Divided appeals court ruling has “greenlit state discrimination” in California, dissenting judge warns
Liz Lykins | March 31, 2026
(World)
When Hector and Diana Gonzales enrolled their grandchildren in an independent study program at the Blue Ridge Academy charter school in California, they were told they could access state funds to purchase curriculum and materials that the children could study at home. But Blue Ridge said they couldn’t purchase math and science books from publisher Bob Jones University Press, since the organization is Christian. It also denied funding when the family attempted to teach sentence structure using the phrase “God sends the rain to help plants grow.”
The Gonzaleses and two other California families say that charter schools in the state repeatedly denied their curriculum choices, not because of pedagogical concerns, but because the materials contained religious content. They sued the state in 2023, arguing that the charter schools committed religious discrimination and violated their rights under the First Amendment.
After the case’s winding battle through courts, a divided 9th U.S. Circuit Court of Appeals upheld an earlier panel ruling in favor of California last week, finding that charter school programs are equivalent to public school programs. But five judges dissented from the court’s decision not to rehear the case, warning that the decision relies on an outdated state constitutional amendment and opens the door for California to discriminate against religious groups.
Breanna and John Woolard, who also enrolled their children in Blue Ridge, said in the lawsuit that the school didn’t allow them to use funds to buy works from Jonathan Edwards and William Penn when studying Colonial America.
Carrie Dodson, a widowed mother, wanted her son to learn from the Good and the Beautiful curriculum, which describes itself as “multi-denominational” and is written by a member of the Latter-day Saints. Dodson argued with staff at the California charter school Visions in Education over the validity of the curriculum for a semester while her fifth grader completed work from it. In 2023, Visions told Dodson the school wouldn’t accept her son’s schoolwork from the religious curriculum and expelled him for his “incomplete” work.
In California, homeschooling families can access independent study programs from some charter schools. The programs enable families to receive state funds for purchasing curriculum, materials, extracurricular activities, and individual classes. The charter schools provide support while the parents select the curriculum and teach their children.
However, under the Blaine Amendment in California’s Constitution, charter schools have rejected these three families’ use of any materials that have a religious affiliation, align with a religious worldview, or even reference religion. The Blaine Amendment prohibits the public purchase of “sectarian” materials. Thirty-seven state constitutions have adopted some form of the Blaine Amendment, so named after a Maine congressman who proposed a failed U.S. constitutional amendment in 1875 to prevent state governments from funding Catholic or other religious schools.
In last week’s majority opinion, Judge Andrew Hurwitz said that the requirements for the independent programs essentially make them public school programs. While the parents provide instruction at home, the programs accept any students and are then “approved by the [charter] school and coordinated, evaluated, and supervised by state-certified teachers.” Because of this, the families have no free speech claims, since their curriculum choices fall under the realm of governmental speech, according to the court.
But Judge Patrick Bumatay, joined by four others, disagreed, saying that the majority relied on the “flimsiest grounds” in defining the independent study programs as 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?” Bumatay asked. “Of course not. And the answer doesn’t change just because the government pays for their books and charter-school employees provide modest oversight.”
He added that if educating children in the privacy of one’s home constitutes a public school, then “pretty much anything can qualify as a governmental program exempt from First Amendment scrutiny.” Bumatay said the programs are instead a neutral benefit program for all. He added that the state can’t discriminate against religious people when providing public benefits.
“Once again, the 9th Circuit has greenlit state discrimination against religion,” he wrote. “The disturbing impact of the panel’s decision cannot be overstated.”
In a separate dissent, Judge Lawrence VanDyke argued that California is using the Blaine Amendment’s mention of “sectarian” to discriminate against religion. VanDyke said that historically, the word sectarian referred to public schools not teaching one Christian denomination over another.
“It’s about time that we leave facially discriminatory Blaine Amendments like California’s on the ash heap of constitutional history,” VanDyke said. “As applied today, states like California are trying to repurpose them to excise religion from the public square in ways that the generation that adopted them wouldn’t have fathomed.”
The 9th Circuit’s majority ruling allows California to have a free pass to say what is and isn’t allowed for homeschooled children in these programs, said Jeremy Dys, an attorney for First Liberty Institute, which represents the families.
“They won’t fund the most basic of things, because it touches upon religion, as if it is some sort of disease that they cannot fund,” Dys said. “Two plus two is fine if it’s produced by a secular publisher, but if two plus two is produced by Bob Jones University Press … all of a sudden, that becomes unfundable?”
Dys said the parents will likely appeal the ruling to the Supreme Court. The high court has repeatedly made it clear that public benefits provided to all can’t be excluded from some on the basis of religion. In its 2022 decision in Carson v. Makin, the court ruled that states can’t block families from tuition assistance payments if they send their children to a religious school in a county where no public school is available.
Katie Cosgrove, an attorney at Liberty Justice Center, which previously filed a brief supporting the families, hopes the Supreme Court will take the case. California has already faced pressure from the high court for its treatment of religious parents, Cosgrove noted. In early March, in its decision in Mirabelli v. Bonta, the court held that state policies hiding kids’ so-called gender transitions from parents were unconstitutional.
“They are coming at religious parents in whatever way that they can to try to exclude them from the upbringing of their children,” Cosgrove said. “[They are seeking] free rein, to get to control how these children are being educated, whether they’re in public school, or now even whether they are essentially homeschooled.”
To learn more about the amicus brief in Mirabelli v. Bonta, click here.
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