By Michael Bindas
The state of Washington discriminates against parents of children with special needs through its Blaine amendments—bigoted provisions from the 1800s found in many state constitutions designed to undermine educational options that involve religious schools.
The Institute for Justice aims to stop that. IJ’s goal in challenging Washington’s practice is to establish federal constitutional limits on the use of state Blaine amendments to deny opportunities at religious schools and thereby remove Blaine amendments as a barrier to school choice for all children.
In most states, providing educational services for kids with special needs in religious schools is not an issue. The U.S. Supreme Court held that providing services under the federal Individuals with Disabilities Education Act (IDEA) at religious schools is perfectly permissible under the Establishment Clause of the U.S. Constitution. Washington’s Superintendent of Public Instruction, however, hides behind Washington’s Blaine amendments to deny vital IDEA services at religious schools. The Superintendent has declared, “No services, material, or equipment of any nature shall be provided to students on the site of any private school or agency subject to sectarian control or influence.”
||IJ clients Dee Apodora, above, with her daughter Rachael, and Margaret Hamilton, below, with her son, Skyler, are fighting for school choice in Washington.
Children with special needs attending religious schools either must travel off-campus to access services and equipment under the IDEA, or their parents must pull them out of the school of their choice and place them in a public or non-religious private school.
Washington’s discriminatory policy forces an impossible choice for parents like Shari and Derrick DeBoom. Their son, Michael, suffers from, among other things, anxiety and motor-skills problems that substantially hinder his ability to learn. Michael was evaluated under the IDEA and deemed eligible for special education services: a paraeducator to help his teachers modify his curriculum and a specially-equipped laptop to assist with note-taking. But Washington prohibits these services at the school Shari and Derrick had chosen for Michael, Lynden Christian School, and instead insisted that he and his teachers travel off-site to access them. That would have been incredibly disruptive for Michael and virtually impossible for his teachers, who could not leave their classes at Lynden Christian to accompany him off-site every week. It would also have rendered the laptop Michael needed for note-taking useless; he needed it in the classroom. Consequently, after a year without any services, Shari and Derrick made the difficult decision to enroll Michael in a public school.
Unfortunately, Michael’s experience is not unique. Rachael Apodaca, an eighth-grader with Down syndrome, and Skyler Hamilton, a fourth-grader in remission from brain cancer, are both eligible for special education services under the IDEA. Like Shari and Derrick DeBoom, their parents believe Lynden Christian is the best school for them, but Washington prohibits them from receiving services there.
Under the U.S. Constitution, Washington must be neutral toward religious options in public programs, neither favoring nor discriminating against religion. It may not single out families who choose religious schools, as Washington does, and deny only their children the special education services they need to thrive.
This case presents one of the best opportunities to litigate the constitutionality of a state Blaine amendment since Locke v. Davey—the U.S. Supreme Court decision in a Washington case that upheld the constitutionality of a publicly funded scholarship program that excluded students pursuing a degree in theology. It provides the Institute with a chance to limit Davey so it won’t undermine the strides IJ achieved in Zelman—the U.S. Supreme Court case that upheld school choice in Cleveland. Finally, a federal court ruling establishing federal constitutional limits on Washington’s Blaine amendments would lay the foundation to end Blaine amendment discrimination in other states.
Michael Bindas is an IJ Washington Chapter staff attorney.