Amicus Curiae Brief — John Woolard, et al., Petitioners v. Tony Thurmond, et al.

NO. 26-237

IN THE

Supreme Court of the United States

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

__________________________________

AMICUS CURIAE BRIEF OF

NC VALUES INSTITUTE

IN SUPPORT OF PETITIONERS

TAMI FITZGERALD

NC VALUES INSTITUTE

9650 Strickland Rd.

Suite 103-226

Raleigh, NC 27615

DEBORAH J. DEWART

Counsel of Record

111 Magnolia Lane

Hubert, NC 28539

(910) 326-4554

lawyerdeborah@outlook.com

Counsel for Amicus Curiae

NC Values Institute

i

TABLE OF CONTENTS

TABLE OF CONTENTS .............................................. i

TABLE OF AUTHORITIES...................................... iii

INTEREST OF AMICUS CURIAE ............................ 1

INTRODUCTION AND SUMMARY OF

THE ARGUMENT....................................................... 1

ARGUMENT ............................................................... 3

I.

CALIFORNIA DISCRIMINATES AGAINST

RELIGION ................................................ ………3

A. California law facially discriminates

against religion. ............................................. 3

B. California discriminates against families

who take their religious faith seriously

and integrate it into all of life. ...................... 4

C. California’s discriminatory exclusion of

religious curriculum creates improper

entanglement. ................................................ 6

D. The Ninth Circuit characterizes the

independent study programs as “public

schools,” twisting words to escape First

Amendment scrutiny. .................................... 8

ii

II. CALIFORNIA DISCRIMINATES IN THE

DISTRIBUTION OF A PUBLIC EDUCATIONAL

BENEFIT ............................................................. 9

A. The

recent

Trinity-Espinoza-Carson

trilogy highlights the requirement for

equal treatment of religion ......................... 10

B. Parents may not be required to sacrifice

their constitutional rights as a condition

of receiving the curriculum funding—a

generally available public benefit. .............. 12

III. CALIFORNIA UNDERMINES TIME-HONORED

PARENTAL RIGHTS IN EDUCATION AND

RELIGION ....................................................…..13

A. Parents have the fundamental right to

direct the education of their children,

including their religious training ............... 14

B. The State does not have absolute,

unfettered authority in the selection of

public school curriculum. ............................ 17

IV. CALIFORNIA

WEAPONIZES

THE

GOVERNMENT SPEECH DOCTRINE TO

CHILL PRIVATE EXPRESSION.................…..19

CONCLUSION ......................................................... 22

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Bd. of Educ., Island Trees Union Free Sch. Dist.

No. 26 v. Pico,

457 U.S. 853 (1982) ............................................. 18

Bd. of Educ. v. Mergens,

496 U.S. 226 (1990) ............................................. 20

Bd. of Regents of Univ. of Wis. System v. Southworth,

529 U.S. 217 (2000) ............................................. 21

Brown v. Entertainment Merchants Ass’n,

564 U.S. 786 (2011) ............................................. 14

Cantwell v. Connecticut,

310 U.S. 296 (1940) ............................................. 16

Capitol Square Review and Advisory Bd. v. Pinette,

515 U.S. 753 (1995) ............................................. 20

Carson v. Makin,

596 U.S. 767 (2022) .......................... 2, 8-10, 12, 13

Church of Lukumi Babalu Aye, Inc. v. Hialeah,

508 U.S. 520 (1993) ....................................... 3, 5, 9

Colorado Christian University v. Weaver,

534 F.3d 1245 (10th Cir. 2008) ............................. 7

iv

Downs v. L.A. Unified Sch. Dist.,

228 F.3d 1003 (9th Cir. 2000) ............................. 19

Espinoza v. Mont. Dept. of Revenue,

591 U.S. 464 (2020) .....................2, 4, 10-12, 15-16

Everson v. Board of Education,

330 U.S. 1 (1947) ............................................. 9, 11

Griswold v. Connecticut,

381 U.S. 479 (1965) ............................................. 18

Hartmann v. Stone,

68 F.3d 973 (6th Cir. 1995) ............................. 7, 17

Johanns v. Livestock Mkgt. Ass’n,

544 U.S. 550 (2005) ............................................. 21

Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507 (2022) ............................................. 15

Lee v. Weisman,

505 U.S. 577 (1992) ............................................... 8

Locke v. Davey,

540 U.S. 712 (2004)).................................... 3, 4, 10

Loffman v. Cal. Dep't of Educ.,

119 F.4th 1147 (9th Cir. 2024) ........................... 13

Mahmoud v. Taylor,

606 U.S. 522 (2025) .................................. 12, 15-18

v

Marbury v. Madison,

5 U.S. 137 (1803) ................................................. 11

McDaniel v. Paty,

435 U.S. 618 (1978) ....................................... 10, 11

Meyer v. Nebraska,

262 U.S. 390 (1923) ....................................... 14, 18

Mirabelli v. Bonta,

146 S. Ct. 797 (2026) ..................................... 14, 15

Mitchell v. Helms,

530 U.S. 793 (2000) ................................... 5, 6, 7, 9

New York v. Cathedral Academy,

434 U.S. 125 (1977) ............................................... 6

NLRB v. Catholic Bishop of Chicago,

440 U.S. 490 (1979) ............................................... 6

Our Lady of Guadalupe School v. Morrissey-Berru

(“OLG”),

591 U.S. 732 (2020) ............................................. 16

Pierce v. Society of Sisters,

268 U.S. 510 (1925) ................................. 14, 15, 16

Pleasant Grove City v. Summum,

555 U.S. 460 (2009) ................................. 19, 20, 21

Prince v. Massachusetts,

321 U.S. 158 (1944) ............................................. 14

vi

Rendell-Baker v. Kohn,

457 U.S. 830 (1982) ............................................. 20

Riley's Am. Heritage Farms v. Elsasser,

32 F.4th 707 (9th Cir. 2022) ............................... 19

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

515 U.S. 819 (1995) ............................................. 21

Rust v. Sullivan,

500 U.S. 173 (1991) ............................................. 21

Sherbert v. Verner,

374 U.S. 398 (1963) ............................................. 11

Sons of Confederate Veterans, Inc. v. Comm’r of Va.

Dep’t of Motor Vehicles,

305 F.3d 241 (4th Cir. 2002) ............................... 22

Thomas v. Review Bd. of Indiana Employment

Security Div.,

450 U.S. 707 (1981) ............................................... 9

Tinker v. Des Moines Indep. Cmty. Sch. Dist.,

393 U.S. 503 (1969) ............................................. 18

Trinity Lutheran Church of Columbia, Inc. v. Comer,

582 U.S. 449 (2017) ............................ 2, 4, 9-12, 15

Troxel v. Granville,

530 U.S. 57 (2000) ......................................... 13, 14

vii

Walker v. Texas Div., Sons of Confederate Veterans,

Inc.,

576 U.S. 200 (2015) ............................................. 21

West Virginia Bd. of Ed. v. Barnette,

319 U.S. 624 (1943) ............................................. 17

Wisconsin v. Yoder,

406 U.S. 205 (1972) ........................................15-18

Woolard v. Thurman,

170 F.4th 701 (9th Cir. 2026) ................... 1, 3-5, 8,

12-13, 19-22

Constitutional Provisions

Cal. Const. art. IX, § 8 ................................................. 3

Statutes & Regulations

Cal. Educ. Code § 47605(e)(1) ..................................... 3

Cal. Educ. Code § 51746 ........................................ 1, 22

Cal. Educ. Code § 51747(g)(2) ..................................... 1

Cal. Educ. Code § 51747(g)(3) ............................... 1, 22

Cal. Educ. Code § 51747(g)(9)(A)(i) ............................ 1

Cal. Code Regs. Tit. 5, § 11700(i) .......................... 1, 22

viii

Other Authorities

Mark Edward DeForrest, An Overview and

Evaluation of State Blaine Amendments: Origins,

Scope, and First Amendment Concerns,

26 Harv. J. L. & Pub. Pol'y 551 (2003) ......... 11, 12

R. Bezanson & W. Buss,

The Many Faces of Government Speech,

86 Iowa L. Rev. 1377 (2001) ............................... 21

1

INTEREST OF AMICUS CURIAE1

Amicus curiae respectfully urges this Court to

grant the Petition and reverse the Ninth Circuit

decision.

NC Values Institute, formerly known as the

Institute for Faith and Family, is a North Carolina

nonprofit corporation that works in various arenas of

public policy to protect faith, family, and freedom. See

https://ncvi.org.

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

California has established a charter school system

that offers independent, home-based study programs

where parents, as direct educators, first “enter into a

contract with the [charter] school specifying the

objectives, methods of study, and methods used for

evaluating student work.” Woolard v. Thurman, 170

F.4th 701, 706 (9th Cir. 2026); see Cal. Educ. Code §§

51747(g)(2), (g)(9)(A)(i). The school purchases the

“appropriate materials and services necessary to

achieve the agreement's objectives.” Ibid., see Cal.

Educ. Code §§ 51746, 51747(g)(3); Cal. Code Regs. tit.

5, § 11700(i). These materials are chosen and then

1 Counsel of record for all parties received notice at least 10 days

prior to the due date of amicus curiae's intention to file this brief.

Amicus curiae certifies that no counsel for a party authored this

brief in whole or in part and no person or entity, other than

amicus, its members, or its counsel, has made a monetary

contribution to its preparation or submission.

2

requested by the parents—but only approved if the

curriculum selected is devoid of all religious content.

California’s

absolute

ban

on

religious

curriculum—even when driven by private choices and

taught directly by parents—is facial discrimination

against religion, anathema to the First Amendment.

Contrary to this Court’s precedent—particularly

Trinity Lutheran Church of Columbia, Inc. v. Comer,

582 U.S. 449, 460 (2017), Espinoza v. Montana Dep't

of Revenue, 591 U.S. 464, 482 (2020), and Carson v.

Makin, 596 U.S. 767, 785 (2022)—California

discriminates by requiring its citizens to sacrifice core

Free Exercise rights to receive an otherwise available

public benefit.

But California’s discrimination doesn’t stop there.

Parents—not

the

state—have

the

primary

responsibility to direct the upbringing of their

children, including their education and religious

training. California improperly usurps parental

rights while claiming to offer them choice and

flexibility in their children’s education. California’s

statutory scheme freely supports families who prefer

a wholly secular education but denies equal treatment

to those who take their religious faith seriously and

incorporate it into the training of their children.

Finally, California exploits the government

speech doctrine to transform the private speech of

parent educators into public speech exempt from First

Amendment scrutiny.

3

ARGUMENT

I.

CALIFORNIA DISCRIMINATES AGAINST

RELIGION.

A. California law facially discriminates

against religion.

"The minimum requirement of neutrality is that a

law not discriminate on its face." Church of Lukumi

Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 533 (1993).

“Discrimination on the face of a statute . . . is not like

a facially neutral law that happens to burden religious

exercise, as in Smith.” Locke v. Davey, 540 U.S. 712,

731 (2004) (Scalia, J., dissenting). In Locke, as in this

case, the statute’s facial discrimination caused an

“indignity . . . so profound that the concrete harm

produced can never be dismissed as insubstantial.”

Ibid. Blatant facial discrimination was present in

Locke, where “a Washington state scholarship

program . . . excluded students seeking a degree in

theology.” Woolard, 170 F.4th at 717 (Van Dyke, J.,

dissenting).

Under

California

law,

"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 "a charter school shall be

nonsectarian in its programs," Cal. Educ. Code §

47605(e)(1). Woolard, 170 F.4th at 706. "No public

money shall ever be appropriated for the support of

any sectarian or denominational school[.]" Cal. Const.

art. IX, § 8. This is facial discrimination that explicitly

targets religion, censors religious expression, and

4

treats religious citizens unequally. It is rooted in

“California’s version of the Blaine Amendment—a

provision born of bigotry.” Woolard, 170 F.4th at 711

(Van Dyke, J., dissenting) (citing Espinoza, 591 U.S.

at 482), internal quotation marks omitted). This

“Blaine” provision is—plain and simple—a textbook

Free Exercise violation that “single[s] out the

religious for disfavored treatment” (Trinity, 582 U.S.

at 460), with the result that "parents maintain wide

latitude to decide what's best for their children's

education—unless they choose a faith-based

education” through their selection of curriculum.

Woolard, 170 F.4th at 711 (Van Dyke, J., dissenting).

“It's about time that we leave facially discriminatory

Blaine Amendments like California's on the ash heap

of constitutional history.” Id. at 724 (Van Dyke, J.,

dissenting). California and other states—like

Washington in Locke, Missouri in Trinity Lutheran,

and Montana in Espinoza—“repurpose them to excise

religion from the public square . . . .” Ibid.

B. California discriminates against families

who take their religious faith seriously

and integrate it into all of life.

California has crafted an educational assistance

program that poses no threat to “[t]hose apathetic

about religion or passive in its practice” but denies

participation to “those with a deep faith that requires

them to do things” like incorporating their faith into

all of life. Espinoza, 591 U.S. at 513 (Gorsuch, J.,

concurring). There is an implicit evaluation that a

religious education is inferior to a religion-free,

secular education. California’s exclusion of otherwise

5

qualified curriculum—chosen by parents, not by the

state—discriminates against families “who take their

religion seriously” and believe it “should affect the

whole of their lives.” Mitchell v. Helms, 530 U.S. 793,

827-828 (2000) (plurality opinion). This hostility is

contrary to the “benevolent neutrality” the

Constitution requires. “[I]t is most bizarre that the

[Ninth Circuit] would . . . reserve special hostility for

those who take their religion seriously, who think that

their religion should affect the whole of their lives, or

who make the mistake of being effective in

transmitting their views to children.” Id. at 827-828.

The exclusion of religious content targets families

who integrate a religious worldview into the

curriculum they select for their children. The law is

not neutral because its object is to restrict an

otherwise widely available benefit based solely on the

religious content of the excluded curriculum. "The

First Amendment forbids an official purpose to

disapprove of a particular religion, or of religion in

general." Lukumi, 508 U.S. at 532. California

disapproves of religious families who take their faith

seriously.

The broad reaching “flexibility” of California’s

independent study program is particularly odious in

that “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.” Woolard, 170 F.4th at 716 (Van

Dyke, J., dissenting) (emphasis added). At that point

the program’s flexibility evaporates.

6

C. California’s discriminatory exclusion of

religious curriculum creates improper

entanglement.

California’s monitoring of the independent study

program demands a level of entanglement that

transgresses the First Amendment. It is not only the

state’s rejection of particular curriculum that “may

impinge on rights guaranteed by the Religion Clauses,

but also the very process of inquiry" leading to such

exclusion. NLRB v. Catholic Bishop of Chicago, 440

U.S. 490, 502 (1979). State officials must identify and

disqualify “sectarian” curriculum. Such a process

creates the very entanglement the Establishment

Clause was designed to prevent and simultaneously

infringes Free Exercise rights. California officials

must rummage through the materials selected by

parents to snuff out religious content.

Earlier decisions of this Court do not support the

Ninth Circuit. In Mitchell, this Court concluded that

“trolling through a person's or institution's religious

beliefs” to determine whether a school is “pervasively

sectarian” is “not only unnecessary but also offensive.”

530 U.S. at 828. In New York v. Cathedral Academy,

this Court struck down a state statute that

conditioned reimbursement for the cost of statemandated examinations and teaching activities on a

determination that the materials were devoid of

religious content. 434 U.S. 125, 132 (1977) ("this sort

of detailed inquiry . . . would itself constitute a

significant encroachment” on the First Amendment).

7

Relevant decisions of other circuits do not support

the Ninth Circuit. Hartmann v. Stone involved a child

day-care program for military families that

“prohibit[ed] Providers from having any religious

practices, such as saying grace or reading Bible

stories, during their day-care program,” regardless of

the wishes of the families themselves. Hartmann v.

Stone, 68 F.3d 973, 975 (6th Cir. 1995). Such

burdensome regulation does not “require (or even

allow) a ban on religious activity to prevent

entanglement.” Id. at 981 (first emphasis added). The

Sixth Circuit concluded that this “extensive array of

regulations” “ironically . . . put the Army at great risk

of unconstitutionally entangling itself with religion.”

Ibid. The same is true here.

Proper application of the entanglement doctrine

“protects religious [families] from governmental

monitoring or second-guessing of their religious

beliefs and practices” to determine whether to qualify

their curriculum for benefits or as a basis for

exclusion. Colorado Christian University v. Weaver,

534 F.3d 1245, 1261 (10th Cir. 2008). A family’s

selection of curriculum is the result of private parental

choices. California has no legitimate interest in

obstructing access to private religious education. Its

sole legitimate interest would be to ensure the

government itself is not engaged in religious

indoctrination. “[N]eutrality and private choices”

work together to serve that interest and eliminate any

possible attribution to the government.” Mitchell, 530

U.S. at 811. California’s extensive entanglement is

anything but neutral and hinders free choice among

otherwise qualified curricular options.

8

The government may neither prescribe nor

proscribe religious orthodoxy in an independent

home-based educational context. California puts its

thumb on the scale, blatantly preferring a “sanitized”

education purged of religious influence. The state’s

procedure for approving curriculum is tainted by

unconstitutional entanglement. This is potentially a

step toward establishing a “civic religion as a means

of avoiding the establishment of a religion with more

specific creeds.” Lee v. Weisman, 505 U.S. 577, 590

(1992).

D. The Ninth Circuit characterizes the

independent study programs as “public

schools,” twisting words to escape First

Amendment scrutiny.

Appealing to Carson, the Ninth Circuit reasons

that the Free Exercise Clause allows a state to provide

"a strictly secular education in its public schools."

Woolard, 170 F.4th at 707 (quoting Carson, 596 U.S.

at 785). The court then “slaps a ‘public school’ label on

the homeschool programs and calls them exempt from

free exercise scrutiny.” Woolard, 170 F.4th at 714

(Bumatay, J., dissenting). Several key factors drive

the analysis—the independent study programs,

unlike private schools, must accept all students, must

not charge tuition, and must meet state-imposed

curricular requirements. Id. at 708-709. The obvious

irony here is that the programs do not really accept all

students, but only those whose parents sacrifice their

right to incorporate their faith into the curriculum.

9

Certainly a state may establish its own purely

secular schools. But California chose a different path,

offering to fund the private curricular choices of

parents who teach their own children at home. Having

chosen to offer a subsidy for education conducted by

parents in private homes, the state may not

discriminate against their choice of religious

curriculum. Carson, 596 U.S. at 785.

II. CALIFORNIA DISCRIMINATES

DISTRIBUTION

OF

A

EDUCATIONAL BENEFIT.

IN THE

PUBLIC

This Court has long “prohibited governments from

discriminating in the distribution of public benefits

based upon religious status or sincerity.” Mitchell, 530

U.S. at 828. Discrimination on the sole basis of

religion punishes religious exercise and imposes a

penalty that warrants “the most exacting scrutiny.”

Lukumi, 508 U.S. at 533, 542. The government may

not force a choice between participation in a public

benefit and religious freedom. See Thomas v. Review

Bd. of Indiana Employment Security Div., 450 U.S.

707, 716 (1981); Everson v. Board of Ed. of Ewing, 330

U.S. 1, 16 (1947).

Under California’s statutory scheme, the freedom

to function as a religious family “comes at the cost” of

“exclusion from the benefits of a public program . . .

for which the [family] is otherwise fully qualified.”

Trinity, 582 U.S. at 462.

10

A. The

recent

Trinity-Espinoza-Carson

trilogy highlights the requirement for

equal treatment of religion.

A recent trilogy of rulings (Trinity Lutheran,

Espinoza, Carson)—all involving private education—

reinforces this Court’s nondiscrimination principle

where public benefits and religion intersect. In each

case, the Court struck down a state law that

“disqualif[ied] a religious organization . . . from a

generally available benefit, solely because of [its]

religious character.” Trinity, 582 U.S. at 462

(Missouri’s

Scrap

Tire

Program

“expressly

discriminates” by “put[ting] Trinity Lutheran to a

choice” to either “participate in an otherwise available

benefit program or remain a religious institution”);

Espinoza, 591 U.S. at 476 (“Montana’s no-aid

provision bars religious schools from public benefits

solely because of the religious character of the

schools”); The “unremarkable” principles applied in

Trinity and Espinoza were sufficient to resolve the

issues in Carson, where the State paid for private

school tuition “so long as the schools [we]re not

religious.” 596 U.S. at 780. “That is discrimination

against religion.” Id. at 781.

Under such discriminatory programs, “free

exercise isn’t free”. Locke, 540 U.S. at 731 (Scalia, J.,

dissenting) (internal quotation marks omitted,

emphasis added). “[W]hen the State exacts a financial

penalty . . . for religious exercise—whether by tax or

by forfeiture of an otherwise available benefit—

religious practice is anything but free.” Ibid.

Similarly, the challenged statute in McDaniel v. Paty

11

“require[d] [McDaniel] to purchase his right to engage

in the ministry by sacrificing his candidacy,” thereby

infringing the free exercise of his religion. 435 U.S.

618, 634 (1978) (plurality) (emphasis added).

“[F]reedom comes at the cost of automatic and

absolute exclusion” from an otherwise available

benefit. Trinity, 582 U.S. at 462 (applying McDaniel).

In Espinoza, likewise, “the no-aid provision” that

prohibited all aid to religious schools . . . “put[]

families to a choice between sending their children to

a religious school or receiving [otherwise available]

benefits.” 591 U.S. at 480.

As Trinity Lutheran reaffirmed, “[i]t is too late in

the day to doubt that the liberties of religion and

expression may be infringed by the denial of or placing

of conditions upon a benefit or privilege.” 582 U.S. at

463 (quoting Sherbert v. Verner, 374 U.S. 398, 404

(1963)). Even before Sherbert, it was clear that a State

may not exclude individuals from public benefits

“because of their faith, or lack of it.” Everson, 330 U.S.

at 16.

Equality is deeply embedded in America’s history

and Constitution. “The ‘supreme law of the land’

condemns discrimination against religious …

families.” Espinoza, 591 U.S. at 488, quoting Marbury

v. Madison, 5 U.S. 137, 180 (1803). If a state creates a

program to provide funding for privately chosen

curriculum, "it would seem that the principle of

nondiscrimination requires [it] to extend that aid” to

religious curriculum. Mark Edward DeForrest, An

Overview and Evaluation of State Blaine

Amendments: Origins, Scope, and First Amendment

12

Concerns, 26 Harv. J. L. & Pub. Pol'y 551, 608 (2003).

California’s exclusion of certain curriculum solely

because of its religious character "is not only offensive

to fundamental principles of equality of citizenship,

liberalism, and distributive justice, but also deeply

offensive to the Constitution's guarantee of religious

liberty." Id. at 613.

The government does not penalize a fundamental

right by merely declining to subsidize it. But although

“a state need not subsidize private education . . . once

a State decides to do so, it cannot disqualify some

[participants] solely because they are religious”

(Espinoza, 591 U.S. at 487), as Montana did in

Espinoza, as Maine did in Carson, and as California

does here. California has offered financial assistance

for “education that the parents conduct, exercising

substantial choice as to the instructional materials.”

Woolard, 170 F.4th at 713 (Bumatay, J., dissenting).

Under these circumstances, “the Free Exercise

Clause's anti-discrimination principle applies with

full force.” Ibid.

B. Parents may not be required to sacrifice

their constitutional rights as a condition

of receiving the curriculum funding—a

generally available public benefit.

California’s unequal treatment of religion

tramples parental rights. “Public education is a public

benefit” that may not be conditioned “on parents’

willingness to accept a burden on their religious

exercise. Mahmoud v. Taylor, 606 U.S. 522, 561

(2025); see Trinity, 582 U.S. at 462 (government may

13

not condition availability of public benefits on “a

recipient’s willingness to surrender his religiously

impelled status”). Even the Ninth Circuit agreed that

free exercise rights were burdened by "a statutory

scheme that requires a family to forgo a sectarian

education . . . in order to receive special education

benefits otherwise available.” Woolard, 170 F.4th at

711 (Bumatay, J., dissenting) (quoting Loffman v. Cal.

Dep't of Educ., 119 F.4th 1147, 1168 (9th Cir. 2024)

(simplified)).

Private choice is one significant factor in the

analysis. Funds may flow to a private school or other

religious organization through the “independent

choices of private benefit recipients.” Carson, 596 U.S.

at 781. Here, “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.” Woolard, 170 F.4th at 712

(Bumatay, J., dissenting). The State itself is not

funding religion in violation of the California

Constitution.

III. CALIFORNIA

UNDERMINES

TIMEHONORED

PARENTAL

RIGHTS

IN

EDUCATION AND RELIGION.

Parental rights are “perhaps the oldest of the

fundamental liberty interests recognized by this

Court.” Troxel v. Granville, 530 U.S. 57, 65 (2000).

Parental rights are not created by statute or even

constitutions but are natural, inalienable rights

uniformly recognized by courts throughout American

14

history. History reveals “a founding generation that

believed parents to have complete authority over their

minor children and expected [them] to direct the

development of those children.” Brown v.

Entertainment Merchants Ass’n, 564 U.S. 786, 834

(2011) (Thomas, J., dissenting). Justice Scalia, while

departing from the other Justices in Troxel, vigorously

affirmed the “right of parents to direct the upbringing

of their children” as “among the unalienable Rights’

with which the Declaration of Independence

proclaims all Men . . . are endowed by their Creator."

530 U.S. at 91 (Scalia, J., dissenting) (internal

quotation marks omitted). Even though “the family

itself is not beyond regulation in the public interest,”

this Court reaffirmed the paramount importance of

parental rights: "It is cardinal with us that the

custody, care and nurture of the child reside first in

the parents, whose primary function and freedom

include preparation for obligations the state can

neither supply nor hinder." Prince v. Massachusetts,

321 U.S. 158, 166 (1944) (emphasis added).

A. Parents have the fundamental right to

direct the education of their children,

including their religious training.

Parental rights specifically extend to education.

Based on this Court’s “long-established precedent,

parents—not the State—have primary authority with

respect to . . . the education of children.” Mirabelli v.

Bonta, 146 S. Ct. 797, 803 (2026); see Pierce v. Society

of Sisters, 268 U.S. 510, 534-535 (1925); accord, Meyer

v. Nebraska, 262 U.S. 390, 399-400 (1923). Reasoning

that a child is “not the mere creature of the state,” this

15

Court explained that “those who nurture him and

direct his destiny have the right, coupled with the

high duty, to recognize and prepare him for additional

obligations." Pierce, 268 U.S. at 534-535. This

expressly encompasses the “right of parents to guide

the religious development of their children.”

Mirabelli, 146 S. Ct. at 802 (quoting Mahmoud, 606

U.S. at 559) (emphasis added). Like the parents in

Mirabelli and Mahmoud, Petitioners “feel a religious

obligation to raise their children in accordance with”

their religious convictions. 146 S. Ct. at 802. Like the

policies at issue in Mirabelli and Mahmoud, the

California policy excluding religious curriculum

“violate[s] those beliefs” and “impos[e] the kind of

burden on religious exercise that Yoder found

unacceptable.” Ibid. (quoting Mahmoud, 606 U.S. at

550).

The Free Exercise Clause protects “the ability of

those who hold religious beliefs of all kinds to live out

their faiths in daily life through the performance of

religious acts.” Mahmoud, 606 U.S. at 546 (quoting

Kennedy v. Bremerton School Dist., 597 U.S. 507, 524

(2022)). The Clause "guarantees the free exercise of

religion, not just the right to inward belief (or status)."

Trinity, 582 U.S. at 469 (Thomas, J., concurring)

(emphasis added).

Individuals are free to believe religious doctrine

but increasingly coerced not to act on those beliefs in

public life. “Even today . . . people of faith are made

to choose between receiving the protection of the State

and living lives true to their religious convictions.”

Espinoza, 591 U.S. at 514 (Gorsuch, J., concurring).

16

Such censorship cuts against the Constitution’s

guarantee of the right “not just . . . to be a religious

person, holding beliefs inwardly and secretly” but “the

right to act on those beliefs outwardly and publicly.”

Id. at 510 (Gorsuch, J., concurring); see Cantwell v.

Connecticut, 310 U.S. 296, 303 (1940) (“freedom to act”

and “freedom to believe” are both protected).

The government violates Free Exercise when its

policies “substantially interfer[e] with the religious

development” of children by encroaching on the

primary role of their parents. Mahmoud, 606 U.S. at

546; Wisconsin v. Yoder, 406 U.S. 205, 218 (1972).

Parents have an essential role in directing the

upbringing of their children that includes their

education

generally

and

religious

training

specifically. “[W]e have long recognized the rights of

parents to direct ‘the religious upbringing’ of their

children.” Mahmoud, 606 U.S. at 546 (quoting

Espinoza, 591 U.S. at 486, Yoder, 406 U.S. at 213214). “Religious education is vital to many faiths

practiced in the United States.” Our Lady of

Guadalupe School v. Morrissey-Berru (“OLG”), 591

U.S. 732, 754 (2020). For many, “the religious

education of children is not merely a preferred

practice but rather a religious obligation.” Mahmoud,

606 U.S. at 547 (emphasis added); see OLG, 591 U.S.

at 754-756. Parental education of children in their

religious beliefs, “like all religious acts and practices,

receives a generous measure of protection from our

Constitution.” Mahmoud, 606 U.S. at 547; see

Espinoza, 591 U.S. at 486; Yoder, 406 U.S., at 213214; Pierce, 268 U.S. at 532-535 (upholding parental

right to enroll child in private religious school).

17

Government interference with Free Exercise may

involve direct coercion, as in West Virginia Bd. of Ed.

v. Barnette, 319 U.S. 624 (1943) (compelled pledge of

allegiance) but, as in Yoder, the Constitution also

“protects against policies that impose more subtle

forms of interference with the religious upbringing of

children.” Mahmoud, 606 U.S. at 548.

B. The State does not have absolute,

unfettered authority in the selection of

public school curriculum.

Petitioners challenge a curriculum exclusion that

discriminates against them for choosing material that

teaches the religious values they wish to impart to

their children. A curriculum that purges all references

to religion implies that faith is irrelevant to daily life,

directly contrary to the convictions of families who

integrate their faith into all they do. California’s

program is fully available to finance curriculum for

families that have no interest in providing their

children with an education infused with religious

values. But it is hostile toward parents who take their

faith seriously. There is no constitutionally valid

rationale for such discrimination. In Hartmann,

similarly,

the

government’s

unconstitutional

regulation of religious practices in the context of child

daycare encroached “in an area traditionally reserved

for, and uniquely suited to, parental authority.” 68

F.3d at 985. The same is true for home-based

education. But California excises religion from its

approved charter school curriculum and conditions an

otherwise available benefit on the willingness of

religious families to comply with the exclusion. This

18

“poses a very real threat of undermining the religious

beliefs and practices that the parents wish to instill.”

Mahmoud, 606 U.S. at 530 (cleaned up); see Yoder,

406 U.S. at 218.

The broad discretion of public schools to manage

curriculum is “not absolute” and “must be exercised in

a manner that comports with the transcendent

imperatives of the First Amendment.” Bd. of Educ.,

Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457

U.S. 853, 863-864 (1982). Government discretion in

selecting (or approving) curriculum cannot be used as

a facade for viewpoint discrimination. Nor may

officials carve out entire areas of knowledge and eject

them, e.g., Meyer v. Nebraska, 262 U.S. 390 (striking

down a law that forbade the teaching of modern

foreign languages in public and private schools). The

First Amendment facilitates the free flow of

information and ideas, protecting a multitude of

viewpoints—and "the State may not, consistently with

the spirit of the First Amendment, contract the

spectrum of available knowledge." Pico, 457 U.S. at

866, quoting Griswold v. Connecticut, 381 U.S. 479,

482 (1965). "[S]tate-operated schools may not be

enclaves of totalitarianism. . . . In our system,

students may not be regarded as closed-circuit

recipients of only that which the State chooses to

communicate." Pico, 457 U.S. at 877 (Blackmun, J.,

concurring) (quoting Tinker v. Des Moines Indep.

Cmty. Sch. Dist., 393 U.S. 503, 511 (1969)).

California’s exclusion of religious curriculum—

particularly in an independent study context where

19

parents select the curriculum and instruct their own

children—violates all of this precedent.

IV. CALIFORNIA

WEAPONIZES

THE

GOVERNMENT SPEECH DOCTRINE TO

CHILL PRIVATE EXPRESSION.

One of the Ninth Circuit’s major errors is its

classification of curriculum selected by parents as

government speech, exempt from the constraints of

the First Amendment. The developing government

speech doctrine should be carefully restrained to

prevent the power and machinery of government from

being used to stifle private expression, particularly

religious expression that is doubly protected by the

Free Exercise and Speech Clauses. That is exactly

what has happened here.

Even while admitting that parents are “the direct

educators” in the independent study programs, the

Ninth Circuit held that when the charter schools

refused to approve curricular materials with religious

content, they “determined the ‘content of the

education’” and “any resulting speech in instruction

was theirs, not that of [the parents].” Woolard, 170

F.4th at 710. The court reasoned that public school

curriculum is “School District speech” (ibid., quoting

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

728 (9th Cir. 2022)), an "expression of its policy" (ibid.,

quoting Downs v. L.A. Unified Sch. Dist., 228 F.3d

1003, 1013-15 (9th Cir. 2000)), and therefore

government speech "not subject to scrutiny under the

Free Speech Clause" (ibid., quoting Pleasant Grove

City v. Summum, 555 U.S. 460, 464 (2009)). But even

20

“extensive and detailed” regulation does not

transform private conduct—parents teaching their

own children in their own homes—into state action.

Woolard, 170 F.4th at 713 (Bumatay, J., dissenting),

citing Rendell-Baker v. Kohn, 457 U.S. 830, 841

(1982). The Ninth Circuit ignored “the critical feature

of the homeschool programs—that parents design and

teach their chosen curricula in the privacy of the

parents' home.” Woolard, 170 F.4th at 71 (Bumatay,

J., dissenting). This flawed ruling “casts parents into

the equivalent of state workers and parent-designed

curricula into state-mandated curricula” (ibid.) and

thwarts the purpose of a legislative scheme designed

to enhance flexibility and educational freedom.

This is not an Establishment Clause case per se,

but much like Summum, it is litigated "in the shadow"

of the Establishment Clause. 555 U.S. at 482 (Scalia,

J., concurring); see id. at 486 (Souter, J., concurring)

(“litigated . . . with one eye on the Establishment

Clause”). As in Summum, the Establishment Clause

lurks beneath the surface. The public-private

distinction is critical because religious speech is

involved. "There is a crucial difference between

government speech endorsing religion, which the

Establishment Clause forbids, and private speech

endorsing religion, which the Free Speech and Free

Exercise Clauses protect." Capitol Square Review and

Advisory Bd. v. Pinette, 515 U.S. 753, 765 (1995),

citing Bd. of Educ. v. Mergens, 496 U.S. 226, 250

(1990) (emphasis added). There is no “establishment

concern” that would justify California’s position

because “parents—not the government—freely and

independently choose to spend funds on faith-based

21

instruction.” Woolard, 170 F.4th at 714 (Bumatay, J.,

dissenting). The content of the curriculum, selected

and then taught by parents directly to their own

children, is the epitome of private speech—protected

by the First Amendment.

Since America is a nation governed by consent of

the people, “the democratic process . . . provides a

check on government speech.” Walker v. Texas Div.,

Sons of Confederate Veterans, Inc., 576 U.S. 200, 207

(2015); see Bd. of Regents of Univ. of Wis. System v.

Southworth, 529 U.S. 217, 235 (2000); Summum, 555

U.S. at 467-468. The government may “represent its

citizens” by taking a position, promoting a program,

or implementing a policy. Walker, 576 U.S. at 208.

Government may directly fund its own message (e.g.,

Johanns v. Livestock Mkgt. Ass’n, 544 U.S. 550 (2005))

or “disburse[] public funds to private entities to convey

[its] message.” Rosenberger v. Rector and Visitors of

Univ. of Va., 515 U.S. 819, 833 (1995), citing Rust v.

Sullivan, 500 U.S. 173 (1991). But lines must be

carefully drawn to prevent encroaching on private

speech—especially religious speech.

The line between government and private speech

is not always easy to draw. Some overlap is inevitable,

raising constitutional concerns and "present[ing]

heightened risks that the government may displace or

monopolize private speech by inserting its voice in the

speech marketplace." R. Bezanson & W. Buss, The

Many Faces of Government Speech, 86 Iowa L. Rev.

1377, 1381 (2001). In some contexts, government and

private speech overlap or blend in a unique manner.

Legislative prayer is a unique blend that has been

22

heavily litigated. License plates are perhaps "the

quintessential example of speech that is both private

and governmental." Sons of Confederate Veterans, Inc.

v. Comm’r of Va. Dep’t of Motor Vehicles, 305 F.3d 241,

245 (4th Cir. 2002).

There is no rigid formula for every context, but

here, California has invited parents to select

curriculum for independent study programs where

they will teach their own children. “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).”

Woolard, 170 F.4th at 711 (Bumatay, J., dissenting).

But there’s a “catch” – religious families need not

apply, because California blatantly censors the

slightest hint of religion, flouting the liberties

guaranteed by the First Amendment.

CONCLUSION

This Court should grant the Petition and reverse

the Ninth Circuit decision.

23

Respectfully submitted,

Deborah J. Dewart

Counsel of Record

111 Magnolia Lane

Hubert, NC 28539

(910) 326-4554

lawyerdeborah@outlook.com

Tami Fitzgerald

NC Values Institute

9650 Strickland Rd.

Suite 103-226

Raleigh, NC 27615

Counsel for Amicus Curiae

NC Values Institute