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 for Amici Curiae State of Utah and 17

Other States in Support of Petitioners

________________

DEREK BROWN

Utah Attorney

General

STANFORD E. PURSER

Utah Solicitor General

Counsel of Record

MARK C. GILLESPIE

Assistant Solicitor

General

OFFICE OF THE UTAH

ATTORNEY GENERAL

160 E. 300 S., 5th floor

Salt Lake City, UT 84111

(801) 538-9600

spurser@agutah.gov

Counsel for Amicus Curiae State of Utah

[additional amici curiae listed after signature page]

September 23, 2026

i

Table of Contents

Table of Authorities .................................................... ii

Introduction and Statement of Interest .................... 1

Summary of the Argument ........................................ 3

Argument .................................................................... 5

I. The Constitution Forbids States from

Denying Generally Available Educational

Funding Based on Religion. ............................ 5

II. California’s Homeschooling Programs

and Their Enrollees Enjoy First

Amendment Protection. ................................. 11

Conclusion................................................................. 16

ii

Table of Authorities

Cases

Ambach v. Norwick,

441 U.S. 68 (1979) .................................................. 15

Bigelow v. Virginia,

421 U.S. 809 (1975) .................................................. 2

Brown v. Bd. of Educ.,

347 U.S. 483 (1954) .................................................. 1

Carson v. Makin,

596 U.S. 767 (2022) ........................ 2, 4, 9, 10, 11, 16

Espinoza v. Mont. Dep’t of Revenue,

591 U.S. 464 (2020) .................................. 2, 4, 6, 8, 9

Evans v. Michigan,

568 U.S. 313 (2013) ................................................ 14

Hartzell v. Connell,

679 P.2d 35 (Cal. 1984) .......................................... 15

Mahmoud v. Taylor,

606 U.S. 522 (2025) ................................................ 12

Mirabelli v. Bonta,

607 U.S. 492 (2026) ................................................ 12

Morse v. Frederick,

551 U.S. 393 (2007) ................................................ 16

NAACP v. Button,

371 U.S. 415 (1963) .................................................. 3

Near v. Minnesota ex rel. Olson,

283 U.S. 697 (1931) ................................................ 15

iii

Trinity Lutheran Church of Columbia, Inc. v.

Comer,

582 U.S. 449 (2017) ........................................ 4, 7, 12

Zelman v. Simmons-Harris,

536 U.S. 639 (2002) ................................................ 10

Constitutional Provisions

Cal. Const., art. IX, § 16 .............................................. 6

Mo. Const., art. I, § 7 ................................................... 7

Mont. Const., art. X, § 6 .............................................. 8

Mont. Const., art. X, § 6(a) .......................................... 8

Statutes

Cal. Educ. Code § 47605(e)(1) ..................................... 6

Cal. Educ. Code § 48200 ...................................... 15, 16

Cal. Educ. Code § 51746 ............................................ 14

Cal. Educ. Code § 51747(g)........................................ 14

Cal. Educ. Code § 51747(g)(1) ................................... 14

Cal. Educ. Code § 51747(g)(3) ................................... 14

Cal. Educ. Code § 51747(g)(8) ................................... 16

Cal. Educ. Code § 51747.5 ......................................... 13

Cal. Educ. Code § 51747.5(a) .................................... 13

Cal. Educ. Code § 51747.5(b) .................................... 14

Cal. Educ. Code § 51747.5(d) .................................... 14

Cal. Educ. Code § 51747.5(e) ..................................... 14

Utah Code § 53G-6-204 ............................................. 12

iv

Other Authorities

Angela R. Watson & Genevieve Smith, Homeschool

Hub: National Summary, Johns Hopkins Univ.

(Dec. 2023) .............................................................. 13

Brian D. Ray, Braden Hoelzle & Douglas

Pietersma, A Systematic Review of the Empirical

Research on Selected Aspects of Homeschooling:

Updated 2017–2026, 101 Peabody J. of Educ.

132 (2026) ............................................................... 12

Governor Spencer J. Cox, Utah School Choice

Week Declaration (Jan. 2026) .................................. 2

Homeschool, Merriam-Webster ................................. 14

Nat’l Ctr. for Educ. Stat., Homeschooled Children

and Reasons for Homeschooling (May 2022) ........ 13

Nat’l Ctr. for Educ. Stat., Trends in High School

Dropout and Completion Rates in the United

States ........................................................................ 1

1

Introduction and Statement of Interest 1

“[E]ducation is perhaps the most important

function of state and local governments,” wrote a

unanimous Supreme Court in Brown v. Bd. of Educ.,

347 U.S. 483, 493 (1954). “It is the very foundation of

good citizenship” and “a principal instrument in

awakening the child to cultural values, in preparing

him for later professional training, and in helping him

to adjust normally to his environment.” Id. Indeed, “it

is doubtful that any child may reasonably be expected

to succeed in life if he is denied the opportunity of an

education.” Id. With so much at stake, no State may

play favorites in dispensing educational opportunities.

Rather, where the State “has undertaken to provide it,

[education] is a right which must be made available to

all on equal terms.” Id. (emphasis added).

Education’s importance has only grown in the 70

years since Brown. Americans with higher levels of

education enjoy greater median earnings, rates of

employment, and even health, while relying less on

government benefits and committing less crime. Nat’l

Ctr. for Educ. Stat., Trends in High School Dropout

and Completion Rates in the United States,

https://nces.ed.gov/programs/dropout/intro.asp. Many

States, seeking more of these benefits, have

recognized the limits of a one-size-fits-all education

system and chosen to implement alternatives to better

serve their residents. Utah, for example, has created

“a multitude of schooling opportunities, both public

and private, as well as in the home,” that “diversify

1 Counsel of record received timely notice of the State of Utah’s

intent to file this amicus brief under Supreme Court Rule 37.2.

2

[its] economy” and “enhance[] the vibrancy of [its]

community.” Governor Spencer J. Cox, Utah School

Choice

Week

Declaration

(Jan.

2026),

https://governor.utah.gov/declarations/. States enjoy

freedom to create and customize these alterative

options. But they too must be offered “on equal

terms”—including

without

unlawful

religious

discrimination. As this Court has explicitly held, a

“State need not subsidize private education. But once

a State decides to do so, it cannot disqualify some

private schools solely because they are religious.”

Carson v. Makin, 596 U.S. 767, 785 (2022) (quoting

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

487 (2020)).

California did so anyway. It created a program

allowing parents to homeschool their children through

independent study programs. It authorized these

parents to create customized curricula for their

children. And it made funds and resources available to

these parents—with one exception. It will not “permit

the use of sectarian curricular materials for

instruction,” App. 10a, even where those “materials

meet California’s educational standards,” App. 24a

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

banc).

California’s religious discrimination violates the

Free Exercise Clause. The Ninth Circuit tried to

sidestep that straightforward conclusion by

(mis)labeling homeschooling as a “public school

progra[m].” App. 18a. But “mere labels” can’t evade

First Amendment principles and protections. Bigelow

v. Virginia, 421 U.S. 809, 826 (1975) (quoting NAACP

v. Button, 371 U.S. 415, 429 (1963)). The panel’s

3

erroneous decision creates a split with other circuits

that have not allowed discrimination like California’s,

and with this Court’s recent First Amendment

jurisprudence. This Court should grant certiorari to

correct the decision below and restore uniformity.

The States of Utah, Alabama, Alaska, Arkansas,

Florida, Georgia, Iowa, Kansas, Louisiana, Missouri,

Montana, Nebraska, North Dakota, South Carolina,

South Dakota, Tennessee, Texas, and West Virginia

submit this brief in support of Petitioners. Many of

these States directly or indirectly provide benefits that

can be used for private and homeschooling options for

their residents, enabling families to choose

educational options that best fit their circumstances,

values, and preferences. All these States share an

interest in ensuring that generally available

educational opportunities are not given preferential

(or inferior) status simply due to their religious status.

Discrimination against homeschooling programs that

use religious educational materials infringes on the

rights of families—parents and students—who choose

those programs. Amici States oppose such

discrimination as harmful to their interests in offering

diverse educational programs to meet a wide variety

of needs, ensuring that children and families remain

free to pursue the benefits of education, and

safeguarding their citizens’ First Amendment rights.

Summary of the Argument

1. States can choose whether to provide public

benefits to their citizens. But the Free Exercise Clause

does not permit a State to limit a publicly available

4

benefit to secular entities. That’s the emphatic

message from a trilogy of the Court’s recent decisions:

Trinity Lutheran Church of Columbia, Inc. v. Comer

(2017) , Espinoza v. Montana Department of Revenue

(2020) , and Carson v. Makin (2022). In each case, the

Court invalidated state action that sought to apply a

law forbidding the grant of a benefit to a “sectarian”

(that is, religious) organization. And in each case, the

Court reaffirmed its straightforward reading of the

Free Exercise Clause as “unremarkable.”

The trilogy makes clear that the First

Amendment protects against religious discrimination.

Generally available public benefits must be offered on

equal terms to both secular and “sectarian” recipients.

That holds true whether the benefit is a grant for

resurfacing playgrounds (Trinity Lutheran) a

scholarship (Espinoza), or a tuition-assistance

payment (Carson). It also holds true here, where

California offers a benefit in the form of

homeschooling resources. California’s refusal to

subsidize resources that contain religious content

flouts this Court’s holdings in all three of the publicbenefits Free Exercise cases.

2. The Ninth Circuit’s failure to follow this Court’s

precedents hinges on its misapplication of the facts.

The

panel

opinion

construed

California’s

homeschooling program as “public school programs”

and concluded that it therefore fell outside the First

Amendment’s protection. That was error. California’s

homeschool programs are designed, implemented, and

administered exclusively by parents, with minimal

oversight by State authorities. They offer no

opportunities for the State to instruct students and

5

are completely optional. In every way that matters,

they are unlike California’s public schools—which is

why California has chosen to offer them as an

alternative in the first place. The Ninth Circuit’s

treatment of homeschooling programs as “public

schools” permits California to violate the First

Amendment rights of parents that choose to

homeschool and threatens to allow similar abuses

against homeschooling families. The Court should

therefore grant review.

Argument

I.

The Constitution Forbids States from

Denying Generally Available Educational

Funding Based on Religion.

This case arises out of California’s attempt to

enforce a law barring its independent study

homeschooling programs from receiving generally

available state educational funds because their

curriculum materials—which meets California’s

educational standards—are “sectarian” in character.

California’s law likely inspires a sense of déjà vu for

this Court; after all, it has held three times over the

past decade that States cannot enforce similar laws

barring “sectarian” organizations from receiving

generally available public benefits. California’s

conduct is simply the latest in a long line of attempts

to elevate State constitutional prohibitions “born in

bigotry” above the First Amendment. Espinoza, 591

U.S. at 482 (internal quotation marks omitted). The

Free Exercise Clause forbids California—like those

6

other States—from

discrimination.

engaging

in

that

type

of

California’s constitution states that “[n]o public

money shall ever be appropriated for the support of

any sectarian or denominational school . . . nor shall

any sectarian or denominational doctrine be taught, or

instruction thereon be permitted, directly or

indirectly, in any of the common schools of this State.”

Cal. Const., art. IX, § 8. The California Legislature has

enacted a law further requiring that “a charter school

shall be nonsectarian in its programs.” Cal. Educ.

Code § 47605(e)(1). California defines “nonsectarian”

to mean “nonreligious,” an interpretation the district

court accepted for the purposes of this lawsuit. App.

69a (“One requirement for all of California’s public

schools, including charter schools, is that they remain

nonsectarian (non-religious) in all their programs and

operations.”); but see App. 34a–43a (VanDyke, J.,

dissenting from denial of rehearing en banc) (showing

via historical textbooks that Article IX of the

California Constitution was “meant to ban only some

religious content”).

The upshot: homeschool programs may seek

funding through charter schools as provided by

California law, but the State will refuse to fund

otherwise-qualifying programs if “parents select

curricula based on their religious beliefs.” App. 21a

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

banc).

The Free Exercise Clause demands more.

Specifically, it requires California to offer generally

available educational funding to “sectarian” programs

on an equal footing with secular ones. Three recent

7

Free Exercise decisions by this Court illustrate this

principle.

Trinity Lutheran (2017). In Trinity Lutheran

Church of Columbia, Inc. v. Comer, a preschool and

daycare center associated with the Trinity Lutheran

Church sought a grant from Missouri to resurface its

playground using recycled tires. 582 U.S. 449, 454–55

(2017). Although the center was deemed one of the top

applicants for the grant, Missouri refused to grant it

due to a constitutional provision stating that “‘no

money shall ever be taken from the public treasury,

directly or indirectly, in aid of any church, sect or

denomination of religion.’” Id. at 455–56 (quoting Mo.

Const., art. I, § 7). When the center sued, both the

district court and the Eight Circuit reasoned that

Missouri’s actions were constitutionally sound.

This Court disagreed and held Missouri’s refusal

to be a constitutional violation. The Court explained

that Missouri’s “policy expressly discriminate[d]

against otherwise eligible recipients by disqualifying

them from a public benefit solely because of their

religious character.” Id. at 462. And that

discriminatory policy was “odious to our Constitution.”

Id. at 467. The Court held that Trinity Lutheran’s

daycare center was entitled to funds on equal footing

with nonreligious organizations, despite Missouri’s

discriminatory constitutional provision.

Espinoza (2020). Three years later, the Court

applied Trinity Lutheran’s holding directly to

educational benefits in Espinoza v. Montana

Department of Revenue. 591 U.S. 464. Like Missouri,

Montana’s constitution prohibited aid to “sectarian

schools.” Mont. Const., art. X, § 6. Under its terms, the

8

State could “not make any direct or indirect

appropriation or payment from any public fund or

monies, or any grant of lands or other property for any

sectarian purpose or to aid any church, school,

academy, seminary, college, university, or other

literary or scientific institution, controlled in whole or

in part by any church, sect, or denomination.” Id.

§ 6(a) (emphasis added).

Relying on this “no-aid provision” (or “Blaine

Amendment,” named for the Congressman who

championed a similar amendment in Congress

designed to marginalize Catholics), the Montana

Department

of

Revenue

promulgated

an

administrative rule that prohibited families from

using

generally

available

state-sponsored

scholarships at religious schools. Espinoza, 591 U.S.

at 468–70; see id. at 498–99 (Alito, J., concurring)

(origin of Blaine Amendments). The Montana

Attorney General warned the Department that its

discriminatory rule “very likely” violated the First

Amendment, but the Department persisted. Id. at 470.

The Montana Supreme Court struck down the rule on

administrative law grounds. But rather than curing

the constitutional error, that court compounded it by

invalidating the entire scholarship program. Without

the discriminatory rule, the court reasoned, there was

“‘no mechanism” for preventing aid from flowing to

religious schools”—and under Montana’s Blaine

Amendment that could not stand. Id. at 471–72.

Once again, this Court reversed. It explained that

the First Amendment “is not offended when religious

observers and organizations benefit from neutral

government programs.” Id. at 474. But the same is not

9

true when a State “bars religious schools from public

benefits solely because of the religious character of the

schools.” Id. at 476. Rejecting the Department’s

assertion that “some lesser degree of scrutiny applies

to discrimination against religious uses of government

aid,” the Court noted that Montana’s no-aid provision

“discriminated based on religious status,” applied

strict scrutiny, and reversed the decision below. Id. at

478, 489. “A State need not subsidize private

education,” the Court explained. “But once a State

decides to do so, it cannot disqualify some private

schools solely because they are religious.” Id. at 487.

Carson (2022). Espinoza had scarcely been

printed in court reporters before the next State

prohibition on public benefits to sectarian schools was

ripe for review. Carson v. Makin, 596 U.S. 767. Once

again, a State (this time Maine) had attempted to

exclude religious schools from a generally available

tuition assistance program. Maine had no Blaine

Amendment—ironically enough, since Representative

Blaine was himself a Mainer. But in 1981 its

legislature enacted a requirement that “any school

receiving tuition assistance payments must be ‘a

nonsectarian school,’” apparently believing that the

Establishment Clause imposed that requirement. Id.

at 774.

Twenty years after Maine adopted that law, this

Court made clear that the Establishment Clause is not

violated when “a government aid program is neutral

with respect to religion, and provides assistance

directly to a broad class of citizens who, in turn, direct

government aid to religious schools wholly as a result

of their own genuine and independent private choice.”

10

Zelman v. Simmons-Harris, 536 U.S. 639, 652 (2002).

But Maine’s law remained on the books, and even after

Espinoza, Maine enforced it by denying tuition

assistance to any school “associated with a particular

faith or belief system and which, in addition to

teaching academic subjects, promotes the faith or

belief system with which it is associated and/or

presents the material taught through the lens of this

faith.” Carson, 596 U.S. at 775 (internal quotation

marks omitted).

For the third time, this Court explained that the

Free Exercise Clause forbids State preferences for

“nonsectarian” institutions. Id. at 789. The Court

compared Maine’s conduct to other recent “state

efforts to withhold otherwise available public benefits

from religious organizations”—those in Trinity

Lutheran and Espinoza. Id. at 778. And it found

Maine’s law, which “specifically carved out private

religious schools from those eligible to receive” a

publicly available benefit, to violate the Free Exercise

Clause just as Missouri’s and Montana’s laws had

done. Id. at 780–81. Because Maine chose to “offer

tuition assistance that parents may direct to the

public or private schools of their choice,” the Court

explained, that assistance had to be offered equally to

religious and nonreligious schools. Id. at 785

(emphasis omitted).

Trinity Lutheran, Espinoza, and Carson

articulate a consistent rule: a State’s “‘nonsectarian’

requirement for . . . otherwise generally available

tuition assistance payments violates the Free Exercise

Clause of the First Amendment,” because such

requirements “identify and exclude otherwise eligible

11

schools on the basis of their religious exercise.” Id. at

789. The First Amendment protects Americans

against such antireligious discrimination.

II. California’s Homeschooling Programs and

Their Enrollees Enjoy First Amendment

Protection.

Given the “wall of Supreme Court authority”

prohibiting discrimination like California’s, the Ninth

Circuit’s approval of that discrimination is

remarkable. App. 21a (Bumatay, J., dissenting from

denial of rehearing en banc). In fact, the Ninth

Circuit’s panel decision was only possible because that

court engaged in a semantic sleight of hand. By

labeling California’s homeschool “independent study

programs” as “public school programs,” App. 18a, the

panel found a way to allow for “strictly secular

education” even at the cost of engaging in

discrimination against faith-based programs, App.

11a. 2 That error not only misrepresents the facts of

this case; it opens the door to future constitutional

violations against homeschooling families. Parents

The Ninth Circuit also erred in concluding that “a state’s

decision to provide a ‘strictly secular’ public education” can never

“fall afoul of the Free Exercise Clause.” App. 15a (quoting Carson,

596 U.S. at 785). Even if some aspect of California’s

homeschooling program could be construed as “public,” the Ninth

Circuit was wrong to end the analysis with that blanket

statement. “Public education is a public benefit, and the

government cannot ‘condition’ its ‘availability’ on parents’

willingness to accept a burden on their religious exercise.”

Mahmoud v. Taylor, 606 U.S. 522, 561 (2025) (quoting Trinity

Lutheran, 582 U.S. at 462).

2

12

and students engaging in California homeschooling

are entitled to First Amendment protection.

California’s decision to offer a homeschooling

option to its citizens is no surprise. As of 2022, more

than 3 million K–12 students were reported to be

homeschooled—“more children than in all the nation’s

Catholic schools and nearly as many as in all the

public charter schools.” Brian D. Ray, Braden Hoelzle

& Douglas Pietersma, A Systematic Review of the

Empirical Research on Selected Aspects of

Homeschooling: Updated 2017–2026, 101 Peabody J.

of Educ. 132, 132 (2026), https://www.tandfonline.com

/doi/epdf/10.1080/0161956X.2025.2605900 (internal

citations omitted). Homeschooling makes education

possible for families with limited access to traditional

public schooling and allows for more effective teaching

when traditional methods encounter problems (such

as during the COVID-19 pandemic). Researchers have

documented several benefits to homeschooling,

including higher academic achievement, better

emotional development, less illegal drug usage, and

lower levels of depression. Id. at 136–40. And by

enabling homeschooling, States more fully honor

“parents’ rights to direct the upbringing and education

of their children.” Mirabelli v. Bonta, 607 U.S. 492,

497 (2026). For these and other reasons, every State—

including Amici States—has chosen to allow or

support homeschooling in some form. Angela R.

Watson & Genevieve Smith, Homeschool Hub:

National Summary, Johns Hopkins Univ. (Dec. 2023),

https://education.jhu.edu/edpolicy/policy-research

-initiatives/homeschool-hub/national-summary/; see

also, e.g., Utah Code § 53G-6-204.

13

To the extent California seeks similar benefits for

its own citizens, its homeschooling program is a

worthy endeavor. But the State’s refusal to support

homeschoolers using qualifying educational material

solely because that material contains faith-related

content directly undermines those benefits. According

to a recent government study, over 58% of

homeschooling parents report that they have “a desire

to provide religious instruction”—and 13% list that as

their “most important reason” for homeschooling.

Nat’l Ctr. for Educ. Stat., Homeschooled Children and

Reasons

for

Homeschooling,

(May

2022),

https://nces.ed.gov/programs/coe/indicator/tgk/homesc

hooled-children. Under California’s current law, that

desire cannot be realized.

This tension need not exist, because California’s

homeschooling system is a private (not public)

education program—as is clear from the program’s

structure. In California, homeschooling is a form of

“independent study” authorized by statute. App. 9a;

Cal. Educ. Code § 51747.5. Although each pupil’s

study is conducted “under the general supervision of

an employee of the local educational agency,” Cal.

Educ. Code § 51747.5(a), that supervision is light. For

instance, the agency must assess “the time value of

pupil work products,” id. § 51747.5(b), (e); collect

“evidence of pupil engagement” such as “a grade book

or summary document,” id. § 51747.5(d); and maintain

a “written agreement” outlining the general terms of

the independent study and what “specific resources”

will be “made available to the pupil,” id. § 51747(g).

The agency also establishes in its written policy the

“manner,

time,

frequency,

and

place”

for

“communicating with a pupil’s parent or guardian

14

regarding a

§ 51747(g)(1).

pupil’s

academic

progress.”

Id.

That last point is crucial because it illustrates

who is doing the actual teaching: parents. Nowhere in

the statute is the local educational agency empowered

to directly teach an independent-study pupil or to

select a particular course of study. To the contrary,

parents enjoy “great flexibility to choose which preexisting curricula to use to educate their children, or

to create their own.” App. 18a. The State provides

“services and resources” to make independent study

possible, including by paying for “materials.” Cal.

Educ. Code §§ 51746, 51747(g)(3). But it neither

chooses those materials nor educates students with

them. That is the exclusive role of “parent[s] or

guardian[s]”

under

California’s

system.

Id.

§ 51747(g)(1).

By

any

measure,

California’s

“independent study” program is thus a homeschooling

program: it enables one “to teach school subjects to

one’s children at home.” Homeschool, MerriamWebster, https://www.merriam-webster.com/

dictionary/homeschool.

The Ninth Circuit ignored these realities. Though

compelled to admit that “students in the independent

study programs receive instruction in their homes,

and the direct educators are their parents,” it instead

emphasized that this teaching takes place “under the

supervision of state employees” and that such

supervision is administered through “charter schools.”

App. 18a. That characterization, though superficially

accurate, blinks reality. Here as in other contexts,

“labels do not control [this Court’s] analysis.” Evans v.

Michigan, 568 U.S. 313, 322 (2013). Rather, “in

15

passing upon constitutional questions the court has

regard to substance and not to mere matters of form,

and . . . the state must be tested by its operation and

effect.” Near v. Minnesota ex rel. Olson, 283 U.S. 697,

708 (1931).

Here, the substance makes clear that California

homeschooling programs are not “public schools” in

any meaningful sense of the term. While California

nominally provides for “supervision” of its

homeschooling, that supervision is far removed from

the actual education of pupils. It fails to ensure

consistency in what is taught or learned in different

homes. It provides no opportunity for the State to

directly observe or intervene in actual lessons. And it

does not enable homeschooling to provide the

“constitutionally recognized purpose[]” of a California

public education to “serve[] as a unifying social force

among our varied population.” Hartzell v. Connell, 679

P.2d 35, 41 (Cal. 1984) (internal quotation marks

omitted); see also id. (“The public schools bring

together members of different racial and cultural

groups and, hopefully, help them to live together in

harmony and mutual respect.” (internal quotation

marks omitted)); Ambach v. Norwick, 441 U.S. 68, 77

(1979) (“Other authorities have perceived public

schools as an ‘assimilative force’ by which diverse and

conflicting elements in our society are brought

together on a broad but common ground.”).

Homeschooling is also optional in California, in

stark contrast to public schooling. The California

compulsory education statute provides that “[e]ach

person subject to compulsory full-time education . . .

shall attend the public full-time day school.” Cal.

16

Educ. Code § 48200. Independent study, on the other

hand, is “an optional educational alternative in which

no pupil may be required to participate.” Id.

§ 51747(g)(8). The State neither exerts the same

control over nor requires the same participation in

homeschooling as compared to public schools. In that

sense, California homeschooling cannot even be said

to be the “rough equivalent of [a California] public

school education.” Carson, 596 U.S. at 782.

Ultimately, “[p]arents decide whether to send

their children to public schools,” “send their children

to private schools[,] or homeschool them.” Morse v.

Frederick, 551 U.S. 393, 419 (2007) (Thomas, J.,

concurring). The Ninth Circuit’s erroneous labeling of

homeschooling as a “public school program” allows

California to outsource the burdens of providing an

education onto parents while limiting those same

parents’ First Amendment rights. But when a State

offers (and parents choose) homeschooling, that State

cannot condition its support on a particular religious

status or conduct. “The ‘unremarkable’ principles

applied in Trinity Lutheran and Espinoza” and Carson

thus call for correction of the Ninth Circuit’s errors

below—and “suffice to resolve this case.” Carson, 596

U.S. at 780.

Conclusion

This Court should grant the petition for certiorari.

17

Respectfully submitted,

DEREK BROWN

Utah Attorney General

STANFORD E. PURSER

Utah Solicitor General

Counsel of Record

MARK C. GILLESPIE

Assistant Solicitor General

OFFICE OF THE

UTAH ATTORNEY GENERAL

160 E. 300 S., 5th floor

Salt Lake City, UT 84111

(801) 538-9600

spurser@agutah.gov

Counsel for Amicus Curiae State of Utah

[Additional amici curiae listed on following page]

18

Additional Amici Curiae States

STEVE MARSHALL

Attorney General

State of Alabama

CORI MILLS

Acting Attorney

General

State of Alaska

TIM GRIFFIN

Attorney General

State of Arkansas

JAMES UTHMEIER

Attorney General

State of Florida

CHRISTOPHER M. CARR

Attorney General

State of Georgia

BRENNA BIRD

Attorney General

State of Iowa

KRIS KOBACH

Attorney General

State of Kansas

LIZ MURRILL

Attorney General

State of Louisiana

CATHERINE HANAWAY

Attorney General

State of Missouri

AUSTIN KNUDSEN

Attorney General

State of Montana

MICHAEL T. HILGERS

Attorney General

State of Nebraska

DREW WRIGLEY

Attorney General

State of North Dakota

ALAN WILSON

Attorney General

State of South Carolina

MARTY J. JACKLEY

Attorney General

State of South Dakota

19

JONATHAN SKRMETTI

Attorney General

State of Tennessee

JOHN B. MCCUSKEY

Attorney General

State of West Virginia

KEN PAXTON

Attorney General

State of Texas