1 week Ago
For years, the Supreme Court has ruled that government funding programs cannot discriminate against religion, yet states continue to operate programs that do just that . The Ninth Circuit—a court often considered the most liberal among its federal appellate counterparts— recently said enough is enough, declaring a California law that disqualified religious institutions from becoming state-certified special needs schools unconstitutional. In so doing, it reminded legislatures around the country that when it comes to government funding, eligibility must depend on whether the institution can serve those in need, not what the institution believes.
Like all other states, California receives federal funds under the Individuals with Disabilities Education Act to support students with disabilities. But a state’s eligibility for those funds is contingent on ensuring that every child with special needs receives a “free appropriate public education.” The challenge faced by many states is that public schools often lack the resources and expertise to provide an appropriate education for every special needs child.
States can satisfy their obligation by placing those special needs children in private schools that can meet those needs, as California does. To ensure that the education, as required, remains free, California provides the private school funds to offset the tuition costs and disability-related services associated with the state’s education obligations. But there’s a catch.
Under California law the school cannot be religious—or, to use the preferred word of the California Education Code, “sectarian.” For decades, this sort of express exclusion of religion would have been unremarkable. The Supreme Court had long interpreted the demands of church-state separation to require excluding religious institutions from government funding programs even if those institutions were otherwise eligible.
Since 2017, however, the Supreme Court has made clear that excluding religion is unconstitutional discrimination. So long as a religious institution is otherwise eligible, to exclude it simply because it is religious fails to treat religion neutrally and therefore violates the religious liberty protections of the First Amendment. This is precisely the argument three Orthodox Jewish families and two Orthodox Jewish day schools advanced against California’s prohibition against religious schools becoming state-certified special needs schools.
The case is called Loffman v. California Department of Education and this week, a panel of judges agreed with them. It wasn’t just any panel of judges.
Judge Kim Wardlaw, who authored the opinion, was appointed by President Clinton. The others—Judges Morgan Christen and Mark Bennett—were appointed by Presidents Obama and Trump respectively. Their unanimous decision stated unambiguously that California’s law “easily .
. . fails the neutrality test.
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. . solely because they are ‘owned, operated, controlled by, or formally affiliated with a religious group or sect.
’” Translation: California, by continuing to enforce this rule, prioritizes its political ideology over the needs of children with disabilities. While the Supreme Court has for years been crystal clear in its rulings on this issue, states—and their bureaucracies—cling to these exclusions. This decision could not come at a better time.
In the waning days of this election season, political rancor unfortunately floods the airwaves. The Ninth Circuit’s decision is a reminder that government policies have, as their most sacred responsibility, a duty to serve those in need. Those needs cannot be relegated to second class status simply because of outdated—and unconstitutional—political commitments.
Michael Helfand is the Brenden Mann Foundation Chair in Law and Religion at Pepperdine Caruso School of Law. Maury Litwack is CEO of Teach Coalition..
