UPDATE: Should Religious Students with Disabilities Get Special Education Funding Available to Others?

Loffman v. California Department of Education

​In March, religious parents and schools in California brought a lawsuit challenging a state policy barring them from accessing special education funding for children with disabilities. In August, the U.S. District Court for the Central District of California ruled against the plaintiffs, dismissing the case despite clear, contravening Supreme Court precedent supporting their claims. Now, the plaintiffs (represented by the Becket Fund) are appealing before the Ninth Circuit.
 
It is hard to understand how California can fail to recognize the constitutional implications of its policy, which permits federal and state special education funding for disabled children at secular private schools but prohibits it for religious private schools. This funding originates with the Individuals with Disabilities Education Act (IDEA), a federal law ensuring that all children with disabilities in America can receive a free, appropriate public education that meets their needs. (The word “public” in this context is a term of art that refers to a “public expense” – either at public or private schools.)
 
What’s more, there is direct, on-point precedent prohibiting such policies. The U.S. Supreme Court in Carson v. Makin struck down a Maine law which, like the California law, allowed private secular schools and families to access public funding but excluded religious schools and families. Further, in Fulton v. City of Philadelphia, the Court held that a law burdening religion triggers strict scrutiny if it allows for discretionary exemptions. There is no compelling government interest in discriminating against religious people; nor does categorically exluding religious institutions from receiving public funding constitute narrow tailoring.
 
The plaintiffs in this case are Los Angeles-area Orthodox Jewish families who wish to send their special-needs children to Orthodox Jewish schools, as well as two Orthodox Jewish schools that want to welcome children with special needs. Such accommodations are expensive, and IDEA dollars go toward paying for staff training, assistive technology, and programmatic expenses. By all rights, the plaintiffs should be able to access these funds.
 
Protect The 1st continues to support the plaintiffs and Becket attorneys in their efforts to ensure all students with disabilities in California can receive a quality education in line with their academic needs and religious heritage. To quote Becket’s brief, the California legislature forces parents to “choose between the Jewish education that is their birthright and the governmental special-education assistance they are entitled to as Americans.”
 
Protect The 1st believes the issue before the court is a simple one: Parents shouldn’t have to choose between the free exercise of their religion under the First Amendment and support for their disabled children.