Cornerstone Chrstn v. Univ Interscholastic

REVISED APRIL 9, 2009

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

March 20, 2009

No. 08-50429

Charles R. Fulbruge III

Clerk

CORNERSTONE CHRISTIAN SCHOOLS; SCOTT FARHART; SANDRA

FARHART; J F, Minor child of Scott and Sandra Farhart

Plaintiffs - Appellants

v.

UNIVERSITY INTERSCHOLASTIC LEAGUE (UIL); WILLIAM FARNEY;

CHARLES BUTCHER

Defendants - Appellees

Appeal from the United States District Court

for the Western District of Texas

Before KING, BENAVIDES, and CLEMENT, Circuit Judges.

KING, Circuit Judge:

Scott and Sandra Farhart enrolled their minor son, J.F., at Cornerstone

Christian Schools. The Farhart parents, J.F., and Cornerstone Christian

Schools together bring this suit against the University Interscholastic League

alleging that it infringed plaintiffs’ free exercise, equal protection, and due

process rights when it denied Cornerstone Christian Schools an opportunity to

apply for membership. Defendants moved to dismiss the complaint pursuant to

Rule 12(b) of the Federal Rules of Civil Procedure. The district court converted

parts of defendants’ motion to dismiss into a motion for partial summary

judgment and sought additional motions, briefing, and supporting evidence. It

then granted defendants’ motion to dismiss principally because plaintiffs failed

to state a claim on which the court could grant relief. It simultaneously granted

defendants’ motion for summary judgment because plaintiffs failed to raise a

genuine issue of material fact that Cornerstone Christian Schools was eligible

for membership in the University Interscholastic League pursuant to section

12(d) of its Constitution and Contest Rules. We affirm the district court’s

judgment in so far as it granted defendants’ motion to dismiss and resulted in

the dismissal of the case, and we vacate the district court’s judgment in so far as

it granted defendants’ initial motion for summary judgment.

I. FACTUAL & PROCEDURAL BACKGROUND

Cornerstone Christian Schools (“Cornerstone”), Scott and Sandra Farhart,

and their minor son, J.F., bring this suit against the University Interscholastic

League and its director and chairman (collectively, the “UIL” or “defendants”).

Plaintiffs allege that the UIL violated the First Amendment’s Free Exercise

Clause and Fourteenth Amendment’s Due Process and Equal Protection Clauses

when it adopted and enforced section 12(d) of the UIL’s Constitution and Contest

Rules (“section 12(d)”), which effectively banned most nonpublic schools from

membership.

A. Factual Background

Cornerstone is a Christian college preparatory school located in San

Antonio. It incorporates athletics into its educational program. J.F. attends

Cornerstone and has participated in numerous sports programs, including

football, track, soccer, and baseball, as well as other extracurricular activities.

2

From 1998 until September 2006, Cornerstone was a member of the Texas

Association of Private and Parochial Schools (“TAPPS”). 1 TAPPS is an

interscholastic athletic and academic league for private and parochial schools.

Membership in TAPPS is governed by an annual contract. Each year, member

schools complete the contract, which TAPPS effectively treats as an application

for renewal. In September 2006, TAPPS’s directors voted not to renew

Cornerstone’s contract. After TAPPS’s directors decided not to continue

Cornerstone’s membership, Cornerstone inquired about applying for UIL

membership.

The UIL is a non-profit association of public schools and open-enrollment

charter schools in Texas that organizes interscholastic athletic and academic

competition. The UIL is part of the Division of Continuing Education of the

University of Texas at Austin, submits its rules and procedures to the

commissioner of the Texas Education Agency for approval, and files its

accounting report with the governor of Texas and each house of the Texas

Legislature. See T EX. E DUC. C ODE § 33.083(d). The UIL is the largest

interschool organization of its kind in the world, comprising over 1300 public

school districts.

Since 2003, the UIL has permitted private and parochial schools to apply

for membership if they meet specific and narrow qualifications established by

section 12(d). That section states:

PRIVATE SCHOOLS. Unless its right to participate has been

suspended or revoked for violating rules or codes by another league

similar to the UIL, a Texas non-public school may apply for UIL

membership in the largest conference (currently 5A) provided the

school meets all of the following conditions:

1

On at least two occasions within that period that are not at issue in this case,

Cornerstone’s ability to participate in TAPPS was either revoked or suspended.

3

***

(2) school does not qualify for membership in any other

organization similar to the League;

***

UIL C ONSTITUTION AND C ONTEST R ULES FOR 2006–2007 § 12(d). Under this

provision, the UIL has admitted two large parochial schools; however, when

Cornerstone sought to apply for membership in the UIL in September 2006, the

UIL refused to allow Cornerstone to submit an application for the stated reason

that Cornerstone was eligible for admission to other organizations similar to the

UIL. According to plaintiffs’ complaint, the UIL’s understanding was that such

other organizations included TAPPS, the Texas Christian Athletic League

(“TECAL”), and the Southwest Preparatory Conference (the “SPC”).

B. Procedural History

Plaintiffs filed their complaint on December 12, 2007, seeking a judgment

declaring section 12(d) unconstitutional and enjoining its enforcement. They

alleged that section 12(d) burdens Cornerstone’s parents’ and students’ free

exercise of religion and Cornerstone’s parents’ right to control their children’s

education by sending them to a parochial school. They also alleged that the

policy violates equal protection because it excludes nonpublic schools and

arbitrarily distinguishes between nonpublic schools of different sizes, effectively

limiting membership to the two large parochial schools already admitted into the

UIL. Finally, plaintiffs argued that section 12(d) violates chapter 110 of the

Texas Civil Practices and Remedies Code, a claim not at issue on appeal.

In their answer, defendants averred that Cornerstone was ineligible for

membership under section 12(d) because it was eligible for membership in

another league and because its membership in TAPPS was suspended or revoked

for rules violations. Defendants then filed a motion to dismiss under Rule 12(b).

They moved to dismiss all or part of the complaint on three grounds: first, they

4

argued that Cornerstone lacks standing to raise the constitutional rights of its

students and their parents; second, defendants asserted that section 12(d) does

not burden plaintiffs’ free exercise of religion or the parents’ right to control their

children’s education; and third, they contended that section 12(d) does not

violate equal protection of the laws. The district court decided to convert

portions of the motion to dismiss into a motion for summary judgment. In

particular, the court asked for summary judgment motions, briefing, and

supporting evidence regarding Cornerstone’s qualification to apply for

membership in the UIL under section 12(d). After discovery, defendants

reasserted their motion to dismiss and filed an initial motion for summary

judgment under Rule 56 of the Federal Rules of Civil Procedure, which plaintiffs

opposed. The primary disputes with regard to the summary judgment motion

were, for the purpose of application of section 12(d), whether Cornerstone

qualifies for membership in TAPPS and whether TAPPS’s decision not to renew

Cornerstone’s membership constituted a suspension or revocation of

Cornerstone’s right to participate in TAPPS. An affirmative answer to either

inquiry would disqualify Cornerstone from membership in the UIL under section

12(d).

In a single order, the district court granted defendants’ motion to dismiss

and initial motion for summary judgment. The court dismissed the complaint

because: (1) Cornerstone lacks standing to bring the free exercise claim on

behalf of its students and their parents because those claims “must be asserted

by the individuals whose religion is being infringed”; (2) section 12(d) “does not

burden the exercise of religion, does not violate the First Amendment, and does

not violate the fundamental right of Cornerstone parents to control the

education of their children”; and (3) section 12(d) does not violate equal

protection because it “bears a rational relationship to the state’s interest of

5

reducing unfair or unequal competition in extracurricular activities and prevents

the UIL from becoming a dumping ground for those private schools eligible or

qualified to compete in TAPPS or similar organizations but violate rules to be

precluded from those organizations in order to join the UIL [sic].” The district

court proceeded to grant defendants’ initial motion for summary judgment

because Cornerstone is ineligible for membership in the UIL under section 12(d)

for two alternative reasons: (1) TAPPS’s decision in 2006 not to renew

Cornerstone’s membership was predicated on Cornerstone’s recruiting violations

and thus the equivalent of a revocation or suspension for a rules violation; and

(2) Cornerstone is eligible for membership in TAPPS.2

Plaintiffs appeal the district court’s order.

II. DISCUSSION

We review de novo the district court’s order granting defendants’ motion

to dismiss under Rule 12(b)(1) based on Cornerstone’s lack of standing to allege

a free exercise claim. See Donelon v. La. Div. of Admin. Law ex rel. Wise, 522

F.3d 564, 566 (5th Cir. 2008). We apply the same de novo standard to review the

district court’s order granting defendants’ motion to dismiss under Rule 12(b)(6)

for failure to state a free exercise, due process, or equal protection claim. See,

e.g., Kennedy v. Chase Manhattan Bank USA, NA, 369 F.3d 833, 839 (5th Cir.

2004). To resist a dismissal pursuant to Rule 12(b)(6), plaintiffs must plead

“enough facts to state a claim for relief that is plausible on its face.” Bell Atl.

Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007). The complaint’s “[f]actual

allegations must be enough to raise a right to relief above the speculative level

2

In its 58-page opinion, the district court inexplicably digresses at length into

quotations from both the Bible and children’s stories, as well as into a recitation of the “ironic

background” of plaintiffs’ claims—all before discussing the facts relevant to disposing of this

case. Those digressions are inappropriate and unnecessary to the otherwise straightforward

resolution of the case.

6

on the assumption that all the allegations in the complaint are true (even if

doubtful in fact).” Id. at 1965 (citations omitted).

Similarly, we review de novo the district court’s order granting defendants’

motion for summary judgment under Rule 56 and apply the same standard as

did the district court. See Adams v. Travelers Indem. Co., 465 F.3d 156, 163 (5th

Cir. 2006). We will affirm the district court’s order granting summary judgment

“if the pleadings, the discovery and disclosure materials on file, and any

affidavits show that there is no genuine issue as to any material fact and that

the movant is entitled to judgment as a matter of law.” F ED. R. C IV. P. 56(c).

Reviewing de novo, we affirm the district court’s order dismissing

Cornerstone for lack of standing to allege a free exercise claim, dismissing

plaintiffs’ free exercise, due process, and equal protection claims, and thus

dismissing the case. Because these decisions resolve all claims alleged in the

complaint and result in dismissal of the case, we vacate the district court’s order

granting defendants’ motion for summary judgment as to Cornerstone’s

qualification under section 12(d).

A. Cornerstone’s Standing to Allege a Free Exercise Claim

No party contests that the Farharts, parents and child, have standing to

bring free exercise, due process, and equal protection claims.3 Cornerstone, on

the other hand, lacks standing to bring a free exercise claim.4 Plaintiffs bear the

3

The complaint alleges facts sufficient to establish the Farharts’ standing at the time

of filing. Prior to oral argument, the court asked plaintiffs to confirm that J.F. remains a

student at Cornerstone and that any favorable decision will benefit him. Plaintiffs have

confirmed that J.F. is a senior, graduating in May 2009, and that he will benefit from a

favorable decision. This confirmation is sufficient to establish Farharts’ continuing standing

to bring free exercise, due process, and equal protection claims in the context of our

consideration of the motion to dismiss.

4

The scope of the district court’s order with respect to Cornerstone’s standing is not

clear. In their motion to dismiss, defendants argued that “[t]he parental, free exercise of

7

burden of establishing Cornerstone’s standing “in the same way as any other

matter on which the plaintiff[s] bear[] the burden of proof, i.e., with the manner

and degree of evidence required at the successive stages of the litigation.” Lujan

v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Thus, on a motion to dismiss,

plaintiffs must allege facts that give rise to a plausible claim of Cornerstone’s

standing. Id.

Under well-established precedent:

[A]n association has standing to bring suit on behalf of its members

when: (a) its members would otherwise have standing to sue in their

own right; (b) the interests it seeks to protect are germane to the

organization’s purpose; and (c) neither the claim asserted nor the

relief requested requires the participation of individual members in

the lawsuit.

Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977). Here,

defendants contest only the third element, arguing that the alleged free exercise

claim requires the participation of the individual parents and students.

In Harris v. McRae, 448 U.S. 297 (1980), the Supreme Court considered

the third element of the Hunt test in the context of a free exercise claim made

by a women’s rights organization opposing federal statutory limitations on

religion, and equal protection rights asserted by the plaintiffs belong to the students of

[Cornerstone] and their parents, not to the school.” As such, defendants asserted that

Cornerstone lacked standing to challenge the UIL’s policy. The district court’s judgment

granted that motion. It did so, however, consistent with its accompanying order. In that

order, the district court only analyzed Cornerstone’s standing to bring the free exercise claim;

it did not mention Cornerstone’s standing to bring due process or equal protection claims. Nor

did it expressly dismiss Cornerstone as a party to the suit, which would have been the

expected result of granting defendants’ motion to dismiss. In addition, the court proceeded to

grant defendants’ motion for summary judgment on the basis that Cornerstone was ineligible

for membership in the UIL, a decision incompatible with any conclusion other than

Cornerstone’s continuing status as a party to the case. Because the Farharts have standing

to assert all relevant constitutional claims and as these issues have not been raised by the

parties in their briefing to this court, we express no opinion regarding Cornerstone’s standing

to bring a due process or equal protection claim.

8

Medicaid reimbursement for abortion procedures. To determine whether the

free exercise claim required individual participation, the Court examined the

claim’s substance. Id. at 321. It held that, “[s]ince ‘it is necessary in a free

exercise case for one to show the coercive effect of the enactment as it operates

against him in the practice of his religion,’ the claim asserted here is one that

ordinarily requires individual participation,” and “the participation of individual

members . . . is essential to a proper understanding and resolution of their free

exercise claims.” Id. (quoting Sch. Dist. of Abington Twp. v. Schempp, 374 U.S.

203, 223 (1963)); see also Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 292

n.25 (5th Cir. 2001).

Harris precludes Cornerstone’s standing to bring the free exercise claim

in this case. The involvement of parents and students, such as the Farharts, is

essential to the resolution of the individualized element of coercion within this

free exercise claim.5 Although Cornerstone lacks standing to assert a free

exercise claim, the Farharts have standing, so we now proceed to a discussion

of the merits of all of plaintiffs’ claims.

B. Free Exercise, Due Process, and Equal Protection Claims

1. Free Exercise and Due Process Claims

5

Plaintiffs contend that because Cornerstone seeks only declaratory or injunctive relief,

participation of its parents and students is not required. In Warth v. Seldin, 422 U.S. 490

(1975), the Supreme Court held that “[i]f in a proper case the association seeks a declaration,

injunction, or some other form of prospective relief, it can reasonably be supposed that the

remedy, if granted, will inure to the benefit of those members of the association actually

injured.” Id. at 515. The flaw in plaintiffs’ argument is that, even if the benefit will inure to

the appropriate individuals, the third prong of Hunt is not satisfied unless “neither the claim

asserted nor the relief requested requires the participation of individual members in the

lawsuit.” See, e.g., Rent Stabilization Ass’n v. Dinkins, 5 F.3d 591, 596 (2d Cir. 1993)

(quotation marks and citation omitted, emphasis in original). That Cornerstone seeks only

prospective relief says nothing about the claim asserted.

9

Section 12(d) does not infringe plaintiffs’ free exercise or due process

rights. Plaintiffs’ primary argument is that, by denying UIL membership to

nearly all nonpublic schools, section 12(d) imposes an unconstitutional condition

on the Farharts’ decision to send J.F. to parochial school, thus infringing their

free exercise and due process rights. The First Amendment’s prohibition on the

making of a law “prohibiting the free exercise” of religion applies to the states

through the Fourteenth Amendment. See Cantwell v. Connecticut, 310 U.S. 296,

303 (1940). The “free exercise of religion means, first and foremost, the right to

believe and profess whatever religious doctrine one desires.” Employment Div.,

Dep’t of Human Res. of Ore. v. Smith, 494 U.S. 872, 877 (1990).6 Thus, the First

Amendment excludes all “governmental regulation of religious beliefs as such.”

Sherbert v. Verner, 374 U.S. 398, 402 (1963). The government does not

impermissibly regulate religious belief, however, when it promulgates a neutral,

generally applicable law or rule that happens to result in an incidental burden

on the free exercise of a particular religious practice or belief. Church of the

Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993);

Employment Div., 494 U.S. at 879. Moreover, the First Amendment does not

“require the Government itself to behave in ways that the individual believes

6

Although Congress passed the Religious Freedom Restoration Act of 1993 (“RFRA”),

42 U.S.C. § 2000bb et seq., in part to abrogate the Court’s decision in Employment Division,

the Court in City of Boerne v. Flores, 521 U.S. 507, 532–36 (1997), held that the RFRA was

unconstitutional because it exceeded Congress’s remedial powers under section 5 of the

Fourteenth Amendment. See Adkins v. Kaspar, 393 F.3d 559, 566–67 (5th Cir. 2004). Thus,

the holding of Employment Division remains valid as to state and municipal actions. As such,

“the government may not, for example, (1) compel affirmation of religious beliefs; (2) punish

the expression of religious doctrines it believes to be false; (3) impose special disabilities on the

basis of religious views or religious status; or (4) lend its power to one side or the other in

controversies over religious authorities or dogma.” Parker v. Hurley, 514 F.3d 87, 103 (1st Cir.

2008) (citing Employment Div., 494 U.S. at 877).

10

will further his or her spiritual development or that of his or her family.” Bowen

v. Roy, 476 U.S. 693, 699 (1986).7

The Farhart parents also assert a fundamental right under the Fourteenth

Amendment’s Due Process Clause to direct the upbringing and education of their

child. Parents have a fundamental interest in raising and educating their

children. See, e.g., Troxel v. Granville, 530 U.S. 57, 65 (2000); Littlefield, 268

F.3d at 288. This fundamental right, however, is not absolute, and states can

subject it to reasonable regulation, particularly when the state’s interest relates

to the provision of public education. See Littlefield, 268 F.3d at 291 (listing cases

permitting state encroachment onto the parent’s right to direct a child’s

upbringing); see also Kite v. Marshall, 661 F.2d 1027, 1029 (5th Cir. 1981)

(same). The parents’ right protects their prerogative to make choices regarding

the type of education—e.g., public, private, or home-schooling—that their child

receives but not particular components of that education, such as participation

in interscholastic athletics or enrollment in particular courses. See Nevares v.

San Marcos Consol. Indep. Sch. Dist., 111 F.3d 25, 27 (5th Cir. 1997) (rejecting

“that there is any protected interest in the separate components of the

educational process, such as participation in interscholastic athletics”) (citing,

e.g., Seamons v. Snow, 84 F.3d 1226, 1234–35 (10th Cir. 1996)); accord Swanson

ex rel. Swanson v. Guthrie Indep. Sch. Dist. No. I-L, 135 F.3d 694, 699 (10th Cir.

7

For example, in Locke v. Davey, 540 U.S. 712 (2004), the Supreme Court, considering

a state’s denial of scholarship funds to pursue a degree in devotional theology, held that:

In the present case, the State’s disfavor of religion (if it can be called that) is of

a far milder kind. It imposes neither criminal nor civil sanctions on any type

of religious service or rite. It does not deny to ministers the right to participate

in the political affairs of the community. And it does not require students to

choose between their religious beliefs and receiving a government benefit. The

State has merely chosen not to fund a distinct category of instruction.

Id. at 720–21 (citations omitted).

11

1998) (“[P]arents simply do not have a constitutional right to control each and

every aspect of their children’s education and oust the state’s authority over that

subject.”).8

This court has considered many variations of claims alleging infringement

of constitutional rights in the context of eligibility rules for competition in

interscholastic leagues and has uniformly rejected constitutional challenges to

those rules. See, e.g., Hardy v. Univ. Interscholastic League, 759 F.2d 1233, 1234

(5th Cir. 1985) (“Participation in interscholastic athletics is not an ‘interest’

protected by the Due Process Clause.”); Niles v. Univ. Interscholastic League, 715

8

“A regulation that is neutral on its face and is motivated by legitimate secular

concerns may, in its application, offend the first amendment requirement of governmental

neutrality if it unduly burdens the free exercise of religion.” Walsh v. La. High Sch. Athletic

Ass’n, 616 F.2d 152, 157 (5th Cir. 1980) (emphasis added) (citing Wisconsin v. Yoder, 406 U.S.

205, 220 (1972)). Such undue burden may occur where the plaintiff alleges a viable free

exercise claim in conjunction with another colorable constitutional claim, giving rise to

heightened scrutiny. See Employment Div., 494 U.S. at 880 (“The only decisions in which we

have held that the First Amendment bars application of a neutral, generally applicable law

to religiously motivated action have involved not the Free Exercise Clause alone, but the Free

Exercise Clause in conjunction with other constitutional protections, such as . . . the right of

parents . . . to direct the education of their children.” (citations omitted)). Although the

Farharts do not expressly allege such a “hybrid claim,” they do allege violations of both their

free exercise and parental control rights and cite Yoder, the archetypal hybrid rights case

dealing with the overlap of those rights. In that case, the Court invalidated Wisconsin’s

compulsory-attendance law, which “affirmatively compel[led] [the Amish], under threat of

criminal sanction, to perform acts undeniably at odds with fundamental tenets of their

religious beliefs.” 406 U.S. at 218. After determining that, “when the interests of parenthood

are combined with a free exercise claim of the nature revealed by this record, more than

merely a ‘reasonable relation to some purpose within the competency of the State’ is required

to sustain the validity of the State’s requirement under the First Amendment,” id. at 233, the

Court invalidated the law because, “by substantially interfering with the religious

development of the Amish child and his integration into the way of life of the Amish faith

community at the crucial adolescent stage of development, [the law] contravenes the basic

religious tenets and practice of the Amish faith, both as to the parent and the child,” id. at 218.

As discussed below, we conclude here that “the nature of this record” is dissimilar to that of

Yoder and that plaintiffs do not have a colorable claim for a violation of either their free

exercise or their due process rights; therefore, we need not consider whether any potential

overlap of the asserted rights requires a heightened level of scrutiny. See Swanson, 135 F.3d

at 700.

12

F.2d 1027, 1031 (5th Cir. 1983) (“Forthrightly stated, the gravamen of the

complaint here is the denial of the right to participate in interscholastic sports,

not the rights to interstate travel, to earn a living or to live with or apart from

one’s family.”); Walsh, 616 F.2d at 158–60 (upholding a rule that “places an

indirect and incidental burden on the free exercise of the religious beliefs of

these parents” because “[a] student’s interest in participating in a single year of

interscholastic athletics amounts to a mere expectation” that “falls outside the

protection of due process” (quotation marks omitted)). But cf. La. High Sch.

Athletic Ass’n v. St. Augustine High Sch., 396 F.2d 224, 228–29 (5th Cir. 1968)

(disallowing racial discrimination in the admission of schools to the Louisiana

High School Athletic Association).

We reach the same conclusion and reject the claims here because plaintiffs

fail to show that section 12(d) unduly burdens either free exercise or due process

rights or any combination thereof. In fact, as plaintiffs admitted during oral

argument, free exercise is not substantially implicated in this case. Section

12(d) is religiously neutral and generally applicable: it does not distinguish

between private and parochial nonpublic schools and does not deny the Farharts

their right actively to practice their faith. Further, section 12(d) imposes neither

criminal nor civil sanctions on any type of religious education, service, or rite.

Nor does it unduly restrict J.F.’s ability to obtain a religiously centered

education—including participation in interscholastic competition and

events—separate and apart from the public school system.9 Any burden on free

exercise is nearly imperceptible. Moreover, plaintiffs have not alleged that

attending Cornerstone is part of a religious belief or integral to their culture as

9

Indeed, Cornerstone may seek reentry into TAPPS, apply for membership in other

leagues such as TECAL or the SPC, or compete against other schools through one-on-one

arrangements.

13

was the concern in Yoder; rather, it is a matter of religious preference.10 Clearly,

section 12(d) does not unduly burden the Farharts’ free exercise of their religion.

Likewise, section 12(d) does not impermissibly infringe the Farharts’ due

process right to control J.F.’s education. It does not prohibit the parents from

enrolling J.F. at Cornerstone or place any restriction on their exercise of that

choice. Simply put, the Farharts desire a benefit offered to public school

students that J.F. lost through their decision to send him to nonpublic school.

However, the Farharts’ right to educate J.F. at Cornerstone does not come with

a concomitant right to opt into those portions of a public education that they

deem advantageous. The loss of access to certain aspects of public education was

part of the calculus that colored the Farharts’ choice between public and

nonpublic education. That calculus included the UIL and section 12(d),

Cornerstone’s size, and any other applicable background rules or conditions,

including restrictions on access to public school courses.11 At least initially, the

Farharts accepted that J.F. would participate in competition through TAPPS,

not the UIL. The “constitutional” infringement did not arise until Cornerstone

lost its membership in TAPPS. That Cornerstone is no longer a member of

TAPPS does not now render the UIL’s rule an unconstitutional burden on their

choice.

10

The differences between this case and Yoder are instructive. Here, the complaint and

pleadings do not reveal that participation in public interscholastic competition is central to the

Farharts’ religion; in fact, unlike the isolation sought by the Amish in Yoder, the Farharts

simultaneously seek to obtain for J.F. a separate religious education and the benefits of public

interscholastic competition.

11

During oral argument, plaintiffs attempted to distinguish educational components

such as science classes, which are integral to education and thus integral to their choice of

parochial school, from those such as the UIL, which are purportedly not integral to the

educational system and thus independent of their choice. Such a distinction, to which we give

no credence, only undermines plaintiffs’ argument that section 12(d) burdens the Farharts’

right to control J.F.’s education.

14

Although clothed in free exercise and due process claims, this lawsuit is

fundamentally about J.F.’s right to participate in interscholastic competition.

As we have previously stated:

[W]e are not super referees over high school athletic programs.

Questions about eligibility for competition may loom large in the

eyes of youths, and even their parents. We do not disparage their

interest in concluding, as here, that these issues are not of

constitutional magnitude. Behind this observation rest important

values of federalism and the reality that the mighty force of the

constitutional commands ought not to be so trivialized.

Hardy, 759 F.2d at 1235. Following that lead, we hold that section 12(d)’s

restriction on nonpublic schools’ eligibility for membership does not unduly

burden plaintiffs’ fundamental rights.12

12

Faced with the reality that section 12(d) does not unconstitutionally infringe either

free exercise or due process rights, plaintiffs contend that section 12(d) unconstitutionally

conditions the receipt of a public benefit—participation in the UIL—on the nonexercise of their

constitutional rights. Under this theory, “even though a person has no ‘right’ to a valuable

governmental benefit and even though the government may deny him the benefit for any

number of reasons, . . . [i]t may not deny a benefit to a person on a basis that infringes his

constitutionally protected interests.” Perry v. Sindermann, 408 U.S. 593, 597 (1972); see also

Sherbert, 374 U.S. at 404 (“It is too late in the day to doubt that the liberties of religion and

expression may be infringed by the denial of or placing of conditions upon a benefit or

privilege.”). Plaintiffs’ theory has typically been applied to cases involving unemployment

compensation, where the government leverages a system of evaluation that includes

individualized or particularized assessments. Employment Div., 494 U.S. at 883–84; Bowen,

476 U.S. at 706; see also Fyfe v. Curlee, 902 F.2d 401, 402–03 (5th Cir. 1990) (after

individualized review, public school teacher transferred to a different position because she sent

her child to private school); Brantley v. Surles, 718 F.2d 1354, 1355–56, 1358 (5th Cir. 1983)

(after individualized meetings with board of education, public school cafeteria manager fired

for sending child to private school); accord Swanson, 135 F.3d at 701 (“In the absence of a

system of individualized exceptions to the no-part-time-attendance policy, there is no room for

a Sherbert-type argument.”). In this case, plaintiffs have not alleged that section 12(d)

establishes a program or system of subjective, individualized consideration. Moreover, the

broader application advocated by plaintiffs is not supported by case law, as “[d]ecisions

rejecting religiously based challenges have often recited the fact that a mere denial of a

governmental benefit by a uniformly applicable statute does not constitute infringement of

religious liberty.” Bowen, 476 U.S. at 704. This conclusion resonates with particular force in

the area of public education because the government is allocating a benefit not to the general

public but to public school students: the condition—attendance in public school—inherently

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2. Equal Protection Claim

Section 12(d) does not violate equal protection of the laws based either on

its distinction between public and nonpublic schools or its purported distinction

between nonpublic schools of differing sizes. The Equal Protection Clause

“commands that no State shall ‘deny to any person within its jurisdiction the

equal protection of the laws,’ which is essentially a direction that all persons

similarly situated should be treated alike.” City of Cleburne v. Cleburne Living

Ctr., 473 U.S. 432, 439 (1985). We inquire about equal protection of the laws

“[o]nly if the challenged government action classifies or distinguishes between

two or more relevant groups.” Qutb v. Strauss, 11 F.3d 488, 492 (5th Cir. 1993).

“Where . . . the classification created by the regulatory scheme neither trammels

fundamental rights or interests nor burdens an inherently suspect class, equal

protection analysis requires that the classification be rationally related to a

legitimate state interest.” Walsh, 616 F.2d at 160; see also Locke, 540 U.S. at

721 n.3. Under rational-basis scrutiny, the regulation is “accorded a strong

presumption of validity” and “must be upheld against equal protection challenge

if there is any reasonably conceivable state of facts that could provide a rational

basis for the classification.” Heller v. Doe, 509 U.S. 312, 319–20 (1993)

(quotation marks and citations omitted).

Section 12(d) distinguishes between public and nonpublic schools,

permitting only a narrow window for nonpublic schools to apply for membership

corresponds to the benefit conferred—public education and its constituent parts. See Gary S.

v. Manchester Sch. Dist., 374 F.3d 15, 19 (1st Cir. 2004) (holding constitutional a law

allocating to only public schools the “benefits the federal government has earmarked solely for

students enrolled in the nation’s public schools—benefits still available for [the student] were

he sent to a public school, though not otherwise”). It is axiomatic that public educational

systems may provide and fund programs open only to public schools and to public school

students without necessarily infringing the constitutional rights of nonpublic school students.

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in the UIL, and we assume, without deciding, that section 12(d) distinguishes

between large and small nonpublic schools.13 Neither of these distinctions is

based on a suspect classification (such as religious preference); therefore,

rational-basis review applies. Considering the deference paid by the court in

this form of review, section 12(d) bears a rational relationship to the state’s

interest in reducing unfair competition in the UIL. This is clearly true of the

UIL’s distinction between public schools, which may draw participants only from

a defined geographical area, and nonpublic schools, which may draw students

from anywhere, but also applies to the distinction between nonpublic schools of

different sizes. Large public schools are more capable of selecting talent from

their larger populations to match large private school’s recruiting ability. Small

public schools could not so effectively compete against small private schools,

which, as noted, are not subject to geographical limitations. Although better

alternatives may exist, the UIL need not choose the least restrictive method of

achieving its desired ends. Thus, section 12(d) does not infringe plaintiffs’ free

exercise, due process, or equal protection rights.14

13

Alternatively, we could plausibly interpret section 12(d) to permit any private school,

regardless of its size, to apply to join the UIL. If accepted into membership, the private school

would then automatically be placed in the UIL’s largest division, again regardless of its size.

Plaintiffs concede this would be an acceptable rule. Defendants, however, have not offered

clarity on how we should interpret section 12(d)’s provision that “a Texas non-public school

may apply for UIL membership in the largest conference (currently 5A),” so we will assume

for purposes of the present consideration that it limits membership applications to nonpublic

schools that would be classified in conference 5A if they were a public school. We note,

however, that this was not the UIL’s stated reason for denying Cornerstone’s request to apply

for membership.

14

We are also reluctant to grant the relief plaintiffs seek because of its breadth.

Plaintiffs asks us to declare section 12(d) unconstitutional, thus opening the door to the UIL

for all nonpublic schools. The only other viable alternative under the complaint—granting an

exception to Cornerstone (or perhaps all parochial schools) based on the theory that the free

exercise claims elevate Cornerstone (or all parochial schools) to a higher status than secular

nonpublic schools—would be equally unacceptable under federal law. See Swanson, 135 F.3d

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C. Cornerstone’s Qualification Under Section 12(d)

Our above holdings dispose of all of plaintiffs’ claims and result in the

dismissal of the entire case; therefore, we vacate the district court’s order

granting summary judgment for defendants on the issue of Cornerstone’s

ineligibility to apply for UIL membership. The complaint does not question the

decision that the UIL made under section 12(d), but only the constitutionality

of that provision.15 Plaintiffs seek an injunction against section 12(d)’s

enforcement and a declaration that it violates plaintiffs’ constitutional rights.

In their answer, defendants averred that their decision to deny Cornerstone an

opportunity to apply for membership was based on Cornerstone’s qualification

for membership in another league and because Cornerstone had its right to

participate in TAPPS suspended or revoked for rules violations. The district

court concluded that whether the UIL properly determined Cornerstone’s

qualification or disqualification to apply for UIL membership was a fact question

that it needed to decide through summary judgment:16 “In this search for the

truth of why Cornerstone has brought this lawsuit, it would be most helpful to

review minutes, correspondence, and other records from [TAPPS] in appropriate

summary judgment form.” Acceding to the court’s request, defendants filed their

initial motion for summary judgment and supporting documentation;

at 701–02 (holding that the Free Exercise Clause does not require the government to provide

“special treatment not accorded other home-schooled or private-schooled students” in the form

of “an added exception to the part-time attendance policy [which denied home-schooled

students the right to take classes in public schools], that would accommodate people who

home-school for religious reasons”).

15

Although the complaint disagrees with the UIL’s conclusion that TAPPS, TECAL,

and the SPC are comparable leagues, it does not allege a claim arising from the UIL’s

application of section 12(d) to Cornerstone.

16

Because we vacate the order granting summary judgment, we need not decide the

relevant level of deference to grant to the UIL in its interpretation and application of its rules.

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nonetheless, in that motion, they expressly preserved that “their Motion to

Dismiss for failure to state a claim, as previously set forth . . . is sufficient for the

Court to dismiss this case without the factual evidence provided herein.”

Based on the summary judgment evidence presented, the district court

first held that Cornerstone is ineligible for membership in the UIL because it is

qualified for membership in TAPPS: it meets the definition of an eligible

parochial school under TAPPS’s constitution and bylaws. The district court

alternatively concluded that Cornerstone is ineligible for membership in the UIL

because TAPPS’s board of directors’ decision not to renew Cornerstone’s

membership, which resulted from Cornerstone’s inducement of basketball

players in violation of TAPPS’s recruiting rules, “had the same effect, for rule

12(d) purposes, as a suspension or revocation.”

During oral argument before this court and despite their opposition to the

district court’s holding, plaintiffs conceded that they did not allege a claim

regarding the UIL’s application of section 12(d) to Cornerstone and that the

issues handled through summary judgment were not germane to the claims they

maintain. Similarly, despite supporting the district court’s holding, defendants

could not identify any reason why the district court’s granting of their summary

judgment motion was necessary for its ultimate judgment of dismissal of the

case. Defendants’ motion to dismiss, which the district court granted in full,

specifically sought dismissal of all claims. And, as noted above, in their motion

for summary judgment, defendants reasserted that granting their motion to

dismiss would resolve all claims in the case.

Thus, it is not clear from the record that the district court needed to order

defendants to move for summary judgment or to rule on that motion after

granting defendants’ motion to dismiss. As plaintiffs do not contend that the

parties’ treatment of the summary judgment motion constituted a de facto

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amendment of the complaint to allege a claim for which Cornerstone’s

qualification under section 12(d) is material, and because, by affirming the

district court’s order granting defendants’ motion to dismiss, we dispose of the

entire case, we vacate the district court’s order granting summary judgment.

III. CONCLUSION

For the forgoing reasons, we AFFIRM the district court’s judgment in so

far as it grants defendants’ motion to dismiss and results in dismissal of the case

and VACATE the judgment in so far as it grants defendants’ motion for

summary judgment. Costs shall be borne by plaintiffs.

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