Amicus Brief: Woolard v. Thurman

Three Christian families in California are homeschooling their children primarily because of their religious convictions. These families tried to participate in homeschool-aid programs operated by charter schools that tout their commitment to parental choice and individualized learning. But while these programs grant parents funds to purchase and use a wide variety of curricula from secular organizations, they deny funds to religious families that wish to homeschool their children with comparable faith-based materials. And they refuse to credit the work samples of these children if they include references to God. One family was even expelled from the charter school program because it chose a religious curriculum.

This is doubly problematic under the First Amendment: religious discrimination in violation of the Free Exercise Clause, and viewpoint discrimination in violation of the Free Speech Clause. The families sued in federal court, but their case was dismissed for failure to state a claim, with the court holding that the families “do not have the right under California law to independently choose instructional materials” and that “a public school’s curriculum is a form of government speech, not speech of a teacher, parent, or student.” The families have appealed to the Ninth Circuit, arguing: (1) excluding religion from publicly funded programs of private choice violates the Free Exercise Clause under the recent Supreme Court jurisprudence in Carson v. Makin, Espinoza v. Montana Department of Revenue, and Trinity Lutheran Church v. Comer; and (2) excluding religious viewpoints from the programs violates the Free Speech Clause under Rosenberger v. University of Virginia.

MI has now joined with the Notre Dame Education Law Project on an amicus brief supporting the appeal and arguing that the government may not avoid First Amendment review merely by labeling charter schools “public” and showing how California engages in pervasive discrimination against religious schools, educational providers, and social-services providers.

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

Tim Rosenberger is a legal fellow at the Manhattan Institute.

Nicole Stelle Garnett is a senior fellow at the Manhattan Institute and a professor at the University of Notre Dame Law School.

(with thanks to law school associate Noam Josse)

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