In The Politics of Autism, I write about social services, special education, and the Individuals with Disabilities Education Act.
On May 19, 2025, in response to a Ninth Circuit decision, the California Department of Education (“CDE”) and the Los Angeles Unified School District agreed to permanent injunctions stating that they will no longer enforce the “nonsectarian requirement” set forth in the California Education Code for certification of nonpublic schools. This agreement means that the CDE will no longer require private entities to be “nonsectarian” to receive certification as a nonpublic school for placements of students with exceptional needs. Students with an Individualized Education Plan (“IEP”) may be directly placed in both religious and nonreligious private schools certified by the CDE as a nonpublic school at the school district’s expense.
This agreement follows the Ninth Circuit Court’s October 2024 decision in Loffman v. California Department of Education (2024) 119 F.4th 1147, in which two Orthodox Jewish schools and three Orthodox Jewish families challenged the nonsectarian requirement. The Plaintiffs in Loffman claimed that the nonsectarian requirement violated the Free Exercise Clause of the First Amendment to the United States Constitution. The United States District Court for the Central District of California dismissed the complaint. The Ninth Circuit reversed the dismissal and remanded the matter to the district court, but CDE chose to enter into an agreement with Plaintiffs instead of pursuing the case further.
In Loffman, the Plaintiffs argued, and the Ninth Circuit agreed, that they were being forced to choose between receiving the full benefits they were entitled to under the IDEA and their choice of education in an Orthodox Jewish setting. In its decision, the Ninth Circuit stated that nonsectarian requirement was not a neutral or generally applicable policy, because it singled out religious entities for different treatment. By placing burdens on sincere religious practice in this way, the policy was subject to strict scrutiny review, and could only be upheld if determined to be “narrowly tailored” to serve a compelling governmental interest.
The Ninth Circuit noted that the IDEA, a federal law, contemplates private placement at public expense in religious institutions, though any services provided with public funds must be “secular, neutral, and nonideological.” In contrast, the California Education Code is more restrictive than the federal law and required that private placement be in a nonsectarian institution to receive public funds. Because the federal law was less restrictive than California’s policy, the Ninth Circuit held that CDE failed to show that the nonsectarian requirement was narrowly tailored. In reaching the settlement referenced above, the CDE chose not to appeal the Ninth Circuit decision to the US Supreme Court, and stated that the Education Code requirement that nonpublic schools be nonsectarian was unconstitutional and would not be enforced.
The decision in Loffman was based in part on a series of U.S. Supreme Court decisions concerning the Free Exercise Clause, which support the principle that placing a condition on benefits or privileges based on religious affiliation penalizes the free exercise of religion. (Carson v. Makin (2022) 596 U.S. 767; Espinoza v. Mont. Dep’t of Rev. (2020) 591 U.S. 464; Trinity Lutheran Church of Columbia, Inc. v. Comer (2017) 582 U.S. 449.) However, Loffman stands in contrast with the U.S. Supreme Court’s May 22, 2025 ruling in Oklahoma Statewide Charter School Board v. Drummond, which also addressed questions raised by this series of cases.
In Drummond, the Court affirmed the lower ruling of the Oklahoma Supreme Court, which prohibited Oklahoma’s Charter School Board from entering a contract that would have used public funds to establish St. Isidore, a Catholic school, as part of the State’s public charter program. The U.S. Supreme Court was split 4-4 in issuing its decision, with Justice Barrett recusing herself. Therefore, it does not constitute nationwide binding precedent. The Court did not provide an opinion explaining its decision, and the decision was issued per curiam, without revealing how each Justice voted. That said, some of the reasoning behind the decision may be drawn from the Oklahoma Supreme Court’s ruling and the oral arguments before the U.S. Supreme Court.
In Loffman, the Ninth Circuit agreed with Plaintiffs’ argument that California’s nonsectarian requirement effectively forced the Plaintiffs to choose between receiving the full benefits they were entitled to under the IDEA and education in an Orthodox Jewish setting. In Drummond, the Oklahoma Supreme Court noted that St. Isidore was proposing that the State provide monetary support to teach a Catholic curriculum. The Oklahoma Supreme Court’s decision was based partly on the fact that St. Isidore, as a charter school, would be a state-created religious institution. This issue was also addressed at oral argument before the U.S. Supreme Court by Justices Kagan and Sotomayor.
The key distinction between the two cases seems to be that in Drummond, the issue was whether State funds could be used to create a new religious institution, whereas in Loffman, the issue was whether the Plaintiffs could not receive special education benefits they would have been entitled to had they sought to place their students in nonsectarian schools.
Reading Loffman and Drummond together may be illustrative of how courts going forward will address the issue of allowing religious institutions to access public funds. On the other hand, the U.S. Supreme Court’s split on Drummond makes it unclear whether the distinction between the two cases will prove meaningful in the future.
California LEAs should be aware that, pursuant to the injunctions agreed upon by the parties in Loffman, the Ninth Circuit will declare that the California Education Code’s nonsectarian requirement is unconstitutional under the Free Exercise Clause, and CDE will be prohibited from enforcing it. Accordingly, CDE will not require nonpublic entities to be nonsectarian or attest to nonsectarian status in applying for, obtaining, or maintaining contracts to serve as a nonpublic schools for the placement of students with exceptional needs.
Should you have specific questions regarding the content of this Alert or your agency’s response to the Executive Order, please contact the authors of this Alert or your usual AALRR counsel.
