• A case recently decided by the Court of Appeals for the Ninth Circuit ruled that the government can’t withhold educational assistance to disabled children solely because the child is receiving a religious education.

• Following Supreme Court precedent, the court held that excluding religious schools from the grant program was unconstitutional discrimination against religion and a violation of religious freedom.

• Utah provides a model for respecting religious freedom by offering scholarship programs without religious discrimination for children with special needs in private schools.

​Can a government limit the assistance it provides to children with disabilities based on their family’s religious commitments? The obvious answer would seem to be no. But for a mix of reasons, states have struggled with this type of question. A series of U.S. Supreme Court decisions have provided important direction, and last month a panel of judges on the U.S. Court of Appeals for the Ninth Circuit finally gave the states a clear answer: No.

The case involved three Jewish children with disabilities. Their respective parents wanted to send them to schools “that not only will equip their children with the tools necessary to flourish, but also with an education structured around the Jewish tradition.” Two schools in Los Angeles were capable of meeting this need, providing “a premier education that seamlessly integrates their shared Jewish faith.”

Federal law provides funding to states to help children with disabilities which can be directed to public schools or private schools chosen by parents. California, however, only allows grants to private schools that are not religious. The parents of the three Jewish children challenged that requirement.

They were initially rebuffed by the trial court, while the appeals court landed on their side. The court of appeals concluded that the parents’ constitutional rights were infringed by California’s refusal to honor a requirement of their faith that their children be enrolled in Orthodox Jewish schools.

The appeals court ruling pointed to decisions of the U.S. Supreme Court that had invalidated state grant programs that were made available to all except religious schools or to parents who would have used the funds to send their children to religious schools. These decisions establish the rule that government violates the free exercise clause of the First Amendment when it singles out religious organizations or religious conduct for disfavored treatment solely on the basis of its religious motivations.

The Ninth Circuit determined, by unanimous decision, that the public benefit sought by the parents in this case was being denied in ways that violated the parents’ fundamental constitutional right of religious freedom.

That means the policy would be considered unconstitutional unless the state could show it had a compelling reason for violating the parents’ rights. The court held that the state had not even tried to offer such a reason. It rejected, as well, the idea that trying to avoid appearing to endorse religion was a valid justification for excluding religious schools from the grant program.

Interestingly, Utah provides scholarship assistance to children with special needs “wishing to attend private schools to meet their unique learning needs.” It does not impose any discriminatory restrictions on that assistance. Given the constitutional problems with California’s approach, Utah’s programs offer a model for other states.

Parents whose children need special educational resources because of a disability should not then be forced to forgo the religious resources that they also believe are critical to a child’s flourishing. It is heartening to see more federal courts recognizing this reality.