In California, students with disabilities can now attend religious schools on the public dime
In a major shift, the state will now cover private religious tuition for students with disabilities—a move that carries nationwide implications
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The Individuals with Disabilities Education Act (IDEA) guarantees that students with disabilities can receive free public education. California allows those students to attend private schools (even out-of-state boarding schools) that meet their needs, paid for entirely by taxpayers, provided those schools are nonsectarian. The thinking here is that some students with disabilities are better served by private schools that may cater to their needs in a way public schools simply can’t.
But a recent decision will now allow those students to go to private religious schools on the taxpayers’ dime. It’s arguably a self-inflicted wound against church/state separation, though it may be better than an alternative in which that decision is expanded throughout the country.
How did this happen?
A couple of years ago, three Orthodox Jewish parents sued the California Department of Education, saying they wanted to send their children to Orthodox Jewish schools in Los Angeles, but the state wouldn’t cover those costs. They claimed it was necessary to go to those schools because public schools didn’t account for the “extra absences due to observance of religious holidays” or the challenges of maintaining a kosher diet.
Their lawsuit said it was unconstitutional for the state to deny covering the costs of sending their kids to a private religious school. Their lawsuit was naturally backed by the right-wing Becket Fund for Religious Liberty.
A U.S. district judge initially dismissed the case, but last October, the Ninth Circuit Court of Appeals ruled unanimously that there was merit to some of the most serious claims. The justices said that, because of recent Supreme Court decisions, if California offered to cover the costs of private schools for some students with disabilities, they couldn’t refuse to cover the costs for private religious schools.
Religious entities that are equally or better qualified than secular ones to provide special education and related services are disqualified solely because they are “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”… As a result, families like the Parent Plaintiffs who would otherwise advocate for placement in religiously affiliated NPSs [nonpublic, nonsectarian schools] are unable to do so—solely because of the would-be NPSs’ religious affiliation.
It’s a logical extension of what the conservative super-majority on the Supreme Court has said even if it’s a complete distortion of what the Constitution says. They’ve been doing this since 2017 with rulings that repeatedly chip away at the church/state boundary.
It wasn’t just a victory for the families either. According to the San Francisco Chronicle, “Twenty-two states, led by Idaho, filed arguments supporting the challenge to the law, along with groups such as the Rabbinical Council of America and the California Catholic Conference.”
It was possible for the State to appeal the decision again… but the odds were slim that anything would change.
It wasn’t until last week that the state announced how it planned to move forward: There would be no appeal. Instead, California agreed to settle the case. In essence, the “nonsectarian” part of the law is no longer going to be enforced. The state said it agrees that the settlement “is fair and equitable, and that they will support the terms of this Consent Judgment if it is challenged in court.”
While the settlement means the state will cover the costs of private religious education for those Jewish parents, it now opens the door for all students with disabilities to attend private religious schools that meet their needs, with all costs covered by taxpayers.
Becket’s senior counsel Eric Rassbach celebrated the victory by insisting California’s law targeted Jewish families (which is absurd):
California spent decades treating Jewish kids like second-class citizens. Today’s settlement ensures that Jewish kids with disabilities can access the resources they need and deserve—just like everyone else.
Saying that public funds should go to public schools is not, and never has been, religious discrimination.
Nick Fish, president of American Atheists, did not agree with Becket’s spin on the result but welcomed some aspects of this decision:
[The] agreement is not, as the Becket Fund suggests, some sort of a far-reaching victory for school privatization proponents. Instead, it sidesteps a full-blown dismantling of the First Amendment and prohibits all parties from appealing the case up to a Supreme Court that seems eager to dismantle public education.
If anything, this is The Becket Fund failing to achieve their real objective: unrestricted public funding of religious instruction and religious schools. Rather, the Ninth Circuit rightfully observed that federal regulations have always prohibited—and continue to, in spite of recent Supreme Court rulings—public funding for explicitly religious activities.
American Atheists firmly opposes the privatization of special education and any diversion of public dollars to unaccountable private and parochial schools. However, the narrow scope of this agreement means religious entities will, for now, be held to a significant amount of oversight, regulations, and other requirements — like not discriminating against students. We expect these oversight requirements will turn most religious schools off from cashing in on this attempt to rake in taxpayer dollars.
California could always fix this problem by changing the law so that IDEA funds are never spent on private schools, period, but that could impact some students with disabilities who truly benefit from private schools that specialize in their situations. (For example, a private school for the deaf may be a better fit for some students than a public school that doesn’t have a staffer who’s proficient in sign language.) The irony is that the current law actually allowed students to do what’s best for their needs, but the revised rules brought about by this lawsuit water down those rules to make things worse for everyone.
Like Fish said, the best we can hope for is that the regulations in place for all schools receiving these benefits keeps the worst religious actors away. Those regulations prevent government funding from going towards “worship, religious instruction, or proselytization.”
Keep in mind that it’s not apparent if the state will now fund private religious education for students with any disability (i.e. if they have a 504 plan or an IEP) or if they will cover those costs only if public schools cannot accommodate the students’ religious needs. Depending on how that goes, it’s possible religious families could take advantage of the situation to take taxpayer dollars to cover the costs of private school even if they don’t necessarily need it for their children.
Becket did not respond to a request for comment on what they believe the parameters of this decision ought to be.
Amitai Heller, the Legal Director for the American Humanist Association, told me this decision “undermines” constitutional protections:
Every child with a disability—religious or not—deserves a free, high-quality public education. But forcing taxpayers to fund private religious schools undermines the separation of church and state. The real problem that must be addressed is that religious schools are exempt from the Americans with Disabilities Act, leaving many religious children with disabilities behind by design. We hope advocates show the same passion for guaranteeing that all religious schools be accessible to children with disabilities as they do for undermining secular society.
Chris Line, Legal Counsel for the Freedom From Religion Foundation, echoed those thoughts and called the decision a “major blow” for educational equity and church/state separation:
We strongly condemn this ruling allowing California parents to use special education funds at religious schools. This decision is a major blow to both educational equity and the state’s proud tradition of strong church-state separation protections.
By permitting public dollars to flow to sectarian institutions, the court has weakened California’s constitutional safeguards—historically stronger than federal protections—and embraced the dangerous new trend of claiming the right to free exercise of religion means the government is required to fund religious activities.
It’s especially troubling that two Democratic-appointed judges fully embraced this misguided legal reasoning, echoing the recent line of Supreme Court decisions that erode the wall between church and state. The notion that a state cannot have a compelling interest in limiting funding to nonreligious schools is constitutionally flawed.
Taxpayer funds should never be used to support religious indoctrination, and this ruling sets a troubling precedent not just for California, but for the entire nation.
The question now is how conservative Christians will run with this victory in order to further erode whatever remains of that church/state separation wall.
Religion, which can't seem to survive without government help, has their hands out yet again.
Puny god.
I suspect this law may have been a well-intentioned effort to get disabled kids an education the public schools may be unable to provide. It is, however, a gross violation of church-state separation, and has to go.