The Lawletter Vol 40 No 9
One of the bedrock principles of American jurisprudence is the freedom of religion guaranteed by the First Amendment. See U.S. Const. amend. I. More recently, the law had mandated that disabled students are to receive certain minimum educational benefits at public expense. See 20 U.S.C. §§ 1400–1491o (Individuals with Disabilities Education Act ("IDEA")); 29 U.S.C. § 794 (Rehabilitation Act of 1973 ("RA")). At times, these two distinct rights may overlap and conflict with one another. As illustrated by two fairly recent cases, however, public schools need not accommodate the student's (or the parents') religious beliefs in providing a free appropriate public education ("FAPE") as required by the IDEA and the RA.
In M.L. ex rel. Leiman v. Starr, No. PWG-14-1679, 2015 WL 4639569 (D. Md. filed Aug. 3, 2015), appeal filed, No. 15-1977 (4th Cir. Aug. 27, 2015), the parents of a child with an intellectual disability brought suit against Maryland's Montgomery County Board of Education, alleging that the Board had failed to provide the student with a FAPE as required by the IDEA. The student is part of the Orthodox Jewish community, and, thus, it is very important to his parents that he learn the rules and customs of Orthodox Jewish life. Consequently, the parents sought an individualized education program ("IEP") that placed the student at a private school where the basics of Orthodox Jewish life are a part of the curriculum. Instead, the school district proposed an IEP that placed the student at a public school that did not include instruction on Orthodox Jewish life.
The U.S. District Court for the District of Maryland held that the IDEA does not require an IEP to be so personalized that it incorporates the student's and/or the parents' religious and/or cultural beliefs.
Try as the Plaintiffs do to distinguish their misgivings with the IEP from its failure to provide for instruction geared to the Student's religious and cultural identity as an Orthodox Jew, that is the crux of this dispute: Is the education proposed in the IEP a FAPE when it does not account for the Student's individual religious and cultural needs? The short answer is yes. Simply put, a FAPE, to which a child with a disability is entitled, is the education that any student without disabilities would receive. The IEP is "individualized" or "personalized" to ensure that a child can access that education, considering his or her individual or personal cognitive and developmental capabilities and needs. In this regard, Plaintiffs have pointed to no authority, nor have I found any, that expands the requirement of the IDEA that an IEP be "individualized" to the extent that it affords a qualified student with an educational program specifically tailored to the religious and cultural enclave in which the student lives.
Id. at *8 (citation omitted).
In D.L. ex rel. K.L. v. Baltimore City Board of School Commissioners, 706 F.3d 256 (4th Cir. 2013), the parents of a disabled student brought suit against the Baltimore City Board of School Commissioners ("BCBSC"), alleging that public school officials had violated the RA by not providing the student with educational services related to certain disorders when the student was enrolled exclusively in private religious school. The BCBSC determined that the student was eligible for services under the RA but informed the parents that the BCBSC could not provide such services unless the student were enrolled in one of its public schools. The BCBSC further informed the parents that because Maryland law did not permit simultaneous dual enrollment in a private and a public school, the student would have to withdraw from his private religious school and enroll in a local public school in order to obtain services under the RA.
In the ensuing litigation, the U.S. Court of Appeals for the Fourth Circuit agreed with the school district. The RA "and its implementing regulations prohibit discrimination on the basis of disability, not on the basis of school choice" such that "[p]ublic schools are only required to make a FAPE available on equal terms to all eligible children within their district." Id. at 260-61. Accordingly, the BCBSC is not required to "provide access to eligible individuals that opt out of the program by enrolling in private schools." Id. at 261. Furthermore, the court held that the BCBSC's prerequisite that private-school students cease enrollment in private religious institutions and enroll in public schools in order to access services under the Act did not violate either the Supremacy Clause or the Free Exercise Clause. Although the BCBSC's policy might increase the overall cost of this student's private education, it did not substantially infringe on his right to attend a private religious school. His right to a religious education did not extend to a right to demand that public schools accommodate his educational preferences. The BCBSC had legitimate financial, curricular, and administrative reasons to require that the student enroll exclusively in a public school in order to take advantage of services under the Act, and, therefore, his parents were required to shoulder the full cost of their decision to exercise their religious beliefs by keeping him enrolled in private school, including the cost of services that the student needed in order to address his challenges.