NOT RECOMMENDED FOR FULL-TEXT PUBLICATION …

                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 07a0042n.06
                           Filed: January 17, 2007

                                          No. 05-2371

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

TEEN RANCH, INC., MATTHEW KOCH,                       )
AND MITCHELL KOSTER,                                  )
                                                      )
       Plaintiffs-Appellants,                         )
                                                      )
v.                                                    )   ON APPEAL FROM THE
                                                      )   UNITED STATES DISTRICT
MARIANNE UDOW, MUSETTE MICHAEL,                       )   COURT FOR THE WESTERN
AND DEBORA BUCHANAN,                                  )   DISTRICT OF MICHIGAN
                                                      )
       Defendants-Appellees.                          )


BEFORE:        KEITH, COLE, Circuit Judges; and STEEH, District Judge.*

       DAMON J. KEITH, Circuit Judge. Plaintiffs-Appellants, collectively referred to as "Teen

Ranch,"1 appeal the district court's grant of summary judgement in favor of Defendants-Appellees,

collectively referred to as the Family Independence Agency ("FIA"),2 on Teen Ranch's constitutional

and statutory religious discrimination claims. For the following reasons, we AFFIRM the district

court's grant of summary judgement.

                                                I.


       *
          The Honorable George Caram Steeh, United States District Court for the Eastern
District of Michigan, sitting by designation.
       1
        Plaintiffs-Appellants are Teen Ranch, Inc.; Matthew Koch, its Chief Executive Officer;
and Mitchell Koster, its Chief Operating Officer.
       2
         Defendants-Appellees are Marianne Udow, Director of the FIA; Musette Michael,
Interim Director of the FIA; and Debora Buchanan, Manager of the Purchased Care Division of
the FIA.
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       The FIA, a department of the Michigan state government, is responsible for providing care

and supervision to abused, neglected, and delinquent children who have been committed to or placed

in its care through state courts. The FIA is authorized to contract with private organizations to

provide placement services. The FIA contracts with 96 private child-care agencies to provide

residential services to youth for stays averaging four to twelve months. At least 35 of the providers

are faith-based organizations.

        Once a child is placed in the care of the FIA, a computerized grid is then used to determine

the best placement for the child. The computer system considers the child's history, family history,

any relevant psychological or psychiatric information, and other information identifying the child's

treatment needs. The computer then selects a service provider that best matches the child's needs.

       Teen Ranch, one of the 35 faith-based providers that contract with the FIA, is an organization

that has provided licensed and residential services for delinquent, neglected, abused, and emotionally

troubled youth between the ages of 11 and 17 since 1966. Teen Ranch has openly advertised its

religious orientation, and has admittedly incorporated religious programming into the services it

provides under the FIA contract. However, Teen Ranch maintains that participation in the religious

programming is voluntary since its policy does not mandate participation in any religious activity,

including church services. Specifically, its program involves voluntary prayers before meals,

voluntary devotions during the week, voluntary church attendance, and voluntary discussions

concerning the Christian faith between staff and the children.

       Between October and November of 2003, the FIA conducted a "Quality Assurance Review"

("QAR") of the Teen Ranch program. The QAR unveiled several areas of contract and policy
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noncompliance.      Therefore, on November 6, 2003, the FIA, through Debora Buchanan

("Buchanan"), sent a letter to Teen Ranch outlining "violations of particular significance" and

issuing a moratorium on further placements at Teen Ranch. The QAR also uncovered evidence,

which was later confirmed, in the form of youth reports, interviews with residents, and Teen Ranch's

brochure, that Teen Ranch coerced children into participating in religious activities. Thereafter, Teen

Ranch's incorporation of religious practices into its programming became the FIA's chief concern.

       On December 2, 2003, the FIA issued a "Quality Assurance Program Review Report" to Teen

Ranch and requested, within 30 days, a "Quality Improvement Plan" addressing all of their concerns.

Teen Ranch subsequently submitted a "Corrective Action Plan" ("CAP" or "plan"), and on

December 16, 2003, Buchanan sent a letter responding to Teen Ranch's plan. In addition to detailing

the areas of Teen Ranch's CAP that did not adequately ensure compliance, the letter also addressed

Teen Ranch's representation that youth are not required to participate in religious programming.

Buchanan stated, "It is not only improper to force youth to participate in religious practices, but it

is also improper to incorporate religious teachings into the on-going daily activities of youth and

their treatment plans." (J.A. at 251). On December 17, 2003, a meeting was held between the FIA

and Teen Ranch where Teen Ranch continued to maintain its position of incorporating its religious

beliefs into treatment programming. At the conclusion of that meeting, and in response to the FIA's

request for an amended CAP concerning the religious practices, Teen Ranch issued the following

statement, in pertinent part:

       The mission statement of Teen Ranch states, "providing hope to young people and
       families through life changing relationships and experiences from a Christian
       perspective." This mission, and our interpretation of this mission, will not change,
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        be sacrificed, nor will it be compromised.

        Teen Ranch, as policy, does not "force" youth to attend religious services, although
        it is encouraged and we believe to be part of an effective treatment program.
        Alternatives are provided for the children who wish not to attend religious services,
        such as a personal academic study time (if desired), letter writing home [sic],
        recreational time in the gymnasium, or watch [sic] television until the other youth
        return home.

        However, incorporating religious teachings into on-going daily activities of youth and
        their treatment plans touches at the core of why we were founded, why we are here
        today, and why we will continue to include such programming for children in our
        care.

(J.A. at 640) (emphasis in original).

        By early January 2004, Teen Ranch had submitted an amended CAP that addressed all of the

violations identified by the FIA, with the exception of the incorporation of religious practices in its

programming. Accordingly, on January 9, 2004, the FIA informed Teen Ranch, by letter, that while

it supports the important role that faith-based organizations play in providing quality services to

Michigan youth and families, "providers receiving federal funding may not incorporate sectarian

worship, instruction, or proselytization into the daily treatment and service plan activities." (J.A. at

252). Furthermore, it stated that "[t]he incorporation of faith specific tenets into treatment is not

permitted by state and federal law[,]" and "if Teen Ranch is unwilling to modify its current practices

regarding the imposition of its religious beliefs into the daily treatment and service plan activities,

[the] FIA is unable to approve the corrective action plan and rescind the moratorium." (J.A. at 252).

        On January 21, 2004, Teen Ranch, submitting federal and state law that purportedly supports

its claim, issued a letter detailing its position and denying allegations of coerced religious

participation. On January 30, 2004, the FIA and Teen Ranch met again but to no avail. The parties
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continued their discussion; however, a solution regarding the incorporation of religious programming

was not reached. Ultimately, on February 20, 2004, Teen Ranch filed suit pursuant to 42 U.S.C. §

1983, alleging violations of: (1) the Free Exercise Clause of the First Amendment; (2) the Free

Speech Clause of the First Amendment; (3) the Due Process Clause of the Fourteenth Amendment;

(4) the Equal Protection Clause of the Fourteenth Amendment; and (5) 42 U.S.C. § 604a.

       On February 23, 2004, Teen Ranch moved for a temporary restraining order, which was

denied on the same day. Thereafter, Teen Ranch moved for a preliminary injunction. At the advice

of counsel, the FIA briefly lifted the moratorium to prepare for the preliminary injunction hearing.

On April 1, 2004, the district court denied Teen Ranch's preliminary injunction motion. Upon the

denial of the motion, the FIA reinstated the full moratorium. On February 17, 2005, both parties

filed cross-motions for summary judgment. On September 29, 2005, the district court issued an

opinion granting summary judgment in favor of the FIA. Teen Ranch timely filed the present appeal.

                                                 II.

       We review de novo a district court's grant of summary judgment. May v. Franklin County

Comm'rs, 437 F.3d 579, 583 (6th Cir. 2006).

       The district court properly considered Teen Ranch's constitutional and statutory claims, and

correctly granted judgement in favor of the FIA. As a preliminary matter, the district court identified

the applicable law at issue -- § 220 of the Michigan State Appropriations Bill, 2003 P.A. 172

("Public Act")3 -- which governs contracts between the FIA and faith-based organizations and also


       3
           In full, section 220 provides:

            1) In contracting with faith-based organizations for mentoring or supportive
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instructs the FIA to follow the guidelines set forth in 42 U.S.C. § 604a,4 the federal statute that


            services, and in all contracts for services, the department shall ensure that no
            funds provided directly to institutions or organizations to provide services and
            administer programs shall be used or expended for any sectarian activity,
            including sectarian worship, instruction, or proselytization.

            (2) If an individual requests the service and has an objection to the religious
            character of the institution or organization from which the individual receives
            or would receive services or assistance, the department shall provide the
            individual within a reasonable time after the date of the objection with
            assistance or services and which are substantially the same as the service the
            individual would have received from the organization.

            (3) The department shall ensure that faith-based organizations are able to apply
            and compete for services, programs, or contracts that they are qualified and
            suitable to fulfill. The department shall not disqualify faith-based organizations
            solely on the basis of the religious nature of their organization or their guiding
            principles or statements of faith.

            (4) The department shall follow guidelines related to faith-based involvement
            established in section 104 of title I of the personal responsibility and work
            opportunity reconciliation act of 1996, Public Law 104-193, 42 U.S.C. § 604a.

2003 Mich. Pub. Acts 775.
       4
           In pertinent part, 42 U.S.C. § 604a provides that:

            (b) . . . The purpose of this section is to allow States to contract with religious
            organizations . . . on the same basis as any other nongovernmental provider
            without impairing the religious character of such organizations, and without
            diminishing the religious freedom of beneficiaries of assistance funded under
            such program.

            (c) . . . In the event a State exercises its authority . . . religious organizations are
            eligible, on the same basis as any other private organization . . . so long as the
            programs are implemented consistent with the Establishment Clause of the
            United States Constitution. . . .

            (e) . . . (1) . . . If an individual . . . has an objection to the religious character of
            the organization or institution from which the individual receives, or would
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governs contracts between states and charitable, religious or private organizations. The district court

properly recognized that this case turns on whether the FIA's funding of Teen Ranch is indirect,

rather than direct, because the funding is "a result of the genuine and independent choices of private

individuals." Zelman v. Simmons-Harris, 536 U.S. 639, 649 (2002); see also Mitchell v. Helms, 530

U.S. 793, 810 (2000) (Supreme Court stating that it has "repeatedly considered whether any

governmental aid that goes to a religious institution does so `only as a result of the genuinely

independent and private choices of individuals[]'" rather than "the unmediated will of government.")

(quoting Agostini v. Felton, 521 U.S. 203, 226 (1997)).5 Accordingly, the district court examined

"whether the ability of youth to opt out of the Teen Ranch program pursuant to § 220(2) of the Public

Act based on its religious character gives the youth true private choice so as to make the funding of



           receive, assistance . . . the State in which the individual resides shall provide
           such individual (if otherwise eligible for such assistance) within a reasonable
           period of time after the date of such objection with assistance from an
           alternative provider that is accessible to the individual and the value of which
           is not less than the value of the assistance which the individual would have
           received from such organization. . . .

           (i) . . . Any party which seeks to enforce its rights under this section may assert
           a civil action for injunctive relief exclusively in an appropriate State court
           against the entity or agency that allegedly commits such violation.

           (j) . . . No funds provided directly to institutions or organizations to provide
           services and administer programs . . . shall be expended for sectarian worship,
           instruction, or proselytization.

       5
          "For if numerous private choices, rather than the single choice of a government,
determine the distribution of aid pursuant to neutral eligibility criteria, then a government cannot,
or at least cannot easily, grant special favors that might lead to a religious establishment."
Mitchell, 530 U.S. at 810.
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the religious programs at Teen Ranch indirect rather than direct." Teen Ranch v. Udow, 389 F. Supp.

2d 827, 834-35 (W.D. Mich. 2005).

        After a thorough analysis, the district court concluded that the opt out provision of § 220(2)

of the Public Act did not equate to a "true private choice," since "the State selects the [youth's]

residential placement, . . . [and the youth's] ability to opt out of placement at a faith-based institution

with religious programming is not sufficient to avoid Establishment Clause problems because State

placements at Teen Ranch would advance or endorse a particular religious viewpoint." Id. at 836.

Therefore, since the opt out provision does not give youth "true private choice," the district court

held that "the State cannot fund placements at Teen Ranch [given its religious programming] without

running afoul of the Public Act and the Establishment Clause." Id. at 837; see also Mitchell, 530

U.S. at 816-17 (holding that "[a]ny money that ultimately went to religious institutions . . . as a result

of the genuinely independent and private choices of individuals" is valid. (internal quotations and

citation omitted)). In addition, the district court properly regarded the youth and vulnerability of the

class of citizens at issue here as a relevant consideration. See, e.g., Lee v. Weisman, 505 U.S. 577,

592 (1992) ("As we have observed before, there are heightened concerns with protecting freedom

of conscience from subtle coercive pressure in the elementary and secondary public schools.") (citing

School Dist. of Abington v. Schempp, 374 U.S. 203, 307, (1963) (Goldberg, J., concurring); Edwards

v. Aguillard, 482 U.S. 578, 584 (1987); Board of Ed. of Westside Community Schools (Dist. 66) v.

Mergens, 496 U.S. 226, 261-262 (1990) (Kennedy, J., concurring).

        Following the determination that § 220(2) of the Public Act did not provide a "true private

choice," the district court proceeded to address Teen Ranch's five claims. Rejecting Teen Ranch's
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Free Exercise Clause claim, the district court distinguished Sherbert v. Verner, 374 U.S. 398 (1963),

and the line of cases following Sherbert, which held that the government could not deny a public

benefit based on a worker's religious beliefs, and concluded that "[u]nlike unemployment benefits

or the ability to hold office, a state contract for youth residential services is not a public benefit."

Teen Ranch, 389 F. Supp. 2d at 838. In addition, relying on Locke v. Davey, 540 U.S. 712 (2004),

which held that a state scholarship program that excluded students pursuing degrees in theology did

not violate the Free Exercise Clause, the district court concluded that the FIA's failure to fund Teen

Ranch's religious programming does not violate Teen Ranch's free exercise rights. Id.

        Turning to Teen Ranch's free speech claim, the district court held that the FIA's decision to

contract out its child services did not create a forum for private speech since "[t]he purpose of

contracting for these services is to provide treatment for troubled youth in a residential setting, not

to promote the private speech of the providers of that care." Id. at 840. As to the due process claim,

the district court disagreed with Teen Ranch because the FIA instituted the moratorium according

to the standards set forth in the Public Act which "guide the FIA regarding contracts with faith-based

organizations and restricts the FIA from directly funding sectarian activities." Id. Likewise, the

district court rejected Teen Ranch's equal protection claim because there was no evidence of a

similarly-situated private placement facility that "incorporate[d] religion as an integral part of its

residential program." Id. at 841. The district court further explained that, even if Teen Ranch was

similarly-situated, the FIA's "desire to avoid violating the Establishment Clause . . . is sufficient to

meet the rational basis test." Id.

        In denying Teen Ranch's fifth and final claim under 42 U.S.C. § 604a, the district court,
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citing § 604a(i), noted that the statute does not create any private rights enforceable in federal court.

The district court also recognized that § 604a applies only to programs funded under Titles I, II, and

IV-A of the Social Security Act, and the "FIA is funded for a portion of its foster care placement

costs under Title-IV-E . . . rather than Title IV-A." Id. at 841-42. Also, under its fifth claim, Teen

Ranch alleged to have made a state law claim under § 220 of the Public Act. However, the district

court found insufficient evidence to support this allegation, and to the extent a state claim was

alleged, the district "[c]ourt decline[d] to exercise supplement[al] jurisdiction . . . because the [c]ourt

had dismissed all of the federal claims over which it had original jurisdiction." Id. at 842.

        After thoroughly reviewing the record, we believe that the district court was correct in

reaching its conclusions and granting summary judgment in favor of the FIA. For the same reasons

identified by the district court, we conclude that the opt out provision of the Public Act did not

provide the children placed in the care of the FIA with "true private choice." Likewise, after

carefully considering the applicable law, we also reject all five of Teen Ranch's arguments for the

reasons articulated by the district court. The district court's opinion was sound, as it clearly

articulated and provided the reasoning for rejecting Teen Ranch's constitutional claims.

        While we are satisfied with affirming on the basis of the district court's well-considered

opinion, we will take this opportunity to further consider the viability of Teen Ranch's fifth claim

-- a § 1983 action alleging violation of rights under 42 U.S.C. § 604a, a federal statute which

provides a specific remedy that requires "[a]ny party which seeks to enforce its rights . . . may assert

a civil action for injunctive relief exclusively in an appropriate State court against the entity or

agency that allegedly commits such violation."            42 U.S.C. § 604a(i).       The district court,
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understandably, did not address this issue. However, we believe it warrants consideration since both

Teen Ranch and the FIA dedicate considerable efforts to this claim.

       It is settled that "[42 U.S.C.] § 1983 is available as a remedy for violations of federal statutes

as well as for constitutional violations." Suter v. Artist M., 503 U.S. 347, 355 (1992) (citing Maine

v. Thiboutot, 448 U.S. 1 (1980)). However, "§ 1983 does not provide an avenue for relief every time

a state actor violates a federal law." City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 119

(2005). For example, "§ 1983 is not available to enforce a violation of a federal statute `where

Congress has foreclosed such enforcement of the statute in the enactment itself and where the statute

did not create enforceable rights, privileges, or immunities within the meaning of § 1983.'" Suter,

503 U.S. at 355-56 (quoting Wright v. Roanoke Redev. & Hous. Auth., 479 U.S. 418, 423 (1987)).

       "Accordingly, to sustain a § 1983 action, the plaintiff must demonstrate that the federal

statute creates an individually enforceable right in the class of beneficiaries to which he belongs."

Abrams, 544 U.S. at 120. "Even after this showing, . . . [t]he defendant may defeat this presumption

by demonstrating that Congress did not intend that remedy for a newly created right." Id.

"[C]ongressional intent may be found directly in the statute creating the right, or inferred from the

statute's creation of a `comprehensive enforcement scheme that is incompatible with individual

enforcement under § 1983.'" Id. (quoting Blessing v. Freestone, 520 U.S. 329, 341 (1997)).

Moreover, "[t]he provision of an express, private means of redress in the statute itself is ordinarily

an indication that Congress did not intend to leave open a more expansive remedy under § 1983."

Id. at 121. However, "[t]he ordinary inference that the remedy provided in the statute is exclusive

can surely be overcome by textual indication, express or implicit, that the remedy is to complement,
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rather than supplant, § 1983." Id. at 122. The party seeking to enforce the federal statutory right

bears the burden of demonstrating that Congress intended to create the private federal remedy

sought. Suter, 503 U.S. at 363-64.

       In the instant matter, 42 U.S.C. § 604a(i) expressly provides that a plaintiff's remedy under

§ 604a resides exclusively in state court. As such, we must conclude that "Congress did not intend

to leave open a more expansive remedy under § 1983." Abrams, 544 U.S. at 121. As noted in

Abrams, "`the express provision of one method of enforcing a substantive rule suggests that

Congress intended to preclude others.'" Id. (quoting Alexander v. Sandoval, 532 U.S. 275, 290

(2001)). Likewise, 42 U.S.C. § 604a does not provide a textual indication, express or implicit, that

the remedy provided for in state court is complementary to the remedies available under § 1983.

Teen Ranch has failed to provide, as it must, any evidence indicating that § 604a(i) was not intended

to foreclose or supplant the available remedies under § 1983. Accordingly, Teen Ranch's rights

under 42 U.S.C. § 604a may be enforced only in state court; thus, a cause of action under this federal

statute is not cognizable in federal court.

                                                III.

        Accordingly, for the reasons stated in the district court's well-considered opinion and the

additional reasons provided herein, we AFFIRM the district court's grant of summary judgment in

favor of the FIA.