Woolard v. Thurmond

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN WOOLARD; BREANNA No. 24-4291

WOOLARD; HECTOR

D.C. No.

GONZALES; DIANA GONZALES;

2:23-cv-02305-

CARRIE DODSON,

JAM-JDP

Plaintiffs - Appellants,

v.

OPINION

TONY THURMOND; MICHAEL

COLEMAN; KRISTIN BLANCO;

BARRY LINDAMAN; BREANN

MORSE; TED DESTRAMPE;

RENE ADAMO; MELISSA

BASSANELLI; ZIMA CREASON;

PAM COSTA; SAUL

HERNANDEZ; BEN AVEY;

PAULA VILLESCAZ; TANYA

KRAVCHUK; BLUE RIDGE

ACADEMY; SAMANTHA

HAYNES; JESSIE MARON;

VISIONS IN EDUCATION

CHARTER SCHOOL; BRIAN

ALBRIGHT; STEVE OLMOS;

JENNIFER MORRISON; MICAH

STUDER; MARK HOLMAN; LISA

SOPHOS,

Defendants - Appellees.

2 WOOLARD V. THURMOND

Appeal from the United States District Court

for the Eastern District of California

John A. Mendez, District Judge, Presiding

Argued and Submitted June 4, 2025

Pasadena, California

Filed September 11, 2025

Before: Andrew D. Hurwitz, Eric D. Miller, and Jennifer

Sung, Circuit Judges.

Opinion by Judge Hurwitz

SUMMARY*

Free Exercise and Free Speech Clauses of the First

Amendment

The panel affirmed the district court’s dismissal of a 42

U.S.C. § 1983 action brought by parents and guardians of

students enrolled in independent study programs at two

California charter schools who alleged First Amendment

violations when the schools rejected their requests to

purchase and permit the use of sectarian curricular materials

for instruction in the schools’ programs.

The charter schools rejected the requests because

California laws prohibit the teaching of sectarian or

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

WOOLARD V. THURMOND 3

denominational doctrine in public schools, including charter

schools. Plaintiffs allege that the rejection of their requests

pursuant to those laws violates the Free Exercise and Free

Speech Clauses of the First Amendment. They contend,

among other things, that the charter schools’ independent

study programs are really in substance homeschooling, not

public education, and that the schools’ provision of

curricular materials should be treated as a generally available

public benefit in aid of homeschooling. Pursuant to recent

Supreme Court authority, access to such public benefits

cannot be denied based on plaintiffs’ religious beliefs.

The panel first rejected plaintiffs’ Free Exercise Clause

claim, holding that even assuming that the funding and

materials California provides to parents for use in

independent study programs are a generally available public

benefit, the independent study programs at issue in this case

are sufficiently public to allow California to condition

participation on parents’ use of secular curricula. The

Supreme Court has confirmed that the Free Exercise Clause

does not prohibit a state from providing a strictly secular

education in its public schools.

The panel next rejected plaintiffs’ claim that requiring

parents to use state-approved materials in independent

study programs that do not reflect their religious views is

compelled speech in violation of the Free Speech Clause.

The panel held that a public school’s curriculum qualifies

as government speech and therefore is not subject to

scrutiny under the Free Speech Clause.

4 WOOLARD V. THURMOND

COUNSEL

Alexander Kazam (argued) and E. Caroline Freeman, King

& Spalding LLP, Washington, D.C.; Nicole Bronnimann,

King & Spalding LLP, Houston, Texas; Ethan P. Davis,

King & Spalding LLP, San Francisco, California; David J.

Hacker and Jeremiah G. Dys, First Liberty Institute, Plano,

Texas; Kayla A. Toney and Camille P. Varone, First Liberty

Institute, Washington, D.C.; for Plaintiffs-Appellants.

Thomas H. Prouty (argued) and D. Michael Ambrose,

Deputy General Counsels; Paul Gant and Bruce Yonehiro,

Assistant General Counsels; Len Garfinkel, General

Counsel; California Department of Education, Sacramento,

California; Kendra J. Hall (argued), Greta A. Proctor, Yulian

Y. Kolarov, and Sean M. Sullivan, Procopio Cory

Hargreaves & Savitch LLP, San Diego, California; Kevin M.

Troy (argued), Paul C. Minney, and Adam D. Afshar, Young

Minney & Corr LLP, Sacramento, California; Anthony M.

DeMaria, DeMaria Law Firm, Fresno, California; Ross R.

Nott and Tanveer Moundi, Spinelli Donald & Nott,

Sacramento, California; for Defendant-Appellees.

Christopher Schweickert, Seto Wood & Schweickert LLP,

Pleasant Hill, California, for Amici Curiae the Hive Method

LLC and Awaken Church DBA Awaken Academy.

Kathryn M. Capizzi, Maynard Nexsen PC, New York, New

York; Sue G. Stricklett, American Hindu Coalition, Sterling,

Virginia; for Amicus Curiae American Hindu Coalition.

Alexander J. Luchenitser and Luke Anderson, Americans

United for Separation of Church and State, Washington,

D.C., for Amicus Curiae Americans United for Separation

of Church and State.

WOOLARD V. THURMOND 5

Christopher A. Brook, Patterson Harkavy LLP, Chapel Hill,

North Carolina, for Amici Curiae National Alliance for

Public Charter Schools, California Charter Schools

Association, Association of Personalized Learning Schools

& Services, and Charter Schools Development Center.

Ilya Shapiro and Tim Rosenberger, Manhattan Institute,

New York, New York; Nicole S. Garnett, Notre Dame

Education Law Project, Notre Dame, Indiana; for Amici

Curiae Manhattan Institute and Notre Dame Education Law

Project.

Dean McGee and Buck Dougherty, Liberty Justice Center,

Austin Texas, for Amicus Curiae Liberty Justice Center.

OPINION

HURWITZ, Circuit Judge:

California provides free public education through its

common schools. See Cal. Const. art. IX, § 5. It long did so

through brick-and-mortar schools owned and operated by

public school districts. See id.; Cal. Educ. Code § 35160. 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.” Today’s Fresh Start, Inc. v. L.A.

Cnty. Off. of Educ., 303 P.3d 1140, 1144 (Cal. 2013); Cal.

Educ. Code § 47600 et seq. Like traditional public schools,

charter schools can provide non-classroom-based

instruction, see Cal. Educ. Code § 47612.5(d), (e), including

“independent study” programs, id. § 51747.3, in which

parents provide home-based direct instruction approved by

6 WOOLARD V. THURMOND

the school and coordinated, evaluated, and supervised by

state-certified teachers, id. § 51747.5(a). 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. See id.

§ 51747(g)(2), (g)(9)(A)(i). The school is then required to

provide appropriate materials and services necessary to

achieve the agreement’s objectives. See id.

§§ 51746, 51747(g)(3); Cal. Code Regs. tit. 5, § 11700(i).

The plaintiffs in this 42 U.S.C. § 1983 action 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,” Cal. Educ. Code

§ 47605(e)(1). The plaintiffs claim that the rejection of their

request pursuant to those laws violates the Free Exercise and

Free Speech Clauses of the First Amendment.

The district court dismissed the operative complaint for

failure to state a claim. We affirm.

I.

Factual and Procedural Background

John and Breanna Woolard, Hector and Diana Gonzales,

and Carrie Dodson (collectively, “Plaintiffs”) are parents or

guardians of children who were enrolled at two California

charter schools, Blue Ridge Academy and Visions in

WOOLARD V. THURMOND 7

Education, and participated in the schools’ independent

study programs.1

Plaintiffs each unsuccessfully requested that the charter

schools purchase sectarian curricular materials for use in

those programs. Blue Ridge denied the Woolards’ request to

purchase the Bob Jones University “Focus on Fives”

curriculum, a “[w]orldview shaping” curriculum that teaches

that “God is great, and God is good; God created me and all

things; the Bible is God’s Word, and it is true; and I learn in

order to serve God and others.” Blue Ridge denied the

Gonzaleses’ request to purchase a similar Bob Jones

University curriculum and the Woolards’ request to

purchase “Bede’s History of Me,” a book that provides “[a]

clear way to teach the importance of timelines and how God

works in time.” Visions denied Dodson’s request to purchase

“The Good and the Beautiful,” a “faith-based curriculum”

that emphasizes “family, God, high character, nature, and

wholesome literature.”

Plaintiffs then sued the two charter schools and some of

their officials; officials of the Maricopa Unified School

District, the chartering authority for Blue Ridge; officials of

the San Juan Unified School District, the chartering

authority for Visions; and the State Superintendent of Public

Instruction. In dismissing the operative complaint, the

district court rejected the free exercise claims because

charter schools are public schools “included in California’s

free public school system,” and thus are allowed to provide

a strictly secular education. The court rejected Plaintiffs’

assertion that they were being “categorically excluded” from

a generally available public benefit because of their religious

1

The Woolards’ daughter and the Gonzaleses’ two grandchildren were

enrolled at Blue Ridge; Dodson’s son was enrolled at Visions.

8 WOOLARD V. THURMOND

exercise, noting that (1) “[t]here are no ‘public benefits’ in

the form of grants or otherwise that the state is excluding

Plaintiffs from” and (2) “[t]his case involves California’s

laws and regulations for state funded public schools, not

private schools.” Finally, the court held that because a public

school’s curriculum is government speech, Plaintiffs did not

plausibly allege a Free Speech Clause violation.

Plaintiffs timely appealed. We have jurisdiction under 28

U.S.C. § 1291,2 and “review de novo an order granting a

motion to dismiss for failure to state a claim.” Mudpie, Inc.

v. Travelers Cas. Ins. Co. of Am., 15 F.4th 885, 889 (9th Cir.

2021).

II.

Discussion

The Supreme Court has recently confirmed that the Free

Exercise Clause does not prohibit a state from providing “a

2

The State Superintendent and Blue Ridge Academy (but not its

officials) claim that the Eleventh Amendment deprives an Article III

court of jurisdiction over the action as to them. We disagree. Because

Plaintiffs seek only prospective non-monetary relief, the Ex parte Young

exception applies if the defendant state official has “some connection

with the enforcement of the act.” 209 U.S. 123, 157 (1908). The

Superintendent has the requisite connection. He is charged with

“[s]uperintend[ing] the schools of this state,” Cal. Educ. Code

§ 33112(a), and with executing the State Board of Education’s policies,

id. § 33111, including those governing independent study programs, see

id. § 51749.3. And under the test set forth in Kohn v. State Bar of Cal.,

87 F.4th 1021, 1030 (9th Cir. 2023) (en banc), the claims against Blue

Ridge are also not barred by the Eleventh Amendment. California does

not extend governmental immunity to charter schools, see Wells v.

One2One Learning Found., 141 P.3d 225, 243 (Cal. 2006), and Blue

Ridge is “operated, not by the public school system, but by” a nonprofit

public benefit corporation, a “distinct outside entit[y],” id. (emphasis

omitted).

WOOLARD V. THURMOND 9

strictly secular education in its public schools.” Carson v.

Makin, 596 U.S. 767, 785 (2022). Plaintiffs do not dispute

this foundational principle but argue that the charter schools’

independent study programs are in substance private

homeschooling, not public education. Plaintiffs then assert

that because California could not exclude potential

recipients of state grants for private homeschooling based on

religious belief, it cannot refuse to honor their requests for

funding of sectarian instruction. Plaintiffs also contend that

requiring parents to use state-approved materials in

independent study programs that do not reflect their religious

views is compelled speech in violation of the Free Speech

Clause of the First Amendment. We address these arguments

below.

A.

We begin with an overview of the legal structure of the

California charter school system. As a matter of California

law, “charter schools are part of California’s single,

statewide public school system.” Wilson v. State Bd. of

Educ., 89 Cal. Rptr. 2d 745, 752 (Ct. App. 1999). Although

the defendant charter schools are not operated by public

school districts, they are overseen by public “chartering

authorities” (school district governing boards) that “approve

charters, supervise charter school operations, and revoke

charters in the event particular standards and conditions [a]re

not met.” Today’s Fresh Start, 303 P.3d at 1144; see also

Cal. Educ. Code § 47605 (procedure for establishing a

charter school); id. § 47604.32 (duties of a chartering

authority); id. § 47607(f)(4) (providing for charter

revocation if the charter school “[v]iolated any law”). Like

other California public schools, charter schools cannot

charge tuition; “cannot discriminate against students on the

basis of ethnicity, national origin, gender or disability”;

10 WOOLARD V. THURMOND

“must meet statewide standards and conduct pupil

assessments applicable to pupils in noncharter public

schools”; must provide instruction meeting the same

statewide standards as other California public schools; and

must hire state-certified teachers. Wilson, 89 Cal. Rptr. 2d at

753. And charter schools are “eligible equally with other

public schools for a share of state and local education

funding.” Today’s Fresh Start, 303 P.3d at 1145-46.

Plaintiffs nonetheless argue that the defendant charter

schools’ independent study programs are really

homeschooling and that the schools’ provision of curricular

materials should be treated as a generally available public

benefit in aid of homeschooling, access to which cannot be

denied based on Plaintiffs’ religious beliefs. The argument

is premised on three recent Supreme Court decisions holding

that when a state creates a generally available public benefit,

it cannot exclude a potential recipient from the benefit

because of religious status or religious use. See Carson, 596

U.S. at 789 (holding that a state violated the Free Exercise

Clause in permitting parents whose children did not have

access to a public school to use tuition vouchers at all private

schools except religious ones); Espinoza v. Mont. Dep’t of

Revenue, 591 U.S. 464, 488-89 (2020) (holding that the

exclusion of religious private schools from a state private

school scholarship program violated the Free Exercise

Clause); Trinity Lutheran Church of Columbia, Inc. v.

Comer, 582 U.S. 449, 467 (2017) (holding that a state’s

denial of a grant to a church for use in upgrading a

playground violated the Free Exercise Clause).

At the same time, not all government decisions that

engender religious objections impose burdens on religion

that fall afoul of the Free Exercise Clause. As the Supreme

Court made clear in Carson, a state’s decision to provide a

WOOLARD V. THURMOND 11

“strictly secular” public education does not do so. See 596

U.S. at 785. Secular public education neither “coerce[s]”

parents “into violating their religious beliefs” nor denies

religious parents “an equal share of the rights, benefits, and

privileges enjoyed by other citizens.” Lyng v. Nw. Indian

Cemetery Protective Ass’n, 485 U.S. 439, 449 (1988).

The parties dispute whether the funding and materials

California provides to parents for use in independent study

programs are a generally available public benefit. But even

assuming that they are, the programs at issue in this case are

sufficiently public to allow California to condition

participation on parents’ use of secular curricula. The status

of those programs under California law as part of the state

system of public education is consistent with the critical

features that the Supreme Court found characteristic of

public schools in Carson. There, although Maine argued that

its program was equivalent to funding a secular public

education, the Court identified several important distinctions

between public schools and the private schools for which the

program paid tuition. 596 U.S. at 782. First, Maine public

schools, unlike the state’s private schools, “have to accept

all students.” Id. at 783. Second, public schools, unlike

private schools, are free to attend. Id. Third, public schools

must follow extensive state-imposed curricular

requirements, while private schools are “subject only to

general standards and indicators governing the

implementation of their own chosen curriculum” and “need

not administer the annual state assessments.” Id. at 783-84

(cleaned up). Fourth, “other distinctions,” like that public

schools must “hire state-certified teachers,” separate the two.

Id. at 784.

The independent study programs at issue here share the

features of public education that the Court emphasized in

12 WOOLARD V. THURMOND

Carson. California charter schools operating independent

study programs must be free to attend and accept all students

for which they have capacity. Cal. Educ. Code

§ 47605(e)(1), (2). 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. Id. § 51749.5(a)(4)(A); see id. § 47605(d)(1);

Cal. Code Regs. tit. 5, § 11701.5(a). The state standards for

mathematics, for example, are laid out in a 151-page

document that gives detailed descriptions of the skills and

content that students should master at each grade level. See

Cal. State Bd. of Educ., California Common Core State

Standards: Mathematics (2014),

www.cde.ca.gov/be/st/ss/documents/ccssmathstandardaug2

013.pdf [https://perma.cc/LV9H-A4R2]. Independent study

students must take state assessments that test their ability to

meet those standards. Cal. Educ. Code § 47605(d)(1).

In addition, independent study programs must be

coordinated and evaluated by, and “under the general

supervision of,” state-certified teachers. Id. § 51747.5(a);

see id. § 51749.5(a)(3). Those teachers must provide

“continuing oversight of the study design, implementation

plan, allocation of resources, and evaluation[s].” Cal. Code

Regs. tit. 5, § 11700(b) (defining “[g]eneral supervision”).

To that end, an independent study student must enter into a

written agreement with the school that includes the

“objectives and methods of study for the pupil’s work, and

the methods used to evaluate that work.” Cal. Educ. Code

§ 51747(g)(2). The study methods must be “selected by

the supervising teacher as the means to reach the educational

objectives,” and the evaluation methods must involve “a

WOOLARD V. THURMOND 13

certificated teacher personally assess[ing] the extent to

which achievement of the pupil . . . meets the objectives of

an assignment.” Cal. Code Regs. tit. 5, § 11700(e), (f)

(defining “[m]ethod utilized to evaluate” and “[m]ethods of

study”).

California private schools—including private

homeschooling programs—are subject to none of those

requirements. Instead, they only need to file regular

registration affidavits, keep attendance, and provide

English-language instruction in broadly framed “areas of

study.” Cal. Educ. Code §§ 33190, 48222, 51210, 51220.

For mathematics in grades 7-12, for example, a curriculum

satisfies private-school content standards if it includes

“instruction designed to develop mathematical

understandings, operational skills, and insight into problem

solving procedures.” Id. § 51220(f). Beyond teaching those

general principles, private schools do not need to follow any

curricular requirements, and their students do not need to

take any statewide tests. Nor does California require that

private schools be accredited. See Private Schools

Frequently Asked Questions, Cal. Dep’t of Educ. (Sep. 3,

2025), www.cde.ca.gov/sp/ps/psfaq.asp [https://perma.cc/E

Z8K-RUSH]. And private-school teachers do not need to be

certified as long as they are “capable of teaching.” Cal. Educ.

Code § 48222.

Plaintiffs have alleged, and we take as true, that the

defendant charter schools provide parents great flexibility to

choose which pre-existing curricula to use to educate their

children, or to create their own. But with that flexibility

comes substantial legal constraints not applicable to private

schools. Plaintiffs also emphasize that, unlike in Maine’s

(and most) public schools, students in the independent study

programs receive instruction in their homes, and the direct

14 WOOLARD V. THURMOND

educators are their parents. But in contrast to private

homeschooling, parents in independent study programs can

teach only under the supervision of state employees. The

extensive legal requirements applicable to the defendant

charter schools’ independent study programs make the

programs sufficiently public to defeat Plaintiffs’ free

exercise claim.

B.

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,”

Downs v. L.A. Unified Sch. Dist., 228 F.3d 1003, 1013-15

(9th Cir. 2000), 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,”

Riley’s Am. Heritage Farms v. Elsasser, 32 F.4th 707, 728

(9th Cir. 2022). Government speech is “not subject to

scrutiny under the Free Speech Clause.” Pleasant Grove City

v. Summum, 555 U.S. 460, 464 (2009). Moreover, the state

“is not precluded from relying on the government-speech

doctrine merely because it solicits assistance from

nongovernmental sources.” Johanns v. Livestock Mktg.

Ass’n, 544 U.S. 550, 562 (2005).

Citing Rosenberger v. Rector & Visitors of Univ. of Va.,

515 U.S. 819 (1995), Plaintiffs also argue that a public

school cannot discriminate against religious viewpoints

when it creates a limited public forum. Rosenberger,

however, involved a public university’s refusal to fund an

otherwise-eligible student news organization with a

WOOLARD V. THURMOND 15

religious viewpoint. See id. at 827. More importantly, it

expressly recognized that “[w]hen the University determines

the content of the education it provides, it is the University

speaking.” Id. at 833. Just so here. Blue Ridge and Visions,

in refusing to permit the use of the requested curricular

materials, determined the “content of the education” they

would provide and any resulting speech in instruction was

theirs, not that of Plaintiffs.

III.

We AFFIRM the judgment of the district court.