California's anti-Jewish education law needs to be thrown out

A group of Los Angeles Jewish parents, children and two schools were in court this week challenging a California law that explicitly bans religious schools from becoming state-certified special needs schools, all the while allowing other private schools the ability to apply for the same state-certification.

The consequences of this law have long been devastating, preventing the Jewish community from accessing the necessary funds to build and operate educational institutions that can meet the needs of its special-needs community.

But California’s unlawful exclusion has taken on greater urgency in recent months as allegations of rampant antisemitism have plagued California educational institutions from public schools to college campuses. Now, California’s rules put Jews in a damned-if-you-do, damned-if-you-don’t dilemma: You can’t have your own schools, and when you come to our schools, be prepared for an environment hostile to your Jewish identity and practices. California cannot allow this state of affairs to continue.

The core of the case against California, Loffman v. California Department of Education, is relatively straightforward. Under the Individuals with Disabilities Education Act, the federal government provides states with funds to support students with disabilities. But to remain eligible for those funds, each state must ensure that every child receives a “free appropriate public education.”

The problem with satisfying this requirement is that there are some children whose special needs cannot be met by the states' public schools. In such circumstances, the IDEA considers that states will place those special needs children — and, importantly, provide funds for tuition and disability-related services — in certified private schools that can meet the needs the state cannot. This is precisely what California does, with one exception: it bans religious schools from becoming certified special needs schools, even if they can satisfy all the relevant rules and meet the very needs the state cannot.

The impact of this discrimination has been two-fold. First, it has prevented religious schools, and, in turn, religious families, from annually accessing millions of dollars that could provide their special-needs children with an education to which they are lawfully entitled. Second, it has forced some of the parents in this case to keep their children in public schools that ignore their religious requirements. Allegations against the public schools include feeding the Jewish special needs children non-kosher food against the requests of the parents and accusing parents of neglecting their children because they kept them out of school for Jewish holidays.

On three occasions, the Supreme Court has emphasized that states cannot exclude religious institutions from government funding programs that are generally available to private schools. So, if California is willing to contract with private schools, it cannot exclude religious schools that are willing to follow all the same requirements.

California has tried every which way to re-describe its discriminatory exclusion, so as to extricate itself from its constitutional obligations. But even though a federal district court bought some of the state’s arguments this past August, the Supreme Court has repeatedly rejected these sorts of legal maneuvers.

Indeed, given the constitutional problems with California’s law, an avalanche of organizations has filed briefs supporting our Jewish parents, children and schools, including a friend-of-the-court brief filed by 22 other states, stating, “No matter how a government describes it, generally available funding cannot be withheld from schools just because they are religious.”

Amazingly, though, the picture has gotten even worse over the past six months. The war in Gaza has unleashed an explosion of antisemitic incidents across the country in public schools. Since October 7, the Department of Education has opened half-a-dozen investigations into California public school districts for antisemitism, including allegations of pervasive bullying and harassment. And these are only part of the wave of antisemitism investigations pending before the Department of Education, which also include allegations against many of California’s state-run universities.

In this way, it isn’t just that Jewish families are alleging that the public schools are ignoring their kosher needs and recasting Jewish holidays as forms of parental neglect; it is that their religious commitments are being ignored and twisted against a backdrop of antisemitic harassment and bullying.

Yet California persists. It excludes the Jewish community from vital programs necessary to build and operate special needs schools, and then refuses to do an adequate job integrating — or even protecting — Jewish children in public schools. In California, other communities have the luxury of either finding a place in the public school system, or when they can’t, operating their own schools in partnership with the state of California. For the Jewish community, California has chosen to provide neither.

California’s discriminatory policy is unlawful and shameful. And maybe once California’s Jews are allowed, like everyone else, to operate their own special-needs schools, the public schools will get a good look at what it means to provide an environment that their Jewish citizens, like all other citizens, deserve.

Michael Helfand is the Brenden Mann Foundation Chair in Law and Religion at Pepperdine Caruso School of Law. Florence Rogatz is a visiting professor at Yale Law School. Maury Litwack is CEO of Teach Coalition.