Nampa Classical Academy, et al v. William Goesling, et al

Filing 41

FILED MEMORANDUM DISPOSITION (STEPHEN R. REINHARDT, WILLIAM A. FLETCHER and JOHNNIE B. RAWLINSON) AFFIRMED. FILED AND ENTERED JUDGMENT. [7857330] (DD)

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

AUG 15 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

NAMPA CLASSICAL ACADEMY;
ISAAC MOFFETT; M. K., a minor, by
and through her next friend; MARIA
KOSMANN, individually and as next
friend of M.K., a minor,

No. 10-35542
D.C. No. 1:09-cv-00427-EJL
MEMORANDUM*

Plaintiffs - Appellants,
v.
WILLIAM GOESLING, individually and
in his official capacity as Chairman of the
Idaho Public Charter School Commission
(“Commission”); BRAD CORKILL;
GAYANN DEMORDAUNT; GAYLE
O’DONAHUE; ALAN REED; ESTHER
VAN WART, all individually and in their
official capacities as members of the
Commission; MICHAEL RUSH,
individually and in his official capacity as
Executive Director of the State Board of
Education; PAUL AGIDIUS, Board
Pressident; RICHARD WESTERBERG,
Board Vice President; KENNETH
EDMUNDS, Board Secretary; EMMA
ATCHLEY; ROD LEWIS; DON
SOLTMAN; MILFORD TERRELL, all
individually and in their official capacities

*

This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

as members of the Board; TOM LUNA,
individually and in his official capacities
as Superintendent of Public Instruction, as
Executive Secretary of the Board, and as
Chief Executive Officer of the State
Department of Education; LAWRENCE
GARTH WASDEN, in his official
capacity as the Attorney General of the
State of Idaho; TAMARA BAYSINGER,
Defendants - Appellees.

Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Argued and Submitted June 7, 2011
Seattle, Washington
Before: REINHARDT, W. FLETCHER, and RAWLINSON, Circuit Judges.
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.” Ysursa v. Pocatello Educ. Ass’n, 129 S.Ct. 1093, 1101 (2009) (quoting

Williams v. Mayor of Baltimore, 289 U.S. 36, 40 (1933)). 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.
See, e.g., Idaho Code § 33-5204(2) (charter schools “may sue or be sued . . . to the
same extent and on the same conditions as a traditional public school district”); §
33-5203(1); § 33-5204(1); 33-5208 (funding). Idaho charter schools are also
subject to state control that weighs in favor of a finding that they are governmental
entities. See, e.g., § 33-5203(2); § 33-5203(5); § 33-5210(1).1 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. See Thomas v. Mundell, 572 F.3d 756, 761 (9th Cir. 2009).

1

In these respects, Idaho law goes beyond Arizona law in characterizing
charter schools as public. Compare Caviness v. Horizon Community Learning
Center, Inc., 590 F.3d 806, 813-14 (9th Cir. 2010).

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.2 The government’s own speech is
exempt from scrutiny under the First Amendment’s speech clause. See Pleasant
Grove City v. Summum, 129 S.Ct. 1125, 1131 (2009). While this court has never
explicitly held that a public school’s curriculum is a form of governmental speech,
such a holding would necessarily follow from Downs v. Los Angeles Unified School
Dist., 228 F.3d 1003 (9th Cir. 2000). A public school’s curriculum, no less than its
bulletin boards, is “an example of the government opening up its own mouth,” id. at
1012, because the message is communicated by employees working at institutions
that are state-funded, state-authorized, and extensively state-regulated. See Mayer
v. Monroe County Community School Corp., 474 F.3d 477, 479-81 (7th Cir. 2007).

2

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. See, e.g., Hunter
v. City of Pittsburgh, 207 U.S. 161, 178 (1907).

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, see Ysursa, 129 S.Ct. at 1101; further, a
political subdivision has no constitutional protection against the actions of the state.
See Hunter, 207 U.S. at 178 (1907).
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. See, e.g., Bowen v. Kendrick, 487 U.S. 589 (1988).
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. See Ysursa, 129 S.Ct. at 1101.
The district court did not abuse its discretion in declining to exercise
jurisdiction over the plaintiffs’ state law claims, both because the court had
dismissed all of the federal claims that formed the basis of its original jurisdiction,
see 28 U.S.C. § 1367(c)(3), and because the remaining claims addressed novel and
complex questions of state law best answered by state courts. See id. § 1367(c)(1).

Although plaintiffs have failed to state a claim under the First or Fourteenth
Amendments, their suit is not so “frivolous, unreasonable, or groundless” that the
defendants are entitled to attorneys’ fees. See Hughes v. Rowe, 449 U.S. 5, 15
(1980) (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978)).
AFFIRMED.