Parker v. Town of Lexington

United States Court of Appeals
For the First Circuit

No. 07-1528

DAVID PARKER; TONIA PARKER; JOSHUA PARKER; JACOB PARKER; JOSEPH
ROBERT WIRTHLIN; ROBIN WIRTHLIN; JOSEPH ROBERT WIRTHLIN, JR.,

Plaintiffs, Appellants,

v.

WILLIAM HURLEY; PAUL B. ASH; HELEN LUTTON; THOMAS R. DIAZ; OLGA
GUTTAG; SCOTT BURSON; ANDRE RAVENELLE; JONI JAY; JENNIFER
WOLFRUM; HEATHER KRAMER; TOWN OF LEXINGTON; THOMAS GRIFFITH,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
OF THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

Before

Lynch, Circuit Judge,
Stahl, Senior Circuit Judge,
and Howard, Circuit Judge.

Robert S. Sinsheimer with whom Jeffrey A. Denner, Neil Tassel,
and Denner Pellegrino, LLP, were on brief for appellants.
John K. Davis with whom Pierce, Davis & Perritano, LLP, was on
brief for appellees.
Eben A. Krim, Mark W. Batten, Proskauer Rose, LLP, Sarah R.
Wunsch, ACLU Foundation of Massachusetts, Kenneth Y. Choe, James D.
Esseks, and ACLU Foundation on brief for American Civil Liberties
Union; American Civil Liberties Union of Massachusetts; Lexington
Community Action for Responsible Education and Safety; Lexington
Education Association; Massachusetts Teachers Association; and
Respecting Differences, amici curiae.
Harvey J. Wolkoff, Bonnie S. McGuire, Ropes & Gray LLP, Robert
O. Trestan, Steven M. Freeman, Steven C. Sheinberg, Deborah Cohen,
and Anti-Defamation League on brief for Anti-Defamation League,
amicus curiae.
Nima R. Eshghi, Mary L. Bonauto, Gary D. Buseck, and Gay &
Lesbian Advocates & Defenders on brief for Gay & Lesbian Advocates
& Defenders; Gay, Lesbian & Straight Education Network; Greater
Boston Parents, Families and Friends of Lesbians and Gays; Human
Rights Campaign; Human Rights Campaign Foundation; and the
Massachusetts Women's Bar Association, amici curiae.

January 31, 2008
 LYNCH, Circuit Judge. Two sets of parents, whose

religious beliefs are offended by gay marriage and homosexuality,

sued the Lexington, Massachusetts school district in which their

young children are enrolled. They assert that they must be given

prior notice by the school and the opportunity to exempt their

young children from exposure to books they find religiously

repugnant. Plaintiffs asserted violations of their own and their

children's rights under the Free Exercise Clause and their

substantive parental and privacy due process rights under the U.S.

Constitution.

The Parkers object to their child being presented in

kindergarten and first grade with two books that portray diverse

families, including families in which both parents are of the same

gender. The Wirthlins object to a second-grade teacher's reading

to their son's class a book that depicts and celebrates a gay

marriage. The parents do not challenge the use of these books as

part of a nondiscrimination curriculum in the public schools, but

challenge the school district's refusal to provide them with prior

notice and to allow for exemption from such instruction. They ask

for relief until their children are in seventh grade.

Massachusetts does have a statute that requires parents

be given notice and the opportunity to exempt their children from

curriculum which primarily involves human sexual education or human

sexuality issues. Mass. Gen. Laws ch. 71, § 32A. The school

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system has declined to apply this statutory exemption to these

plaintiffs on the basis that the materials do not primarily involve

human sexual education or human sexuality issues.

The U.S. District Court dismissed plaintiffs' complaint

for failure to state a federal constitutional claim upon which

relief could be granted. Fed. R. Civ. P. 12(b)(6); Parker v.

Hurley, 474 F. Supp. 2d 261, 263 (D. Mass. 2007). Plaintiffs

appeal.

I.

Because plaintiffs appeal the dismissal of their

complaint under Rule 12(b)(6), we take the allegations in their

complaint as true and draw all reasonable inferences in plaintiffs'

favor. Otero v. Commonwealth of P.R. Indus. Comm'n, 441 F.3d 18,

20 (1st Cir. 2006).

In addition to the complaint, we consider the three books

plaintiffs find objectionable.1 We also take notice of the

statewide curricular standards of the Commonwealth of Massachusetts

and start with those to put this dispute in context.

1
Normally, documents not included in the original pleading
cannot be considered on a Rule 12(b)(6) motion without converting
the motion into one for summary judgment. Fed. R. Civ. P. 12(b).
However, "courts have made narrow exceptions for documents the
authenticity of which are not disputed by the parties; for official
records; for documents central to plaintiffs' claim; or for
documents sufficiently referred to in the complaint." Watterson v.
Page, 987 F.2d 1, 3 (1st Cir. 1993).

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A. Massachusetts Statewide Curricular Standards

The Commonwealth of Massachusetts enacted a comprehensive

education reform bill in 1993, requiring the State Board of

Education (SBE) to establish academic standards for core subjects.

Mass. Gen. Laws ch. 69, § 1D. The statute mandates that the

standards "be designed to inculcate respect for the cultural,

ethnic and racial diversity of the commonwealth." Id. Further,

"[a]cademic standards shall be designed to avoid perpetuating

gender, cultural, ethnic or racial stereotypes." Id.; see also id.

§ 1E (requiring same for the establishment of curricular

frameworks). The statute does not specify sexual orientation in

these lists.

The SBE established such standards, including a

Comprehensive Health Curriculum Framework in 1999. That Framework

establishes Learning Standards, which set different measurable

goals for students in pre-kindergarten through grade 5, grades 6-8,

and grades 9-12. The Health Framework also specifically notes that

"public schools must notify parents before implementing curriculum

that involves human sexuality."

Within the Framework are Strands, and Strands have

different components. Under the Social and Emotional Health

Strand, there is a Family Life component, which states:

Students will gain knowledge about the
significance of the family on individuals and
society, and will learn skills to support the
family, balance work and family life, be an

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 effective parent, and nurture the development of
children.

The Learning Standard for elementary school grades under the Family

Life component states that children should be able to "[d]escribe

different types of families."

In addition, the Social and Emotional Health Strand

includes an Interpersonal Relationships component. That component

provides:

Students will learn that relationships with
others are an integral part of the human life
experience and the factors that contribute to
healthy interpersonal relationships, and will
acquire skills to enhance and make many of these
relationships more fulfilling through commitment
and communication.

The associated Learning Standard for pre-kindergarten through grade

5 recommends that children be able to "[d]escribe the concepts of

prejudice and discrimination."

It is not until grades 6-8 that the Learning Standards

under this component address "the detrimental effect of prejudice

(such as prejudice on the basis of race, gender, sexual

orientation, class, or religion) on individual relationships and

society as a whole."

There is also a Reproduction/Sexuality component under

the Physical Health Strand. Within that component, the Learning

Standards provide that by grade 5, students should be able to

"[d]efine sexual orientation using the correct terminology (such as

heterosexual, and gay and lesbian)."

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 These statewide academic standards do not purport to

select particular instructional materials, but only to be a guide

to assist others in that selection. Mass. Gen. Laws ch. 69, § 1E.

Thus, there is no statewide regulation or policy providing for the

use of the particular texts in dispute here.

By statute, the actual selection of books is the

responsibility of a school's principal, with the approval of the

superintendent of schools. Mass. Gen. Laws ch. 71, § 48. We

assume these books were chosen locally subject to the terms of that

statute. Plaintiffs allege in their complaint that Lexington

school officials began integrating books like these into their

elementary school's curriculum at the behest of gay rights

advocates. Compl. ¶¶ 32-33.

In 1996, the Massachusetts legislature adopted a parental

notification statute to be implemented by schools starting with the

1997-1998 school year. Mass. Gen. Laws ch. 71, § 32A. Section 32A

requires school districts to provide parents with notice of and an

opportunity to exempt their children from "curriculum which

primarily involves human sexual education or human sexuality

issues." The Commissioner of Education, in an advisory opinion

guiding the implementation of the new law, noted that it was

intended to apply to discrete curricular units, such as "any

courses (typically, sex education or portions of a health education

or science course), school assemblies or other instructional

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activities and programs."2 Schools must make the relevant

curricular materials available for parents to review, though they

do not necessarily have to allow parents to observe the classes.

The statute mandates that the Department of Education promulgate

regulations for resolving any disputes arising under section 32A,

which the Department has done. See 603 Mass. Code Regs. 5.01 et

seq. Lexington has a section 32A policy in place.

On November 18, 2003, a divided Supreme Judicial Court of

Massachusetts held, in Goodridge v. Department of Public Health,

798 N.E.2d 941 (Mass. 2003), that the state constitution mandates

the recognition of same-sex marriage. A later effort to reverse

this decision through the mechanism of a constitutional convention

and a popular vote failed.

B. The Parkers

David and Tonia Parker's sons, Jacob and Joshua Parker,

and Joseph and Robin Wirthlin's son, Joseph Robert Wirthlin, Jr.,

are students at Estabrook Elementary School in Lexington,

Massachusetts. Both families assert that they are devout Judeo-

Christians and that a core belief of their religion is that

2
That statute has been interpreted in an opinion letter by
the Department of Education not to apply to educational materials
designed to promote tolerance, including materials recognizing
differences in sexual orientation, if those materials are presented
"without further instruction or discussion of the physical and
sexual implications of homosexuality."

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homosexual behavior and gay marriage are immoral and violate God's

law.

In January 2005, when Jacob Parker ("Jacob") was in

kindergarten, he brought home a "Diversity Book Bag." This

included a picture book, Who's in a Family?, which depicted

different families, including single-parent families, an extended

family, interracial families, animal families, a family without

children, and -- to the concern of the Parkers -- a family with two

dads and a family with two moms. The book concludes by answering

the question, "Who's in a family?": "The people who love you the

most!" The book says nothing about marriage.

The Parkers were concerned that this book was part of an

effort by the public schools "to indoctrinate young children into

the concept that homosexuality and homosexual relationships or

marriage are moral and acceptable behavior." Compl. ¶ 30. Such an

effort, they feared, would require their sons to affirm a belief

inconsistent with their religion. Id. ¶ 33. On January 21, 2005,

they met with Estabrook's principal, Joni Jay ("Jay"), to request

that Jacob not be exposed to any further discussions of

homosexuality. Principal Jay disagreed that the school had any

obligation under section 32A to notify parents in advance of such

class discussions. In March 2005, the Parkers repeated their

request that "no teacher or adult expose [Jacob] to any materials

or discussions featuring sexual orientation, same-sex unions, or

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homosexuality without notification to the Parkers and the right to

'opt out,'" this time including in their communication the then-

Superintendent of Lexington's schools, William Hurley ("Hurley"),

and two other district-wide administrators. Id. ¶ 34. This

request was met with the same response. A further meeting to

discuss these issues was held at Estabrook on April 27, 2005, which

resulted in Mr. Parker's arrest when he refused to leave the school

until his demands were met.

As the 2005-2006 school year began, Paul Ash ("Ash"), the

current Superintendent, released a public statement explaining the

school district's position that it would not provide parental

notification for "discussions, activities, or materials that simply

reference same-gender parents or that otherwise recognize the

existence of differences in sexual orientation." When Jacob

entered first grade that fall, his classroom's book collection

included Who's in a Family? as well as Molly's Family, a picture

book about a girl who is at first made to feel embarrassed by a

classmate because she has both a mommy and a mama but then learns

that families can come in many different varieties. In December

2005, the Parkers repeated their request for advance notice, which

Superintendent Ash again denied.

C. The Wirthlins

We turn to the other plaintiff family.

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 In March 2006, an Estabrook teacher read aloud King and

King to her second grade class, which included Joseph Robert

Wirthlin, Jr. ("Joey"). This picture book tells the story of a

prince, ordered by his mother to get married, who first rejects

several princesses only to fall in love with another prince. A

wedding scene between the two princes is depicted. The last page

of the book shows the two princes kissing, but with a red heart

superimposed over their mouths. There is no allegation in the

complaint that the teacher further discussed the book with the

class. That evening, Joey told his parents about the book; his

parents described him as "agitated" and remembered him calling the

book "so silly." Id. ¶ 57. Eventually the Wirthlins were able to

secure a meeting with the teacher and Jay on April 6, 2006, to

object to what they considered to be indoctrination of their son

about gay marriage in contravention of their religious beliefs.

Jay reiterated the school district's position that no prior notice

or exemption would be given.

D. Procedural History

On April 27, 2006, the Parkers and the Wirthlins filed

suit on behalf of themselves and their children in federal district

court against Hurley, Ash, Jay, and Joey Wirthlin's teacher, as

well as the town of Lexington, the members of its school board, and

other school district administrators.

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 The complaint alleges that the public schools are

systematically indoctrinating the Parkers' and the Wirthlins' young

children contrary to the parents' religious beliefs and that the

defendants held "a specific intention to denigrate the [families']

sincere and deeply-held faith." Id. ¶ 66. They claim, under 42

U.S.C. § 1983, violations of their and their children's First

Amendment right to the free exercise of religion and of their

Fourteenth Amendment due process right to parental autonomy in the

upbringing of their children, as well as of their concomitant state

rights.3 They also assert a violation of the Massachusetts "opt

out" statute, Mass. Gen. Laws ch. 71, § 32A.

The plaintiffs argue that their ability to influence

their young children toward their family religious views has been

undercut in several respects. First, they believe their children

are too young to be introduced to the topic of gay marriage. They

also point to the important influence teachers have on this age

group. They fear their own inability as parents to counter the

school's approval of gay marriage, particularly if parents are

3
The plaintiffs also claim that defendants violated § 1983
by conspiring to deprive them of these constitutional rights. They
do not assert an Establishment Clause claim.
We note that the Supreme Judicial Court has held that the
Massachusetts state constitution provides greater protection for
free exercise claims then does the federal constitution. Attorney
Gen. v. Desilets, 636 N.E.2d 233, 235-36 (Mass. 1994). Plaintiffs
brought their suit in federal court and have chosen not to request
certification of any state law issues to the Supreme Judicial
Court.

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 given no notice that such curricular materials are in use. As

for the children, the parents fear that they are "essentially"

required "to affirm a belief inconsistent with and prohibited by

their religion." Compl. ¶ 33. The parents assert it is ironic,

and unconstitutional under the Free Exercise Clause, for a public

school system to show such intolerance towards their own religious

beliefs in the name of tolerance.

For relief, the plaintiffs seek a declaration of their

constitutional rights; damages; and an injunction requiring the

school (1) to provide an opportunity to exempt their children from

"classroom presentations or discussions the intent of which is to

have children accept the validity of, embrace, affirm, or celebrate

views of human sexuality, gender identity, and marriage

constructs," (2) to allow the parents to observe any such classroom

discussions, and (3) to not present any "materials graphically

depicting homosexual physical contact" to students before the

seventh grade.4

The defendants moved to dismiss for failure to state a

claim upon which relief could be granted. Fed. R. Civ. P.

12(b)(6). After hearing oral arguments, the district court granted

4
In the request for injunctive relief, plaintiffs also
sought an opt-out right regarding "classroom presentations or
discussions when the intent is to have children accept the validity
of, embrace, affirm or celebrate belief systems or religious
perspectives." Because the complaint does not allege any instance
of such a classroom presentation or discussion, we do not further
consider this particular claim for relief.

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the defendants' motion on February 23, 2007. The court dismissed

the state claims without prejudice so that they could be reasserted

in state court. Parker, 474 F. Supp. 2d at 263.

As to the federal claims, the district court found this

case indistinguishable from Brown v. Hot, Sexy & Safer Productions,

68 F.3d 525 (1st Cir. 1995). In Brown, this circuit held that the

Free Exercise Clause and the parents' substantive due process

rights were not violated by one instance of a school system's

failure to provide prior notice and an exemption for a specific

high school assembly on human sexuality. Holding that Brown was

analytically identical to the present case, the district court

applied rational basis review and concluded that the state's

interest in preventing discrimination, specifically discrimination

targeted at students in school, justified the policy of the

Lexington schools. Parker, 474 F. Supp. 2d at 268, 274-75.

II.

Our review of the district court's order of dismissal is

de novo. Otero, 441 F.3d at 20. Plaintiffs' "[f]actual

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

speculative level, on the assumption that all the allegations in

the complaint are true." Bell Atl. Corp. v. Twombly, 127 S. Ct.

1955, 1965 (2007) (citations omitted). We affirm the order of

dismissal, albeit on grounds different from the district court's

reasoning. See Otero, 441 F.3d at 20.

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 There are several ways to approach the parents' claim

depending upon how this case is categorized. One could start by

asking how strong the school's interest must be to justify the

denial of the parents' request for an exemption (as opposed to

asking about the nature of the plaintiffs' interests, as we do

below). The parties have focused on the standard of justification

the defendants must meet in the aftermath of Employment Division v.

Smith, 494 U.S. 872 (1990). What is clear from Smith is that not

all free exercise challenges will survive motions to dismiss and

not all will receive strict scrutiny review.

One possible answer is that, under Smith, the school may

have to show no more than that its choice of books and its refusal

to provide exemption is rational. In Smith, the Court rejected the

plaintiffs' claim that they had unconstitutionally been denied

unemployment benefits due to their violation of Oregon's general

criminal prohibition on the use of peyote, even though they had

used the peyote for religious purposes. The Court found no free

exercise objection to the criminal statute's enforcement because,

as it summarized in a later case, "a law that is neutral and of

general applicability need not be justified by a compelling

governmental interest even if the law has the incidental effect of

burdening a particular religious practice." Church of the Lukumi

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

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 If Smith's mere rationality test were the applicable

standard, this case would easily be dismissed. Plaintiffs do not

contest that the defendants have an interest in promoting

tolerance, including for the children (and parents) of gay

marriages. The Supreme Court has often referred to the role of

public education in the preparation of students for citizenship.

See, e.g., Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 681-

85 (1986) (upholding ability of schools to prohibit lewd speech).

Given that Massachusetts has recognized gay marriage under its

state constitution, it is entirely rational for its schools to

educate their students regarding that recognition.5

In plaintiffs' favor, however, we will assume their case

is not necessarily subject to this general Smith rule. First, the

case does not arise in the same context as Smith. Plaintiffs have

not engaged in conduct prohibited by state law or otherwise sought

to avoid compliance with a law of general applicability.6 Nor does

5
We do not reach the question of whether there is a
compelling interest, either state or federal, in teaching tolerance
for gay marriage to elementary school students in the public school
system. Cf. Bob Jones Univ. v. United States, 461 U.S. 574, 604
(1983) (holding that federal government's compelling interest in
eradicating racial discrimination outweighed plaintiffs' free
exercise claim); Moore v. City of E. Cleveland, 431 U.S. 494, 499-
500 (1977) (holding that city lacked compelling justification for
impinging on due process right of familial privacy).
6
In City of Boerne v. Flores, 521 U.S. 507 (1997), the
Supreme Court appeared to assume that Smith would apply to non-
criminal regulations such as zoning ordinances. Id. at 535. At
least four circuits have held that Smith is not limited to criminal
prohibitions. Fairbanks v. Brackettville Bd. of Educ., No. 99-

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state law or a formal policy require that the defendants take the

actions they did. Indeed, there is not even a formal, district-

wide policy of affirming gay marriage through the use of such

educational materials with young students.

In contrast to the mere rationality standard for neutral

laws of general applicability, Smith and its progeny require a

compelling justification for any law that targets religious groups.

See Lukumi, 508 U.S. at 546 (invalidating law targeting religious

group). This case also does not fit into the "targeting" category,

as the Supreme Court has used the phrase. The school was not

singling out plaintiffs' particular religious beliefs or targeting

its tolerance lessons to only those children from families with

religious objections to gay marriage. Cf. id. at 542. The fact

that a school promotes tolerance of different sexual orientations

and gay marriage when such tolerance is anathema to some religious

groups does not constitute targeting.

The Smith Court, in our view, left open other possible

approaches. The Court in Smith did not say it overruled any prior

free exercise cases. For example, it reinterpreted the balancing

50265, 2000 WL 821401, at *2 (5th Cir. May 30, 2000); Miller v.
Reed, 176 F.3d 1202, 1207 (9th Cir. 1999); Vandiver v. Hardin
County Bd. of Educ., 925 F.2d 927, 932 (6th Cir. 1991); Salvation
Army v. Dep't of Cmty. Affairs, 919 F.2d 183, 194-96 (3d Cir.
1990); see also Gary S. v. Manchester Sch. Dist., 374 F.3d 15, 18-
19 (1st Cir. 2004) (refusing to limit the Smith rule to statutes
related to socially harmful conduct).

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test of Sherbert v. Verner, 374 U.S. 398 (1963),7 under which the

court "asks whether the government has placed a substantial burden

on the observation of a central religious belief or practice and,

if so, whether a compelling governmental interest justifies the

burden," Hernandez v. Comm'r, 490 U.S. 680, 699 (1989). Smith

clarified that the Sherbert test does not apply to violations of a

general prohibition. Smith, 494 U.S. at 883-85. The Court

expressed unwillingness to apply the Sherbert test outside the

unemployment compensation cases in which it had found free exercise

violations, id. at 883, explaining that the Sherbert approach was

"developed in a context that lent itself to individualized

governmental assessment" of each plaintiff's "particular

circumstances," id. at 884. Thus it summarized the Sherbert line

of cases as "stand[ing] for the proposition that where the State

has in place a system of individual exemptions, it may not refuse

to extend that system to cases of 'religious hardship' without

compelling reason." Id. Plaintiffs have not argued that they fit

within this redefinition of Sherbert, so we do not address the

theory.8

7
But cf. Gonzales v. O Centro Espirita Beneficente Uniao
do Vegetal, 546 U.S. 418, 424 (2006) (describing Smith as
"reject[ing] the interpretation of the Free Exercise Clause
announced in Sherbert").
8
Plaintiffs have not argued, for example, that the
Commonwealth, having provided an exemption for sex education under
Mass. Gen. Laws ch. 71, § 32A, is compelled by either the state or
federal constitution to extend the exemption to this situation.

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 Smith, by its terms, also carved out an area of "hybrid

situations." Id. at 881-82. Plaintiffs argue this is where their

claim fits. Smith described such hybrid situations as involving

free exercise claims brought in conjunction with other claims of

violations of constitutional protections. Smith gave as one

example of a companion claim "the right of parents . . . to direct

the education of their children," citing to Pierce v. Society of

Sisters, 268 U.S. 510 (1925), and Wisconsin v. Yoder, 406 U.S. 205

(1972). Smith, 494 U.S. at 881. In this hybrid category, Smith

Indeed, there are factual distinctions between the two
situations. Sex education as referred to in section 32A is usually
set out as an independent course segment at prearranged times and
places. Notice and exemption is thus far easier to accomplish. By
contrast, the notice and exemption requested here would require
broad advance notice of "any adult-directed or initiated classroom
discussions of sexuality, gender identity, and marriage
constructs," discussions that could arise often in almost any part
of the curriculum.
Plaintiffs do point out, however, that because this case
was decided on a motion to dismiss, the defendants have put on no
evidence that the school system would bear any burden if required
to give them this notice and exemption. Defendants have not, for
instance, argued that granting the plaintiffs an exemption from
such classroom instruction would violate the Establishment Clause.
See Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136, 144-45
(1987) ("[G]overnment may (and sometimes must) accommodate
religious practices . . . without violating the Establishment
Clause.").
Amici, however, argue that such exemptions would
significantly burden the schools because (1) there would be an
exodus from classrooms if plaintiffs received the relief requested
and that (2) this in turn would send a message that children of
same-sex parents are inferior. This is mere supposition and may
not be credited on a motion to dismiss, where inferences must be
drawn in the plaintiffs' favor. Plaintiffs argue for their part
that the remedy they seek would teach other students tolerance of
different religious beliefs.

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also included cases of compelled expression decided on free speech

grounds, but which also involved freedom of religion, such as West

Virginia Board of Education v. Barnette, 319 U.S. 624 (1943).

Smith, 494 U.S. at 882. The Smith Court commented that only in

these hybrid situations had the Court ever held that "the First

Amendment bar[red] application of a neutral, generally applicable

law to religiously motivated action." Id. at 881.

What the Court meant by its discussion of "hybrid

situations" in Smith has led to a great deal of discussion and

disagreement. See, e.g., E. Chemerinsky, Constitutional Law

§ 12.3.2.3, at 1262 (3d ed. 2006) (noting different treatments of

the hybrid rights language by the lower courts). Observers debate

whether Smith created a new hybrid rights doctrine, or whether in

discussing "hybrid situations" the Court was merely noting in

descriptive terms that it was not overruling certain cases such as

Pierce and Yoder. Compare M.E. Lechliter, Note, The Free Exercise

of Religion and Public Schools: The Implication of Hybrid Rights on

the Religious Upbringing of Children, 103 Mich. L. Rev. 2209, 2220-

21 (2005), with M.W. McConnell, Free Exercise Revisionism and the

Smith Decision, 57 U. Chi. L. Rev. 1109, 1121-22 (1990). Courts

and commentators also disagree over how strong the companion

constitutional claim must be to establish a hybrid situation:

whether, for example, the associated claim must be independently

viable, or whether it is enough for the claim to be "colorable."

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See, e.g., Miller v. Reed, 176 F.3d 1202, 1207 (9th Cir. 1999)

(requiring a colorable claim that another constitutional right has

been violated); Swanson ex rel. Swanson v. Guthrie Indep. Sch.

Dist. No. I-L, 135 F.3d 694, 700 (10th Cir. 1998) (same);

Lechliter, supra, at 2226-33 (identifying and describing

disagreement among courts).9 Yet another debate is whether such

"hybrid" cases automatically subject the governmental defendant to

the compelling state interest test.10 Plaintiffs argue that they

have pled a hybrid claim and that this entitles them to strict

scrutiny review, which requires defendants to demonstrate a

compelling state interest.

No published circuit court opinion, including Brown, has

ever applied strict scrutiny to a case in which plaintiffs argued

they had presented a hybrid claim. See, e.g., Civil Liberties for

Urban Believers v. City of Chicago, 342 F.3d 752, 764-65 (7th Cir.

9
Others have interpreted this circuit's decision in Brown
as falling into the former category -- that is, requiring an
independently viable constitutional claim. See, e.g., Lechliter,
supra, at 2226-27; R.C. Miller, Annotation, What Constitutes
"Hybrid Rights" Claim, 163 A.L.R. Fed. 493 § 6. Brown did not
explicitly consider this debate, and the parental rights claim
asserted in that case was found to be so weak that it was not a
colorable claim, much less an independently viable one. Thus we do
not read Brown as having settled this question or as firmly
establishing that Smith created a new category of hybrid claims.
10
There is no occasion here to consider whether there might
be an intermediate step in which the degree of justification may
vary with the type of burden asserted. See, e.g., Fraternal Order
of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359, 366
& n.7 (3d Cir. 1999) (applying intermediate scrutiny because the
plaintiffs' claim arose in the public employment context).

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2003); Henderson v. Kennedy, 253 F.3d 12, 19 (D.C. Cir. 2001);

Miller, 176 F.3d at 1208; Swanson, 135 F.3d at 700; Salvation Army

v. Dep't of Cmty. Affairs, 919 F.2d 183, 199-200 & n.9 (3d Cir.

1990).11 As for this circuit, Brown noted that Yoder survived

Smith, but then explained that the facts in Brown were far from

analogous to the unique facts of Yoder, and held that no hybrid

claim was presented.12 Brown, 68 F.3d at 539. Other circuits have

held explicitly that Smith does not create a new category of hybrid

claims. See, e.g., Leebaert v. Harrington, 332 F.3d 134, 143-44

(2d Cir. 2003); Kissinger v. Bd. of Trs., 5 F.3d 177, 180 (6th Cir.

1993); see also Lukumi, 508 U.S. at 567 (Souter, J., concurring)

(describing the hybrid distinction drawn by Smith as "ultimately

untenable").

11
A Ninth Circuit panel did apply strict scrutiny, but that
opinion was later withdrawn by the court en banc. Thomas v.
Anchorage Equal Rights Comm'n, 165 F.3d 692, 714-17 (9th Cir.
1999), vacated by 220 F.3d 1134 (9th Cir. 2000). The D.C. Circuit
opinion in EEOC v. Catholic University of America, 83 F.3d 455
(D.C. Cir. 1996), might be read as implying that strict scrutiny
would apply in hybrid situations, but its brief discussion of
hybrid rights was merely an alternate ground for its holding. See
id. at 467.
12
Also, in Gary S. v. Manchester School District, 374 F.3d
15 (1st Cir. 2004), this court held that no hybrid claim was
presented by a disabled private school student's parents, who
argued that their son was entitled to all the same services under
IDEA as public school students. Id. at 19 (endorsing Gary S. v.
Manchester Sch. Dist., 241 F. Supp. 2d 111, 121 (D.N.H. 2003)).
The failure to provide those IDEA benefits to private school
students does not impose any cognizable burden upon the religion of
those who choose private schools. Id. at 20.

-22-
 Without entering the fray over the meaning and

application of Smith's "hybrid situations" language, we approach

the parents' claims as the Court did in Yoder. In that case, the

Court did not analyze separately the due process and free exercise

interests of the parent-plaintiffs, but rather considered the two

claims interdependently, given that those two sets of interests

inform one other.13 See Yoder, 406 U.S. at 213-14, 232-34. We do

not need to resolve the hybrid rights debate because the level of

justification the government must demonstrate -- a rational basis,

a compelling interest, or something in between -- is irrelevant in

this case. While we accept as true plaintiffs' assertion that

their sincerely held religious beliefs were deeply offended, we

find that they have not described a constitutional burden on their

rights, or on those of their children.

13
While some have criticized the hybrid rights concept,
saying it tries to make something out of nothing, see Henderson,
253 F.3d at 19 ("[I]n law as in mathematics zero plus zero equals
zero."), others have noted that "it is equally true that the sum of
a number of fractions -- one-half plus one-half, for example -- may
equal one," R.F. Duncan, Free Exercise Is Dead, Long Live Free
Exercise: Smith, Lukumi, and the General Applicability
Requirement, 3 U. Pa. J. Const. L. 850, 858 (2001).
In the criminal law, we have recognized that at times the
cumulative effect of a series of individual rulings, none of which
individually constituted error, could mean the trial was not fair,
United States v. Sepulveda, 15 F.3d 1161, 1195-96 (1st Cir. 1993),
though we do not conclude that this is an appropriate analogy.
As in Brown, we do not settle the question of what must
be pled to raise a viable hybrid claim, as Smith uses the term.
Our point here is rather that parental rights and the free exercise
of religion by parents are interests that overlap and inform each
other, and thus are sensibly considered together.

-23-
 Even if Smith largely set aside in free exercise

jurisprudence, at least in some contexts, "the balancing question

-- whether the state's interest outweighs the plaintiff's interest

in being free from interference," it did not alter the standard

constitutional threshold question. N.M. Stolzenberg, "He Drew a

Circle That Shut Me Out": Assimilation, Indoctrination, and the

Paradox of a Liberal Education, 106 Harv. L. Rev. 581, 592-93

(1993). That question is "whether the plaintiff's free exercise is

interfered with at all." Id.; see also Lyng v. Nw. Indian Cemetery

Protective Ass'n, 485 U.S. 439, 451-52 (1988) (denying a free

exercise claim despite potential "devastating effects on

traditional Indian religious practices" because "the Constitution

simply does not provide a principle that could justify upholding

respondents' legal claims"); Bauchman ex rel. Bauchman v. W. High

Sch., 132 F.3d 542, 557 (10th Cir. 1997) (requiring plaintiff

asserting a free exercise claim to demonstrate burden, either

through coercion or compulsion). In this case there is no pleading

of a constitutionally significant burden on plaintiffs' rights.

In Yoder, the Court found unconstitutional Wisconsin's

application of its compulsory school attendance law to Amish

parents who believed that any education beyond eighth grade

undermined their entire, religiously focused way of life. 406 U.S.

at 235-36. The heart of the Yoder opinion is a lengthy

consideration of "the interrelationship of belief with [the Amish]

-24-
mode of life, the vital role that belief and daily conduct play in

the continued survival of Old Order Amish communities and their

religious organization," and how as a result compulsory high school

education would "substantially interfer[e] with the religious

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

life of the Amish faith community." Id. at 218, 235. The Court

thus found Wisconsin's compulsory attendance law to be flatly

incompatible with the plaintiffs' free exercise rights and parental

liberty interests, which it considered in tandem. That is,

compulsory attendance at any school -- whether public, private, or

home-based -- prevented these Amish parents from making fundamental

decisions regarding their children's religious upbringing and

effectively overrode their ability to pass their religion on to

their children, as their faith required. Id. at 233-35. Further,

the parents in Yoder were able to demonstrate that their

alternative informal vocational training of their older children

still met the state's professed interest behind its compulsory

attendance requirement. Id. at 235.

To the extent that Yoder embodies judicial protection for

social and religious "sub-groups from the public cultivation of

liberal tolerance," plaintiffs are correct to rely on it. See

Stolzenberg, supra, at 637. But there are substantial differences

between the plaintiffs' claims in Yoder and the claims raised in

this case. One ground of distinction is that the plaintiffs have

-25-
chosen to place their children in public schools and do not live,

as the Amish do, in a largely separate culture. There are others.

While plaintiffs do invoke Yoder's language that the state is

threatening their very "way of life," they use this language to

refer to the centrality of these beliefs to their faith, in

contrast to its use in Yoder to refer to a distinct community and

life style. Exposure to the materials in dispute here will not

automatically and irreversibly prevent the parents from raising

Jacob and Joey in the religious belief that gay marriage is

immoral. Nor is there a criminal statute involved, or any other

punishment imposed on the parents if they choose to educate their

children in other ways. They retain options, unlike the parents in

Yoder. Tellingly, Yoder emphasized that its holding was

essentially sui generis, as few sects could make a similar showing

of a unique and demanding religious way of life that is

fundamentally incompatible with any schooling system. See Yoder,

406 U.S. at 235-36. Plaintiffs' case is not Yoder.

Despite defendants' contention, plaintiffs' case is also

not Brown. Brown concerned a federal constitutional challenge to

a one-time failure by a Massachusetts high school to comply with

the notice and exemption procedures required by Mass. Gen. Laws ch.

71, § 32A, for a student's attendance at a discrete sex education

assembly. Brown is factually and legally distinct. Most

significantly, Brown involved the education of high school

-26-
students, not the education of kindergarten through second-grade

students. Educators treat this age differential as significant.

The statewide curricular standards themselves, including those

related to sexual orientation, distinguish between elementary and

high school students. Further, as the plaintiffs sensibly point

out, high school students are less responsive to what adults say

than are very young elementary school children.

The impressionability of young school children has been

noted as a relevant factor in the Establishment Clause context.

See, e.g., Lee v. Weisman, 505 U.S. 577, 592 (1992) (identifying

concerns about the "subtle coercive pressure [of state endorsement

of religion] in the elementary and secondary public schools"); Sch.

Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 307 (1963)

(Goldberg, J., concurring) (expressing concern about the impact of

school prayer and Bible reading on "young impressionable

children"); L.H. Tribe, American Constitutional Law, § 14-5, at

1177-79 (2d ed. 1988). Just as university students "are less

impressionable than younger students" when it comes to school

policies regarding religion, Widmar v. Vincent, 454 U.S. 263, 274

n.14 (1981), so also are high school students less impressionable

than the very youngest children, see Lemon v. Kurtzman, 403 U.S.

602, 616 (1971) (noting that "inculcating religious doctrine is .

. . enhanced by the impressionable age of the pupils, in primary

-27-
schools particularly"); see also Fleischfresser v. Dirs. of Sch.

Dist. 200, 15 F.3d 680, 686 (7th Cir. 1994).

The relevance of the age of school children has been

noted in a free speech case involving religious expression. Curry

ex rel. Curry v. Hensiner, ___ F.3d ___, 2008 WL 141076, at *6 (6th

Cir. Jan. 16, 2008). The age of the student has also been

identified as relevant in the context of parental due process

rights. See C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 185 (3d

Cir. 2005) (recognizing that "introducing a child to sensitive

topics before a parent might have done so herself can complicate

and even undermine parental authority").

We see no principled reason why the age of students

should be irrelevant in Free Exercise Clause cases. See, e.g., M.

Eichner, Who Should Control Children's Education?: Parents,

Children, and the State, 75 U. Cin. L. Rev. 1339, 1382, 1386 (2007)

(age of children should be taken into account when considering

parental due process or free exercise claims in the public school

context). Based on this distinction alone, Brown does not control

this case.

We turn afresh to plaintiffs' complementary due process

and free exercise claims. Plaintiffs' opening premise is that

their rights of parental control are fundamental rights.14 They

14
In Washington v. Glucksberg, 521 U.S. 702 (1997), the
Court listed fundamental rights protected by the Due Process
Clause. Id. at 719-20. The Fourteenth Amendment guarantees that

-28-
rely on a Supreme Court decision recognizing a substantive due

process right of parents "to make decisions concerning the care,

custody, and control of their children." Troxel v. Granville, 530

U.S. 57, 66 (2000) (plurality opinion). Troxel is not so broad as

plaintiffs assert. The cases cited by the Court in Troxel as

establishing this parental right pertain either to the custody of

children, which was also the issue in dispute in Troxel, or to the

fundamental control of children's schooling, as in Yoder. See id.

at 65-66.15 The Troxel plurality did not, however, specifically

address which standard of review to apply when this due process

right is implicated.

The schooling cases cited in Troxel "evince the principle

that the state cannot prevent parents from choosing a specific

educational program." Brown, 68 F.3d at 533 (emphasis added). In

Meyer v. Nebraska, 262 U.S. 390 (1923), the Supreme Court found

unconstitutional a prohibition on the teaching of foreign languages

no state may "deprive any person of life, liberty, or property,
without due process of law." U.S. Const. amend. XIV, § 1. That
due process right has both a procedural and a substantive
component: it ensures fair process, and it "provides heightened
protection against government interference with certain fundamental
rights and liberty interests." Glucksberg, 521 U.S. at 720.
15
In slight variations on these themes, the Court also
cited Parham v. J.R., 442 U.S. 584 (1979), which pertained to the
power of parents to commit their children to mental institutions,
and Prince v. Massachusetts, 321 U.S. 158 (1944), in which the
Court determined that the parent's liberty interest was outweighed
in that instance by the state's interest in enforcing child labor
and compulsory attendance laws.

-29-
to young children in part because it interfered with "the power of

parents to control the education of their own." Id. at 401. Two

years later, in Pierce v. Society of Sisters, the Court overturned

an Oregon statute compelling children to attend public schools on

the grounds that the statute "unreasonably interfere[d] with the

liberty of parents and guardians to direct the upbringing of

children under their control." Id. at 534-35. Plaintiffs argue

their request for notice and exemption is simply a logical

extension of their parental rights under Meyer and Pierce, as

reinforced by their free exercise rights.

Defendants respond that plaintiffs' argument runs afoul

of the general proposition that, while parents can choose between

public and private schools, they do not have a constitutional right

to "direct how a public school teaches their child." Blau v. Fort

Thomas Pub. Sch. Dist., 401 F.3d 381, 395 (6th Cir. 2005). That

proposition is well recognized. See, e.g., C.N., 430 F.3d at 184

(recognizing a "distinction between actions that strike at the

heart of parental decision-making authority on matters of the

greatest importance and other actions that, although perhaps unwise

and offensive, are not of constitutional dimension"); Leebaert, 332

F.3d at 141 ("Meyer, Pierce, and their progeny do not begin to

suggest the existence of a fundamental right of every parent to

tell a public school what his or her child will and will not be

taught."); Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275,

-30-
291 (5th Cir. 2001) ("It has long been recognized that parental

rights are not absolute in the public school context and can be

subject to reasonable regulation."); Swanson, 135 F.3d at 699 ("The

case law in this area establishes that parents simply do not have

a constitutional right to control each and every aspect of their

children's education . . . ."); see also Fields v. Palmdale Sch.

Dist., 427 F.3d 1197, 1207 (9th Cir. 2005), amended by 447 F.3d

1187 (9th Cir. 2006). Indeed, Meyer and Pierce specified that the

parental interests they recognized would not interfere with the

general power of the state to regulate education, including "the

state's power to prescribe a curriculum for institutions which it

supports." Meyer, 262 U.S. at 402; see also Pierce, 268 U.S. at

534.

Plaintiffs say, in response, that they are not attempting

to control the school's power to prescribe a curriculum. The

plaintiffs accept that the school system "has a legitimate secular

interest in seeking to eradicate bias against same-gender couples

and to ensure the safety of all public school students." They

assert that they have an equally sincere interest in the

accommodation of their own religious beliefs and of the diversity

represented by their contrary views. Plaintiffs specifically

disclaim any intent to seek control of the school's curriculum or

to impose their will on others. They do not seek to change the

choice of books available to others but only to require notice of

-31-
the books and an exemption, and even then only up to the seventh

grade. Nonetheless, we have found no federal case under the Due

Process Clause which has permitted parents to demand an exemption

for their children from exposure to certain books used in public

schools.

The due process right of parental autonomy might be

considered a subset of a broader substantive due process right of

familial privacy. See M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996).

The other cases establishing privacy rights under the Due Process

Clause pertain to such issues as the right to marry, e.g., Loving

v. Virginia, 388 U.S. 1 (1967) (state cannot outlaw miscegenation),

and the right to procreate, e.g., Skinner v. Oklahoma, 316 U.S. 535

(1942) (state cannot forcibly sterilize convicts), and are not

relevant to plaintiffs' claims. In sum, the substantive due

process clause by itself, either in its parental control or its

privacy focus, does not give plaintiffs the degree of control over

their children's education that their requested relief seeks. We

turn then to whether the combination of substantive due process and

free exercise interests give the parents a cause of action.

The First Amendment's prohibition on laws "respecting an

establishment of religion, or prohibiting the free exercise

thereof" applies to the states through the Fourteenth Amendment.

Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). In Smith, the

Supreme Court noted that the "free exercise of religion means,

-32-
first and foremost, the right to believe and profess whatever

religious doctrine one desires." 494 U.S. at 877. As a result,

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. Id.16

The Free Exercise Clause, importantly, is not a general

protection of religion or religious belief. It has a more limited

reach of protecting the free exercise of religion. In Lyng, the

Court noted that there and in Bowen v. Roy, 476 U.S. 693 (1986), no

free exercise claim was stated even though "the challenged

Government action would interfere significantly with private

persons' ability to pursue spiritual fulfillment according to their

own religious beliefs." 485 U.S. at 449. There was no free

exercise problem in those cases because "[i]n neither case . . .

16
While this case is not a funding case, the Court has most
recently held that in such cases there is no significant burden on
free exercise rights where, as here, the government has "impose[d]
neither criminal nor civil sanctions on any type of religious
service or rite," and where it "does not require students to choose
between their religious beliefs and receiving a government
benefit." Locke v. Davey, 540 U.S. 712, 720-21 (2004). As here,
the government in Locke made no attempt to regulate the plaintiffs'
conduct. Id.; see D. Laycock, Supreme Court, 2003 Term -- Case
Comment: Theology Scholarships, the Pledge of Allegiance, and
Religious Liberty: Avoiding the Extremes but Missing the Liberty,
118 Harv. L. Rev. 155, 214-15 (2004).

-33-
would the affected individuals be coerced by the Government's

action into violating their religious beliefs." Id. As the Court

said in Roy, "[n]ever to our knowledge has the Court interpreted

the First Amendment to require the Government itself to behave in

ways that the individual believes will further his or her spiritual

development or that of his or her family." 476 U.S. at 699; see

also Sherbert, 374 U.S. at 412 (Douglas, J., concurring) ("[T]he

Free Exercise Clause is written in terms of what the government

cannot do to the individual, not in terms of what the individual

can exact from the government."). Specifically, "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." Schempp, 374 U.S. at 223.

Preliminarily, we mark the distinction between the

alleged burden on the parents' free exercise rights and the alleged

burden on their children's. The right of parents "to direct the

religious upbringing of their children," Yoder, 406 U.S. at 233,

is distinct from (although related to) any right their children

might have regarding the content of their school curriculum. See

Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 16-18 (2004)

(where father lacked legal power to sue on behalf of his daughter,

he could assert a right to influence her religious upbringing but

lacked standing to challenge her exposure to ideas presented to her

by third parties). But see id. at 24 n.2 (Rehnquist, C.J.,

-34-
concurring in the judgment) (Newdow's right should not be treated

as distinct from his daughter's). This is not a new distinction.

In Prince v. Massachusetts, 321 U.S. 158 (1944), the Court

explained that "two claimed liberties are at stake. One is the

parent's, to bring up the child in the way [the parent desires],

which for appellant means to teach him the tenets and the practices

of their faith. The other freedom is the child's, to observe these

[tenets and practices]." Id. at 164; see also Fleischfresser, 15

F.3d at 683-84. We start with the parents' claim.

Generally, the fundamental parental control/free exercise

claims regarding public schools have fallen into several types of

situations: claims that failure to provide benefits given to public

school students violates free exercise rights,17 claims that

plaintiffs should not be subjected to compulsory education,18

demands for removal of offensive material from the curriculum,19

17
See, e.g., Gary S. v. Manchester Sch. Dist., 374 F.3d 15,
19-21 (1st Cir. 2004); Swanson, 135 F.3d at 698, 702 (no due
process or free exercise violation in school district's refusal to
allow home-schooled students to attend public schools part-time).
18
See, e.g., Yoder, 406 U.S. 205; Murphy v. Arkansas, 852
F.2d 1039 (8th Cir. 1988) (no due process or free exercise
violation in state setting requirements for home schooling); Duro
v. Dist. Attorney, 712 F.2d 96 (4th Cir. 1983) (no Yoder-like
constitutional problem with state statute prohibiting home
schooling).
19
See, e.g., Williams v. Bd. of Educ., 388 F. Supp. 93 (D.
W. Va. 1975) (no violation of free exercise or privacy rights in
school's use of textbooks that offend plaintiffs' religious
beliefs). The amici's attempts to fit plaintiffs' claim into this
third type -- removal of material from the school's curriculum --

-35-
and, as here, claims that there is a constitutional right to

exemption from religiously offensive material.20 See also M.

Stewart, The First Amendment, the Public Schools, and the

Inculcation of Community Values, 18 J. L. & Educ. 23, 86 (1989).

In two cases in which plaintiffs did not raise a related

parental rights due process claim, federal courts have rejected

free exercise claims seeking exemptions from the schools'

assignment of particular books. In Fleischfresser, the parents

sought to prevent the use of the Impressions Reading Series as a

supplemental reading program for an elementary school. 15 F.3d at

683. The parents complained that the series fostered a belief in

the existence of superior beings and indoctrinated their children

in values such as despair, deceit, and parental disrespect, values

different from their Christian beliefs. Id. at 683, 689. The

Seventh Circuit held that any burden on free exercise rights was,

at most, minimal. The parents were not precluded from meeting

their religious obligation to instruct their children, nor were the

fails. Plaintiffs do not claim a general right of censorship, only
that they have a right to notice and exemption.
20
See, e.g., Leebaert, 332 F.3d 134 (no free exercise or
parental due process right violated by school's refusal to exempt
student from mandatory health class); Littlefield, 268 F.3d 275 (no
parental due process or free exercise violation in refusal to
exempt child from mandatory uniform policy); Morrison ex rel.
Morrison v. Bd. of Educ., 419 F. Supp. 2d 937 (E.D. Ky. 2006) (no
right to exempt child from mandatory school diversity training on
homosexuality), rev'd on other grounds, 507 F.3d 494 (6th Cir.
2007).

-36-
parents or children compelled to do anything or refrain from doing

anything of a religious nature. Thus, no coercion existed. Id. at

690.

In Mozert v. Hawkins County Board of Education, 827 F.2d

1058 (6th Cir. 1987), which is more factually similar to this case,

the Sixth Circuit rejected a broader claim for an exemption from a

school district's use of an entire series of texts. The parents in

that case asserted that the books in question taught values

contrary to their religious beliefs and that, as a result, the

school violated the parents' religious beliefs by allowing their

children to read the books and violated their children's religious

beliefs by requiring the children to read them. Id. at 1060. The

court, however, found that exposure to ideas through the required

reading of books did not constitute a constitutionally significant

burden on the plaintiffs' free exercise of religion. Id. at 1065.

In so holding, the court emphasized that "the evil prohibited by

the Free Exercise Clause" is "governmental compulsion either to do

or refrain from doing an act forbidden or required by one's

religion, or to affirm or disavow a belief forbidden or required by

one's religion," and reading or even discussing the books did not

compel such action or affirmation. Id. at 1066, 1069.

In the present case, the plaintiffs claim that the

exposure of their children, at these young ages and in this

setting, to ways of life contrary to the parents' religious beliefs

-37-
violates their ability to direct the religious upbringing of their

children. We try to identify the categories of harms alleged. The

parents do not allege coercion in the form of a direct interference

with their religious beliefs, nor of compulsion in the form of

punishment for their beliefs, as in Yoder. Nor do they allege the

denial of benefits. Further, plaintiffs do not allege that the

mere listening to a book being read violated any religious duty on

the part of the child. There is no claim that as a condition of

attendance at the public schools, the defendants have forced

plaintiffs -- either the parents or the children -- to violate

their religious beliefs. In sum there is no claim of direct

coercion.

The heart of the plaintiffs' free exercise claim is a

claim of "indoctrination": that the state has put pressure on their

children to endorse an affirmative view of gay marriage and has

thus undercut the parents' efforts to inculcate their children with

their own opposing religious views. The Supreme Court, we believe,

has never utilized an indoctrination test under the Free Exercise

Clause, much less in the public school context. The closest it has

come is Barnette, a free speech case that implicated free exercise

interests and which Smith included in its hybrid case discussion.

In Barnette, the Court held that the state could not coerce

acquiescence through compelled statements of belief, such as the

mandatory recital of the pledge of allegiance in public schools.

-38-
319 U.S. at 634, 642. It did not hold that the state could not

attempt to inculcate values by instruction, and in fact carefully

distinguished the two approaches. Id. at 631, 640; see also

Stewart, supra, at 74. We do not address whether or not an

indoctrination theory under the Free Exercise Clause is sound.

Plaintiffs' pleadings do not establish a viable case of

indoctrination, even assuming that extreme indoctrination can be a

form of coercion.

First, as to the parents' free exercise rights, the mere

fact that a child is exposed on occasion in public school to a

concept offensive to a parent's religious belief does not inhibit

the parent from instructing the child differently. A parent whose

"child is exposed to sensitive topics or information [at school]

remains free to discuss these matters and to place them in the

family's moral or religious context, or to supplement the

information with more appropriate materials." C.N., 430 F.3d at

185; see also Newdow, 542 U.S. at 16 (noting that the school's

requirement that Newdow's daughter recite the pledge of allegiance

every day did not "impair[] Newdow's right to instruct his daughter

in his religious views"). The parents here did in fact have

notice, if not prior notice, of the books and of the school's

overall intent to promote toleration of same-sex marriage, and they

retained their ability to discuss the material and subject matter

-39-
with their children. Our outcome does not turn, however, on

whether the parents had notice.

Turning to the children's free exercise rights, we cannot

see how Jacob's free exercise right was burdened at all: two books

were made available to him, but he was never required to read them

or have them read to him. Further, these books do not endorse gay

marriage or homosexuality, or even address these topics explicitly,

but merely describe how other children might come from families

that look different from one's own. There is no free exercise

right to be free from any reference in public elementary schools to

the existence of families in which the parents are of different

gender combinations.

Joey has a more significant claim, both because he was

required to sit through a classroom reading of King and King and

because that book affirmatively endorses homosexuality and gay

marriage. It is a fair inference that the reading of King and King

was precisely intended to influence the listening children toward

tolerance of gay marriage. That was the point of why that book was

chosen and used. Even assuming there is a continuum along which an

intent to influence could become an attempt to indoctrinate,

however, this case is firmly on the influence-toward-tolerance end.

There is no evidence of systemic indoctrination. There is no

allegation that Joey was asked to affirm gay marriage. Requiring

-40-
a student to read a particular book is generally not coercive of

free exercise rights.

Public schools are not obliged to shield individual

students from ideas which potentially are religiously offensive,

particularly when the school imposes no requirement that the

student agree with or affirm those ideas, or even participate in

discussions about them. See Fleischfresser, 15 F.3d at 690;

Mozert, 827 F.2d at 1063-65, 1070; see also Bauchman, 132 F.3d at

558 ("[P]ublic schools are not required to delete from the

curriculum all materials that may offend any religious

sensibility." (quoting Florey v. Sioux Falls Sch. Dist. 49-5, 619

F.2d 1311, 1318 (8th Cir. 1980) (internal quotation marks

omitted))). The reading of King and King was not instruction in

religion or religious beliefs.21 Cf. Barnette, 319 U.S. at 631

(distinguishing between compelling students to declare a belief

through mandatory recital of the pledge of allegiance, which

violates free exercise, and "merely . . . acquaint[ing students]

with the flag salute so that they may be informed as to what it is

or even what it means").

On the facts, there is no viable claim of

"indoctrination" here. Without suggesting that such showings would

21
Indeed, in Schempp the Court suggested that even if a
series of mandatory classroom Bible readings violated the Free
Exercise Clause, the study of the Bible or religion, if "presented
objectively as part of a secular program of education, may [] be
effected consistently with the First Amendment." 374 U.S. at 225.

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suffice to establish a claim of indoctrination, we note the

plaintiffs' children were not forced to read the books on pain of

suspension. Nor were they subject to a constant stream of like

materials. There is no allegation here of a formalized curriculum

requiring students to read many books affirming gay marriage. Cf.

Mozert, 827 F.2d at 1079 (Boggs, J., concurring) (concluding that

such facts could constitute a burden on free exercise, although

such a burden would be constitutionally permissible in the public

school context if parents still retained other educational

options). The reading by a teacher of one book, or even three, and

even if to a young and impressionable child, does not constitute

"indoctrination."

Because plaintiffs do not allege facts that give rise to

claims of constitutional magnitude, the district court did not err

in granting defendants' motion to dismiss the claims under the U.S.

Constitution.

III.

Public schools often walk a tightrope between the many

competing constitutional demands made by parents, students,

teachers, and the schools' other constituents. Cf. Morse v.

Frederick, 127 S. Ct. 2618 (2007) (students' First Amendment free

speech rights versus interest in administering schools without

encouragement of illegal drug use); Hennessy v. City of Melrose,

194 F.3d 237 (1st Cir. 1999) (public school's interest in

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implementing its curriculum versus student teacher's interest in

expressing opposition to abortion and homosexuality); Zykan ex rel.

Zykan v. Warsaw Cmty. Sch. Corp., 631 F.2d 1300, 1304 (7th Cir.

1980) (students' First Amendment "freedom to hear" under Va. State

Pharmacy Bd. v. Va. Citizens Consumer Council, Inc., 425 U.S. 748

(1976), versus school's interest in limiting exposure to materials

that might harm intellectual and social development); see also

Lyng, 485 U.S. at 452 ("The Constitution does not, and courts

cannot, offer to reconcile the various competing demands on

government, many of them rooted in sincere religious belief, that

inevitably arise in so diverse a society as ours."). The balance

the school struck here does not offend the Free Exercise or Due

Process Clauses of the U.S. Constitution.

We do not suggest that the school's choice of books for

young students has not deeply offended the plaintiffs' sincerely

held religious beliefs. If the school system has been

insufficiently sensitive to such religious beliefs, the plaintiffs

may seek recourse to the normal political processes for change in

the town and state. See Smith, 494 U.S. at 890. They are not

entitled to a federal judicial remedy under the U.S. Constitution.

We affirm the district court's dismissal with prejudice

of plaintiffs' federal claims and its dismissal without prejudice

of the state claims so that they may be reinstated, should

plaintiffs choose, in state court.

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Affirmed.

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