ND Education Law Project files amicus brief in support of families excluded from California program because of their faith
The Notre Dame Education Law Project recently filed an amicus brief in the U.S. Court of Appeals for the Ninth Circuit in support of families who have been excluded from a California program that allows homeschoolers to work with independent study charter schools to customize their children’s curriculum but prohibits them from including religious content in it. Student fellows—third-year student Will Vickery, along with second-year students Cameron Grinnell and Nate Wertjes—assisted Professor Nicole Stelle Garnett, director of the Education Law Project, in drafting the brief. The brief was filed in collaboration with Ilya Shapiro and Tim Rosenberger from the Manhattan Institute.
The plaintiffs in Woolard v. Thurman are three Christian families in California who homeschool their children primarily for religious reasons. They attempted to join homeschool-aid programs run by charter schools that promote parental choice and personalized learning. However, these programs, citing California law, refuse to provide funding for faith-based materials, even though they allow parents to purchase secular curricula. One family was even expelled from the program for using a religious curriculum.
The families argue these policies violate both the Free Exercise Clause and the Free Speech Clause of the First Amendment. The lower court rejected these claims, reasoning that the parents don’t have a right to choose religious curricular materials because the program at issue is a “public” program. The parents have asked the Ninth Circuit to reverse this ruling and vindicate the families' rights to enjoy the educational benefits provided by California’s independent study charter schools without sacrificing their religious convictions.
"California cannot offer families the opportunity to work with privately operated independent study charter schools to customize their homeschooled children's curriculum, and then tell religious families that these customized programs must not include religious content,” Professor Garnett argued. “That is religious discrimination, and the Supreme Court has made abundantly clear that religious discrimination is unconstitutional."
Grinnell further expressed concern for other institutions facing similar challenges. “California's law puts homeschooling families to an unconstitutional test: secularize and receive assistance, or maintain their religious convictions and forgo generally available benefits. The coercive effect of this anti-religious discrimination strikes at the very heart of the fundamental right to live and worship according to one’s religious convictions. Unfortunately, as our brief shows, this choice is not only faced by parents but also religious schools, hospitals, day-care facilities, and youth centers,” said Grinnell.
The families have appealed to the Ninth Circuit, arguing that excluding religion from publicly funded private choice programs violates the Free Exercise Clause, referencing Supreme Court cases such as Carson v. Makin, Espinoza v. Montana Department of Revenue, and Trinity Lutheran Church v. Comer, and that the exclusion of religious perspectives infringes on Free Speech rights as per Rosenberger v. University of Virginia.
"The Supreme Court made clear in Carson v. Makin that states cannot require religious believers to secularize in order to receive generally available public benefits. That's exactly what California is doing here—and as our brief shows, they're doing it in dozens of other places as well. The Notre Dame Education Law Project is doing crucial work, and I hope our brief helps shed light on California's unconstitutional religious discrimination,” said Vickery.
The Manhattan Institute, a public policy think tank, joins the Notre Dame Education Law Project in supporting the appeal and contending that the government cannot bypass First Amendment scrutiny simply by designating charter schools as “public,” while also highlighting California's widespread discrimination against religious schools, educational providers, and social-services organizations.
The Notre Dame Education Law Project is one of the Law School’s initiatives designed to create impact while offering students opportunities to work on cases in direct collaboration with faculty.
“I am grateful to Professor Garnett and Notre Dame's Education Law Project for giving myself and other Notre Dame law students an opportunity to help protect parental rights in our country. There is much more work to do, but I am confident that our small role in Woolard v. Thurmond indicates that the Education Law Project is up to the task,” shared Wertjes.