Religious Rights Foundation of PA v. State College Area School District

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

RELIGIOUS RIGHTS FOUNDATION No. 23-CV-01144

OF PA, et al.,

(Chief Judge Brann)

Plaintiffs,

v.

STATE COLLEGE AREA SCHOOL

DISTRICT, et al.,

Defendants.

MEMORANDUM OPINION

DECEMBER 1, 2023

Not all parents wish to educate their children in the public school system.

Some parents send their children to charter schools. Others educate their children

through home schooling. Still others send their children to parochial schools,

believing that integrating religious and secular instruction is integral to their faith.

In this case, State College Area School District permits homeschooled and charter-

schooled students living within the district to participate in its extracurricular

opportunities, but denies that opportunity to students at parochial schools. But the

Free Exercise Clause is clear: regardless of what reasons some parents may have for

sending their children to a non-public school, a religious reason has the same value

as a secular reason. If some exemptions are made, a school’s refusal to make a

religious one enforces a value judgment preferring secular conduct over religious

conduct. Because Plaintiffs have adequately alleged that the policy in this case runs

afoul of that basic principle, the Defendants’ motion to dismiss is denied.

I. BACKGROUND

In July 2023, Religious Rights Foundation of Pennsylvania, (“RRFP”), C.Y.,

L.Y., F.Y., B.H., K.H., and R.H., filed a two-count complaint against State College

Area School District (“SCASD”) and the Board of School Directors of the State

College Area School District (the “Board”).1 In September 2023, Defendants filed a

motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to

state a claim.2 The motion is now ripe for disposition.

II. DISCUSSION

A. Motion to Dismiss Standard

Under Federal Rule of Civil Procedure 12(b)(6), courts dismiss a complaint,

in whole or in part, if the plaintiff fails to “state a claim upon which relief can be

granted.” Following the landmark decisions of Bell Atlantic Corp. v. Twombly3 and

Ashcroft v. Iqbal,4 “[t]o survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’”5 The United States Court of Appeals for the Third Circuit has instructed

1 Doc. 1.

2 Doc. 9.

3 550 U.S. 544 (2007).

4 556 U.S. 662 (2009).

5 Id. at 678 (quoting Twombly, 550 U.S. at 570).

that “[u]nder the pleading regime established by Twombly and Iqbal, a court

reviewing the sufficiency of a complaint must take three steps”: (1) “take note of the

elements the plaintiff must plead to state a claim”; (2) “identify allegations that,

because they are no more than conclusions, are not entitled to the assumption of

truth”; and (3) “assume the[] veracity” of all “well-pleaded factual allegations” and

then “determine whether they plausibly give rise to an entitlement to relief.”6

B. Facts Alleged in the Complaint

The facts alleged in the complaint, which this Court must accept as true for

the purposes of this motion, are as follows.

RRFP is a Pennsylvania non-profit corporation organized and located in

Centre County, Pennsylvania.7 Plaintiffs C.Y. and L.Y. are parents of F.Y., and

Plaintiffs B.H. and K.H. are parents of R.H.8 C.Y., L.Y., B.H., and K.H. (the “parent

plaintiffs”) are members of RRFP.9 F.Y. and R.H. are minor children who attend

parochial schools.10 All of the individual plaintiffs are residents of the SCASD, a

public school district, which is governed by the Board.11 The Board has statutory

authority to set various eligibility rules for its extracurricular programs.12

6 Connelly v. Lane Construction Corp., 809 F.3d 780, 787 (3d Cir. 2016) (internal quotations

and citations omitted).

7 Doc. 1 ¶1.

8 Id. ¶¶4, 7.

9 Id.

10 Id. ¶¶6-9.

11 Id. ¶¶4-5, 7-8, 13-14.

12 Id. ¶¶28-30.

Pursuant to its authority to promulgate rules, regulations and policies within

its schools, SCASD has approved and authorized more than 100 extracurricular and

co-curricular opportunities.13 Participation is not just limited to students enrolled in

classes at SCASD. School Board Policy No. 137 and 24 P.S. § 13-1327.1(f.1)14

permit students residing within the school district who are enrolled in a home school

program to participate in these programs, including athletics programs, if they

submit a request to the Superintendent by the required deadline.15 Charter school

students residing within SCASD are also eligible to participate in its extracurricular

and co-curricular activities.16

F.Y. and R.H. have been enrolled in parochial schools to further the religious

beliefs of their parents and themselves.17 Participation in religious instruction and

activities, by F.Y. and R.H. as well as their parents, is an integral part of the parochial

schools’ educational programs.18 Through their parochial school program, F.Y. and

R.H. fulfill all applicable educational requirements in the Public School Code.19 But

while they are residents of SCASD, because they are neither enrolled in SCASD’s

schools itself, nor home schooled or charter-schooled, F.Y. and R.H. are ineligible

13 Id. ¶¶15, 24.

14 Beginning with the 2023-24 school year, subsections 13-1327.1(f.2)-(f.3) also apply to

homeschooled students.

15 Id. ¶¶27, 32.

16 Id. ¶¶37-40.

17 Id. ¶¶51, 67.

18 Id. ¶¶52-54.

19 Id. ¶42.

to participate in SCASD’s programs.20 Parent plaintiffs have requested that SCASD

permit their children to participate in extracurricular and co-curricular activities, but

these requests have been denied.21 In response to Parent C.Y.’s request, the SCASD

Superintendent responded via email in March 2023:

After carefully considering it, we cannot grant your request to change

our longstanding practice of not having private school students

participate on our PIAA sports teams. The reason is that the district has

ample, and sometimes excess, participation for our teams, so there is no

need to expand. Additionally, if we allow private school students to take

part, we could be taking away opportunities from SCASD students.22

Plaintiffs therefore allege that Defendants have “historically refused to grant

Student Plaintiffs and other similarly situated parochial school students the ability

to participate in extracurricular and co-curricular activities.”23 They now bring this

civil rights action pursuant to 42 U.S.C. § 1983 for a violation of the Freedom of

Religion Clause of the First Amendment to the United States Constitution, and the

Equal Protection Clause of the Fourteenth Amendment to the United States

Constitution.24 Plaintiffs seek declaratory judgment that Defendants’ conduct is in

violation of the Free Exercise and Equal Protection Clauses; an injunction of

SCASD’s alleged discriminatory conduct; an injunction requiring SCASD to permit

20 Id. ¶¶55, 68.

21 Id. ¶¶56-57.

22 Id. ¶58.

23 Id. ¶59.

24 Id.

Student Plaintiffs and other similarly situated plaintiffs to participate in its

extracurricular and co-curricular activities, and counsel fees and costs.25

C. Analysis

1. Section 1983

RRFP brings suit under 42 U.S.C. § 1983. Rather than serving as a substantive

source of rights, Section 1983 provides a procedural vehicle for private plaintiffs to

enforce the constitution when they suffer violations under color of state law.26 As

set out in Monell v. New York Department of Social Services, a municipal body is a

“person” who can be liable under Section 1983.27 But a municipality can only be

liable for its own actions; it cannot be vicariously liable for the actions of its

employees. A municipal body acts through “a policy statement, ordinance,

regulation, or decision officially adopted and promulgated by that body’s officers.”28

This includes unconstitutional practices which are “so permanent and well settled as

to constitute a custom or usage with the force of law.”29

Here, RRFP alleges that SCASD and the Board has a “longstanding practice”

of refusing to permit parochial school students to participate in extracurricular and

co-curricular activities of SCASD.30 SCASD refers to this allegation as

25 Doc. 10 at 22-23.

26 Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002).

27 436 U.S. 658, 690 (1978).

28 Id.

29 City of St. Louis v. Prapotnik, 485 U.S. 112, 117 (1988).

30 Doc. 1 ¶¶58-60.

“conclusory,”31 but RRFP provides factual support for this allegation by quoting

from the SCASD Superintendent’s email. As a superintendent is a school

policymaker, a statement by a superintendent that a pattern of conduct has occurred

is sufficient to plausibly allege such a pattern of historical fact.32

Even if this were not the case, no such longstanding practice is needed to

impose municipal liability because the policies RRFP complains of were directly

adopted by the school board itself. Any violation caused thereby is a municipal act.33

Accordingly, either allegation of SCASD’s longstanding practice, or of the

complained of policy, sufficiently alleges a claim under Section 1983 if RRFP can

also plausibly allege an underlying constitutional violation. The Court now turns to

RRFP’s Free Exercise claims.

2. Free Exercise

a. Burden on Religious Conduct

The Free Exercise Clause of the First Amendment to the United States

Constitution prohibits Congress from making any law prohibiting the free exercise

31 Doc. 10 at 8.

32 See Doe v. Williamsport Area Sch. Dist., No. , 2023 U.S. Dist. LEXIS 188445, at *17 (M.D.

Pa. Oct. 19, 2023) (“Under less tenuous circumstances, a similar statement with less ambiguity

and less distance between the speaker and the administrators might push a case over the line

from conceivable to plausible.”).

33 See Watson v. Abington Twp., 478 F.3d 144, 155 (3d Cir. 2007) (“Under Monell, a plaintiff

shows that a policy existed ‘when a “decisionmaker possess[ing] final authority to establish

municipal policy with respect to the action” issues an official proclamation, policy, or edict.’”)

(quoting Bielvicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990)).

of religion.34 This right was reincorporated against the states through the Fourteenth

Amendment.35

SCASD makes several arguments contending that the Defendants’ actions

imposed no legally cognizable burden on Plaintiffs’ religious rights. Quoting a 1979

decision from the Eastern District of Tennessee, SCASD maintains that “[a]n

essential element to a claim under the free exercise clause is some form of

governmental coercion of actions which are contrary to religious belief.”36

According to SCASD, “[t]he School District is simply not compelling any of the

Plaintiffs to act in violation of their conscience.”37 The allegation that Plaintiffs are

forced to choose between their religious beliefs and the benefit of extracurricular

participation, SCASD continues, is “a classic example of a false choice . . . . they

could exercise their religious beliefs as they pleased, and their religious exercises

would be unaffected by the statement made by the Superintendent.”38 SCASD finally

contends that regardless of whether coercion has been applied, refusing to allow

participation in SCASD’s extracurricular programming imposes no constitutionally

significant burden on religious exercise.39 In sum, none of the cases provided by

SCASD substantiates its claims.

34 U.S. Const. amend. i.

35 Cantwell v. Connecticut, 310 U.S. 296 (1940).

36 Doc. 10 at 7 (quoting Sequoyah v. Tenn. Valley Auth., 480 F.Supp. 608, 611 (E.D. Tenn.

1979)).

37 Id. at 7.

38 Id. at 8.

39 Id. at 9.

Defendants mainly rely on outdated case law to overstate the burden required

for a government policy to infringe on Free Exercise rights. Yet applicable precedent

is clear that that burden can take the form of a denial of benefits. In 2017, the

Supreme Court of the United States noted: “This Court has repeatedly confirmed

that denying a generally available benefit solely on account of religious identity

imposes a penalty on the free exercises of religion.”40 The Free Exercise Clause is

affronted when laws “impose[] special disabilities on the basis of . . . religious

status,”41 which includes discrimination in the distribution of public benefits.42 “The

imposition of such a condition upon even a gratuitous benefit inevitably deter[s] or

discourage[s] the exercise of First Amendment rights.”43 So where one is “put to the

choice between [his faith] and receiving a government benefit,” a cognizable burden

has been imposed.44 As the Supreme Court has held that this is not a “false choice,”45

this Court will not do so either.

Next, enrolling a child in a parochial school to receive a religious education

is a form of religiously motivated conduct protected by the Free Exercise Clause.

The Free Exercise Clause strictly prohibits “any governmental regulation of

40 Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449, 451 (2017).

41 Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 533 (1993).

42 Mitchell v. Helms, 530 U.S. 793, 828 (2000).

43 Sherbert v. Verner, 374 U.S. 398, 405 (1963).

44 Trinity Lutheran, 582 U.S. at 465; see also Carson v. Makin, 142 S.Ct. 1987, 1997 (2022);

Espinoza v. Montana Dep’t of Rev., 140 S.Ct. 2246, 2255, 2257 (2020); Everson v. Bd. of Ed.

of Ewing, 330 U.S. 1, 16 (1947).

45 Id.

religious beliefs as such.”46 But it also provides a “qualified protection against the

regulation of religiously motivated conduct.”47 Nor may a court inquire into the

centrality of the religious belief to the adherent’s faith, as this task is “not within the

judicial ken.”48 And it is of no moment whether that conduct is “mandatory” or

“optional” according to the plaintiff’s religious convictions.49 The decision to place

students into parochial schools may validly be considered religiously motivated

conduct,50 and conditioning educational benefits upon that religious conduct may

violate the Free Exercise Clause.51

Therefore denying access to the public benefit of participation in

extracurricular activities because of a child’s religiously-motivated enrollment in

parochial school offends the Free Exercise Clause if that denial is discriminatory.

None of the cases cited by SCASD undermine this conclusion. By way of example,

the Magistrate Judge in Robbins by Robbins v. Indiana High School Athletics

46 Sherbert, 374 U.S. at 402-403 (citing Cantwell, 310 U.S. at 303).

47 Employment Div., Dep’t of Human Res. v. Smith, 485 U.S. 660, 671 n.13 (1988); Employment

Div., Dep’t of Human Res. v. Smith, 494 U.S. 872, 877 (1990); Wisconsin v. Yoder, 406 U.S.

205, 219-20 (1972).

48 DeHart v. Horn, 277 F.3d 47, 55-56 (3d Cir. 2000) (en banc); Employment Div. Dep’t of

Human Res. v. Smith, 494 U.S. 872, 886-87 (1990) (plurality opinion).

49 Tenafly Eruv Ass’n v. Borough of Tenafly, 308 F.3d 144, 171 (3d Cir. 2002).

50 See Trefelner v. Burrell Sch. Dist., 655 F.Supp. 2d 581, 595 (W.D. Pa. 2009) (“[P]laintiffs’

action of enrolling A.T. in a parochial school was religiously motivated and would be afforded

protection under the Smith framework.”); Combs v. Homer Ctr. Sch. Dist., 540 F.3d 231 (3d

Cir. 2008) (holding that regulations of homeschooling did not violate the Free Exercise Clause

because they were generally applicable, without questioning that the plaintiffs’ religious

convictions were sincerely held); Yoder, 406 U.S. at 215-219 (explaining that Wisconsin’s

compulsory school attendance law was contrary to the religious beliefs of the Amish plaintiffs,

and therefore violated the Free Exercise Clause).

51 See Carson, 142 S.Ct. at 1996.

Association held that the athletics transfer policy imposed no “undue burden” upon

the student’s religiously motivated transfer to a parochial school.52

The Court is not persuaded by this report and recommendation, for it failed to

consider that “‘[u]nder Smith and Lukumi . . . there is no substantial burden

requirement when government discriminates against religious conduct.”53 The

United States Court of Appeals for the Fifth Circuit’s decision in Walsh v. Louisiana

High School Athletic Association came down in 1980, and also applied an outdated

standard.54 Because more recent case law is clear that even an incidental burden on

religious conduct violates the Free Exercise Clause if it is not imposed through a

neutral and generally applicable policy, SCASD’s argument that its policy does not

impose “grave interference with important . . . religious ten[ets]”55 applies an

erroneous legal standard.

The more recent cases of Chapman v. Pennsylvania Interscholastic Athletics

Association and Pelletier v. Maine Principals’ Association both involved

homeschooled students who were eligible to compete in their public school’s athletic

52 941 F.Supp. 786, 792 (S.D. Ind. 1996) (Hussman, M.J.).

53 Tenafly, 308 F.3d at 170 (3d Cir. 2002). The Court does not opine on whether the transfer

policy imposed even an incidental burden, but merely notes that because the Magistrate Judge

applied the wrong legal standard, his report and recommendation has no persuasive value. The

policy in Robbins would likely be considered neutral and generally applicable anyways,

however, as it contained no exemptions. Robbins, 941 F.Supp. at 789.

54 616 F.2d 152, 157-58 (1980).

55 Doc. 10 at 11 (“To be an undue burden, there must be ‘grave interference with important . . .

religious tenents [sic],’ or there must be state action which affirmatively compels students or

parents to ‘perform acts undeniably at odds with fundamental tenents [sic] of their religious

beliefs.’”) (citations omitted).

programming, but whose eligibility rules did not permit them to participate in a

parochial school’s athletics team instead.56 Plainly, neither student was deprived of

a public benefit due to the religiously motivated conduct of pursuing a homeschool

education. Rather, they were unable to participate in a private school’s athletics

program, a right they never had in the first place. That is an obvious outcome, for

the Free Exercise Clause is not offended where the government refuses to provide

special treatment.57 In contrast, the Western District of Pennsylvania held in

Trefelner ex rel. Trefelner v. Burrell School District that when a student enrolled at

a parochial school was denied participation in his local high school’s marching band,

this did amount to a violation of the Free Exercise Clause.58

Because Plaintiffs have adequately alleged a burden on their religious rights,

the Court turns to the question of whether any unconstitutional discrimination is

plausibly alleged.

56 Chapman v. Pa. Interscholastic Ath. Ass’n, No. 1:14-cv-00193, 2014 U.S. Dist. LEXIS 84299,

at *13-14 (M.D. Pa. June 18, 2014); Pelletier v. Me. Principals’ Ass’n, 261 F.Supp. 2d 10, 12

(D. Me. 2003).

57 See Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439, 452 (1988).

58 655 F.Supp. 2d 581, 590 (W.D. Pa. 2009).

b. Neutrality and General Applicability

1. Legal Standard

As the Supreme Court of the United States explained in the landmark case of

Employment Division, Department of Human Resources of Oregon v. Smith, “laws

incidentally burdening religion are ordinarily not subject to strict scrutiny under the

Free Exercise Clause so long as they are neutral and generally applicable.”59 While

the Smith test has weathered substantial judicial criticism,60 the Supreme Court has

declined to overturn it,61 and this Court remains bound to apply it.

Although the neutral and general applicability tests are “interrelated,”62 they

are in fact distinct tests, and failing either triggers strict scrutiny. A law is not

“neutral” when the government “proceeds in a manner intolerant of religious beliefs

or restricts practices because of their religious nature.”63 The school board policies

here are facially neutral, and there is no evidence of a discriminatory history or

motivation in drafting them. Although a facially neutral policy can fail to be neutral

59 Fulton v. City of Phila., 141 S.Ct. 1868, 1877 (2021) (citing Smith, 292 U.S. at 878-882).

60 See, e.g., Fulton, 141 S.Ct. at 1883-84 (Barrett, J., Concurring) (“In my view, the textual and

structural arguments against Smith are more compelling.”); 1894 (Alito, J., Concurring); 1926

(Gorsuch, J., Concurring) (“Smith failed to respect this Court’s precedents, was mistaken as a

matter of the Constitution’s original public meaning, and has proven unworkable in practice.”);

1931 (“It’s not as if we don’t know the right answer. Smith has been criticized since the day it

was decided. No fewer than Ten Justices—including six sitting Justices—have questioned its

fidelity to the Constitution.”).

61 Id. at 1876-77.

62 Lukumi 508 U.S. at 531-32.

63 Fulton, 141 S.Ct. at 1877 (citing Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n,

138 S.Ct. 1719 (2018)).

in application,64 the Court need not reach this question because the policy is not

generally applicable under existing precedent.

A law is not generally applicable under Smith if it (1) “invites the government

to consider the particular reasons for a person’s conduct by providing a mechanism

for individualized exemptions,”65 or (2) “prohibits religious conduct while

permitting secular conduct that undermines the government’s asserted interests in a

similar way.”66

In Trefelner, the Western District of Pennsylvania found that a parochial

student’s exclusion from a school district’s program, which also allowed district

residents who were not enrolled in the school to participate in extracurricular

activities, violated the Free Exercise clause.67 Attempting to distinguish its case,

SCASD points this Court to dicta in Chapman v. Pennsylvania Interscholastic

Athletic Association.68 In Chapman, my colleague, the Honorable Yvette Kane,

distinguished the facts from those in Trefelner by explaining that “the ultimate effect

of these exemptions [in Trefelner] was that the only students in the district who were

not eligible to play at the public schools were students at private religious schools.”69

64 Lukumi, 508 U.S. at 534.

65 Fulton, 141 S.Ct. at 1877; see also Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S.

707 (1981); Sherbert, 374 U.S. at 402-10.

66 Fulton, 141 S.Ct. at 1877.

67 655 F.Supp. 2d 581, 590 (W.D. Pa. 2009).

68 No. 1:14-cv-00192, 2014 U.S. Dist. LEXIS 84299, (M.D. Pa. June 18, 2014).

69 Id. at *15. Chapman remains distinguishable because it dealt with an eligibility rule applying

to “all students not enrolled full-time.” Id. at *17. It also involved a plaintiff who wished to

participate in extracurricular activities at the school of his choice, when he was already eligible

SCASD’s remaining arguments therefore hinge on the fact that it is not solely

refusing to exempt parochial students from its programming; in other words, SCASD

exempts some analogous secular conduct, but it also does not exempt other

analogous secular conduct, so it is not solely targeting religious activity.70

Smith and Church of Lukumi Babalu Aye v. City of Hialeah left some room

for ambiguity because they are two extremes at opposite ends of the general

applicability spectrum. Smith involved an “across-the-board” law making the

ingestion of peyote a criminal offense.71 Lukumi involved a “gerrymandered” city

ordinance amidst a sea of carefully crafted exemptions, with the effect of only

targeting the ritual animal sacrifice traditions of the Santeria religion.72 Lukumi

therefore stated that laws fail to be generally applicable when, “in a selective

manner,” they “impose[] burdens only on conduct motivated by religious belief.”73

The Supreme Court has also stated that it is “careful to distinguish” laws which are

“neutral and generally applicable without regard to religion,” and laws “that single

out the religious for disfavored treatment.”74

to participate under applicable in another school’s activities under the PIAA rule. Id. Thus, no

benefit was denied due to the plaintiff’s religiously-motivated homeschooling.

70 See Doc. 14 at 3 (“There is no allegation that the policy excluding private school students

resulted (or didn’t result) in only parochial school students being excluded from participation

in school district extracurricular activities.”).

71 Smith, 494 U.S. at 884-85.

72 Lukumi, 508 U.S. at 534-539.

73 Id. at 543.

74 Trinity Lutheran, 582 U.S. at 460.

There has therefore been some judicial confusion regarding cases in which

some analogous secular conduct is exempted from a regime, but other analogous

secular conduct is not exempted.75 “Some decisions apply this special rule if multiple

secular exemptions are granted. Others conclude that even one secular exemption is

enough.”76 In a concurring opinion in Fulton, Justice Gorsuch opined that “this Court

began to resolve at least some of the confusion surrounding Smith’s application in

Tandon [v. Newsom].”77 In Tandon, the Supreme Court stated:

Government regulations are not neutral and generally applicable, and

therefore trigger strict scrutiny under the Free Exercise Clause,

whenever they treat any comparable secular activity more favorably

than religious exercise. It is no answer that a State treats some

comparable secular business or other activities as poorly as or even less

favorably than the religious exercise at issue.78

Some have cast doubts as to Tandon’s precedential value, given that it was an

emergency docket decision decided upon an application for injunctive relief.79 Yet

75 See, e.g., Stormans, Inc. v. Wiseman, 794 F.3d 1064 (9th Cir. 2015); Fulton, 141 S.Ct. at 1930

(Gorsuch, J., Concurring) (“[J]udges across the country continue to struggle to understand and

apply Smith’s test even thirty years after it was announced. In the last nine months alone, this

Court has had to intervene at least half a dozen times to clarify how Smith works.”).

76 Fulton, 141 S.Ct. at 1921 (Alito, J., Dissenting) (citations omitted) (collecting cases).

77 Fulton, 141 S.Ct. at 1930-31.

78 141 S.Ct. 1294, 1296 (2021) (citing Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S.Ct.

63, 73 (2020) (Kavanaugh, J., Concurring)).

79 See, e.g., Alexander Gouzoules, Clouded Precedent: Tandon v. Newsom and its Implications

for the Shadow Docket, 70 BUFF. L. REV. 87, 93 (2022) (“[S]ome courts will treat Tandon as

something less than a fully binding merits decision yet something more than a one-off grant of

extraordinary relief to a particular set of parties . . . [o]thers will apply it as a definitive

articulation of Free Exercise Clause jurisprudence.”); Trevor N. McFadden and Vetan Kapoor,

The Precedential Effects of the Supreme Court’s Emergency Stays, 44 HARV. J. L. & PUB.

POL’Y 827, 832-35, 882 (2021) (“When the full Supreme Court grants a stay application, lower

courts should accord that decision great weight, unless there is compelling reason not to do

so.”); Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 180-81 (explaining

our Court of Appeals has found Tandon to be “significant intervening Supreme

Court precedent” providing “crucial guidance.”80 Even if Tandon were not

considered instructive, it merely reaffirms the approach already supported by

decisions within this Circuit.

In Fraternal Order of Police v. City of Newark, then-Judge Alito explained

that a police department’s medical exemption to a no-beard policy, along with its

refusal to allow a religious exemption, “indicate[d] that the Department ha[d] made

a value judgment that secular (i.e., medical) motivations for wearing a beard are

important enough to overcome its general interest in uniformity but that religious

motivations are not.”81 The discriminatory conduct in Fraternal Order of Police was

not the result of a gerrymandered policy, as in Lukumi—it was the failure to provide

a religious exemption after establishing a secular one, notwithstanding the fact that

other police officers remained subject to the no-beard policy.

Similarly, in Blackhawk v. Pennsylvania, again authored by then-Judge Alito,

the Commonwealth of Pennsylvania imposed a permit fee for keeping wild animals

to raise revenue and to discourage keeping wild animals in captivity, but

categorically waived wildlife permit fees for zoos and nationally recognized

that summary orders “have considerably less precedential value than an opinion on the

merits.”).

80 See Clark v. Governor of N.J., 53 F.4th 769, 780 (3d Cir. 2022).

81 170 F.3d at 366.

circuses.82 Its refusal to waive that fee for the plaintiff, a Native American who kept

two bears in captivity for religious reasons, violated the Free Exercise Clause

notwithstanding the fact that the permit fee was in no way targeted towards religious

reasons for keeping wild animals in captivity.

As authority from the Supreme Court and Third Circuit demonstrates,

therefore, the fact that SCASD’s no-private-student policy is not a no-parochial-

student policy is immaterial to the general applicability analysis. The Free Exercise

Clause is not affronted where a person is denied special treatment in the context of

a religion-neutral policy.83 But if an exemptions regime exists, the failure to grant an

exemption to religiously motivated conduct is considered discriminatory because it

evidences a decision “that secular motivations are more important than religious

motivations.”84 Whether the exemptions are individualized or categorical, “the

decision whether a regulation violates a plaintiff’s constitutional rights hinges on a

comparison of how it treats entities or behavior that have the same effect on its

objectives.”85 “Comparability is concerned with the risks various activities pose, not

the reasons why people” engage in that conduct.86

82 381 F.3d at 210-11.

83 Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439, 452 (1988).

84 Fraternal Order of Police, 170 F.3d at 365.

85 Lighthouse Inst. For Evangelism v. City of Long Branch, 510 F.3d 253 (3d Cir. 2007).

86 Tandon, 141 S.Ct. at 1296 (citing Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S.Ct.

63, 79 (2020) (Gorsuch, J., Concurring)).

2. Application

SCASD presents its policy as one prohibiting private students’ involvement

in extracurricular programming and argues that by this definition its policy would

be generally applicable.87 But by carving exemptions out of the definition of a policy,

a defendant can make any policy appear generally applicable. This approach is

clearly circular for the obvious reason that “every law applies to everything it applies

to.”88 Where a complaint regards the unequal denial of government benefits, defining

the government policy by who the benefits are denied to excludes the entire point of

the analysis. Moreover, SCASD specifically passed policies to permit homeschooled

and charter-schooled students’ participation because the status quo policy is that

students must actually be enrolled in SCASD to participate. The Court therefore

rejects SCASD’s framing.

Instead, the policy is more accurately stated at a broader level of generality—

only students enrolled in SCASD may participate in its extracurricular activities.

That general policy is subject to two categorical exemptions for charter-schooled

and homeschooled students.

The Superintendent’s email provides two possible reasons for refusing to

allow private school students (including parochial students) to participate in its

87 Assuming that charter schools are not “private,” an issue on which the Court need not opine.

88 Douglas Laycock & Steven T. Collis, Generally Applicable Law and the Free Exercise of

Religion, 95 N .L.R .1, 16 (2016).

extracurricular activities: “the district has ample, and sometimes excess,

participation for our teams, so there is no need to expand. Additionally, if we allow

private school students to take part, we could be taking away opportunities from

SCASD students.”89

While Free Exercise law is complex in this area,90 applying it here is

straightforward. As discussed, SCASD grants exemptions to homeschooled and

charter-schooled students. These students are analogous to parochial students in

relation to the reason for denying this benefit. Just as a choice to wear a beard for

medical or religious reasons equally undermined the “uniform appearance” policy

in Fraternal Order of Police,91 whether it is a homeschooled, charter-schooled, or

parochially-schooled student, any non-enrolled student’s participation in

extracurricular activities equally undermines the stated aims of preventing excess

participation and allowing spots for enrolled students.

SCASD points to the public-private distinction dividing eligible and

noneligible students, but this is irrelevant even if true,92 because whether a student

attends a public or private school bears no influence on whether their extracurricular

participation will overcrowd SCASD’s programs. Whether an exemption is required

89 Doc. 1 ¶58.

90 See Fulton, 141 S.Ct. at 1921-22 (Alito, J., Dissenting) (discussing Smith cases relating to

secular exemptions from COVID-19 regulations and concluding that while “Smith seemed to

offer a relatively simple and clear-cut rule that would be easy to apply[,] [e]xperience has

shown otherwise.”).

91 170 F.3d at 366.

92 This distinction depends on whether charter schools are “public” or “private” institutions.

for legal compliance is similarly irrelevant,93 as our Court of Appeals held in

Fraternal Order of Police.94

The cases cited by SCASD are unhelpful to the Court’s consideration here,

for none of them contained any exemptions at all, and so none even reached the

analysis of whether exempted conduct was analogous. The Third Circuit held that

regulations on homeschooling did not violate the Free Exercise Clause in Combs v.

Homer-Center School District, but only because Act 169 “impose[d] the same

requirements on parents who home-school for secular reasons as on parents who do

so for religious reasons,” and there was no waiver mechanism creating any

exemption.95 In Chapman, the PIAA’s Attendance Rule “applied equally to all

students not enrolled full-time;” the rule did not reach any students who were not

homeschooled, so there was no exemption to consider.96 While not cited by SCASD,

Webb v. City of Philadelphia also makes the point.97 There, the Third Circuit

distinguished a police department’s uniform appearance policy from that in

Fraternal Order of Police by explaining that although it prevented plaintiff from

wearing her hijab, it did not violate the Free Exercise Clause because it “contain[ed]

93 See 24 P.S. § 13-1327.1(f.1)-(f.2) (LEXIS 2023).

94 See 170 F.3d at 365 (fact that medical exemption to no beard policy was legally required by

the ADEA was not significant to the general applicability analysis).

95 540 F.3d at 242.

96 2014 U.S. Dist. LEXIS 84299, at *17.

97 562 F.3d 256 (2009).

no exceptions, nor [was] there evidence the City allows other officers to deviate from

it.”98

Consequently, the policy is not generally applicable, and is subject to strict

scrutiny. The Court will therefore examine whether Plaintiffs have adequately

alleged that the policy cannot survive strict scrutiny.

c. Strict Scrutiny

To survive strict scrutiny, the extracurricular policy “must advance interests

of the highest order and must be narrowly tailored in pursuit of those interests.”99

Here, the tailoring analysis overlaps completely with the analysis of SCASD’s

categorical exemptions. Where a regime refuses to exempt religious conduct but

imposes a categorical exemption for secular conduct which threatens an analogous

harm to the stated interest, it is a foregone conclusion that the regime is

underinclusive.100 For if SCASD had a policy narrowly tailored to prevent

overcrowding of its extracurricular programming, it would not have had the

homeschool and charter school exemptions in the first place. SCASD’s regime is

therefore not narrowly tailored to achieve its stated interest, and therefore fails to

survive strict scrutiny.

98 Id. at 262.

99 Lukumi, 508 U.S. at 546.

100 See Blackhawk, 381 F.3d at 215 (“If the Commonwealth wishes to reduce the number of wild

animals held in captivity or to reduce the number held by persons who cannot afford a $ 100

or $ 50 annual fee (and these are the only effects that denying the exemptions at issue can

have), the scheme is substantially underinclusive for the reasons already set out.”).

Based on the facts presently before the Court, the motion to dismiss must be

denied. If SCASD proffers different justifications for its scheme of exemptions later

in this litigation, such that strict scrutiny does not apply, it might succeed in

defending the status quo. But such a justification must actually be grounded in some

fact distinguishing homeschooled and charter-schooled students from parochially

schooled students, in relation to the risks posed by allowing their participation.101

3. Equal Protection Clause

The Equal Protection Clause provides that “no . . . state shall deny any person

under its jurisdiction the equal protection of the laws.”102 A plaintiff states an Equal

Protection Clause claim by alleging “that a state actor intentionally discriminated

against the plaintiff because of membership in a protected class.”103 “Classifications

. . . impacting certain fundamental constitutional rights, are subject to heightened

101 See, e.g., Fraternal Order of Police, 170 F.3d at 366 (explaining the general applicability of a

no beard policy premised on uniform appearance was not undermined by an exemption for

undercover police officers, as they by definition do not affect the department’s perceived

appearance); Lighthouse Inst. For Evangelism, 510 F.3d 276 (holding that a zoning plan which

prohibited buildings meant for civil assembly in the downtown area was generally applicable

“despite its allowance of certain categories of secular assemblies because . . . its prohibition

applies evenly to all uses that are not likely to further Long Branch’s goal of a revitalized,

‘vibrant’ and ‘vital’ downtown . . . [t]he uses it does allow – restaurants, theaters, bars, clubs,

retail shops – are likely to further its aims, not harm them”); King v. Governor of N.J., 767

F.3d 216, 243-43 (3d Cir. 2014) (explaining that alleged exemptions to a law prohibiting sexual

orientation change efforts on minors did not undermine its general applicability because

nothing in the record suggested they were equally harmful to minors).

102 U.S. Const. amend. xiv §1.

103 Shoemaker v. City of Lock Haven, 906 F.Supp. 230, 283 (M.D. Pa. 1995) (quoting Henry v.

Metro Sewer Dist., 922 F.2d 332, 341 (6th Cir. 1990)).

scrutiny.”104 And because one of those fundamental rights is the right of Free

Exercise, the equal protection and free exercise questions become “functionally

identical and it would be redundant to treat them separately.”105 Therefore, the Court

will deny the motion to dismiss RRFP’s Equal Protection claim for the same reasons

it denies the motion to dismiss RRFP’s Free Exercise Claim; RRFP plausibly alleges

the violation of a fundamental right.

III. CONCLUSION

Plaintiffs attend parochial schools as a form of religious exercise. Other

students attend homeschool and charter school for their own reasons. Under the Free

Exercise Clause, religious reasons for not attending public school must be

considered at least as important as any secular reason. Plaintiffs have adequately

alleged that SCASD’s failure to extend its exemption to students who do not attend

its school for religious reasons offends the Free Exercise Clause, as it denies a

government benefit on the basis of religious exercise through a law which is not

generally applicable. Accordingly, Defendants’ motion to dismiss pursuant to Rule

12(b)(6) is denied.

104 Artway v. Attorney Gen., 81 F.3d 1235, 1267 (citing City of Cleburne v. Cleburne Living Ctr.,

473 U.S. 432, 439 (1985)).

105 Trefelner, 655 F.Supp. 2d 581, 590 (W.D. Pa. 2009) (quoting Hill v. City of Scranton, 411 F.2d

118, 126 (3d Cir. 2005)).

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge