Amicus Brief: Woolard v. Thurmond

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.

The families challenged their exclusion as religious discrimination in violation of the Free Exercise Clause. They lost in the district court and the Ninth Circuit. The Manhattan Institute and the Notre Dame Education Law Project supported the families in the Ninth Circuit with an amicus brief, and again when they petitioned for en banc (full court) review, which was denied. Five judges dissented from the denial of en banc review, writing that "once again, the Ninth Circuit has greenlit state discrimination against religion."

Now on petition for Supreme Court review, the Manhattan Institute has again joined the Notre Dame Education Law Project on a brief in support. We argue that the case should have been decided by the simple application of recent Supreme Court precedents that clearly held that states can't discriminate against the religious when providing public benefits. That includes education programs that allow parents to choose and construct curricula. The Supreme Court should take the case to again tell the Ninth Circuit that religious discrimination is not allowed.

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

Trevor Burrus is a legal policy fellow at the Manhattan Institute.

Nicole Stelle Garnett is a senior fellow at the Manhattan Institute and the John P. Murphy Foundation Professor of Law at the University of Notre Dame.