As part of its efforts to implement the Individuals with Disabilities Education Act (IDEA), the State of California contracts with certain “nonpublic, nonsectarian schools” (NPSs) to provide free appropriate public education (FAPE) to students with disabilities under the IDEA. By statute, California requires that these NPSs are nonsectarian (i.e., non-religious). This exclusion effectively prevents religious schools from accessing both federal IDEA funding and state special education funding.
The plaintiffs, comprising Orthodox Jewish families (the Loffmans, Taxons, and Peretses) with children who have disabilities, along with religious schools in Los Angeles, filed suit against the California Department of Education, State Superintendent Tony Thurmond, the Los Angeles Unified School District (LAUSD), and Anthony Aguilar, LAUSD’s Chief of Special Education, Equity, and Access.
At the trial court level, the plaintiffs sought a preliminary injunction against enforcing the nonsectarian requirement. The trial court dismissed the case and denied the injunction. The plaintiffs appealed to the Ninth Circuit Court of Appeals.
On appeal, the plaintiffs argued that California’s exclusion of religious schools from NPS certification violated both the Free Exercise Clause of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment.
The defendants argued that the plaintiffs lacked standing to bring their claims. To establish standing, a plaintiff must show that (1) they have suffered or will likely suffer an injury in fact; (2) that the injury was caused or will be caused by the defendant; and (3) the injury would be redressed by the requested judicial relief.
The Court of Appeals agreed with the defendants in part and ruled that the schools and Loffman family lacked standing.
For the schools, the Court of Appeals found that the schools failed to demonstrate an injury in fact because, while the schools argued they faced a discriminatory barrier in the NPS certification process, the Court determined they did not sufficiently show they would apply for certification if the nonsectarian requirement was removed. The schools did not provide evidence that they met other requirements for NPS certification or that they had concrete plans to seek certification.
The Court also found that the Loffmans failed to demonstrate an injury in fact. Their son M.L. was attending a private Orthodox Jewish learning center at the time of the lawsuit. The court determined that the Loffmans did not show they had concrete plans to enroll M.L. in a religious school that would seek NPS certification if the nonsectarian requirement was removed. The Loffmans’ alleged injury of having to discontinue M.L.’s speech therapy due to cost was not directly tied to the nonsectarian requirement for NPS certification, and therefore the Court found that the Loffmans lacked standing.
In contrast, the Court of Appeals found that the Peretses family had standing because they demonstrated a plausible injury. Their son N.P. was attending a public school, and they showed concrete plans to enroll him in a religious school if it could obtain NPS certification.
Therefore, the Court of Appeals affirmed the dismissal of the schools’ and Loffmans’ claims for lack of standing. The Court of Appeals did not consider the Taxon family’s standing because, having found that the Peretses had standing, that was sufficient to reach the merits of the case.
The Court of Appeals then considered the merits of the parents’ claims that the NPS certification requirements violated the Free Exercise Clause and the Equal Protection Clause.
To state a free exercise claim, plaintiffs must show that a government entity has burdened their sincere religious practice pursuant to a policy that is not neutral or generally applicable. Should the plaintiffs make such a showing, the burden shifts to the defendants to demonstrate that the challenged action survives strict scrutiny. Under the strict scrutiny standard, a law restrictive of religious practice must advance interests of the highest order and must be narrowly tailored in pursuit of those interests.
Applying that framework, the Court of Appeals concluded that the parents’ sincere religious practice was burdened. It reasoned that religious entities that are equally or better qualified than secular ones to provide special education and related services are disqualified under California’s law 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 plaintiffs, who would otherwise advocate for placement in religiously affiliated NPSs are unable to do so—solely because of the would-be NPSs’ religious affiliation. The Court of Appeals found that the California statute tends to coerce parents into acting contrary to their religious beliefs, and therefore there is a burden on their free exercise.
The Court of Appeals next determined that California’s policy of excluding religious schools from NPS certification was neither neutral toward religion nor generally applicable, as it specifically targeted religious schools for exclusion. This led the Court to conclude that strict scrutiny should apply to California’s policy.
Under strict scrutiny, the government must demonstrate that the law serves a compelling state interest and is narrowly tailored to achieve that interest. The Court of Appeals found that the State failed to meet this demanding standard. While the State argued that it had a compelling interest in maintaining neutrality towards religion, the Court was not convinced that this interest justified the broad exclusion of all religious schools from NPS certification.
Even if the Court had accepted the State’s asserted compelling interest, it concluded that the nonsectarian requirement was not narrowly tailored. The blanket exclusion of all religious schools from NPS certification was deemed overly broad and not the least restrictive means of achieving the state’s purported interest in neutrality. The Court noted that there might be less restrictive alternatives available, such as allowing religious schools to become certified NPSs while implementing safeguards to ensure that state funds are not used for religious instruction. This approach would be more in line with recent Supreme Court decisions that have emphasized equal treatment of religious and secular private schools in various contexts. In its analysis, the Court also considered the potential implications of recent Supreme Court decisions, such as Carson v. Makin and Espinoza v. Montana Department of Revenue, which have emphasized that excluding religious schools from generally available benefit programs can violate the Free Exercise Clause.
Based on this analysis, the Ninth Circuit concluded that the parent plaintiffs had plausibly alleged a violation of their Free Exercise rights. Given that the Court of Appeals had already found that the parent plaintiffs plausibly alleged a violation of their Free Exercise rights, it followed that the Equal Protection claims, which were based on the same underlying allegations of religious discrimination, should also be reconsidered.
The Court reversed the trial court’s dismissal of these claims and remanded the case for further proceedings, including consideration of whether a preliminary injunction should be granted in light of the Court of Appeal’s Free Exercise analysis.
Loffman v. Cal. Dep’t of Educ. (9th Cir. Oct. 28, 2024) 2024 U.S. App. LEXIS 27265.
Note: While the case is not yet resolved, it represents a significant development in the intersection of special education law, religious freedom, and private education. LCW will continue to monitor this case as it progresses, given its potential far-reaching implications for religious schools’ ability to serve students with disabilities and access public funding.