[00:00:05] Speaker 05:
Thank you, and may it please the court.

[00:00:06] Speaker 05:
I'm Alexander Kazam for appellants the Woolard, Gonzales, and Dodson families.

[00:00:11] Speaker 05:
I'd like to reserve four minutes of my time for rebuttal.

[00:00:14] Speaker 06:
Just keep an eye on the clock.

[00:00:18] Speaker 05:
Sure.

[00:00:18] Speaker 05:
Got it.

[00:00:19] Speaker 05:
Thanks.

[00:00:21] Speaker 05:
This case is about unconstitutional discrimination against religion in publicly funded homeschool programs.

[00:00:27] Speaker 05:
In dismissing the family's complaint, the district court committed three key errors.

[00:00:32] Speaker 05:
First, the court failed to accept the family's well-pleaded allegations that these programs are programs of private choice, enabling parents to use funds to procure instructional materials of their preference.

[00:00:43] Speaker 05:
Second, the court assumed that there can be no private choice unless the choice is completely, quote, unilateral.

[00:00:49] Speaker 05:
And third, the court emphasized that charter schools are deemed public schools under California law, when what matters for federal constitutional purposes is the substance of the programs that they administer.

[00:01:00] Speaker 02:
So let me ask you a hypothetical.

[00:01:03] Speaker 02:
So I'm going to say that in advance so you don't feel constrained to tell me those are not the facts of this case.

[00:01:09] Speaker 02:
Let's assume that these charter schools solicit input from your clients about what they should be teaching in the classroom at the charter school.

[00:01:22] Speaker 02:
And your clients would like precisely the program they would like to teach at home in this case to be taught in the classroom.

[00:01:31] Speaker 02:
Do you agree that the charter school, consistent with the free exercise clause, could say, no, we choose not to do that?

[00:01:38] Speaker 02:
I think if it, Your Honor, I think if it was just a matter of input or just, you know... No, could they say, we choose not to do it because we do not want to provide a sectarian education?

[00:01:50] Speaker 05:
I think, in your hypothetical, it's just parental input, and we're not saying that... They demand.

[00:01:56] Speaker 02:
I demand.

[00:01:57] Speaker 02:
I want this course taught.

[00:01:59] Speaker 02:
I would have taught it at home had you let me teach it at home, but you've chosen not to have homeschooling for some home instruction, so I want you to teach it in the classroom.

[00:02:10] Speaker 05:
If the general practice is to follow the parents' preferences, to defer to those preferences, then I don't think it would be proper to... So you agree that a state is not required to provide a sectarian education in its public schools?

[00:02:23] Speaker 05:
We're not contesting that in a public school.

[00:02:26] Speaker 02:
Okay, so now my question is... You don't need to fight that part of the hypothetical.

[00:02:31] Speaker 02:
Here's the part you need to fight.

[00:02:34] Speaker 02:
They choose instead to provide some portion of their instruction

[00:02:40] Speaker 02:
not in the classroom, but at home under the supervision of a teacher and with the requirement that they approve the curriculum.

[00:02:52] Speaker 02:
So the form of the instruction, which would have been in the public school had they chosen to do it there, is instead being provided at home.

[00:03:02] Speaker 02:
Why does that change the analysis?

[00:03:05] Speaker 05:
I think your hypothetical assumes that it's the school employee that is doing the teaching and our contention and as alleged in the complaint, it's really the parents who are the primary educators.

[00:03:14] Speaker 02:
I know you say that, but the difficulty is the structure of the system is the school is rather clearly saying, we will allow you if we approve it to have instruction at home.

[00:03:26] Speaker 02:
We haven't given you carte blanche to do instruction at home.

[00:03:30] Speaker 02:
We have two requirements for that instruction at home.

[00:03:33] Speaker 02:
One is that we approve it.

[00:03:34] Speaker 02:
And second, that it be under the supervision of a teacher.

[00:03:38] Speaker 02:
And our third requirement, the one that you're contesting, is that it be the same kind of thing that we would be required, that we would be allowed to do with the instruction at the school.

[00:03:50] Speaker 02:
So my question is, this is not a homeschooling program.

[00:03:54] Speaker 02:
They're part of a charter school.

[00:03:55] Speaker 02:
There's a whole separate homeschooling program in California that your clients have chosen not to participate in.

[00:04:01] Speaker 02:
There's a whole separate system of private schooling in California.

[00:04:05] Speaker 02:
So it seems to me your ultimate argument in this case is that having chosen to provide some instruction through this mechanism, the state is required to fund sectarian education.

[00:04:17] Speaker 02:
And if that is your argument, I want to make sure I understand it.

[00:04:23] Speaker 05:
Your Honor, I disagree that these are not homeschool programs.

[00:04:26] Speaker 05:
In fact, Visions itself refers to this as a homeschool academy.

[00:04:30] Speaker 02:
I think that's what... What do the regulations refer to it as?

[00:04:34] Speaker 05:
Well, independent study.

[00:04:36] Speaker 02:
Independent study.

[00:04:38] Speaker 02:
Yeah.

[00:04:38] Speaker 02:
So, I mean, arose by any other name, but this is... You're not enrolled in a homeschool program.

[00:04:43] Speaker 02:
You're enrolled in a charter school.

[00:04:44] Speaker 02:
There is a whole separate homeschool program that your clients could have chosen to be in.

[00:04:50] Speaker 02:
The state has separate regulations for it.

[00:04:53] Speaker 02:
So this is an independent study program run by a charter school that happens to occur at home under the supervision of the school and subject to the school's approval.

[00:05:04] Speaker 02:
And so I'm trying to figure out why the requirement for funding sectarian education is any different than if the program were offered physically at the school.

[00:05:16] Speaker 05:
Well, Your Honor, I think it comes back to the fact that this is a program of private choice, certainly as alleged in the complaint.

[00:05:22] Speaker 05:
You know, we're at the motion to dismiss stage here.

[00:05:25] Speaker 05:
Our allegations have to be accepted as true and taken in the light most favorable to the families.

[00:05:29] Speaker 05:
And I don't think you can fairly read the district court.

[00:05:31] Speaker 02:
But that's a legal conclusion that it's a program of private choice.

[00:05:35] Speaker 02:
We know what the structure is.

[00:05:38] Speaker 02:
We know what the regulatory structure is and what the statutory structure is.

[00:05:42] Speaker 02:
And this is, under California law, a public school.

[00:05:50] Speaker 02:
It must admit people without regard to religion.

[00:05:53] Speaker 02:
It must not discriminate with respect.

[00:05:55] Speaker 02:
It is owned by private people.

[00:05:57] Speaker 02:
So I'm still having difficulty figuring out why the analysis, because after all, at the end of the day, what you're saying is that the state must fund sectarian education under these circumstances.

[00:06:09] Speaker 02:
And I have not found a single case

[00:06:13] Speaker 02:
anywhere under the free exercise clause that requires the state to fund sectarian education.

[00:06:19] Speaker 02:
Is there one?

[00:06:20] Speaker 05:
Your Honor, that would be exactly what happened in Carson and in Espinoza.

[00:06:25] Speaker 02:
No, in those cases, the state was required to pay tuition for somebody to attend a sectarian school.

[00:06:34] Speaker 02:
You're making a broader claim.

[00:06:36] Speaker 02:
You're making a claim that the state is required to fund a sectarian education.

[00:06:41] Speaker 02:
And I'm not sure either of those cases stand for the proposition that state money must be used to fund sectarian education at a school owned by a religious institution.

[00:06:51] Speaker 02:
Is there any such case that you're aware of?

[00:06:54] Speaker 05:
Well, Your Honor, as I read Carson and Espinosa, that's exactly what was going on there.

[00:06:59] Speaker 05:
Those were sectarian schools.

[00:07:00] Speaker 02:
They were sectarian schools, but all that was required was that the tuition voucher could be used or the money could be used to pay for tuition at those schools.

[00:07:10] Speaker 02:
Is there any requirement in those cases that the state money be used to fund sectarian education?

[00:07:17] Speaker 05:
There's no requirement that it be limited to sectarian education, but once you're opening it up to parents to direct their educational choices,

[00:07:23] Speaker 05:
It doesn't matter whether the educational choice takes the form of, we're going to send our student to a private brick and mortar Catholic school, or we're going to go online and find a home school curriculum from a private Catholic curriculum provider.

[00:07:37] Speaker 05:
And so I think it's a little bit of an optical illusion here, where just because it's not

[00:07:41] Speaker 05:
brick-and-mortar schools, you don't think of them as private schools, but essentially these curriculum providers are like private schools, and when these parents are able to select a different curriculum, they're allowed to select secular private curriculum, but they're not allowed to select religious private curriculum.

[00:07:58] Speaker 06:
Can you discuss a little bit what the record shows about the scope of curricular choice that is available to parents?

[00:08:05] Speaker 06:
Aside from the non-religious part, but what

[00:08:08] Speaker 06:
What sort of freedom do parents have in selecting a curriculum in these programs?

[00:08:14] Speaker 05:
Your Honor, we allege in the complaint that there's a wide range of curriculum choices because of the stage of the proceedings.

[00:08:19] Speaker 05:
That's exactly the kind of factual question that we'd like to develop further.

[00:08:24] Speaker 05:
But that's kind of the whole point of these homeschool programs.

[00:08:27] Speaker 05:
The idea is individualized learning.

[00:08:29] Speaker 05:
When they talk about why parents come to these programs,

[00:08:33] Speaker 05:
It's because it allows for that customized, you know, extremely flexible learning as Blue Ridge says.

[00:08:39] Speaker 06:
But there are some constraints, right?

[00:08:41] Speaker 06:
I mean like there are, as I understand it, like

[00:08:44] Speaker 06:
You couldn't, for example, decide, like, you know, I want to focus just on the humanities and not teach any math or science, right?

[00:08:51] Speaker 05:
That's true, Your Honor, but that's also true in private schools in California, where everyone would concede that they're private schools, but they still need to teach the several branches of study that are taught in the public schools.

[00:09:01] Speaker 05:
There are even some requirements, like, for example, in science, private schools have to teach about climate change.

[00:09:06] Speaker 05:
There are certain eras of history that private schools have to teach.

[00:09:09] Speaker 05:
So I don't think that that would distinguish this.

[00:09:15] Speaker 06:
It may or may not distinguish it.

[00:09:17] Speaker 06:
I'm just trying to get down what the facts are.

[00:09:20] Speaker 06:
And there is oversight from the employees of the charter schools who periodically review the work and make sure that the curriculum is being adhered to.

[00:09:37] Speaker 05:
Sure, that's right.

[00:09:38] Speaker 05:
And to follow up just a little bit on your last question about the content, that would be, if it was just humanities, that wouldn't meet the state content standards, which include mathematics and English, other subjects like that.

[00:09:52] Speaker 02:
But a parent could run an independent study program if it's not the entire curriculum focused on humanities, right?

[00:10:01] Speaker 05:
Could a parent?

[00:10:02] Speaker 02:
Sure.

[00:10:03] Speaker 02:
The independent study programs don't have to be the entire curriculum, do they?

[00:10:08] Speaker 05:
Well, at least in these programs, I think possibly there are other independent study programs where it's just maybe a parent is teaching at home, something that's taught in the brick and mortar school down the street.

[00:10:18] Speaker 02:
Or one subject, but the student is attending.

[00:10:22] Speaker 02:
These are charter schools.

[00:10:23] Speaker 02:
So let's assume somebody is attending a charter school.

[00:10:26] Speaker 02:
As I understand the regulatory and statutory structure, it doesn't require that the independent study program completely replace classroom instruction.

[00:10:36] Speaker 02:
It can be part of the program, can it not?

[00:10:41] Speaker 05:
That may be true for other independent study programs.

[00:10:43] Speaker 05:
I'm familiar with these particular programs and how they work.

[00:10:47] Speaker 05:
And the way these programs work is that you do have to have a curriculum that meets the state content.

[00:10:52] Speaker 02:
No, that wasn't my question.

[00:10:54] Speaker 02:
Do these programs require that they completely replace the in-classroom instruction at the charter school or merely supplement the instruction at the charter school?

[00:11:05] Speaker 05:
Well, in the Blue Ridge program, I'm not sure there is any in-class instruction.

[00:11:09] Speaker 05:
There isn't any at all.

[00:11:10] Speaker 05:
And in the programs that are at issue here, like in the Visions program and the Blue Ridge program, I think Visions may offer other programs that have classroom instruction.

[00:11:19] Speaker 05:
I'm not sure.

[00:11:19] Speaker 05:
I think they have a variety of different options.

[00:11:21] Speaker 05:
the programs that our clients were excluded from based on their religious choices are these homes.

[00:11:27] Speaker 02:
But to get back to Judge Miller's question, the reason that your client's programs were not approved was because of the sectarian component.

[00:11:37] Speaker 05:
Yes.

[00:11:38] Speaker 02:
But not because they failed to meet other state requirements.

[00:11:42] Speaker 05:
Exactly, Your Honor, yes.

[00:11:43] Speaker 05:
Okay.

[00:11:44] Speaker 05:
Yeah.

[00:11:45] Speaker 05:
In fact, there's, you know, as we allege in the complaint, you know, Mr. Woolard was told, you know, the academics are fine.

[00:11:52] Speaker 05:
The problem is the religious aspects.

[00:11:55] Speaker 05:
And similarly, you know, Carrie Dodson was told, you know, this curriculum sounds amazing, but it's, you know, it's religious.

[00:12:02] Speaker 05:
And that's been the focus of the rejection.

[00:12:05] Speaker 02:
And you don't contest that if the California statute is constitutional, that would violate the California statute.

[00:12:14] Speaker 02:
Your claim is that the California statute is not constitutional as applied to this circumstance.

[00:12:19] Speaker 05:
That's right, Your Honor.

[00:12:20] Speaker 05:
Yeah, that's right.

[00:12:21] Speaker 06:
So in both Espinosa and Carson, the court emphasized the distinction between discrimination based on status and discrimination based on use.

[00:12:31] Speaker 06:
And the court said that the restrictions there were not use restrictions.

[00:12:38] Speaker 06:
They were just the status of the institution that was getting the funding.

[00:12:44] Speaker 06:
How does that work in the context of this case?

[00:12:47] Speaker 06:
Because it seems like the argument on the other side is that you are proposing to take public funds and use them for religious curricula.

[00:12:59] Speaker 06:
So how do Espinosa and Carson support that?

[00:13:05] Speaker 05:
Well, Your Honor, and to the extent there was any ambiguity in Trinity Lutheran and Espinosa about the status use distinction, the Supreme Court expressly resolved it in Carson and they said there is, you know,

[00:13:16] Speaker 05:
there is no distinction for purposes of the free exercise clause.

[00:13:19] Speaker 05:
If parents want to use, basically a person of faith is what a person of faith does, and if they want to use these funds to attend religious schools that teach religion, you can't discriminate based on the use of those funds.

[00:13:35] Speaker 05:
It's not just the fact that they have a religious affiliation.

[00:13:39] Speaker 00:
Counsel, is your claim a facial claim or as applied?

[00:13:45] Speaker 05:
So to the extent we're challenging the California state law, it's as applied to these particular programs.

[00:13:51] Speaker 05:
We've acknowledged that there may be programs that are structured in other ways that would not be subject to the same challenge, but because these are programs of private choice, we do challenge them as applied here.

[00:14:02] Speaker 00:
So your claim is as applied, and it's hinged on the fact that these particular programs

[00:14:10] Speaker 00:
allow for a wide range of parental choice in the materials.

[00:14:16] Speaker 00:
Because of that fact, as applied to these particular choices, but there could be other programs under other conditions, it would be perfectly legal.

[00:14:28] Speaker 00:
So for example, if the charter school said, you can choose from these 20 sets of materials,

[00:14:39] Speaker 00:
And none of them were religious.

[00:14:42] Speaker 00:
And you found a sectarian version of that and it was denied because it was outside of the 20.

[00:14:50] Speaker 00:
That would be constitutional?

[00:14:52] Speaker 05:
I think that would present a different question, because, Your Honor, from the way your hypothetical sounds, it sounds like they're kind of curating this limited selection, and it's this kind of closed universe.

[00:15:03] Speaker 05:
That's not what we have here.

[00:15:05] Speaker 05:
Despite, I know what my friends on the other side said in their briefs, we've alleged that, and we've shown, I think, in reference to the charter documents, that there's not this kind of limited small set of lists.

[00:15:16] Speaker 05:
And to the extent there are, you have to choose from approved vendors, you can get

[00:15:21] Speaker 05:
approval for other vendors, and our clients' choices have been rejected on the basis that those vendors are religious.

[00:15:29] Speaker 00:
To put a finer point in it, is it because the vendor is religious, but the materials are fine, or is it because the materials contain content that the

[00:15:43] Speaker 00:
don't meet the state law requirements.

[00:15:47] Speaker 05:
I believe both forms of rejection have happened.

[00:15:50] Speaker 05:
I think probably the more common allegation or complaint is that it's based on the materials.

[00:15:56] Speaker 02:
Is there any case in which it was rejected because the vendor was religious but the materials were non-sectarian?

[00:16:05] Speaker 02:
I'm unaware of any allegation in this case.

[00:16:07] Speaker 02:
In other words, let's assume that the Mormon Church does a great math program.

[00:16:12] Speaker 02:
and it never refers to anything about faith.

[00:16:15] Speaker 02:
There's nothing in this case that suggests that you wouldn't be able to buy materials from the Mormon church to teach algebra, is there?

[00:16:24] Speaker 02:
I don't think so, though the math... Your real contention is that the materials are being rejected because the materials are sectarian.

[00:16:32] Speaker 05:
Right.

[00:16:32] Speaker 02:
They're not being rejected because of the identity of the provider, but rather of the content of the materials.

[00:16:39] Speaker 05:
Right.

[00:16:39] Speaker 05:
I don't want to say for sure that that hasn't happened.

[00:16:42] Speaker 02:
That's the way I read your complaint.

[00:16:44] Speaker 02:
You're not saying, gee, a religious Catholic person prepared this algebra program and the state rejected it because it came from a religious Catholic person.

[00:16:53] Speaker 02:
You're saying the state rejected it because it taught the materials in a sectarian manner.

[00:16:59] Speaker 05:
Yeah, again, I don't know for sure that that hasn't happened.

[00:17:01] Speaker 00:
We're not asking you to address in the world, ever.

[00:17:05] Speaker 00:
We're saying in your complaint, the allegations are that the rejections were based on religious content of the materials.

[00:17:12] Speaker 02:
Yes, I think that's right.

[00:17:14] Speaker 02:
So I'm still interested in playing with hypotheticals in this case in just a little bit.

[00:17:26] Speaker 02:
So is it your position

[00:17:29] Speaker 02:
that let's take Maine, in which the state had this peculiar program that said, we'll fund private schools where there are no public schools, but we won't fund religious, we won't fund your tuition to go to a religious school.

[00:17:43] Speaker 02:
Could the state of Maine now say, okay, we understand what the Supreme Court has told us, we can't prevent you from going to a school because of its religious nature, but we're going to do what used to be done for higher education grants, which is that we'll give you the money,

[00:17:59] Speaker 02:
but we won't let the school use any of that money to provide religious education.

[00:18:04] Speaker 02:
Would that be constitutional?

[00:18:06] Speaker 05:
I don't think so, Your Honor.

[00:18:08] Speaker 05:
I think that one exception would be Lock v. Davy, which the Court has said that there's a unique tradition involving training clergy.

[00:18:15] Speaker 05:
Sure.

[00:18:17] Speaker 02:
Put that issue aside for a second.

[00:18:19] Speaker 02:
Because the higher education programs, at least the ones that were at extent for a long time, said we can't not give a physics grant to Notre Dame because it's a religious institution.

[00:18:30] Speaker 02:
But we can say you can't use it for theology.

[00:18:33] Speaker 02:
for theology instruction consistent with the free exercise course.

[00:18:38] Speaker 02:
Could the state of California do that here and say, okay, we'll fund your private program.

[00:18:45] Speaker 02:
We'll fund what you say are private programs, but we won't fund a religious component

[00:18:49] Speaker 05:
programs your honor I'd like to answer your question but I see that we'll make sure you don't worry he'll be he'll be nice so I think if your if your question is you know could the government say well we just want to fund engineering we think it's important to have you know more people in STEM field I don't think that would require them no no that's not my question so let me rephrase it so you understand it let's assume

[00:19:14] Speaker 02:
You have to fund somebody's attendance at a religious school under certain circumstances, as the main case says you have to.

[00:19:22] Speaker 02:
Can the state restrict the use of the funds that the school gets through the tuition grant or waiver or voucher to non-sectarian education?

[00:19:35] Speaker 02:
I think the answer to that question is yes.

[00:19:38] Speaker 02:
And if it is, then why can't the state do the same thing here?

[00:19:42] Speaker 05:
So Your Honor, I think the difference here is that there's a program of private choice.

[00:19:48] Speaker 05:
So if you're allowing parents to select all these different curricula with all these different viewpoints, like in this program, you could choose a libertarian curriculum.

[00:19:57] Speaker 05:
It's the parent's choice.

[00:19:58] Speaker 05:
It's parent-directed education at home with their children.

[00:20:00] Speaker 05:
You could choose a socialist curriculum.

[00:20:02] Speaker 05:
But you can't choose a curriculum in this program that reflects a religious worldview.

[00:20:07] Speaker 05:
And that's where we think the discrimination comes in.

[00:20:11] Speaker 06:
All right, we'll give you your four minutes for rebuttal.

[00:20:14] Speaker 05:
OK, thanks very much.

[00:20:18] Speaker 06:
All right, and we have three people on Apple East Side, so if you can just state your name and which party you're representing, please.

[00:20:30] Speaker 04:
Good afternoon, Your Honors.

[00:20:31] Speaker 04:
Thomas Prouty for the State Superintendent.

[00:20:33] Speaker 04:
May it please the Court.

[00:20:35] Speaker 04:
A curriculum may be thought of as a specific plan

[00:20:39] Speaker 04:
for using specific materials, activities, and assignments to result in one or more students' acquisition and comprehension of certain content and skills.

[00:20:52] Speaker 04:
Now, in that precise respect, there's not one California public education curriculum, but there are detailed state adopted content standards in a range of subjects.

[00:21:05] Speaker 04:
There's also more general public education standards that cross subjects.

[00:21:11] Speaker 04:
And that's a feature, not a bug.

[00:21:14] Speaker 04:
When you enroll in a California public school and a public school official decides on a curriculum that they've determined is 100% aligned with every single... But that's not the issue in this case.

[00:21:28] Speaker 02:
I mean, the issue in this case, as framed by the complaint, is not that

[00:21:34] Speaker 02:
is simply that the state will refuse to fund sectarian education as part of this program.

[00:21:45] Speaker 02:
It's not whether the program as a whole meets state requirements.

[00:21:49] Speaker 02:
You didn't say, well, you put together this program, but it's lacking enough math or it's lacking enough history.

[00:21:57] Speaker 02:
What you said was, and you may be entitled to, but I want to get to that issue,

[00:22:01] Speaker 02:
we won't fund sectarian education as part of this program.

[00:22:06] Speaker 02:
And so the only issue in this case, from my perspective, is not whether the state's entitled to demand a well-balanced education or can look at a particular program that a parent has and says, well, you're too light here on the humanities.

[00:22:22] Speaker 02:
This is a case in which there was a blanket refusal

[00:22:25] Speaker 02:
to fund programs that had a sectarian component.

[00:22:30] Speaker 02:
And so my question, I think the question at the end of the day is whether that's permissible under the free exercise clause, not whether the state might have a broader requirement of

[00:22:43] Speaker 02:
education that's not met by these particular parents.

[00:22:47] Speaker 02:
They may be terrible educators and you may be able to say, you're not teaching them enough math and science or whatever, but that's not what you said.

[00:22:54] Speaker 02:
What you said was, here's the reason we're not funding this, it's because it's sectarian and the state constitution prevents us from doing that.

[00:23:02] Speaker 02:
So I think you need to address that.

[00:23:04] Speaker 04:
What the charter school said is we are not, we, the public school officials within this charter school are not adopting

[00:23:11] Speaker 04:
the curriculum that you're suggesting, because it didn't meet 100 percent of all state standards, including that it be secular.

[00:23:21] Speaker 04:
Now there could be questions, I mean you could have lots of hypotheticals about whether a particular religious instruction will comply with the next generation science standards.

[00:23:30] Speaker 02:
If that's the case, then shouldn't this case move to trial?

[00:23:35] Speaker 02:
Because

[00:23:36] Speaker 02:
What you're saying is that we turned them down for a different reason than the religious preference in the case.

[00:23:45] Speaker 02:
We turned them down for a broader educational reason, and they've alleged you turned them down because of the religious nature of some of the instruction they wanted to provide.

[00:23:56] Speaker 02:
And see, I thought both sides agreed that the reason for turning their

[00:24:02] Speaker 02:
their proposals down was they included a sectarian component.

[00:24:08] Speaker 02:
If you're saying there was an entirely different and independent reason for turning them down, then on the basis of the complaint, I don't see how we can uphold the dismissal.

[00:24:18] Speaker 04:
I think that they were, the charter school officials decided that they were

[00:24:22] Speaker 04:
sectarian, and that was a basis for deciding not to.

[00:24:26] Speaker 02:
I'm not sure why you're fighting that, because if you're right, we ought to reverse and say, what was the real reason?

[00:24:33] Speaker 04:
No, I'm not fighting that.

[00:24:35] Speaker 04:
I think it's conceited that the plaintiffs have alleged, and more importantly, the independent study regulations and the Charter School Act required that

[00:24:46] Speaker 04:
the charter school officials are the ones to decide what the curriculum is in their school.

[00:24:51] Speaker 06:
Let me ask you this hypothetical.

[00:24:53] Speaker 06:
Suppose the state decided, for whatever reason, we want to encourage homeschooling.

[00:24:59] Speaker 06:
So anybody, not through charter school, but just

[00:25:04] Speaker 06:
Ordinary homeschooling.

[00:25:05] Speaker 06:
Anybody who's homeschooling, if you meet whatever requirements the state would otherwise impose on you for homeschooling, and you send in a certification and say, I'm homeschooling my child, we'll send you $500 to use on materials to help you.

[00:25:24] Speaker 06:
But the one restriction is you have to say you're not going to use it on anything religious.

[00:25:30] Speaker 06:
Do you think that would be constitutional?

[00:25:33] Speaker 04:
I think under that hypothetical you could say that if the intent of the law... The law is just what it is.

[00:25:42] Speaker 06:
I don't know what the intent is.

[00:25:44] Speaker 04:
The two critical things in this case that loom large is, I think it's conceded, the curriculum would only be approved if it met 100% of every single

[00:25:54] Speaker 06:
No, no, you get a check.

[00:25:58] Speaker 06:
You're talking about this case, but what is the answer in the hypothetical?

[00:26:01] Speaker 04:
If the Californians have the right to choose their own private education, then you should include religious education.

[00:26:07] Speaker 06:
But in this case... I think a lot of what the argument on the other side is

[00:26:17] Speaker 06:
is that what you have here is essentially in substance, not all that different from the hypothetical in that you have these sort of charter schools that are sort of pass through ways of funding homeschooling.

[00:26:33] Speaker 06:
So now you can get to why is it not that?

[00:26:37] Speaker 04:
The reason why I started off talking about there's not like one curriculum every day in a thousand school districts and a thousand charter schools Public school officials are determining what the actual curriculum will be and it's not just the textbook its activities field trips assignments and There's there's an admission in this case that the public school officials retained final approval authority over the curriculum so in this case it wasn't

[00:27:01] Speaker 04:
You could say parent choice, but that's a conclusion that's not accepted.

[00:27:04] Speaker 04:
You really look to the law, the regulations.

[00:27:06] Speaker 02:
It seems to me what you're saying is, and I want to focus on Judge Miller's question, it does make a difference to you that this is participation in a program through what California calls a public charter school than if we had a separate program that simply funded home education.

[00:27:28] Speaker 04:
Charter schools are full-fledged members of... So why does it make a difference?

[00:27:33] Speaker 02:
That's what he's... I think that's what he's asking.

[00:27:35] Speaker 02:
It's really... it's in substance really the same as if California were funding a home school education.

[00:27:44] Speaker 04:
I think the question that you posed to me, Judge Miller, I took it to mean that there weren't two important things.

[00:27:50] Speaker 04:
One, that the curriculum that would be used wouldn't have been decided by a public school official to meet 100% of all public education standards that apply in a classroom and that could be taught in a classroom with 25 kids and that the public school official would retain final approval authority over whether it would be used.

[00:28:09] Speaker 04:
Now, if in your question the state of California said,

[00:28:12] Speaker 04:
We're just going to go out there with private education.

[00:28:15] Speaker 04:
We're going to give you $10,000.

[00:28:17] Speaker 04:
If you want to take it, don't enroll in a public school.

[00:28:20] Speaker 04:
You can choose whatever private school you want.

[00:28:22] Speaker 04:
I think under Carson, we're going to say that you can go to a religious school.

[00:28:25] Speaker 02:
Take out private school out of that.

[00:28:28] Speaker 02:
And you can do home education if you want.

[00:28:32] Speaker 02:
Here's a generally available grant, which is their argument, to conduct home education.

[00:28:40] Speaker 02:
But we're going to condition it on you not providing any sectarian education at home.

[00:28:45] Speaker 02:
Could they do that constitutionally?

[00:28:47] Speaker 04:
With the same caveats that we discussed.

[00:28:50] Speaker 02:
This is the entire world of the hypothetical.

[00:28:52] Speaker 02:
So don't make up more facts.

[00:28:54] Speaker 02:
That's the entire hypothetical.

[00:28:56] Speaker 04:
When a parent, they file a private school affidavit.

[00:28:58] Speaker 04:
Private homeschooling in California, you file a private school affidavit with my client.

[00:29:05] Speaker 04:
There's provisions in the law that we don't evaluate it.

[00:29:08] Speaker 04:
We don't do any approval.

[00:29:09] Speaker 04:
And then the school district, they just look to see if it's on file.

[00:29:12] Speaker 04:
Once you do that, you're essentially a private school.

[00:29:14] Speaker 04:
So under your hypothetical, where

[00:29:16] Speaker 04:
State doesn't care about approving it.

[00:29:18] Speaker 02:
The state doesn't care about... Then you're essentially a private school and you can teach religion if you want to.

[00:29:23] Speaker 04:
That's not the case in this case.

[00:29:25] Speaker 04:
That's right.

[00:29:25] Speaker 02:
That's not the case here.

[00:29:27] Speaker 02:
So now the question I think we're both, I'm interested in, but I'm intuiting Judge Miller is interested in.

[00:29:33] Speaker 02:
Does it make a difference the way the structure?

[00:29:36] Speaker 02:
They say it makes no difference.

[00:29:37] Speaker 02:
This is really a private, this is private homeschooling.

[00:29:41] Speaker 02:
You say, oh no, it's not.

[00:29:42] Speaker 02:
We have a regulatory structure.

[00:29:45] Speaker 02:
It's a public school.

[00:29:47] Speaker 02:
There's a requirement of approval of curriculum and teacher

[00:29:50] Speaker 02:
Involvement and things like that.

[00:29:52] Speaker 02:
This is this is on the public school side not on the home schooling side Is that a fact issue is that something it's not because in this case?

[00:30:02] Speaker 04:
It is part of the regulations and the law California has not decided to do anything like we're not we're we're not going to approve it as proper for you And we're not going to determine whether it meets 100% of all state standards those two things in this case

[00:30:17] Speaker 04:
to say that California has decided to adopt an official government policy to subsidize private choice of any private education to this case where it's essentially conceded that the public school decided it had final approval authority over anything and it had to meet 100% of all state standards and the standards are detailed

[00:30:41] Speaker 04:
content across subject.

[00:30:42] Speaker 04:
There's other things too.

[00:30:43] Speaker 06:
Right, but I guess that the problem with that is that when we take the allegations in the light most favorable to the plaintiff, I mean, what it looks like is that in practice, like the parents are left with a great deal of choice and, you know, there's a long list of things that they can choose from.

[00:31:01] Speaker 06:
And when they went to you, or I guess went to the schools, not to you, and said, here's the materials we want to use, the response was not,

[00:31:17] Speaker 06:
No, we don't think that that meets all the requirements.

[00:31:20] Speaker 06:
The response was no, that's religious, right?

[00:31:23] Speaker 06:
So it seems like it's the no religious part that's doing all of the work here.

[00:31:29] Speaker 06:
And then the other part is not really much of a constraint in practice.

[00:31:33] Speaker 04:
I think it is.

[00:31:34] Speaker 04:
And the reason that we have the example with, we approved these 20, right?

[00:31:39] Speaker 04:
The problem is that new curriculum is being created every day, right?

[00:31:43] Speaker 04:
The other thing is, government's allowed to be effective.

[00:31:46] Speaker 04:
An independent study is a tool that allows for individualization.

[00:31:50] Speaker 04:
Now, the government's hope is that the student will reach the highest level of mastery of comprehension and acquisition of state adopted content and skills.

[00:32:01] Speaker 04:
Now, parents, they know their children.

[00:32:04] Speaker 04:
It would be foolish for government not to ask, we have this amazing tool.

[00:32:09] Speaker 04:
What are your child's interests?

[00:32:11] Speaker 04:
Is he a visual learner?

[00:32:13] Speaker 04:
Is he a hands-on learner?

[00:32:14] Speaker 04:
So allow government to be effective in saying, let's see if there's a 21st.

[00:32:22] Speaker 06:
Right, but I guess the question is not, is that

[00:32:26] Speaker 06:
effective or ineffective government, the question is at what point when you're allowing that much parental involvement and that much parental choice is it still appropriate to characterize what's happening as a public school rather than public support for some sort of private education?

[00:32:46] Speaker 02:
I have a factual question before you sit down.

[00:32:50] Speaker 02:
If there is, as you say, this private homeschooling option in California, I take it that's not funded by the state.

[00:32:59] Speaker 04:
Not at all.

[00:32:59] Speaker 02:
So somebody who opted to do pure homeschooling, calling themselves a private homeschool, would not get any state money.

[00:33:07] Speaker 04:
That's correct.

[00:33:08] Speaker 02:
And I think that... And what's driving this case, I suspect, is that if you're in the nominal

[00:33:19] Speaker 04:
ambit of the charter schools the state is funding the education that the state funds its public schools that that's correct and I I don't want to break my promise to my to my co-councils well no we we we we've set the time separately so you're not you're not taking time away from them they'll they'll each have their five minutes I think I ran ran the ten and I'm going up no that's right but but they're still going to get their five minutes each so so yeah we're

[00:33:46] Speaker 06:
Yeah, you say you're fine.

[00:33:48] Speaker 06:
If anybody has a question, it looks like we're done.

[00:33:50] Speaker 06:
Thank you.

[00:33:51] Speaker 02:
I did have one other question, and maybe it's not relevant.

[00:33:55] Speaker 02:
I find your argument that your client has 11th Amendment immunity to have some substance.

[00:34:01] Speaker 02:
Do we have to reach it?

[00:34:03] Speaker 02:
Is it jurisdictional?

[00:34:04] Speaker 02:
And therefore, as to your client, we ought, we need to reach it because it's jurisdictional.

[00:34:10] Speaker 04:
I think if the judgment's being affirmed... Well, I know from your perspective, any way you win would be fine with you.

[00:34:16] Speaker 02:
I'm asking what our obligation is.

[00:34:21] Speaker 04:
You know, I haven't researched that precise issue.

[00:34:23] Speaker 04:
I think if the judgment's being affirmed, it's a good question.

[00:34:28] Speaker 00:
Thank you.

[00:34:38] Speaker 06:
Miss Hall.

[00:34:41] Speaker 01:
Good afternoon.

[00:34:42] Speaker 01:
Kendra Hall on behalf of the Blue Ridge Academy of Police.

[00:34:48] Speaker 01:
We didn't talk anything about free speech, which is also another claim.

[00:34:51] Speaker 01:
In this case, I'm happy to go there.

[00:34:52] Speaker 01:
I'm happy to discuss any of the issues on the free exercise.

[00:34:57] Speaker 01:
in terms of our client there were discussions about the the content of what was not being approved and I think that there's very precise allegations in the complaint regarding The texts and all of them are instructional in nature in terms of providing a religious Instruction it is clear in this case that the reason that the requests of the parents for funding

[00:35:27] Speaker 02:
were turned down was because that the instruction would be sectarian in nature.

[00:35:33] Speaker 02:
Not because it wasn't a well-balanced program.

[00:35:36] Speaker 01:
Exactly, and we're also not dealing with the case, for example, where there is a survey course or where a student has been given an opportunity to write an individual perspective and the school is saying, you can't talk about religion.

[00:35:49] Speaker 01:
That's not the facts here.

[00:35:52] Speaker 01:
It's very specifically asking for public funds to fund instructional religious materials.

[00:35:59] Speaker 02:
I don't think they contest that.

[00:36:01] Speaker 02:
I may be wrong, but I'll ask them.

[00:36:03] Speaker 06:
It's also not the case that the curriculum they wanted was rejected on the ground.

[00:36:09] Speaker 06:
The rejection was not, you know, we have a list of approved

[00:36:13] Speaker 01:
Curricula and yours is not on the list and therefore we reject it like it might have been considered despite its absence from the list But for the fact that it was religious right exactly you're under there is some flexibility provide as there is flexibility in traditional brick-and-mortar public schools to take parent input and to consider things that are not on the exact list but there is that bright line rule that California's adopted that Carson has said is perfectly fine and

[00:36:41] Speaker 01:
to have a strictly secular education.

[00:36:44] Speaker 01:
And Blue Ridge, we have this constitutional, the statutory mandate.

[00:36:50] Speaker 01:
We have our charter in which we've agreed to that.

[00:36:53] Speaker 01:
And then you also have that when a student and the parents come to our school, they're signing a master agreement that is stating, we understand this is a public education under the supervision of public officials.

[00:37:07] Speaker 01:
And so it's very difficult to reconcile how claims can be made in this case when the voluntary choice is being made to come to our school, which offers this independent study model.

[00:37:19] Speaker 06:
If somebody were to ask one of the kids in this program, do you go to public school?

[00:37:25] Speaker 06:
What do you think he'd say?

[00:37:27] Speaker 01:
I go to a public charter school.

[00:37:29] Speaker 06:
But even though he doesn't actually go there, right?

[00:37:33] Speaker 06:
I mean, in the sense of physically.

[00:37:35] Speaker 01:
Oh, because it's spiritual.

[00:37:39] Speaker 06:
I mean, I don't know that it matters, but I mean, I'm confident that the legal test does not turn on that, but it does sort of highlight the way in which this is not, I mean, throughout your briefs you sort of emphasize that this is public education, but it is not.

[00:38:01] Speaker 06:
It is not ordinary public education.

[00:38:04] Speaker 01:
Well, I think we're no longer in the leave it to be over days when we could just say what's ordinary.

[00:38:09] Speaker 01:
And there are so many different models, as I think my co-counsel is trying to emphasize.

[00:38:14] Speaker 01:
And we're one of those models.

[00:38:16] Speaker 01:
And it's a model.

[00:38:17] Speaker 01:
that's great to have for people, and I think some of the amici were pointing out, listen, my kid's getting bullied, my kid learns at a different pace, and isn't it great that our school offers that opportunity?

[00:38:30] Speaker 01:
You know, in public education, that's funded.

[00:38:34] Speaker 01:
And it doesn't prevent parents

[00:38:35] Speaker 01:
Now on their own dime from also offering that religious piece if that's important as well But I think that we're within we're the modality In many modalities that are offered and that those are choices that California has allowed I think I hope I answered your question.

[00:38:53] Speaker 01:
I thought I went a little circular there.

[00:38:54] Speaker 01:
Sorry about that And so I've talked about the books and

[00:39:05] Speaker 01:
And I agree.

[00:39:06] Speaker 01:
I think your question has just gotten back to the question that we started with, which is does the location matter?

[00:39:13] Speaker 01:
And I think that really we're still talking about the content.

[00:39:16] Speaker 01:
We're talking about the fact that there are many, many regulations ensuring that it's complied with, with credentialed teachers.

[00:39:24] Speaker 01:
And then going back also to the fact that the parents have signed that master agreement where they are acknowledging going in the door, this is what we're signing up for.

[00:39:33] Speaker 01:
We're not signing up for something different.

[00:39:35] Speaker 01:
And Blue Ridge isn't handing out checks.

[00:39:37] Speaker 01:
It's not handing out grants.

[00:39:39] Speaker 01:
You know, this per pupil dollar amount

[00:39:42] Speaker 01:
covers a lot of different things and not just a curriculum.

[00:39:46] Speaker 01:
So it doesn't look anything like a voucher program or a grant program.

[00:39:49] Speaker 02:
Are you required under state law to offer independent study or merely authorized?

[00:39:56] Speaker 01:
Are you speaking particularly... I mean, you're a charter school.

[00:40:01] Speaker 01:
I mean, I believe that our charter is as an independent study.

[00:40:05] Speaker 01:
I don't think the law though is requiring us to do it.

[00:40:09] Speaker 02:
Well, could you next year say, this just hasn't worked out.

[00:40:15] Speaker 02:
We're going to do all of our instruction on site, or is your charter limited to doing instruction off site?

[00:40:21] Speaker 01:
I think that we would have to work through our charter to change what we're offering.

[00:40:28] Speaker 00:
So that was a choice to begin with, to apply.

[00:40:31] Speaker 00:
as an independent study charter school.

[00:40:32] Speaker 00:
Exactly.

[00:40:33] Speaker 01:
And I think so along that line is to impose a requirement somehow that our teachers oversee any number of the thousands of religions that are out there that would want to come in and say, we want this to be part of our curriculum.

[00:40:48] Speaker 01:
It's just not workable, and we're getting the state involved in entanglement.

[00:40:52] Speaker 01:
I don't think we ever get there, but we're getting down to establishment clause concerns and funding of these different curriculums.

[00:41:01] Speaker 01:
Thank you.

[00:41:03] Speaker 01:
Did I reach my time?

[00:41:05] Speaker 01:
Yes.

[00:41:05] Speaker 01:
Thank you very much.

[00:41:14] Speaker 06:
Mr. Troia.

[00:41:15] Speaker 03:
Kevin Troy for the Visions of Education, defendants and respondents.

[00:41:20] Speaker 03:
May it please the court.

[00:41:21] Speaker 03:
Appellants allege that this is a pass-through funding scheme for private homeschooling.

[00:41:28] Speaker 03:
It simply is not.

[00:41:30] Speaker 03:
We need not accept those factual allegations as true, and you should not accept those factual allegations as true because they're contrary to law.

[00:41:38] Speaker 03:
All of the aspects of the independent study of the students of Visions and of Blue Ridge

[00:41:43] Speaker 03:
are dictated by law.

[00:41:44] Speaker 03:
Whether the student can engage in independent study in the first place, that's determined by the school.

[00:41:52] Speaker 03:
The objectives in independent study for a particular pupil are set by the credentialed teacher of that school.

[00:42:00] Speaker 03:
The methods of study to reach those objectives are chosen by the credentialed teacher of that school.

[00:42:07] Speaker 03:
The means of assessment

[00:42:09] Speaker 03:
for whether the student is reaching those objectives, on their way to reaching those objectives, are chosen by the credentialed teacher.

[00:42:16] Speaker 03:
The time value of the work product submitted by the student, which is the way of keeping attendance under California law, is assessed by the credentialed teacher.

[00:42:26] Speaker 03:
The progress, the academic progress, whether they're actually reaching their objectives, getting closer, is assessed by the credentialed teacher.

[00:42:34] Speaker 03:
Whether the student can remain in independent study, whether they're

[00:42:39] Speaker 03:
they're making sufficient progress, or they haven't been there enough, they haven't submitted enough work samples, that is determined by the school, whether they can make it remain independent study.

[00:42:52] Speaker 03:
The student has to participate in, even independent study, has to participate in all state assessments and all state standards.

[00:43:00] Speaker 02:
Could you describe how that differs from the state

[00:43:06] Speaker 02:
Home study program if you will with the one described before that where you you apply and say I want to educate my child at home and therefore my private Home study program.

[00:43:16] Speaker 02:
What are the are there any state requirements applicable to those programs?

[00:43:20] Speaker 02:
No, it's a private school under California law Are there are there are there requirements applicable to private schools?

[00:43:29] Speaker 03:
They have to sign to

[00:43:33] Speaker 03:
Put their address on a register so people will know where the kid is And there's a very broad language in I think education code five five One five five something like that five one one five five thereabouts very broad language of you know private school you have to teach the same branches of study as a as a taught in California where people turn down on their

[00:44:00] Speaker 02:
I'm gonna call them home study applications.

[00:44:02] Speaker 02:
I know that's formally what they're called because the curriculum being offered is not broad enough or because it includes, they're clearly not being turned down because it includes sectarian education, correct?

[00:44:15] Speaker 03:
I don't know of any examples of actually being turned down.

[00:44:17] Speaker 03:
It hasn't been litigated.

[00:44:18] Speaker 03:
It doesn't crop up very often.

[00:44:20] Speaker 03:
There's a Jonathan L. case that's been cited in all the briefs.

[00:44:23] Speaker 03:
It's quite accommodating.

[00:44:25] Speaker 03:
California law does not require much in the way of

[00:44:29] Speaker 03:
what you learn and where you are in the private school world, including homeschooling, which is treated as a subset of private education under California law.

[00:44:37] Speaker 03:
So all of these things I listed are all completely different.

[00:44:42] Speaker 03:
This is a school asserting itself via the credentialed teacher.

[00:44:46] Speaker 03:
Again, it must be credentialed, just like any other public school under California law.

[00:44:51] Speaker 03:
And that is the idea that this is the pass-through funding scheme.

[00:44:57] Speaker 03:
It's an illusion.

[00:44:58] Speaker 03:
That's frankly not what the law demands.

[00:45:01] Speaker 03:
They haven't alleged that that's not happening.

[00:45:03] Speaker 03:
They haven't alleged that Visions or Blue Ridge, for that matter, aren't complying with those laws.

[00:45:07] Speaker 03:
They're essentially asking you to just forget all of that and say, well, no, what's really happening here?

[00:45:13] Speaker 03:
And their term is it's a program of private choice.

[00:45:19] Speaker 03:
It's always again and again.

[00:45:20] Speaker 03:
So it seems like what they're trying to say is, yes, we concede that Visions, Blue Ridge, these are state public schools under California law, but for purposes of federal free exercise jurisprudence, they are not conventional public schools.

[00:45:40] Speaker 03:
They're not traditional public schools.

[00:45:42] Speaker 03:
So they're in this kind of nether region.

[00:45:44] Speaker 03:
They're in this kind of

[00:45:45] Speaker 02:
Other category, but there are some of the requirements applicable to Let's call them brick and mortar because I don't want to say traditional.

[00:45:54] Speaker 02:
I don't know what tradition is anymore in this area For example must you admit?

[00:46:00] Speaker 02:
Everyone who applies or can you be selective?

[00:46:03] Speaker 03:
The charter schools?

[00:46:04] Speaker 02:
Yes.

[00:46:05] Speaker 02:
So you're subject to the general requirements of admission of public schools.

[00:46:11] Speaker 02:
Are there other general requirements applicable to public schools that are applicable to your client?

[00:46:17] Speaker 03:
I mean, essentially nearly all of them in terms of you have to provide support.

[00:46:24] Speaker 02:
You're allowed to provide education in a, if I could say it, in a non-traditional manner in some cases, but otherwise you're otherwise subject to all the state requirements for a public school.

[00:46:35] Speaker 03:
Yes.

[00:46:36] Speaker 02:
And private schools are not.

[00:46:38] Speaker 03:
Exactly.

[00:46:38] Speaker 03:
The idea is innovation, the idea is a

[00:46:45] Speaker 03:
experimentation, trying a new approach.

[00:46:47] Speaker 03:
And I frankly take issue a little bit with the idea that this isn't even a traditional or a conventional process.

[00:46:53] Speaker 03:
That's why I said with quotes.

[00:46:55] Speaker 03:
I'm sorry, I keep interrupting.

[00:46:56] Speaker 02:
That's why I said with quotes.

[00:46:57] Speaker 02:
I understand.

[00:46:57] Speaker 03:
It's been going on since 1990.

[00:46:59] Speaker 03:
It actually predates the California Charter Schools Act.

[00:47:02] Speaker 00:
If I understand correctly, a what I would call non-charter public school, a pre-existing, regular public school that's not a charter school can also offer an independent study program.

[00:47:16] Speaker 00:
Yes, yes.

[00:47:17] Speaker 00:
And they could also in theory just allow parents to suggest a wide range of choices subject to the approval of a supervising certified teacher.

[00:47:30] Speaker 03:
That's my understanding.

[00:47:31] Speaker 03:
I don't represent it.

[00:47:32] Speaker 00:
Whether that exists or not, in theory, they could do the same exact thing as your program through the auspices of a traditional public school.

[00:47:40] Speaker 00:
Is that correct?

[00:47:41] Speaker 00:
Yes, that's my understanding.

[00:47:42] Speaker 00:
Under California law.

[00:47:42] Speaker 02:
The reg seems to allow that.

[00:47:44] Speaker 02:
Yes.

[00:47:44] Speaker 02:
OK.

[00:47:46] Speaker 03:
I would just say that ultimately their ask is an extraordinary one.

[00:47:50] Speaker 03:
It is to asking a federal court to say, to my understanding for the first time, they've offered no precedent for this.

[00:47:59] Speaker 03:
to step in and say, yes, we recognize that you state acts have deemed this school a public school you've treated as public school historically, but we, as a matter of federal jurisprudence, have deemed this too far outside the realm, too far away from the platonic ideal of what a public school is.

[00:48:19] Speaker 03:
under historical norms, under, as co-counsel mentioned, the Leave it to Beaver theory.

[00:48:24] Speaker 03:
I didn't see it on TV 50 years ago, so it's not a public school to me.

[00:48:28] Speaker 03:
No court has ever, as far as I'm aware, reached that conclusion or even contemplated reaching that conclusion.

[00:48:34] Speaker 03:
It's an extraordinary ask.

[00:48:36] Speaker 02:
It's not presented by this case, but could a institution owned by a Catholic school, for example, apply to become a public charter?

[00:48:49] Speaker 02:
Yes, as long as the education itself is not... As long as the education is... I always get confused between secular and non-secular, but as long as the education is not religious.

[00:49:00] Speaker 02:
Yeah, as long as it's secular.

[00:49:01] Speaker 02:
So this doesn't present the issue that the Drummond case presented.

[00:49:05] Speaker 03:
Correct.

[00:49:05] Speaker 03:
And to circle back on a point you made, Your Honor, you made reference to materials, and the materials are produced by

[00:49:14] Speaker 03:
a religious entity, would they be barred?

[00:49:17] Speaker 03:
Again, it's not an issue in this case, but my understanding is California law would not bar that.

[00:49:21] Speaker 03:
It's funny, you make reference to the Mormon church, and perhaps the Mormon church produces math materials.

[00:49:26] Speaker 02:
I'm aware of... They produce lots of historical materials.

[00:49:29] Speaker 03:
EIU produces a lot of materials that are often used by, as I'm aware of, charter schools, non-classified charter schools, and there's no problem there, because it's not sectarian.

[00:49:41] Speaker 03:
It's just a good

[00:49:42] Speaker 02:
product and as I understand your friend he's not arguing that the materials were turned down because of the identity of their Manufacturer rather because of the content of their maybe I'm wrong.

[00:49:56] Speaker 06:
He can correct me if I'm wrong Thank you Mr. Sam four minutes

[00:50:14] Speaker 05:
So a few points on rebuttal, Your Honor.

[00:50:18] Speaker 05:
The appellees have really emphasized that there's final approval authority here from the schools for the curriculum choices.

[00:50:26] Speaker 05:
Our contention is not that they don't have to approve.

[00:50:30] Speaker 05:
Obviously, they have to approve.

[00:50:31] Speaker 05:
That's what makes the censorship of religious curriculum possible.

[00:50:35] Speaker 05:
But Supreme Court precedent and Ninth Circuit precedent says that mere approval authority isn't enough.

[00:50:40] Speaker 05:
So in Laughman, for example, this court looked at a scheme where it was really the local education agency that had the final say over

[00:50:50] Speaker 05:
the disabled child's placement in a non-public school.

[00:50:53] Speaker 05:
But that wasn't enough for the court to say there was no burden.

[00:50:56] Speaker 05:
There was still a burden on the parents because, generally speaking, they would have this ability to direct that choice.

[00:51:06] Speaker 05:
And so I think it's important, as Judge Miller noted before, to recognize that in practice there is a lot of choice in these programs.

[00:51:14] Speaker 05:
I'd like to point the court to ER 374.

[00:51:16] Speaker 05:
This is in the Visions Charter document.

[00:51:21] Speaker 05:
It says, a credentialed teacher provides parent slash guardian instructional support with curriculum guidance.

[00:51:28] Speaker 05:
And similarly, in the Blue Ridge Handbook, ER 511, families utilize this planning amount to work with their teachers to carefully select educational products to fit their goals, learning plans, and subjects outlined in their master's.

[00:51:41] Speaker 02:
So does your argument in the end

[00:51:44] Speaker 02:
boiled down to, this is really a publicly funded home school program.

[00:51:52] Speaker 02:
This is not a publicly funded public education.

[00:51:57] Speaker 05:
Yes, that's right.

[00:51:58] Speaker 05:
It's a parent-directed program, ultimately.

[00:52:01] Speaker 05:
That's our contention.

[00:52:03] Speaker 02:
So tell me what, I'm trying to figure out the constitutional significance of your practical description of the case.

[00:52:11] Speaker 02:
I mean, the state is funding these charter schools, and these charter schools are then being asked to fund a form of instruction at home.

[00:52:22] Speaker 02:
Why isn't that formal structure

[00:52:27] Speaker 02:
of whether this is a public school program as opposed to the fact that it looks a lot like a home school program.

[00:52:36] Speaker 02:
But they do have a home school program that's pretty much entirely different that you've chosen not to enroll in.

[00:52:43] Speaker 05:
Well, because, Your Honor, the Supreme Court has said that what matters is substance and not form.

[00:52:48] Speaker 02:
Well, it hasn't said, no, it's really never said that.

[00:52:51] Speaker 02:
What this court has said is you may not discriminate in the provision of funds based on religion.

[00:52:59] Speaker 02:
But it hasn't said, well, this is really a

[00:53:04] Speaker 02:
This is really a home school program, not a public school program.

[00:53:07] Speaker 02:
In fact, the main case seems, I think, to turn a lot on the notion that this really is a public school program.

[00:53:14] Speaker 02:
We're funding a public education, and we won't do it at a religious institution, but we'll do it at other private institutions.

[00:53:22] Speaker 02:
So I'm trying to figure out what significance it is that this has many of the characteristics of a home school program.

[00:53:29] Speaker 02:
an educator might describe it as such.

[00:53:32] Speaker 02:
But why is that constitutionally significant?

[00:53:35] Speaker 05:
Well, Your Honor, certainly the Supreme Court has said that state law labels can't control federal constitutional questions.

[00:53:41] Speaker 05:
For example, an umber.

[00:53:43] Speaker 02:
Well, sure.

[00:53:43] Speaker 02:
And if they called your home school instruction public instruction, then it seems to me we'd have a problem.

[00:53:49] Speaker 02:
But here it not only has labels, it has lots of substantive

[00:53:57] Speaker 02:
indicia of a public education.

[00:53:59] Speaker 02:
It is set up by state regulation.

[00:54:02] Speaker 02:
It is funded by state funds.

[00:54:04] Speaker 02:
It requires approval of state certified teachers.

[00:54:07] Speaker 02:
It requires approval of state licensed charter schools.

[00:54:12] Speaker 02:
And so I'm trying to figure out why that formal structure isn't enough to overcome

[00:54:19] Speaker 02:
your argument and the point that Judge Miller makes that it looks a lot like home education, but it has an entirely different formal structure than home education, doesn't it?

[00:54:30] Speaker 05:
No, Your Honor.

[00:54:31] Speaker 05:
I think it's actually substantively much more like pure homeschooling, if you will, than what anyone would ordinarily call it.

[00:54:38] Speaker 02:
The reason you're here, I don't

[00:54:41] Speaker 02:
criticize you for it is you like the state money.

[00:54:44] Speaker 02:
If you wanted to do poor homeschooling, you could do it in a minute, but the state wouldn't subsidize it.

[00:54:49] Speaker 02:
And so the state has said, we'd like to subsidize some of these experiments, but they have to be done under our formal structure, and here's our formal structure.

[00:54:58] Speaker 02:
So I'm trying to figure out why the formal structure isn't determinative here as opposed to the fact that it shares some characteristics with a very different program that you've chosen not to enroll in.

[00:55:11] Speaker 05:
Your Honor, because something like approval authority is just not sufficient under... Well, it's not just approval authority.

[00:55:17] Speaker 02:
They're providing the money for the program.

[00:55:21] Speaker 02:
And when you do homeschooling, you don't get the money from the taxpayers to have the program.

[00:55:26] Speaker 02:
There's no generally available program for homeschooling in the state.

[00:55:31] Speaker 02:
There is a program available if you enroll in the right charter school and they want to have this program that you can have independent study at home.

[00:55:41] Speaker 02:
But they're two quite different structures.

[00:55:44] Speaker 02:
And so I guess I'm still asking why the fact that the state, why the state can't set up these two different structures and say, you want to do homeschooling, go at it.

[00:55:53] Speaker 02:
You can teach whatever you want, do whatever you want.

[00:55:55] Speaker 02:
We're not going to bother you.

[00:55:57] Speaker 02:
Religion's fine with us.

[00:55:59] Speaker 02:
But if you want to opt into our public charter system, and it is at least public to the extent that they're funding it and regulate it, you've got to live by the rules of that system.

[00:56:11] Speaker 02:
So I guess I'm asking, isn't the substance here really that this is a public system?

[00:56:18] Speaker 05:
No, Your Honor, because fundamentally what this is is parents sitting home at the kitchen table with their children teaching a curriculum of their choice.

[00:56:26] Speaker 05:
I think we can't just blink that reality.

[00:56:29] Speaker 05:
I think that's what the case has to be decided on, is what is actually happening in practice.

[00:56:33] Speaker 05:
And yes, there is guidance, there is support from the credentialed teacher, but this looks radically different from what you would see in a brick and mortar public school.

[00:56:41] Speaker 05:
And I think that that's entirely consistent with the line that the court drew in Carson.

[00:56:45] Speaker 05:
In Carson, the argument was, on the other side, was that, well, we're just trying to fund the equivalent of a public education here.

[00:56:53] Speaker 05:
And the court said, well, no.

[00:56:54] Speaker 05:
Look at the realities on the ground.

[00:56:56] Speaker 05:
This is not just public education.

[00:56:58] Speaker 05:
You're allowing for all these other options that really aren't like actual public school, any conventional understanding of what public school would be.

[00:57:10] Speaker 05:
There are no further questions.

[00:57:11] Speaker 05:
We ask that the court reverse and allow our clients to continue developing their claims.

[00:57:16] Speaker 06:
Thank you.

[00:57:17] Speaker 06:
We thank all counsel for their helpful arguments and the case is submitted.

[00:57:22] Speaker 06:
And we are adjourned.

[00:57:24] Speaker 00:
All rise.

[00:57:31] Speaker 01:
This court for this session stands adjourned.