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California Must Stop Discriminating Against Religious Schools to Serve Special Needs Students

Given the Supreme Court’s recent rulings, California’s rule excluding religious schools from becoming state-certified special-needs schools seems patently unconstitutional.
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August 23, 2023
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Over the past six years, the Supreme Court has repeatedly made clear that once government chooses to provide funding for private schools, it cannot discriminate against religious schools by excluding them from that program. Yet earlier this month, a federal district court upheld a California law doing just that — prohibiting religious schools from becoming state-certified special-needs schools with all the funding benefits that come with such a certification.

Three Los Angeles Jewish families, along with two Los Angeles Jewish schools, filed the suit, challenging the constitutionality of the law as unlawful religious discrimination. But notwithstanding the Supreme Court’s directives, the Federal District Court rejected these claims. The plaintiffs’ immediate decision to appeal means that the case will now go to the Ninth Circuit Court of Appeal; at stake, whether courts will deliver on the Supreme Court’s promise to end religious discrimination when it comes to government funding.

The lawsuit stems from the federal Individuals with Disabilities Education Act (IDEA), which provides states with federal funds to support students with disabilities. To remain eligible for those funds, states must ensure that every child with disabilities receives a “free appropriate public education.” In the majority of cases, this simply means that children with disabilities receive an education through the public school system that meets their particular needs.

There are instances, though, where the public school system simply lacks the expertise, capacity or resources to meet the special needs of particular children. To meet its obligation in those cases, the state contracts with state-certified private schools to provide the child with the requisite free, appropriate public education. When a child is referred to a state-certified private school, the school receives the cost of tuition from the government as well as funds to cover ancillary services. For a school to receive certification, it must abide by a variety of requirements related to the content and quality of the education. But in addition to those pedagogical requirements, schools also cannot be certified, regardless of the content and quality of the education they may provide, if they are “sectarian” — that is, “owned, operated, controlled by, or formally affiliated with a religious group or sect.”

This sort of religious exclusion comes, no doubt, from a time past, when the Supreme Court ruled that the separation of church and state meant religious institutions couldn’t receive any funding whatsoever from the government. But in more recent years, the Supreme Court has been clear that when it comes to government funding, separation of church and state means that government must treat religious institutions neutrally. If private institutions are receiving funds for secular reasons, then eligible religious institutions should receive the same — no more, but no less. In fact, in June 2022, the Supreme Court issued a decision striking down the state of Maine’s exclusion of “sectarian” schools from a tuition assistance program available to all other private schools. According to the Supreme Court, that sort of sectarian exclusion constituted religious discrimination prohibited by the First Amendment.

Given the Supreme Court’s recent rulings, California’s rule excluding religious schools from becoming state-certified special-needs schools seems patently unconstitutional. But earlier this month, a federal court held otherwise. According to the court, it is a mistake to think of California’s law as excluding religious schools — and, in turn, religious families — from a government funded program. Instead, the state is simply choosing to contract with particular schools to provide a “public education.” And religious schools provide an education that isn’t a public education.

But that sort of argument has already been rejected by the Supreme Court as simply a rewording of religious discrimination. The state outlines, in its laws, the various requirements regarding the educational quality and content a school must provide in order to become state-certified. There is no reason to assume, by definition, that religious schools cannot provide that education. If other private schools can do so, religious schools should be given the same opportunity. Failing to do so, regardless of how it is described, is just another way to practice religious discrimination. Moreover, the government cannot circumvent this constitutional violation by simply saying it has the right to select which schools to contract with. Indeed, the Supreme Court — in a case curiously omitted in the federal court’s opinion — explicitly rejected this argument in a 2021 decision. Requiring schools not be religious in order to qualify for government contracts and student referrals is, again, just another form of religious discrimination.

Maybe worst of all, is the continued insinuation of California’s law that religious schools, willing and able to assist these students with disabilities, are somehow not worthy of joining the effort to provide special needs children with an environment geared to help them reach their potential.

Most disturbing are the consequences of this discrimination. As the court recognized, some of the plaintiff parents have alleged that their inability to send their special-needs children to a religious, state-certified school — one that can provide all the pedagogical benefits afforded by any other private school — has meant that the students’ progress is impeded because of their absences for religious holidays. Even worse, the public schools continue to serve the unwitting children non-kosher food even as the parents have reiterated their religious objections to teachers. And maybe worst of all, is the continued insinuation of California’s law that religious schools, willing and able to assist these students with disabilities, are somehow not worthy of joining the effort to provide special needs children with an environment geared to help them reach their potential.

The plaintiffs, not surprisingly, have already filed their notice of appeal. At stake is both the future of children who do not want to have to forgo their religious commitments in order to receive the education they deserve — and the future of religious schools that seek the right to be treated on equal footing with their private school counterparts. To make that possible, California does not need to dilute the educational standard for becoming a state-certified special needs school. All California needs to do is to stop discriminating.


Maury Litwack is the Managing Director of the Orthodox Union and Founder of the Teach Coalition.

Michael A. Helfand is a professor at Pepperdine Caruso School of Law, Visiting Professor at Yale Law School, and Senior Legal Advisor to the Teach Coalition.

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