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 Writ of Certiorari to the United

States Court of Appeals for the Ninth Circuit

___________________________________

BRIEF OF AMICUS CURIAE EDCHOICE, INC.

IN SUPPORT OF PETITIONERS

____________________________________

Thomas M. Fisher

Counsel of Record

Bryan G. Cleveland

Melinda R. Hudson

EdChoice Legal Advocates

111 Monument Circle, Suite 2650

Indianapolis, IN 46204

(317) 681-0745

tfisher@edchoice.org

Counsel for Amicus Curiae

i

QUESTION PRESENTED BY THE PETITION

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 parentdirected 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

TABLE OF CONTENTS

QUESTION PRESENTED BY THE PETITION ........ i

TABLE OF CONTENTS ............................................ ii

TABLE OF AUTHORITIES ..................................... iv

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

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

ARGUMENT .............................................................. 4

I.

Government funding and regulation of an

independent study program does not convert

every activity in that program into

government action. .......................................... 4

A. Neither Carson nor any other Supreme

Court precedent supports the Ninth

Circuit’s rule below. .........................................5

B. Parents, not the state, provide the

instruction here. ...............................................8

II. Neither educational quality nor teacher

supervision justifies excluding religious

instruction. .................................................... 13

A. Education quality standards do not justify

wholesale exclusion of religious

instruction. ......................................................13

B. The state may not exclude religious

instruction simply because its employees

must supervise it............................................16

iii

III. The Ninth Circuit’s approach would permit

states to evade Carson through regulation. . 18

CONCLUSION ......................................................... 21

iv

TABLE OF AUTHORITIES

Cases

Blum v. Yaretsky,

457 U.S. 991 (1982) ................................................ 8

Carson as next friend of O. C. v. Makin,

596 U.S. 767 (2022) ............. 2, 3, 5, 6, 12, 13, 16-21

Columbia Broad. Sys., Inc. v. Dem. Nat. Comm.,

412 U.S. 94 (1973) ............................................ 7, 10

Crosspoint Church v. Makin,

180 F.4th 354 (1st Cir. 2026) ............................... 19

Darren Patterson Christian Acad. v. Roy,

765 F. Supp. 3d 1194 (D. Colo. 2025), appeal

docketed, No. 25-1187 (10th Cir.) ........................ 19

Johanns v. Livestock Marketing Ass’n,

544 U.S. 550 (2005) .............................................. 11

Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507 (2022) .............................................. 17

Logiodice v. Trustees of Maine Cent. Inst.,

296 F.3d 22 (1st Cir. 2002) ..................................... 7

Manhattan Cmty. Access Corp. v. Halleck,

587 U.S. 802 (2019) ................................................ 7

v

Nat’l Ben Gamla Jewish Charter Sch. Found., Inc. v.

Drummond,

No. 5:26CV582 (W.D. Okla.) ................................ 20

Pierce v. Soc’y of the Sisters of the Holy Names of

Jesus & Mary,

268 U.S. 510 (1925) .............................................. 10

Pleasant Grove City v. Summum,

555 U.S. 460 (2009) .............................................. 11

Polk Cnty. v. Dodson,

454 U.S. 312 (1981) ................................................ 8

Rendell-Baker v. Kohn,

457 U.S. 830 (1982) ............................................ 6, 7

Robert S. v. Stetson Sch., Inc.,

256 F.3d 159 (3d Cir. 2001) .................................... 7

St. Dominic Acad. v. Makin,

181 F.4th 11 (1st Cir. 2026) ................................. 19

St. Mary Catholic Parish v. Roy,

No. 25-581 ..............................................3, 19, 20, 21

Walker v. Sons of Confederate Veterans, Inc.,

576 U.S. 200 (2015) .............................................. 11

Wilberforce Acad. of Knoxville v. Knox Cnty. Bd. of

Educ.,

No. 3:25CV584 (E.D. Tenn.) ................................. 20

vi

Zorach v. Clauson,

343 U.S. 306 (1952) .............................................. 17

Other Authorities

M. Danish Shakeel, Patrick J. Wolf, et al., The

Public Purposes of Private Education: A Civic

Outcomes Meta-Analysis, 36 Ed. Psych. Rev. 40

(2024) .................................................................... 15

Milton Friedman, Capitalism and Freedom 97 (1962)

................................................................................. 1

Philip Hamburger, Education is Speech: Parental

Free Speech in Education, 101 Tex. L. Rev. 415

(2022) .....................................................9, 10, 11, 14

William H. Jeynes, A Meta-Analysis on the Effects

and Contributions of Public, Public Charter, and

Religious Schools on Student Outcomes, 87

Peabody J. Educ. 305 (2012) ................................ 15

William H. Jeynes, The Effects of Catholic and

Protestant Schools: A Meta-Analysis, 12 J.

Catholic Educ. 255 (2008) .................................... 15

Rules

Sup. Ct. R. 37.2 .......................................................... 1

1

INTEREST OF AMICUS CURIAE 1

EdChoice is a nonprofit, nonpartisan 501(c)(3)

organization that serves as a national leader in

education-choice research, fiscal analysis, policy

development, training, outreach, and legal defense.

EdChoice’s mission is to advance education freedom

and choice for all as a pathway to successful lives and

a stronger society. EdChoice supports policies that

afford families financial access to educational

opportunities that best fit the needs of their

children—whether public school, private school,

charter school, home school, or any other learning

environment.

As a national organization dedicated to ensuring

families every available educational option for their

children, EdChoice is interested in the outcome of this

case. As EdChoice’s founder, Nobel laureate

economist Milton Friedman, observed, the problem to

be solved by education freedom is “an excess of

conformity” and the solution “is to foster diversity” in

education. Milton Friedman, Capitalism and

Freedom 97 (1962). As part of this diversity in

education, EdChoice supports the inclusion of all

private schools in education benefits programs,

including religious schools. EdChoice is concerned

1 No party or its counsel authored any of this brief, and no person

other than amici curiae, their members, or their counsel contributed monetarily to this brief. Undersigned counsel provided

counsel of record timely notice of the amici’s intention to file a

brief more than ten days prior to the due date. Sup. Ct. R. 37.2.

2

that the reasoning below enables state regulators to

renew the exclusion of religious schools through

creative use of regulations or academic standards.

Advancing this Court’s decision in Carson as next

friend of O. C. v. Makin, 596 U.S. 767, 785 (2022),

EdChoice seeks to prevent states from restricting

student access to innovative educational options,

including religious ones.

SUMMARY OF THE ARGUMENT

The Ninth Circuit was wrong to construe parents’

instruction of their own children in their own home as

government action. The relevant question for

distinguishing government education from government-supported private education is who provides the

instruction. The core of education is speech, i.e.

teaching children; other school activities support that

central action. The state of California might fund,

regulate, and supervise independent study, but it

does not choose the curriculum or teach the children.

Neither Carson as next friend of O. C. v. Makin, 596

U.S. 767 (2022), nor any other Supreme Court

authority, supports the Ninth Circuit’s rule that

government funding and regulation transform

private instruction into government action.

California’s alternative justifications for nixing

religious content from independent study do not alter

that conclusion. Educational quality requirements

may ensure adequate instruction in reading, writing,

and arithmetic, but they do not permit the State to

3

treat religious content as inherently deficient. To the

contrary, academic studies confirm the common-sense

observation that religious instruction can be high

quality. Nor may the State exclude religious instruction merely because government employees may

encounter religious homework. Reviewing a grammar worksheet that mentions God is not compelled

religious exercise. Private instruction does not

become government speech merely because a

government employee evaluates the homework.

If the Ninth Circuit’s rule stands, it will create a

new mechanism for states to avoid Carson through

regulation. The respondent in St. Mary Catholic

Parish v. Roy, No. 25-581, has asserted the same

quality rationale that California advanced here for

excluding religious education. If California’s

regulation of independent study permits exclusion of

religious education, Colorado could invoke the same

theory to avoid Carson, regardless of the outcome in

St. Mary Catholic Parish. The religious charter cases

progressing through lower courts likewise will not

resolve this question because a State’s regulatory

power to exclude religion does not depend on whether

the regulator is a state employee or a state contractor.

Accordingly, this Petition presents a distinct question

not answered by other religious education cases, yet

equally worthy of consideration: whether a State may

accomplish through regulation what Carson forbids it

from accomplishing directly.

4

ARGUMENT

I.

Government funding and regulation of an

independent study program does not

convert every activity in that program

into government action.

The Ninth Circuit erred by concluding that

government funding and supervision transform

homeschooling into government education. The

Court’s cases distinguish between (1) government

education and (2) government-supported (or

regulated) private education. Under those cases,

neither government funding nor supervision, alone or

in combination, equals government education.

The Petition is correct that “parents teaching their

own children at home using materials they select” are

not “carrying out the State’s own educational

program.” Pet. 20. The relevant activity in this case is

instruction, and in the independent study program,

parents provide the instruction. The state establishes

requirements for the program and supervises

compliance, but it does not instruct students.

Regulating the conditions under which instruction

occurs does not make the instruction a public-school

activity or transform the parent into a government

speaker.

5

A.

Neither Carson nor any other

Supreme Court precedent supports

the Ninth Circuit’s rule below.

In the Ninth Circuit, when state control over a

parent-directed program reaches some threshold, it

changes the constitutional character of the

underlying educational activity. See Appx. 18a (“The

extensive legal requirements applicable to the

defendant charter schools’ independent study

programs make them public school programs … .”).

The Ninth Circuit tries to justify its new rule by citing

Carson, but it identifies no legal principle from

Carson or elsewhere that explains what level of

regulation accomplishes this conversion. See id. To

the contrary, Carson supports Petitioners, not the

Ninth Circuit.

A principal point in Carson was to distinguish

private education supported by Maine’s towntuitioning program from public education provided in

government-operated schools. The Court rejected

Maine’s attempt to equate private instruction

purchased by the state with public instruction

provided in government-operated schools which must

avoid religious instruction under the Establishment

Clause. Carson as next friend of O. C. v. Makin, 596

U.S. 767, 785 (2022). As this Court explained, the

instruction purchased by the state was not

“equivalent” to traditional public schools in any way

except the directive to “be secular.” Id. at 784. The

lack of any other equivalence requirement, such as

6

open admissions, free tuition, curriculum, or teacher

certification, meant that Maine was engaging in a

“semantic exercise” to hide religious discrimination.

Id. at 785.

Carson thus confirms the distinction between

education the government provides and education it

purchases or supports through private providers. See

Carson, 596 U.S. at 782–85. Public schools can be

“strictly secular,” but the state cannot exclude

religious providers when the instructors are “not

public schools.” Id. at 785. Carson did not suggest that

regulation or finance could convert private providers

into public schools. See id.

The Ninth Circuit’s rule cannot be squared with

Carson. Under the Ninth Circuit’s view, Maine could

have transformed public finance of private education

into public-school education by imposing additional

curriculum, admissions and teacher qualifications

requirements. But Carson never suggests that

Maine’s error was that it regulated too little, as if the

constitutional character of education changes

depending on how extensively the state regulates it.

In the education context, government funding does

not convert a private entity’s actions into government

action. In Rendell-Baker v. Kohn, 457 U.S. 830, 832–

33, 842 (1982), the Court held that a private school

funded almost entirely by government grants was still

a private actor with respect to employment decisions.

The Court observed that even if “the State intends to

7

provide services for such students at public expense,”

that intent “in no way makes these services the

exclusive province of the State.” Id. at 842. See also

Logiodice v. Trustees of Maine Cent. Inst., 296 F.3d 22,

27 (1st Cir. 2002) (concluding that education under

Maine’s town-tuitioning program is not an exclusive

government function even as education of last resort);

Robert S. v. Stetson Sch., Inc., 256 F.3d 159, 164–65

(3d Cir. 2001) (concluding that a school contracting

with a state agency to serve sex offenders was not

performing an exclusively public function).

Nor does adding regulation and active supervision

convert private entities to public in other contexts.

The Court in Columbia Broad. Sys., Inc. v. Democratic

Nat. Comm., 412 U.S. 94, 97–100, 118–121 (1973)

(plurality op.), for example, rejected the argument

that the Federal Communications Commission

became a “partner” or “engaged in a ‘symbiotic

relationship’” with a radio station whose advertising

policy it was asked to review. The FCC heavily

regulated how the radio station operated, but that did

not vitiate the station’s private status. See also

Manhattan Cmty. Access Corp. v. Halleck, 587 U.S.

802, 814 (2019) (citing the CBS plurality as correct).

Even substantial regulation with government

funding does not transform private services into state

conduct. A doctor treating Medicare and Medicaid

patients is a private actor, not a state agent, even

with extensive regulation and licensing of nursing

homes. See Blum v. Yaretsky, 457 U.S. 991, 1008

8

(1982). And a lawyer licensed and hired by the state

to represent the indigent is a private actor, not a state

agent. Polk Cnty. v. Dodson, 454 U.S. 312, 318–319

(1981).

B.

Parents, not the state, provide the

instruction here.

The same principles from past funding and

regulation cases apply here because the relevant

question is whether the disputed activity—

educational instruction—is the state’s own conduct. It

is not. The program is public in some respects, but not

every act occurring within it becomes government

conduct as a result.

Under the independent study program, parents,

not the government, decide the subjects their children

study, the content of the courses, and the in-person

instruction that educates their children. As the

Petition explains, one school at issue “gives each

family an instructional budget that parents direct to

curriculum, materials, and services of their choice,”

while the other school lets parents “direct state funds

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

learning resources they select.” Pet. 8. Then,

“[p]arents teach their children at home using

materials they’ve chosen.” Id.

School teachers become involved in other ways:

They provide the “objectives and methods of study for

the pupil’s work, and the methods used to evaluate

that work.” Appx. 17a (quoting Cal. Educ. Code

9

§ 51747(g)(2)). This supervision includes preparing a

written agreement on the objectives, methods, and

planned evaluation, and reviewing work to determine

“the extent to which achievement of the pupil . . .

meets the objectives of an assessment. Id. (alteration

in original) (quoting Cal. Code Regs. tit. 5, § 11700(e),

(f)). As the Petition explains, this typically involves

the parent periodically meeting with a teacher who

“reviews attendance records and work samples and

answers questions,” and for at least one of the schools

at issue here, “review[s] proposed expenditures.” Pet.

9. Those activities regulate and evaluate the parent’s

instruction; they do not choose the subject or content

of the course or deliver the education.

The distinction between instruction and

administration fits the ordinary understanding of

education. See Philip Hamburger, Education is

Speech: Parental Free Speech in Education, 101 Tex.

L. Rev. 415, 423 (2022). As Professor Hamburger

explains, “Speech is the essential core and dominant

reality of almost all education.” Id. Even in matters

like “playtime, art, sports, and physical experiments

in the sciences. . . the educational elements of these

activities are largely, often crucially, a matter of

speech.” Id. at 424. Education is not a collection of

every administrative, supervisory, or regulatory

function a school performs. At its core, education

means instruction: communicating knowledge, ideas,

and values to students. See id. at 423–24. All other

activities in a school—e.g., student transportation,

meals, health and guidance services—support core

10

instruction. See id. at 450 n.109 (giving the example

of “protect the health of children” as a non-speech

activity performed by schools). The State’s role in

setting conditions for acceptable education thus does

not answer who provides the instruction any more

than issuing a license to broadcasters answers who

does the broadcasting. See Columbia Broad. Sys.,

Inc., 412 U.S. at 118–121 (plurality op.).

Perhaps

recognizing

that

parent-provided

education is not a public-school program, California

also argues that parents teaching their own children

are really government speakers. See State Supt.’s

Answering Br. at 48–53, Woolard v. Thurmond, No.

24-4291 (9th Cir. Jan. 22, 2025) (hereinafter “State

Supt.’s 9th Cir. Answering Br.”). In their own words,

“the fact that government-approved public school

curricula may be engaged with by private citizens in

their private home, does not convert the curricula

materials into private speech.” Id. at 53.

California’s argument relies on the premise that

government is principally responsible for a child’s

education. That premise is false. “The fundamental

theory of liberty upon which all governments in this

Union repose excludes any general power of the state

to standardize its children.” Pierce v. Soc’y of the

Sisters of the Holy Names of Jesus & Mary, 268 U.S.

510, 535 (1925). Accordingly, parents have the right

“to direct the upbringing and education of children

under their control.” Id. at 534–35. More precisely for

this case, “parents have speech rights that others do

11

not in the education of their minor children.”

Hamburger, 101 Tex. L. Rev. at 427. Educational

instruction is presumptively private and becomes

governmental only when parents enroll their children

in a school with instruction provided by a government

teacher. Id. California errs by trying to reverse that

presumption in its favor rather than establish how

parents in this case consented to substitution of

government speech for their own.

California also identifies no authority holding that

a state’s approval or regulation of educational

materials causes a parent’s instructional use of those

materials to become government speech. See State

Supt.’s 9th Cir. Answering Br. at 49–50. It cites

Walker v. Sons of Confederate Veterans, Inc., 576 U.S.

200 (2015), Pleasant Grove City v. Summum, 555 U.S.

460 (2009), and Johanns v. Livestock Marketing Ass’n,

544 U.S. 550 (2005), but those cases involved license

plates, monuments in a park, and mandatory fees for

an ad council. Walker, 576 U.S. at 215; Summum, 555

U.S. at 469; Johanns, 544 U.S. at 553–54. License

plates and city park monuments are government

speech on government property. Walker, 576 U.S. at

215; Summum, 555 U.S. at 469. They do not establish

that government regulation generates government

speech from a private person in a private home. And

a government exaction for a government-scripted

promotion is not the same as a government benefit for

unscripted private home instruction. Johanns, 544

U.S. at 560–62.

12

California’s argument ultimately rests on the

proposition that the State may impose restrictions on

religious instruction when it finances an education

program. State Supt.’s 9th Cir. Answering Br. at 33.

Carson forecloses that argument. The state may not

exclude eligible subsidy recipients from a benefits

program solely because they engage in religious

exercise. Carson, 596 U.S. at 785. California attempts

to characterize the instruction as governmental

rather than private merely to reformulate a losing

argument from Carson.

California’s theory would have consequences far

beyond education. If government funding and

regulations can convert a private speaker into a

government speaker, then the government could

potentially impose viewpoint-based restrictions on

other private recipients of public benefits. Can the

state order religious hospitals to scrub all crucifixes

and Bible verses from the walls and literature when

treating Medicare patients? Can the state condition

welfare benefits on an agreement not to use the funds

at Christian-owned stores? Of course not. But the

Ninth Circuit’s adoption of California’s theory creates

a legal justification for precisely that result.

In sum, the state funds and regulates an

independent study program, but the parents choose

the curriculum and instruct the child. The Ninth

Circuit erred by using the State’s regulatory role to

convert the parent’s instructional role into state

speech. Because the instruction is privately chosen

13

and privately provided, the independent study

program is properly understood as a government

benefit for private education. Under Carson, the state

may not condition such a benefit on forbearance of

religious exercise. 596 U.S. at 785.

II.

Neither educational quality nor teacher

supervision justifies excluding religious

instruction.

California raises two additional reasons to exclude

religion: the supposedly lower quality of religious

education and higher burden that religious material

would impose on state teachers. These objections

would narrow Carson to its facts, using immaterial

distinctions between independent study and town

tuitioning to achieve a different result. Neither

concern justifies excluding religious instruction from

an otherwise available educational benefit.

A.

Education quality standards do not

justify wholesale exclusion of

religious instruction.

California argues that it can exclude religious

curriculum as not “substantially equivalent in

quality” to state standards. See State Supt.’s 9th Cir.

Answering Br. at 21, 24–25. This argument proceeds

in two steps. First, California identifies state

standards as the sole measure of education quality.

Id. at 21. Then, it asserts that secular content is

necessary to satisfy those standards. Id. at 24–25.

14

The second proposition does not follow from the

first: a state may establish neutral educational

requirements without demanding secularism as a

condition of educational quality. Instruction

necessarily communicates both academic content and

the values of the person providing it. See Hamburger,

101 Tex. L. Rev. at 424. When parents speak to their

children, they necessarily communicate their values.

The religious character of instruction does not

establish whether the instruction satisfies quality

academic standards.

Even if the State has legitimate quality standards,

it cannot use “quality” as a proxy for excluding

religious viewpoints. The purpose of state standards

is to ensure that a student learns subjects like

reading, writing, and arithmetic at the appropriate

depth and level of proficiency. Treating religious

content as inherently deficient offends free exercise

standards and traditions.

An example Judge Bumatay used in his dissent

illustrates this problem. The sentence “God sends the

rain to help plants grow” is a correct sentence for

teaching grammar. Appx. 24a (Bumatay, J.

dissenting from denial of rehearing en banc). So is the

sentence “The sun warms the earth to help plants

grow.” California’s requirement for teaching

grammar would not result in a preference for either

one. Whatever disagreement California may have

with the proposition itself, see State Supt.’s 9th Cir.

15

Answering Br. at 25, religious content does not make

otherwise adequate instruction defective.

Beyond the examples in this case, academic

studies of education indicate that religious education

is compatible with quality education. One metaanalysis reported positive academic associations for

Christian school students compared with public

school students. See William H. Jeynes, The Effects of

Catholic and Protestant Schools: A Meta-Analysis, 12

J. Catholic Educ. 255, 255 (2008). Another metaanalysis found positive academic associations for all

religious school students. See William H. Jeynes, A

Meta-Analysis on the Effects and Contributions of

Public, Public Charter, and Religious Schools on

Student Outcomes, 87 Peabody J. Educ. 305, 305

(2012).

Religious education leads not only to greater

academic achievement but also to other improved

civic outcomes. A recent statistical meta-analysis

examining the association between private schools

and four civic outcomes (political tolerance, political

participation, civic knowledge and skills, and

voluntarism and social capital) showed that religious

private schools are associated with higher civic

outcomes for students over comparably situated

public school students. See M. Danish Shakeel,

Patrick J. Wolf, et al., The Public Purposes of Private

Education: A Civic Outcomes Meta-Analysis, 36 Ed.

Psychol. Rev. art. 40, at 23 (2024).

16

The record and these studies indicate that

religious education can be, and often is, of very high

quality. California cannot convert neutral academic

standards into a categorical exclusion of religious

instruction, lest it elevate secularism rather than

academic proficiency as the defining feature of quality

education—precisely

the

kind

of

religious

discrimination that Carson forbids.

B.

The state may not exclude religious

instruction simply because its

employees must supervise it.

One school appellee further objects that

supervising teachers should not be required to

evaluate worksheets containing religious references.

See Blue Ridge Academy’s Answering Br. at 59,

Woolard v. Thurmond, No. 24-4291 (9th Cir. Jan. 22,

2025). The argument appears to rest on the premise

that a teacher’s exposure to religious content is an

impermissible burden.

This objection confuses evaluating instructional

materials with agreeing with the sentence. Merely

seeing a worksheet that mentions God is not

equivalent to being compelled to pray or to attend

religious services. Exposure to religious expression is

not governmental endorsement or compelled religious

exercise.

This objection also misunderstands how the First

Amendment works. Under current law, public schools

remain neutral regarding religion to prevent

17

“mak[ing] a religious observance compulsory.” See

Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 537

(2022) (quoting Zorach v. Clauson, 343 U.S. 306, 314

(1952)). Yet states cannot exclude private religious

providers from other education programs. Carson,

596 U.S. at 785. These rules reflect the

“complementary” purposes of the Free Exercise and

Establishment Clauses. The government can neither

compel religious observance nor suppress private

religion. See Kennedy, 597 U.S. at 533.

As a result, the argument about helping teachers

avoid religion depends on the speech premise

discussed above. See supra Part I. If the parent’s

instruction remains private speech, then a state

employee’s supervision does not make the instruction

the employee’s speech. Nor can a teacher’s desire to

avoid exposure to religious content justify imposing

that burden on the parent. Otherwise, the state could

burden private religious exercise whenever one of its

employees objected to encountering it when

performing a supervisory function. A regulator’s role

as homework grader does not give the state greater

power to burden private religious exercise. Nothing in

the Free Exercise Clause or the Establishment Clause

permits the State to exclude private religious

instruction merely because a government employee

supervises the program.

***

18

Once it is clear that a program where parents

educate their own children is a private benefits

program, see supra Part I, neither educational quality

standards nor state employee supervision provides a

means of avoiding application of Carson. California

may, of course, impose neutral academic

requirements on education programs and supervise

compliance. But it may not use quality as a proxy to

exclude religious instruction; nor may it suppress

religious exercise to spare state employees from

encountering it.

III.

The Ninth Circuit’s approach would

permit states to evade Carson through

regulation.

The Ninth Circuit’s decision illustrates a broader

problem warranting review: State efforts to limit or

avoid Carson via immaterial regulatory and factual

distinctions. Critically, this problem is distinct from

the question whether states may use antidiscrimination laws or charter schools to exclude

religious education. To be sure, the Court is

addressing, and will need to address, those discrete

classes of cases. But it also needs to take this case to

hammer a third whack-a-mole: Regulatory exclusion.

19

As this Court is aware, Colorado has excluded

religious participation in a state-funded preschool

program in a different distinction from Carson. See

Brief of Amici EdChoice et al. at 4–6, St. Mary

Catholic Parish v. Roy, No. 25-581 (U.S. July 2, 2026)

(hereinafter “St. Mary Brief of Amici EdChoice”). In

particular, it has prohibited specific religious views on

sexuality rather than prohibiting all religious

instruction. See id. It even uses the same “quality”

argument that California uses here. Compare supra

Part II.A, with Respondent’s Merits Brief, St. Mary

Catholic Parish v. Roy, No. 25-581, at 4 (arguing that

the challenged laws “ensure that [the program’s]

publicly funded preschools deliver high-quality early

childhood education”). This approach resulted in a

functional exclusion of all religious preschools from

its universal preschool program. See St. Mary Brief of

Amici EdChoice at 4–6; see also, e.g., Darren Patterson

Christian Acad. v. Roy, 765 F. Supp. 3d 1194 (D. Colo.

2025), appeal docketed, No. 25-1187 (10th Cir.).

Maine provides another example of a state

imposing restrictions on participating religious school

after Carson, taking the same approach as Colorado.

See Crosspoint Church v. Makin, 180 F.4th 354, 357–

58 (1st Cir. 2026); St. Dominic Acad. v. Makin, 181

F.4th 11, 20–26 (1st Cir. 2026). It also outlawed

specific religious views on sexuality, resulting in

exclusion of religious schools from town-tuitioning

again despite this Court’s decision in Carson. See id.

20

If California’s method of prohibiting religious

instruction is permitted to stand, States like Colorado

and Maine will have yet another path around Carson,

regardless of the result in St. Mary. Even if States

may not exclude religious providers based on their

views on sexuality, they could exclude the same

providers by requiring them to accept government

supervision and comply with state standards that,

they say, require secular instruction. The result

would be a means of circumventing Carson and any

adverse decision in St. Mary.

The Carson distinction declared by the Ninth

Circuit in this case also cannot be settled by the

religious charter cases working their way through

lower courts. See, e.g., Wilberforce Acad. of Knoxville

v. Knox Cnty. Bd. of Educ., No. 3:25CV584 (E.D.

Tenn.); Nat’l Ben Gamla Jewish Charter Sch. Found.,

Inc. v. Drummond, No. 5:26CV582 (W.D. Okla.). In

those religious charter school cases, the question is

whether the charter school is a private contractor or

a government educator. See Petitioner Br. at i, St.

Isidore v. Drummond, Nos. 24-394, 24-396. Although

this case also involves charter schools, the status of

charter schools and their teachers does not affect the

outcome. The relevant question is what happens

when the state regulates privately provided

education. Whether the regulator is a state employee

or a state contractor does not determine whether the

regulated speaker is a government speaker.

21

In short, this Court should grant this petition

because it raises a different and important question

than other religious education cases now before this

Court or likely to reach this Court. Neither the St.

Mary case and related cases nor the religious charter

cases necessarily resolve the legal consequence of the

regulation and supervision in cases like this one. If

the Ninth Circuit’s error here is allowed to stand, it

will permit states to continue restricting religious

education and narrowing the protections this Court

established in Carson.

CONCLUSION

This Court should grant the petition for certiorari.

Respectfully submitted,

Thomas M. Fisher

Counsel of Record

Bryan G. Cleveland

Melinda R. Hudson

EDCHOICE LEGAL ADVOCATES

111 Monument Circle, Suite 2650

Indianapolis, IN 46204

(317) 978-9472

tfisher@edchoice.org

Counsel for Amicus Curiae

September 23, 2026