In a California federal court, three Jewish families and two Jewish day schools are suing state and local educational authorities over a state law that bars funds earmarked for education for the disabled from being directed to religious private schools. Michael A. Helfand believes they have a strong case:
Under the federal Individuals with Disabilities and Education Act (IDEA), states receive federal funds to support students with disabilities. To remain eligible for those funds, states must establish rules to ensure that every special-needs child receives a free and publicly funded education. Most of the time, states satisfy this obligation through the public school system, serving children with varying learning needs.
The problem, however, is that public schools sometimes lack the resources, infrastructure, and expertise to meet the needs of some special-needs children. In California, under such circumstances, school districts partner with state-certified private schools. The process for certification is relatively intuitive, with nearly all the requirements related to the ability of the school to serve special-needs children. But one stands out: a school must be both nonpublic and nonsectarian.
[According to recent Supreme Court decisions], failure to treat religious institutions neutrally constitutes a form of religious discrimination prohibited by the First Amendment. . . . Violating the First Amendment’s prohibition against religious discrimination is bad enough. To deploy such discrimination to prevent willing institutions from supporting the most vulnerable is unfathomable.