Gottesman

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

SETH GOTTESMAN, individually and:

as parent and next friend of

his minor child, T.G. :

v. : Civil Action No. DKC 25-1682

:

BOARD OF EDUCATION OF MONTGOMERY

COUNTY, MARYLAND, et al. :

MEMORANDUM OPINION

This case is brought by Seth Gottesman, individually and as

parent and next friend of his minor child, T.G., for alleged

violations of his parental rights and free exercise of religion.

Presently pending and ready for resolution are (1) the motion to

seal Exhibit 1-13 attached to the notice of removal filed by the

Board of Education of Montgomery County (“MCBE”), Montgomery

County Public Schools (“MCPS”), Thomas W. Taylor, Bradley Rohner,

and Yolanda Allen (collectively, “Defendants”), (ECF No. 6); (2)

the motion to seal Defendant’s opposition to the motion for

temporary restraining order (“TRO”) filed by Defendants, (ECF No.

9); (3) the motion to seal Exhibit 1 to Defendants’ Local Rule

103.5.a Compliance filed by Defendants, (ECF No. 16); and (4) the

motion to dismiss for failure to state a claim filed by Defendants,

(ECF No. 23). The issues have been briefed, and the court now

rules, no hearing being deemed necessary. Local Rule 105.6. For

the following reasons, the motions to seal will be granted in part

and denied in part. The motion to dismiss will be granted in part

as to the federal claims, and the remaining state administrative

and constitutional claims will be remanded.

I. Background

A. Factual Background1

Plaintiff Seth Gottesman is a resident of Montgomery County

who sent his son, T.G., to public school in the MCPS system. (ECF

No. 2 ¶ 2). He did so because MCPS provided a “generally high

level of education,” was “the least expensive alternative afforded

to him,” and provided the “benefits of attending a diverse,

community school.” (Id. ¶ 94). T.G. attended Damascus High School

(“DHS”) starting in 2021. (Id. ¶ 2). By the end of his senior

year, T.G. had completed all his academic requirements for

graduation except for one: the one-credit Health requirement. (Id.

¶¶ 2, 49). Mr. Gottesman’s unsuccessful efforts to exempt T.G.

from the Health requirement on religious grounds are the crux of

this case.

1. Health Requirement and Regulations

In Maryland, public high school students must complete a one-

credit Health education course, which consists of six units: (1)

Mental and Emotional Health; (2) Substance Abuse Prevention; (3)

1 The facts herein are either uncontroverted or set forth in

the complaint and construed in the light most favorable to

Plaintiff.

2

Family Life and Human Sexuality (“FLHS”); (4) Safety and Violence

Prevention; (5) Healthy Eating; and (6) Disease Prevention and

Control. (Id. ¶ 16 (citing COMAR 13A.04.18.01(C))). Maryland

public schools are required to “provide an instructional program

in comprehensive health education” that covers these units. (Id.

¶ 63 (citing COMAR 13A.04.18.01)). A Maryland regulation directs

that “[FLHS] instruction shall represent all students regardless

of ability, sexual orientation, gender identity, and gender

expression.” (Id. ¶ 64 (quoting COMAR 13A.04.18.01(D)(2)(a))).

The Maryland State Board of Education (“MSBE”) has issued a

Comprehensive Health Education Framework (“Health Framework”),

which includes instruction in the FLHS unit on “Gender Identity

and Expression” and “Sexual Orientation and Identity.” (Id. ¶

65). “[T]he Health Framework does not include similar objectives

relating to . . . LGBT-SOGI2 in any other part of the health

education curriculum.” (Id. ¶ 67). MCPS Health instructors teach

that “non-traditional sexuality, non-traditional family units, and

transgenderism are as natural and beneficial as heterosexuality,

2 Plaintiff uses the acronym “LGBT-SOGI,” which stands for

lesbian, gay, bisexual, transgender (“LGBT”), sexual orientation

and identity (“SO”), and/or gender identity or expression (“GI”).

(ECF No. 2 ¶ 15). A similar acronym, “LGBTQ+,” which stands for

lesbian, gay, bisexual, transgender, queer/questioning, and other

sexual orientations and gender identities, is used interchangeably

in this opinion.

3

traditional family structures, and acceptance of one’s biological

sex.” (Id. ¶ 17).

In recognition of parental and religious concerns regarding

FLHS content, Maryland’s public school system offers parents

notice of and opt-out from FLHS instruction. Specifically, all

Maryland public school systems are required to “provide an

opportunity for parents/guardians to view instructional materials

to be used in the teaching of [FLHS] objectives,” (Id. ¶ 64

(quoting COMAR 13A.04.18.01(D)(2)(e)(iv))), and “establish

policies, guidelines and/or procedures for student opt-out

regarding instruction related to [FLHS] objectives,” (Id. (quoting

COMAR 13A.04.18.01(D)(2)(e)(i))). MCPS promulgated Regulation

IGP-RA, which details its Comprehensive Health Education

Instructional Program. (Id. ¶ 68). It instructs that “FLHS

materials are not to be used in any other instructional program of

the school.” (Id. ¶ 69). It further provides that “parents will

be given notice of the curricular materials related to FLHS” and

“[w]here FLHS is taught, students may be excused from the unit of

study upon written request from their parent/guardian.” (Id. ¶

68).

Although the opt-out provision is not restricted to religious

reasons, MCPS has provided guidance regarding religious opt-outs

via its “Guidelines for Respecting Religious Diversity.” That

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document contains a section titled “Requests to Be Excused from

Instructional Programs for Religious Reasons.” Until the 2023–24

school year, this section read as follows:

When possible, schools should try to make

reasonable and feasible adjustments to the

instructional program to accommodate requests

from students, or requests from

parents/guardians on behalf of their students,

to be excused from specific classroom

discussions or activities that they believe

would impose a substantial burden on their

religious beliefs. . . .

Applying these principles, it may be feasible

to accommodate objections from students or

their parents/guardians to a particular

reading assignment on religious grounds by

providing an alternative selection that meets

the same lesson objectives. However, if such

requests become too frequent or too

burdensome, the school may refuse to

accommodate the requests. Schools are not

required to alter fundamentally the

educational program or create a separate

educational program or a separate course to

accommodate a student’s religious practice or

belief. For example, schools are not required

to excuse students from all music instruction

based on a religious concern, because music is

an integral part of Maryland’s arts

curriculum; however, schools may seek to

avoid, if possible, requiring a student with

a religious objection to play an instrument or

sing.

(Id. ¶ 73). Beginning with the 2023–24 school year, the Guidelines

were changed (and shortened) to the following:

Students may be excused from noncurricular

activities, such as classroom parties or free-

time events that involve materials or

practices in conflict with a family’s

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religious, and/or other, practices. However,

MCPS cannot accommodate requests for

exemptions from required curricular

instruction or the use of curricular

instructional materials based on religious,

and/or other, objections.

(Id. ¶ 75 (emphasis omitted)).

An MCPS student may also opt not to take the school-provided

Health course and instead satisfy the Health requirement through

one of two alternatives: (1) an independent study designed by the

student in cooperation with an MCPS staff member that covers the

MCPS Health objectives, or (2) completion of the “Personal and

Community Health” course at Montgomery College. (ECF No. 23-1, at

5 & n.1 (citing COMAR 13A.04.18.01(D)(2)(e); MCPS Regulation ISB-

RA; ECF No. 23-4, at 2)); id. at 7; see also ECF No. 2 ¶ 42).

2. Mr. Gottesman’s Religious Beliefs

Mr. Gottesman holds a sincere religious belief “in the divine

inspiration of the Holy Bible” and “understands his religion to

impress upon him, as a father, the primary duty . . . to provide

religious instruction to T.G. and to determine when to shield his

child from instruction that violates his religious teachings,

ethics, and principles.” (ECF No. 2 ¶ 88). Discussion of sexual

matters with his son is “at the[] core” of those responsibilities.

(Id.). Mr. Gottesman believes “that same-sex actions, including

same-sex marriage,” and “transgender actions, including taking

names and pronouns and wearing apparel inconsistent with the

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person’s biological sex, are not natural or normative, [and] that

they violate the biblical and religious doctrines to which he

adheres.” (Id. ¶¶ 89–90). Per Mr. Gottesman’s religious beliefs,

“humans attain their fullest God-given potential by acting

consistently with their biological sex.” (Id. ¶ 91).

Accordingly, Mr. Gottesman contends that “[i]nstruction that

gender transitioning is natural and appropriate” conflicts with

his religious beliefs regarding the immutability of human gender

and the “natural created order [of] human sexuality.” (Id. ¶ 92

(citing Genesis 1:27)). Because he understands the Bible to

“teach[] that cooperating with the sin of others is itself a sin,

Mr. Gottesman believes he has a religious duty to stand up to evil

and to reject all sinful behavior.” (Id. ¶ 93). Without an opt-

out from instruction that conflicts with his faith, Mr. Gottesman

feels he would be forced to choose between free public education

or sin. (Id.).

3. Objectionable Content

Sometime “[i]n early 2022, [Mr. Gottesman] became aware of

revelations of internal MCPS documents” that “were distributed in

the community.” (Id. ¶ 18). These documents included “a viewgraph

used by MCPS with its teachers that indicated that MCPS was not

restricting LGBT-SOGI instruction to the FLHS unit, but directing

its teachers to spread those topics throughout the course,

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subverting the opt-out rights of parents like [Mr. Gottesman].”

(Id.). In a brief that the MCBE submitted to the MSBE in March

2024, MCBE explained that a “request to confine LGBTQ+ instruction

solely to the FLHS portion of the curriculum constitutes a demand

for curriculum alteration, as LGBTQ+ topics are integrated

throughout the entirety of the health course, not confined solely

to one segment.” (Id. ¶ 57 (emphasis omitted) (quoting MCBE Reply

Brief at 2, T.J. & D.J. v. Montgomery Cnty. Bd. of Educ., MSBE

Opinion No. 24-10 (2024))). The MSBE subsequently agreed that

“incorporation of LGBTQ+ resources throughout the entire health

classroom fulfill[ed]” MCPS’s obligations. (Id. ¶ 58 (emphasis

omitted) (quoting T.J. & D.J., MSBE Opinion No. 24-10)). Mr.

Gottesman thus believed that “MCPS ha[d] intentionally spread

LGBT-SOGI teaching throughout the Health course,” rendering the

opt-out from the FLHS unit “meaningless.” (Id. ¶ 59).

4. Administrative Process

Concerned that FLHS instruction pervaded the DHS Health

course his son would take, Mr. Gottesman “requested multiple times

[beginning March 31, 2022,] to review the Health curriculum that

MCPS was to teach to high school students.” (Id. ¶ 25). T.G. was

in ninth grade at the time. (Id.). MCPS told Mr. Gottesman to

file his request under the Maryland Public Information Act

(“MPIA”). (Id.). Mr. Gottesman filed the MPIA request on April

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11, 2022, and continued communicating with MCPS regarding review

of the Health curricular materials. (Id. ¶ 26). MCPS replied to

Mr. Gottesman’s MPIA request on April 26, 2022, but did not

“provide the full curriculum as requested.” (Id. ¶ 27). Instead,

MCPS informed him that his request was “too broad,” the fee to

fulfill the request would be between ‘$250 to $5,000,’” and the

fee would not be waived. (Id.). The quoted fee was “beyond the

means” of Mr. Gottesman. (Id.). He did not further pursue that

MPIA request. (See id.).

On February 4, 2023, when T.G. was in tenth grade, Mr.

Gottesman submitted an administrative complaint, formally titled

a Complaint from the Public (“CFP”), “to DHS in which he sought a

religious exemption for T.G. from the Health course requirement.”

(Id. ¶ 29). MCPS and Maryland regulations establish a review

process for CFPs. (Id. ¶ 30).3 First, the complainant should seek

to address his concern with the school. (Id.). The school is

3 An older version of MCPS Regulation KLA-RA was in effect in

February 2023 when Mr. Gottesman filed his CFP. See MCPS

Regulation KLA-RA (2018), https://web.archive.org/web/

20220308080008/https://ww2.montgomeryschoolsmd.org/departments/p

olicy/pdf/klara.pdf [https://perma.cc/37EB-DSA4]. MCPS made

several substantive changes to Regulation KLA-RA in October 2023

and non-substantive changes in March 2024, which are reflected in

the current version. See MCPS Regulation KLA-RA (2024),

https://ww2.montgomeryschoolsmd.org/departments/policy/pdf/klara

.pdf [https://perma.cc/W9TC-LYUN]. Because the older process was

in effect during the initial review, that is the process described

here.

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supposed to make a determination within ten workdays of receipt of

the CFP. (See id. ¶ 31). Second, if the complainant does not

hear from the school within the time required or is dissatisfied

with the school’s response to his concern, the complainant may

request that the MCPS Chief Operating Officer (“COO”) or a designee

review his CFP and make a determination addressing the concerns

raised in the complaint. (Id. ¶ 30); MCPS Regulation KLA-RA §

IV.B.2 (2018), https://web.archive.org/web/20220308080008/

https://ww2.montgomeryschoolsmd.org/departments/policy/pdf/klara

.pdf [https://perma.cc/37EB-DSA4]. The COO review process is

supposed to take no more than twenty workdays, subject to a limited

extension. See MCPS Regulation KLA-RA § IV.B.2.a.5, .7 (2018).

Third, if the COO fails to act within sixty days, or if the

complainant disagrees with the COO’s decision, he may appeal to

the MCBE. Id. § IV.B.2.a.7, .b.1; (ECF No. 2 ¶ 30). Fourth, the

complainant may appeal the MCBE’s decision to the MSBE. (ECF No.

2 ¶ 30); see COMAR 13A.01.05.02. Fifth, and finally, the

Montgomery County complainant may file a petition for judicial

review of the MSBE’s decision in the Circuit Court for Montgomery

County. (ECF No. 2 ¶ 30); see COMAR 13A.01.05.11(A).

Mr. Gottesman alleges that DHS failed to review his CFP and

instead it was reviewed first by a COO designee. (ECF No. 2 ¶¶

31–34). Eugenia Dawson, MCPS Director of School Support and Well-

10

Being, reached out to Mr. Gottesman regarding his CFP and met with

him virtually on March 21, 2023, to discuss his opt-out request.

(Id. ¶¶ 33-34). After not hearing anything further regarding his

CFP, (Id. ¶ 35), Mr. Gottesman contacted Ms. Dawson on April 10,

2023, to “communicate his interpretation and understanding that in

light of MCPS’ failure to decide his CFP, . . . his religious

exemption had been effectively approved,” (Id. ¶ 36). Mr.

Gottesman received no response to this communication. (Id. ¶ 37).

For the next seventeen months, Mr. Gottesman believed that “the

religious exemption to the Health course had been conceded by

MCPS.” (Id. ¶ 38).

On September 10, 2024, however, MCPS notified Mr. Gottesman

that it had denied the religious exemption. (Id. ¶ 39). At the

time, T.G. was beginning his senior year of high school. Between

September 10 and October 22, 2024, Mr. Gottesman corresponded with

various MCPS and DHS officials, including the DHS Principal,

Bradley Rohner, to argue that they had violated the CFP process

and “could not at this late stage deny the religious exemption.”

(Id. ¶¶ 40–41). MCPS Director of Office of School Support and

Improvement Dr. Yolanda Allen (presumably Ms. Dawson’s successor)

responded to Mr. Gottesman on October 22, 2024, to “re-stat[e] the

Health course requirement for [T.G.], suggest[] alternatives to

the Health course” (namely, the independent study and Montgomery

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College options), and “advis[e] him of his . . . right to appeal

the denial of the religious exemption.” (Id. ¶ 42; ECF No. 23-4,

at 2). Mr. Gottesman believed that the suggested alternatives

were “objectionable,” the Montgomery College option was “too late

to implement,” and his right to appeal had expired. (ECF Nos. 2

¶ 42; 23-4, at 2). Indeed, Dr. Allen indicated that “[a]lthough

the deadline for Semester 1 [of the Montgomery College course]

ha[d] passed, this could be a viable option for Semester 2.” (ECF

No. 23-4, at 2). On December 13, 2024, Mr. Gottesman appealed the

decision to deny his religious exemption to the MCBE. (ECF No. 2

¶ 43). He has not received any acknowledgement of or response to

his appeal. (Id. ¶ 44).

DHS Principal Mr. Rohner informed Mr. Gottesman on February

18, 2025, that T.G. had not earned his Health credit, which was

required for graduation. (Id. ¶ 45). Mr. Gottesman responded to

reiterate his belief that MCPS had violated the CFP process, inform

Mr. Rohner that MCBE had not responded to his appeal, and convey

his expectation that T.G. would graduate on time with his

classmates. (Id. ¶ 46). Mr. Rohner replied to reaffirm that T.G.

could not graduate without having earned the required Health

credit. (Id. ¶ 47).

On April 24, 2025, DHS denied Mr. Gottesman’s request that

“T.G. be allowed to participate in graduation exercises.” (Id. ¶

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48). As of the time the complaint was filed, T.G.’s failure to

satisfy the Health requirement and lack of a religious exemption

therefrom would result in T.G.’s inability to participate in

graduation exercises on May 30, 2025, and receive a high school

diploma. (Id. ¶ 49).

B. Procedural Background

Mr. Gottesman filed suit individually and on behalf of his

minor son in the Circuit Court for Montgomery County, Maryland, on

May 14, 2025. (ECF No. 2, at 1). He named as defendants the MCBE,

MCPS, MCPS Superintendent Thomas W. Taylor, DHS Principal Mr.

Rohner, and MCPS Director of the Office of School Support and

Improvement Dr. Allen. (Id.). In his verified complaint, Mr.

Gottesman asserts twelve counts. At the core of the complaint are

the five counts he brings under 42 U.S.C. § 1983. Three of those

§ 1983 claims are premised on violations of the First Amendment’s

Free Exercise Clause for denial of the opt-out (Count VII),

discrimination against religion through a system of individualized

exemptions (Count IX), and official animus against religion (Count

XI). He bases another § 1983 claim on Defendants’ alleged

violation of his Fourteenth Amendment substantive due process

right to direct the upbringing of his child (Count IV), and yet

another on Defendants’ alleged failure to comply with the

Protection of Pupil Rights Amendment (“PPRA”), 20 U.S.C. § 1232h

13

(Count VI). In tandem with four of the § 1983 constitutional

claims, Mr. Gottesman brings analogous claims under the Maryland

Declaration of Rights for violations of his religious freedom

(Counts VIII, X, and XII), and parental rights (Count V). Finally,

he asserts three claims under the Maryland Administrative

Procedure Act (“Maryland APA”), Md. Code Ann., State Gov’t §§ 10-

101 to 10-305 (West), for violations of COMAR 13A.04.18.01 and

MCPS Regulation IGP-RA (Count I), MCPS Guidelines for Respecting

Religious Diversity (Count II), and MCPS Regulation KLA-RA (Count

III).

On May 23, 2025, just one week before his son’s high school

graduation, Mr. Gottesman filed a motion for a TRO requesting that

his son be permitted to participate in DHS graduation exercises,

graduate without penalty, and receive his diploma. (ECF No. 1-

13). He attached twenty-two exhibits to the TRO motion.

Defendants removed the case to this court on May 27 on the

basis of federal question jurisdiction over the § 1983 claims and

supplemental jurisdiction over the state claims. (ECF No. 1).4

Defendants filed a response in opposition to the TRO motion under

seal on May 28, (ECF No. 8), along with an accompanying motion to

4 Defendants’ Notice of Removal incorrectly cites to 28 U.S.C.

§ 1441(c) as the source of this jurisdiction. (ECF No. 1 ¶ 5).

That error is not fatal in this instance. See Pet Quarters, Inc.

v. Depository Tr. & Clearing Corp., 559 F.3d 772, 778-79 (8th Cir.

2009).

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seal, (ECF No. 9). Additionally, Defendants filed motions to seal

the exhibit attached to their notice of removal containing the TRO

motion and its attached exhibits, (ECF No. 6), as well as the

exhibit attached to their Local Rule 103.5.a Compliance filing

that contains the record of the state proceedings, (ECF No. 16).

Mr. Gottesman did not oppose any of the motions to seal.

The court held a hearing on the TRO motion on May 29. (ECF

No. 11). At the hearing, counsel for Mr. Gottesman narrowed the

scope of relief sought to only the request that Mr. Gottesman’s

son be allowed to participate in DHS graduation exercises the

following day. (ECF No. 20, at 10). Because Mr. Gottesman was

requesting a mandatory rather than prohibitory injunction, the

court noted that he must show a particularly high likelihood of

success on the merits. (Id. at 91). On the record at the time,

Mr. Gottesman had failed to satisfy that burden on any of the

twelve counts. (Id. at 92–95). Accordingly, the court denied the

TRO motion. (ECF No. 12).

Given the denial of Mr. Gottesman’s requests for temporary

injunctive relief, the remaining requests for relief in the

complaint are: (1) permanent injunctive relief to allow T.G. to

graduate and receive his high school diploma; (2) a series of

declarations related to the Health requirement, advance notice of

15

Health curricular materials, and the opt-out system; (3) damages;

and (4) attorney’s fees and costs. (ECF No. 2, at 48–50).

Defendants filed their motion to dismiss Mr. Gottesman’s

complaint for failure to state a claim on June 6. (ECF No. 23).

They filed a supplement on July 15 to discuss the intervening

decision of the Supreme Court of the United States in Mahmoud v.

Taylor, 606 U.S. 522 (2025), another case arising out of Montgomery

County that involved opt-outs regarding instructional materials

containing LGBTQ+ content offensive to parents’ sincerely held

religious beliefs. (ECF No. 26). After several extensions, Mr.

Gottesman responded to both the motion to dismiss and supplement

on August 25. (ECF No. 31). Defendants replied on September 15.

(ECF No. 32).

II. Motions to Seal

When considering motions to seal, courts in this circuit must

balance the individual’s privacy interest with the “qualified

right of access to judicial documents and records filed in civil

and criminal proceedings” of the press and the general public.

Doe v. Pub. Citizen, 749 F.3d 246, 265 (4th Cir. 2014); see also

Rock v. McHugh, 819 F.Supp.2d 456, 475 (D.Md. 2011) (noting that

certain sensitive personal information may be sealed). As the

Public Citizen court explained:

When presented with a motion to seal, the law

in this Circuit requires a judicial officer to

16

comply with the following procedural

requirements: (1) provide public notice of the

sealing request and a reasonable opportunity

for the public to voice objections to the

motion; (2) consider less drastic alternatives

to closure; and (3) if it determines that full

access is not necessary, it must state its

reasons—with specific findings—supporting

closure and its rejections of less drastic

alternatives.

Id. at 272 (citing In re Knight Publ’g Co., 743 F.2d 231, 234–35

(4th Cir. 1984)). Likewise, Local Rule 105.11 requires the party

seeking sealing to provide “(a) proposed reasons supported by

specific factual representations to justify the sealing and (2) an

explanation why alternatives to sealing would not provide

sufficient protection.”

Defendants have filed three motions to seal. Two of the

motions seek to seal Plaintiff’s TRO motion and its exhibits, which

were attached to Defendants’ notice of removal at ECF No. 1-13 and

filed in compliance with Local Rule 103.5.a at ECF No. 18. (ECF

Nos. 6, 16). Specifically, Defendants note that Exhibits 6, 9,

11, 12, 13, 15, 16, 17, 18, and 19 to the TRO motion “possess

confidential personally identifying information” (“PII”) of

Plaintiff’s minor son. (ECF Nos. 6 ¶¶ 2, 3; 16 ¶¶ 2, 3). The

other motion seeks to seal Defendants’ response in opposition at

ECF No. 8 to Plaintiff’s TRO motion, including the exhibits

attached to the opposition, because it “cites to the confidential

information and documents contained in . . . Plaintiff’s exhibits,”

17

and “their own exhibits . . . contain personally identifying and

confidential information.” (ECF No. 9 ¶ 5). Plaintiff did not

oppose any of the motions.

The less drastic alternative of redaction is appropriate with

respect to all three motions. On the one hand, there is no

prevailing public interest in accessing the PII of a minor. Heward

v. Bd. of Educ., No. 23-cv-195-ELH, 2023 WL 6067072, at *3 (D.Md.

Sep. 15, 2023) (“[C]ourts have found a compelling government

interest in sealing personal information, especially when relating

to minors.” (collecting cases)); Fed.R.Civ.P. 5.2(a)(3) (“[I]n an

electronic or paper filing with the court that contains . . . the

name of an individual known to be a minor, . . . a party or nonparty

making the filing may include only the minor’s initials[.]”). On

the other hand, Defendants themselves note in the three motions

that “Plaintiff filed these documents with redactions” in state

court, (ECF Nos. 6 ¶ 2; 9 ¶ 2; 16 ¶ 2), and they offer no reason

why redaction is insufficient to protect the PII at issue. Rather

than seal the documents filed at ECF Nos. 1-13 and 18, the court

will direct Defendants to file redacted versions of those documents

that protect the PII of Plaintiff’s son. As for Defendants’

opposition brief, it embeds several of the same exhibits containing

PII from Plaintiff’s TRO motion and thus should be redacted to

protect that information, rather than sealed. Finally, Defendants

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attach eight exhibits to their opposition, but only Exhibits C, E,

G, and H appear to contain PII. (ECF Nos. 8-5; 8-7; 8-9; 8-10).

Those exhibits should be redacted in the same fashion as the

previous documents discussed, and the other exhibits should be

neither sealed nor redacted.

III. Motion to Dismiss

Defendants’ motion to dismiss all twelve counts of

Plaintiff’s complaint is largely meritorious. Plaintiff’s five

federal claims are deficient both factually and legally. Without

those federal claims, the court will decline to exercise

supplemental jurisdiction over Plaintiff’s seven state claims.

The novel and complex issues of state law implicated in those state

law claims further counsel against the exercise of supplemental

jurisdiction. Therefore, Plaintiff’s federal claims will be

dismissed and his state claims will be remanded to state court.

A. Standard of Review

A motion to dismiss under Fed.R.Civ.P. 12(b)(6) tests the

sufficiency of the complaint. Presley v. City of Charlottesville,

464 F.3d 480, 483 (4th Cir. 2006). The court “must accept the

complaint’s factual allegations as true and construe the facts in

the light most favorable to the plaintiff.” Barnett v. Inova

Health Care Servs., 125 F.4th 465, 469 (4th Cir. 2025) (citing

Barbour v. Garland, 105 F.4th 579, 589 (4th Cir. 2024)). A

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plaintiff’s complaint must only satisfy the standard of Rule

8(a)(2), which requires a “short and plain statement of the claim

showing that the pleader is entitled to relief.” “[W]here the

well-pleaded facts do not permit the court to infer more than the

mere possibility of misconduct, the complaint has alleged—but it

has not ‘show[n]’—that the pleader is entitled to relief.’”

Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (quoting Fed.R.Civ.P.

8(a)(2)). A Rule 8(a)(2) “showing” requires “stat[ing] a claim to

relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007). “A claim has facial plausibility when

the plaintiff pleads factual content that allows the court to draw

the reasonable inference that defendant is liable for the

misconduct alleged.” Mays v. Sprinkle, 992 F.3d 295, 299–300 (4th

Cir. 2021) (quoting Iqbal, 556 U.S. at 678).

B. Threshold Matters

1. Exhibits

The court must determine which extrinsic documents may be

considered on a motion to dismiss. “As a general rule, the court

does not consider extrinsic evidence at the motion to dismiss

stage[.]” Faulkenberry v. U.S. Dep’t of Def., 670 F.Supp.3d 234,

249 (D.Md. 2023) (quoting Reamer v. State Auto. Mut. Ins. Co., 556

F.Supp.3d 544, 549 (D.Md. 2021), aff’d, No. 21-2432, 2022 WL

17985700 (4th Cir. Dec. 29, 2022)). “However, ‘the court may

20

consider, without converting the motion to dismiss into one for

summary judgment, documents attached to the complaint as exhibits,

and documents attached to a motion to dismiss if the document is

integral to the complaint and there is no dispute about the

document’s authenticity.’” Id. (quoting Reamer, 556 F.Supp.3d at

549). “[F]or an extrinsic document to be integral to a complaint

the document must either give rise to a claim or be the basis of

an element of a claim.” Defs. of Wildlife v. Boyles, 608 F.Supp.3d

336, 345 (D.S.C. 2022); see also Goines v. Valley Cmty. Servs.

Bd., 822 F.3d 159, 166 (4th Cir. 2016).

Defendants attach four exhibits to their motion to dismiss.

Exhibits 2–4 are copies of opinions by the MSBE and Circuit Court

for Montgomery County, (ECF Nos. 23-5; 23-6; 23-7), so they are

public records of which the court may take judicial notice. See

Walker v. Kelly, 589 F.3d 127, 139 (4th Cir. 2009) (“[A] federal

court may consider matters of public record such as documents from

prior state court proceedings in conjunction with a Rule 12(b)(6)

motion.” (citing Henson v. CSC Credit Servs., 29 F.3d 280, 284 (7th

Cir. 1994))). Exhibit 1 is the October 22, 2024, email from Dr.

Allen to Plaintiff explaining that T.G. had not completed his

Health requirement and suggesting the independent study and

Montgomery College alternatives. (ECF No. 23-4). Defendants argue

that the email is authentic, integral to and relied on in the

21

complaint, and a public record.5 (ECF No. 23-1, at 10). In his

opposition, Plaintiff does not challenge the authenticity of the

email or otherwise argue against the court’s consideration of it.

(See generally ECF No. 31). The court will consider the email to

be authentic. Moreover, the email is relied on in the complaint,

(ECF No. 2 ¶ 42), and integral to the complaint because it forms

part of the asserted burden on Plaintiff’s free exercise of

religion. Therefore, the court will consider the email in Exhibit

1 without converting Defendants’ motion into one for summary

judgment.

2. MCPS Is Not a Suable Entity

Defendants first seek to dismiss MCPS as a defendant because

it “is not a distinct legal entity empowered to sue or be sued.”

(ECF No. 23-1, at 10 (citing Miller v. Montgomery Cnty. Pub. Schs.,

No. 19-cv-3067-TJS, 2020 WL 2097686, at *1 (D.Md. May 1, 2020))).

Instead, MCPS “is simply the operational name for the school system

administered by the . . . MCBE.” (ECF No. 32, at 12). Defendants

contend that Maryland law authorizes only the county school board,

MCBE, rather than the county school system, to be sued. (Id.

(citing Md. Code Ann., Educ. § 3-104(b) (West))). Plaintiff

5 Defendants do not explain how the email constitutes a public

record. Because the email is appropriate to consider on separate

grounds, it is unnecessary to decide whether the email is a public

record.

22

argues, however, that the then-Maryland Court of Appeals recently

decided a case in which the named defendant was MCPS and the court

“consistently referred to it as such.” (ECF No. 31, at 7–8 (citing

Donlon v. Montgomery Cnty. Pub. Schs., 460 Md. 62 (2018))).

Defendants are correct that MCPS cannot be sued. As this

court recently explained, it is well established that “MCPS is not

a distinct legal entity empowered to sue or be sued. Under

Maryland law, the board of education for each county school system

. . . is the entity which is empowered to sue and be sued.” Jones-

McDaniel v. Bd. of Educ., No. 24-cv-3075-DKC, 2025 WL 2494345, at

*4 (D.Md. Aug. 29, 2025) (quoting Miller, 2020 WL 2097686, at *1).

The question of whether MCPS could be sued was not before the

Maryland Court of Appeals in Donlon, which instead consistently

referred to MCPS as the “county school board” and the “county board

of education.” See, e.g., Donlon, 460 Md. at 75 (“The questions

for which we granted Donlon’s petition focus on whether county

boards of education are units of the State Executive branch.”

(emphasis added)). The intermediate appellate court below had

simply clarified that “[t]he legal name for [MCPS] is ‘the Board

of Education of Montgomery County.’” Montgomery Cnty. Pub. Schs.

V. Donlon, 233 Md.App. 646, 650 n.3 (2017) (quoting Md. Code Ann.,

Educ. § 3-104 (West)). In other words, at no point did any court

in the Donlon litigation conceive of the MCPS and MCBE as two

23

distinct entities capable of being sued separately. MCPS will be

dismissed as a defendant.

3. Defendants’ Group-Pleading Argument Fails

Defendants request dismissal of all claims with prejudice for

lack of fair notice because Plaintiff “repeatedly groups [them]

together and often collectively refers to them as the ‘defendants’

without attributing any particular act to a specific defendant

that would support a cause of action.” (ECF No. 23-1, at 12

(collecting citations)). It is true that “[a] plaintiff does not

satisfy [Fed.R.Civ.P.] 8 when the complaint ‘lump[s] all the

defendants together and fail[s] to distinguish their conduct

because such allegations fail to give adequate notice to the

defendants as to what they did wrong.’” Classen Immunotherapies,

Inc. v. Biogen IDEC, 381 F.Supp.2d 452, 455 (D.Md. 2005) (third

and fourth alterations in original) (quoting Appalachian Enters.,

Inc. v. ePayment Sols. Ltd., No. 01-cv-11502, 2004 WL 2813121, at

*7 (S.D.N.Y. Dec. 8, 2004)). But that is not what Plaintiff does

here. Instead, Plaintiff specifically notes in his statement of

the facts that Mr. Rohner denied his opt-out request, (ECF No. 2

¶¶ 41, 45, 47–48), Dr. Allen denied his opt-out request, (Id. ¶

42), Mr. Taylor was “responsible for implementing and enforcing

policies, rules, and regulations adopted by MCBE,” (Id. ¶ 7), and

all three were acting on behalf of the MCBE, (Id. ¶¶ 7–9).

24

Plaintiff incorporates these allegations into each count. (Id. ¶¶

112, 116, 120, 124, 133, 145, 150, 156, 163, 168, 172, 176). He

sufficiently distinguishes the conduct of each defendant to

provide fair notice under Rule 8. Whether his allegations against

each defendant are sufficient to state a claim under Rule 8 is, of

course, a separate question.

C. Federal Claims

1. Section 1983 “Persons” and Immunity

Plaintiff brings five counts under 42 U.S.C. § 1983. He

asserts each count against the MCBE, along with Mr. Taylor, Dr.

Allen, and Mr. Rohner (collectively, “Individual Defendants”) in

their individual and official capacities. In each count, he seeks

damages and prospective injunctive relief. Due to the intricacies

of § 1983 law, only some of these claims for relief survive.

To begin, a “person” is the only proper defendant to a § 1983

claim. The Supreme Court has long held that a state entity is not

a “person” for the purposes of § 1983. Will v. Mich. Dep’t of

State Police, 491 U.S. 58, 71 (1989); Biggs v. N.C. Dep’t of Pub.

Safety, 953 F.3d 236, 242 (4th Cir. 2020). It is likewise well

established that the MCBE is a state entity. McNulty v. Bd. of

Educ., No. 03-cv-2520-DKC, 2004 WL 1554401, at *4 (“This court has

made clear, consistently and repeatedly, that the county boards of

education of Maryland are state agencies[.]” (collecting cases)).

25

So, as Defendants point out, the MCBE is not a “person” and thus

not subject to suit in law or equity under § 1983. (ECF No. 23-

1, at 13–14).

Plaintiff’s counterargument is unavailing. He notes that

Maryland has waived the sovereign immunity of county boards of

education on any claim for damages of $400,000 or less in Md. Code

Ann., Cts. & Jud. Proc. § 5-518(c) (West). (ECF No. 31, at 5).

The then-Maryland Court of Appeals held that this waiver applies

to Eleventh Amendment immunity in federal court, too. Bd. of Educ.

v. Zimmer-Rubert, 409 Md. 200, 216 (2009). And as the United

States Court of Appeals for the Fourth Circuit has instructed, a

federal court must defer to a state high court’s decision regarding

whether a particular state law waives Eleventh Amendment immunity.

Lee-Thomas v. Prince George’s Cnty. Pub. Schs., 666 F.3d 244, 251

(4th Cir. 2012). But the scope of § 1983 and that of Eleventh

Amendment immunity are “separate issues.” Will, 491 U.S. at 66.

Although the Supreme Court in Will looked to the Eleventh Amendment

as context for the meaning of “person” that Congress intended in

§ 1983, it did not inextricably link the two such that a state

entity could waive itself into the statute. Id. at 66–67. The

statutory term simply excludes state entities and does not create

liability for them. This conclusion may “make[] little sense” to

Plaintiff, (ECF No. 31, at 6), but it is the conclusion that

26

binding precedent commands.6 Accordingly, the § 1983 claims

against the MCBE will be dismissed with prejudice.

Dismissing the § 1983 claims against the MCBE leaves those

asserted against Individual Defendants in their individual and

official capacities. As employees of the MCBE, Individual

Defendants are state officials. Under § 1983, a plaintiff may sue

a state official for damages in his individual capacity but not

his official capacity. Hafer v. Melo, 502 U.S. 21, 27 (1991)

(“State officers sued for damages in their official capacity are

not ‘persons’ for purposes of the suit because they assume the

identity of the government that employs them. By contrast,

officers sued in their personal capacity come to court as

individuals.” (citing Will, 491 U.S. at 71)). Moreover, a

plaintiff may sue a state official for prospective injunctive

6 Plaintiff makes various other arguments that do not change

this conclusion. He represents that the Fourth Circuit in Lee-

Thomas “treated the Board as a proper defendant under § 1983 up to

the [statutory damages] cap.” (ECF No. 31, at 6). Lee-Thomas,

however, involved an Americans with Disabilities Act claim to which

§ 1983 personhood was entirely irrelevant. See 666 F.3d at 247.

He also presents a policy argument for accountability, (ECF No.

31, at 6), but such an argument cannot override a binding decision

of statutory interpretation. Finally, he contends that Maryland

cannot escape its waiver via removal to federal court. (Id.).

That is true. Biggs, 953 F.3d at 241 (“In this circuit, a state’s

removal of a suit to federal court waives sovereign immunity only

if the state has consented to suit in its own courts.” (citing

Stewart v. North Carolina, 393 F.3d 484, 490 (4th Cir. 2005))).

The waiver, however, remains irrelevant to the statutory

definition of “person” in § 1983.

27

relief in his official capacity but generally not his individual

capacity. Will, 491 U.S. at 71 n.10 (“Of course a state official

in his or her official capacity, when sued for injunctive relief,

would be a person under § 1983 because ‘official-capacity actions

for prospective relief are not treated as actions against the

State.’” (citation modified)); Cmty. Mental Health Servs. of

Belmont v. Mental Health & Recovery Bd., 150 F.App’x 389, 401 (6th

Cir. 2005) (“[A] plaintiff should not be able to sue a defendant

in his individual capacity for an injunction in situations in which

the injunction relates only to the official’s job, i.e., his

official capacity.”). Putting those pieces together, Plaintiff

may sue Individual Defendants in their individual capacity for

damages and their official capacity for prospective injunctive

relief.

The individual capacity claims are properly asserted against

Dr. Allen and Mr. Rohner, but not Mr. Taylor. In a § 1983 suit

against a defendant in his individual capacity, “vicarious

liability is inapplicable” and the “plaintiff must plead that each

Government-official defendant, through the official’s own

individual actions, has violated the Constitution” or federal law.

Iqbal, 556 U.S. at 676 (emphasis added). A plaintiff can plead

supervisory liability only if he pleads that (1) the supervisor

knew his subordinate’s conduct “posed ‘a pervasive and

28

unreasonable risk’ of constitutional injury to citizens like the

plaintiff”; (2) the supervisor’s response “was so inadequate as to

show ‘deliberate indifference to or tacit authorization of the

alleged offensive practices’”; and (3) the supervisor’s inaction

caused the particular constitutional injury. Wilkins v.

Montgomery, 751 F.3d 214, 226 (4th Cir. 2014) (quoting Shaw v.

Stroud, 13 F.3d 791, 799 (4th Cir. 1994)). Defendants do not

challenge Plaintiff’s allegations of personal involvement as to

Dr. Allen and Mr. Rohner, but they do contend that Plaintiff “fails

to identify any personal involvement by Taylor in the purportedly

unlawful actions which took place against him.” (ECF No. 23-1, at

11). Plaintiff responds that Mr. “Taylor’s involvement [was] in

adopting the positions of the prior MCPS Superintendent, which

Plaintiff’s Complaint alleges gave rise to his claims for relief

and damages.” (ECF No. 31, at 7). Defendants are correct.

Plaintiff alleges no particular action that Mr. Taylor took in

violation of his federal rights and only generally avers that Mr.

Taylor “was responsible for implementing and enforcing policies,

rules, and regulations adopted by MCBE.” (ECF No. 2 ¶ 7). All

his allegations pertain to actions taken by state officials below

Mr. Taylor; they do not demonstrate Mr. Taylor’s personal

involvement, nor can they satisfy the stringent requirements of

supervisory liability. Accordingly, Plaintiff’s individual-

29

capacity claims against Mr. Taylor constitute an impermissible

end-run around § 1983’s bar on vicarious liability and must be

dismissed.

The official-capacity claims are proper against all three

individual defendants even without Mr. Taylor’s personal

involvement. For an official-capacity suit under § 1983 to be

proper, there must be “‘a special relation between the officer

being sued and the challenged’ government action.” King v.

Youngkin, 122 F.4th 539, 548 (4th Cir. 2024) (quoting McBurney v.

Cuccinelli, 616 F.3d 393, 399 (4th Cir. 2010)). “A ‘special

relation’ requires both ‘proximity to and responsibility for the

challenged state action.’” Id. (quoting McBurney, 616 F.3d at

399). At no point do Defendants contend that any one of them is

not responsible for enforcing state and county education

requirements and regulations. Regulation KLA-RA explicitly

provides each of the individual defendants with decision-making

authority over complaints regarding the application of laws, MCBE

policies, and MCPS regulations and rules, including those

regarding opt-outs. MCPS Regulation KLA-RA §§ I, IV.B (Principal),

IV.C (OCOS or designee), IV.D (Superintendent). Accordingly, all

three individual defendants are properly sued in their official

capacity for prospective injunctive relief.

30

Defendants argue, however, that such official-capacity claims

against Mr. Taylor must be dismissed because they are

“essentially[] an action against the municipal government,” (ECF

No. 23-1, at 11–12 (quoting Felder v. Leggett, No. 16-cv-3469-ELH,

2017 WL 1491463, at *5 (D.Md. Apr. 26, 2017))), and thus when the

municipality is also a defendant on identical claims, “the claims

against the municipal official are redundant,” (Id. at 12 (quoting

Corral v. Montgomery County, 4 F.Supp.3d 739, 748 (D.Md. 2014))).

Plaintiff does not respond to this contention. Defendants’

argument rests on a mistaken premise. For purposes of § 1983

claims, Mr. Taylor is a state official, not a municipal official.

McNulty, 2004 WL 1554401, at *4. While it is true that an official-

capacity claim against a municipal official is essentially one

against the municipality and thus redundant if an identical claim

is asserted against the municipality, that statement cannot be

true if the defendant is a state official. That is so because

states, unlike municipalities, are not “persons” under § 1983.

See Will, 491 U.S. at 70; Monell v. Dep’t of Soc. Servs., 436 U.S.

658, 690 (1978). Official-capacity “suits [for prospective

injunctive relief] against state officials who violate federal law

are not suits against the state.” Biggs, 953 F.3d at 242 (emphasis

added) (citing Bland v. Roberts, 730 F.3d 368, 390 (4th Cir. 2013)).

Therefore, such suits are not essentially against the state and

31

cannot be redundant of a claim against the state. Mr. Taylor is

subject to suit in his official capacity.

The final § 1983 issue to discuss is the defense of qualified

immunity that Individual Defendants raise.7 (ECF No. 23-1, at 31–

35). Qualified immunity to suit under § 1983 exists to “protect[]

government officials ‘from liability for civil damages insofar as

their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The “driving

force” behind the creation of this doctrine “was a desire to ensure

that ‘insubstantial claims against government officials [will] be

resolved prior to discovery.’” Id. at 231–32 (quoting Anderson v.

Creighton, 483 U.S. 635, 640 n.2 (1987)). It entails a two-step

inquiry, to be performed in either order: (1) “whether the facts

that a plaintiff has alleged . . . make out a violation of a

constitutional right,” and (2) “whether the right at issue was

‘clearly established’ at the time of [the] defendant’s alleged

misconduct.” Id. at 232, 236 (quoting and citing Saucier v. Katz,

7 Defendants clarify in their reply that they do not also

assert failure to exhaust state administrative remedies as a

defense to the § 1983 counts. (ECF No. 32, at 9). In any event,

the Supreme Court has directly foreclosed such a defense. Patsy

v. Bd. of Regents, 457 U.S. 496, 516 (1982) (“[E]xhaustion of state

administrative remedies should not be required as a prerequisite

to bringing an action pursuant to § 1983.”).

32

533 U.S. 194, 201 (2001)); see also Atkinson v. Godfrey, 100 F.4th

498, 504 (4th Cir. 2024). Importantly, however, the qualified

immunity “defense is not available[] . . . [in] § 1983 cases

against individuals where injunctive relief is sought instead of

or in addition to damages.” Id. at 242 (citing County of

Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998)). Qualified

immunity likewise does not apply to claims for declaratory relief.

Lefemine v. Wideman, 672 F.3d 292, 303 (4th Cir. 2012) (citation

modified), rev’d on other grounds, 568 U.S. 1 (2012). Because

Plaintiff seeks injunctive and declaratory relief on each of his

five § 1983 counts, in addition to damages, the utility of the

qualified immunity inquiry is significantly diminished. Moreover,

the failure of Plaintiff’s § 1983 claims as pleaded obviates the

need for a qualified immunity defense.

To recap, Plaintiff properly asserts the five § 1983 counts

against Dr. Allen and Mr. Rohner in their individual capacity for

damages, and against all three individual defendants in their

official capacity for declaratory and prospective injunctive

relief.

2. Free Exercise of Religion

At the core of Plaintiff’s Complaint are his three Free

Exercise claims. In essence, they represent three distinct reasons

why Plaintiff believes strict scrutiny should apply, a standard he

33

contends is not and cannot be met. In Count VII, he argues that

the denial of notice of LGBTQ+ materials and opt-out from the

Health course requirement created a substantial burden on his right

to direct the religious upbringing of his child.8 (ECF No. 2 ¶¶

152-53). He now contends that the burden is the same as that at

issue in Mahmoud and thus is subject to strict scrutiny rather

than the standard rational basis review. (ECF No. 31, at 3, 12,

14). In Count IX, assuming his religious exercise is burdened,

Plaintiff alleges that Defendants’ opt-out policy is not generally

applicable because it admits of exceptions, (ECF No. 2 ¶ 165);

making the same assumption in Count XI, Plaintiff alleges that

Defendants’ opt-out policy is not neutral because it is motivated

by animus toward his religious beliefs, (Id. ¶ 174).

The First Amendment to the United States Constitution

provides that “Congress shall make no law . . . prohibiting the

free exercise” of religion. U.S. Const. amend. I. This

prohibition has been incorporated against the states via the

Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296, 303

(1940). Ordinarily, “the government is generally free to place

incidental burdens on religious exercise so long as it does so

8 It is important to clarify what Plaintiff requested. He

did not simply request an opt-out from the FLHS unit, as MCPS

regulations permit, or an opt-out from any specific class in which

LGBTQ+ materials would be used. Instead, he sought an opt-out

from the state law Health course graduation requirement.

34

pursuant to a neutral policy that is generally applicable.”

Mahmoud, 606 U.S. at 564 (citing Emp. Div. v. Smith, 494 U.S. 872,

878-79 (1990)). If the court finds such a burden, it must then

“ask if the burdensome policy is neutral and generally applicable.”

Id. If it is, rational basis review applies. Jesus Christ Is the

Answer Ministries, Inc. v. Balt. County, 915 F.3d 256, 265 (4th

Cir. 2019) (citing Smith, 494 U.S. at 879). If it is not, the

policy triggers strict scrutiny. Mahmoud, 606 U.S. at 564.

Last year in Mahmoud, however, the Supreme Court clarified

that courts must proceed directly to strict scrutiny if they find

a burden of a particular character on the “right[] of parents to

direct the religious upbringing of their children.” Mahmoud, 606

U.S. at 547, 564 (quoting Espinoza v. Mont. Dep’t of Revenue, 591

U.S. 464, 486 (2020)). Because “many parents ‘have no choice but

to send their children to public school[,]’ . . . the right of

parents ‘to direct the religious upbringing of their’ children .

. . follow[s] those children into the public school classroom.”

Id. at 547 (quoting Morse v. Frederick, 551 U.S. 393, 424 (2007)

(Alito, J., concurring)). This right is “violated by government

policies that ‘substantially interfer[e] with the religious

development’ of children.” Id. (alteration in original) (quoting

Wisconsin v. Yoder, 406 U.S. 205, 218 (1972)). Beyond direct

compulsion of children “to depart from the religious practices of

35

their parents,” violations can also include “more subtle forms of

interference” that pose “the kind of objective danger to the free

exercise of religion that the First Amendment was designed to

prevent.” Id. at 548-49 (quoting Yoder, 406 U.S. at 218). In

other words, the inquiry focuses on whether the policy carries “‘a

very real threat of undermining’ the religious beliefs that the

parents wish to instill in their children.” Id. at 553 (quoting

Yoder, 406 U.S. at 218). The Court explicitly used as a benchmark

its decision in Wisconsin v. Yoder, in which the Court mandated an

exemption for Amish parents from a state law requiring children’s

attendance at school until the age of sixteen. Id. at 564 (holding

that strict scrutiny is triggered “[w]hen the burden imposed is of

the same character as that imposed in Yoder”).

Whether a government policy constitutes a “very real threat”

is a “fact-intensive”9 question dependent on “the specific

religious beliefs and practices asserted” and “the specific nature

of the educational requirement or curricular feature.” Id. at

550. Relevant to the latter factor are the age of the targeted

9 Plaintiff argues that because the Court labeled the inquiry

“fact-intensive,” it cannot be resolved on a motion to dismiss.

(ECF No. 31, at 13). “Fact-intensive” simply means that context

matters. Plaintiffs still must carry their burden to “plead[]

factual content that allows the court to draw the reasonable

inference that defendant is liable for the misconduct alleged.”

Mays, 992 F.3d at 299–300 (quoting Iqbal, 556 U.S. at 678).

Plaintiff has not carried that threshold burden here.

36

children and whether the instruction or materials are presented in

a “neutral” or “hostile” manner. Id. If the court finds that a

“very real threat” exists, such a burden triggers strict scrutiny.

Plaintiff’s complaint undoubtedly implicates the right to

direct the religious upbringing of one’s child. But saying that

right is burdened does not make it so. Plaintiff fails to allege

a burden akin to the one present in Yoder and Mahmoud, much less

any cognizable burden on his religious exercise. Therefore, all

three of his free exercise claims fail.

To begin, Plaintiff’s complaint is factually insufficient.

Despite the complaint’s considerable length, Plaintiff’s factual

allegations regarding the use of LGBTQ+ instructional materials

appear in only a few paragraphs. He explains that he “became aware

of training materials for MCPS teachers of the Health Course for

the 2022-23 school year by obtaining a few pages from a non-

official source.” (ECF No. 2 ¶ 97). One page stated that among

the training day’s objectives was the following: “Review LGBTQ+

resources to incorporate more inclusive language in the Health

Education classroom throughout the ENTIRE course.” (Id.). He

further provides a quotation that allegedly appears in a legal

brief submitted by Defendants in a separate, administrative

proceeding, which says that it is “consistent with MCPS’s local

policy and educational objectives” that “LGBTQ+ topics are

37

integrated throughout the entirety of the health course.” (Id. ¶

57 (emphasis omitted)). Finally, he points to the MSBE’s opinion

in that same case, in which the MSBE “agree[d] with the local board

[MCBE/MCPS] that incorporation of LGBTQ+ resources throughout the

entire health classroom” fulfills Defendants’ state law

responsibilities. (Id. ¶ 58 (alteration in original) (emphasis

omitted) (quoting T.J. & D.J., Opinion No. 24-10)). Despite

learning in 2022 of Defendants’ alleged plan to incorporate more

inclusive language throughout the entire Health course, which was

then in place for several years before Plaintiff filed suit,

Plaintiff offers only a few vague quotations from the MCBE and

MSBE that inclusion of LGBTQ+ materials throughout the Health

course is permissible. None of these factual allegations, if they

can all be called such, refers to specific materials used in the

Health classroom in MCPS, much less at DHS. In Mahmoud, by

contrast, the plaintiffs identified at least seven books that would

be read to their children and the guidance to teachers about how

to discuss the LGBTQ+ themes involved. Mahmoud, 606 U.S. at 533

n.6; see also Amended Complaint ¶¶ 113-44, Mahmoud v. McKnight,

688 F.Supp.3d 265 (2023), ECF No. 36 (discussing in detail the

objectionable contents of those seven books). The absence of any

such detail in Plaintiff’s complaint means he has not alleged

“enough to raise a right to relief above the speculative level.”

38

Twombly, 550 U.S. at 555 (citing 5 Wright & Miller’s Federal

Practice & Procedure § 1216 (3d ed. 2004)).

Plaintiff’s dearth of factual allegations renders it

impossible to assess “the specific nature of the educational

requirement or curricular feature” in question as the Court

instructed in Mahmoud. The way the material is presented and the

age of the students targeted are the paramount factors to consider.

Plaintiff obviously assumes that any LGBTQ+ materials used outside

the FLHS unit in the Health course are presented in a hostile

manner so as to impose on his son a “pressure to conform.” Mahmoud,

606 U.S. at 550 (quoting Yoder, 406 U.S. at 211). The Mahmoud

Court described such hostile presentation as involving

“unmistakably normative” messages that contravene parents’

religious beliefs. Id. Without any particular materials to

consider in Plaintiff’s case, he is unable to allege that

Defendants are pushing any normative message related to LGBTQ+

issues outside the FLHS unit. Even assuming LGBTQ+ materials are

presented in other Health units, Defendants appropriately

highlight a key conceptual distinction. (ECF No. 23-1, at 17).

As a Maryland circuit court recently held in a nearly identical

case, the incorporation of “more inclusive language, including

reference to the diverse LGBTQ+ community, into instructional

materials (consistent with the educational equity requirement for

39

each local school board to use materials that are inclusive) is

not the same as the LGBTQ+ related direct teaching and instruction

that occurs in the FLHS unit of the class.” (Id. (quoting ECF No.

23-7, at 7)).

And even if the court stacks the assumption that some of the

materials conveyed a normative message on top of the assumption

that any such materials were presented at all, high school students

are far less prone to uncritical acceptance of such messages. The

Mahmoud Court repeatedly emphasized the importance of age in

assessing the nature of the challenged instruction. It explained

that “the age of the children involved is highly relevant in any

assessment of the likely effect of instruction on the subjects in

question.” Mahmoud, 606 U.S. at 555 n.8; see also id. at 550

(“Educational requirements targeted toward very young children[]

. . . may be analyzed differently from educational requirements

for high school students.”). Accordingly, “[h]igh school students

may understand that widespread approval of a practice does not

necessarily mean that everyone should accept it, but very young

children are most unlikely to appreciate that fine point.” Id. at

551. Here, unlike Mahmoud, high school students are the relevant

population. They are not as “impressionable” as their elementary

school counterparts, and in Health class they are considerably

less “likely to accept without question any moral messages conveyed

40

by their teachers’ instruction.” Id. at 551. At the very least,

Plaintiff has not alleged any facts to counteract this commonsense

intuition. Accordingly, to the extent the Health course presents

LGBTQ+ materials outside the FLHS unit, the age of the students

significantly diminishes the risk that the school will pressure a

student to conform to beliefs contrary to those of their parents.10

Finally, and most importantly, Defendants have provided

adequate alternatives to Plaintiff that were still available

despite the purportedly late notice that his opt-out request had

been denied. These alternatives included an independent study and

a course at Montgomery College. As the email sent to Plaintiff

explains, at any time, he and his son could have proposed an

independent study that accomplishes the Health course objectives,

10 Plaintiff argues that “[c]ourts cannot assume high-school

students are immune from burdens on conscience,” and that the FLHS

opt-out exists “because lawmakers recognized those burdens remain

significant.” (ECF No. 31, at 13-14). Of course, high school

students are not immune from such burdens; the students in Yoder

were of high-school age, after all. But Plaintiff’s argument about

the opt-out rationale cuts against him. MCPS regulations permitted

an opt-out from the FLHS unit of study, MCPS Regulation IGP-RA §

III.e.4.c (2020), and prohibited the use of FLHS materials “in any

other instructional program of the school,” id. § III.e.2 (emphasis

added). The instructional program is “Comprehensive Health

Education,” not the FLHS unit. Id. § I. So, the regulation bars

the use of FLHS materials in other instructional programs outside

the Health course, but not in other units within the Health course.

It follows that lawmakers provided the opt-out from FLHS

instruction but not the general use of FLHS materials. Thus,

lawmakers acknowledged that the burden of the use of FLHS materials

was meaningfully different from, and lesser than, that of FLHS

instruction.

41

which his son could have completed under faculty supervision. (ECF

No. 23-4, at 2; see also ECF No. 2 ¶ 42). Plaintiff himself

acknowledges that Maryland’s “Health Framework does not include

objectives relating to non-traditional, alternative family

structures and LGBT-SOGI in any other part of the health education

curriculum” besides the FLHS unit. (ECF No. 2 ¶ 67). Given the

available opt out from the FLHS unit, Plaintiff’s son could have

completed an independent study avoiding LGBTQ+ materials and

objectives entirely, earned his Health credit, and graduated.

Alternatively, Plaintiff’s son could have attended the course

“Personal and Community Health” at Montgomery College. (ECF No.

23-4, at 2). True, that may have only been an option for the

Spring Semester because the Fall Semester deadline had passed when

Plaintiff learned of it. (Id.). But Plaintiff’s son still could

have completed an independent study in the Fall Semester and had

the option of completing either an independent study or the

Montgomery College course in the Spring Semester. As Defendants

point out, Plaintiff’s complaint “contains no factual allegations

that either alternative included constitutionally objectionable

content, violated his religious beliefs, or was prohibitively

expensive.” (ECF No. 32, at 4). All Plaintiff musters, without

any support, is that the alternatives were “objectionable.” (ECF

No. 2 ¶ 42). That is not enough.

42

Nor does Plaintiff’s single counterargument hold purchase.

He contends that he was put to the impermissible choice “either

[to] risk [his] child’s exposure to burdensome instruction, or pay

substantial sums for alternative educational services.” Mahmoud,

606 U.S. at 569; (ECF No. 31, at 12).11 That impermissible choice

arises, however, when the alternatives are private school or

homeschooling. Mahmoud, 606 U.S. at 560-62. Here, the public

school is offering to supervise an independent study or permit

Plaintiff’s son to attend a pre-approved course at a local

community college. In either event, Plaintiff by no means would

be giving up his son’s public education or required to pay costs

akin to those associated with private school tuition or

homeschooling. Instead, the choice is between various public

avenues of completing the Health requirement.

Finally, because Plaintiff has failed to allege a cognizable

burden on his free exercise rights, his claims that Defendants’

11 Plaintiff gestures at an additional argument: “Even when

one option was free, the Court recognized the stigma, disruption,

and coercion that accompany forcing families into alternative

channels.” (ECF No. 31, at 12-13). He does not specify where in

Mahmoud he derives the rule that even the provision of a free

alternative is coercive. To be sure, the Court dismissed the

“free” alternative that parents could simply instruct their

children differently outside of school, Mahmoud, 606 U.S. at 562-

63, but such an alternative is different in kind because it

supplements, rather than replaces, the burdensome instruction.

The alternatives here replace the allegedly burdensome

instruction.

43

policy is neither generally applicable (Count IX) nor neutral

(Count XI) necessarily fail. Mahmoud v. McKnight, 688 F.Supp.3d

265, 302 n.14 (2023) (“Because the plaintiffs have not shown that

the no-opt-out policy likely will burden their religious exercise,

the Court need not address whether the policy is neutral and

generally applicable[.]”), aff’d, 102 F.4th 191 (2024), rev’d in

part sub nom., Mahmoud v. Taylor, 606 U.S. 522 (2025).12

For the reasons above, Plaintiff has failed to allege a

violation of his First Amendment right to direct the religious

upbringing of his son. His three First Amendment claims will be

dismissed.

3. Parental Rights

Plaintiff’s failure to state a claim under the First Amendment

likewise dooms his parental-rights substantive due process claim

under the Fourteenth Amendment.

12 The Supreme Court in Mahmoud considered only the following

question: “Do public schools burden parents’ religious exercise

when they compel elementary school children to participate in

instruction on gender and sexuality against their parents’

religious convictions and without notice or opportunity to opt

out?” Petition for Writ of Certiorari at i, Mahmoud, 606 U.S. 522

(No. 24-297), 2024 WL 4227215, at *i; Mahmoud v. Taylor, 145 S.Ct.

1123, 1123 (2025) (mem.) (granting writ of certiorari on question

presented). It did not address any other issues decided in the

district court and Fourth Circuit. Therefore, the portions of the

district court’s and Fourth Circuit’s opinions dealing with issues

other than the religious burden question are unaffected by the

Supreme Court decision. See Taylor v. Grubbs, 930 F.3d 611, 619

(4th Cir. 2019).

44

In Count IV, Plaintiff alleges that parents have a fundamental

right “to direct the care, custody, education, and control of their

minor children” under the Fourteenth Amendment. (ECF No. 2 ¶ 127).

He contends that this fundamental right includes “the right of

parents to counsel their children on important decisions related

to their health and safety, to determine what is in the best

interests of their minor children, to determine when their minor

children should be counseled on matters related to sexual identity

and family life, and to determine whether their children should

attend public school.” (Id.). Because “[m]atters regarding

homosexuality and transgenderism relate directly to the minor

child’s sexual identity and are at the core of family life,”

Plaintiff posits, they also touch the “core” of parents’

fundamental rights. (Id. ¶ 128). Defendants allegedly infringed

on such rights by denying advance notice of Health instructional

materials and Plaintiff’s request to opt his minor son out of the

Health course, in which LGBTQ+ instruction was allegedly spread

throughout, rather than confined to, the FLHS unit. (Id. ¶¶ 129–

30; ECF No. 31, at 4). Accordingly, Plaintiff contends that strict

scrutiny applies and that Defendants cannot satisfy it. (ECF No.

2 ¶¶ 131–32). Defendants move to dismiss this count on the ground

that only rational basis review applies, which they satisfy,

because parents’ “asserted due process right to direct their

45

children’s upbringing by opting out of a public-school curriculum

that conflicts with their religious views is not a fundamental

right.” (ECF No. 23-1, at 20 (quoting Mahmoud, 688 F.Supp.3d at

306) (citing Mahmoud v. McKnight, 102 F.4th 191, 217 (2024), rev’d

in part sub nom., Mahmoud v. Taylor, 606 U.S. 522 (2025))).

Defendants’ denial of the opt-out is subject to only rational

basis review. Judge Boardman explained the contours of the

substantive due process inquiry:

Under substantive due process

jurisprudence, “courts examine whether

government intrusions into citizens’

liberties are justified by adequate state

interests.” Herndon by Herndon v. Chapel

Hill-Carrboro City Bd. of Educ., 89 F.3d 174,

177 (4th Cir. 1996). “A substantive due

process challenge is considered under

rational-basis review unless some fundamental

right is implicated.” Doe v. Settle, 24 F.4th

932, 953 (4th Cir. 2022) (citing Herndon, 89

F.3d at 177). Fundamental rights are those

“which are, objectively, deeply rooted in this

Nation’s history and tradition.” Hawkins v.

Freeman, 195 F.3d 732, 739 (4th Cir. 1999)

(quoting Washington v. Glucksberg, 521 U.S.

702, 720–21[] (1997)). “Critical to the

‘fundamental interest’ inquiry is the

requirement that it be conducted on the basis

of a ‘careful description of the asserted

fundamental liberty interest.’” Id. (quoting

Glucksberg, 521 U.S. at 720[]). In defining

the asserted liberty interest, courts must

avoid “overgeneralization in the historical

inquiry.” Id. at 747 (citing Glucksberg, 521

U.S. at 722–23[]).

Mahmoud, 688 F.Supp.3d at 302. In other words, Plaintiff must

carefully define each parental right and identify a substantial

46

historical pedigree for each such right. A right does not become

fundamental by a plaintiff’s ipse dixit. Given the strictures of

the fundamental right inquiry, “most due process challenges to

public school policies are subject only to rational basis review.”

Mahmoud, 102 F.4th at 217 (citing Herndon, 89 F.3d at 177–79).

Here, the parental rights Plaintiff asserts are fundamental all

implicate, in the context of this case, “parental control over a

child’s public education.” Mahmoud, 688 F.Supp.3d at 303. But

“the parental right to direct a child’s education is not

fundamental unless it includes a religious element.” Id. at 304;

Herndon, 89 F.3d at 179 (“[T]he Supreme Court has stated

consistently that parents have a liberty interest, protected by

the Fourteenth Amendment, in directing their children’s schooling.

Except when the parents’ interest includes a religious element,

however, the Court has declared [that] . . . rational basis

scrutiny [applies].”). Plaintiff makes no express mention in Count

IV of his right to control his child’s religious education. To

the extent his claim is purely secular, then, rational basis review

applies.

To the extent Plaintiff’s parental-rights claim does contain

a religious element, which it certainly appears to despite his

failure to say so explicitly in Count IV, it is still subject to

only rational basis review. The Fourth Circuit in Mahmoud

47

described such a claim as a “hybrid-rights” claim, meaning a single

claim that rests on the violation of multiple constitutional

rights. 102 F.4th at 217. Here, as in Mahmoud, Plaintiff’s “due

process claim involving parents’ rights related to the education

of their children is ‘coupled with’ a religious-exercise claim.”

Id. (citing Combs v. Homer-Ctr. Sch. Dist., 540 F.3d 231, 243–47

(3d Cir. 2008)). The hybrid-rights theory suggests that heightened

scrutiny is triggered when constitutional rights are so coupled in

a single claim, id., and finds its origins in the Supreme Court’s

opinion in Employment Division v. Smith, 494 U.S. 872 (1990). The

Smith Court suggested that “hybrid” cases would trigger heightened

scrutiny, and cited Yoder as an example, but declined to apply

that theory to the case because the plaintiffs had not presented

such a theory. 494 U.S. at 881–82. Within the Fourth Circuit,

“the validity of the hybrid-rights approach remains an open

question.” Mahmoud, 102 F.4th at 217. And the Supreme Court has

declined to provide any guidance on it. Mahmoud, 606 U.S. at 565

n.14 (describing the Smith Court’s hybrid-rights characterization

of Yoder as “speculat[ion]” and concluding that the Court “need

not consider whether the case before [it] qualifies as such a

‘hybrid rights’ case”). In any event, a hybrid-rights claim does

not warrant strict scrutiny if the assertion of one of the two

alleged constitutional violations is deficient. See Mahmoud, 102

48

F.4th at 217 (“Regardless of the underlying merits of a hybrid-

rights due process claim, it could only be the basis for a

preliminary injunction if the Parents’ free exercise claims were

also likely to succeed on the merits.” (citation omitted)); Parents

for Priv. v. Barr, 949 F.3d 1210, 1237 (9th Cir. 2020) (“[A]lleging

multiple failing constitutional claims that do not have a

likelihood of success on the merits cannot be enough to invoke a

hybrid rights exceptions and require strict scrutiny.” (citation

omitted)). Because Plaintiff does not state a plausible claim for

relief on his free exercise claims, his hybrid-rights due process

claim is not subject to strict scrutiny, but rather to rational

basis review.

Plaintiff points to the Supreme Court’s Mahmoud decision for

the proposition that “when a district denies notice and opt-outs

as to contested content, courts do not dispose of parental claims

on the pleadings.” (ECF No. 31, at 4). The Supreme Court’s

opinion reflects no such proposition. Mahmoud was a case decided

on the preliminary injunction record, not the pleadings, and more

importantly, it did not address the parental-rights substantive

due process claims. Mahmoud, 606 U.S. at 545–46 (noting the

preliminary injunction posture); id. at 626 (Sotomayor, J.,

dissenting) (“[T]he Court’s analysis makes no mention of

substantive due process rights or the Fourteenth Amendment Due

49

Process Clause.”). Nothing in the Court’s Mahmoud opinion bars

disposing of Plaintiff’s parental-rights claim at the motion-to-

dismiss stage.

Thus, any version of Plaintiff’s parental-rights claim is

subject to rational basis review. The challenged government action

easily passes muster. Rational basis review “requires only that

the [challenged state action] be shown to bear some rational

relationship to legitimate state purposes.” Herndon, 89 F.3d at

177 (alteration in original) (quoting S.A. Indep. Sch. Dist. v.

Rodriguez, 411 U.S. 1, 40 (1973)). “Under this deferential

standard, the plaintiff bears the burden ‘to negate every

conceivable basis which might support’ the legislation.”

Giarratano v. Johnson, 521 F.3d 298, 303 (4th Cir. 2008) (quoting

Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973)).

“To survive a motion to dismiss for failure to state a claim, a

plaintiff must allege facts sufficient to overcome the presumption

of rationality that applies[.]” Id. (quoting Wroblewski v. City

of Washburn, 965 F.2d 452, 460 (7th Cir. 1992)). Plaintiff

challenges three state actions: (1) refusal to provide advance

notice of the Health instructional materials; (2) spreading LGBTQ+

instructional materials throughout the Health course rather than

just the FLHS unit; and (3) refusal to allow opt-outs from the

Health credit requirement. At no point does Plaintiff argue that

50

any of the challenged state actions fails rational basis review.

Therefore, he cannot overcome the presumption of rationality, and

his claim fails.

Moreover, each challenged state action had a rational basis.

Defendants did offer to provide advance notice of the materials

but for a fee due to the extensive nature of Plaintiff’s request.

(ECF No. 2 ¶ 27). Defendants’ response to Plaintiff’s request

bears a rational relationship to the legitimate state interest of

mitigating administrative and fiscal burdens. Armour v. City of

Indianapolis, 566 U.S. 673, 686 (2012) (holding that it is rational

for the government to seek to avoid an administrative burden). As

for the spreading of LGBTQ+ instructional materials throughout the

Health course, Plaintiff has provided no factual support for the

contention that LGBTQ+ instruction is occurring in any portion of

the Health course outside the FLHS unit. At most, the court can

infer that resources in other units refer to LGBTQ+ individuals or

subject matter. The court agrees with Defendants that including

such LGBTQ+ resources throughout the Health course is rationally

related to the MCBE’s legitimate interest in promoting “social

integration and cultural inclusiveness of transgender and gender

nonconforming students[,] . . . providing a safe and supportive

learning environment for its students, protecting LGBTQ students’

health and safety, and complying with anti-discrimination laws.”

51

(ECF No. 23-1, at 20 (quoting Mahmoud, 688 F.Supp.3d at 306)).

Finally, the Maryland government undoubtedly has a significant

interest in fostering a health-conscious population through

mandatory Health education that opt-outs from the entire course

would frustrate. See Tri-Cnty. Paving, Inc. v. Ashe County, 281

F.3d 430, 441 (4th Cir. 2002) (noting that “protecting the health

or welfare of county residents” is a legitimate interest).

Because Plaintiff’s parental-rights claim cannot withstand

rational basis review, it will be dismissed.

4. PPRA

Finally, Plaintiff alleges that Defendants violated his right

under the PPRA and the United States Constitution to review the

Health instructional materials at no fee when they “refus[ed] his

reasonable requests to do so” and “condition[ed] such access on

exorbitant and unreasonable fees.” (ECF No. 2 ¶¶ 146, 147, 149).

Plaintiff’s PPRA claim is premised on the following provision

within the statute:

[A] local educational agency that receives

funds under any applicable program shall

develop and adopt policies, in consultation

with parents, regarding the following:

. . .

(C)

(i) The right of a parent of a student to

inspect, upon the request of the parent,

any instructional material used as part

52

of the educational curriculum for the

student; and

(ii) any applicable procedures for

granting a request by a parent for

reasonable access to instructional

material within a reasonable period of

time after the request is received.

20 U.S.C. § 1232h(c)(1)(C); (ECF No. 2 ¶ 147). A Maryland

regulation provides that “[t]he local school system shall provide

an opportunity for parents/guardians to view instructional

materials to be used in the teaching of [FLHS] objectives.” COMAR

13A.04.18.01(D)(2)(e)(iv). Montgomery County regulations

implement this state directive:

Each school will hold an informational meeting

to provide an opportunity for

parents/guardians to discuss the FLHS unit of

study with teachers and review instructional

materials. For parents/guardians unable to

attend the informational meeting, the school

shall make available special opportunities for

parents/guardians to view all instructional

materials to be used in the unit of study

before the materials are used in the

classroom.

MCPS Regulation IGP-RA § III.E.4.b (2020). The mechanism the MCBE

evidently chose to field parental requests to review instructional

materials was the MPIA. (ECF No. 2 ¶ 25). Plaintiff filed his

request to review the Health instructional materials under the

MPIA. (Id. ¶ 26). The MCBE responded to the MPIA request but

“claim[ed] that the request was too broad, and that fulfillment of

his request would require estimated fees to be incurred between

53

‘$250 to $5,000,’ and that such means would not be waived.” (Id.

¶ 27). Plaintiff apparently did not pursue any further action on

his MPIA request and now alleges that the MCBE’s response violated

his rights under the PPRA.

Defendants move to dismiss Plaintiff’s PPRA claim because it

does not create enforceable rights via a § 1983 action. (ECF No.

23-1, at 21–22). Plaintiff acknowledges in response that “[s]ome

courts agree” with Defendants or treat the PPRA as enforceable via

§ 1983 “only when federal funds and surveys are involved.” (ECF

No. 31, at 8 (citation omitted)). He offers that his “claims do

not rise or fall with [the] PPRA” and that the court “may treat

[the] PPRA allegations as contextual and reserve decision on any

stand-alone PPRA count.” (Id.).

Although the issue is somewhat closer than either party

recognizes, the court ultimately agrees with Defendants that the

relevant provision of the PPRA is not the sort of provision

Congress intended to be enforceable via a § 1983 claim. Numerous

courts have been presented with the question of whether a provision

of the PPRA is enforceable under § 1983, but none appear to have

engaged in a fulsome analysis of the provision in question, 20

U.S.C. § 1232h(c)(1)(C). See Herbert v. Reinstein, 976 F.Supp.

331, 340 (E.D.Pa. 1997) (holding that § 1232h(b) was not

enforceable by plaintiffs under § 1983 because plaintiffs were not

54

intended beneficiaries of survey provision); Altman v. Bedford

Cent. Sch. Dist., 45 F.Supp.2d 368, 391 (S.D.N.Y. 1999) (same),

aff’d in part, vacated in part, rev’d in part on other grounds,

245 F.3d 49 (2d Cir. 2001); C.N. v. Ridgewood Bd. of Educ., 146

F.Supp.2d 528, 535–37 (D.N.J. 2001) (concluding that even if §

1232h(b) were enforceable under § 1983, plaintiff’s claim would

fail), aff’d, 430 F.3d 159 (3d Cir. 2005); Ashby v. Isle of Wight

Cnty. Sch. Bd., 354 F.Supp.2d 616, 623 n.9 (E.D.Va. 2004) (holding

that § 1232h(b) does not create a private right of action and

declining to reach whether it would be enforceable under § 1983);

Doe No. 1 v. Bethel Loc. Sch. Dist. Bd. of Educ., No. 22-cv-337,

2023 WL 5018511, at *21–22 (S.D.Ohio Aug. 7, 2023) (assuming

without deciding that § 1232h(b) is enforceable under § 1983);

Myers v. Beaverton Sch. Dist. 48J, No. 25-cv-677, 2025 WL 2019336,

at *5 (D.Or. July 18, 2025) (finding it unlikely that § 1232h(b)

is enforceable under § 1983).

As a baseline, the Supreme Court has recognized that for

Spending Clause legislation like the PPRA, “the typical remedy for

state noncompliance with federally imposed conditions is not a

private cause of action for noncompliance but rather action by the

Federal Government to terminate funds to the State.” Gonzaga Univ.

v. Doe, 536 U.S. 273, 280 (2002) (quoting Pennhurst State Sch. &

Hosp. v. Halderman, 451 U.S. 1, 28 (1981)). In the “atypical

55

case,” however, Spending Clause legislation can generate

enforceable rights under § 1983. Health & Hosp. Corp. of Marion

Cnty. v. Talevski, 599 U.S. 166, 183 (2023). The Court set out

the governing test in Gonzaga University v. Doe and recently

restated it: The statutory provision must “‘unambiguously

confe[r]’ individual rights” on “‘a class of beneficiaries’ to

which the plaintiff belongs,” thereby “making those rights

‘presumptively enforceable’ under § 1983.” Id. (alteration in

original) (quoting Gonzaga, 536 U.S. at 283–84). Courts “employ

traditional tools of statutory construction” to make this

assessment. Id. In Talevski, the Court provided further guidance

on this front:

We have held that the Gonzaga test is

satisfied where the provision in question is

“phrased in terms of the persons benefited”

and contains “rights-creating,” individual-

centric language with an “unmistakable focus

on the benefited class.” [Gonzaga, 536 U.S.]

at 284, 287[] (emphasis deleted). Conversely,

we have rejected § 1983 enforceability where

the statutory provision “contain[ed] no

rights-creating language”; had “an aggregate,

not individual, focus”; and “serve[d]

primarily to direct the [Federal Government’s]

distribution of public funds.” Id.[] at

290[].

Id. at 183–84.

The statutory provisions at issue in Gonzaga and Talevski

shed light on what is needed to find an unambiguously conferred

right. In Gonzaga, the Court considered a provision of the Family

56

Educational Rights and Privacy Act of 1974 (“FERPA”), 20 U.S.C. §

1232g, which other courts have referred to as the PPRA’s “sister

statute,” Doe No. 1, 2023 WL 5018511, at *21. That provision

provided that “[n]o funds shall be made available under any

applicable program to any educational agency or institution which

has a policy or practice of permitting the release of education

records . . . of students without the written consent of their

parents to any individual, agency, or organization.” 20 U.S.C. §

1232g(b)(1). Because the provision is “two steps removed from the

interests of individual students and parents,” “speak[s] only in

terms of institutional policy and practice, not individual

instances of disclosure,” and “expressly authorize[s] the

Secretary of Education” to enforce the statute through a

“centralized review” process, the Court held that the statute did

not unambiguously confer an enforceable right. Gonzaga, 536 U.S.

at 287–90. The Talevski Court, on the other hand, concluded that

two provisions of the Federal Nursing Home Reform Act (“FNHRA”)

are enforceable under § 1983. Both provisions are found in 42

U.S.C. § 1396r(c), titled “Requirements Relating to Residents’

Rights,” which “is indicative of an individual ‘rights-creating’

focus.” Talevski, 599 U.S. at 184 (quoting Gonzaga, 536 U.S. at

284). One provision required nursing homes to “protect and promote

. . . [t]he right to be free from . . . any physical or chemical

57

restraints imposed for purposes of discipline or convenience and

not required to treat the resident’s medical symptoms.” Id.

(quoting 42 U.S.C. § 1396r(c)(1)(A)(ii)). The other instructed

nursing homes that they “‘must not transfer or discharge [a]

resident’ unless certain preconditions are met.” Id. at 185

(alteration in original) (quoting and citing 42 U.S.C. §

1396r(c)(2)(A)–(B)). Although these two provisions specify who

“must respect and honor these statutory rights[,] . . . that is

not a material diversion from the necessary focus on the nursing-

home residents.” Id.

Here, the particular PPRA provision shares similarities with

the provisions in both Talevski and Gonzaga. Like the

“Requirements Related to Residents’ Rights” title in Talevski, the

fact that the statute here is titled “Protection of Pupil Rights”

“is indicative of an individual ‘rights-creating’ focus.”

Talevski, 599 U.S. at 184 (quoting Gonzaga, 536 U.S. at 284). That

being said, the Family Educational Rights and Privacy Act

considered in Gonzaga also explicitly mentions rights, so this

fact is not dispositive. Like the chemical-restraint provision in

Talevski and unlike the FERPA provision in Gonzaga, §

1232h(c)(1)(C) explicitly mentions “[t]he right of a parent of a

student to inspect[] . . . any instructional material.” The

statute later refers to this as one of “the rights established

58

under this section.” 20 U.S.C. § 1232h(f) (emphasis added). But

§ 1232h(c)(1) merely requires school districts to “develop and

adopt policies[] . . . regarding” that right. It thus operates at

the policy level like the FERPA provision in Gonzaga, not at the

individual level like the FNHRA provisions in Talevski.

Accordingly, it is less clear than in Talevski that the provision’s

articulation of those responsible for protecting the right “is not

a material diversion from the necessary focus” on the parents.

With that lack of clarity in mind, it is important to note that

Talevski is the only Supreme Court case permitting enforcement of

a Spending Clause statutory right via § 1983 of which the Court

continues to approve. Medina v. Planned Parenthood S. Atl., 606

U.S. 357, 377 (2025) (noting that of the three Supreme Court cases

holding that Spending Clause statutory rights are enforceable via

§ 1983, Talevski is the only one the Court has not repudiated).

Given the great caution that implies, and the requirement that the

conferral of the right be unambiguous, § 1232h(c)(1)(C) does not

meet the high bar of § 1983 enforceability.

Even assuming that § 1232h(c)(1)(C) does unambiguously confer

a parental right to review instructional materials, the statute

still would not be enforceable via § 1983. When “a statutory

provision unambiguously secures rights, a defendant ‘may defeat

t[he] presumption by demonstrating that Congress did not intend’

59

that § 1983 be available to enforce those rights.” Talevski, 599

U.S. at 186 (alteration in original) (quoting City of Ranchos Palos

Verdes v. Abrams, 544 U.S. 113, 120 (2005)). To do so, a defendant

may show that Congress created a “comprehensive enforcement scheme

that is incompatible with individual enforcement under § 1983.”

Id. (emphasis added) (quoting Ranchos Palos Verdes, 544 U.S. at

120).13 Such incompatibility may exist when Congress provides “a

private judicial right of action” or a “private federal

administrative remedy.” Id. at 190; see also id. at 195 (Barrett,

J., concurring) (explaining that “contextual clues” of

incompatibility include enforcement provisions authorizing

government officials to sue, administrative remedies, and a

centralized review mechanism). Here, the PPRA directs the

Secretary of Education to “take such action as the Secretary

13 Defendants focus on whether the PPRA provision in question

confers rights and thus do not make a specific incompatibility

argument. (See ECF Nos. 23-1, at 21–22; 32, at 8). They do note

the Secretary’s role, however, in policing compliance with the

statute. (ECF No. 23-1, at 21–22). The exact nature of the

defendant’s burden, including whether it can be adjudicated on a

motion to dismiss, is unclear. But various courts have held the

burden to be discharged at this early stage, see, e.g., Trepanier

v. Ryan, No. 00-cv-2393, 2004 WL 1102417, at *3 (N.D.Ill. May 17,

2004), and the court sees little reason why discovery or further

development of the litigation is needed to flesh out remedial

incompatibility, a question of statutory interpretation.

Therefore, even if § 1232h(c)(1)(C) unambiguously conferred a

parental right, the court would hold that Defendants have

discharged their burden by pointing to the Secretary’s role in the

statute, which is incompatible with § 1983 enforcement.

60

determines appropriate to enforce this section,” including “action

to terminate assistance.” 20 U.S.C. § 1232h(e). Crucially, it

further instructs the Secretary to “establish or designate an

office and review board within the Department of Education to

investigate, process, review, and adjudicate violations of the

rights established under this section.” Id. § 1232h(f) (emphasis

added). In other words, the statute provides a private federal

administrative remedy via a centralized review mechanism for

statutory violations, implicitly precluding enforcement via §

1983.

Finally, even considering the PPRA claim on its merits,

Plaintiff at no point explains why the right of a parent to inspect

instructional material categorically bars charging a fee for such

inspection. His categorical no-fee rule would lead to the absurd

result that any parent could impose crippling administrative

burdens on a school or school district at no cost. See Lara-

Aguilar v. Sessions, 889 F.3d 134, 144 (4th Cir. 2018) (“[Courts]

are to avoid ‘interpretations of a statute which would produce

absurd results . . . if alternative interpretations consistent

with the legislative purpose are available.” (citation omitted)).

The PPRA is silent on fees, most likely because it directs local

education agencies to “develop and adopt policies” regarding the

inspection right and “procedures for granting a request by a parent

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for reasonable access to instructional material within a

reasonable amount of time.” 20 U.S.C. § 1232h(c)(1)(C)(ii)

(emphasis added). In doing so, Congress likely left the issue of

fees to the discretion of local education agencies, bounded by

reasonableness.14 Accordingly, unreasonable fees might give rise

to a statutory violation, but a plaintiff would need to allege why

the fee charged was unreasonably disproportionate to the request.

Here, the MCBE informed Plaintiff that his request was “too broad”

and would require a fee of “$250–$5,000.” (ECF No. 2 ¶ 27).

Plaintiff contends that this fee was “unreasonable” but fails to

explain why it was disproportionate to his request for all the

instructional materials used in the Health course. (See id.).

That failure is fatal to any PPRA claim he might have.

Plaintiff also grounds this right to review in the U.S.

Constitution, but the Constitution provides no better hook for his

claim. He ties the right to review to the parental right “to

determine whether their minor child should attend public school.”

(ECF No. 2 ¶ 146). If he means to assert the right to review as

a substantive due process right, he makes no effort to demonstrate

its historical pedigree. Glucksberg, 521 U.S. at 720–21. If he

14 When Congress wants to establish when fees can and cannot

be charged for document requests from government agencies, it knows

how to do so. See 5 U.S.C. § 552(a)(4)(A) (Freedom of Information

Act fee provisions); id. § 552a(f)(5) (Privacy Act fee provision).

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means to assert it as a procedural due process right, he has failed

to allege adequately any liberty interest of which he was deprived.

Moreover, he has failed to allege that the existing state remedies

for any deprivation were inadequate. Zinermon v. Burch, 494 U.S.

113, 126 (1990) (“The constitutional violation actionable under §

1983 is not complete when the deprivation occurs; it is not

complete unless and until the State fails to provide due

process.”). The MPIA under which Plaintiff sought review of the

instructional materials provided a pathway to have an ombudsman

review the denial of his request and fee waiver, Md. Code Ann.,

Gen. Provisions § 4-1B-04 (West), and then appeal the ombudsman’s

determination to the Public Information Act Compliance Board, id.

§ 4-1A-05. Plaintiff did not pursue these avenues of review.

D. Leave to Amend

Plaintiff asks for leave to amend if the court “identifies

any curable pleading deficiency (e.g., substitution of the Board

for ‘MCPS,’ additional detail as to a defendant, or refinement of

a statutory count).” (ECF No. 31, at 15). The defects in the

complaint are far more fundamental. Leave to amend is denied.

E. State Claims

Once this court has federal question jurisdiction over one or

more claims in any action, it also has, pursuant to 28 U.S.C. §

1367(a), supplemental jurisdiction “over all other claims that are

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so related to claims in the action . . . that they form part of

the same case or controversy.” A court may, however, decline to

exercise supplemental jurisdiction if “the claim raises a novel or

complex issue of State law,” or “the district court has dismissed

all claims over which it has original jurisdiction.” 28 U.S.C §

1367(c)(1), (3); Royal Canin U.S.A., Inc. v. Wullschleger, 604

U.S. 22, 31–32 (2025). Both of those grounds apply here.

First, the court has dismissed all federal claims as discussed

above. At this early stage of the litigation, remand of claims

arising under state law is the normal course. See United Mine

Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966) (“[I]f the

federal claims are dismissed before trial, even though not

insubstantial in a jurisdictional sense, the state claims should

be dismissed as well.”). “With all [the] federal questions gone,

there may be the authority to keep [this case] in federal court

under 28 U.S.C. §§ 1367(a) and 1441(c) (2000), but there is no

good reason to do so.” Waybright v. Frederick County, 528 F.3d

199, 209 (4th Cir. 2008). The court declines to exercise

supplemental jurisdiction over the seven state claims in the

complaint.

Second, the issues presented by the state administrative and

constitutional claims raise some novel and some complex issues of

state law best left to state courts to resolve. An issue of state

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law is novel if it is a matter of first impression for the state

courts or is currently pending before a state appellate court.

Winingear v. City of Norfolk, No. 12-cv-560, 2013 WL 5672668, at

*4 n.6 (E.D.Va. Oct. 16, 2023) (citing Sawyer v. Atlas Heating &

Sheet Metal Works, Inc., 731 F.Supp.2d 849, 850 (E.D.Wis. 2010);

Erdman v. Nationwide Ins. Co., 621 F.Supp.2d 230, 238 (M.D.Pa.

2007, aff’d, 582 F.3d 500 (3d Cir. 2009)); see also Green v.

Zendrian, 916 F.Supp. 493, 496 (D.Md. 1996) (holding that the issue

was novel and/or complex because it was a “serious issue of first

impression”). There is little guidance on the complexity inquiry,

other than that the issue must be “intricate,” and perhaps

“important.” See Arrington v. City of Raleigh, 369 F.App'x 420,

423 n.2 (4th Cir. 2010).

The state administrative claims in Counts I-III raise novel

and complex issues of state law. Principal among these issues is

that of exhaustion of state administrative remedies, given the

apparent procedural mishaps that occurred. The court is unaware

of any Maryland cases interpreting the MCPS procedural regulation

at issue. Therefore, Plaintiff’s compliance or lack thereof with

the administrative process raises novel issues. See Omnis Health

Life, LLC v. Optum, Inc., No. 24-cv-3642-ELH, 2025 WL 2659881, at

*4 (D.Md. Sep. 17, 2025) (holding particular administrative

exhaustion issue is novel and/or complex issue of Maryland law).

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Other novel and complex issues include the applicability of the

Maryland APA or Maryland’s Accardi doctrine.15 See Md. Code Ann.,

State Gov’t § 10-202(b) (West) (agencies covered by the Maryland

APA); id. § 10-222 (Maryland APA judicial review provision);

Pollock v. Patuxent Inst. Bd. of Rev., 374 Md. 463, 503 (2003)

(adopting modified version of Accardi doctrine for Maryland

administrative agencies not covered by the Maryland APA). Maryland

state courts should resolve these issues.

The state constitutional claims in Count V under Article 24

of the Maryland Declaration of Rights, and Counts VIII, X, and XII

under Article 36 of the Maryland Declaration of Rights, likewise

raise novel and complex issues of state law. Generally speaking,

“[q]uestions of state constitutional law are best answered by state

courts, rather than by the federal judiciary.” Bayadi v. Clarke,

No. 16-cv-3, 2017 WL 1091946, at *6 (W.D.Va. Mar. 22, 2017) (citing

Harris Cnty. Comm’rs Ct. v. Moore, 420 U.S. 77, 84–85 (1975); Reetz

v. Bozanich, 397 U.S. 82, 85 (1970)). Indeed, the Supreme Court

has announced that “[i]t is fundamental that state courts be left

free and unfettered by [federal courts] in interpreting their state

15 Under federal administrative law, the “Accardi doctrine .

. . provides that when an agency fails to follow its own procedures

or regulations, that agency’s actions are generally invalid.”

Orellana v. Bondi, 141 F.4th 560, 566 (4th Cir. 2025) (quoting

Nader v. Blair, 549 F.3d 953, 962 (4th Cir. 2008)); see also United

States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 268 (1954).

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constitutions.” Minnesota v. Nat’l Tea Co., 309 U.S. 551, 557

(1940). Although Maryland courts ordinarily read Articles 24 and

36 in pari materia with their federal counterparts, that is not

always or necessarily the case. Koshko v. Haining, 398 Md. 404,

444 n.22 (2007) (explaining that while Article 24 is ordinarily

read in pari materia with federal due process provisions, Maryland

courts “have not hesitated, where deemed appropriate, to offer a

different interpretation”); Booth v. Maryland, 337 F.App’x 301,

311 (4th Cir. 2009) (“Maryland state courts have proceeded on the

basis that . . . Article 36 and the First Amendment of the United

States Constitution have the same effect.” (citations omitted)).16

In fact, the Fourth Circuit has noted that a district court “erred

in passing on the merits of plaintiffs’ Article 24 claim” because

Article 24 is not necessarily in pari materia with federal due

process provisions. Waybright, 528 F.3d at 209. Although the

federal Constitution does not grant Plaintiff the protection he

asserts, it is possible that Maryland courts will afford greater

protection under Articles 24 and 36 the Maryland Declaration of

16 Also novel is the issue of whether Article 36 provides a

private cause of action. Booth, 337 F.App’x at 311 (“Whether

Article 36 of the Maryland Declaration of Rights provides a private

cause of action is undecided.” (citation omitted)). Other courts

in this circuit have declined to exercise supplemental

jurisdiction over a state constitutional claim when it is unclear

whether the provision of the state constitution at issue contains

a private right of action. E.g., Bayadi, 2017 WL 1091946, at *6.

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Rights. This court will not interfere with Maryland state courts’

resolution of these issues.

Rather than immediately effectuate the remand of the seven

state counts, however, the court will delay remand for thirty days

to give the parties an opportunity to move to stay the remand

pending appeal. Forty Six Hundred LLC v. Cadence Educ., LLC, 15

F.4th 70, 81 (1st Cir. 2021) (explaining that when a district court

decides to remand “in a removed case and the remand order is

appealable, the district court may wish to avoid immediately

certifying the remand order and returning the case file to the

state court until it believes” the risk of needing to retrieve the

state claims due to reversal on appeal “has abated”); Carlsbad

Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 641 (2009) (holding

that a remand order is appealable if it is based on the court’s

decision to decline to exercise supplemental jurisdiction).

IV. Conclusion

For the foregoing reasons, Defendants’ motions to seal will

be granted in part and denied in part, and their motion to dismiss

will be granted in part as to the federal claims. The state law

claims will be remanded to state court. A separate order will

follow.

/s/

DEBORAH K. CHASANOW

United States District Judge

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