Orthodox Jewish Families in LA Fight for Special Needs Education in Religious Schools
Orthodox Jewish families residing in areas served by the Los Angeles Unified School District (LAUSD) and two schools in California recently filed an interesting lawsuit. The families all have school-aged children and say that their faith compels them to enroll their children in Orthodox Jewish religious schools to fulfill their religious duty to transmit Jewish beliefs and practices to their children. On top of that, each family has a child with a diagnosed disability.
Fedora Nick and Morris Taxon are the parents of 14-year-old K.T., who has a form of autism that has resulted in pronounced academic deficiencies. K.T. attends a public charter school in Los Angeles due to the disability services and financial resources available. The Taxons face challenges related to K.T.'s faith, including extra absences for religious holidays and maintaining a kosher diet.
Sarah and Ariel Perets’s 14-year-old son, N.P., has been diagnosed with autism and an intellectual disability. This has resulted in speech delays, behavioral issues, and learning disabilities. N.P. attends an LAUSD public school, where his parents have encountered issues with school staff regarding the observance of Jewish holy days and have faced challenges with non-kosher meals being provided to N.P. The Perets believe that smaller class sizes in private schools would better meet N.P.'s needs.
Chaya and Jonathan Loffman have a 4-year-old son, M.L., who has been diagnosed with "high-functioning autism." The Loffmans send their non-disabled children to Orthodox Jewish private schools. At the time of the lawsuit, M.L. had been enrolled in Maor Academy, an Orthodox Jewish learning center that supports students with disabilities. However, the Loffman family cannot afford the cost of M.L.'s speech therapy at school, which they have been forced to discontinue.
LA Orthodox Schools
The parents wish for their children to receive education in an Orthodox Jewish setting while also receiving the full spectrum of disability services available through public funding. But is that even possible? Are there schools out there that meet both of these requirements? In a city as diverse as LA, there’s certainly no shortage of religious institutions.
Take, for instance, Jean & Jerry Friedman Shalhevet High School, which offers a co-educational, Modern Orthodox education with both Judaic and college prep studies. The school aims to promote Jewish heritage values, stimulate Torah learning, and foster a commitment to the State of Israel. Similarly, Samuel A. Fryer Yavneh Hebrew Academy provides a rigorous Modern Orthodox education alongside secular studies, aiming to instill a passion for Torah, learning, hard work, and community involvement in its students.
These schools clearly check the religious and cultural boxes that Orthodox Jewish parents often require for their kids, but what about the requirements of special-needs students?
Major Resources Required
Yavneh and Shalhevet claim that they would like to serve students with disabilities or special needs, but they don’t have the resources. Yavneh, for instance, claims that it strives to offer testing accommodations, small-group learning settings, behavioral specialists, and assistive technology. However, it says it’s limited by its resources and cannot accommodate all students with disabilities, particularly those with more complex needs.
It goes without saying that providing the proper resources for special-needs students can be expensive for schools. This is due to a number of factors, including the need for specialized equipment, materials, and technology. Many special-needs students require one-on-one attention from trained professionals, such as special education teachers, speech therapists, or occupational therapists, which increases personnel costs. Individualized Education Programs (IEPs) often necessitate smaller class sizes or separate learning environments, which can strain a school's budget and resources.
Adaptive technologies, like assistive communication devices or specialized computer software, can be costly to purchase and maintain. Additionally, schools may need to modify their physical spaces to accommodate students with mobility issues, further adding to expenses. Moreover, ongoing professional development for staff to stay current with best practices in special education contributes to the overall cost. These examples aren’t really optional or a moral choice — some of them are legal requirements under laws such as the Individuals with Disabilities Education Act (IDEA).
Given the significant expenses, how can a school that doesn’t already have such resources in place get to a place where it can provide for special-needs students?
Public Funding
It usually happens from government money. Schools can potentially receive public funding to provide services for students with disabilities. For public schools, it’s a lot more straightforward, but for nonpublic schools (such as Yavneh and Shalhevet), it’s trickier.
Under IDEA, states can contract with nonpublic schools to provide students with disabilities a "free appropriate public education." As such, Yavneh and Shalhevet sought the ability to qualify as a certified nonpublic school (NPS) to provide a distinctively Orthodox Jewish education to children with disabilities and access public funds for this purpose.
But there are often specific requirements and limitations involved, depending on the state. In California, these nonpublic schools must be certified as "nonpublic, nonsectarian schools" (NPSs) to be eligible for such contracts and funding. Referred to as the “nonsectarian requirement,” the law requires that these schools must not be affiliated with any religious group.
California’s Nonsectarian Requirement
This requirement is codified in the California Education Code, which stipulates that NPSs must be nonsectarian to be eligible for certification by the California Department of Education. The regulation defines a "nonsectarian" entity as one that is not owned, operated, controlled by, or formally affiliated with a religious group or sect, regardless of the nature of its educational program or the primary purpose of the facility. Additionally, the entity's articles of incorporation or bylaws must ensure that its assets do not benefit a religious group.
The point is basically to ensure that public funds are not used to support religious instruction--in alignment with federal regulations that prohibit the use of public funds for religious worship, instruction, or proselytization. The regulations further stipulate that any religious activities conducted by a recipient of federal funds must be separate in time or location from the publicly funded services, and participation in such activities must be voluntary.
The nonsectarian requirement serves as a barrier for religiously affiliated schools, preventing them from participating in the state's NPS certification process. This means that schools with religious affiliations cannot enter into contracts with local educational agencies to provide special education services funded by the state.
Parents and Schools Join in Suit
Yavneh and Shalhevet claimed that they desired to qualify to provide a religious education to children with disabilities with the benefit of IDEA funding. Because of the requirement against them, they joined in on a lawsuit against the California Department of Education and the Los Angeles Unified School District, who are responsible for enforcing the nonsectarian requirement.
The families also joined in the lawsuit. Together, the group of parent and school plaintiffs challenged the state’s nonsectarian requirement under the Free Exercise and Equal Protection clause of the U.S. Constitution. They argued that the requirement unconstitutionally burdens their right to freely exercise their religion by preventing them from advocating for their children to be placed in religiously affiliated nonpublic schools.
The plaintiffs asked a federal district court to prohibit the state authorities from enforcing California's nonsectarian requirement for nonpublic schools. They sought a preliminary injunction to allow religious schools to qualify for state certification and access public funding, enabling them to advocate for their children's placement in religiously affiliated schools that align with their faith.
9th Circuit Brings Hope to Parents
The case was dismissed by the district court and made its way to the Ninth Circuit Court of Appeals. The judges just handed down a mixed ruling, addressing various standing issues and even some of the merits.
One issue was that the schools joining the lawsuit didn’t actually apply for the certification and get rejected — they were working on the theory that they knew they would have gotten rejected if they were to apply. For this reason, the court found that neither of them had standing. The court said that they would need to show that they were even capable of meeting the specialized requirements necessary to serve in the NPS role, so that they could apply for certification if the nonsectarian requirement were lifted.
But for purposes of the lawsuit, it didn’t really matter that the school plaintiffs got kicked out on standing ground; the parents essentially brought the same claim. On the merits, the Ninth Circuit concluded that the nonsectarian requirement burdens the parent plaintiffs’ religious exercise rights and is not neutral to religion, thus triggering strict scrutiny. The court determined that the State failed to demonstrate that the requirement satisfies strict scrutiny, as it was not narrowly tailored to serve a compelling interest. “We conclude that the statute on its face burdens the free exercise rights of parents,” the judges wrote.
The case was kicked back down to the trial court, which will again have to consider the requested preliminary injunction and grapple with the free exercise and equal protection claims. Although the state of California could still appeal the decision to the U.S. Supreme Court, the Ninth Circuit’s ruling opens the possibility of a future major win for religious parents with special needs children.
Related Resources:
- Private Special Education and Reimbursement FAQ (FindLaw's Learn About the Law)
- The Roles of Federal and State Governments in Education (FindLaw's Learn About the Law)
- Students' Rights at School (FindLaw's Law and Daily Life)
