In accordance with state law, the California government sometimes pays private schools to educate children with disabilities whose particular needs cannot be readily met by the public schools—so long as those private institutions have no religious affiliation. Such a qualification, argue Maury Litwack and Michael A. Helfand, violates the Supreme Court’s jurisprudence of the last six years. So too claim two Jewish schools and three Jewish families who challenged the law’s constitutionality in a federal district court, which recently ruled in favor of the schools. Litwack and Helfand criticize the decision:
The state outlines, in its laws, the various requirements regarding the educational quality and content a school must provide in order to become state-certified. There is no reason to assume, by definition, that religious schools cannot provide [appropriate] education. If other private schools can do so, religious schools should be given the same opportunity. Failing to do so, regardless of how it is described, is just another way to practice religious discrimination. Moreover, the government cannot circumvent this constitutional violation by simply saying it has the right to select which schools to contract with.
Indeed, the Supreme Court—in a case curiously omitted in the federal court’s opinion—explicitly rejected this argument in a 2021 decision. Requiring that schools not be religious in order to qualify for government contracts and student referrals is, again, just another form of religious discrimination.
Most disturbing are the consequences of this discrimination. As the court recognized, some of the plaintiff parents have alleged that their inability to send their special-needs children to a religious, state-certified school—one that can provide all the pedagogical benefits afforded by any other private school—has meant that the students’ progress is impeded because of their absences for religious holidays.
Even worse, the public schools continue to serve the unwitting children non-kosher food even as the parents have reiterated their religious objections to teachers. And maybe worst of all is the continued insinuation of California’s law that religious schools, willing and able to assist these students with disabilities, are somehow not worthy of joining the effort to provide special-needs children with an environment geared to helping them reach their potential.