Opinion - Whatcom View

POSTED: Monday, Nov. 10, 2008

Suit aims for school choice for special-needs children

Washington has a reputation for tolerance. It might surprise you, then, to learn that our state is drawing upon a history of religious discrimination to deny educational opportunity to some of our most vulnerable citizens: special needs children.

Each year, Washington receives federal funds under the Individuals with Disabilities Education Act to provide special education services to children with disabilities. The IDEA is meant to ensure the educational well-being of all special needs children, not just those who attend public schools. Therefore, some of these funds are required to be spent providing services to children whose parents send them to private schools.

Washington, however, excludes one group of students from those who can receive special education services - students at religious schools. Under Washington law, special needs children whose parents choose religious schools must travel off-site to some "non-sectarian" location to access the services - making them, in many cases, completely worthless.

Consider Michael DeBoom, an eighth-grader with attention-deficit, anxiety and motor-skills issues that significantly hinder his ability to learn. In 2006, while Michael was attending Lynden Christian School, the local school district determined he was eligible for special education services under the IDEA. The district was willing to provide him, at Lynden Christian, a para-educator to help his teachers modify curriculum, as well as a specially equipped laptop to assist him with note-taking.

The state, however, instructed the district that it could not provide those services at his school. Instead, Michael would be forced to travel to a public school to access them.

That was simply unworkable for Michael's teachers, who could not leave their own classes at Lynden Christian to accompany him to a public school every week. Moreover, the laptop Michael needed for note-taking was utterly useless off-site; he needed it in the classroom. Being carted off every few days would also have been stigmatizing and disruptive for Michael, who suffers from anxiety and benefits greatly from routine. His parents therefore decided to forego the services.

Over the next year, it became clear that without the services Michael was not making progress. Lynden Christian informed his parents that it was unable to keep him as a full-time student without the para-educator services for which Michael was eligible, but, because of Washington's policy, unable to receive-under the IDEA. Consequently, Michael's parents enrolled him part-time in a public school.

Washington's policy has thus twice forced Michael's parents to choose between their child's physical needs and the school they believe is best for him - a decision no parent should be forced to make.

Washington's justification for its policy is a pair of state constitutional provisions commonly known as "Blaine amendments." They are a product of the virulent anti-immigrant and anti-Catholic bigotry that plagued our nation when Washington was admitted to the Union in 1889. Designed to impede the then-burgeoning Catholic school system, Blaine amendments are still being used to deny children educational opportunities today. Indeed, in Washington and across the nation, opponents of school choice policies that would help families of modest means access private schools have relied on these discriminatory Blaine amendments to thwart parental choice in education.

To vindicate their right to choose the school they feel is best for their children, Michael's parents and the parents of two other special needs children from the Lynden area are, this week, filing a federal lawsuit challenging Washington's discriminatory policy. Under the U.S. Constitution, our state must be neutral toward religious options in public programs, neither favoring nor discriminating against religion. But by singling out families who choose religious schools and denying only their children the special education services they need to thrive, Washington is engaging in religious discrimination that cannot be allowed to stand.

Michael Bindas is a staff attorney with the Institute for Justice Washington Chapter, which is challenging Washington's discriminatory special education regulations.