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NORTHERN CALIFORNIA RECORD

Thursday, October 31, 2024

CA law blocking religious schools from special ed funds violates religious freedom, appeals court says

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California Superintendent of Public Instruction Tony Thurmond is named as a defendant in the lawsuit. He is also a Democratic candidate for governor of California in 2026. | Tonythurmond.com/

A federal appeals court says California state law forbidding religious private schools - and only religious private schools - from receiving state special education funds "easily" violates the First Amendment.

On Oct. 28, a three-judge panel of the U.S. Ninth Circuit Court of Appeals sided with three Orthodox Jewish families in their dispute with the state of California over the state's refusal to distribute educational funds for students with disabilities to the sectarian Jewish private schools.

The ruling directly vacated a L.A. federal judge's refusal to issue a preliminary injunction blocking the California Education Department and other state agents from enforcing the state law. In the unanimous ruling, the appeals judges said the judge was wrong to determine the parents and schools had not "plausibly" demonstrated the state law violates constitutional religious liberty rights.


U.S. Ninth Circuit Court of Appeals Judge Kim McLane Wardlaw | United States Court of Appeals for the Ninth Circuit, Public domain, via Wikimedia Commons

In a statement following the appellate ruling, the legal organization representing the plaintiffs in court called the decision "a massive win for Jewish families in California."

In the statement, Eric Rassbach, vice president and senior counsel at the Becket Fund for Religious Liberty said: "It was always wrong to cut Jewish kids off from getting disability benefits solely because they want to follow their faith. The court did the right thing by ruling against California's bald-faced discrimination."

The case landed in federal court in Los Angeles in 2023, taking aim at a California state law which generally forbids the state from providing funding to religious private schools, identified by the state as "sectarian."

In particular, the lawsuit faulted the state for violating the Constitution by refusing to allow schools to be certified as qualified recipients of education funds for disabled students unless the state believes the schools to be "nonsectarian" in nature. 

Defendants named in the lawsuit include the California Department of Education and Tony Thurmond, the state schools superintendent. Thurmond is running as a Democrat for governor of California in 2026.

The certification and funding regime was established by California under the federal Individuals with Disabilities Education Act (IDEA), which requires private schools seeking certification as a qualified nonpublic school (NPS) to also provide students with disabilities a "free appropriate public education."

The special education funds are not restricted only to public schools, however, as the state also provides the money to "nonsectarian" private schools, as well. According to Becket, the number of California private schools receiving such funds numbers in the hundreds.

The lawsuit asserted the state of California violated the First Amendment's guarantees of the right to free exercise of religion and the Fourteenth Amendment's guarantee of equal protection under the law.

Plaintiffs in the action included the Samuel A. Fryer Yavneh Hebrew Academy; the Jean & Jerry Friedman Shalhevet High School; Jonathan and Chaya Loffman, and their minor child, identified as M.L.; Fedora and Morris Taxon, and their minor child, identified as K.T.; and Sarah and Arial Perets, and their minor child, identified as N.P.

According to court documents, the families profess to be "devout" Orthodox Jewish households who believe the tenets of their faith require them to send their children to Jewish day schools.

While the families all send their other children to the Jewish schools, they said California's rules denying special education funding for disabled students to religious private schools have forced them to enroll their children with disabilities in Los Angeles public schools instead, or sacrifice vital services, suppressing their children's academic achievement.

In the public schools, the parents say their faith is disrespected, as the families say they "have received pushback from school staff regarding the observance of Jewish holy days" and school staff have provided their children with non-Kosher meals "despite ... parents' pleas."

In addition to state officials, the families also filed suit against the Los Angeles Unified School District.

In federal district court, U.S. District Judge Josephine L. Stanton ruled against the Jewish parents and schools. The judge found the schools and some of the families lacked standing to sue, because they couldn't show they were actually harmed by California's "nonsectarian" rule.

She also said she believed the California law and policies don't violate the Constitution, in part, because she agreed with the state that the funds are intended for "public education," so the state has the authority to decide which "contractors" should receive such funds.

Stanton was appointed in 2010 by former President Barack Obama.

On appeal, the panel of three Ninth Circuit judges agreed Stanton mostly got the case wrong.

In the appellate decision, the judges agreed that the Jewish schools can't sue, because they can't show they intend to use state funds for anything other than to provide religious instruction.

And they agreed that the LAUSD can't be sued in this instance, because the school has no authority to override the state's rules.

But they said the Jewish families should be allowed to continue with their action, because the California law clearly forces them to choose between violating their religious beliefs and obtaining "free appropriate" education for their disabled children.

"For most parents of children with disabilities, the IDEA statutory scheme forces parents to choose either the full benefits of the IDEA or education in a religious context," the appellate judges wrote. "For students eligible for NPS placement, the possibility of an Orthodox Jewish NPS - an option consistent with the federal framework - alleviates that burden.

"Through its nonsectarian NPS requirement, however, California removes the possibility of a religiously affiliated NPS from the placement options for which a parent may advocate in its discussions with the local educational agency."

The judges further rejected the state's arguments that the First Amendment actually requires the state to block funds to religious schools to maintain the state's official policy of "neutrality" toward religion.

The judges, however, said the opposite is true: The state's law and policy in this instance cannot be perceived as "neutral," but instead discriminates against religious schools solely because they are religious, leaving both parents and schools with difficult choices and heavy burdens.

The appellate opinion was authored by Ninth Circuit Judge Kim McLane Wardlaw. Judges Morgan Christen and Mark J. Bennett concurred in the decision.

Wardlaw was appointed to the court in 1998 by former President Bill Clinton. Christen was appointed in 2012 by Obama. And Bennett was appointed in 2018 by former President Donald Trump.

 The families and schools have been represented in the action by Rassbach and attorneys Nicholas R. Reaves, Daniel Chen and Laura E.W. Slavis, of Becket, of Washington, D.C.

The plaintiffs were supported by a host of other organizations and entities, including other Jewish and Christian religious organizations, conservative civil rights groups, and 22 Republican state attorneys general from throughout the U.S.

The state was supported by the National Alliance of Public Charter Schools and the California Charter Schools Association, which argued allowing religious schools to participate in California's special education funding and certification regime would upend the IDEA funding model.

The California Department of Education was represented by its in-house counsel, led by Deputy General Counsel Thomas Prouty.

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