The Ninth Circuit upholds parental rights in religious education

The Ninth Circuit, in Loffman v. California Department of Education unanimously handed down a strong rebuke to the California Department of Education and Los Angeles Unified School District in a dispute over parental free exercise rights to direct the religious education of their children.

Reversing an earlier order to the contrary, the court reinstated the plaintiffs’ request to enjoin California officials from enforcing a ban against permitting parents of children with disabilities to send them to “sectarian” schools because state law only allows public funds to cover all costs in “nonsectarian non-public schools.”

In Loffman the lead plaintiffs unsuccessfully challenged a California law preventing faith-based schools from receiving public funding for the special education needs of their son with autism under the Individuals with Disabilities Act (IDEA)—even if their curricula are secular. The Loffmans were joined by officials at two Orthodox Jewish schools and three Orthodox Jewish families with children who are autistic. The suit claimed that officials violated the IDEA along with their First Amendment rights to the free exercise of religion and Fourteenth Amendment rights equal protection by preventing the parents from sending their children to Orthodox Jewish schools solely due to their religious affiliations.

A federal trial court rejected the constitutional claims of the named parents and school officials as lacking standing, the ability to file suit because they failed to prove that they suffered a legal injury. On appeal, the Ninth Circuit affirmed that the Loffmans lacked standing due to their inability to show that the nonsectarian requirement violated their son’s rights because he never attended a public school or had an Individualized Education Program under the IDEA. The court also upheld the dismissal of the claims from the school officials because they never claimed their schools could qualify as “nonpublic nonsectarian schools.”

Still, Loffman is a triumph for religious freedom as the court reinstated the key charges in the request to enjoin officials from enforcing the statute because the other parents had standing.

Turning to the free exercise claim, the Ninth Circuit relied on three recent Supreme Court cases (highlighted below) in which it ruled that public officials cannot deny aid to faith-based institutions and individuals solely because of their religions. The court admonished California officials for disqualifying schools that “are equally or better qualified than secular ones to provide special education and related services…solely because they are ‘owned, operated, controlled by, or formally affiliated with a religious group or sect,’” thereby violating their free exercise rights.

In its free exercise analysis, the court acknowledged that the plaintiffs plausibly alleged “that a government entity has burdened [their] sincere religious practice pursuant to a policy that is not ‘neutral’ or ‘generally applicable,’” Applying strict scrutiny, the most stringent type of constitutional analysis, the court found that public officials failed to prove that their actions were narrowly tailored to achieve their purported goal of neutrality Moreover, without resolving whether state officials had a compelling interest in its nonsectarian mandate, the court declared that “we easily conclude that the nonsectarian requirement fails the neutrality test.”

Rounding out its judgment, the Ninth Circuit reinstated the free exercise and equal protection claims of the lead plaintiffs without having reviewed the latter because the trial court dismissed it for being too closely related to the former. The panel returned the case to the trial court to consider the viability of these allegations anew while vacating the denial of the request to enjoin the statute’s enforcement.

Loffman is important for two reasons.

First, the Ninth Circuit followed Supreme Court precedent in citing its three recent ground-breaking cases in which Chief Justice Roberts authored the opinions expanding the boundaries of state aid to children and parents of faith under the Free Exercise Clause. The panel started with 2017’s Trinity Lutheran Church of Columbia v. Comer in which the Court explained that Missouri, and, by extension, other states, cannot single out faith-based institutions, and/or believers, by denying them generally available benefits simply because they are religious. Roberts emphasized that “the exclusion of Trinity Lutheran Church from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand.”

Three years later, in Espinoza v. Montana Department of Revenue, the Supreme Court invalidated a state constitutional ban preventing parents who wished to send their children to faith-based schools from participating in a tax credit program allowing contributions to student scholarship organizations. The Court rejected the provision as impermissibly discriminating based on religion because it lacked a compelling interest satisfying strict scrutiny analysis.

Most recently, in 2022’s Carson v. Makin, the Supreme Court invalidated Maine’s statutory “nonsectarian” requirement in its program providing tuition assistance for parents living in districts lacking their own secondary schools. The Court struck down the statute excluding faith-based schools as violating the Free Exercise Clause because it was neither neutral toward religion nor did it afford parents the opportunity to send their children to the schools of their choice. On remand, the federal trial court decided that because the nonsectarian requirement inflicted an irreparable injury on the parents challenging it, they were entitled to a permanent injunction against its enforcement.

Secondly, the Ninth Circuit suggested that California’s legislature plus its state and local school boards should focus on the best interests of children and their families rather than their own ideological views. The court essentially directed public officials to consider whether the faith-based schools in which the plaintiffs sought to enroll their children could meet students’ special educational needs rather than deny them access solely due to their religious beliefs. The Ninth Circuit, at the heart of its rationale, made it clear that public officials failed to justify the burden they placed on the free exercise rights of the parents by forcing them to choose whether their children would have to attend public schools to receive their needed special education programming or whether they could be educated in the Orthodox Jewish settings they preferred. This is a draconian choice no parent should have to make.

A related aspect of Loffman is the not so thinly veiled anti-religious prejudice in California law combined with public officials and the trial judge willfully having ignored Supreme Court precedent that institutions and persons cannot be denied generally available aid due to their beliefs. Hopefully, public educational officials will recognize that the needs of students, particularly those with disabilities, and the rights of their parents to send their children to the faith-based schools they determine are best for them, must outweigh their supposedly constitutionally grounded opposition to their religious affiliations.

Anything less than upholding parents’ fundamental right to direct the religious upbringing of their children is harmful in two ways.

First, allowing public educational officials to override parental choices undercuts the unique and sacred bond they share with their children to ensure that they receive the schooling they deem best.

Second, forbidding parents from sending their children to the faith-based schools of their choice would stand the fundamental First Amendment right to the free exercise of religion on its ear by ignoring clear Supreme Court guidance banning such religious discrimination.

Reiterating Chief Justice Roberts’ pithy observation, because religious discrimination is odious to our Constitution, it cannot be allowed.