Woolard v. Thurmond

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6 UNITED STATES DISTRICT COURT

7 EASTERN DISTRICT OF CALIFORNIA

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9 JOHN and BREANNA WOOLARD, on No. 2:23-cv-02305-JAM-JDP

their own behalf and on

10 behalf of their minor

children A.W., E.W., and

11 O.W., et al., ORDER GRANTING DEFENDANTS’

MOTIONS TO DISMISS AND

12 Plaintiffs, DISMISSING PLAINTIFFS’ COMPLAINT

IN ITS ENTIRETY

13 v.

14 TONY THURMOND, in his

official capacity as

15 Superintendent of Public

Instruction, et al.,

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Defendants.

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18 I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

19 The facts of the case, summarized below, are taken from the

20 Complaint (Compl., ECF No. 1) and assumed to be true for purposes

21 of these motions:

22 1. Plaintiffs are parents or legal guardians of children

23 who were enrolled in California charter school’s Blue Ridge

24 Academy (“Blue Ridge”) and Visions in Education (“Visions”)

25 (collectively, “the charter schools”) (Compl. ¶¶ 16-18);

26 2. The charter schools are tuition free and under the

27 jurisdiction of local school districts (Compl. ¶ 2);

28 3. The charter schools offer publicly funded independent

1 study programs (Compl. ¶¶ 2, 3);

2 4. The charter schools employ credentialed teachers that

3 supervise the independent study programs (Compl. ¶¶ 35, 42-44;

4 Exh. A to Compl., Blue Ridge Parent-Student Handbook, ECF No. 1

5 at 4);

6 5. The supervising teachers at the charter schools ensure

7 that the independent study programs meet state guidelines (Compl.

8 ¶¶ 36, 42);

9 6. The charter schools do not allow the parents or

10 guardians to access public funds to purchase non-secular

11 (religious) materials for the independent study programs (Compl.

12 ¶¶ 49, 53);

13 7. Periodically, the supervising teachers review student-

14 work (Compl. ¶¶ 36, 44); and

15 8. Students will not receive credit if their student-work

16 is non-secular (Compl. ¶ 6).

17 Plaintiffs filed suit against numerous parties within

18 California’s public education sector. See generally Compl.

19 Plaintiffs argue the exclusion of non-secular materials excludes

20 Plaintiffs from an otherwise generally available government

21 benefit of accessing public funds to purchase curriculum for

22 homeschooling. Compl. ¶ 9. Plaintiffs argue this exclusion

23 violates their First Amendment rights under the free exercise and

24 free speech clauses. Id. All defendants who have appeared now

25 move to dismiss.1 See Motions (“Mot.’s”) to Dismiss, ECF Nos.

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27 1 The motions were determined to be suitable for decision without

oral argument. E.D. Cal. L.R. 230(g). The hearings were

28 scheduled for April 9, 2024.

1 24, 35, 36, 37, 39.

2 The motions present various grounds for dismissal, however,

3 all five (5) defendants move pursuant to Federal Rules of Civil

4 Procedure Rule 12(b)(6). See id. Four (4) of the motions

5 address at least one common ground: Plaintiffs have not properly

6 alleged that their First Amendment constitutional rights were

7 infringed upon. See ECF Nos. 24, 35, 37, 39. For the reasons

8 set forth below, the Court agrees.

9 II. OPINION

10 A. Legal Standard

11 A Rule 12(b)(6) motion challenges the sufficiency of a

12 complaint for “failure to state a claim upon which relief can be

13 granted.” Fed. R. Civ. P. 12(b)(6). “To survive a motion to

14 dismiss [under 12(b)(6)], a complaint must contain sufficient

15 factual matter, accepted as true, to state a claim for relief

16 that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

17 662, 678 (2009) (internal quotation marks and citation omitted).

18 Plausibility requires “factual content that allows the court to

19 draw a reasonable inference that the defendant is liable for the

20 misconduct alleged.” Id. While “detailed factual allegations”

21 are unnecessary, the complaint must allege more than

22 “[t]hreadbare recitals of the elements of a cause of action,

23 supported by mere conclusory statements.” Id. Conclusory

24 allegations are not to be considered in the plausibility

25 analysis. Id. at 679 (“While legal conclusions can provide the

26 framework of a complaint, they must be supported by factual

27 allegations.”). When a plaintiff fails to “state a claim upon

28 which relief can be granted,” the Court must dismiss the case.

1 Fed. R. Civ. P. 12(b)(6).

2 B. Judicial Notice

3 A court may take judicial notice of a fact that is not

4 subject to reasonable dispute if it is either (1) generally

5 known within the trial court’s territorial jurisdiction or

6 (2) can be accurately and readily determined from sources whose

7 accuracy cannot reasonably be questioned. Fed. R. Ev. 201(b).

8 Here, each motion to dismiss is accompanied by a separate

9 request for judicial notice. See Req.’s for Judicial Notice

10 (“RJN”) ECF No.’s 24-2, 35-2, 36-3, 37-2, 39-2. The Charter

11 Renewal Petitions of Visions and Blue Ridge are attached as

12 exhibits to Defendant Superintendent Thurmond’s request for

13 judicial notice. Exh.’s A, D to Def. Thurmond’s RJN, ECF No.

14 35-2. The petitions are matters of public record and not

15 subject to reasonable dispute. Lee v. City of L.A., 250 F.3d

16 668, 689 (9th Cir. 2001); J. C. v. Cambrian Sch. Dist., No. 12-

17 cv-03513-WHO, 2014 U.S. Dist. LEXIS 7319, at *12 (N.D. Cal. Jan.

18 21, 2014) (district court taking judicial notice of charter

19 school petition). The Court takes judicial notice of the

20 petitions.

21 The Court did not rely on facts contained in the other

22 requests for judicial notice in deciding the instant motions.

23 The Court denies all non-petition requests as moot. See Sikhs

24 for Justice “SFJ”, Inc. v. Facebook, Inc., 144 F.Supp.3d 1088,

25 1091 n.1 (N.D. Cal. 2015).

26 C. Analysis

27 1. California’s Public School System

28 Under the California Constitution, the California

1 Legislature is required to organize and fund a free public

2 school system. Cal. Const. Art. IX §§ 5, 6. This public school

3 system encompasses all public schools in the state as well as

4 the districts and agencies that maintain them. Id. California

5 state charter schools (“charter schools”), which operate

6 independently from the existing school district structure, are

7 included in California’s free public school system. Cal. Ed.

8 Code § 47601. One requirement for all of California’s public

9 schools, including charter schools, is that they remain

10 nonsectarian (non-religious) in all their programs and

11 operations. Id.; Cal. Const. Art. IX, § 8; Wilson v. State Bd.

12 of Educ., 75 Cal. App. 4th 1125, 1143, (1999) (“Charter

13 petitioners must affirm that their school will be nonsectarian

14 in its programs and operations.”).

15 The California Education Code (“Education Code”) permits a

16 charter school to receive funding for both classroom and

17 nonclassroom-based instruction. Cal. Ed. Code §§ 47612.5(d),

18 (e). Nonclassroom-based instruction includes independent study

19 programs, also characterized as home study programs. Id.; Cal.

20 Ed. Code § 51747.3(a) (“[I]ndependent study . . . whether

21 characterized as home study or otherwise . . . .”).

22 Pursuant to the Education Code, a charter school’s

23 independent study program is required to be coordinated,

24 evaluated, and supervised by an employee of the charter school

25 with teaching credentials or with an emergency teaching or

26 specialist permit. Cal. Ed. Code § 51747.5(a). The Education

27 Code also requires that the courses be taught under the general

28 supervision of a credentialed teacher who is a certified

1 employee of either the charter school or a separate local

2 educational agency. Cal. Ed. Code § 51749.5(a)(3).

3 The supervising teacher’s general supervision requires,

4 among other things, continued oversight of the study design,

5 implementation plan, allocation of resources, and evaluation of

6 student progress. Cal. Code Regs. Tit. 5, § 11700(b). The

7 supervising teacher selects the methods of studies to reach the

8 educational objectives. Cal. Code Regs. Tit. 5, § 11700(f). The

9 student, parent or guardian, supervising teacher, and

10 supervising employee are required to sign a written agreement

11 prior to the commencement of the program that includes the

12 objectives, methods of study, and methods used for evaluating

13 student-work. Cal. Ed. Code §§ 51747(g)(2), (g)(9)(A). With

14 respect to resources, charter schools are required to provide

15 appropriate materials and services necessary to achieve the

16 objectives in the written agreement. Cal. Ed. Code §§ 51746,

17 51747(g)(3); Cal. Code Regs. Tit. 5, § 11700(i).

18 Independent study courses must be annually certified by the

19 charter schools. Cal. Ed. Code §§ 51745.5(4)(a). To achieve

20 certification, the courses must be of the “same rigor,

21 educational quality, and intellectual challenge substantially

22 equivalent to in-person instruction and equivalent classroom-

23 based courses and shall be aligned to all relevant local and

24 state content standards.” Id. Since independent study courses

25 are required to comply with California state standards, they

26 must, among other things, remain nonsectarian. Cal. Const. Art.

27 IX, § 8; Cal. Ed. Code § 47601; Cal. Ed. Code §§ 51745.5(4)(a).

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1 2. Visions And Blue Ridge Are Public Charter Schools

2 That Must Comply With California Law

3 Plaintiffs’ Complaint does not explicitly assert whether

4 Visions and Blue Ridge are public or private charter schools.

5 Rather, Plaintiffs allege Visions and Blue Ridge are charter

6 schools that offer public funds to homeschool children. Compl.

7 ¶¶ 36, 42. Plaintiffs state, “[u]nder Blue Ridge and Vision’s

8 independent study models, parents can access public funds to

9 choose from a wide range of curricula and other instructional

10 materials that align with their values and education goals.”

11 Compl. ¶ 99. Plaintiffs’ strategic wording appears to suggest

12 that Blue Ridge and Visions may be private charter schools

13 offering public funds for parents and guardians to unilaterally

14 choose and purchase students’ curriculum. Upon review of

15 Visions and Blue Ridge’s charter school petitions, however, the

16 two schools are clearly public charter schools under

17 California’s public school system. See generally Exh.’s A, D to

18 Def. Thurmond’s RJN. Therefore, Visions and Blue Ridge must

19 comply with California’s strict public charter school and

20 independent study requirements, as set forth under the

21 California Constitution, Education Code, and Code of

22 Regulations. See supra § i.

23 a. Visions’ Policies and Practices

24 Visions is a tuition free public charter school in

25 Carmichael, California. Exh. A to Def. Thurmond’s RJN at 104,

26 136. With Visions’ “Home School Academy,” the program Plaintiff

27 Carrie Dodson’s son was enrolled in, credentialed California

28 teachers work with parent educators to develop a master

1 agreement and select curriculum that meets California State

2 Standards. Id. at 40, 37-38, 78; Compl. ¶¶ 28, 66. The

3 credentialed teachers and parents have the option to choose

4 either a personalized curriculum or a prescribed curriculum that

5 is pre-qualified by Visions. Exh. A to Def. Thurmond’s RJN at

6 40.

7 Credentialed teachers and parent educators purchase the

8 selected curriculum materials through the student’s independent

9 curriculum budget, which is funded through state funds. Id. at

10 38, 41. No funds are transferred directly to the parents.

11 Visions’ Mot., ECF No. 37 at 11; Opp’n to Visions’ Mot., ECF No.

12 46 at 8.

13 Throughout the school year, the teachers “assess student

14 achievement as measured by [California State Standards].” Id.

15 at 38. Whether personalized or pre-qualified, Visions requires

16 all curriculum in the Home School Academy be nonsectarian. Id.

17 at 5, 97, 104.

18 b. Blue Ridge’s Policies and Practices

19 Blue Ridge is a tuition free public charter school in

20 southern California and enrolls students from Los Angeles,

21 Ventura, and Kern Counties. Compl. ¶ 24; Exh. D to Def.

22 Thurmond’s RJN at 92. Blue Ridge’s homeschool model provides a

23 “[nonclassroom-based], Independent Study program” where students

24 are educated through individualized curricula, aligned with

25 California State Standards, and are supported by credentialed

26 teachers. Id. at 55, 69, 121. The supervising teacher works

27 with the student and their family to develop a master agreement

28 and create a “flexible and appropriate learning plan for the

1 school year” with curriculum pre-approved by the school. Id. at

2 7, 62, 121.

3 Each student at Blue Ridge has a curriculum budget, funded

4 through state funds, to cover the materials in their learning

5 plan. Id. at 24, 62. Blue Ridge allows a family to refer

6 vendors to the school for additional curriculum materials,

7 however, these vendors must first be approved by Blue Ridge.

8 Id. at 224. The vendor must follow all applicable school

9 policies and guidelines. Id. at 224, 226. Further, families

10 cannot directly purchase or obligate Blue Ridge to purchase any

11 educational items without Blue Ridge’s approval. Id. at 224.

12 Students submit work and assessments to the credentialed

13 teachers on an ongoing basis. Id. at 66, 215. Blue Ridge

14 requires all curriculum, including those from referred vendors,

15 be nonsectarian. Id. at 4, 130, 224, 226.

16 c. Visions and Blue Ridge Comply With California Law

17 Governing Public Charter Schools and

18 Nonclassroom-Based Instruction

19 Based on the above, both charter schools appear to comply

20 with, and Plaintiffs do not dispute whether they comply with,

21 California laws governing public charter schools and

22 nonclassroom-based instruction. Cal. Ed. Code §§ 47601,

23 47612.5(d)(1). Both schools are tuition free and funded by the

24 State. Cal. Const. Art. IX §§ 5, 6. Both schools’ independent

25 study programs are overseen by a credentialed teacher. Cal. Ed.

26 Code § 51747.5(a); Cal. Code Regs. Tit. 5, § 11700(f). Both

27 schools require a master agreement prior to the start of

28 instruction between credentialed teachers and the parents or

1 guardians that identifies the objectives, methods of study, and

2 resources available. Cal. Ed. Code §§ 51747(g)(2), (g)(9)(A).

3 Both schools purchase with state funds all necessary materials

4 to complete the home study programs. Cal. Ed. Code §§ 51746,

5 51747(g)(3); Cal. Code Regs. Tit. 5, § 11700(i). Both schools’

6 curricula are aligned with California State Standards. Cal. Ed.

7 Code §§ 51745.5(4)(a). Both schools require all materials and

8 operations to remain secular. Educ. Code § 47605(e)(1); Cal.

9 Const. Art. IX, § 8; Wilson, 75 Cal. App. 4th at 1143.

10 3. Plaintiffs’ Do Not Have The Right Under

11 California Law To Independently Choose

12 Instructional Materials

13 Plaintiffs desire, as “parent educators”, to purchase

14 faith-based curricula that meets state educational standards.

15 Compl. ¶ 88. Plaintiffs argue the state funds are an otherwise

16 available public benefit that is being denied solely because the

17 desired curriculum is religious. Id. ¶¶ 85, 86. Plaintiffs

18 state:

19 Independent study programs are designed to allow

20 families to design and choose instructional materials

21 that respond to each pupil’s unique educational needs,

22 interests, aptitudes, and abilities. Excluding parent-

23 selected and parent-directed faith-based instruction

24 from these programs solely because of their religious

25 character denies religious families equal access to the

26 benefits of these personalized learning experiences.

27 Id. ¶ 89. Upon review of California law, as well as the charter

28 schools’ policies and practices, the Court finds Plaintiffs’

1 argument to be without merit. Supra §§ ii., iii.

2 Although a parent may be the curriculum decisionmaker in a

3 private homeschool setting, Plaintiffs have elected to enroll

4 their students in public homeschool programs. The policies and

5 practices of Visions and Blue Ridge make it clear that

6 curriculum materials in these programs are strictly monitored.

7 Neither charter school allows parents or guardians to be the

8 unilateral decisionmaker of a student’s curriculum, regardless

9 of whether the materials are secular. The teachers work with

10 parents or guardians and students to develop personalized

11 learning plans that align with state standards. Plaintiffs were

12 aware of these practices and procedures when developing their

13 master agreements with the charter schools. Visions and Blue

14 Ridge’s publicly funded independent study programs do not, and

15 cannot under California law, provide a private choice of

16 curriculum.

17 4. California Law Preventing Plaintiffs To

18 Unilaterally Choose Nonsecular Curriculum Is

19 Constitutional

20 The First Amendment provides, “Congress shall make no law

21 respecting an establishment of religion, or prohibiting the free

22 exercise thereof; or abridging the freedom of speech . . .”.

23 U.S. Const. Amend. I.

24 The state action of failing to provide requested religious

25 curriculum is not an infringement on Plaintiffs’ freedom of

26 exercise. As confirmed in Plaintiffs’ own cited case, Carson v.

27 Makin, states are allowed to provide a strictly secular

28 education in its public schools. Carson v. Makin, 142 S. Ct.

1 1987, 1992 (2022). A strictly secular education does not

2 substantially burden the Plaintiffs’ practice of religion.

3 Mohamed Sabra v. Maricopa Cty. Cmty. Coll. Dist., 44 F.4th 867,

4 890 (9th Cir. 2022). Finding otherwise would compel the state

5 to “conduct its own affairs in ways that an individual believes

6 will further their own religious practice.” Bowen v. Roy, 476

7 U.S. 693, 699-700 (1986).

8 The state action is also not a violation of Plaintiffs’

9 freedom of speech because a public school’s curriculum is a form

10 of government speech, not speech of a teacher, parent, or

11 student. Pleasant Grove City v. Summum, 555 U.S. 460, 467

12 (2009) (“The Free Speech Clause restricts government regulation

13 of private speech; it does not regulate government speech.”);

14 Downs v. L.A. Unified Sch. Dist., 228 F.3d 1003, 1012, 1015 (9th

15 Cir. 2000) (holding content on a public school’s bulletin boards

16 is the government’s and public school’s speech, not private

17 speech) (“[C]urriculum is only one outlet of a school district's

18 expression of its policy.); Riley's Am. Heritage Farms v.

19 Elsasser, 32 F.4th 707, 728 (9th Cir. 2022) (stating school

20 curriculum is a school district’s speech); Nampa Classical Acad.

21 v. Goesling, 447 F. App'x 776, 778 (9th Cir. 2011) (unpublished

22 decision holding because charter schools are government

23 entities, the curriculum is the government’s speech, not the

24 teachers, parents, or students).

25 Plaintiffs attempt to analogize three recent United States

26 Supreme Court decisions in support of their contention that they

27 are being categorically excluded from an otherwise available

28 public benefit, in violation of their First Amendment rights.

1 Compl. ¶¶ 98-99 (citing Trinity Lutheran Church of Columbia,

2 Inc. v. Comer, 582 U.S. 449 (2017); Espinoza v. Mont. Dep’t of

3 Revenue, 140 S. Ct. 2246 (2020); Carson, 142 S. Ct. 1987).

4 These three cases, however, concern state programs in which a

5 state was offering public benefits in the form of grants, tax

6 credits, or tuition assistance to private schools and students

7 seeking a private education. See Trinity Lutheran, 582 U.S. at

8 453; Espinoza, 140 S. Ct. at 2251; Carson, 142 S. Ct. at 1993.

9 The private schools and students were denied public benefits

10 only because of the schools’ religious nature. See generally

11 Trinity Lutheran, 582 U.S. 449; Espinoza, 140 S. Ct. 2246;

12 Carson, 142 S. Ct. 1987. Private schools and students seeking a

13 private education with no religious affiliation, however, were

14 able to receive the public grants. Id. These principles are

15 not implicated here. This case involves California’s laws and

16 regulations for state funded public schools, not private

17 schools. There are no “public benefits” in the form of grants

18 or otherwise that the state is excluding Plaintiffs from.

19 The facts in this case plainly do not implicate Plaintiffs’

20 First Amendment rights. Plaintiffs’ arguments are without merit

21 under California law and their Complaint must be dismissed.

22 5. Maricopa School District Defendants Can Also Be

23 Dismissed Under The Same Legal Theory

24 Unlike the other defendants, the Maricopa School District

25 defendants do not move to dismiss on the grounds that Plaintiffs

26 failed to properly allege any First Amendment violations.

27 Maricopa Mot., ECF No. 36-1. Plaintiffs’ claims against the

28 Maricopa School District defendants, however, rely on the same

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1 theories as the claims against the other defendants. Since

2 Plaintiffs had the opportunity to litigate these theories in

3 their oppositions to the other four (4) motions, the Court sua

4 sponte dismisses the claims against the Maricopa School District

5 defendants on the same grounds. See Compl.; Fed. R. Civ. P.

6 12 (b) (6); Omar v. Sea-Land Serv., Inc., 813 F.2d 986, 991 (9th

7 | Cir. 1987).

8 Til. ORDER

9 For the reasons set forth above, the Court GRANTS

10 Defendants’ motions to dismiss, ECF Nos. 24, 35, 36, 37, 39, and

11 Plaintiffs’ Complaint is DISMISSED WITH PREJUDICE in its

12 entirety.

13 IT IS SO ORDERED.

14 Dated: June 7, 2024

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: cp,

JOHN A. MENDEZ

17 SENIOR UNITED*STATES DISTRICT JUDGE

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