M.L. was born in 2003 with Down Syndrome and lives with his family in an Orthodox Jewish community in Maryland. M.L’s faith governs almost every aspect of his life, including how he dresses, eats, and works. In 2009, M.L. enrolled in a private special education program that was tailored to his religious needs. In 2012, M.L.’s parents met with the Montgomery County Board of Education (“MCPS”) to create an individualized education program (“IEP”) as part of his public school education, but his parents rejected the IEP, complaining that it did not offer instruction on preparing for life in an Orthodox Jewish community. MCPS replied that an IEP meeting the standards of M.L.’s parents would be too specific, too religious, and not part of the public school curriculum.
M.L. filed a due process claim against the School Board with the Maryland Office of Administrative Hearings, arguing a violation of the Individuals with Disabilities Education Act (“IDEA”). The administrative law judge (“ALJ”) ruled that the IDEA does not require a public school to offer specialized religious instruction in an IEP because the IDEA only requires “access [to] the general curriculum.” M.L. then filed a claim in the United States District Court for the District of Maryland where summary judgment was granted to the School Board. M.L. appealed to the Fourth Circuit Court of Appeals.
Arguments for Tailoring an IEP to Religious Needs
The National Jewish Commission on Law and Public Affairs (“COLPA”) argued in its amicus brief that directing certain IDEA benefits toward “the non-practice of religion is coercive.” In support of their argument, COLPA cited the Supreme Court’s firmly established precedent that the “Free Exercise Clause bars government action aimed at suppressing religious belief or practice.” While the Court previously noted “a law that burdens religious practice need not be justified by a compelling governmental interest if it is neutral and of general applicability,” the Court recently held that a policy that makes practicing one’s religion more expensive “imposes a burden on the exercise of religion.” Thus, COLPA raised a valid question as to whether the IEP, as written, violated the Free Exercise Clause.
M.L. argued that “a student’s religious, cultural, or other individual circumstances are relevant to the fashioning of an appropriate special education program for that student.” Specifically, the appellants observed that, because M.L. was unable to distinguish home and school settings, his religious background is part of his “unique needs.” Thus, the IEP should have accounted for “[l]earning Hebrew, recognizing kosher signs and impurities in foods, and telling time according to [M.L.’s] dietary restrictions.”
Arguments against Tailoring an IEP to Religious Needs
In brief, the School Board suggested that pursuing the goals and objectives that M.L. requested would itself violate the Establishment Clause due to their religious nature. However, despite both parties’ Establishment Clause arguments, both the ALJ and the district court quickly dismissed any Establishment Clause considerations by resolving the relevant issues using only the IDEA and Maryland state law. The School Board argued that neither the IDEA nor Maryland state law requires it to provide M.L. with IEP goals and objectives that incorporate his religious practices.
M.L. also asserted that requests that his religious practices be developed through his IEP were simply requests for accommodation of his religious practices. In response, the School Board countered by asserting that M.L. was clearly seeking “affirmative IEP goals and objectives” that were designed to incorporate M.L.’s religion into his IEP. The School Board’s counterargument effectively diverted the court’s analysis of M.L.’s claims from a focus on accommodation toward a focus on affirmative IEP goals. In brief, the School Board reminded the court that, religious concerns aside, M.L. previously and consistently agreed that the IEP was otherwise adequate to meet M.L.’s educational needs.
The Fourth Circuit Court of Appeals held that the appellants had been mistaken in reading “other education needs” as “all other educational needs.” The court observed that the IDEA is not so comprehensive—not every limitation a disabled student may possess needs to be addressed. The court further elaborated that the IDEA does not ensure a specific scholastic result and therefore does not address a disabled student’s ability to practice his chosen religion. Relying on the reasoning in Rowley, the court emphasized the function of the IDEA, not as a guarantee for providing certain levels of education to disabled students, but as a way to “open the door of public education to handicapped children on appropriate terms.” Similarly, the court emphasized that Free Appropriate Public Education (“FAPE”) requires only that a child receives an educational benefit that is slightly more than trivial from the special instruction and services provided. The court declined to address COLPA’s Free Exercise Clause arguments because the appellants did not raise a Free Exercise argument in their opening brief.
By finding for the School Board in this case, the court made clear that the IDEA does not require a school board to provide a religious or cultural curriculum to a disabled student. Under the IDEA, disable students do not need a religious curriculum in order to have equal access to education.
By Mike Garrigan & Mary Kate Gladstone
 M.L. by Leiman v. Smith, 867 F.3d 487, 490 (4th Cir. 2017).
 Id. at 492.
 Brief for National Jewish Commission on Law and Public Affairs as Amicus Curiae Supporting Appellants at 11, M.L. by Leiman v. Smith, 867 F.3d 487 (4th Cir. 2017).
 See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 559 (1993).
 See Employment Div., Dep’t of Human Res. of Oregon v. Smith, 494 U.S. 872 (1990).
 See Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2770 (2014).
 Brief for Appellants at 19, M.L. by Leiman v. Smith, 867 F.3d 487 (4th Cir. 2017).
 Id. at 34.
 Brief for Appellees at 14, M.L. by Leiman v. Smith, 867 F.3d 487 (4th Cir. 2017).
 Brief of Appellants, supra note 13, at 14–15.
 Id. at 21.
 M.L. v. Smith, 867 F.3d 487, 498–99 (4th Cir. 2017).
 Id. at 499.
 Id. at 498.
 Id. at 495.
 Id. at 499
 Id. at 499.