Washington State Ends Discriminatory Ban On Special Education at Religious Schools

J. Justin Wilson
J. Justin Wilson · October 6, 2009

Seattle, Wash.—Special needs children and their parents in Washington state won a big victory late last week when, on October 1, the Superintendent of Public Instruction adopted new regulations repealing the state’s ban on certain special education services at religious schools.  The repeal came in response to a federal constitutional lawsuit filed in November 2008 by the Institute for Justice Washington Chapter (IJ-WA) on behalf of three families with special needs children.

“This is a victory not only for children with special needs but also for educational liberty,” said Michael Bindas, a staff attorney with the Institute for Justice.  “Kids with special needs in this state will no longer be singled out by the government and denied the services they need simply because their parents chose a religious school for them.”

The new regulations concern special education services provided under the Individuals with Disabilities Education Act (IDEA), a federal law that gives funds to the states to provide special education to children with disabilities.  The IDEA requires that school districts spend a portion of these funds providing services to children whose parents choose private schools—including religious schools—and it expects the services to be provided at the child’s school, where they will be of greatest benefit to the child.

For years, however, Washington’s Office of Superintendent of Public Instruction (OSPI) prohibited school districts from providing IDEA services—including material and equipment—on the campuses of religious schools.  Children enrolled at public and non-religious private schools could receive services on-site, but children whose parents chose religious schools were forced to travel off-site to some “nonsectarian” location in order to access the help they needed.  

“The old policy was incredibly disruptive and stigmatizing for kids with special needs,” explained Bindas.  “It also rendered many types of services and equipment useless.  What good, for example, is a hearing aid if a child can’t use it in her classroom?”

Because of the problems that the old policy caused for families with special needs kids—and because the policy violated the neutrality toward religion required by the First Amendment of the U.S. Constitution—the Institute for Justice Washington Chapter filed a federal constitutional lawsuit challenging the policy in November 2008.  The case, DeBoom v. Bergeson, was filed on behalf of three Lynden-area families—the DeBooms, Hamiltons and Apodacas—whose children had been harmed by the discriminatory ban.

“All I wanted was the freedom to choose the school that was best for my son and not be punished for doing so,” explained plaintiff Shari DeBoom, whose son Michael was denied the services of a para-educator and a specially equipped laptop because of the ban.  (For a high-res photo:  http://www.ij.org/deboom.)

Shortly after the suit was filed, OSPI announced that it would reconsider its policy and, in July 2009, published proposed regulations that would repeal the prohibition on services at religious schools.  It held a public hearing on the proposed regulations on September 3.  The hearing drew representatives from the Washington State Catholic Conference and Archdiocese of Seattle, Jewish Federation of Greater Seattle, Washington Federation of Independent Schools, Washington Policy Center and other groups and families, all of whom testified in support of repealing the ban.

Thursday in Olympia, OSPI officially adopted the proposed regulations, eliminating once and for all the discriminatory prohibition on special education at religious schools.

Plaintiff Margaret Hamilton, whose son, Skyler, a ten-year-old boy in remission from brain cancer, was also harmed by the old policy, hailed OSPI’s action.  She said, “We are so grateful for OSPI’s decision, which can help not only Skyler and our family, but the many other families with special needs children across the state who should be able to choose the schools that are best for their children.”  (For a high-res photo:  http://www.ij.org/hamilton.)
“No parent should be forced to choose between her child’s physical needs and the school she believes is best for her child, yet that is precisely the choice the old policy forced Washington parents to make,” said IJ-WA’s Bindas.  “Under the new policy, special education services may be provided at the school the child’s parents believe is best for her, whether public or private, religious or non-religious.  In other words, the new policy is neutral toward religion, which is exactly what the federal Constitution requires.”