Divided Ninth Circuit Upholds California Exclusion of Religious Curricula from Parent-Designed Charter School “Independent Study Programs”

From Woolard v. Thurmond, written by Judge Andrew Hurwitz and joined by Judges Eric Miller and Jennifer Sung, and released in slightly amended form yesterday:

California provides free public education through its common schools. It long did so through brick-and-mortar schools owned and operated by public school districts. In 1992, California authorized the establishment of charter schools, “public schools funded with public money but run by private individuals or entities rather than traditional public school districts.”

Like traditional public schools, charter schools can provide non-classroom-based instruction, including “independent study” programs, in which parents provide home-based direct instruction approved by the school and coordinated, evaluated, and supervised by state-certified teachers. To participate in these programs, parents must enter into a contract with the school specifying the objectives, methods of study, and methods used for evaluating student work. The school is then required to provide appropriate materials and services necessary to achieve the agreement’s objectives.

The plaintiffs … are parents and guardians of students enrolled in independent study programs at two California charter schools who requested that the schools purchase and permit the use of sectarian curricular materials for instruction in the programs. The schools rejected those requests because California law provides that “sectarian or denominational doctrine” shall not “be taught, or instruction thereon be permitted, directly or indirectly, in any of the common schools of this State,” Cal. Const. art. IX, § 8, and that “a charter school shall be nonsectarian in its programs.” The plaintiffs claim that the rejection of their request pursuant to those laws violates the Free Exercise and Free Speech Clauses ….

The Supreme Court has recently confirmed that the Free Exercise Clause does not prohibit a state from providing “a strictly secular education in its public schools.” Carson v. Makin (2022)…. The independent study programs at issue here share the features of public education that the Court emphasized in Carson. California charter schools operating independent study programs must be free to attend and accept all students for which they have capacity. The programs must “be of the same rigor, educational quality, and intellectual challenge substantially equivalent to” classroom-based instruction and must be “aligned to all relevant local and state content standards,” including those adopted by the California Board of Education….

In addition, independent study programs must be coordinated and evaluated by, and “under the general supervision of,” state-certified teachers. Those teachers must provide “continuing oversight of the study design, implementation plan, allocation of resources, and evaluation[s].” … California private schools—including private homeschooling programs—are subject to none of those requirements…. The extensive legal requirements applicable to the defendant charter schools’ independent study programs make them public school programs and defeat Plaintiffs’ free exercise claim….

Plaintiffs’ compelled speech claim fares no better. It is premised on the argument that “[w]hen parents in the Blue Ridge and Visions programs select a diverse array of curricula for their children’s diverse needs,” the parents are speaking, not the government. However, we have held that a public school’s curriculum is an “expression of its policy,” and that “information and speech … present[ed] to school children may be deemed to be part of the school’s curriculum and thus School District speech.” Government speech is “not subject to scrutiny under the Free Speech Clause.” Moreover, the state “is not precluded from relying on the government-speech doctrine merely because it solicits assistance from nongovernmental sources.” …

Judge Patrick Bumatay, joined by Judges Ryan Nelson, Daniel Collins, Lawrence Vandyke, and Eric Tung, dissented yesterday from the denial of rehearing en banc:

Once again, the Ninth Circuit has greenlit state discrimination against religion…. Regardless of the superficial labels the panel tries to slap on the homeschool programs, they are benefits to aid parents’ private choices and any “target[ing of] religious conduct for distinctive treatment” should “be subjected to the strictest scrutiny.” …

Before turning to how wrong this decision is, let’s first discuss what this case is not about. It is not about the Establishment Clause. Not even the Ninth Circuit panel contends that state funding for religious homeschool programs would violate the Establishment Clause. Unlike instruction in brick-and-mortar public schools, parent-led education within the confines of the family home presents no establishment problem because no government-backed religion is imposed on anyone… As is well-established now, “a neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause.” Thus, supporting parents homeschooling their own children with religious materials doesn’t create an establishment of religion. And that’s even more true here where any funding for religious instruction is twice removed from the State—first, it goes to a charter school (a privately owned entity operating as a public school) and, second, it goes to the parents’ chosen instruction….

And this case isn’t about education standards. No one questions that the parents’ chosen academic materials meet California’s educational standards. When one family in this suit tried to buy the works of Jonathan Edwards and William Penn to study colonial America, they were denied—not because of any pedagogical concern, but only because of the materials’ “religious content.” The same family was later told they couldn’t teach a different faith-based curriculum because, while the “[a]cademics” were “fine,” its “religious aspect” was prohibited.

Another family was denied funding when they tried to teach sentence structure using the sentence: “God sends the rain to help plants grow.” A perfectly good sentence, but it was rejected simply because the independent study program “can’t accept any work sample with any religious wording on it.” Yet another family tried to offer a course that emphasized “family, God, high character, nature, and wholesome literature.” Though a charter school employee thought that the curriculum “sounds amazing,” it was rejected because they could neither approve nor accept any “faith-based curriculum.” And that family’s child was later expelled for submitting work samples with religious content. So the concern isn’t with the quality of the education that these parents are choosing; the only problem is that they’re choosing an education based on faith….

Of course, a “State need not subsidize private education,” and may provide “strictly secular education in its public schools.” So a State can prohibit faith-based instruction in its public schools without offending the free exercise right. But once a State decides to offer parents financial assistance for education that the parents conduct, exercising substantial choice as to the instructional materials, the Free Exercise Clause’s anti-discrimination principle applies with full force. Under the programs at issue, parents do the day-to-day teaching, educate their children in the home, and choose the substance of their curricula.

This is the opposite of the sort of public-school education referenced in Carson. That privately run charter schools, which operate under the auspices of the public school system, approve and minimally supervise courses doesn’t change that conclusion. Indeed, in another context, courts have recognized that mere “regulation, even if extensive and detailed,” does not “make a [private actor’s] actions state action.” While charter-school teachers meet with families and must approve parents’ curricula, parent-led homeschool education involves a critical measure of private curricular choice that sets it apart from prototypical public-school education….

And in labeling California’s homeschool programs as “public school programs,” the panel relies on the flimsiest grounds—that these homeschool kids are subject to basic “state assessments” and the “general supervision” of a charter school employee. But that defies common sense as well as established law. Does anyone really think that parents teaching their own children in their own home, based on a curriculum of their own choosing, somehow transforms them into “public school” teachers? Of course not. And the answer doesn’t change just because the government pays for their books and charter-school employees provide modest oversight.

Conflating the two trivializes the “numerous and important” differences, between public schools and homeschool education—even homeschooling with state support. A world of difference exists between the public-school classroom—where government employees teach government-mandated curricula in a government-built classroom open to all—and benefits for parents teaching their own children in their home with curricula they choose. Adhering to modest state requirements simply doesn’t transform parents teaching their children around the kitchen table with textbooks they choose into agents of the State providing “public school” education.

Doing so casts parents into the equivalent of state workers and parent-designed curricula into state-mandated curricula. That ignores the critical feature of the homeschool programs—that parents design and teach their chosen curricula in the privacy of the parents’ home. Although the curriculum must satisfy general performance metrics, those standards do not dictate the specific content of the curricular materials, which are chosen by the parents. So here, as in Carson, “the curriculum taught [through the homeschool programs] need not even resemble that taught in the [California] public schools.” Id. “In short, it is simply not the case that these [homeschool programs], to be eligible for state funds, must offer an education that is equivalent—roughly or otherwise—to that available in the [California] public schools.” …

Judge Vandyke, joined Judges Bumatay and Tung, also added this:

No one disputes that California blatantly discriminated against religion in this case. The panel opinion doesn’t dispute that California uniquely singled out religion for disfavored treatment when it refused to fund the plaintiffs’ proposed independent-study curricula, solely because those materials contained religious content…. Indeed, given the “great flexibility” California offers to parents in fashioning state-funded independent-study curricula for their children, even a heavily Confucianist, Stoic, Marxist, or Woke curriculum would presumably pass muster under state law—but one with a whiff of religious content would not.

Why such open discrimination against religion? The defendants’ hands were tied, they assert, by California’s Blaine Amendment, which prohibits the teaching of “sectarian or denominational doctrine” in California’s public schools. Cal. Const. art. IX, § 8. And—according to the defendants, the district court, and the panel—the plaintiffs’ proposed curricula were “sectarian” because they endorsed religious viewpoints.

In his dissental, Judge Bumatay aptly explains why California cannot validly weaponize its Blaine Amendment to discriminate against religion. I agree and readily join….

But there’s another reason why California’s Blaine Amendment runs afoul of the First Amendment, and I write separately to explain it. The defendants, the district court, and the panel simply took for granted that “sectarian” means “religious.” But linguistics and history show something else.

The push for “nonsectarian” education did not represent a nineteenth-century attempt to secularize the first public schools—it instead represented a compromise among the Protestant Christian majority to educate public-school children in Christian teaching without wading into areas of denominational disagreement. The word “sectarian” thus deliberately encompassed some religious beliefs (such as beliefs peculiar to Catholics or Mormons, or even denominational doctrinal divides between Protestants), but not all religious beliefs (such as teaching from the King James Bible and the Apostles’ Creed).

California’s Blaine Amendment thus presents a clear-cut case of attempted facial discrimination between competing religious beliefs. On its face, the law expressly allows the teaching of nonsectarian, generic Christian doctrine in public schools, but not the teaching of any sectarian doctrine. That discrimination between religions plainly runs afoul of the First Amendment’s Religion Clauses, as the unanimous Supreme Court clarified once again just last term….

Skeptical? I thought you might be, so I bring receipts. Textbooks that were widely used in public schools in the era when California’s and most other Blaine Amendments were enacted prove that nobody would have understood “sectarian” to mean “religious” then. Take McGuffey’s Readers, a “series of elementary school reading books that were widely used in American schools beginning in the 1830s” and which “taught more Americans to read than any other textbook.” The edition of McGuffey’s Reader that was published the same year that California enacted its Blaine Amendment contains many references to Christian doctrine, even though the book was a reading text, not a theology text. See, e.g., McGuffey’s Second Eclectic Reader 34 (1879) (“Are you not a sunbeam, / Child, whose life is glad / With an inner brightness / Sunshine never had? / Oh, as God has blessed you, / Scatter light divine! / For there is no sunbeam / But must die or shine.”); id. at 87 (“Know that I’m not lonely / That I ne’er despair: / God is in the shadow / God is everywhere.”); id. at 119 (“I know God made the sun / To fill the day with light; / He made the twinkling stars / To shine all through the night.”); id. at 130 (“Ever gentle, meek, and mild, / Though didst nurse thy fretful child, / Teach these little feet the road / Leading on to heaven and God.”).

Or consider the Pacific Coast Reader, which was published in San Francisco and which was adopted by the California Board of Education just four years before the state’s Blaine Amendment was ratified. [Details in the opinion. -EV] …

Once California’s Blaine Amendment is properly interpreted as allowing some religious content but not other religious content—that is, to openly discriminate between religious beliefs—then this becomes an exceedingly easy case. Nobody thinks the government can do that.…

But if everyone (including California’s own Department of Education) has simply erroneously taken for granted that the term “sectarian” describes all religious doctrines, then does the real meaning of California’s Blaine Amendment matter? It does, for several reasons. [Again, details in the opinion. -EV] …

It’s about time that we leave facially discriminatory Blaine Amendments like California’s on the ash heap of constitutional history. As applied today, states like California are trying to repurpose them to excise religion from the public square in ways that the generation that adopted them wouldn’t have fathomed. On their face, they discriminate between religious doctrines in a manner that the Religion Clauses of the First Amendment clearly do not permit. We should have reheard this case en banc to correct the panel’s erroneous decision to uphold the blatantly discriminatory application of this unconstitutional state law, and I respectfully dissent from our court’s failure to do so.