An issue that comes up in many of our cases is, when a child attends a parochial school or a program with non-secular aspects, may a parent be reimbursed for the non-secular portion of that program. Historically, this issue has been viewed through a prism of separation of church and state according to the Establishment Clause of the U.S. Constitution. The argument made by school districts is something like, in very crude form, "It would be wrong for the government to pay the school for the religious portion of their program because that would mean we are promoting that religion and the Constitution prohibits that type of entanglement." The district uses this reasoning to try to reduce the amount that parents are able to recover. But is this type of behavior really unconsitutional?
Recent case law supports the notion that it is not unconstitutional. That is, parents who were denied an appropriate program and placement by the school district, and chose to enroll their child in an appropriate parochial school, may be entitled to reimbursement for the entire amount including the religious portion. If you think about it, reimbursing parents for the cost of a parochial program does not necessarily say anything about the government's view of that program. It is not an endorsement of that school's religion. It simply means that the school district failed to fulfill its obligations to the child, the parent chose a private school capable of addressing the child's needs, and now the school has to pay for it. The fact that the private school has a religious component is a side issue because it was the parent's choice to put his/her money there, not the government's.
This issue had been addressed by courts in the past but, for some reason, parents continued to have difficulty. Recently, however, some judges seem to be adopting this reasoning which could perhaps be the sign of a new trend.
