept B.C. for
enrollment contingent on an agreement, pursuant to § 388.1705c(18), between ERPS and LSD with
respect to the additional cost for B.C.’s special education services program.

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On July 1, 2004, ERPS submitted a proposed agreement to LSD. The agreement would have
required LSD to release its $6,700 foundation allowance for B.C. to ERPS. It would also have
required LSD to reimburse ERPS for “any agreed upon costs unique to the student.” The agreement
also estimated the cost of educating B.C. in the ERPS to be $25,007 and provided that LSD would
pay $18,307 to ERPS to make up the difference between the foundation allowance and the estimated
cost.
Lansing School District rejected the agreement in a letter dated August 16, 2004. However,
LSD also indicated a willingness to enter an agreement under which its only financial obligation was
the release of its $6,700 foundation allowance. The letter explicitly communicated an unwillingness
to take on further costs.
On September 16, 2004, ERPS offered a revised proposal. This version required release of
the $6,700 foundation allowance plus reimbursement for specific further costs. This version
calculated the total costs to be reimbursed by LSD to be $10,300, plus certain transportation costs.
Again, LSD rejected the proposal.
Because ERPS and LSD have not been able to reach an agreement, B.C. has not been able
to enroll in ERPS.
III
Appellant’s equal protection claim is subject to rational basis review. B.C. is not part of a
suspect or quasi-suspect class. See City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432,
442 (1985). Clark does not allege the violation of a fundamental right. See San Antonio Indep. Sch.
Dist. v. Rodriguez, 411 U.S. 1, 37-38 (1973).

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Rational basis review affords a statute a “strong presumption of validity,” and the statute
must be upheld as long as ‘there is a rational relationship between the disparity of treatment and
some legitimate government purpose.’” Hadix v. Johnson, 230 F.3d 840, 843 (6th Cir. 2000)
(quoting Heller v. Doe, 509 U.S. 312, 320 (1993)). The court is obligated to uphold the statute “if
there is any reasonably conceivable state of facts that could provide a rational basis for the
classification.” Walker v. Bain, 257 F.3d 660, 668 (6th Cir. 2001).
General education and special education students are not similarly situated for the purposes
of equal protection analysis. See City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432,
442 (1985) (the Equal Protection Clause “is essentially a direction that all persons similarly situated
should be treated alike”). As the district court noted, under federal and state statute, a school district
is required to furnish disabled students with special education services, and these services are
“frequently” more costly than the services provided to general education students. The court
correctly concluded that, “because school districts are obligated by federal and state mandate to
provide special programs and services to disabled students, which often increase the cost of
educating the student, [such disabled students] are not similarly situated to general education
students.”
There is a rational relationship between the Michigan provision and a legitimate
governmental interest of ensuring adequate and equitable funding for the widely varying IEPs–with
consequently varying costs–of special education students. Michigan reimburses school districts and
ISDs for approximately 29% of total approved costs of special education and approximately 70%
of special education transportation costs. Beyond this, the State allows ISDs to use a variety of
funding techniques for to provide educational services. They are entitled to levy ad valorem

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property taxes for special education purposes. If an ISD chooses to levy a special education millage,
it may do so at a rate “not to exceed the number of mills of those taxes authorized in the intermediate
school district in 1993.” The ISD may then distribute the revenue from that millage at its discretion.
Mich. Comp. Laws §§ 388.1651a(2) and 388.1724a(1)) and Mich. Admin. Code R. 111(5)).
As the district court explained, the Michigan statute properly accounts for the
fact that federal and state law require that each special education
student have an IEP which addresses their specific needs and
provides them with a free appropriate public education. . . . By its
terms, the required programs and services in an IEP will vary based
upon the individual needs of the disabled student. Therefore, the
legislature determined that the school districts must agree, on a case-
by-case basis, on the allocation of costs to educate a special education
student, pursuant to his or her IEP, who wishes to attend school in a
contiguous ISD. The Court cannot say that such a decision is
unreasonable.
One special education student’s IEP may cost $7,000, and another’s $27,000. Since this
variance has not been shown to exist in the cases of general education students, there exists a
rational relationship between the legitimate governmental purpose of ensuring the proper funding
of all special education students’ IEPs and the requirement that school districts enter into a formal
written agreement–which incentivizes or catalyzes thoughtful examination of the availability of
funds for a given applicant’s IEP–before accepting special education students for enrollment.
Moreover, under the IDEA, the resident district has an obligation to furnish a FAPE. The putatively
receiving school district has none. Therefore, it is rational to allow the receiving district to negotiate
the terms on which a student with special needs may enroll.
Clark argues that since foundation allowance funding for a given school district follows the
enrollment numbers for that district, there is no rational basis for the state’s written agreement
requirement. The district court did acknowledge this claim as “partially correct.” However, as the

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district court pointed out, Clark’s view does not take account of the weighted formula used by the
State to set the amount of the foundation allowance. This formula is such that a student new to the
district carries three quarters of the total state funding for that student to his or her new district for
the initial year of his or her enrollment, while the old district still receives a quarter of the funding
allocation for that student for the year. Mich. Comp. Laws § 388.1606(4)).
The district court further cited the May 6, 2005, affidavit of John Andrejack, supervisor in
the Michigan Department of Education, Office of Special Education & Early Intervention Services,
Finance Management Unit for the proposition that “federal funding received by the state under Part
B of the IDEA is given to ISDs in three components, none of which would immediately transfer
from a student’s district of residence to their school of choice.” This citation is quite apt.
Andrejack’s affidavit is clear on this point:
The flow-through payment [from the federal government, under Part
B of IDEA] to an ISD has three potential components. The first
payment is a base award, which is a continuation of the federal
money received in fiscal year 1999, the “base year” referenced in [34
C.F.R. § 300.712]. How much federal special education money a
particular ISD receives is based on how many special-education
students were attending school in the ISD in 1998. Under this base
award, an ISD receives approximately $519 per special-education
student counted in the district in 1998. A special education student
moving from one ISD to another does not affect this portion of the
federal special education flow-through funds that an ISD receives.
. . . . Once the total base award is subtracted from the total IDEA
Part B Grant Award (and certain allowances are also subtracted) the
remaining federal funds are apportioned on the basis of two
additional calculations. First, 85% of the remaining amount is
apportioned to ISDs based on their total number of students enrolled
in the district, kindergarten through 12th grade (K-12), in both public
and non-public schools. In fiscal year 2005 this award was
approximately $96 per student. Student counts used for determining
this portion are based on the student counts for that ISD from the
previous school year as this is the best data available at the time that

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the flow-through calculations are made. Therefore, a student who
transfers to a new ISD is counted in the previous ISD’s membership
count in the first year of attendance in a new ISD.
. . . . Lastly, the remaining 15% of flow-through funds is
apportioned on the basis of the number of students in each ISD who
qualify for free school lunch. Eligibility for free lunch is used as a
substitute for determining the number of students who live in poverty.
This amount in fiscal year 2005 was approximately $66 per student.
Again, the count for this portion of the federal flow-through payment
is based on the previous year’s count data because it is [sic] the best
data available at the time the flow-through calculations are made.
Therefore, a student who transfers to a new ISD is counted in the
previous ISD’s membership count in the first year of attendance in a
new ISD.
The district court quickly addressed appellant’s specific equal protection claim against
DeFrance, Superintendent of the receiving district ERPS, in light of its finding that § 388.1705c(18)
is valid. The court noted that it is undisputed that the two school districts did not reach a written
agreement with respect to B.C.’s application. DeFrance complied with the state statute. The district
court also considered the equal protection claim against Banks, Superintendent of B.C.’s home
district LSD. The court noted that, contrary to Clark’s allegation, the “undisputed evidence
demonstrates that Banks does not maintain” a “blanket policy against entering into agreements for
special education services under § 388.1705c(18) . . . .” The court noted that the discovery
evidence Clark relied on to make his claim against Banks was an affidavit of Jonathan Schelke,
Director of Special Education for the LSD. This is a one-page affidavit. The relevant parts are:
3. Whenever a student who is a resident in the Lansing School
District elects to enroll in another district within the Ingham County
Intermediate School District, Lansing foregoes the revenue from the
state’s foundation allowance for that student and the student is
counted in the membership of the enrolling district. This is true
regardless of status as a general education student or as a student with
disabilities eligible for special education and related services.

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4. Whenever a Lansing student enrolls in a school district that is a
constituent of a contiguous Intermediate School District exactly the
same procedure is followed as described in paragraph 3. The practice
of the Lansing School District is to release the foundation allowance
only. The Lansing School district operates a comprehensive program
of special education and related services for students with disabilities
and unless it is specifically determined that the programs and services
offered by the Lansing School District would be inadequate to
provide the eligible student with the necessary special education and
related services, Lansing does not enter into a cooperative agreement
to pay for the services elsewhere.
Clark points to paragraph “4” of Schelke’s affidavit as evidence of LSD’s “blanket policy”
against entering into agreements under § 388.1705c(18). However, the plain language of this
affidavit does not indicate such a blanket policy. The statement may indicate a policy that results
in very few agreements, because LSD may not wish to pay extra to enable the enrollment of a
student in another district, even though LSD appears quite willing to pay the foundation allowance
in order to facilitate such enrollment.
The evidence before the court offered no indication, in the court’s view, that DeFrance or
Banks violated any of the statutes Clark cites. DeFrance followed the commands of a valid law.
He actively pursued an agreement with LSD but was not successful in securing one. In an attempt
to reach an agreement, he even significantly reduced the amount demanded by ERPS in his second
letter to the officials of LSD.
We emphasize that § 388.1705c contains express prohibitions–§ 388.1705c(6) and
(8)–against the making of enrollment decisions on the basis of applicants’ disabilities. The district
court concluded, perhaps a little ambitiously, that because a written agreement is required for special
education students under § 388.1705c only when an applicant seeks to enroll across the borders of
the ISD in which he resides, “[c]learly, the requirement is in place because of the special education

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student’s residence, not because of any disability.” We do not agree that the requirement is purely
a function of residence. It is also a function of a student’s disability. But because there is a rational
basis for this statutory scheme, and since a rational basis review is what is required here, our
disagreement with the district court on this particular does not disturb the result in this case.
IV
We note also that the Michigan Legislature included a repealer provision in M.C.L. §
388.1705c. This provision requires that the entire “section is repealed if the final decision of a court
of competent jurisdiction holds that any portion of this section is unconstitutional, ineffective,
invalid, or in violation of federal law.” M.C.L. § 1705c(21). The inclusion of a such a repealer
suggests that the Michigan Legislature understood that its complex “school of choice” statutory
scheme comprehended many related considerations of educational, financing, and other policy, as
well as the nuanced interrelationships among them.
V
Clark also challenges Mich. Comp. Laws § 380.1701(b) and the actions of the school
districts under § 504 of the Rehabilitation Act of 1973, Title II of the Americans with Disability Act
(ADA), and Michigan’s Persons with Disabilities Civil Rights Act.
As the district court indicated, there exists a great deal of analytic overlap among the three
statutes. Specifically, each statute requires that the plaintiff show that he was discriminated against
on the basis of his disability. Thus, under the Rehabilitation Act of 1973, “[n]o otherwise qualified
individual with a disability in the United States . . . shall, solely by reason of her or his disability,
be excluded from the participation in, be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a).

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Similarly, the ADA’s operative language reads: “Subject to the provisions of this
subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded
from participation in or be denied the benefits of the services, programs, or activities of a public
entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Finally, the
relevant Michigan statute reads: “The opportunity to obtain employment, housing, and other real
estate and full and equal utilization of public accommodations, public services, and educational
facilities without discrimination because of a disability is guaranteed by this act and is a civil right.”
Mich. Comp. Laws § 37.1102(1). See also McPherson v. Mich. High Sch. Athletic Ass’n, 119 F.3d
453, 459-60 (6th Cir. 1997) (en banc) (noting that the Rehabilitation Act and the ADA require a
“roughly parallel[]” analysis).
To show discrimination under these statutes, therefore, a “plaintiff must establish that (1) she
has a disability; (2) she is otherwise qualified; and (3) she is being excluded from participation in,
being denied the benefits of, or being subjected to discrimination under the program solely because
of her disability.” See Jones v. City of Monroe, 341 F.3d 474, 477 (6th Cir. 2003) (describing the
elements of a prima facie case of discrimination under Title II of the ADA). As we have indicated,
B.C. was subject to the requirement of a written funding agreement in part due to his disability.
However, as we have also explained, B.C.’s disability was not the sole reason for his exclusion from
participation in Michigan’s choice of law system. B.C.’s exclusion was also a function of his
residence, as well as the funds attending his education. Therefore, B.C. has failed to show
discrimination “solely because of [his] disability.”
VI

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We therefore affirm the grant of summary judgment for the defendants.

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