By Kristen Taketa
The San Diego Union-Tribune headline news online news
(The San Diego Union-Tribune) California has long had a hard ban preventing public school funding from going toward any sectarian instruction or sectarian schools.
But now families in at least two federal lawsuits in California, encouraged by a Supreme Court that has been friendly to many religious liberty cases, are challenging that prohibition, which they argue discriminates against religious families.
Article 9 of the California constitution forbids any public dollars from supporting any sectarian or denominational school, and it forbids any sectarian doctrine or instruction being taught in any public schools including charter schools, either directly or indirectly.
Despite that rule, families have found ways to get both public school funding and religious instruction, as the San Diego Union-Tribune reported last week.
They do so by home-schooling through certain independent-study charter schools, which give them thousands of dollars a year in funding for educational and enrichment services, and then simultaneously enrolling in religious hybrid instruction programs.
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However, these charter schools and religious programs acknowledge those charter funds still can’t be used for any religious program tuition or religious curriculum.
Three California Christian families are trying to change that with a case called Woolard v. Thurmond.
In October, the three families sued State Superintendent Tony Thurmond and their two independent study home-schooling charters — Blue Ridge Academy and Visions in Education — in federal court, saying they should be allowed to use their charter funding for religious instruction and curricula.
And earlier last year, three California Jewish families and two Jewish schools who also want public school funding for religious instruction sued the state education department, Thurmond and Los Angeles Unified in district court. That case was dismissed last year but is being appealed.
That lawsuit, Loffman v. California Department of Education, is not about charter schools. Rather, it’s about the private schools that California pays to educate students with serious disabilities.
When a school district can’t provide the kind of special education services a student needs, it will pay to have them attend a private school that can — sometimes even out of state.
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But because of California’s constitutional rule, districts won’t pay for students to attend a religious special education school, even if the religious school would provide the best special education services for the student, said plaintiffs’ attorney Eric Rassbach. His firm has also pursued other such high-profile cases, including the Supreme Court case that let employers deny health coverage of contraception based on their religious beliefs.
The central argument being made in both cases is this: If California chooses to provide a generally available public benefit, whether charter funds or special education, it cannot discriminate against families by restricting their use of the benefit on the basis of religion.
The plaintiffs in both cases argue these restrictions violate their free exercise rights under the First Amendment; the Loffman plaintiffs also argue it violates the equal protection clause of the Fourteenth Amendment.
“The Supreme Court has had several recent cases where they’ve said that if a state offers a benefit, they can’t discriminate against people who use that benefit just because they’re religious,” said Justin Butterfield, an attorney for the Woolard plaintiffs and part of the national law group First Liberty Institute. The firm has also pursued Supreme Court cases over tuition payments for religious schools in Maine and a public school football coach disciplined after praying with students before and after games.
“My hope is that when California offers a program like this, that they will let the families select the curriculum that works best for them, whether that’s secular or religious,” Butterfield said.
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The California Department of Education declined to comment on the Woolard or Loffman cases.
The state retains authority over what curriculum can be used in public schools, state attorneys said in Woolard briefings, even in independent study charter schools where families are home-schooling. And state laws require that curriculum be nonsectarian.
In briefings for Woolard, attorneys for the state noted that the Supreme Court has held that states can provide solely secular education in public schools, and that families have the choice to get a religious education through private means, rather than through public school.
In Loffman, the state has argued that families of students with disabilities can enroll at private schools, including religious schools, and still get publicly funded special education services. It says the nonsectarian requirement doesn’t bar the plaintiffs from getting the public benefit, and therefore they can’t prove their free exercise rights are being burdened.
State attorneys also argued that school districts’ legal obligation to provide special education does not have to account for families’ desire for religious instruction.
William Koski, a professor at Stanford Law School and director of the school’s Youth and Education Law Project, thinks these cases stand a better chance of success than they would have in past years because the current Supreme Court has shown it is friendly to such arguments.
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Most notably, two years ago, the Supreme Court majority decided in Carson v. Makin that it was discriminatory for Maine to exclude religious schools from its family tuition-assistance program solely because of the schools’ religious nature. That ruling drew on the court’s opinions in two other recent cases, known as Trinity Lutheran and Espinoza, that similarly supported making public benefits available to religious organizations.
The majority said in Carson that when a neutral benefit program doles out funds to religious organizations through the independent choices of private individuals receiving the benefit — rather than choices made by the state — it does not violate the First Amendment’s establishment clause.
Because of the Carson decision, Koski said, legal organizations around the country are increasingly challenging states’ Blaine amendments — the state constitutional provisions preventing public funding from going to religious schools.
He said the Supreme Court’s recent decisions have been narrow but are building on each other and adding to a growing body of law supporting what their advocates say is religious liberty.
In the Loffman case, which a district judge dismissed last August, the Ninth Circuit Court of Appeals heard arguments earlier this month.
The Woolard case is awaiting a district court judge’s decision on the state’s motion to dismiss.
Attorneys for plaintiffs in both have said they are prepared to ask the Supreme Court to take up the cases if necessary.
©2024 The San Diego Union-Tribune. Visit sandiegouniontribune.com. Distributed by Tribune Content Agency, LLC.
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