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

Supreme Court briefSep 23, 2026

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NO. 26-237

IN THE

Supreme Court of the United States

JOHN WOOLARD, et al.

Petitioners,

TONY THURMOND, et al.,

Respondents.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF OF U.S. SENATORS TED BUDD, JIM

BANKS, TED CRUZ, STEVE DAINES, CINDY

HYDE-SMITH, JIM JUSTICE, JOHN

KENNEDY, JAMES LANKFORD, MIKE LEE,

ROGER MARSHALL, PETE RICKETTS, JAMES

RISCH, AND TIM SHEEHY AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

JOHN J. BURSCH

Counsel of Record

JAMES A. CAMPBELL

ZACHARY E. TYREE

ALLIANCE DEFENDING FREEDOM

440 First Street NW, Suite 600

Washington, DC 20001

(202) 393-8690

jbursch@adflegal.org

Counsel for Amici Curiae

TABLE OF CONTENTS

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

INTEREST OF AMICI CURIAE ............................... 1

SUMMARY OF THE ARGUMENT ........................... 2

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

This Court should grant the petition and

reverse the Ninth Circuit’s conclusion that

homeschool independent-study programs

are public.............................................................. 3

A. The Ninth Circuit’s decision conflicts

with this Court’s precedent. .......................... 4

1. Homeschooling parents are not

state actors. ............................................. 4

2. The Ninth Circuit applied a madeup test to reach the wrong

conclusion. ............................................... 8

B. The Ninth Circuit’s decision splits from

the Fourth Circuit. ...................................... 11

C. The Ninth Circuit’s sweeping logic

threatens

individuals’

religious

freedom and subjects them to

constitutional constraints. .......................... 13

II. The Establishment Clause poses no barrier

to California’s funding of homeschool

independent-study programs. ........................... 14

A. Congress’s historical practice supports

public funding for religious schools. ........... 14

B. The Establishment Clause does not

forbid the neutral administration of

generally available public programs. ......... 17

CONCLUSION ......................................................... 19

iii

TABLE OF AUTHORITIES

Cases

American Manufacturers Mutual Insurance

Company v. Sullivan,

526 U.S. 40 (1999)................................................ 6

Brentwood Academy v. Tennessee Secondary

School Athletic Association,

531 U.S. 288 (2001).......................................... 5–6

Carson v. Makin,

596 U.S. 767 (2022)...............................2, 8, 17–18

Consumer Financial Protection Bureau v.

Community Financial Services Association

of America, Ltd.,

601 U.S. 416 (2024)............................................ 15

Espinoza v. Montana Department of Revenue,

591 U.S. 464 (2020).................................. 2, 15–18

First Choice Women’s Resource Centers, Inc. v.

Davenport,

608 U.S. 174 (2026)............................................ 14

Flagg Brothers, Inc. v. Brooks,

436 U.S. 149 (1978).............................................. 7

Jackson v. Metropolitan Edison Company,

419 U.S. 345 (1974)........................................ 5, 10

Kennedy v. Bremerton School District,

597 U.S. 507 (2022)...................................... 14–15

Lindke v. Freed,

601 U.S. 187 (2024)...................................... 11, 13

Manhattan Community Access Corporation v.

Halleck,

587 U.S. 802 (2019).......................4–5, 7, 9–10, 13

Marsh v. Chambers,

463 U.S. 783 (1983 ............................................. 15

Mitchell v. Helms,

530 U.S. 793 (2000)............................................ 18

NCAA v. Tarkanian,

488 U.S. 179 (1988).............................................. 5

Oklahoma Statewide Charter School Board v.

Drummond,

605 U.S. 165 (2025)............................................ 11

Peltier v. Charter Day School, Inc.,

37 F.4th 104 (4th Cir. 2022) .................... 3, 11–12

Rendell-Baker v. Kohn,

457 U.S. 830 (1982)................................ 5, 7, 9–10

Reuben Quick Bear v. Leupp,

210 U.S. 50 (1908).............................................. 16

Rosenberger v. Rector and Visitors of University

of Virginia,

515 U.S. 819 (1995)...................................... 15, 18

Town of Greece v. Galloway,

572 U.S. 565 (2014)............................................ 14

Trinity Lutheran Church of Columbia, Inc. v.

Comer,

582 U.S. 449 (2017)........................................ 2, 17

Virginia v. American Booksellers Association,

Inc.,

484 U.S. 383 (1988)............................................ 14

West v. Atkins,

487 U.S. 42 (1988)............................................ 5, 7

Zelman v. Simmons-Harris,

536 U.S. 639 (2002)............................................ 18

Statutes

42 U.S.C. 1983 ...................................................... 1, 13

Cal. Educ. Code § 47601 ............................................ 8

Cal. Educ. Code § 51745 ............................................ 8

Other Authorities

Act of July 16, 1866, ch. 200, § 13, 14 Stat. 173 ..... 16

Charles L. Glenn, African-American/AfroCanadian Schooling: From the Colonial

Period to the Present (2011) ............................... 17

Joe M. Richardson, Christian Reconstruction:

The American Missionary Association and

Southern Blacks, 1861–1890 (2008) .................. 17

Katherine Schaeffer, U.S. Public, Private and

Charter Schools in 5 Charts, Pew Research

Center (June 6, 2024), perma.cc/SC3DR9DP .................................................................... 7

Michael W. McConnell et al., Religion and the

Constitution (4th ed. 2016) ................................ 16

Nathan S. Chapman & Michael W. McConnell,

Agreeing to Disagree: How the Establishment

Clause Protects Religious Diversity and

Freedom of Conscience (2023).................. 7, 15–17

Nathan S. Chapman, Forgotten FederalMissionary Partnerships: New Light on the

Establishment Clause, 96 Notre Dame L.

Rev. 677 (2020) .................................................. 16

Ordinance for the Government of the Territory

of the United States North-West of the

River Ohio, art. 3 (July 13, 1787) ...................... 16

Richard J. Gabel, Public Funds for Church and

Private Schools (1937) ....................................... 17

Treaty Between the United States of America

and the Kaskaskia Tribe of Indians, art. III,

7 Stat. 78 (Aug. 13, 1803) .................................. 16

Rules

Sup. Ct. R. 10 ....................................................... 4, 11

Regulations

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

INTEREST OF AMICI CURIAE 1

Amici are United States Senators Ted Budd of

North Carolina, Jim Banks of Indiana, Ted Cruz of

Texas, Steve Daines of Montana, Cindy Hyde-Smith

of Mississippi, Jim Justice of West Virginia, John

Kennedy of Louisiana, James Lankford of Oklahoma,

Mike Lee of Utah, Roger Marshall of Kansas, Pete

Ricketts of Nebraska, James Risch of Idaho, and Tim

Sheehy of Montana. As elected representatives and

lawmakers in Congress, amici have an interest in protecting their constituents’ constitutional rights. Congress has enacted legislation that gives individuals

the right to enforce their constitutional rights against

state government officials. 42 U.S.C. 1983. In addition, amici have an interest in ensuring that the Constitution—whether the state-action doctrine or the

Establishment Clause of the First Amendment—is

not interpreted too broadly to restrict funding of private religious education, as Congress often provided

from the founding through Reconstruction.

1 No counsel for a party authored this brief in whole or in part,

and no person other than amici and their counsel made any monetary contribution intended to fund the preparation or submission of this brief. Counsel were timely notified of this brief as

required by Supreme Court Rule 37.2.

SUMMARY OF THE ARGUMENT

As part of California’s publicly funded independent-study programs, parents can teach their own

children in their own homes with limited oversight

from a private, nonprofit corporation operating a

charter school. And subject to general state standards, parents can choose any curriculum they want

for their homeschooling—with one exception: religion.

That overt discrimination—which Respondents say is

required by California’s Blaine Amendment—clearly

violates the Constitution. And it is preposterous to

say, as did the Ninth Circuit, that homeschooling parents are actually state actors.

This Court has “repeatedly held that a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits” and programs. Carson v. Makin, 596 U.S. 767,

778 (2022). Three times in recent years, the Court has

applied that principle to stop states’ efforts to exclude

religious schools, parents, and students from generally available funding programs based solely on their

religion. Id. at 778–79 (citing Trinity Lutheran

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

(2017); Espinoza v. Montana Dep’t of Revenue, 591

U.S. 464 (2020)).

To get around that blatant constitutional violation, the Ninth Circuit deemed the homeschool independent-study programs public. In other words,

homeschooling parents are state actors. But that’s

egregiously wrong. This case presents an easy question: whether parents who teach their own children in

their own homes based on curriculum they select

speak and act as the government. Both case law and

common sense dictate that the answer is no.

In holding otherwise, the Ninth Circuit disregarded this Court’s state-actor decisions, which provide a straightforward answer. The court of appeals

instead forged a new test based on Carson. But Carson presented no state-action question and cannot be

read to displace that line of authority.

The Ninth Circuit also split from the unanimous

en banc Fourth Circuit, which has held that a private

third party contracting with a charter school is not a

state actor. See Peltier v. Charter Day Sch., Inc., 37

F.4th 104, 123 (4th Cir. 2022) (en banc); id. at 150

(Quattlebaum, J., concurring in part and dissenting

in part). This Court should resolve that divide and restore constitutional sanity.

Finally, the First Amendment’s Establishment

Clause presents no barrier to Congress or California

funding private religious education as part of a neutral public-benefit program. Congress’s long history

funding private religious education makes that question open and shut. And this Court’s decisions confirm

as much.

The Court should grant the petition and reverse

the Ninth Circuit.

ARGUMENT

This Court should grant the petition and reverse the Ninth Circuit’s conclusion that

homeschool independent-study programs

are public.

The Ninth Circuit held that the homeschool independent-study programs at issue are “public school

programs” in which California is free to discriminate

against religion. App.18a. The court recognized that,

in these programs, “parents provide home-based direct instruction” and are afforded “great flexibility to

choose which pre-existing curricula to use to educate

their children, or to create their own.” App.9a, 18a.

But no matter, the Ninth Circuit held, because “the

independent study programs have the critical features” that this Court supposedly “found characteristic of public schools in Carson”: they are free, open to

all, subject to state curricular standards, and supervised at a basic level. App.15a. So in the Ninth Circuit, homeschooling parents are now state actors.

That conclusion conflicts with this Court’s case

law—which sets forth a state-action doctrine that the

Ninth Circuit ignored—and splits from the Fourth

Circuit. It also gives California and other states broad

authority to discriminate based on religion by deeming swaths of activities public and to subject countless

private parties to constitutional liability as state actors.

A. The Ninth Circuit’s decision conflicts

with this Court’s precedent.

The Ninth Circuit’s holding—which created a new

test to determine that homeschool independent-study

programs are public—conflicts with this Court’s

state-action case law. Sup. Ct. R. 10(c).

1. Homeschooling parents are not state

actors.

The Constitution’s individual-rights protections,

like the Free Exercise and Free Speech Clauses of the

First Amendment, “constrain[ ] governmental actors

and protect[ ] private actors.” Manhattan Cmty. Access Corp. v. Halleck, 587 U.S. 802, 804 (2019). As in

this case, then, distinguishing between the two often

proves critical. “To draw the line between governmental and private,” this Court “applies what is known as

the state-action doctrine.” Ibid.

The Court has identified “a few limited circumstances” in which “a private entity can qualify as a

state actor.” Id. at 809. These include: (1) when a private organization is “entwine[d]” with the government “to the point of largely overlapping identity,”

Brentwood Acad. v. Tennessee Secondary Sch. Athletic

Ass’n, 531 U.S. 288, 303 (2001); (2) “when the government compels” or significantly encourages a “private

entity to take a particular action,” Manhattan Cmty.

Access, 587 U.S. at 809; (3) when a “private entity performs a traditional, exclusive public function,” ibid.

(citing Jackson v. Metropolitan Edison Co., 419 U.S.

345, 352–54 (1974)); and (4) when, in “certain circumstances,” “the government has outsourced one of its

constitutional obligations to a private entity,” id. at

810 n.1 (discussing West v. Atkins, 487 U.S. 42, 56

(1988)).

At bottom, the central question is whether the

conduct in question is “fairly attributable to the

State.” NCAA v. Tarkanian, 488 U.S. 179, 199 (1988).

Applying that test here, the homeschooling parents are not state actors. Full stop. No one thinks that

parents educating their own children in their own

homes with the curriculum they choose are acting for

or as the State of California. Indeed, this Court’s decision in Rendell-Baker v. Kohn, 457 U.S. 830 (1982),

which held that a privately operated school providing

free publicly funded education pursuant to a government contract is not a state actor, effectively resolves

this case.

First, homeschooling parents are not entwined

with the government. The question is whether state

officials “control” and “overwhelmingly perform” the

substantive tasks, such that there is “overlapping

identity” between the private entity and the state.

Brentwood, 531 U.S. at 300, 303. Here, there is no organizational overlap. Homeschooling parents make

all substantive decisions regarding their children’s

curriculum. Two charter schools provide limited oversight and support. Pet. 8–9. That falls far short of the

“pervasive entwinement” with public officials in the

programs’ “structure” that would transform parents

into state actors. Brentwood, 531 U.S. at 291.

Second, the State does not effectively order homeschooling parents. Instead, parents decide whether to

homeschool through independent-study programs

and whether to use religious or non-religious curriculum. The question is whether California’s “coercive

power” or “significant encouragement” means a decision must “be deemed to be that of the State.” American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 52

(1999). But the Ninth Circuit agreed that the independent-study programs give “parents great flexibility to choose” or “create” the curriculum they prefer.

App.18a. Provided parents satisfy the minimum state

standards, they make and carry out their own decisions. Statutory “authorization” of independent-study

programs does not amount to compulsion. American

Mfrs., 526 U.S. at 54 (citation modified). California

cannot be said to direct or compel Petitioners’ religious conduct.

Third, education is hardly an exclusive public

function. To satisfy this test, “the government must

have traditionally and exclusively performed the

function” at issue. Manhattan Cmty. Access, 587 U.S.

at 809. “While many functions have been traditionally

performed by governments, very few have been exclusively reserved to the State.” Flagg Bros., Inc. v.

Brooks, 436 U.S. 149, 158 (1978) (citation modified).

This Court has recognized only two: “running elections and operating a company town.” Manhattan

Cmty. Access, 587 U.S. at 809–10 (collecting cases).

Our nation’s history—including Congress’s funding of private education from the founding through

Reconstruction, see infra, at 15–17—leaves no doubt

that education has never been the exclusive domain

of the government. In early America, private groups

educated children long before the government started

operating schools. See Nathan S. Chapman & Michael

W. McConnell, Agreeing to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience 119 (2023). And today, non-state

education options like private schools proliferate, including for children who aren’t best served in traditional public schools. See Katherine Schaeffer, U.S.

Public, Private and Charter Schools in 5 Charts, Pew

Research Center (June 6, 2024), perma.cc/SC3DR9DP (“Private school students have consistently

made up about 10% of school enrollment”); accord

Rendell-Baker, 457 U.S. at 842 (“education of maladjusted high school students” not “the exclusive province of the State”).

Fourth, California has not fully delegated its public-school duties to homeschooling parents through independent-study programs. This case is not like West,

where a state authorized only private physicians to

fulfill its Eighth Amendment obligations to provide

medical care for inmates. 487 U.S. at 54–55. California parents remain free to choose other schooling options: public schools, charter schools, and different

curriculum for independent-study programs. California authorized charter schools and independent-study

programs to “[p]rovide parents and pupils with expanded choices in the types of educational opportunities that are available.” Cal. Educ. Code §§ 47601(e),

51745(a) (emphasis added); Cal. Code Regs. tit. 5,

§ 11700(c). Creating additional opportunities is not

the complete delegation of a state duty.

The analysis is not complicated. Homeschooling

parents and the State of California are distinct.

2. The Ninth Circuit applied a made-up

test to reach the wrong conclusion.

The Ninth Circuit’s opinion never mentioned the

state-action doctrine or cited a state-action case. Instead, the court charted its own course. It distorted

Carson—which forbids religious discrimination in

public-funding programs—and used that decision to

determine that homeschooling parents are state actors.

In Carson, Maine argued that the First Amendment did not require the state to fund private religious schools through its tuition-assistance program

because that program funded only the “rough equivalent” of a public education. 596 U.S. at 782–83. This

Court rejected that argument, discussing some of the

differences between public and private schools along

the way. Ibid. The Ninth Circuit opinion latched on to

that discussion, holding that the independent-study

programs are public because they have “the critical

features that the Supreme Court found characteristic

of public schools in Carson.” App.15a.

As Petitioners and Judge Bumatay have explained, that was wrong. See Pet. 19–25; App.28a–

30a (Bumatay, J., dissenting from denial of rehearing

en banc). Carson had no occasion to address—and did

not address—when a private school should be deemed

public for constitutional purposes. That is the function of the state-action doctrine, Manhattan Cmty. Access, 587 U.S. at 804—a doctrine Carson did not invoke. The Ninth Circuit opinion gave no reason to

transform Carson’s discussion into a new governing

test for state action when it comes to schooling.

The Ninth Circuit opinion also reached the wrong

conclusion. It relied on two factors in holding that

homeschool independent-study programs are public:

(1) independent-study programs are free and open to

all, and (2) homeschooling parents are subject to some

oversight by charter-school employees and must

choose curriculum that satisfies state standards. That

two-part analysis cannot be squared with this Court’s

decisions.

Regarding the first factor, it makes no difference

that independent-study programs are free and open

to all. That means the programs are a public benefit—

and therefore subject to Carson’s anti-discrimination

rule. But it does not determine whether the parents

are state actors. And this Court in Rendell-Baker already rejected the argument that a privately operated

and publicly funded school is a state actor. There, the

school “depended on the State” for its funding—up to

99% of the funding was public—and “none” of the students “paid tuition.” 457 U.S. at 832, 840–41. But the

Court held that the school was not a state actor. Ibid.

That logic applies equally here.

Moreover, as Petitioners note, the Ninth Circuit’s

free-equals-public rationale conflicts with Carson itself. “[T]he Maine private schools in Carson could be

fully state-funded” but were undisputedly not state

actors. Pet. 23. In short, that “the government funds

… a private entity” does not make it “a state actor.”

Manhattan Cmty. Access, 587 U.S. at 814.

As to the second factor, a charter-school corporation’s minimal oversight of homeschooling parents

does not render those parents state actors. The Ninth

Circuit explained that the curriculum parents choose

must satisfy state standards, that charter-school

teachers supervise parents, and that parents sign a

written agreement with the charter school laying out

the objectives and methods of the program. App.16a–

18a. But none of that changes the fact that parents

make independent decisions about what and how to

teach their children. And this Court has rejected the

theory that “being heavily regulated makes you a

state actor.” Manhattan Cmty. Access, 587 U.S. at 816

(emphasis added). A fortiori, the negligible supervision and regulation here fall far short. Pet. 8–9.

Again, Rendell-Baker is instructive. That school

was subject to “extensive and detailed” regulations—

“ranging from recordkeeping to student-teacher ratios” to “job descriptions”—and was “totally engage[d]

in performing public contracts.” 457 U.S. at 833, 840–

42. Yet the school was not a state actor because it

made its own employment decisions. Id. at 841. 2

2 The Ninth Circuit also noted that California state law labels

charter schools public. App.9a. That doesn’t matter for two reasons. First, this case is not about whether a California charter

school is public but whether homeschooling parents who contract

with the charter school are state actors. Second, this Court has

been clear that state-law labels don’t control the state-action

analysis. Jackson, 419 U.S. at 350 n.7 (dismissing state legislature’s “public utility” label in concluding that electric company

In search of a justification for California’s religious discrimination, the Ninth Circuit applied a

novel test to reach a conclusion out of touch with precedent and reality. This Court should step in.

B. The Ninth Circuit’s decision splits from

the Fourth Circuit.

In addition to being incorrect, the Ninth Circuit’s

decision created a circuit split. Sup. Ct. R. 10(a).

As explained, the Ninth Circuit effectively held

that homeschooling parents are state actors because

independent-study programs—established by contracts between parents and charter schools—are publicly funded and subject to certain state regulations.

App.16a–18a.

The en banc Fourth Circuit unanimously reached

the opposite conclusion. In Peltier, that court had to

decide whether a charter school and the management

company with which the charter school contracted to

run “the day-to-day operations” of the school were

state actors subject to the Fourteenth Amendment. 37

F.4th at 112–13. A majority of the court first held,

over vigorous dissent, that the charter school was a

state actor. Id. at 116–23. (That decision created the

separate circuit split that this Court took up but did

not resolve in Oklahoma Statewide Charter School

Board v. Drummond, 605 U.S. 165 (2025) (per curiam).) More important, every member of the en banc

court agreed that the management company was not

a state actor. Peltier, 37 F.4th at 123.

was not a state actor); Lindke v. Freed, 601 U.S. 187, 197 (2024)

(“The distinction between private conduct and state action turns

on substance, not labels”).

The court explained that the state delegates its

“constitutional duty” to provide free education to the

charter school, not the private, for-profit company.

Ibid. And the company “has no direct relationship

with the state and is not a party to the charter agreement between [the charter school] and North Carolina.” Ibid. Instead, the company “manages the daily

functioning of the school under its management

agreement with [the charter school].” Ibid. Because

the company’s “actions are more attenuated from the

state,” the court held that its action could not fairly be

attributed to the state. Ibid.

Applying that reasoning, the Fourth Circuit

would have decided this case differently. Parents are

akin to the management company in every way. At

most, California delegates its free-public-education

duty to charter schools, not to parents. And parents

have no “direct relationship” or contract with California. Ibid. Rather, parents—like the company—“enter

into a contract with the [charter] school” setting out

how the independent-study programs will work.

App.10a. Then, within the terms of that contract, parents control the “day-to-day operations” of their children’s education. Peltier, 37 F.4th at 113; App.9a, 18a.

On top of that, parents even choose what they want to

teach. Even more so than the management company,

then, the parents’ decisions “are not fairly attributable to the state.” Peltier, 37 F.4th at 123 (citation modified).

Only this Court can resolve that constitutional divide.

C. The Ninth Circuit’s sweeping logic

threatens individuals’ religious freedom

and subjects them to constitutional constraints.

The state-action doctrine, when properly applied,

“protects a robust sphere of individual liberty.” Manhattan Cmty. Access, 587 U.S. at 818. But by the same

token, “[e]xpanding the state-action doctrine beyond

its traditional boundaries” will “expand governmental

control while restricting individual liberty.” Ibid.

While this Court has “decline[d]” to go down that

road, ibid., the Ninth Circuit opinion jumped at the

opportunity.

The consequences will be widespread. Pet. 27–31.

As Judge Bumatay warned, the Ninth Circuit’s rule

will permit widespread government-sponsored religious discrimination, free-speech restrictions, and

other constitutional violations. If parents teaching

their own children in their own home with their own

curriculum are state actors, then the government can

deem “pretty much anything” a “governmental program exempt from First Amendment scrutiny.”

App.30a. The Constitution’s individual-rights protections—and the people they serve—deserve better.

There are perverse consequences on the other side

of that coin too. The Ninth Circuit’s rule rendering

countless private entities state actors simultaneously

subjects them to suit under 42 U.S.C. 1983 for acts

taken “in the ambit of their personal pursuits.”

Lindke, 601 U.S. at 196 (citation modified). Even if individuals and corporations can assert successful defenses to liability, the prospect of being sued by itself

is likely to chill participation in many vital programs

that receive public funds or are subject to government

regulations—foster care, adoption services, medical

care, homeless shelters, and other aid programs for

disadvantaged communities. See First Choice

Women’s Res. Ctrs., Inc. v. Davenport, 608 U.S. 174,

193 (2026) (recognizing the prospect of “self-censorship in response to a ‘well-founded fear that the law

will be enforced against them’” (quoting Virginia v.

American Booksellers Ass’n, Inc., 484 U.S. 383, 393

(1988))).

This Court should restore order before all Americans suffer the consequences.

II. The Establishment Clause poses no barrier

to California’s funding of homeschool independent-study programs.

Before the Ninth Circuit, Respondents held out

the Establishment Clause as a defense to its religious

discrimination. That doesn’t work.

Public funding for religious schools has deep roots

in our nation’s historical practices and understandings. In addition, the Establishment Clause does not

bar government funding of religious schools through

neutral government programs, particularly when private choice directs those funds.

A. Congress’s historical practice supports

public funding for religious schools.

“[T]he Establishment Clause must be interpreted

by ‘reference to historical practices and understandings.’” Kennedy v. Bremerton Sch. Dist., 597 U.S. 507,

535 (2022) (quoting Town of Greece v. Galloway, 572

U.S. 565, 576 (2014)). The “line that courts and governments must draw between the permissible and the

impermissible has to accord with history and

faithfully reflect the understanding of the Founding

Fathers.” Id. at 535–36 (citation modified).

Our early national practices and historical understandings are replete with government funding for religious schools. From the Republic’s earliest days,

Congress (and the states) “provided financial support”

to religious—and even “denominational”—schools.

Espinoza, 591 U.S. at 480. Indeed, at the time, primary education in America was “private[ ] and almost

invariably religious.” Chapman & McConnell, supra,

at 119. Early Americans did not think such support

was unconstitutional even when “the education had

religious components and was conducted under denominational auspices.” Ibid.

Because the federal government was the lone entity subject to the Establishment Clause before incorporation, Congress’s funding of religious education—

particularly during the First Congress—sheds compelling light on the proper historical understanding.

Consumer Fin. Prot. Bureau v. Community Fin. Servs.

Ass’n of Am., Ltd., 601 U.S. 416, 432 (2024) (“The

practice of the First Congress … provides contemporaneous and weighty evidence of the Constitution’s

meaning.” (citation modified)); Marsh v. Chambers,

463 U.S. 783, 790–91 (1983) (same). Far from perceiving a legal impediment, the First Congress “encouraged” religious schools—giving land grants that benefitted “church-affiliated sectarian institutions,” Rosenberger v. Rector and Visitors of Univ. of Va., 515

U.S. 819, 862 (1995) (Thomas, J., concurring). Congress expressly linked religion and education, stating

that “[r]eligion, morality, and knowledge” were “necessary to good government and the happiness of mankind.” Ordinance for the Government of the Territory

of the United States North-West of the River Ohio,

art. 3 (July 13, 1787).

Congress’s financial support of religious education continued through Reconstruction. Chapman &

McConnell, supra, at 120. Congress paid “churches to

run schools for American Indians through the end of

the 19th century.” Espinoza, 591 U.S. at 481; see Nathan S. Chapman, Forgotten Federal-Missionary

Partnerships: New Light on the Establishment Clause,

96 Notre Dame L. Rev. 677, 701 (2020); accord Reuben

Quick Bear v. Leupp, 210 U.S. 50, 78 (1908) (noting

the government “made contracts for sectarian schools

for the education of the Indians”). In 1803, President

Jefferson and the U.S. Senate approved a treaty with

the Kaskaskia tribe providing financial support for “a

priest of [the Catholic] religion” to perform “the duties

of his office” and educate the tribe’s children in literature. Treaty Between the United States of America

and the Kaskaskia Tribe of Indians, art. III, 7 Stat.

78, 78–79 (Aug. 13, 1803). And congressional spending supported “denominational schools” in the District of Columbia until at least 1848. Espinoza, 591

U.S. at 481.

After the Civil War, the same Congress that

framed the Fourteenth Amendment “spent large

sums on education for emancipated [children], often

by supporting denominational schools in the South

through the Freedmen’s Bureau.” Ibid. Congress directed the agency to partner with “private benevolent

associations” through a grant program. Act of July 16,

1866, ch. 200, § 13, 14 Stat. 173, 176; Michael W.

McConnell et al., Religion and the Constitution 323

(4th ed. 2016). A principal partner was the American

Missionary Association, Charles L. Glenn, AfricanAmerican/Afro-Canadian Schooling: From the Colo-

nial Period to the Present 54–56 (2011), which ran

thoroughly religious schools, Joe M. Richardson,

Christian Reconstruction: The American Missionary

Association and Southern Blacks, 1861–1890 44

(2008). 3

These historical practices show that it does not violate the Establishment Clause for California to fund

homeschool independent-study programs in which

parents select religious curriculum.

B. The Establishment Clause does not forbid the neutral administration of generally available public programs.

This Court’s trilogy of public-benefit cases, Trinity Lutheran, Espinoza, and Carson, confirm that

providing public funds to religious schools or parents

through the neutral administration of public programs does not violate the Establishment Clause. In

each case, the Court ordered a state to allow religious

schools to participate on equal terms, which resulted

in public money flowing to those schools—all consistent with the Establishment Clause. Carson, 596 U.S.

at 781; Espinoza, 591 U.S. at 484–85; Trinity Lutheran, 582 U.S. at 466.

3 The states similarly funded private religious education. “Far

from prohibiting such support, the early state constitutions and

statutes actively encouraged [it].” Espinoza, 591 U.S. at 480. Examples abound. “Local governments provided grants to private

schools, including religious ones, for the education of the poor.”

Id. at 480–81. Massachusetts and Maine granted public land to

schools operated by churches. Richard J. Gabel, Public Funds for

Church and Private Schools 185–87 (1937). New York, for its

part, funded “Presbyterian, Episcopalian, Methodist, Quaker,

Dutch Reformed, Baptist, Lutheran, and Jewish schools.” Chapman & McConnell, supra, at 119.

That’s because “the Establishment Clause is not

offended when religious observers and organizations

benefit from neutral government programs.” Espinoza, 591 U.S. at 474. That principle applies with particular force to neutral “program[s] in which public

funds flow to religious organizations” or religious parents “through the independent choices of private benefit recipients.” Carson, 596 U.S. at 781; see Espinoza,

591 U.S. at 474; Zelman v. Simmons-Harris, 536 U.S.

639, 662–63 (2002).

Here, as in Carson, Espinoza, and Zelman, California operates a neutral public-benefit program: any

parent who meets specified criteria can receive funds

to support homeschooling through an independentstudy program coordinated by a charter school. If the

Ninth Circuit’s error were corrected, public funds

would support religious education only if California

parents decided they wanted to homeschool through

an independent-study program and chose to use religious curriculum. Parents remain free to send their

children to a different school—public, charter, or private—or to select a different curriculum as part of the

independent-study program. The programs do not run

afoul of the Establishment Clause.

Any other rule would put the Establishment

Clause—which forbids “hostility to religion,” Rosenberger, 515 U.S. at 846—at war with itself. California’s misguided view, “born of [a] bigotry” that permeated the Blaine Amendment era, “should be buried

now.” Mitchell v. Helms, 530 U.S. 793, 829 (2000)

(plurality opinion); see Espinoza, 591 U.S. at 482,

488–89.

CONCLUSION

This Court should grant the petition and reverse