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Jewish parents challenge ban on special education funds

California prevents accessing public funds for special education at religious private schools
Jewish Tunisian schoolboys study in the El-Hara Jewish school in the village of Hara Kebira where takes place the Ghriba pilgrimage marking the end of Passover on April 26, 2013 near the Tunisian city of Djerba

Jewish Tunisian schoolboys study in the El-Hara Jewish school in the village of Hara Kebira where takes place the Ghriba pilgrimage marking the end of Passover on April 26, 2013 near the Tunisian city of Djerba. (Photo: AFP)

Published: March 23, 2023 05:35 AM GMT

A group of Jewish parents and schools filed a lawsuit in March challenging a California law that prohibits the use of special education funding for students to attend religious schools.

In Loffman v. California Department of Education, filed in the U.S. District Court for the Central District of California, three couples said they want to educate their children with special needs at schools that operate in accordance with their Orthodox Jewish faith.

But they say California prevents them from accessing public funds for special education at religious private schools while the state permits the use of those funds at secular private schools.

Federal law titled the Individuals with Disabilities Education Act (IDEA) grants funding for children with disabilities to receive a free public education appropriate for their needs. That funding can be tailored to their needs, providing for things like staff training or assistive technology, or occupational therapy. The program set forth by IDEA provides this funding to states, and permits those funds to be used in private schools when public schools cannot meet the needs of the student with disabilities.

Becket, a public interest law firm specializing in religious liberty issues, said in a media release that other states place children with disabilities in both secular and religious private schools, "depending on the best fit for each individual child." But it said California excludes religious schools from participation while granting funds to secular private schools.

"Since parents often cannot afford to pay for disability services themselves, California forces them to choose between accessing those services and giving their children a Jewish education," the lawsuit stated.

Laura Wolk Slavis, counsel at Becket, which is representing the plaintiffs, told OSV News that IDEA sets forth that disabled students must receive a free and appropriate public education and that "most times, this will be provided in public school."

"But if the public school, for any number of reasons cannot provide that, the funds can be redirected to a private school," Slavis said. "And that's it."

Slavis said IDEA itself permits the redirection of funds to private schools, but California implemented its own restrictions requiring those schools to be nonsectarian. Orthodox Jewish families face a "particular problem" with educating their children in public schools, she said, citing a calendar that does not accommodate their religious holidays.

"There's a problem where the student is not receiving services, special education services, during times when the public school is not in session -- they're also not receiving services anytime they are not attending school because they're observing religious holidays. If the child were in an orthodox school, they would only be missing the days pertaining to the religious holidays."

Slavis said observing kosher dietary restrictions as per their faith may present challenges for nonverbal children who "might not be able to communicate their needs surrounding kosher foods in the public school."

"So the Orthodox Jewish community faces unique challenges among religious families, where this restriction is particularly problematic," she said.

A spokesperson for the California Department of Education told OSV News that the department cannot comment on pending civil litigation.

Nicole Stelle Garnett, a professor of law at the University of Notre Dame, told OSV News that it is "pretty clear" that the California provision distinguishing between sectarian and nonsectarian private schools' eligibility for the funding is unconstitutional. The federal law, she said, permits the use of the funds at religious private schools, including Catholic schools.

"This particular lawsuit is cut and dry in my view," Garnett said. "The Supreme Court has spoken clearly about this -- states cannot discriminate against religious providers when they extend benefits to private providers. That's in the education context, in the social services context, all of it."

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