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.

ORDER AND

TONY THURMOND; MICHAEL AMENDED

COLEMAN; KRISTIN BLANCO; OPINION

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

Amended March 23, 2026

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

Sung, Circuit Judges.

Opinion by Judge Hurwitz;

Dissent to Order by Judge Bumatay;

Dissent to Order by Judge VanDyke

SUMMARY*

First Amendment

The panel filed (1) an order amending the opinion filed

September 11, 2025, denying a petition for rehearing en

banc; and (2) an amended opinion affirming 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

*

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

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

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 held that the extensive legal requirements

applicable to the defendant charter schools’ independent

study programs make them public school programs and

defeat plaintiffs’ free exercise claim. The independent study

programs at issue share the features of public education that

the Supreme Court emphasized in Carson v. Makin, 596 U.S.

767, 785 (2022): the 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 substantially equivalent to classroom-

based instruction and aligned to relevant local and state

content standards; and the programs must be coordinated and

evaluated by, and under the general supervision of state-

certified teachers.

4 WOOLARD V. THURMOND

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.

Dissenting from the denial of rehearing en banc, Judge

Bumatay, joined by Judges R. Nelson, Collins, VanDyke,

and Tung, wrote that the mere fact that the independent study

program here is operated under the auspices of a charter

school that is deemed to be part of the public school system

does not transform that parent-focused program—in which

parents teach their own children in their own home with the

curricula they choose—into the equivalent of a “public

school program.” This should have been a straightforward

ruling because the families challenging the independent

study programs’ exclusion of faith-based curricula easily

alleged a free exercise violation. Both the initial and

amended panel decisions misunderstand free exercise

doctrine. By fixating on the “public school” label and

ending its analysis, the panel ignored Carson’s warning that

courts are to focus on the “substance of free exercise

protections”—not “on the presence or absence of magic

words.”

Dissenting from the denial of rehearing en banc, Judge

VanDyke, joined by Judges Bumatay and Tung, wrote that

Judge Bumatay aptly explained why California cannot

validly weaponize its Blaine Amendment, which prohibits

the teaching of “sectarian or denominational doctrine” in

California’s public schools, to discriminate against religion.

Judge VanDyke wrote separately to explain that California’s

Blaine Amendment presents a clear cut case of attempted

WOOLARD V. THURMOND 5

facial discrimination between competing religious beliefs

because 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.

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, Kayla A. Toney, and Jeremiah G. Dys, First Liberty

Institute, Plano, Texas; Camille P. Varone, First Liberty

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

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

Deputy General Counsel; Paul Gant and Bruce Yonehiro,

Assistant General Counsel; Len Garfinkel, General Counsel;

California Departrossment 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.

6 WOOLARD V. THURMOND

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.

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.

Jeffrey M. Schwab and Jesse Leon, Liberty Justice Center,

Austin, Texas; Howard Slugh, Jewish Coalition for

Religious Liberty, Washington, D.C.; for Amici Curiae

Liberty Justice Center, Abraham Knowledge Academy,

Coalition of Virtue, and the Jewish Coalition for Religious

Liberty.

Katherine I. Hartley, Pacific Justice Institute, Coeur

d’Alene, Idaho, for Amicus Curiae Pacific Justice Institute.

Daniel J. Grabowski, Alliance Defending Freedom,

Lansdowne, Virginia; Ryan J. Tucker, Jeremiah Galus, and

WOOLARD V. THURMOND 7

Mark Lippelmann, Alliance Defending Freedom, Scottsdale,

Arizona; for Amicus Curiae Alliance Defending Freedom.

Sean T.H. Dutton and Kienbaum Hardy, Viviano Pelton &

Forrest, Birmingham, Michigan, for Amicus Curiae for

Coalition for Jewish Values.

Noel J. Francisco, Jeffrey R. Johnson, John C. Brinkerhoff

Jr., and Janessa B. Mackenzie, Jones Day, Washington,

D.C.; Eric C. Rassbach, The Hugh and Hazel Darling,

Religious Liberty Clinic, Caruso School of Law, Pepperdine

University, Malibu, California; for Amicus Curiae Religious

Freedom Institute.

Erin N. Cox, Kasdin M. Mitchell, Jessica A. Lee, and Shane

D. O’Connor, Kirkland and Ellis LLP, Dallas, Texas, for

Amicus Curiae Association of Christian Schools

International.

Blaine H. Evanson, Joseph Edmonds, Branton J. Nestor,

James R. Lee, Minsoo Kim, Haley Denler, and Varant

Anmahouni, Gibson Dunn & Crutcher LLP, Irvine,

California; for Amicus Curiae National Council of Young

Israel.

ORDER

The opinion filed September 11, 2025, and published at

152 F.4th 1050, is amended as follows:

On slip opinion page 11, lines 7-16, replace <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

8 WOOLARD V. THURMOND

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.> with <Plaintiffs contend that the

funding and materials California provides to parents for use

in the public charter schools’ independent study programs

are a generally available subsidy for private homeschooling.

Defendants contend that the public charter schools’

independent study programs, including the funding and

materials provided within those programs, are instead part of

California’s public education system. To resolve that

dispute, we ask whether the independent study programs

have the critical features that the Supreme Court found

characteristic of public schools in Carson.>.

On slip opinion page 14, lines 5-6, replace <the programs

sufficiently public to> with <them public school programs

and>.

The amended opinion will be filed concurrently with this

order.

Judges Miller and Sung voted to deny the petition for

rehearing en banc, and Judge Hurwitz so recommended. The

full court was advised of the petition for rehearing en banc.

A judge requested a vote on whether to rehear the matter en

banc. The matter failed to receive a majority of votes of the

nonrecused active judges in favor of en banc consideration.

Fed. R. App. P. 40.

The petition for rehearing en banc (Dkt. No. 138) is

DENIED, and no further petitions for rehearing will be

entertained.

WOOLARD V. THURMOND 9

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

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

10 WOOLARD V. THURMOND

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

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

1

The Woolards’ daughter and the Gonzaleses’ two grandchildren were

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

WOOLARD V. THURMOND 11

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

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

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

12 WOOLARD V. THURMOND

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

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

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 13

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”;

“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

14 WOOLARD V. THURMOND

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

“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).

Plaintiffs contend that the funding and materials

California provides to parents for use in the public charter

schools’ independent study programs are a generally

available subsidy for private homeschooling. Defendants

contend that the public charter schools’ independent study

WOOLARD V. THURMOND 15

programs, including the funding and materials provided

within those programs, are instead part of California’s public

education system. To resolve that dispute, we ask whether

the independent study programs have 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

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

16 WOOLARD V. THURMOND

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

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

WOOLARD V. THURMOND 17

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/EZ8K-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

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 them

public school programs and defeat Plaintiffs’ free exercise

claim.

18 WOOLARD V. THURMOND

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

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.

WOOLARD V. THURMOND 19

III.

We AFFIRM the judgment of the district court.

BUMATAY, Circuit Judge, joined by R. NELSON,

COLLINS, VANDYKE, and TUNG, Circuit Judges,

dissenting from the denial of rehearing en banc:

Once again, the Ninth Circuit has greenlit state

discrimination against religion.

I.

The State of California offers parents funds and guidance

to help them homeschool their children based on an

education of their choosing. These independent study

programs, run through an approved charter school, allow

students to “receive instruction in their home,” make parents

“the direct educators,” and “provide parents great flexibility

to choose” or “create their own” curricula. Am. Op. 17. And

they assist parents by paying for educational materials and

services the parents select. See Cal. Educ. Code §§ 51746,

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

the program, a state-certified teacher meets with parents to

provide guidance, approves expenditures of state funds, and

reviews work samples for quality, completion, and mastery

of California educational standards. See Cal. Educ. Code

§§ 51747.5(a), 51746, 51747(g)(3); Cal. Code Regs. Tit. 5,

§ 11700(i). The goal of the independent study programs is

to provide “flexibility” through “a homeschool model” to

tailor to “each student’s individualized learning style.” See

Blue Ridge Academy 2021 Renewal Petition 10.

20 WOOLARD V. THURMOND

While flexibility and parental choice are the key

attributes of the program, under California’s version of the

Blaine Amendment—a provision “born of bigotry,”

Espinoza v. Montana Dep’t of Revenue, 591 U.S. 464, 482

(2020) (simplified)—California denies this choice if parents

select curricula based on their religious beliefs. See Cal.

Const. art. IX, § 8 (“No public money shall ever be

appropriated for the support of any sectarian or

denominational school[.]”). If parents seek funding for

books or course materials deemed “non-secular,” then they

will be denied or even expelled from the program. So, under

the program, parents maintain wide latitude to decide what’s

best for their children’s education—unless they choose a

faith-based education. If this sounds like a free exercise

violation, it is.

The Ninth Circuit condones this unequal treatment of

religious families despite a wall of Supreme Court authority

interpreting the Free Exercise Clause as prohibiting this type

of discrimination. See Trinity Lutheran Church of

Columbia, Inc. v. Comer, 582 U.S. 449, 462 (2017);

Espinoza, 591 U.S. at 475–76; Carson v. Makin, 596 U.S.

767, 778 (2022). As we recently said, “a statutory scheme

that requires a family to forgo a sectarian education . . . in

order to receive special education benefits otherwise

available . . . imposes a burden on their free exercise rights.”

Loffman v. Cal. Dep’t of Educ., 119 F.4th 1147, 1168 (9th

Cir. 2024) (simplified).

To get around this precedent, a Ninth Circuit panel first

invented a new test—the “sufficiently public” test—that it

claims circumvents First Amendment scrutiny. See Woolard

v. Thurmond, 152 F.4th 1050, 1057 (9th Cir. 2025). Under

this novel test, whenever actions by private persons were

deemed “sufficiently public,” the government would be free

WOOLARD V. THURMOND 21

to exclude those acting with religious conviction from public

benefits. See id. But that test has no grounding in precedent

or history.

Perhaps sensing the weakness of that analysis, the panel

now amends its opinion and simply labels the homeschool

programs “public school programs,” and, on that basis,

excuses the State’s religious discrimination. Am. Op. 17.

But the mere fact that these independent study programs are

operated under the auspices of charter schools that are

deemed to be part of the public school system does not

transform those parent-focused programs—in which parents

teach their own children in their own home with the curricula

they choose—into the equivalent of “public school

programs.” The panel’s contrary view is incorrect on both

the facts and the law.

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.” Carson, 596 U.S. at 780–81

(simplified). And so both the initial and amended decisions

are profoundly wrong. It is thus no wonder that one Justice

recently signaled that “[t]he Ninth Circuit . . . [has]

significantly misunderstood” the Supreme Court’s free

exercise jurisprudence and needs a “general course

correction.” See Mirabelli v. Bonta, 146 S. Ct. 797, 805

(2026) (Barrett, J., concurring). Rehearing this case en banc

should have been part of that course correction.

A.

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

22 WOOLARD V. THURMOND

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. After all, the “sine qua non

of an establishment of religion is actual legal coercion.” Am.

Legion v. Am. Humanist Ass’n, 588 U.S. 29, 75 (2019)

(Thomas, J., concurring in the judgment) (simplified). Even

if instruction in public-school classrooms may implicate the

“coercive pressure” animating the Establishment Clause,

Lee v. Weisman, 505 U.S. 577, 592 (1992), no such concern

exists when parents freely choose a curriculum for their own

children in their own home. 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.” Carson, 596 U.S. at 781. 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. Indeed, by offering aid for only secular

materials, it’s California that has a “tendency to coerce”

parents “into acting contrary to their religious beliefs.” See

Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S.

439, 450 (1988). So enabling private choice—even a choice

based on religious conviction—poses no Establishment

Clause problem.

And this case isn’t about education standards. No one

questions that the parents’ chosen academic materials meet

WOOLARD V. THURMOND 23

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.

B.

Our denial of rehearing en banc was wrong for at least

two reasons.

First, this should have been a straightforward ruling—

the families challenging the independent study programs’

exclusion of faith-based curricula have easily alleged a free

exercise violation. Simply, a State cannot discriminate

against the religious when providing public benefits.

Whether it be grants, tuition assistance, or tax benefits, “once

24 WOOLARD V. THURMOND

a State decides to” offer the public a subsidy, “it cannot

disqualify [members of the public] solely because they are

religious.” See Carson, 596 U.S. at 785 (simplified). It’s

thus a textbook free exercise violation when a State

“single[s] out the religious for disfavored treatment.” Trinity

Lutheran, 582 U.S. at 460.

Yet this discrimination is exactly what happens with

California’s homeschool program. If parents choose a

secular homeschool education for their children, these

families receive full support and funding. But if parents

choose to ground their children’s homeschool education in

faith, those families are stymied or even expelled from the

program. By conditioning participation in the homeschool

program on disavowing a faith-based curriculum,

California’s program “effectively penalizes the free exercise

of [these families’] constitutional liberties.” Id. at 462

(simplified). And this interferes with “[t]he practice of

educating one’s children in one’s religious beliefs,” which

“receives a generous measure of protection from our

Constitution.” Mahmoud v. Taylor, 606 U.S. 522, 547

(2025).

Of course, a “State need not subsidize private

education,” Espinoza, 591 U.S. at 487, and may provide

“strictly secular education in its public schools.” Carson,

596 U.S. at 785. 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

WOOLARD V. THURMOND 25

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.” Rendell-Baker v. Kohn, 457 U.S. 830,

841 (1982) (simplified) (emphasis added). 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.

Nor does an establishment concern justify this

discrimination. As stated earlier, parents—not the

government—freely and independently choose to spend

funds on faith-based instruction. That makes all the

difference here. Simply, “[a] State’s antiestablishment

interest does not justify enactments that exclude some

members of the community from an otherwise generally

available public benefit because of their religious exercise.”

Carson, 596 U.S. at 781.

Thus, California straightforwardly violates the families’

free exercise rights. As in Espinoza, California’s “no-aid

provision penalizes [parents’] decision[s] by cutting families

off from otherwise available benefits if they choose a

religious [curriculum] rather than a secular one, and for no

other reason.” 591 U.S. at 486. As in Carson and Espinoza,

the State “disqualif[ies]” some homeschool parents “solely

because they are religious.” Id. at 487. This, the Free

Exercise Clause does not allow.

26 WOOLARD V. THURMOND

Second, both the initial and amended panel decisions

misunderstand free exercise doctrine. To begin, the panel at

first erred in creating an exception to the Free Exercise

Clause’s anti-discrimination principle based on its novel

“sufficiently public” test. Rather than hewing to Carson’s

distinction between “public schools,” where “strictly secular

education” is permissible, and “subsidi[es for] private

education,” where the State cannot discriminate against the

religious, 596 U.S. at 785, the panel invented a new, mushy

“in between” category. Under that malleable test, any

benefit supporting a “sufficiently public” activity would be

exempt from free exercise protection. In other words, the

panel permitted unequal treatment of religious instruction

whenever “sufficiently public” action is involved. But

Carson never endorsed such a test, and it’s inconsistent with

history and precedent.

Indeed, as a historical matter, “[p]rimary education was

haphazard, private, and almost invariably religious,” and the

government’s support “typically took the form of grants to

private schools”—religious schools of all different stripes.

Nathan S. Chapman & Michael W. McConnell, Agreeing to

Disagree: How the Establishment Clause Protects Religious

Diversity and Freedom of Conscience 119 (2023). “In the

founding era and the early 19th century, governments

provided financial support to private schools, including

denominational ones.” Espinoza, 591 U.S. at 480. “Far

from prohibiting such support, the early state constitutions

and statutes actively encouraged this policy.” Id. (quoting

Lloyd P. Jorgenson, The State and the Non-Public School,

1825–1925, 4 (1987)).

Recognizing the “sufficiently public” test unworkable,

the panel changes course by amending its opinion. Now, it

simply slaps a “public school” label on the homeschool

WOOLARD V. THURMOND 27

programs and calls them exempt from free exercise scrutiny.

See Am. Op. 17. The panel belatedly asserts that the

requirements of the homeschool program “make them public

school programs [that] defeat Plaintiffs’ free exercise

claim.” Id. The panel bases its new holding on what it

perceives are the “critical features that the Supreme Court

found characteristic of public schools in Carson.” Id. at 15.

But the panel fundamentally misunderstands Carson’s point.

Carson didn’t establish a test to determine what constitutes

a “public school.” Instead, Carson’s discussion of some

characteristics of prototypical public schools, which the

State “may permissibly require to be secular,” was to refute

the State’s pretextual claim that its funding benefit was

limited to the “rough equivalent of [a] public school

education.” Carson, 596 U.S. at 782 (simplified). So

Carson showed that the State was “manipulat[ing]” labels,

much like the panel here, to skirt First Amendment scrutiny.

Id. at 784 (simplified). In no way did Carson announce a

new test for state action by private parties, which would

allow the State to co-opt the activities of parents teaching

their own children as state action and permit discrimination

against the religious.

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. See Am. Op. 16. 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

28 WOOLARD V. THURMOND

employees provide modest oversight. Conflating the two

trivializes the “numerous and important” differences,

Carson, 596 U.S. at 783, 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.” Id. at 784.

By fixating on the “public school” label and ending its

analysis, the panel ignores Carson’s warning that we are to

focus on the “substance of free exercise protections”—not

“on the presence or absence of magic words.” Id. at 785.

The panel cannot merely “reconceptualiz[e] the public

WOOLARD V. THURMOND 29

benefit” with made-up labels to escape the free exercise

guarantee. Id. With few constraints, California’s

homeschool programs let parents choose or design their own

curriculum to educate their own children in their own home.

That choice is withheld, however, if those parents choose

faith-based instruction. This discrimination goes to the heart

of the “substance of free exercise protections,” id., and

undermines parents’ “right to teach [their children] religion

in the confines of [their] own home,” Mahmoud, 606 U.S. at

547 (simplified). So the parents here easily allege a valid

First Amendment claim.

C.

The disturbing impact of the panel’s decision cannot be

overstated. Going forward in the Ninth Circuit, whenever

the government successfully labels an activity as “public,” it

receives carte blanche to discriminate against the religious.

Think about it. If educating one’s children in the privacy of

one’s own home according to one’s private choices

constitutes “public school” activity, then pretty much

anything can qualify as a governmental program exempt

from First Amendment scrutiny. This view flouts Trinity

Lutheran, Espinoza, and Carson and resurrects the divisive

purpose of the Blaine Amendment and its state-level

analogues with a fury. By giving the Free Exercise Clause

such a cramped reading, the panel tells the religious that they

must forgo either their faith or the benefits available to

everyone else. We should have taken this case en banc rather

than endorse such a far-reaching test.

II.

California’s independent study programs help parents

give their children the education of their choice. But

California’s ban on aid to non-secular instruction whisks

30 WOOLARD V. THURMOND

those benefits away from religious parents seeking to

provide their children an education grounded in their faith.

This harms parents’ ability to inculcate “moral standards,

religious beliefs, and elements of good citizenship” in their

children. Wisconsin v. Yoder, 406 U.S. 205, 233 (1972). To

justify this burden on their free exercise rights, the panel

superficially labels parent-led education programs as “public

school programs.” But that’s wrong. California’s program

straightforwardly “single[s] out the religious for disfavored

treatment,” Trinity Lutheran, 582 U.S. at 460, and

“disqualif[ies] some [religious families] solely because they

are religious,” Carson, 596 U.S. at 785 (simplified). This

should have been an easy case under the Free Exercise

Clause.

Because our court blesses a violation of free exercise

rights, I respectfully dissent from the denial of rehearing en

banc.

VANDYKE, Circuit Judge, joined by BUMATAY and

TUNG, Circuit Judges, dissenting from the denial of

rehearing en banc:

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. See Amended Panel

Op. 10–11. Nor does California’s state superintendent of

public instruction dispute the intentional discrimination. See

Answering Brief of the State Superintendent of Public

WOOLARD V. THURMOND 31

Instruction at 16 (noting that California “requir[es] that its

system’s officials adopt secular curricula for credit in and

progression through the public school system”). 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. Amended Panel Op. 17.

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. If

the Supreme Court has taught us anything in the past decade

or so, it’s that religious educators cannot be “disqualified

from [a] generally available benefit ‘solely because of their

religious character.’” Carson ex rel. O.C. v. Makin, 596 U.S.

767, 780 (2022) (quoting Espinoza v. Mont. Dep’t of

Revenue, 591 U.S. 464, 475 (2020)); see also Trinity

Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449,

462 (2017). The most noteworthy twenty-first-century

Supreme Court case to permit such blatant discrimination

against religion is Locke v. Davey, 540 U.S. 712 (2004),

where the Court upheld a Washington state scholarship

program that excluded students seeking a degree in theology.

But “Locke cannot be read beyond its narrow focus on

32 WOOLARD V. THURMOND

vocational religious degrees to generally authorize [a] State

to exclude religious persons from the enjoyment of public

benefits on the basis of their anticipated religious use of the

benefits.” Carson, 596 U.S. at 789. To the extent that Locke

remains good law, it has been cabined to its facts. Not even

the panel cited it in defense of its holding. See Amended

Panel Op. The clear trend in First Amendment jurisprudence

accords with Judge Bumatay’s originalist analysis, and the

panel opinion here represents an unfortunate detour that

deserved correction by our en banc court.

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

WOOLARD V. THURMOND 33

Supreme Court clarified once again just last term. See Cath.

Charities Bureau, Inc. v. Wisc. Lab. & Indus. Rev. Comm’n,

605 U.S. 238, 247 (2025) (noting that “[a] law that

differentiates between religions along theological lines”

violates the Establishment Clause and the Free Exercise

Clause).

I.

The key word in this case is “sectarian.” California’s

Blaine Amendment says, in its entirety:

No public money shall ever be appropriated

for the support of any sectarian or

denominational school, or any school not

under the exclusive control of the officers of

the public schools; nor shall any sectarian or

denominational doctrine be taught, or

instruction thereon be permitted, directly or

indirectly, in any of the common schools of

this State.

Cal. Const. art. IX, § 8 (emphases added). And California’s

Education Code further provides that “a charter school shall

be nonsectarian in its programs, admission policies,

employment practices, and all other operations.” Cal. Educ.

Code § 47605(e)(1) (emphasis added).

What made the curricular materials that Plaintiffs sought

to use “sectarian”? To the charter schools that refused to let

Plaintiffs use the materials, it was the mere fact that the

materials endorsed religious viewpoints. The district court

uncritically accepted that understanding of California’s

Blaine Amendment, explicitly equating “sectarian” with

“religious,” and explaining that “[o]ne requirement for all of

34 WOOLARD V. THURMOND

California’s public schools, including charter schools, is that

they remain nonsectarian (non-religious) in all their

programs and operations.” And though our court’s three-

judge panel didn’t define “sectarian,” it referenced

statements like “God is great, and God is good” and “the

Bible is God’s Word, and it is true,” as evidence of the

supposedly “sectarian” character of the materials that

California deemed to flunk its Blaine Amendment.

Amended Panel Op. 10. The schools, the district court, and

the panel thus all seem to be on the same wrong page:

“sectarian” is just another word for “religious.”

But “sectarian” doesn’t mean “religious.” It didn’t mean

“religious” when California adopted its Blaine Amendment

nearly 150 years ago, and it still doesn’t today. See

Webster’s International Dictionary of the English Language

1301 (Noah Porter ed. 1898) (defining “[s]ect,” in relevant

part, as “the believers in a particular creed, or upholders of

a particular practice” (emphases added), and defining

“[s]ectarian,” in relevant part, as “[p]ertaining to a sect, or to

sects; peculiar to a sect; bigotedly attached to the tenets and

interests of a denomination”); Sectarian, Black’s Law

Dictionary (12th ed. 2024) (defining “sectarian,” in relevant

part, as “[o]f, relating to, or involving a particular religious

sect; esp., supporting a particular religious group and its

beliefs” (emphases added)). Nineteenth-century dictionaries

show that the word “sectarian” was sometimes used to

describe non-mainstream religious adherents and persons

commonly understood to be “bigots” or “heretics.” Robert

G. Natelson, Why Nineteenth Century Bans on “Sectarian”

Aid Are Facially Unconstitutional: New Evidence on Plain

Meaning, 19 Federalist Soc’y Rev. 98, 102–03 (2018). Most

nineteenth-century Americans considered Catholics and

Mormons to be “sectarian,” and some contemporaneous

WOOLARD V. THURMOND 35

writers thought that Muslims and some Jews could be

“sectarian” too, while Christians such as Unitarians,

Quakers, Methodists, Baptists, Episcopalians, and even

Orthodox Christians were spared the label. Id. at 104–05.

But either way, saying that “sectarian” means “religious” is

like saying that “dime” means “coin.” All sectarian

materials are religious, but not all religious materials are

sectarian.

A proper understanding of the history of religion in

American education—and the corresponding enactment

history of the Blaine Amendments—clarifies this

distinction. Around the time of our Nation’s Founding

(before the advent of universal public education), essentially

all schools, even those affiliated with local governments,

used the Bible and other Christian religious texts

“extensively” to teach reading, writing, and moral formation.

Steven K. Green, The Bible, the School, and the Constitution

15 (2012). In the nineteenth century, “most Americans,

Protestant and Catholic alike, believed that civic education

could not be divorced from instruction into religious and

moral values.” Id. at 18. “For the first half of the century,

the point of disagreement” about the role of religion in

education “was not whether public schooling should be

religious or secular, but how religious that education should

be,” because the idea of a secular school was borderline

inconceivable at the time. Id.

The nineteenth century brought about increased religious

heterogeneity. For the first fifty years of American history,

religious differences were largely defined by region. Noah

Feldman, Non-Sectarianism Reconsidered, 18 J.L. & Pol.

65, 69–70 (2002). But with the Second Great Awakening

came the breakdown of the dominant regional

denominations into numerous diverse sects. Id. at 70. For

36 WOOLARD V. THURMOND

instance, in New England (long a Congregationalist

stronghold) Congregationalism split into Trinitarianism and

Unitarianism, and the South (in which Anglicanism and

Presbyterianism had predominated) saw a rise in Baptist and

Methodist Christianity. Id.

About the same time, the common school movement

garnered traction. Proponents of the movement sought to

bring about universal education not just to teach American

children basic functional skills but “to produce citizens

capable of virtuous political action” through moral

education. Id. at 71. Horace Mann, a leader of the

movement, believed that “moral education was ‘a primal

necessity of social existence’” and held, “as an ‘eternal and

immutable truth’ that a good result in practical morals ‘can

never be attained without religion.’” Id. at 73 (quoting 4 Life

& Works of Horace Mann 222, 283, 286 (Lee & Shepard ed.,

1891)).

But how could a society of many different religious sects

and denominations (which often had divergent liturgical

practices and theological beliefs) develop a universal system

of moral education based on religious truths?

Nonsectarianism was the answer. If the proposed common

schools taught, say, Methodist doctrine to the exclusion of

Anglican doctrine, then Anglicans would have withdrawn

their support for universal public education altogether. See

id. at 74. But if the schools taught the fundamentals of

Christian doctrine that were common to all Protestants

without wading into areas of denominational disagreement,

then the schools could still provide the thrust of moral and

religious education in a way that wouldn’t arouse objections

from any particular group of Protestants. See id.; see also

Green, supra, at 19 (“That the common schools were

consciously Protestant was not denied; however, the

WOOLARD V. THURMOND 37

Protestant complexion of early common schooling reflected

the belief that the schools could promote commonly shared

beliefs and practices without reverting to

denominationalism.”). Mann himself proposed a system that

would “inculcate[] all Christian morals,” “found[] its morals

on the basis of religion,” and “welcome[] the religion of the

Bible” without “act[ing] as an umpire between hostile

religious opinions.” 4 Life & Works of Horace Mann at

311–12. And because Protestant Christianity was the

dominant religion at the time, the compromise worked—at

least for a time. See Green, supra, at 19.

The upshot: the whole point of nonsectarianism as

reflected in California’s Blaine Amendment was to allow

and promote a generically Christian form of religious

education, not suffocate it. California’s Blaine Amendment,

as originally understood, doesn’t prohibit the reading of the

Bible or even the teaching of Christianity in public schools.

See Cal. Const. art. IX, § 8. Far from it. The amendment

purports to ban the teaching of “sectarian” or

“denominational” doctrine in public schools—it does not

purport to purge religious doctrine from public schools

altogether. Id. The fact that so many legal scholars and

jurists have uncritically adopted such an obviously

anachronistic misreading of California’s Blaine Amendment

(and other states’ similar provisions) says much more about

them and our modern legal culture than it does about what

those provisions actually mean.

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

38 WOOLARD V. THURMOND

were widely used in American schools beginning in the

1830s” and which “taught more Americans to read than any

other textbook.” Samuel James Smith, McGuffey Readers,

Encyclopedia Britannica (Feb. 2, 2018),

https://www.britannica.com/topic/McGuffey-Readers (last

visited Feb. 17. 2026); see also People v. Bd. of Educ. of

Oakland, 55 Cal. 331, 333 (1880) (noting that “the

McGuffey series of Readers were by law in general use in

the public schools” of Oakland from 1873–1880). 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. See Stella

Haverland Rouse, Textbook Costs Worried Many Parents,

Ancestors West: A quarterly publication for the members of

the Santa Barbara Cnty. Genealogical Soc’y, Fall 2018, at 8.

From that text, California students learned to read by

practicing sentences like these:

WOOLARD V. THURMOND 39

• 1. Here is a fine church in the midst of

shade-trees. 2. Just back of it is the

church-yard. Here, in the green grass, is a

newly made grave. 3. A dear young boy has

just died, and been laid here in his last sleep.

The birds still sing in the trees, but he hears

them no more. 4. In life he was good and

kind to all, and now, though his friends

mourn his loss, they know that he is with

God, in that home where sin and death are not

known. 5. Young and old, rich and poor, lie

in the church-yard side by side, in the rest that

waits for us all.

• God sends the rain and winds and

storms, all in love. When the shower is over,

we shall see all things fresher and brighter

than before.

• Each little flower that opens, / Each

little bird that sings— / God made their

glowing colors, / He made their tiny wings /

… The tall trees in the green-wood, / The

meadows where we play, / The flowers in the

valleys, / We gather every day— / … He gave

us eyes to see them, / And tongues, that we

40 WOOLARD V. THURMOND

may tell / The goodness of the Father, / Who

“doeth all things well”

• One rule, to guide us in our life, / Is

always good and true: / “Do unto others as

you would / That they should do to you.”

• How thankful we should be to God,

who gives us all these lovely flowers, which

cheer and brighten our homes and our hearts!

The Pacific Coast Second Reader, Revised Edition 33, 49,

71, 78, 86 (1875).

And the textbooks used in California public schools after

California’s Blaine Amendment was enacted in 1879 show

more of the same. In 1884, the state began printing its own

textbooks for use in the public schools. See California

Textbooks, Stanford University Libraries,

https://exhibits.stanford.edu/venezky/feature/california-

textbooks [https://perma.cc/3RVL-TGCW]. Those

textbooks—like the McGuffey and Pacific Coast Readers—

are filled with references to Christian, religious doctrine.

See, e.g., California State Series of School Text-Books:

Speller 192 (W. H. V. Raymond ed., 1886) (“Christ

[rebuked] Peter for his presumption.”); California State

Series of School Text-Books: Third Reader 16 (1886)

(“Courage, brother! do not stumble, / Though thy path be

dark as night; / There’s a star to guide the humble— / Trust

in God and do the right.”); id. at 63–64 (“But He who made

the sun is more glorious than the sun. The eye cannot look

on His dazzling brightness. He seeth all dark places, by

night as well as by day. The light of His countenance is over

all the world. … This great Being is God. He made all

things, but He is more excellent than all that He has made.

WOOLARD V. THURMOND 41

He is the Creator, they are the creatures. They may be

beautiful, but He is beauty. They may be strong, but He is

strength. They may be perfect, but He is perfection.”).1

The takeaway is clear enough: both before and after

California’s Blaine Amendment went into effect, explicitly

religious Christian doctrine was commonplace in California

public schools. So we should stop pretending that

California’s Blaine Amendment was ever meant or

originally applied to ban all “religious” content from public

education. It was meant to ban only some religious

content—that deemed too “sectarian” or

“denominational”—while welcoming other more generic,

“nonsectarian” Christian content.

In short, California’s Blaine Amendment was meant and

applied to discriminate based on religion—not between the

religious and the secular, as California and the panel have

wrongly assumed, but instead between some religious

content and other religious content.

II.

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. Judge

Bumatay, buttressed by modern Supreme Court decisions

that hew closer to the First Amendment’s original meaning,

1

Statements like “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” would not be out of place in these materials. Yet

it is precisely those statements that the defendants and the panel assumed

to be “sectarian.” Amended Panel Op. 10.

42 WOOLARD V. THURMOND

correctly explains why the panel was wrong in concluding

that California can constitutionally discriminate against the

religious vis-à-vis the secular. But the panel was asking the

wrong question. California’s Blaine Amendment was

clearly designed (and applied) to disadvantage some

(“sectarian”) religious content against other (“nonsectarian”)

religious and secular content. California cannot justify its

open discrimination against religion in this case by pointing

to a state provision that discriminates between religious

viewpoints.

While the Supreme Court is still wrestling with when and

whether the government can disadvantage religious content

or viewpoints vis-à-vis their secular counterparts, the Court

has emphatically condemned differential treatment of

competing religious convictions. Just recently, the

unanimous Court did so in Catholic Charities. See 605 U.S.

at 254. But the Court has articulated and enforced the

requirement of government neutrality between religious

doctrines for decades, which is why Catholic Charities was

not a “hard call[.]” Id.; see, e.g., Everson v. Bd. of Educ. of

Ewing Twp., 330 U.S. 1, 15 (1947); Zorach v. Clauson, 343

U.S. 306, 314 (1952); Larson v. Valente, 456 U.S. 228, 246

(1982). So have the circuit courts, including our own. See,

e.g., Marrero-Mendez v. Calixto-Rodriguez, 830 F.3d 38, 44

(1st Cir. 2016); Cooper v. U.S. Postal Serv., 577 F.3d 479,

494 (2d Cir. 2009); Hilsenrath on behalf of C.H. v. Sch. Dist.

of Chathams, 136 F.4th 484, 493 n.75 (3d Cir. 2025), cert.

denied sub nom. Hilsenrath v. Chathams Sch. Dist. Bd. of

Educ., No. 25-256, 2025 WL 3506995 (U.S. Dec. 8, 2025);

Myers v. Loudoun Cnty. Pub. Schs., 418 F.3d 395, 403 (4th

Cir. 2005); Croft v. Perry, 624 F.3d 157, 169 (5th Cir. 2010);

Maye v. Klee, 915 F.3d 1076, 1084 (6th Cir. 2019); Ctr. for

Inquiry, Inc. v. Marion Cir. Ct. Clerk, 758 F.3d 869, 874 (7th

WOOLARD V. THURMOND 43

Cir. 2014); Child.’s Healthcare is a Legal Duty, Inc. v. Min

De Parle, 212 F.3d 1084, 1090 (8th Cir. 2000); Hartmann v.

Cal. Dep’t of Corrs. & Rehab., 707 F.3d 1114, 1125–26 (9th

Cir. 2013); Colo. Christian Univ. v. Weaver, 534 F.3d 1245,

1257 (10th Cir. 2008); Ray v. Comm’r, Ala. Dep’t of Corrs.,

915 F.3d 689, 696 (11th Cir. 2019); Chaplaincy of Full

Gospel Churches v. England, 454 F.3d 290, 302 (D.C. Cir.

2006).

When a state law discriminates between religion

doctrines, it must satisfy strict scrutiny to survive judicial

review. Larson, 456 U.S. at 246. Application of

California’s discriminatory Blaine Amendment should be

subject to that demanding standard, a standard that nobody

argues California can satisfy.

III.

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.

It is axiomatic that, to accurately assess the

constitutionality of a state law, we must accurately interpret

the state law at issue. Suppose a southern state, in the Jim

Crow era, enacted a state constitutional amendment that

said: “No African-American may swim at any public

swimming pool in this state.” If the statute faced a

constitutional challenge in federal court, but the federal court

interpreted “African-American” to mean “person of any

race,” then the clearly erroneous interpretation would

fundamentally transform the nature of the constitutional

issue. And the federal court’s erroneous interpretation might

even save the unconstitutional statute from invalidation—at

44 WOOLARD V. THURMOND

the very least, it would transform a clear-cut, facial Equal

Protection violation into a much-less-clear-cut case about

whether people have a federal constitutional right to swim in

public swimming pools.

True, when interpreting state law, we are generally

“bound by the decision of the highest state court.”

Kekauoha-Alisa v. Ameriquest Mortg. Co. (In re

Kekauoha-Alisa), 674 F.3d 1083, 1087 (9th Cir. 2012)

(citation omitted); but see Oxborrow v. Eikenberry, 877 F.2d

1395, 1399 (9th Cir. 1989) (recognizing an exception to this

rule in the context of federal habeas corpus where the state

court’s interpretation of state law “is untenable or amounts

to a subterfuge to avoid federal review of a constitutional

violation” (citation omitted)). But even assuming we could

be bound by an atextual, clearly erroneous California

Supreme Court holding that “sectarian” now simply means

“religious” in the context of California’s Blaine

Amendment, no party has pointed to any California Supreme

Court (or, for that matter, any other California court)

decision that has held any such thing. While the California

Department of Education (a state agency) has, in this

litigation, registered its view that “sectarian” means

“religious,” its view is entitled to no deference. See, e.g.,

Larson, 456 U.S. at 246 n.23 (rejecting the state attorney

general’s argument that the challenged state statute was

“facially neutral,” because the statute “ma[de] explicit and

deliberate distinctions between different religious

organizations”); Stenberg v. Carhart, 530 U.S. 914, 940

(2000) (rejecting a state attorney general’s narrowing

interpretation of a challenged state law, because Supreme

Court precedent “warns against accepting as ‘authoritative’

an Attorney General’s interpretation of state law when ‘the

Attorney General does not bind the state courts or local law

WOOLARD V. THURMOND 45

enforcement authorities’” (quoting Virginia v. Am.

Booksellers Ass’n, Inc., 484 U.S. 383, 395 (1988))).

That leaves us, then, with California’s rules of

constitutional interpretation. See Killgore v. SpecPro Pro.

Svcs., LLC, 51 F.4th 973, 983 (9th Cir. 2022) (“In

interpreting a state statute, we must follow the state’s rules

of statutory interpretation, here California.” (citing Bass v.

Cnty. of Butte, 458 F.3d 978, 981 (9th Cir. 2006))). “We

begin by examining the constitutional text, giving words

their ordinary meanings.” Howard Jarvis Taxpayers Ass’n

v. Amador Water Agency, 36 Cal. App. 5th 279, 296 (2019).

The words of the provision at issue must “be interpreted in

the sense in which they would have been understood at the

time of the enactment.” People v. Cruz, 13 Cal. 4th 764, 775

(1996) (citations omitted). If the text is clear, then “we look

no further.” Killgore, 51 F.4th at 983 (quoting Renee J. v.

Super. Ct., 26 Cal. 4th 735, 743 (2001)).

As explained above, the text of California’s Blaine

Amendment (consistent the context of its historical

application) leaves no doubt: “sectarian” isn’t just another

word for “religious.” It’s a descriptor for some religious

doctrines, but not others, making plain that the provision

requires discrimination between religious doctrines.2

2

Both the California and United States Supreme Courts have recognized

that, “[a] fundamental canon of statutory interpretation requires that a

statute be construed to avoid unconstitutionality if it can reasonably be

so interpreted.” In re Klor, 64 Cal. 2d 816, 821 (1966) (first citing Lynch

v. Overholser, 369 U.S. 705, 710–11 (1962); and then citing Geiger v.

Bd. of Supervisors, 48 Cal. 2d 832, 839 (1957)). For two reasons, this

canon does not change the equation here. First, as explained above, the

“sectarian means religious” interpretation is not a reasonable

interpretation—it’s an obvious reinterpretation. Second, as Judge

46 WOOLARD V. THURMOND

Even if our understandings of the role of religion in

education and our connotations of the word “sectarian” have

shifted since 1879, California’s Blaine Amendment still

means what it says. We can’t escape the conclusion that the

Amendment “makes explicit and deliberate distinctions

between different religious” doctrines. Larson, 456 U.S. at

246 n.23. Since we can’t escape that conclusion, our court

should have taken the logical next step and invalidated this

application of California’s Blaine Amendment on federal

constitutional grounds.

IV.

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.

Bumatay explains, even that misinterpretation renders California’s

Blaine Amendment unconstitutional as applied here.