Ninth Circuit’s Remand to District Court Contemplates the Possible Endorsement of Special Education Placements in Nonpublic Religious Schools

12.24.2024

On October 28, 2024, the United States Court of Appeals for the Ninth Circuit partially reversed the dismissal of a case with instructions for the District Court to reconsider whether California state law violates the First and Fourteenth Amendments by requiring parents to choose between their faith and a free appropriate public education (FAPE). (Loffman v. California Dep't of Educ., 119 F.4th 1147 (9th Cir. 2024)).

The Individuals with Disabilities Education Act (IDEA) requires local educational agencies, such as school districts, to provide a continuum of service and placement options that meets the needs of students with disabilities in the least restrictive environment. California Education Code section 56365, subdivision (a), requires that this continuum of program options include nonpublic, nonsectarian schools, commonly referred to as NPSs, that meet specific statutory requirements. Notably, private schools applying for certification must be “a private, nonpublic school or agency that is not 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 and whose articles of incorporation and/or by-laws stipulate that the assets of such agency or corporation will not inure to the benefit of a religious group.” (Cal. Code. Regs. tit. 5, § 3001 subd. (p).) Because schools with religious affiliation cannot be certified by the California Department of Education (CDE) to operate as a NPS, IEP teams are currently prohibited from placing a child in a religious school via the child’s IEP when the student’s needs cannot be met on a comprehensive public-school campus.

California’s nonsectarian requirement for NPSs was called into question in August of 2023 when two Orthodox Jewish schools and three Orthodox Jewish families brought suit against CDE and the Los Angeles Unified School District (LAUSD) on behalf of two unrelated teenagers with autism. The students’ parents wanted their children to attend Orthodox Jewish schools and alleged that the State’s nonsectarian requirement for NPSs violated their rights under the Free Exercise and Equal Protection Clauses of the U.S. Constitution. They sought a preliminary injunction prohibiting the CDE and LAUSD from enforcing California’s nonsectarian requirement and appealed their case to the Ninth Circuit after the District Court had initially granted the CDE and LAUSD’s motions to dismiss such claims. On appeal, the Ninth Circuit noted that plaintiffs were not seeking relief under the IDEA, but rather the First and Fourteenth Amendments for not offering IDEA-funded placements in religious schools. There was no dispute that plaintiffs’ faith compelled them to send their children to Orthodox Jewish private schools, and the students’ parents argued that California Education Code section 56365(a) effectively required them to choose between their religious beliefs and a FAPE for their disabled children.

The First Amendment of the U.S. Constitution provides that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” The Ninth Circuit allowed the case to proceed on the grounds that one of the parent-plaintiffs had plausibly alleged that the nonsectarian requirement violated their rights under the Free Exercise clause because the State, in enacting such a requirement, allegedly burdened their freedom to practice religion pursuant to a policy that was neither “neutral [nor] generally applicable.” As such, the Court instructed that the burden should be shifted to CDE and LAUSD to show that the nonsectarian requirement could survive a strict scrutiny analysis, i.e., when there is potential government infringement on the freedom of religion, a law restricting religious practice must advance “interests of the highest order” and must be “narrowly tailored in pursuit of those interests.”

Unpersuaded by CDE and LAUSD’s arguments that California has a compelling interest in maintaining neutrality toward religion and that including religious schools on the list of certified NPSs would be a prohibited endorsement of religion, the Court reversed, in part, the lower court’s dismissal and remanded the case back to the District Court with instructions to rehear claims on the merits.

This case has potential for a significant shift in special education placements becoming available to students with disabilities via their IEP, should the defendant’s arguments, on remand, fail to overcome the constitutionally required strict scrutiny analysis. If plaintiffs prevail when the District Court rehears this matter, IEP teams may need to consider offering IEP placements in religious schools that otherwise qualify for certification as a NPS if students require placement in an alternative setting in order to receive a FAPE. We continue to monitor this case for further court action and will provide additional information of interest.

Should you have any questions concerning the topic of this alert, please do not hesitate to contact the authors or your usual counsel at AALRR for clarification and guidance.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR presentation does not create an attorney-client relationship. AALRR is not responsible for inadvertent errors that may occur in the publishing process. 

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