In an amended opinion issued today in Woolard v. Thurmond, a Ninth Circuit panel ruled that California’s public charter schools may decline to fund and allow “sectarian curricular materials” in “independent study” programs. In a dissent from the Ninth Circuit’s denial of rehearing en banc in the case, Judge Patrick Bumatay, joined by four colleagues, charged that the court “has greenlit state discrimination against religion.”
The competing positions of the panel and of Judge Bumatay turn on different characterizations of the independent-study programs. The panel states that in the programs “parents provide home-based direct instruction approved by the [charter] school and coordinated, evaluated, and supervised by state-certified teachers.” It rejects that this “home-based direct instruction” by parents amounts to homeschooling. It instead concludes that the independent-study programs are “public school programs.” What matters, it says, are that parents “can teach only under the supervision of state employees” and that the programs are subject to “extensive legal requirements.”
In Judge Bumatay’s eyes, these independent-study programs are a means by which California “offers parents funds and guidance to help them homeschool their children based on an education of their choosing.” He rejects the notion that these are “public school programs”:
Does anyone really think that parents teaching their own children in their own home, based on a curriculum of their own choosing, somehow transforms them into “public school” teachers? Of course not…. A world of difference exists between the public-school classroom—where government employees teach government-mandated curricula in a government-built classroom open to all—and benefits for parents teaching their own children in their home with curricula they choose. Adhering to modest state requirements simply doesn’t transform parents teaching their children around the kitchen table with textbooks they choose into agents of the State providing “public school” education.
California is free to choose not to subsidize private education. But what it can’t do, Bumatay explains, is “discriminate against the religious when providing public benefits.” And that “is exactly what happens with California’s homeschool program”:
If parents choose a secular homeschool education for their children, these families receive full support and funding. But if parents choose to ground their children’s homeschool education in faith, those families are stymied or even expelled from the program.
In a separate dissent, Judge VanDyke (joined by Bumatay and another colleague) argues that California is wrong to rely on its so-called Blaine Amendment as its authority to discriminate against religion. That provision of the state constitution, he argues, doesn’t in fact generally prohibit funding of the teaching of religious doctrine. Rather, it “presents a clear-cut case of attempted facial discrimination between competing religious beliefs”—between generic Christianity and “sectarian” practices of folks like Catholics and Mormons. The Blaine Amendment provision thus violates the Religion Clauses of the First Amendment, and California can’t rely on it to justify its discrimination against religious homeschoolers.