11/12/2008

By DONNA GORDON BLANKINSHIP  / Associated Press

Three families on Wednesday filed a lawsuit in federal court accusing the Washington superintendent of public instruction of discrimination for requiring children who attend religious schools to travel off-campus to get special education services.

The federal Individuals with Disabilities Education Act requires states to provide special education services to all kids and allows such services to be provided at any school a parent chooses — public or private, religious or not.

Washington state has added its own restrictions, however, and those rules are at the heart of the lawsuit filed in U.S. District Court in Tacoma, said Michael Bindas, attorney for the Institute for Justice's Washington chapter.

Washington state provides special education at both public and private schools, but children who attend religious schools have to leave campus to get speech therapy and other kinds of help.

"That's what's unsettling ... this is purely aimed at religion," Bindas said. "That's religious discrimination and that's unconstitutional under the U.S. Constitution."

Kristin Alexander, a spokeswoman in the state attorney general's office, said special ed is sometimes provided onsite and sometimes at other locations for students at secular private schools but is available only offsite to parochial school students because state law bars the use of public funds for religious institutions.

Nathan Olson, a spokesman for the Office of the Superintendent of Public Instruction, said his department would not have any comment on the lawsuit until they had time to read it.

Other states say kids who attend any kind of private school — both secular and religious — must come to a public school to get that assistance. Bindas doesn't know of another state that makes a distinction along religious lines.

The U.S. Supreme Court has not ruled on this issue, but the 8th and 9th U.S. Circuit Courts of Appeals have issued contrasting opinions.

The 8th Circuit ruled that a similar rule in Minnesota was unconstitutional. The 9th Circuit upheld a similar regulation in Oregon, but that state subsequently changed its regulations and now allows special education services at all kinds of schools.

The Supreme Court chose not to rule on the case appealed from the 9th Circuit so the conflict remains, Bindas said. He speculated that the high court may have decided not to take up the case because Oregon officials were in the process of changing their rule.

"The U.S. Supreme Court has been very clear that the state has to be neutral toward religious options in public programs," Bindas said, adding that neither discrimination nor favoritism is allowed.

All three families filing the lawsuit in Washington have children who attend Lynden Christian School in Lynden.

Before turning to the courts, the DeBoom family first tried to get the state regulation changed, Bindas said.

When the state regulation on special education services was reviewed in 2007, Sharon DeBoom wrote to the Office of the Superintendent of Public Instruction, saying she should not be forced to choose between her son Michael's physical needs and her choice of where to send him to school.

Michael is an 8th grader with attention-deficit, anxiety and motor-skills problems that impair his ability to learn, according to the lawsuit.

When he was first evaluated by the Lynden School District two years ago, a district team recommended the district provide a paraeducator to work with him and his private school teachers to modify his lessons, in addition to providing a specially equipped laptop computer to help him take notes.

But state officials told the district that any help they gave Michael would have to happen off-campus and the district was not allowed to buy Michael a laptop or even provide the special software for a laptop his parents purchased, Bindas said.

The district's special education coordinator also spoke out against the state rules on special education when they were up for revision in 2007. He pointed out that the state allows other educational services at religious schools and called the special education rules unnecessary and harmful, according to the lawsuit.

Michael now attends public school part-time to get special education services and takes classes in Bible, social studies, art and physical education at Lynden Christian as well as getting some extra tutoring from a paraeducator that his parents hired.

The other two families named in the lawsuit had similar experiences with state law, but did not speak out when the law was being changed, in part because they were unaware of the discussion and because one child did not need special help until after an illness in 2007, Bindas said.

One of those children is home-schooled part-time and attends Lynden Christian for some classes. The other attends public school part-time and goes to Lynden two afternoons a week.

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On the Net:

Institute for Justice: http://www.ij.org/

Lynden Christian Schools: http://www.lyncs.org/

Superintendent of Public Instruction: http://www.k12.wa.us/