In Loffman v, California Department of Education, (9th Cir., Oct. 28, 2024), the U.S. 9th Circuit Court of Appeals reversed a California federal district court's dismissal of a suit by the parents of a special needs child that challenges as a violation of the Free Exercise and Equal Protection Clauses a portion of California's rules implementing the federal Individuals With Disabilities Education Act (IDEA). In California, a private school may be certified as a NPS (non-public school offering special education programs) so long as the school is non-sectarian. When a local educational agency refers a child to an NPS, the state pays the child's full tuition there. However, religiously affiliated schools may not be certified as NPS's even if the curriculum offered to special needs children is secular. Here, plaintiffs wanted to send their children to an Orthodox Jewish school but obtain the benefits available from an NPS. The 9th Circuit said in part:
... [A]ny religiously affiliated school seeking to enter into an NPS contract in California must choose whether to maintain its religious affiliation or to serve as an NPS eligible for consideration ... in determining whether it may be in the best position to provide an IEP [individualized education program] for an individual child.
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 we have previously recognized, a statutory scheme that requires a family to “forgo a sectarian education . . . in order to receive” special education benefits otherwise available in a private school setting imposes a “burden on their free exercise rights.” ...
Parent Plaintiffs have plausibly alleged “that a government entity has burdened [their] sincere religious practice pursuant to a policy that is not ‘neutral’ or ‘generally applicable,’” so the focus “shifts to the defendant” to show that the challenged action survives strict scrutiny....
[E]ven if the State Appellee could demonstrate a compelling interest in neutrality here, it has failed to demonstrate that the nonsectarian requirement is narrowly tailored to serve that interest. Thus, we conclude that the State Appellee fails to demonstrate that the nonsectarian requirement satisfies strict scrutiny.
National Catholic Register reports on the decision.
