Seattle—Across Washington state, children with special needs are offered special education services to help them achieve educational success.  And, just as the federal Individuals with Disabilities Education Act requires, these services are available to children in both public and private schools.  But Washington excludes one group of children in need—those whose parents choose religious schools.

Washington’s discriminatory policy forces an impossible choice for parents like Shari and Derrick DeBoom.  Their son Michael suffers from attention-deficit, anxiety and motor-skills problems that hinder his ability to learn.  Michael is eligible for special education services under IDEA, but Washington forbids them at the school his parents have chosen for him, Lynden Christian School in Lynden, Wash., because it is a religious school.  Instead, the state insists he travel to a “nonsectarian” location, such as a public school, for needed services.  But educational assistance like a specially equipped laptop for note-taking is useless outside the classroom where he needs to take notes.

So the DeBooms must either take their son out of the school of their choice or forgo needed assistance.

That’s why the DeBooms and two other families are joining with the Institute for Justice Washington Chapter (IJ-WA) to file a federal lawsuit tomorrow challenging Washington’s law.  The lawsuit, DeBoom v. Bergeson, to be filed in the U.S. District Court for the Western District of Washington, will argue that Washington’s discriminatory policy violates the U.S. Constitution, specifically the First Amendment’s right to free exercise of religion and the 14th Amendment’s guarantee of equal protection of the law.

“No parent should be forced to choose between her child’s physical needs and the school she believes is best for her child,” said Michael Bindas, an IJ-WA staff attorney.  “Washington is singling out families who choose religious schools and denying only their children the special education services they need to thrive.  Under the U.S. Constitution, that is religious discrimination and it is unconstitutional.”

“We simply want Michael to get the education he deserves and needs so that he can be the best he can be and make a positive contribution to society,” said Shari DeBoom.  “We should not be forced to choose between services he needs and a school that shares our core beliefs.”

To justify its ban on special education services in religious schools, Washington relies on so-called Blaine Amendments in its state Constitution.  These unfortunate relics of 19th-century anti-religious bigotry are also the favored legal weapon of those who oppose school choice programs like vouchers and tax credits that extend educational opportunity by freeing families to choose from a wide array of educational options, including public, private and religious schools.

Blaine Amendments are found in 37 state constitutions, and some states, such as Washington, have interpreted them to require government discrimination against religion and therefore block school choice programs that allow parents to choose religious or non-religious schools.  Other states, following the U.S. Supreme Court and the U.S. Constitution, have followed a path of neutrality—neither favoring nor disfavoring religious options in state programs.  For example, state courts in Wisconsin, Arizona and Illinois have all upheld school choice programs despite legal challenges based on their state constitutions’ Blaine Amendments.

For a state-by-state breakdown of state constitutions’ Blaine Amendments, see “School Choice and State Constitutions” at www.ij.org/schoolchoiceandstateconstitutions.

With this case, IJ-WA aims to make clear that Blaine Amendments do not justify religious discrimination under the U.S. Constitution—and to sweep away these provisions as obstacles to parental choice in education.

“For too long, opponents of school choice have relied on Blaine Amendments to thwart educational opportunity,” said Chip Mellor, IJ’s president and general counsel.  “This cynical ploy built on religious discrimination ignores the real-life needs of special needs families in Washington and families across the country for a quality education.  We aim to put an end to the favorite legal tactic of school choice opponents and clear the path ahead for school choice nationwide.”

IJ also represents the Apodaca and Hamilton families.  Rachael Apodaca, an eighth-grader with Down syndrome, is eligible for special education services under IDEA.  Skyler Hamilton missed his entire second-grade year undergoing treatment for brain cancer, which left him with several physical and learning disabilities.  Both the Apodaca and Hamilton families believe that Lynden Christian is the best school for their children.  But the state refuses to provide the services their children need at the school.

The Institute for Justice is the nation’s leading legal advocate for school choice.  IJ helped win a tremendous victory for school choice in the U.S. Supreme Court when it represented parents participating in Cleveland’s school voucher program.  IJ also successfully defended Milwaukee’s school voucher program, as well as tax credit programs in Illinois and Arizona, from legal attacks by school choice opponents.  The Institute is currently defending Arizona’s voucher program for special needs and foster children, as well as its individual and corporate tax credit programs.