In October 2024, the Ninth Circuit Court of Appeals issued a decision on a motion to dismiss in the case of Loffman v. California Department of Education, a lawsuit filed by three families (parent plaintiffs) and two Orthodox Jewish schools (school plaintiffs) who challenged the state’s requirement that nonpublic schools (NPSs) be nonsectarian. The court found in favor of the parents, whose claims had been dismissed by the lower court, as to some of the claims and returned the case to the lower NPSs are private schools that, through a contract with a local educational agency, enroll students whose Individualized Education Program (IEP) requires such placement. All NPSs must receive certification from the State Superintendent of Public Instruction to operate as an NPS. NPSs only serve special education students and provide a specific placement option that only a public school can determine is necessary for a special education student. Due to the Individuals with Disabilities in Education Act’s (IDEA) requirement that students be educa ted in the least restrictive environment (LRE) and be mainstreamed with general education students as much as possible, students may only be placed at an NPS if the severity of their disability requires that placement, and if the IEP team determines that there is no other suitable placement for the student. Indeed, federal IDEA regulations require that the student must be placed at the school they would have attended if they were nondisabled, unless a different placement like an NPS is deemed necessary by the public school. NPSs must contract with any LEA that places students there and the LEA pays the NPS for its services. Any school that applies to be certified as an NPS must be “nonsectarian:” that is, it cannot be owned, operated by or controlled by any religious entity.

The families and schools alleged that the nonsectarian requirement for NPSs violated their constitutional rights to free expression because parents could not advocate for placement for their special education-eligible students in a Jewish Orthodox nonpublic school as no such school could legally exist. The families did not allege that their students are eligible for placement in an NPS, including that an NPS was the least restrictive environment for their students, or that any IEP team had recommended such a placement.

In its opinion, the court analyzed a motion filed by the California Department of Education to dismiss the case. Importantly, a motion to dismiss is not a trial, nor does it decide who “wins” the case. However, it provides important guidance on legal issues that will define the case moving forward and can act as precedent in other cases. Here, the defendants made two primary claims in their motion to dismiss. First, they claimed that the families and Orthodox Jewish schools who filed the lawsuit did not have “standing” to sue because the nonsectarian requirement did not harm them in a way that could be redressed by the court. Second, and more importantly, the defendants claimed that the nonsectarian requirement did not violate the families’ religious rights.

As to standing, the court affirmed the trial court’s ruling that the school plaintiffs lacked standing because, although the nonsectarian requirement is a discriminatory barrier, the school plaintiffs did not show the requirement harmed them since there was no indication they were ready to serve an NPS. Similarly, the court found that one set of parents (the Loffmans) lacked standing because they failed to allege their child had ever been evaluated for special education services and therefore could not claim that the nonsectarian requirement had any meaningful effect on their child’s educational placement. However, the court found that the another set of parents (the Peretses) had standing because their students qualified for special education services and plausible placement at an NPS, and alleged an injury that could be redressed by the court because “removing the nonsectarian requirement would likely redress Parent Plaintiffs’ injury at least in part, for Orthodox Jewish entities could [] apply for NPS certification and obtain funds for the disability-related services they would provide.”

Next, the court considered whether the families had adequately alleged a violation of their free-exercise rights. This analysis first requires the plaintiffs to show that the free exercise of their religion was burdened by a policy that is neither neutral nor generally applicable. The court found that, because the nonsectarian requirement singles out religious schools and limits their ability to apply for certification as an NPS, it is neither neutral nor generally applicable. (The court did not indicate that there were, indeed, private religious schools that were capable of obtaining NPS certification but had not been able to because of the requirement that NPSs be nonsectarian.) Additionally, the court found the nonsectarian requirement law impermissibly burdens free exercise, explaining that such a burden can include imposing conditions on the receipt or denial of a benefit or privilege, such that a religious entity or individual is forced to choose between receipt of the benefit and practicing their religion. The court further explained that the families in this case are faced with such a choice, since they cannot request a religiously affiliated NPS due to the nonsectarian requirement. In other words, the choice between public, nonsectarian special education services or private religious instruction, but not both, created a constitutional issue.

Because the law is not neutral and burdens free exercise, the defendants were required to demonstrate that the nonsectarian requirement survives “strict scrutiny,” a two-part test that requires the challenged law to be narrowly tailored to a compelling interest. The court found the nonsectarian requirement could not survive strict scrutiny because, whether the interest at stake was “compelling” or not, the nonsectarian requirement’s objective could have been reached in less restrictive ways.

Absent from the court’s analysis was the fact that there was no evidence that the students met the requirements for placement in an NPS (i.e., that no other program was available due to the nature of their disabilities and that an NPS was the least restrictive environment). Rather, the lack of ability of a parent of a special education student to advocate for a sectarian NPS, because the law does not allow their creation, was sufficient to state a claim here. Thus, even somewhat speculative harms can be sufficient to state a claim for Constitutional violations. Based on this decision, the case will be returned to the lower court for full consideration of the free exercise and equal protection claims. If the plaintiffs are successful on their claims, the state may have to begin to allow religiously affiliated schools to apply to be NPSs and schools may have to consider placement of IEP students into those religiously affiliated schools and provide the necessary oversight of the services provided.