From Nampa Classical Academy v. Goesling (9th Cir. Aug. 15, 2011) (nonprecedential) (unsigned opinion by Judges Reinhardt and Willie Fletcher, with Judge Rawlinson concurring in the result only:
Nampa Classical Academy (“NCA”), along with plaintiffs Moffett, Kosmann and M.K., sued the Idaho Public Charter School Commission, alleging that its policy prohibiting the use of sectarian or denominational texts in public schools violated the First and Fourteenth Amendments as well as Idaho state law. Sometime after the district court dismissed all of plaintiffs’ claims, the state revoked NCA’s charter for a lack of financial viability. We affirm the dismissal.
NCA, as a political subdivision of the state, “has no privileges or immunities under the federal constitution which it may invoke in opposition to the will of its creator.” While NCA itself is a private non-profit corporation, Idaho law contains numerous provisions that, when taken as a whole, demonstrate that Idaho charter schools are governmental entities. Idaho charter schools are also subject to state control that weighs in favor of a finding that they are governmental entities. Like other political subdivisions, Idaho charter schools are creatures of Idaho state law that are funded by the state, subject to the supervision and control of the state, and exist at the state’s mercy. NCA is therefore a government entity incapable of bringing an action against the state.
The district court erred in concluding that Moffett lacked capacity to sue the state. Because Moffet’s claim that his rights as a teacher were violated by the Commission’s policy is neither an official capacity claim on behalf of the school nor a non-justiciable assertion of a generalized public interest, Moffett has standing to pursue this claim.
The First Amendment’s speech clause does not, however, give Idaho charter school teachers, Idaho charter school students, or the parents of Idaho charter school students a right to have primary religious texts included as part of the school curriculum. Because Idaho charter schools are governmental entities, the curriculum presented in such a school is not the speech of teachers, parents, or students, but that of the Idaho government. [Footnote: The school’s speech is the state’s speech even if, under Idaho law, NCA is the equivalent of a school district, and school districts have broad discretion over public school curriculum. School districts enjoy broad discretion over curricula not because the school district is a crucial part of the American constitutional design with inherent rights over public school curriculum, but because states authorize the existence of school districts as political subdivisions and delegate to them the state government’s authority to run state public schools.]
The government’s own speech is exempt from scrutiny under the First Amendment’s speech clause. A public school’s curriculum … is “an example of the government opening up its own mouth,” because the message is communicated by employees working at institutions that are state-funded, state-authorized, and extensively state-regulated. Because the government’s own speech is not subject to the First Amendment, plaintiffs have no First Amendment right to compel that speech.
Plaintiffs allege that the state has retaliated against NCA, and not against the other plaintiffs. Because NCA is a political subdivision of the state, it has no constitutional right to sue the state itself; further, a political subdivision has no constitutional protection against the actions of the state.
The Commission’s policy does not violate the Establishment Clause, which generally prohibits governmental promotion of religion, not governmental efforts to ensure that public entities, or private parties receiving government funds, use public money for secular purposes. Nor does the policy as applied violate the Equal Protection Clause of the Fourteenth Amendment, which does not apply to the state’s disparate treatment of its own political subdivisions….
Strikes me as quite correct, given Ysursa v. Pocatello Educ. Ass’n and other cases that the opinion cites (see the full opinion text for those citations).
UPDATE: Some commenters questioned whether the court was right in concluding that the charter schools were indeed government agencies. I think the court was right, given Idaho law. You can check out those provisions for yourself, but note that they are explicitly called “public charter schools,” and described as being “part of the state’s program of public education.” Their boards of directors “shall be deemed public agents authorized by a public school district, the public charter school commission, or the state board of education to control the public charter school”; they are also subjected to the same laws that government public officials with regard to bribery, ethics in government, open public meetings, and public records, and given the same immunities as public schools get. Likewise, “[c]ertified teachers in a public charter school shall be considered