The federal Individuals with Disabilities Education Act (IDEA) offers public funds to states that commit to making a free education available to all students with disabilities. Full benefits are available under IDEA if the student attends either a public school or a private school that is certified by a state or local education agency. Under the California statute implementing IDEA, only private schools that are “nonsectarian” are eligible for certification and participation in this program. Several Orthodox Jewish parents who have children with disabilities, along with two Orthodox Jewish schools, filed a lawsuit challenging California’s nonsectarian requirement and seeking injunctive relief. The U.S. District Court for the Central District of California denied their motion for a preliminary injunction. The case is now before the U.S. Court of Appeals for the Ninth Circuit.
Sidley represented Professor Garnett as amicus curiae in the appeal and filed a brief urging the Ninth Circuit to reverse the district court’s decision because it is inconsistent with recent Supreme Court jurisprudence on the Free Exercise Clause. Under Trinity Lutheran Church of Columbia v. Comer (2017), Espinoza v. Montana Department of Revenue (2020), and Carson v. Makin (2022), the government must, absent a compelling state interest, remain neutral toward religion and may not exclude religious individuals and organizations from government programs solely because they are religious. Among other things, Sidley’s brief argued that California’s nonsectarian requirement “is the very definition of a lack of neutrality” because the “sole purpose and effect of such a requirement is to single out religious institutions for disfavor.” Accordingly, the brief argued, the “nonsectarian” requirement must be subjected to strict scrutiny, which it cannot survive.
The Sidley team working on behalf of Professor Garnett included Dino LaVerghetta and Aaron Haviland, both from the Washington, D.C. office.