Special ed prohibition
LAW | Jewish families sue California over its policy barring special ed funding at private religious schools
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Los Angeles residents Sarah and Ariel Perets want to send their 14-year-old son to an Orthodox Jewish school, as they did their other five children. They want him not only to be prepared for college but to learn the Torah, the first five books of the Old Testament and a basis for Jewish worship.
But because their son has autism, the Peretses had to enroll him in public school. A California law bars public funding for special education services at religious schools, and since the Perets family can’t afford to pay the out-of-pocket costs of $100 or more per hour of instruction, public school is the only option.
In March, lawyers for the Peretses—along with two other Jewish couples with special needs kids and two Orthodox Jewish schools—filed a lawsuit challenging the California law. They argue the law unconstitutionally discriminates against religious parents and religious schools by treating secular private schools more favorably than religious private schools.
Under the Individuals With Disabilities Education Act, the federal government provides funding to states to allow children with disabilities to receive a free public education, which can include special education at a private school. While California’s program allows placement of children in private schools, it excludes religious schools from participation by requiring that schools be nonsectarian—that is, not “owned, operated, controlled by, or formally affiliated with a religious group or sect.”
According to the legal complaint, the Peretses have struggled to ensure their son has received an education consistent with their Jewish beliefs and his special needs. Yet speech therapists in the public school are prohibited from administering therapy involving physical touch, a restriction that has slowed their son’s speech progress. And when his learning disabilities and behavioral issues caused him to fall behind in class, he was placed in a class with lower-functioning peers, where he has fallen further behind, his parents say.
In making their case, attorneys for the parents and schools cite several recent Supreme Court rulings that treat as constitutionally suspect any ban that excludes religious entities from generally available state benefits solely because of their religious character. In one, the 2017 ruling in Trinity Lutheran Church of Columbia, Inc. v. Comer, the court declared unconstitutional a Missouri policy that denied a church preschool and daycare facility a state grant provided to schools to purchase rubber playground surfaces from recycled tires.
And in last year’s Carson v. Makin, Chief Justice John Roberts wrote that a Maine program offering private-school tuition funds only to nonreligious schools constituted “discrimination against religion.”
Laura Wolk Slavis, a Becket Fund attorney involved in the Peretses’ case, said California’s law originated in the 1970s. She hopes the case will draw attention to the problematic rule and prompt legislators to rescind it.
“Every single day that this law is on the books, our clients are being harmed, because they can’t pursue the educational avenue that is right for their child,” said Slavis. “So now that the lawsuit exists, California politicians could do the right thing and acknowledge that this is an outmoded law, that it’s clearly unconstitutional.”
For the Peretses and the other families, that can’t come too soon. “These are school-aged children,” Slavis said. “Once your child finishes second grade, you’ll never get second grade back again.”
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