California is a “sanctuary state,” offering out-of-state pregnant women abortion services and medical interventions for “transgender” youth. It tightens its purse strings, however, when it comes to special-education services by denying reimbursement for private schooling if parents choose a school that is “sectarian” regardless of the school meeting all education and special-needs criteria. One word perfectly describes such a discriminatory policy: unconstitutional. 

Any parent of a child with disabilities navigates a complex system of services and resources in order to meet their child’s educational needs. Responding to this, Congress passed the Individuals with Disabilities Education Act (IDEA). 

The IDEA helps parents and their children with disabilities obtain educational opportunities equal to nondisabled students with federal funding for special-education programs in schools across the country. The goal is that children, regardless of their disabilities, can receive free and appropriate education, including at private schools when public schools cannot meet their needs. Thanks to IDEA grants, children with particular needs have access to essential resources such as assistive technology and special-education programs. 

In California, however, even the care of young people with disabilities takes second place to secularist dogma. 

California’s Education Code directs reimbursement for services to “nonpublic, nonsectarian schools” to support students with disabilities when “no appropriate public education program is available.” “Nonsectarian” is defined as “a private, nonpublic school ... that is not owned, operated, controlled by or formally affiliated with a religious group or sect, whatever might be the actual character of the education program or the primary purpose of the facility and whose articles of incorporation and/or by-laws stipulate that the assets of such agency or corporation will not inure to the benefit of a religious group.”

Three Orthodox Jewish families who have concluded that the best educational fit for their children with special needs is a religious school are challenging this exclusionary rule. 

Chaya and Yoni Loffman, Fedora Nick and Morris Taxon, and Sarah and Ariel Perets are Orthodox Jewish parents whose religious beliefs require them to send their children with disabilities to schools that will both equip them with an education that allows them to reach their full academic potential and one centered around the Jewish tradition. 

“Our son has to overcome many obstacles to have his unique needs met in the classroom, and California is making it even harder for him because of our faith,” said the Loffmans, Jewish parents of a child with a disability in Los Angeles. “We pray that the court will stop this attack on children like ours and allow special-education funding for every child with disabilities in California.” 

Shalhevet High School and Yavneh Hebrew Academy, Jewish schools that offer excellent education and wish to serve children with disabilities, are similarly offended by the state’s policy. 

Teach Coalition, an initiative of the Orthodox Union that advocates for equal funding in nonpublic schools, supports this initiative. 

“All children with disabilities, regardless of their religious beliefs, should have the same opportunity to receive a quality education. Parents should never have to compromise on how or where their child is educated just because they are religious,” said the group’s founder, Maury Litwack.

Represented by Becket, the religious liberty law firm with repeated successes in the U.S. Supreme Court and lower courts, the parents and schools filed suit in federal court in March. Their complaint alleges that California’s exclusionary policy violates the Constitution’s guarantees for the free exercise of religion and equal protection under the law. 

“California’s campaign against Jewish children with disabilities and the schools they want to attend is shameful and unconstitutional,” said Laura Wolk Slavis, counsel at Becket. Wolk Slavis, a former Supreme Court judicial clerk who is blind, shares her personal account of the importance of educational services for students with special-education needs in a moving video. 

Earlier this month, shortly after oral argument, Judge Josephine Staton, an Obama appointee, dismissed the case against California. 

“These provisions of the California Education Code and implementing regulations apply only when a child has been referred to or placed in a private school or facility to receive a [free and appropriate public education] — when the [local education agency], not the child’s parents, decides that alternative placement in a private institution is appropriate,” she wrote, adding that California’s provision for “nonsectarian, nonpublic schools” applies only in situations where a family has chosen to accept the private-education option offers by their local education agency, “not when parents have invoked their right to obtain a private education for their children.” 

Interpreting California’s Education Code this way is an awfully convenient way to try to absolve California of owning up to its discriminatory policy. But it just doesn’t hold water. The categorical exclusion of religious schools from what is available most certainly stacks the deck against religious parents, as does the state’s refusal to take into account the importance of religion for many families. 

Despite the legal setback, the plaintiffs aren’t giving up. They are appealing. 

“We have asked the 9th Circuit to strike down this law and ensure that all kids with disabilities receive the care and support they need to thrive,” said Eric Rassbach, senior counsel at Becket. 

The Supreme Court has made clear over the last few years that public benefits that are open to private secular organizations must also be open to religious ones. The cases have even involved school-choice initiatives. 

In a case decided just two years ago involving a policy that excluded religious schools from a voucher program for rural students in Maine, Chief Justice John Roberts explained, “The State pays tuition for certain students at private schools — so long as the schools are not religious. That is discrimination against religion. “ 

Denying religious parents of children with disabilities in California the opportunity to send their children to religious schools similarly violates the law.

In addition to offending the Constitution, California’s policy denying reimbursement to families who choose religious schools for their children with special needs is also out of touch with popular opinion. A recent poll shows that nearly 60% of Californians think that children with disabilities should be able to use federal and state funding to go to religious schools, but the state’s elected representatives are making that impossible. 

Religious-school students with special-education needs should be able to participate in these programs on equal footing as students who attend non-religious schools, and their schools should be able to participate in publicly available programs without discrimination. 

The law and public opinion favor fairness when it comes to special-education reimbursement. But given California’s priorities, it will take an order from a reviewing court to make it happen.