The Ninth Circuit Court of Appeals ruled last Monday that a lawsuit brought by parents against the CDE regarding non-public school placements could proceed despite being dismissed by the lower district court.  In Loffman v. California Department of Education, Orthodox Jewish parents sought to obtain public placement via the IEP process in Orthodox Jewish schools for their children with disabilities. 

In California, a student may be placed in a non-public school (NPS) through their IEP if the IEP team determines the student needs such a placement to receive a FAPE (free, appropriate public education).  An NPS is not necessarily the same as a private school; rather, an NPS is a school that is certified by CDE to serve students with disabilities. When a student is placed at an NPS through an IEP, the school district pays for the cost of tuition. 

Current California law prohibits sectarian schools for applying to become an NPS and, thus, from receiving funding for students placed there through IEPs. The Ninth Circuit held that this statute impermissibly burdened the parents’ right to freely exercise their religion by forcing them to choose between sending their children to schools that aligned with their religious practices and sending their children to an NPS that could provide them with FAPE because, under the law, sectarian schools cannot apply for NPS certification. 

As the Ninth Circuit noted, this ruling comes from a line of cases from the Supreme Court of the United States holding that excluding religious entities from public benefits, including access to public school funding vouchers, violates the Establishment Clause of the First Amendment.  The ruling sends the case back to the district court to reconsider its ruling dismissing the parents’ request for a preliminary injunction prohibiting the enforcement of the non-sectarian requirement in light of the Circuit Court’s decision. 

It is important to note that this decision does not change a school district’s obligation to place a child in a certified non-public school if the child requires that level of IEP placement. It does not require any IEP team to place a child in a non-certified private school, whether sectarian or not.

To read the Ninth Circuit’s decision, visit https://cdn.ca9.uscourts.gov/datastore/opinions/2024/10/28/23-55714.pdf.