A California federal court has become the latest battleground over whether religious institutions may participate in government-funding programs available to all other private entities. Three times in the past seven years, the Supreme Court has made clear that this sort of exclusion is a form of religious discrimination prohibited by the First Amendment. But California, like other jurisdictions, has failed to follow those instructions.
The present victims are special-needs families who wish to have their religious schools—willing and able to serve the special and secular needs of their children—become state-certified non-public schools. Doing so would allow those institutions, like other private schools certified by the state, to receive the necessary funding to provide services for children whose needs the public schools cannot meet. But California, contrary to prevailing First Amendment law, continues to defend its categorical rule: if you’re religious, don't bother applying to serve the special-needs community. It’s time for courts—and legislators—to step in.
Under the federal Individuals with Disabilities and Education Act (IDEA), states receive federal funds to support students with disabilities. To remain eligible for those funds, states must establish rules to ensure that every special-needs child receives a free and publicly funded education. Most of the time, states satisfy this obligation through the public school system, serving children with varying learning needs.
The problem, however, is that public schools sometimes lack the resources, infrastructure, and expertise to meet the needs of some special-needs children. In California, under such circumstances, school districts partner with state-certified private schools. The process for certification is relatively intuitive, with nearly all the requirements related to the ability of the school to serve special-needs children. But one stands out: a school must be both nonpublic and nonsectarian. As a result, even if a private school is equipped to serve special-needs children that the public schools cannot, California will not certify that private school if it is “owned, operated, controlled by, or formally affiliated with a religious group or sect.”
One can understand why California has such a rule. Decades ago, the Supreme Court issued numerous decisions indicating that separation of church and state banned any government funding for religious schools. But since the early 2000s, the Court has changed its tune, interpreting the principle of separation of church and state simply to require that when it comes to funding, religious institutions should be treated no better, but also no worse, than analogous private institutions. Moreover, failure to treat religious institutions neutrally constitutes a form of religious discrimination prohibited by the First Amendment.
Thus, if a state is providing, say, historic-preservation grants for all private institutions, it must do so for all eligible institutions, including religious ones. And one would think that it also means that, if the state is certifying private schools to become special-needs schools, then religious schools should be eligible to apply as well.
For this reason, three Jewish families and two Jewish day schools have filed suit in federal court, asking why this discriminatory rule—which excludes religious schools from California’s generally available certification program—still exists. Instead of changing the rule, both the California Department of Education and the Los Angeles Unified School District have continued to defend it in court. Their arguments, by and large, dodge the substance of the claims. Thus, they focus on procedural hurdles, like whether the Jewish schools have applied for certification yet, knowing full well that a rule requires rejecting such applications out of hand. Both the California Department of Education and L.A. Unified hope the court ignores the simple fact that, in contravention of repeated rulings from the Supreme Court, all schools but religious ones may join the effort to provide for special-needs children.
Violating the First Amendment’s prohibition against religious discrimination is bad enough. To deploy such discrimination to prevent willing institutions to support the most vulnerable is unfathomable. Given the stakes, it is not surprising that this has become a national issue for the Jewish community, which all too often has found itself the target of religious discrimination. If the California Department of Education won’t abide by its constitutional obligations, then courts in Los Angeles or legislators in Sacramento must respond. A society is judged by its capacity to protect the vulnerable. California is currently failing this test.