Bumatay, VanDyke Accuse California of Anti-Religious Bias

Tuesday, March 24, 2026

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Bumatay, VanDyke Accuse California of Anti-Religious Bias

Jurists Pen Dissents to Denial of En Banc Rehearing of Case Involving Whether Parents Are Entitled to Use State Homeschool Charter Funds to Buy Religious Curricula

By Kimber Cooley, associate editor

The Ninth U.S. Circuit Court of Appeals yesterday denied en banc review of a case in which a three-judge panel upheld the dismissal of a First Amendment challenge to the withholding of otherwise available charter school funding in California to parents who wish to use religious curricula to educate their children at home, leading two judges to pen sharp dissents accusing the court and the state of engaging in religious discrimination.

Yesterday’s denial follows last year’s decision, authored by Senior Circuit Judge Andrew D. Hurwitz and joined in by Circuit Judges Eric D. Miller and Jennifer Sung, which focused on whether the charter school option is “sufficiently public” to qualify under jurisprudence establishing that states may require strictly secular education in their school districts.

Accompanying the order is an amended opinion which replaces the “sufficiently public” terminology with language declaring that the charter program is a “public school” option based on the fact that the offering is required to be free and open to all students, aligned to relevant standards, and overseen by state-certified teachers even though parents are generally free to choose the curriculum.

Circuit Judge Patrick J. Bumatay dissented, joined in by Circuit Judges Ryan D. Nelson, Daniel P. Collins, Eric Tung, and Lawrence VanDyke, arguing that “the Ninth Circuit has [once again] greenlit state discrimination against religion” by “tell[ing] the religious that they must forgo either their faith or the benefits available to everyone else.”

VanDyke also authored a dissenting opinion, joined in by Bumatay and Tung, accusing the panel of misreading California’s so-called “Blaine Amendment,” adopted in 1879 and codified at §8 of Article IX of the state Constitution, which prohibits public schools from adopting “sectarian” curriculum. He wrote:

“The…panel simply took for granted that ‘sectarian’ means ‘religious.’ But linguistics and history show something else. The push for ‘nonsectarian’ education did not represent a nineteenth-century attempt to secularize the first public schools—it instead represented a compromise among the Protestant Christian majority to educate public-school children in Christian teaching without wading into areas of denominational disagreement.”

Complaint Filed

The question arose after John and Breanna Woolard, Hector and Diana Gonzales, and Carrie Dodson filed a complaint against California State Superintendent of Public Instruction Tony Thurmond and other officials in October 2023.

They alleged that they enrolled their children in one of two California charter schools, Blue Ridge Academy and Visions in Education, each of which allows for independent study for students through 12th grade and offers reimbursement for curricula. However, they alleged that “[t]hese schools discriminate against parents who seek to educate their children in accordance with their faith, even if that…education…satisfies state educational standards.”

In June 2024, Senior District Court Judge John A. Mendez of the Eastern District of California granted a defense motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), finding that “Visions and Blue Ridge’s publicly funded independent study programs do not, and cannot under California law, provide a private choice of curriculum.”

Disagreeing with the characterization, Bumatay said:

“While flexibility and parental choice are the key attributes of the program, under California’s version of the Blaine Amendment—a provision ‘born of bigotry[]’…—California denies this choice if parents select curricula based on their religious beliefs….If parents seek funding for books or course materials deemed ‘non-secular,’ then they will be denied or even expelled from the program. So,…parents maintain wide latitude to decide what’s best for their children’s education—unless they choose a faith-based education. If this sounds like a free exercise violation, it is.”

Saying that “t[]he Ninth Circuit condones this unequal treatment of religious families despite a wall of Supreme Court authority interpreting the Free Exercise Clause as prohibiting this type of discrimination,” the jurist accused the three-judge panel of “invent[ing] a new test—the ‘sufficiently public’ test—that it claims circumvents First Amendment scrutiny.”

No Grounding

Decrying the test as having “no grounding in precedent or history,” Bumatay remarked:

“Perhaps sensing the weakness of that analysis, the panel now amends its opinion and simply labels the homeschool programs ‘public school programs,’ and, on that basis, excuses the State’s religious discrimination….But the mere fact that these independent study programs are operated under the auspices of charter schools…does not transform those parent-focused programs—in which parents teach their own children in their own home with the curricula they choose—into the equivalent of ‘public school programs.’ The panel’s contrary view is incorrect….”

Opining that the case “is not about the Establishment Clause,” as “[n]ot even the Ninth Circuit panel contends that state funding for religious homeschool programs would violate” that provision given that the curriculum was chosen not by the state, he said that “this case isn’t about education standards” either as “[n]o one questions that the…academic materials meet” state requirements.

Acknowledging that a state need not subsidize private education, he asserted that “[b]ut once a State decides to offer parents financial assistance for education that the parents conduct, exercising substantial choice as to the instructional materials, the Free Exercise Clause’s anti-discrimination principle applies with full force.”

Families Stymied

Applying that standard, he wrote:

“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…..California’s program ‘effectively penalizes the free exercise of [these families’] constitutional liberties.’ ”

The jurist added:

“Rather than hewing to [the] distinction between ‘public schools,’ where ‘strictly secular education’ is permissible, and ‘subsidi[es for] private education,’ where the State cannot discriminate against the religious,…the panel invented a new, mushy ‘in between’ category. Under that malleable test, any benefit supporting a ‘sufficiently public’ activity would be exempt from free exercise protection.”

He continued:

“The disturbing impact of the panel’s decision cannot be overstated. Going forward in the Ninth Circuit, whenever the government successfully labels an activity as ‘public,’ it receives carte blanche to discriminate against the religious. Think about it. If educating one’s children in the privacy of one’s own home according to one’s private choices constitutes ‘public school’ activity, then pretty much anything can qualify as a governmental program exempt from First Amendment scrutiny….We should have taken this case en banc rather than endorse such a far-reaching test.”

VanDyke’s View

VanDyke commented:

“[G]iven the ‘great flexibility’ California offers to parents in fashioning state-funded independent-study curricula for their children, even a heavily Confucianist, Stoic, Marxist, or Woke curriculum would presumably pass muster under state law—but one with a whiff of religious content would not.”

Crediting the defendants with claiming that their “hands were tied” by California’s Blaine Amendment, he said that “Judge Bumatay aptly explains why California cannot validly weaponize its Blaine Amendment to discriminate against religion.” Adding that “[b]ut there’s another reason” why that provision “runs afoul of the First Amendment, he argued:

“California’s Blaine Amendment was clearly designed (and applied) to disadvantage some (‘sectarian’) religious content against other (‘nonsectarian’) religious and secular content. California cannot justify its open discrimination against religion in this case by pointing to a state provision that discriminates between religious viewpoints.”

He continued:

“When a state law discriminates between religion doctrines, it must satisfy strict scrutiny to survive judicial review….Application of California’s discriminatory Blaine Amendment should be subject to that demanding standard, a standard that nobody argues California can satisfy.”

Remarking that “[i]t’s about time that we leave facially discriminatory Blaine Amendments like California’s on the ash heap of constitutional history,” he declared:

“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. On their face, they discriminate between religious doctrines in a manner that the Religion Clauses of the First Amendment clearly do not permit. We should have reheard this case en banc to correct the panel’s erroneous decision to uphold the blatantly discriminatory application of this unconstitutional state law, and I respectfully dissent from our court’s failure to do so.”

Bumatay, VanDyke, Tung, Nelson, and Collins are each an appointee of President Donald Trump, as is Miller. Hurwitz and Sung were appointed to the court by Democrats.

The case is Woolard v. Thurmond, 24-4291.