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, 

, 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, 

, 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, 

, 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).” 

(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., 

, 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, 

, 561 (1992). Thus, on a motion to dismiss,
plaintiffs must allege facts that give rise to a plausible claim of Cornerstone’s
standing. 

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, 

, 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, 

(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. 

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.” 

Dist. of Abington Twp. v. Schempp, 

, 223 (1963)); see also Littlefield v. Forney Indep. Sch. Dist., 

, 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, 

(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.” 

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, 

, 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, 

,
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, 

, 877 (1990).6 Thus, the First
Amendment excludes all “governmental regulation of religious beliefs as such.”
Sherbert     v. Verner, 

, 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, 

, 531 (1993);
Employment 

. 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, 

, 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, 

, 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, 

, 103 (1st Cir.
2008) (citing Employment 

).

                                                10
will further his or her spiritual development or that of his or her family.” Bowen
v. Roy, 

, 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, 

, 65 (2000); 

. 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 

(listing cases
permitting state encroachment onto the parent’s right to direct a child’s
upbringing); see also Kite v. Marshall, 

, 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., 

, 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, 

, 1234–35 (10th Cir. 1996)); accord Swanson
ex rel. Swanson v. Guthrie Indep. Sch. Dist. No. I-L, 

, 699 (10th Cir.



       7
         For example, in Locke v. Davey, 

(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.

(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, 

, 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, 

, 157 (5th Cir. 1980) (emphasis added) (citing Wisconsin v. Yoder, 

, 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 

(“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 

. 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,” 

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,” 

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 

.

                                               

, 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.”); 

–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., 

, 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.

. 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, 

, 597 (1972); see also

(“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 

–84; 

; see also Fyfe v. Curlee, 

, 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, 

, 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 

(“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.” 

. 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

                                              15
       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., 

, 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, 

, 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.” 

; see also 

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, 

, 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., 

, 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.

                                              16
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, 

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.

                                               18
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

                                           19
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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