PASADENA, Calif. (CN) — A Ninth Circuit panel expressed strong reservations Tuesday about a California law that excludes Orthodox Jewish and other religious schools from receiving public funds to provide special education services to disabled students.
"Standing on its own, it's pretty clearly discriminatory," U.S. Circuit Judge Kim McLane Wardlaw, a Bill Clinton appointee, observed at a hearing in Pasadena, California, where a group of Orthodox Jewish parents and schools appealed the dismissal of their lawsuit last year.
The parents whose children have been diagnosed with autism claim they are forced to choose either to send them to a private religious school, as they prefer, and pay themselves for prohibitively expense therapy and special-education services, or send their children to a public school where they run into conflicts observing religious holidays and other commitments.
They claim the California Department of Education and the Los Angeles Unified School District categorically exclude them from otherwise available government benefits in violation of the free exercise clause of the First Amendment
Whereas other states place children with disabilities in both secular and religious private schools, depending on the best fit for each individual child, the plaintiffs say that in California only secular private schools can participate in federal funding under the Individuals with Disabilities Education Act, or IDEA, that is administrated through the state.
U.S. Circuit Judge Morgan Christen, a Barack Obama appointee, observed that in the case of one the children whose parents brought the lawsuit, the child must attend a different school than his siblings because of his disability. Christen said that seems to contradict the goals of the IDEA.
"If there is one thing that is the cornerstone of that piece of legislation, it's mainstreaming and inclusion, and not being treated differently," Christen said.
For this child, the judge said, there's a unique argument "that one of the orthodox schools should be considered, not because it's orthodox, but for a more fundamental reason."
Eric Rassbach, an attorney with the Becket Fund for Religious Liberty who is representing the parents and schools, agreed that the parents should at least be allowed to try to make this argument to have their disabled child attend their preferred school without having to pay for the child's special education requirements.
"We're just trying to get a right to do this," Rassbach said, adding that it's only the California education code that prevents them from doing so, not the IDEA itself.
Thomas Prouty, an attorney representing the California Department of Education, conceded that the state has not chosen to become a manager of sectarian institutions. To that extent, schools that can't certify that they aren't religious institutions are not eligible to receive IDEA funding under a contract with the state.
California's exclusion of religious schools from this particular source of funding, however, seemed baffling to U.S. Circuit Judge Mark Bennett, a Donald Trump appointee, in particular in the context of the United States' history of discrimination against Roman Catholics during the 19th century and legal precedents against religious discrimination.
"I can't understand how the state can defend a law, which says Catholic secular schools, Jewish secular schools, Muslim secular schools, Buddhist secular schools, they just don't qualify," Bennett said. "Virtually every other private school can qualify, but religious schools just don't."
If Jewish Orthodox schools are allowed to seek public funding to provide for special education needs of disabled students, they'd still have to meet other requirements posited by the state to be certified as a nonpublic schools with which California's education services can enter into a contract.
The plaintiffs point to the 2022 U.S. Supreme Court decision that struck down a Maine law that allowed private secular schools and families to access a publicly funded tuition assistance program for students to attend private school if their town does not have a public high school, but excluded religious schools and families from the same access.
The American Civil Liberties Union was among groups that opposed overturning the Maine law because, the organization argued, it would overturn a longstanding precedent that states needn't fund religious instruction and activities. Associate Justice Sonia Sotomayor observed in dissent that the ruling “leads us to a place where separation of church and state becomes a constitutional violation.”
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