Petition for Writ of Certiorari — John Woolard, et al., Petitioners v. Tony Thurmond, et al.

No.

IN THE

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JOHN WOOLARD, ET AL.,

Petitioners,

v.

TONY THURMOND, ET AL.,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

KELLY J. SHACKELFORD

JEFFREY C. MATEER

HIRAM S. SASSER, III

DAVID J. HACKER

KAYLA A. TONEY

FIRST LIBERTY INSTITUTE

2001 West Plano Parkway

Suite 1600

Plano, Texas 75075

NICOLE BRONNIMANN

KING & SPALDING LLP

1100 Louisiana, Suite 4100

Houston, Texas 77002

SETH I. EUSTER

KING & SPALDING LLP

1180 Peachtree Street, NE

Suite 1600

Atlanta, Georgia 30309

ALLYSON N. HO

Counsel of Record

JED GREENBERG

GIBSON, DUNN & CRUTCHER LLP

2001 Ross Avenue, Suite 2100

Dallas, Texas 75201

(214) 698-3100

AHo@gibsondunn.com

JUDSON O. LITTLETON

BRANDON C. WOLF

LAVI M. BEN DOR

GIBSON, DUNN & CRUTCHER LLP

1700 M Street, N.W.

Washington, D.C. 20036

BLAKE J. HIRST

GIBSON, DUNN & CRUTCHER LLP

333 South Grand Avenue

Los Angeles, California 90071

Counsel for Petitioners

QUESTION PRESENTED

California funds independent-study programs in

which parents teach their children in their homes using curricula and materials the parents select. Charter-school employees simply approve parent-directed

purchases and periodically review student work for

adherence to state academic standards.

The charter schools here denied parents funding

and academic credit for curricula and materials even

though they satisfied the State’s academic standards,

solely because officials deemed them “religious.”

The Ninth Circuit approved this discrimination

by holding that parents teaching their children in

their own homes using curricula and materials they

selected are conducting a “public school program” to

which the First Amendment’s prohibition against religious discrimination doesn’t apply.

The question presented is:

Whether a State that chooses to recognize

and fund homeschooling using parents’ chosen curricula may deny recognition and funding to parents who desire to use faith-based

curricula or materials to teach their children

at home, solely because the State deems those

materials religious?

ii

PARTIES TO THE PROCEEDING

AND RULE 29.6 STATEMENT

1. Petitioners John Woolard, Breanna Woolard,

Hector Gonzales, Diana Gonzales, and Carrie Dodson

were Plaintiffs-Appellants below.

Respondents 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, and Lisa Sophos were Defendants-Appellees below.

2. Petitioners are individuals.

iii

STATEMENT OF RELATED PROCEEDINGS

Pursuant to this Court’s Rule 14.1(b)(iii), the following proceedings are directly related to this case:



Woolard v. Thurmond, No. 24-4291 (9th Cir.)

(judgment entered September 11, 2025; rehearing en banc denied March 23, 2026; amended

judgment entered March 23, 2026);



Woolard v. Thurmond, No. 2:23-cv-02305 (E.D.

Cal.) (judgment entered June 10, 2024).

iv

TABLE OF CONTENTS

Page

Question Presented ..................................................... i

Parties To The Proceeding And Rule 29.6

Statement ................................................................. ii

Statement Of Related Proceedings ........................... iii

Table Of Appendices ................................................... v

Table Of Authorities .................................................. vi

Petition For A Writ Of Certiorari ............................... 1

Opinions Below ........................................................... 1

Jurisdiction ................................................................. 1

Constitutional Provisions Involved............................ 1

Statement ................................................................... 2

Reasons For Granting The Petition ......................... 15

I.

The Decision Below Conflicts With This

Court’s Precedent. ............................................. 15

A. A State Can’t Exclude Religious Parents

From A Benefit They Would Otherwise

Receive But For Their Religion. ................. 15

B.

Free Exercise Protections Can’t Be

Evaded By Labeling Homeschooling

“Public School.” ........................................... 19

II. The Decision Below Conflicts With Decisions

From Other Circuits. ......................................... 25

III. The Question Presented Is Exceedingly

Important And This Case Is The Ideal Vehicle

For Resolving It. ................................................ 27

Conclusion ................................................................. 32

v

TABLE OF APPENDICES

Page

APPENDIX A:

Order and Amended Opinion of the United States

Court of Appeals for the Ninth Circuit

(Mar. 23, 2026) ..................................................... 1a

APPENDIX B:

Opinion of the United States Court of Appeals

for the Ninth Circuit

(Sept. 11, 2025) .................................................. 49a

APPENDIX C:

Order of the United States District Court for the

Eastern District of California

Granting Defendants’ Motions to Dismiss and

Dismissing Plaintiffs’ Complaint in Its Entirety

(June 10, 2024) .................................................. 65a

vi

TABLE OF AUTHORITIES

Page(s)

Cases

A.H. ex rel. Hester v. French,

985 F.3d 165 (2d Cir. 2021).............................. 5, 25

In re A.H.,

999 F.3d 98 (2d Cir. 2021).................................... 26

Agency for International Development v.

Alliance for Open Society

International, Inc.,

570 U.S. 205 (2013) ........................................ 21, 22

Anderson Union High School District v.

Shasta Secondary Home School,

4 Cal. App. 5th 262 (2016) ..................................... 7

Bigelow v. Virginia,

421 U.S. 809 (1975) .............................................. 22

Carson v. Makin,

596 U.S. 767 (2022) ....... 3, 4, 13, 16, 17, 19, 20, 21,

22, 23, 24

Catholic Charities Bureau, Inc. v.

Wisconsin Labor & Industry Review

Commission,

605 U.S. 238 (2025) .............................................. 19

Colorado Christian University v.

Weaver,

534 F.3d 1245 (10th Cir. 2008) ...................... 26, 27

vii

Espinoza v. Montana Department of

Revenue,

591 U.S. 464 (2020) ........................ 3, 10, 14, 16, 17

Good News Club v. Milford Central

School,

533 U.S. 98 (2001) ................................................ 24

Hartmann v. Stone,

68 F.3d 973 (6th Cir. 1995) .................................. 26

Kennedy v. Bremerton School District,

597 U.S. 507 (2022) ........................................ 24, 30

Lamb’s Chapel v. Center Moriches

Union Free School District,

508 U.S. 384 (1993) .............................................. 24

Mahmoud v. Taylor,

606 U.S. 522 (2025) ...................... 3, 5, 9, 18, 24, 28

McMurry v. Weaver,

142 F.4th 292 (5th Cir. 2025) .............................. 29

Mirabelli v. Bonta,

607 U.S. 492 (2026) .......................................... 6, 31

Pierce v. Society of the Sisters of the Holy

Names of Jesus & Mary,

268 U.S. 510 (1925) .............................................. 18

St. Mary Catholic Parish in Littleton v. Roy,

154 F.4th 752 (10th Cir. 2025) .............................. 5

Tandon v. Newsom,

593 U.S. 61 (2021) (per curiam) ........................... 30

viii

Trinity Lutheran Church of Columbia,

Inc. v. Comer,

582 U.S. 449 (2017) .................................... 3, 16, 19

Wells v. One2One Learning Foundation,

39 Cal. 4th 1164 (2006) .......................................... 7

Wisconsin v. Yoder,

406 U.S. 205 (1972) .............................................. 18

Statutes

28 U.S.C. § 1254 .......................................................... 1

Cal. Educ. Code § 47601 .............................................. 6

Cal. Educ. Code § 47605 ............................................ 10

Cal. Educ. Code § 51745 .............................................. 7

Cal. Educ. Code § 51746 .......................................... 7, 8

Cal. Educ. Code § 51747 .......................................... 7, 8

Cal. Educ. Code § 51747.5 ........................................... 8

Regulations

Cal. Code Regs. tit. 5, § 11700 ................................ 7, 8

Cal. Code Regs. tit. 5, § 11701.5 ................................. 7

Cal. Code Regs. tit. 5, § 11702 .................................... 7

Constitutional Provisions

Cal. Const. art. IX, § 8 ............................................... 10

PETITION FOR A WRIT OF CERTIORARI

John Woolard, Breanna Woolard, Hector Gonzales, Diana Gonzales, and Carrie Dodson, on their own

behalf and on behalf of their minor children, respectfully petition for a writ of certiorari to review the judgment of the United States Court of Appeals for the

Ninth Circuit.

OPINIONS BELOW

The amended opinion of the court of appeals and

the order from the court denying rehearing en banc

are reported at 170 F.4th 701 and reproduced at App.

1a-48a. The district court’s opinion is available at

2024 WL 3010899 and reproduced at App. 65a-78a.

JURISDICTION

The court of appeals entered judgment on September 11, 2025, and entered an amended judgment and

order denying a timely petition for rehearing en banc

on March 23, 2026. On May 20, 2026, Justice Kagan

extended the time to file this petition through August

20, 2026. No. 25A1287. This Court has jurisdiction

under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

The First Amendment to the U.S. Constitution

provides:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise

thereof; or abridging the freedom of speech, or of the

press, or the right of the people peaceably to assemble,

and to petition the Government for a redress of grievances.

2

STATEMENT

One might think it would go without saying that

parents teaching their children around the kitchen table aren’t running “public school programs.” But that

is precisely what the Ninth Circuit concluded in the

decision below. It held that the State of California is

free to exclude families who wish to provide faithbased homeschooling to their children from benefits

the State offers other families without offending the

First Amendment because the homeschool programs

are actually “public schools.” As five judges explained

in dissenting from denial of rehearing en banc, that

incoherent conclusion doesn’t just defy common

sense—it flouts this Court’s repeated admonitions

that the Free Exercise Clause doesn’t allow government to exclude religious families from benefits offered to the rest of the public. App. 21a-22a, 28a-31a

(Bumatay, J., dissenting from denial of rehearing en

banc).

California law allows parents to enroll their children in independent-study programs, which can be

run through privately operated charter schools that

operate under the auspices of the public school system.

In these programs, parents select the curricula, books,

supplies, and services for educating their children at

home—and California provides the funds. School employees also provide periodic oversight to ensure students meet state academic standards. But the parents

choose the curriculum. The parents teach it. And the

parents tailor it to the needs of their children.

California welcomes those parents’ private

choices—unless the choice involves anything the State

3

deems “religion.” The charter schools overseeing petitioners’ independent-study programs rejected the use

of works by William Penn and Jonathan Edwards because of their “religious content.” 3 C.A. E.R. 483.

They rejected a grammar exercise using the sentence

“God sends the rain to help plants grow” because the

school “can’t accept any work sample with any religious wording on it.” Id. at 485-86, 516. And despite

acknowledging that one mother’s chosen curriculum

“sounds amazing,” a school nonetheless refused to

award credit for any work originating from that curriculum solely because the State deemed the publisher

religious—and ultimately expelled her son. Id. at 48789.

This Court’s precedents should have made this an

easy case. While a State isn’t obligated to fund education outside its public schools, once it chooses to do so,

it can’t exclude religious education from that benefit.

Carson v. Makin, 596 U.S. 767, 780-81, 785 (2022); Espinoza v. Montana Department of Revenue, 591 U.S.

464, 475-76 (2020); Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449, 462 (2017). What’s

more, this Court has recently reaffirmed that “[t]he

practice of educating one’s children in one’s religious

beliefs * * * receives a generous measure of protection

from our Constitution.” Mahmoud v. Taylor, 606 U.S.

522, 547 (2025). California’s policy singles out parents

who wish to give their children a faith-based education

and excludes them from homeschooling benefits and

support extended to other California families. That’s

an open-and-shut Free Exercise violation.

Yet the Ninth Circuit upheld the policy. It avoided

the glaring First Amendment problems (and defied

4

common sense) by holding that, in fact, a homeschool

is actually a public school. The district court deemed

it a “public homeschool.” App. 75a. Apparently unwilling to embrace that oxymoron, the Ninth Circuit initially went with “sufficiently public.” App. 59a, 62a.

Then, after petitioners sought rehearing, the panel

walked that back and just called the programs “public

school programs.” App. 18a. The label kept changing,

but the underlying constitutional violation did not.

That’s the same move this Court rebuffed in Carson when Maine attempted to justify excluding religion by redefining tuition assistance as the “rough

equivalent” of public education. 596 U.S. at 782, 78485. California likewise can’t redefine a parent’s home

instruction as a public school and thereby dodge the

Free Exercise Clause. As Judge Bumatay’s dissent

from denial of rehearing en banc explained, the mere

fact that the State imposes some requirements and

limited oversight on independent-study programs

“doesn’t transform parents teaching their children

around the kitchen table with textbooks they choose

into agents of the State providing ‘public school’ education.” App. 29a (Bumatay, J., dissenting from denial

of rehearing en banc).

But the Ninth Circuit didn’t just disregard Carson. It turned that decision on its head by invoking

Carson in support of its holding that homeschool is

public school and thus in its view a permissible religion-free zone. But nothing in Carson’s discussion of

the differences between public and private schools in

rejecting Maine’s relabeling argument purported to

adopt a test for courts to determine whether private

schools—much less homeschools—are actually public

5

schools. Here again, as Judge Bumatay explained, the

Ninth Circuit “fundamentally misunderstands Carson’s point,” and could muster only “the flimsiest

grounds” to support a conclusion that “California’s

homeschool programs” are in fact “public school programs.” App. 28a-29a (Bumatay, J., dissenting from

denial of rehearing en banc). Even if the court were

right to view homeschool as “public school,” that still

wouldn’t justify forgoing all free-exercise scrutiny.

This Court has made clear that the First Amendment

“follow[s] * * * children into the public school classroom.” Mahmoud, 606 U.S. at 547.

The Ninth Circuit’s gross misunderstanding of

this Court’s precedents warrants review. The severity

of the decision’s departure from First Amendment

principles is reason enough to grant review. But the

decision also conflicts with decisions of other courts of

appeals that have rightly refused to give short shrift

to the Free Exercise Clause. In the wake of Espinoza,

the Second Circuit held that the Free Exercise Clause

shielded a student from being excluded from an education program solely because she attended a religious

school. A.H. ex rel. Hester v. French, 985 F.3d 165, 18284 (2d Cir. 2021). Even before Espinoza, the Sixth and

Tenth Circuits rejected similar attempts to exclude the

religious from generally available benefits. Those decisions cannot be reconciled with the Ninth Circuit’s

below. If anything, Free Exercise Clause protections

should apply even more strongly when parents teach

their children in their own homes.

The issue is exceptionally important. The two

programs here alone serve more than 15,000 students.

California’s state-sanctioned discrimination falls

6

hardest on families most in need of educational alternatives—families of limited means, those who have

children with disabilities, those with children escaping

bullying, those who belong to minority faiths, and military families moving from place to place. The decision

below creates a dangerous playbook for denying public

benefits to religious people—find a way to spin the

benefit as “public” and avoid First Amendment scrutiny altogether.

As three Members of this Court recently warned,

the Ninth Circuit has “significantly misunderstood”

this Court’s Free Exercise precedents and needs a

“general course correction.” Mirabelli v. Bonta, 607

U.S. 492, 501 (2026) (Barrett, J., concurring). The decision below provides a much-needed opportunity to do

just that and ensure that parents who most need educational alternatives for their children aren’t impermissibly denied those opportunities in violation of the

Constitution’s religious liberty guarantees.

1. For more than three decades, California has allowed parents to secure education for their children

outside of “the existing school district structure.” Cal.

Educ. Code § 47601. Promoting alternative approaches, the State recognized, can help “[i]ncrease

learning opportunities for all pupils,” “[e]ncourage the

use of different and innovative teaching methods,”

“stimulate continual improvements in all public

schools,” and “[p]rovide parents and pupils with expanded choices in the types of educational opportunities that are available within the public school system.” Ibid. In keeping with these purposes, the State

has authorized the establishment of charter schools

that are publicly funded but run by private individuals

7

or entities. See Wells v. One2One Learning Foundation, 39 Cal. 4th 1164, 1178 (2006).

For even longer, California has authorized independent study as an “alternative to classroom instruction” for students enrolled in either traditional public

schools or charter schools “to meet the[ir] educational

needs.” Cal. Educ. Code § 51745(a); Cal. Code Regs. tit.

5, § 11700(c); see Anderson Union High School District

v. Shasta Secondary Home School, 4 Cal. App. 5th 262,

271 (2016). In these independent-study programs, students “receive instruction in their homes, and the direct educators are their parents.” App. 18a. Parents

who want to enroll their children in independent study

enter into an agreement with the charter school that

specifies “[t]he objectives and methods of study” for

their child’s work and “the methods used to evaluate

that work.” Cal. Educ. Code § 51747(g)(2); see also Cal.

Code Regs. tit. 5, § 11702.

The independent-study route affords parents

“great flexibility” to select among “pre-existing curricula” or “create their own.” App. 18a. Schools “assist

parents by paying for educational materials and services the parents select,” consistent with California’s

goal of providing “services and resources to enable pupils to complete their independent study successfully.”

App. 20a (Bumatay, J., dissenting from denial of rehearing en banc); Cal. Educ. Code §§ 51746,

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

11701.5. The State’s role is limited to ensuring that

the independent-study programs comply with state

educational standards. Credentialed teachers meet

with parents “to provide guidance, approv[e] expenditures of state funds, and revie[w] work samples for

8

quality, completion, and mastery of California educational standards.” App. 20a (Bumatay, J., dissenting

from denial of rehearing en banc) (citing Cal. Educ.

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

Regs. tit. 5, § 11700(i)). But they play no role in selecting the curriculum or teaching it. That, by design, is

the parents’ role.

This case involves independent-study programs

administered by Blue Ridge Academy and Visions in

Education, two tuition-free charter schools serving

families across nearly a dozen California counties.

App. 10a-11a. The programs are built on parental

choice. Visions describes its Home School Academy as

offering “curriculum and instructional support to parent educators who choose to homeschool their children.” 3 C.A. E.R. 370. Parents select the curriculum

and educate their children in their own homes. App.

71a-72a. Visions gives each family an instructional

budget that parents direct to curriculum, materials,

and services of their choice. Ibid. It identifies the parent or guardian as the student’s “[p]rimary educator.”

3 C.A. E.R. 374.

Blue Ridge takes a similar approach. Its “homeschool model” is designed to provide “flexibility” and

can be “tailor[ed] to ‘each student’s individualized

learning style.’ ” App. 20a (Bumatay, J., dissenting

from denial of rehearing en banc). Parents direct state

funds to books, supplies, technology, field trips, and

other learning resources they select. App. 72a-73a; 3

C.A. E.R. 479, 511-12. Parents teach their children at

home using materials they’ve chosen. 3 C.A. E.R. 47980.

9

Charter-school employees provide oversight of the

independent-study programs and offer support to parents. Blue Ridge families meet with a credentialed

“Homeschool Teacher” about every 20 school days. 3

C.A. E.R. 479-80, 509. The employee reviews attendance records and work samples and answers questions. Ibid. Visions employees likewise review proposed expenditures and samples of student work for

completion and mastery of state standards. Id. at 481.

2. Petitioners are three devout Christian families

who participate—or participated—in those programs.

App. 10a-11a. John and Breanna Woolard homeschool

their daughter through Blue Ridge. Ibid. Their two

school-aged sons previously participated in homeschooling through Blue Ridge. See 3 C.A. E.R. 474,

476, 482. Diana Gonzales and her husband Hector are

guardians of two school-aged grandchildren who are

enrolled at Blue Ridge. App. 11a; 3 C.A. E.R. 476, 482.

Carrie Dodson, a widowed mother, enrolled her son in

Visions. App. 11a; 3 C.A. E.R. 477.

These families are all called by their Christian

faith to ensure that their children are educated consistent with that faith and brought up in the family’s

religious worldview. 3 C.A. E.R. 474, 482, 486. They

share that religious commitment to faith-based education with “many Christians, Jews, Muslims, and others,” for whom “the religious education of children is

not merely a preferred practice but rather a religious

obligation.” Mahmoud, 606 U.S. at 547. Indeed, “[f]or

many people of faith” like petitioners, “there are few

religious acts more important than the religious education of their children.” Ibid. Petitioners believed

that the independent-study programs at Blue Ridge

10

and Visions gave them a way to meet their children’s

individual academic needs while adhering to the tenets of their faiths.

But California has refused to honor petitioners’

desire to instill their faith in their children as part of

their independent-study programs. The California

Constitution provides that “sectarian or denominational doctrine” may 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. The California Education Code also requires charter-school programs to be “nonsectarian.” Cal. Educ.

Code § 47605(e)(1). Those laws have a “shameful pedigree”—many states enacted these no-aid provisions

(called Blaine Amendments) in their state constitutions in the 19th century as part of a movement “born

of bigotry” against Catholics. Espinoza, 591 U.S. at

482 (citation omitted).

Blue Ridge and Visions invoked those provisions

as requiring categorical bans on any materials deemed

“religious” in the independent-study programs. Blue

Ridge’s handbook says that “[a]ll orders” by parents of

state-funded educational materials and services “must

be secular.” 3 C.A. E.R. 512. Citing that policy, school

officials told the Woolard and Gonzales families that

they couldn’t use the funding to purchase—or include

in their approved curriculum—“any curriculum products, classes, etc.” that “contain religious content,” are

“faith-based,” or are “non-secular in nature.” Id. at

483-85. Visions likewise told Ms. Dodson that it

couldn’t “approve or consider work from a faith-based

curriculum,” and couldn’t approve the use of any “religious materials to complete independent study

11

assignments,” even when Ms. Dodson selected and

paid out of pocket for the curriculum. Id. at 487-88.

The bans don’t turn on academic quality. The

schools never claimed that any of petitioners’ “chosen

academic materials [didn’t meet] California’s educational standards.” App. 23a-24a (Bumatay, J., dissenting from denial of rehearing en banc). The Woolards

sought to use materials by William Penn and Jonathan Edwards for a unit on colonial America. Blue

Ridge rejected them solely because of their “religious

content.” 3 C.A. E.R. 483. Later the Woolards were

told that while the “[a]cademics” of another proposed

curriculum were “fine,” its “religious aspect” meant it

couldn’t be used. Id. at 483-84.

The Gonzales family submitted a grammar exercise containing the sentence “God sends the rain to

help plants grow.” 3 C.A. E.R. 516. Blue Ridge refused

to give credit for the work because the program “can’t

accept any work sample with any religious wording on

it.” Id. at 485-86. The school also refused to allow the

Gonzales family to use an economics textbook that discussed St. Thomas Aquinas alongside John Stuart Mill

and Karl Marx on the basis that it “contains a Biblical

worldview.” Ibid.

Ms. Dodson purchased a faith-based curriculum

with her own money. 3 C.A. E.R. 487, 491-92. A school

employee told her that the curriculum “sounds amazing,” but Visions wouldn’t approve or credit work from

any faith-based curriculum. Id. at 487. Visions rejected a math worksheet—even though it contained no

religious language—because it came from a religious

publisher. Id. at 488, 518. The school went on to deny

12

credit for nearly all her son’s submitted work based on

those materials—and although school administrators

identified no academic deficiency in his work, they ultimately expelled him. Id. at 488-89.

These programs impose no comparable restrictions on secular viewpoints. Blue Ridge’s categorical rule is simply that school materials “must be secular.” 3 C.A. E.R. 512. So parents have broad flexibility to choose among secular materials and approaches.

Id. at 481, 506, 508, 512. But a religious viewpoint—

or even just religious content or a publisher deemed

religious—disqualifies an otherwise acceptable book,

assignment, or course. Id. at 483, 485-89, 516, 518. At

bottom, “parents maintain wide latitude to decide

what’s best for their children’s education—unless they

choose a faith-based education.” App. 21a (Bumatay,

J., dissenting from denial of rehearing en banc).

3. Petitioners brought this § 1983 suit against

Blue Ridge, Visions, and various state and local school

officials. They alleged that California’s categorical exclusion of faith-based curricula violates the Free Exercise and Free Speech Clauses and sought declaratory

and injunctive relief and nominal damages. App. 66a.

The district court dismissed the suit. The court

held that although the charter schools singled out

“non-secular (religious) materials” and assignments

for unfavorable treatment, that wasn’t a Free Exercise

violation because the programs were “public homeschool[s]” and could impose nonsectarian requirements without “burden[ing] [petitioners’] practice of

religion.” App. 66a, 75a-77a. The court similarly rejected the Free Speech claim, describing the teaching

13

that petitioners provided to their children at home as

“government speech.” App. 76a.

4. A Ninth Circuit panel affirmed. The panel

acknowledged that, as part of the independent-study

programs, parents teach their children at home and

have “great flexibility” to select or create curricula.

App. 62a. But it held that the programs were “sufficiently public to allow California to condition participation on parents’ use of secular curricula.” App. 59a60a. Because the First Amendment allows States “to

provide a ‘strictly secular’ public education,” the panel

reasoned, the independent-study programs triggered

no free-exercise scrutiny. Ibid. (quoting Carson, 596

U.S. at 785). As support for its determination that the

programs were “sufficiently public,” the panel noted

that they were free, open to all students subject to capacity, regulated by state standards, and supervised

by credentialed teachers. App. 60a-62a. The panel rejected the Free Speech claim based on similar logic,

holding that the parent-driven curricula were “an ‘expression of [the charter schools’] policy’ ” and thus government speech unprotected by the First Amendment.

App. 63a-64a.

5. After petitioners sought rehearing en banc, the

panel amended its opinion. The amended opinion deleted the phrase “sufficiently public” and instead held

that the independent-study programs have the “critical features” of “public schools,” which “defeat[s] [the]

free exercise claim.” App. 8a, 15a-18a. The government-speech holding remained unchanged. App. 18a19a.

14

The full court denied rehearing en banc over the

dissenting votes of five judges. App. 20a-31a. Judge

Bumatay, joined by Judges R. Nelson, Collins, VanDyke, and Tung, wrote that the “profoundly wrong”

panel decision had “condone[d] th[e] unequal treatment of religious families” in contravention of “a wall

of Supreme Court authority.” App. 21a-22a. Under

those precedents, Judge Bumatay explained, “once

[California] decides to offer parents financial assistance for education that the parents conduct,” it can’t

“disqualif[y]” parents “‘solely because they are religious.’ ” App. 25a-26a (quoting Espinoza, 591 U.S. at

487).

Judge Bumatay went on to reject the panel’s attempt to use “made-up labels to escape the free exercise guarantee.” App. 30a. Calling the independentstudy programs “public” based on the limited role

played by charter-school employees “doesn’t transform

parents teaching their children around the kitchen table with textbooks they choose into agents of the State

providing ‘public school’ education.” App. 22a, 29a30a. Judge Bumatay warned that the panel’s decision

would have a “disturbing impact” “[g]oing forward,”

giving “carte blanche” to state officials to exclude religious people from “pretty much anything” by labeling

it “public.” App. 30a-31a.

Judge VanDyke, joined by Judges Bumatay and

Tung, also filed a dissent from denial of rehearing en

banc. App. 31a-48a. In Judge VanDyke’s view, California’s prohibition on “sectarian” education unconstitutionally “discriminate[s] between competing religious

beliefs” by “allow[ing] the teaching of nonsectarian, generic Christian doctrine in public schools, but not the

15

teaching of any sectarian doctrine” unique to specific

Christian denominations or to non-Christian faiths.

App. 33a-34a. Judge VanDyke concluded that “facially

discriminatory Blaine Amendments like California’s”

violate the First Amendment several times over and

should be left “on the ash heap of constitutional history.” App. 48a.

REASONS FOR GRANTING THE PETITION

I.

The Decision Below Conflicts With This

Court’s Precedent.

Under a proper application of this Court’s precedent, “[t]his should have been an easy case.” App. 31a

(Bumatay, J., dissenting from denial of rehearing en

banc). California authorizes and offers parents financial support to teach their children at home, but denies

that authorization and funding solely for curricula,

materials, and anything else the State deems religious, faith-based, or sectarian. Under Trinity Lutheran, Espinoza, and Carson, that discrimination

against religion is an open-and-shut Free Exercise

Clause violation.

To avoid that straightforward conclusion, the

Ninth Circuit claimed that under Carson, these homeschool programs are public schools to which the Free

Exercise Clause doesn’t apply. That conclusion defies

this Court’s precedent and common sense.

A. A State Can’t Exclude Religious Parents

From A Benefit They Would Otherwise

Receive But For Their Religion.

California “condition[s] participation in the homeschool program on disavowing a faith-based

16

curriculum”—it provides funds for and authorizes the

use of curricular materials for independent-study programs, but only if they’re “secular.” App. 25a (Bumatay, J., dissenting from denial of rehearing en banc).

That “discrimination against religion” violates the

First Amendment. Carson, 596 U.S. at 781.

This Court has “repeatedly held that a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.” Carson, 596 U.S. at 778. The Court made that

“unremarkable” principle crystal clear in a trio of

cases in the past decade. Trinity Lutheran, 582 U.S. at

462.

First, in Trinity Lutheran, the Court held unconstitutional a Missouri program that offered grants to

nonprofits for upgrading playgrounds but denied those

grants to religious entities. 582 U.S. at 454-55. To

“disqualif[y]” otherwise eligible funding recipients

“from a public benefit solely because of their religious

character,” the Court explained, is to “impose[] a penalty on the free exercise of religion that triggers the

most exacting scrutiny.” Id. at 462.

Second, in Espinoza, the Court applied that rule

to a Montana program that provided tax credits to donors who sponsored private-school scholarships. 591

U.S. at 468-69. The Montana Supreme Court invalidated the program based on its determination that the

state constitution’s nonsectarian requirement barred

extending that benefit to religious schools. Id. at 46972. This Court again reversed. It held that Montana

couldn’t refuse to provide a public benefit (the tax

credits) for use at certain schools “solely because of

17

the[ir] religious character” without overcoming strict

scrutiny. Id. at 476-79.

Third, the Court held in Carson that Maine

couldn’t simultaneously offer tuition-assistance payments to parents sending their children to public or

private secondary schools but then deny that assistance to parents who wanted to use the payments for

private religious schools. 596 U.S. at 771-73. The

Court clarified that a State runs afoul of the Free Exercise Clause whether it discriminates based on the

“religious status” of the aid recipients or “‘religious

uses of government aid.’ ” Id. at 786-89. The Court

rejected Maine’s attempt to immunize its discriminatory program by claiming that it was only seeking to

provide the “rough equivalent of ” public school. Id. at

782.

These three cases establish one simple rule. Once

a State subsidizes education outside the walls of its

public schools, it can’t disqualify an otherwise-eligible

choice because the State deems it religious. Carson,

596 U.S. at 785. “Yet this discrimination is exactly

what happens with California’s homeschool program.”

App. 25a (Bumatay, J., dissenting from denial of rehearing en banc). California authorizes and pays for

secular curricula but not curricula that have religious

content or are published by a religious publisher. It

accepts secular work samples but rejects religious

ones. It allows an otherwise-acceptable course unless

the course is faith-based. In the schools’ own words,

all orders “must be secular,” and no “faith-based curriculum” will be considered for instruction or attendance. 3 C.A. E.R. 487, 512. That is patent “discrimination against religion.” Carson, 596 U.S. at 781.

18

What’s more, this Court recently removed any

doubt that the Free Exercise Clause’s protection

against religious discrimination is at its zenith when

it comes to parents’ choices about their children’s

education. In Mahmoud, the Court reaffirmed a

century of decisions holding that “the right of parents

‘to direct the religious upbringing of their’ children”

enjoys “a generous measure of protection from our

Constitution”—protection that extends “into the

public school classroom.” 606 U.S. at 547; accord, e.g.,

Wisconsin v. Yoder, 406 U.S. 205, 213-14 (1972); Pierce

v. Society of the Sisters of the Holy Names of Jesus &

Mary, 268 U.S. 510, 535 (1925). That right isn’t

abridged only by “policies that compel children to

depart from the religious practices of their parents,”

but also by “policies that impose more subtle forms of

interference with the religious upbringing of children.”

Mahmoud, 606 U.S. at 548.

That is this case. California’s ban on faith-based

independent study denies authorization, funding, and

credit when parents “teach religion in the confines of

[their] own home[s]”—the most obvious place where

parents exercise their right to direct their children’s

religious upbringing. Mahmoud, 606 U.S. at 547. The

policy therefore carries “‘a very real threat of undermining’ the religious beliefs that the parents wish to

instill in their children.” Id. at 553 (quoting Yoder, 406

U.S. at 218). Policies like these that prevent parents

from “teach[ing] their religious beliefs and practices to

their children at home” pose a high risk of violating

the Free Exercise Clause. Id. at 606 n.6 (Sotomayor,

J., dissenting).

19

California has identified no compelling interest

that could justify the discrimination here. There’s no

claim that the religious materials—such as works by

Jonathan Edwards and William Penn—wouldn’t meet

academic standards. And because “a neutral benefit

program” that directs public funds to religious organizations via recipients’ “independent choices” doesn’t

“offend the Establishment Clause,” California can’t

rely on antiestablishment concerns to justify its treatment of petitioners. Carson, 596 U.S. at 781. If anything, the State’s attempt to distinguish between “sectarian” and “nonsectarian” education heightens Establishment Clause concerns. App. 43a-44a (VanDyke, J.,

dissenting from denial of rehearing en banc) (citing

Catholic Charities Bureau, Inc. v. Wisconsin Labor &

Industry Review Commission, 605 U.S. 238, 254

(2025)).

California’s “nonsectarian” requirement for homeschooling runs directly contrary to this Court’s publicbenefit cases and Mahmoud. The Ninth Circuit badly

erred in failing to recognize that the policy “is odious

to our Constitution * * * and cannot stand.” Trinity

Lutheran, 582 U.S. at 466-67.

B. Free Exercise Protections Can’t Be

Evaded By Labeling Homeschooling

“Public School.”

The Ninth Circuit sought to evade this Court’s

precedents by labeling homeschooling “public school”

free from the First Amendment’s protections against

discrimination. App. 15a-18a. That label also did separate work on petitioners’ Free Speech claim, leading

the court to treat the parents’ curriculum choices as

20

the charter schools’ own speech rather than the parents’ speech. App. 18a-19a. Both holdings rested on

the same flawed premise: that parents teaching their

own children at home using materials they select are

carrying out the State’s own educational program.

That premise “defies common sense as well as established law.” App. 28a-29a (Bumatay, J., dissenting

from denial of rehearing en banc).

Remarkably, the Ninth Circuit asserted that this

Court’s decision in Carson supports its conclusion.

The court began with Carson’s recognition that a State

“may provide a strictly secular education in its public

schools.” 596 U.S. at 785. But that says nothing about

whether a State may discriminate against religion

when it comes to educational benefits the State has

chosen to extend—benefits directed by parents who select curricula and materials for teaching their children

inside their own homes.

The Ninth Circuit decided to examine “whether

the independent study programs have the critical features” this Court “found characteristic of public

schools in Carson.” App. 15a. Based on the panel’s

weighing of those “features,” it concluded that “[t]he

extensive legal requirements applicable to” the independent-study programs “make them public school

programs.” App. 16a-18a. Which meant, according to

the panel, that the Free Exercise Clause doesn’t apply

inside petitioners’ homes and the State was free to discriminate against religion.

All of this “fundamentally misunderstands Carson’s point.” App. 28a (Bumatay, J., dissenting from

denial of rehearing en banc). Carson’s statement that

21

a State “may provide a strictly secular education in its

public schools,” 596 U.S. at 785, referred to conventional government-owned and operated schools; it

didn’t hold that an educational program becomes a

public school merely because it shares some features

of public schooling. Carson discussed some of the differences between public schools and private schools in

the context of rejecting Maine’s argument that its tuition assistance program merely sought to deliver the

“rough equivalent” of a secular public education. Id.

at 782-83. Nothing in that analysis purported to announce a subjective, multi-factor test for shielding discrimination in providing public benefits from constitutional scrutiny.

Far from it. When Maine argued that its tuitionassistance program could discriminate against religion because it simply delivered the “rough equivalent” of public education, the Court rejected that argument in no uncertain terms because the program operated through parental choice. 596 U.S. at 782.

Maine had “decided not to operate schools of its own,

but instead to offer tuition assistance that parents

may direct to the public or private schools of their

choice.” Id. at 785. Once Maine made that choice, the

program became subject to the rule against denying

benefits based on religion. Ibid.

The Court also rejected the notion that discrimination against religion can be insulated from the Free

Exercise Clause by creative labeling—explaining that

“the definition of a particular program can always be

manipulated to subsume the challenged condition.”

596 U.S. at 784 (quoting Agency for International Development v. Alliance for Open Society International,

22

Inc., 570 U.S. 205, 215 (2013)). Allowing that maneuver would impermissibly reduce constitutional scrutiny to “‘a simple semantic exercise.’ ” Ibid. (quoting

Agency for International Development, 570 U.S. at

215). Constitutional protection turns on substance,

“not on the presence or absence of magic words.” Id.

at 785.

The Ninth Circuit did exactly what Carson forbids

when it accepted respondents’ argument that homeschools are public schools. Although the Ninth Circuit

pulled back from the district court’s self-contradictory

“public homeschool” label, it did the same thing in

practice by first deeming the programs “sufficiently

public” to be exempt from free-exercise scrutiny. App.

59a-60a. After petitioners sought rehearing, the panel

amended its opinion to call them “public school programs.” App. 18a. But “mere labels” can’t provide an

“escape” hatch from the First Amendment. Bigelow v.

Virginia, 421 U.S. 809, 826 (1975). The labels may

have changed, but the substance—who chooses the

curriculum, who teaches it, where the teaching occurs—did not.

And that’s what matters. The through line from

Espinoza to Carson to this case is parental choice. In

the program here, parents choose the books and

courses, teach and grade their own children, and do so

in their own homes. See App. 28a-30a (Bumatay, J.,

dissenting from denial of rehearing en banc). California designed this program to leave the choice of which

instructional materials to use to parents as a means of

fulfilling the program’s stated goal of improving access

to educational options for all families. See supra pp.

6-9. The curricula must satisfy “general performance

23

metrics,” but it’s still the parents—not the schools—

who choose what curriculum to use, and their choice

doesn’t have to “‘resemble that taught in the [California] public schools.’ ” App. 28a-30a (Bumatay, J., dissenting from denial of rehearing en banc) (quoting

Carson, 596 U.S. at 783).

To be sure, charter-school employees approve expenditures and periodically review work samples for

compliance with state standards.

App. 28a-30a

(Bumatay, J., dissenting from denial of rehearing en

banc). But that limited oversight doesn’t turn “parents teaching their children around the kitchen table”

into “agents of the State.” App. 29a (Bumatay, J., dissenting from denial of rehearing en banc). There’s a

“world of difference” between government employees

using government-selected curriculum inside government-school walls and parents using parent-selected

curricula to teach their own children inside their own

homes. Ibid. No amount of relabeling can “reconceptualiz[e]” that reality. Carson, 596 U.S. at 785.

Even taken on its own terms, the Ninth Circuit’s

reading of Carson falls apart. The court deemed the

programs public because they are tuition-free, admit

students subject to capacity, apply state standards and

assessments, and operate under credentialed supervision. App. 15a-18a. But the Maine private schools in

Carson could be fully state-funded and bore state curricular mandates; those drawing 60% or more of their

students from the program also had to meet Maine’s

statewide academic standards and give its annual

tests. 596 U.S. at 772-73, 784. The Court still recognized they weren’t public schools. Id. at 785. So the

24

conflict between Carson and the decision below cannot

be avoided.

The bottom line is that the Ninth Circuit’s effort

to “redefin[e]” homeschool as public school threatens

to “rende[r]” Trinity Lutheran and the cases that followed it “essentially meaningless.” Carson, 596 U.S. at

784-85. On top of that, the assumption that deeming

homeschooling “public” obviates any need for constitutional scrutiny altogether puts the Ninth Circuit directly at odds with Mahmoud’s emphasis that religious-liberty protections still have force “in a public

school setting.” 606 U.S. at 547.

The Ninth Circuit’s relabeling also drove the

court’s equally erroneous free-speech holding, which

treated parent-chosen curricula as the charter schools’

own. App. 18a-19a. That conclusion defies this Court’s

repeated admonitions that “the First Amendment doubly protects religious speech,” Kennedy v. Bremerton

School District, 597 U.S. 507, 523 (2022), and that excluding speech because it is “religious in nature”

amounts to “impermissible viewpoint discrimination,”

Good News Club v. Milford Central School, 533 U.S. 98,

110-12 (2001); accord Lamb’s Chapel v. Center

Moriches Union Free School District, 508 U.S. 384, 393

(1993).

The Ninth Circuit managed to “greenli[ght] state

discrimination against religion” several times over.

App. 20a (Bumatay, J., dissenting from denial of rehearing en banc). Its misguided approach to the First

25

Amendment conflicts with this Court’s precedent and

warrants this Court’s review.1

II. The Decision Below Conflicts With Decisions From Other Circuits.

The Ninth Circuit’s departure from this Court’s

precedent is reason enough to grant review. But the

decision also makes the Ninth Circuit an outlier

among the courts of appeals. Other circuits applying

this Court’s precedent correctly ask a straightforward

question—has government excluded an otherwise-eligible private choice on the basis of religion. The Ninth

Circuit alone applies an amorphous, multi-factor test

to discern whether a public benefit is sufficiently “public” to evade constitutional scrutiny altogether. That

conflict is an additional reason to grant review.

Most prominently, the Second Circuit in A.H. ex

rel. Hester v. French held unconstitutional Vermont’s

Dual Enrollment Program, which paid for eligible

high-school students to take college courses at schools

where tuition was “publicly funded” but excluded religious schools. 985 F.3d 165, 171-72 (2d Cir. 2021). The

Second Circuit held that the “public funding” requirement affected “religious school students and no others”

1 This case presents a distinct question from St. Mary Catholic

Parish in Littleton v. Roy, 154 F.4th 752 (10th Cir. 2025), cert.

granted, No. 25-581 (U.S. Apr. 20, 2026). That case concerns how

Carson applies when the government imposes a facially neutral

condition on participation in a private-choice benefit program.

This case, by contrast, presents the distinct question whether the

government may expressly discriminate against religious

exercise by calling parent-directed homeschooling a “public

school program” free from First Amendment scrutiny altogether.

26

and likely violated the Free Exercise Clause for that

reason. Id. at 183-84; see also In re A.H., 999 F.3d 98,

105-06 (2d Cir. 2021) (in challenge to related Vermont

program, ordering school districts to disburse funds to

students attending religious schools). At no point did

the court question whether the private religious

schools being funded were somehow “public.”

Other courts have taken a similar approach even

before this Court’s most recent cases striking down religious discrimination in public-benefit programs. In

Hartmann v. Stone, the Sixth Circuit held that the U.S.

Army couldn’t constitutionally operate an on-base

daycare program that placed soldiers’ children with

care providers but barred the providers from engaging

in any religious practices while caring for the children.

68 F.3d 973, 975-77 (6th Cir. 1995). The Sixth Circuit

held that despite the Army’s significant “regulatory

oversight” of the program, the system ultimately operated “on the voluntary action of parents,” and the providers were independent actors who couldn’t be cast as

“the Army’s alter egos.” Id. at 978-83. By interfering

with the “private acts of religious conscience and practice” by the “willing famil[ies] taking care of children

willingly entrusted to them,” the Sixth Circuit reasoned, the Army had violated the First Amendment.

Id. at 984-86.

Similarly, the Tenth Circuit in Colorado Christian

University v. Weaver held that Colorado’s exclusion of

“pervasively sectarian” institutions from state scholarship programs violated the Free Exercise Clause. 534

F.3d 1245, 1250, 1261 (10th Cir. 2008). Colorado required state officials administering a scholarship program to scrutinize religious institutions’ governance,

27

faculty and student composition, and teaching to determine whether they were “pervasively sectarian.”

Id. at 1250-54. The program offered scholarships to

both public and private colleges, but the Tenth Circuit

never asked whether the private colleges were somehow “public” institutions not subject to the First

Amendment. See id. at 1250.

In conflict with the Ninth Circuit—which has essentially revivified a zombie Lemon test to stalk the

Free Exercise Clause—the Second, Sixth, and Tenth

Circuits faithfully apply this Court’s straightforward

rule that government cannot discriminate against the

religious when it comes to extending public benefits

that flow through private choices. Especially given the

Ninth Circuit’s status as the largest and most populous circuit, this Court’s intervention is needed to restore uniformity on this important, consequential

question of religious liberty.

III. The Question Presented Is Exceedingly Important And This Case Is The Ideal Vehicle

For Resolving It.

The decision below has “disturbing” implications

that call out for this Court’s intervention. App. 30a31a (Bumatay, J., dissenting from denial of rehearing

en banc). “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.” App. 30a. That will

not only stifle religious liberty but also erode First

Amendment freedoms across the board. The Ninth

Circuit has repeatedly erred in approving state

28

restrictions on Free Exercise rights, and a “course correction” is warranted. App. 22a (citation omitted).

A. The practical stakes of the decision for families

like petitioners are substantial. Blue Ridge and Visions alone serve more than 15,000 students across

nearly a dozen counties. Brief of Liberty Justice Center et al. as Amici Curiae 5-6, Woolard v. Thurmond,

No. 24-4291 (9th Cir. Nov. 3, 2025) (LJC Amicus Br.).

More than one-third of families who homeschool their

children do so to provide religious education. Brief of

National Council of Young Israel as Amicus Curiae 6,

Woolard, No. 24-4291 (9th Cir. Nov. 3, 2025) (Young Israel Amicus Br.). If permitted to stand, the decision

below will force many families to choose between exercising their religion and educating their children.

That’s a choice no parent should have to make—and

forcing parents to make it anyway renders “the right

of parents ‘to direct the religious upbringing of their’

children” nothing more than “an empty promise.”

Mahmoud, 606 U.S. at 547.

These harms will fall most heavily on the families

least able to bear them. Homeschooling can make educational alternatives accessible to low-income parents who can’t afford private-school tuition, provide

safety for children escaping bullying, offer flexibility

for children with disabilities, and ensure continuity for

military families. LJC Amicus Br. 16-25. Excluding

religion narrows the academic options available to the

families least able to replace the lost benefit themselves—particularly because options like homeschooling and private school often “com[e] with a hefty price.”

Mahmoud, 606 U.S. at 562.

29

For many observant families, traditional public

schools can’t provide the religious formation their

faith requires. As Young Israel explained below, for

example, public schools can’t accommodate core Orthodox Jewish needs, and some Jewish communities are

too small to support a Jewish school. Young Israel

Amicus Br. 5-7. For these families, homeschooling may

be the only practical option. Id. at 6-7. The same concern spans a wide range of faiths, as religious education is an obligation for Hindu, Jewish, Christian, and

Muslim parents alike. Brief of Coalition for Jewish

Values as Amicus Curiae 1-3, 11-13, Woolard, No. 244291 (9th Cir. Nov. 3, 2025); LJC Amicus Br. 1-4; Young

Israel Amicus Br. 1-3; Brief of Association of Christian

Schools International as Amicus Curiae 1-4, Woolard,

No. 24-4291 (9th Cir. Nov. 3, 2025).

The Ninth Circuit’s decision also opens the door to

myriad other intrusions on individual liberty. “It

seems obvious that parents don’t forfeit their constitutional rights just because they choose to educate their

children at home, rather than at a public school.”

McMurry v. Weaver, 142 F.4th 292, 301 (5th Cir. 2025)

(Ho, J., concurring). Yet in a recent Fifth Circuit case,

the government argued that “parents who choose to

homeschool convert their private homes into public

schools for Fourth Amendment purposes.” Ibid. By

the government’s logic, “police officers can take children away from their home, and prevent their parents

from communicating with them, if they’re homeschooled.” Ibid. The Fifth Circuit rejected that argument, but if courts like the Ninth Circuit manage to

“justify intrusions on [such] bedrock libert[ies] based

on the educational choices parents make for their

30

children,” the potential ripple effects are limitless. Id.

at 303.

B. The impact of the decision below extends well

beyond California’s independent-study program. The

Ninth Circuit’s decision creates perverse incentives for

government to “labe[l] an activity as ‘public’ ” and then

“receiv[e] carte blanche to discriminate against the religious,” thus “flout[ing]” Trinity Lutheran and the

cases relying on it “and resurrect[ing] the divisive purpose of the Blaine Amendment and its state-level analogues with a fury.” App. 30a-31a (Bumatay, J., dissenting from denial of rehearing en banc). If parents

teaching a curriculum they choose to their children in

their home can be converted into a “public school program,” then anything can be. Ibid. The escape hatch

opened by the decision below has no apparent bottom.

The Ninth Circuit is no stranger to such “cramped

reading[s]” of the Free Exercise Clause. App. 30a-31a

(Bumatay, J., dissenting from denial of rehearing en

banc). This Court was forced to “summarily rejec[t]

the Ninth Circuit’s analysis of California’s COVID restrictions on religious exercise” five times. Tandon v.

Newsom, 593 U.S. 61, 64 (2021) (per curiam). By the

fifth go-around, it was “unsurprising” that relief was

warranted. Ibid. A year later, in Kennedy, the Court

reversed the Ninth Circuit for “failing to heed th[e

Court’s] guidance” when it adopted an overly broad

understanding of the Establishment Clause—and a

correspondingly narrow view of the Free Exercise

Clause—that was out of touch with history and tradition. 597 U.S. at 532-36.

31

Most recently, in Mirabelli, the Court vacated a

Ninth Circuit stay that blocked relief for parents asserting Free Exercise rights in California schools. 607

U.S. at 496-99. Justice Barrett, joined by the Chief

Justice and Justice Kavanaugh, explained that the

Ninth Circuit had “significantly misunderstood”

Mahmoud and that a “general course correction” was

needed. Id. at 501 (Barrett, J., concurring). This case

is an ideal vehicle for providing that much-needed

course correction and restoring First Amendment protection against religious discrimination in programs

that empower private choices.

The Free Exercise Clause doesn’t permit California to make families choose between funding and

faith. The Court should grant review, reverse the decision below, and restore uniformity on this exceedingly important question of religious liberty.

32

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

KELLY J. SHACKELFORD

JEFFREY C. MATEER

HIRAM S. SASSER, III

DAVID J. HACKER

KAYLA A. TONEY

FIRST LIBERTY INSTITUTE

2001 West Plano Parkway

Suite 1600

Plano, Texas 75075

NICOLE BRONNIMANN

KING & SPALDING LLP

1100 Louisiana, Suite 4100

Houston, Texas 77002

SETH I. EUSTER

KING & SPALDING LLP

1180 Peachtree Street, NE

Suite 1600

Atlanta, Georgia 30309

ALLYSON N. HO

Counsel of Record

JED GREENBERG

GIBSON, DUNN & CRUTCHER LLP

2001 Ross Avenue, Suite 2100

Dallas, Texas 75201

(214) 698-3100

AHo@gibsondunn.com

JUDSON O. LITTLETON

BRANDON C. WOLF

LAVI M. BEN DOR

GIBSON, DUNN & CRUTCHER LLP

1700 M Street, N.W.

Washington, D.C. 20036

BLAKE J. HIRST

GIBSON, DUNN & CRUTCHER LLP

333 South Grand Avenue

Los Angeles, California 90071

Counsel for Petitioners

August 20, 2026