                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-21-2008

Combs v. Homer Ctr Sch Dist
Precedential or Non-Precedential: Precedential

Docket No. 06-3090




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Recommended Citation
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                                    PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT



              Nos. 06-3090, 06-3091,
        06-3092, 06-3093, 06-3094, 06-3095



MR. DARRELL COMBS; MRS. KATHLEEN COMBS
          Appellants at No. 06-3090

                        v.

      HOMER-CENTER SCHOOL DISTRICT;
 JOSEPH F. MARCOLINE, in his official capacity as
   Superintendent of Homer-Center School District;
     TITUSVILLE AREA SCHOOL DISTRICT;
    BRISTOL TOWNSHIP SCHOOL DISTRICT;
   FRANKLIN REGIONAL SCHOOL DISTRICT
         (D.C. Civil Action No. 04-cv-1599)

   DR. THOMAS PREVISH; TIMARI PREVISH
          Appellants at No. 06-3091

                        v.

          NORWIN SCHOOL DISTRICT;
    RICHARD WATSON, in his official capacity as
       Superintendent of Norwin School District
         (D.C. Civil Action No. 04-cv-1670)

DR. MARK NEWBORN; MRS. MARYALICE NEWBORN
            Appellants at No. 06-3092

                           v.

   FRANKLIN REGIONAL SCHOOL DISTRICT;
      STEPHEN VAK, in his official capacity as
  Superintendent of Franklin Regional School District
            (D.C. Civil Action 04-cv-1932)

 MR. THOMAS HANKIN; MRS. BABETTE HANKIN
          Appellants at No. 06-3093

                           v.

     BRISTOL TOWNSHIP SCHOOL DISTRICT;
     REGINA CESARIO, in her official capacity as
   Superintendent of Bristol Township School District
            (D.C. Civil Action 04-cv-1936)

  MR. DOUGLAS NELSON; MRS. SHARI NELSON
           Appellants at No. 06-3094

                           v.

                           2
      TITUSVILLE AREA SCHOOL DISTRICT;
     JOHN D. REAGLE, in his official capacity as
Acting Superintendent of Titusville Area School District
           (D.C. Civil Action 05-cv-0070)

    REV. STEVEN WEBER; MRS. MEG WEBER
            Appellants at No. 06-3095

                           v.

       DuBOIS AREA SCHOOL DISTRICT;
     SHARON KIRK, in her official capacity as
    Superintendent of DuBois Area School District
           (D.C. Civil Action 05-cv-0203)



    On Appeal from the United States District Court
       for the Western District of Pennsylvania
             (Honorable Arthur J. Schwab)



              Argued November 6, 2007

          Before: SCIRICA, Chief Judge,
        AMBRO and JORDAN, Circuit Judges.

               (Filed: August 21, 2008 )



                           3
MICHAEL P. FARRIS, ESQUIRE (ARGUED)
JAMES R. MASON, III, ESQUIRE
Home School Legal Defense Association
1 Patrick Henry Circle
Purcellville, Virginia 20132-0000
       Attorneys for Appellants

CARL P. BEARD, JR., ESQUIRE
PATRICK J. FANELLI, ESQUIRE
Andrews & Beard
3366 Lynnwood Drive
P.O. Box 1311
Altoona, Pennsylvania 16603
      Attorneys for Appellee,
      Homer-Center School District

CHRISTINA LANE, ESQUIRE
Andrews & Price
1500 Ardmore Boulevard, Suite 506
Pittsburgh, Pennsylvania 15221
       Attorney for Appellees,
       Homer-Center School District,
       Titusville Area School District,
       Bristol Township School District,
       Franklin Regional School District,
       Stephen Vak, in his official capacity as
       Superintendent of Franklin Regional School District,
       Norwin School District, DuBois Area School District

                             4
PATRICIA K. SMITH, ESQUIRE
Knox McLaughlin Gornall & Sennett
120 West Tenth Street
Erie, Pennsylvania 16501
       Attorney for Appellees,
       Titusville Area School District,
       John D. Reagle, in his official capacity as
       Acting Superintendent of Titusville Area School District

PAUL N. LALLEY, ESQUIRE (ARGUED)
Levin Legal Group, P.C.
1301 Masons Mill Business Park
1800 Byberry Road
Huntingdon Valley, Pennsylvania 19006
      Attorney for Appellees,
      Bristol Township School District,
      Regina Cesario, in her official capacity as
      Superintendent of Bristol Township School District

MICHAEL L. BRUNGO, ESQUIRE
RONALD R. LUCAS, JR., ESQUIRE
ALFRED C. MAIELLO, ESQUIRE
Maiello Brungo & Maiello, LLP
3301 McCrady Road
One Churchill Park
Pittsburgh, Pennsylvania 15235
       Attorneys for Appellees,
       Norwin School District,

                              5
      Richard Watson, in his official capacity as
      Superintendent of Norwin School District,
      DuBois Area School District,
      Sharon Kirk, in her official capacity as
      Superintendent of DuBois Area School District

CHRISTOPHER C. LUND, ESQUIRE
Dechert LLP
Cira Centre, 18th Floor
2929 Arch Street
Philadelphia, Pennsylvania 19104
      Attorney for Amicus Curiae-Appellant,
      American Civil Liberties Union of Pennsylvania

ANN G. ST. LEDGER, ESQUIRE
Office of Attorney General of Pennsylvania
Department of Education
333 Market Street, Suite 911
Harrisburg, Pennsylvania 17126
       Attorney for Amicus Curiae-Appellee,
       Pennsylvania Department of Education

SEAN A. FIELDS, ESQUIRE
Pennsylvania School Boards Association
400 Bent Creek Boulevard, P.O. Box 2042
Mechanicsburg, Pennsylvania 17055
      Attorney for Amicus Curiae-Appellee,
      Pennsylvania School Boards Association

                            6
JEFFREY I. PASEK, ESQUIRE
Cozen & O'Connor
1900 Market Street, 3rd Floor
Philadelphia, Pennsylvania 19103
      Attorney for Amicus Curiae-Appellee,
      Jewish Social Policy Action Network



                 OPINION OF THE COURT



PER CURIAM.

        At issue is whether certain parents who home-school
their children must comply with the reporting and review
requirements of Pennsylvania’s compulsory education law.
Compliance, the parents contend, would violate their sincerely
held religious beliefs. The Commonwealth of Pennsylvania
demurs, contending its compulsory education law neither
substantially burdens the free exercise of religion nor
transgresses neutral application to all citizens, and serves an
important state interest in ensuring a minimal level of education
for all children.

       Plaintiffs appeal from the grant of summary judgment for
defendants in an action seeking declaratory relief and an
injunction prohibiting enforcement of 24 Pa. Stat. Ann. § 13-
1327.1 (“Act 169”) and prosecution under Pennsylvania’s


                               7
compulsory education laws. Defendants are school districts in
Pennsylvania and superintendents named in their official
capacity.1 Plaintiffs are six families who home-school their
children.2

       The Commonwealth of Pennsylvania’s education system,
as enacted by the General Assembly, allows parents to satisfy
the compulsory attendance requirement through “home
education programs.” Parents supervising the home education
programs must provide instruction for a minimum number of
days and hours in certain subjects and submit a portfolio of
teaching logs and the children’s work product for review. The
local school district reviews the home education programs for
compliance with the minimum hours of instruction and course
requirements and determines whether each student demonstrates
progress in the overall program. The school district does not



      1
      We refer to Homer-Center School District, Joseph F.
Marcoline, Norwin School District, Richard Watson, Franklin
Regional School District, Stephen Vak, Bristol Township
School District, Regina Cesario, Titusville Area School District,
John D. Reagle, DuBois Area School District and Sharon Kirk
collectively as the “school districts.”
  2
  The “Parents” are Darrell and Kathleen Combs, Thomas and
Timari Prevish, Mark and Maryalice Newborn, Thomas and
Babette Hankin, Douglas and Shari Nelson, and Steven and Meg
Weber.

                               8
review the educational content, textbooks, curriculum,
instructional materials, or methodology of the program.

        Parents, who home-school their children based on their
sincerely held religious beliefs, have sued their respective school
districts and school superintendents. Parents contend the Act
169 record-keeping requirements and the subsequent portfolio
review place a substantial burden on their free exercise of
religion.    They seek an exemption from the Act 169
requirements and request declaratory and injunctive relief on the
grounds that the provisions of Act 169 violate the First and
Fourteenth Amendments of the Constitution of the United States
and the Pennsylvania Religious Freedom Protection Act
(“RFPA”), 71 Pa. Stat. Ann. §§ 2401–2407.

                                I.

        Parents have home-schooled their children for many
years. All six families are Christians, but of different
denominations. They hold in common a religious belief that
“education of their children, not merely the religious education,
is religion” and that God has assigned religious matters to the
exclusive jurisdiction of the family. Accordingly, because God
has given Parents the sole responsibility for educating their
children, the school districts’ reporting requirements and
“discretionary review” over their home education programs
violate their free exercise of religion.

       In 2002, the Commonwealth of Pennsylvania passed the
Religious Freedom Protection Act. The statute requires the

                                9
Commonwealth to justify substantial burdens on religious free
exercise with a compelling interest and a showing that the least
restrictive means has been employed to satisfy that interest.
Prior to the passage of the Religious Freedom Protection Act,
many of the Parents complied with the Act 169 home education
program requirements.3 Pre-RFPA, there is no evidence that the
school districts ever questioned or interfered with Parents’ home
education programs’ educational content, methodology,
curriculum, or materials. On some occasions, the school
districts required Parents to supplement their logs and portfolios
with additional information. But Parents are unable to identify
an instance in which the school districts rejected any part of
their home education program.

        Nevertheless, post-RFPA, Parents notified the school
districts that Act 169 substantially burdens their free exercise of
religion and sought an exemption from compliance.4 The school



   3
   Thomas and Babette Hankin have never complied with Act
169.
  4
    See 71 Pa. Stat. Ann. § 2405(b) (requiring, prior to bringing
an action in court, the party to provide the agency with written
notice); § 2405(d) (the agency “may remedy the substantial
burden on the person’s free exercise of religion” within 30 days
of the written notice). Darrell and Kathleen Combs refused to
submit the required affidavits and portfolios, thereby ceasing to
comply with Act 169.

                                10
districts refused to grant Parents an exemption from Act 169 and
threatened or, in some cases, initiated criminal prosecutions for
truancy.

        In response, Parents sued the school districts in various
state and federal courts seeking declaratory and injunctive relief
under the First and Fourteenth Amendments to the United States
Constitution, 42 U.S.C. § 1983, and RFPA. Ultimately, the
cases ended up before the United States District Court for the
Western District of Pennsylvania, which consolidated the six
cases for pre-trial and summary judgment purposes. Upon
consent of the parties, discovery was limited to “threshold legal
issues” such as whether Act 169 substantially burdened Parents’
free exercise of religion under the RFPA and the proper standard
of review for Parents’ federal constitutional claims. The District
Court engaged in two rounds of summary judgment motions.

        The first round addressed facial challenges to Act 169.
Parents filed a consolidated motion for summary judgment and
the school districts filed a consolidated opposition, but did not
file a cross-motion for summary judgment. The District Court
denied Parents’ motion. Combs v. Homer Ctr. Sch. Dist., 2005
WL 3338885 (W.D. Pa. Dec. 8, 2005). In the second round, the
school districts filed a motion for summary judgment addressing
both Parents’ facial and “as applied” challenges to Act 169. The
District Court granted the school districts’ motion, concluding
that (1) Parents failed to prove a “substantial burden” on the free
exercise of religion, as defined by RFPA, Combs v. Homer Ctr.
Sch. Dist., 468 F. Supp. 2d 738, 771 (W.D. Pa. 2006), and (2)

                                11
Act 169 is a neutral law of general applicability, satisfying
rational basis review,5 id. at 777. As a result, the District Court
did not decide issues of compelling governmental interest or
least restrictive means.6


   5
    The District Court also rejected Parents’ claims based upon
the Establishment Clause of the First Amendment, the Due
Process Clause of the Fourteenth Amendment and the Free
Speech Clause of the First Amendment. Id. at 778. The
Statement of Issues in Parents’ brief only addresses claims under
RFPA and the Free Exercise Clause.
        The District Court had jurisdiction under 28 U.S.C. §§
1331, 1343(a)(3), 1367 and 1441. We have jurisdiction over the
appeal under 28 U.S.C. § 1291. “We review a district court's
grant of summary judgment de novo.” Lighthouse Inst. for
Evangelism, Inc. v. City of Long Branch, 510 F.3d 253, 260 (3d
Cir. 2007) (citing Gottshall v. Consol. Rail Corp., 56 F.3d 530,
533 (3d Cir. 1995)). Summary judgment is only appropriate if
there are no genuine issues of material fact and the school
districts are entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(c). “In reviewing the District Court's grant of summary
judgment, we view the facts in a light most favorable to the
nonmoving party[:]” Parents. Lighthouse Inst., 510 F.3d at 260.
       6
     In a dictum, the District Court stated: “Even if this Court
were to apply a ‘hybrid rights’ heightened or strict scrutiny test,
however, Plaintiff’s free exercise challenge to Act 169 on its
face would still fail.” Id. at 777.

                                12
                               II.

                               A.

       The Pennsylvania Constitution mandates that the General
Assembly “provide for the maintenance and support of a
thorough and efficient system of public education to serve the
needs of the Commonwealth.” Pa. Const., Art. III, § 14. The
General Assembly has carried out its constitutional charge by
enacting the Public School Code. See 24 Pa. Stat. Ann. §§ 1-
101 to 27-2702.7



  7
    As noted by the District Court, “[a]n educated citizenry has
been recognized as critical to the success and well-being of the
Nation and its people from the time of its creation.” Combs, 468
F. Supp. 2d at 740-41. Pennsylvania’s commitment to public
education is firmly rooted in its history. See id. at 741-43. In
1682, the “Great Law” passed by the First General Assembly of
Pennsylvania “included a provision for the creation of schools
across Pennsylvania.” Id. at 742. Furthermore, the various
Pennsylvania constitutions have included provisions for public
education. Id. (citing the 1776 provisional Pennsylvania
Constitution, the Pennsylvania Constitution of 1874, and Art. II,
§ 14 of the Pennsylvania Constitution in its current form). The
current Pennsylvania Code describes the purpose of public
education as “prepar[ing] students for adult life” and creating
“self-directed, life-long learners and responsible, involved
citizens.” 22 Pa. Code. § 4.11(b) (2008).

                               13
       The Public School Code requires “every child of
compulsory school age having a legal residence in this
Commonwealth . . . to attend a day school in which the subjects
and activities prescribed by the standards of the State Board of
Education are taught in the English language.” 24 Pa. Stat. Ann.
§ 13-1327(a). “Compulsory school age” is defined as “the
period of a child’s life from the time the child’s parents elect to
have the child enter school, which shall be not later than at the
age of eight (8) years, until the age of seventeen (17) years.” Id.
§ 13-1326. See also 22 Pa. Code § 11.13 (2008). A student
who “holds a certificate of graduation from a regularly
accredited senior high school” satisfies the compulsory
attendance requirement and is no longer of compulsory school
age. 24 Pa. Stat. Ann. § 13-1326.

        The Pennsylvania General Assembly currently permits
parents to choose among four alternative categories of education
to satisfy the compulsory attendance requirement: (1) a public
school with certain trade school options, id. § 13-1327(a);8 (2)


  8
    A child may satisfy the compulsory attendance requirement
by attending a public day school. 24 Pa. Stat. Ann. § 13-
1327(a). “In lieu of such school attendance” any child fifteen
years of age who receives approval of the district superintendent
and the Secretary of Education, or any child sixteen years of age
who receives approval of the district superintendent, may enroll
in a trade or business school. Id. Attendance at either public
day school or a trade or business school satisfies the mandate

                                14
a private academic day school or private tutoring, id.;9 (3) a day
school operated by a “bona fide church or other religious body,”
id. § 13-1327(b);10 or (4) a “home education program,” id. § 13-



that “every parent, guardian, or other person having control or
charge of any child or children of compulsory school age is
required to send such child or children to a day school in which
the subjects and activities prescribed by the standards of the
State Board of Education are taught in the English language.”
Id.
   9
    A child may satisfy the compulsory attendance requirement
by attending “an accredited or licensed private school,” 22 Pa.
Code § 11.32 (2008), “in which the subjects and activities
prescribed by the standards of the State Board of Education are
taught in the English language.” 24 Pa. Stat. Ann. § 13-1327(a).
“The certificate of any principal or teacher of a private school,
or of any institution . . .” must “set[] forth that the work of said
school is in compliance with the provisions of this act.” Id.
Also, regular daily instruction in the English language by a
properly qualified private tutor satisfies the compulsory
attendance requirement. Id. The Pennsylvania Administrative
Code enumerates minimum hours of instruction and the required
subjects at both the elementary and secondary school levels. 22
Pa. Code § 11.31 (2008).
  10
    A child may enroll in a day school “operated by a bona fide
church or other religious body.” 24 Pa. Stat. Ann. § 13-1327(b).

                                15
The school must meet minimum standards for hours of
instruction and teach the subjects enumerated in the statute. See
id. (“[A] minimum of one hundred eighty (180) days of
instruction or nine hundred (900) hours of instruction per year
at the elementary level or nine hundred ninety (990) hours per
year of instruction at the secondary level . . . .”); id. § 13-
1327(b)(1) (requiring at the elementary school level, the
following courses: “English, to include spelling, reading and
writing; arithmetic; science; geography; history of the United
States and Pennsylvania; civics; safety education, including
regular and continuous instruction in the dangers and prevention
of fires; health and physiology; physical education; music; and
art”); id. § 13-1327(b)(2) (“At the secondary school level, the
following courses [must be] offered: English, to include
language, literature, speech and composition; science, to include
biology and chemistry; geography; social studies, to include
civics, economics, world history, history of the United States
and Pennsylvania; a foreign language; mathematics, to include
general mathematics and statistics, algebra and geometry; art;
music; physical education; health and physiology; and safety
education, including regular and continuous instruction in the
dangers and prevention of fires.”).
        Further, the principal must file a notarized affidavit with
the Department of Education setting forth that the required
subjects are offered in the English language, whether the school
is a nonprofit organization, and that the school is otherwise in

                                16
1327.1.

        Significant to this appeal, the Pennsylvania General
Assembly permitted the fourth alternative in 1988. See Act 169
of 1988, P.L. 1321, No. 169, December 21, 1988, 24 Pa. Stat.
Ann. § 13-1327.1. Under Act 169, a child instructed under a
“home education program” satisfies the compulsory attendance
requirement. Id. A home education program must satisfy the
same minimum hours of instruction requirements and almost all
of the same subject matter requirements as a school operated by
a bona fide church or religious body.11 Id. §§ 13-1327(b), 13-



compliance with the provisions of the Public School Code. Id.
§ 13-1327(b).
       Although the statute requires religious schools to teach
certain subjects, “[i]t is the policy of the Commonwealth to
preserve the primary right and the obligation of the parent or
parents . . . to choose the education and training for such child.”
Id. Thus, “[n]othing contained in this act shall empower the
Commonwealth, any of its officers, agencies or subdivisions to
approve the course content, faculty, staff or disciplinary
requirements of any religious school referred to in this section
without the consent of said school.” Id.
    11
     Act 169 enumerates the following “minimum courses in
grades nine through twelve” as a requirement for graduation
from a home education program: four years of English; three
years of mathematics; three years of science; three years of

                                17
1327.1(c).

       Prior to the commencement of a home education
program, and thereafter on August 1 of each year, the parent or
guardian of the child must file an affidavit with the district
superintendent setting forth:

       the name of the supervisor of the home education
       program who shall be responsible for the
       provision of instruction; the name and age of each
       child who shall participate . . . ; the address and
       telephone number of the . . . site; that such
       subjects as required by law are offered in the
       English language, including an outline of
       proposed education objectives by subject area . .
       . ; and that the home education program shall
       comply with the provisions of this section . . . .




social studies; two years of arts and humanities. 24 Pa. Stat.
Ann. § 13-1327.1(d). But, in contrast to § 13-1327(b), Act 169
leaves the decision whether to teach certain secondary level
subjects – economics, biology, chemistry, foreign languages,
trigonometry, or other age-appropriate courses as contained in
22 Pa. Code Ch. 4 – to the discretion of the supervisor of the
home education program. 24 Pa. Stat. Ann. § 13-1327.1(c)(2).


                               18
Id. § 13-1327.1(b)(1).12

       The superintendent of the public school district of the
child’s residence is charged with ensuring that each child is
receiving “appropriate education,” which is defined by Act 169
as “a program consisting of instruction in the required subjects
for the time required in this act and in which the student
demonstrates sustained progress in the overall program.” Id. §
13-1327.1(a). In order to demonstrate to the superintendent that
“appropriate education” is taking place, at the end of each public
school year the supervisor of the home education program must




    12
      In addition, the affidavit must provide evidence that the
child has been immunized and has received the health and
medical services required for students of the child’s age or grade
level. 24 Pa. Stat. Ann. § 13-1327.1(b)(1). Further, “[t]he
affidavit shall contain a certification to be signed by the
supervisor that the supervisor, all adults living in the home and
persons having legal custody of a child or children in a home
education program have not been convicted of the criminal
offenses enumerated in subsection (e) of section 111 within five
years immediately preceding the date of the affidavit.” Id.
“Supervisor” is defined by Act 169 as “the parent or guardian or
such person having legal custody of the child or children who
shall be responsible for the provision of instruction, provided
that such person has a high school diploma or its equivalent.”
Id. § 13-1327.1(a).

                               19
submit a file with two types of documentation.13 First, the file
must contain a portfolio of records and materials:

        The portfolio shall consist of a log, made
        contemporaneously with the instruction, which
        designates by title the reading materials used,
        samples of any writings, worksheets, workbooks
        or creative materials used or developed by the
        student and in grades three, five and eight results
        of nationally normed standardized achievement
        tests in reading/language arts and mathematics or
        the results of Statewide tests administered in these
        grade levels. The department shall establish a list,
        with a minimum of five tests, of nationally
        normed standardized tests from which the
        supervisor of the home education program shall
        select a test to be administered if the supervisor
        does not choose the Statewide tests. At the
        discretion of the supervisor, the portfolio may
        include the results of nationally normed
        standardized achievement tests for other subject
        areas or grade levels. The supervisor shall ensure


   13
      “In addition, if the superintendent has a reasonable belief
that, at any time during the school year, appropriate education
may not be occurring in the home education program, he may .
. . require documentation . . . to be submitted to the district . . .
.” 24 Pa. Stat. Ann. § 13-1327.1(h).

                                 20
       that the nationally normed standardized tests or
       the Statewide tests shall not be administered by
       the child's parent or guardian.

Id. § 13-1327.1(e)(1).

       Second, the supervisor of the home education program
must obtain an annual written evaluation of the child’s work. Id.
§ 13-1327.1(e)(2). The supervisor may choose any person
qualified under Act 169 to make the evaluation.14 The

  14
    Act 169 permits evaluation by “a licensed clinical or school
psychologist or a teacher certified by the Commonwealth or by
a nonpublic school teacher or administrator.” 24 Pa. Stat. Ann.
§ 13-1327.1(e)(2).       “Any such nonpublic teacher or
administrator shall have at least two years of teaching
experience in a Pennsylvania public or nonpublic school within
the last ten years.” Id. Further, any nonpublic teacher or
administrator or certified teacher must have the required
“experience at the elementary level to evaluate elementary
students or at the secondary level to evaluate secondary
students.” Id.
       A teacher or administrator who evaluates a
       portfolio at the elementary level (grades
       kindergarten through six) shall have at least two
       years of experience in grading any of the
       following subjects: English, to include spelling,
       reading and writing; arithmetic; science;
       geography; history of the United States and

                               21
evaluation measures:

       the student's educational progress . . . . The
       evaluation shall also be based on an interview of



        Pennsylvania; and civics.
Id. § 13-1327.1(e)(1)(i).
        A teacher or administrator who evaluates a
        portfolio at the secondary level (grades seven
        through twelve) shall have at least two years of
        experience in grading any of the following
        subjects: English, to include language, literature,
        speech, reading and composition; science, to
        include biology, chemistry and physics;
        geography; social studies, to include economics,
        civics, world history, history of the United States
        and Pennsylvania; foreign language; and
        mathematics, to include general mathematics,
        algebra, trigonometry, calculus and geometry.
Id. § 13-1327.1(e)(1)(ii). “[T]he term ‘grading’ shall mean
evaluation of classwork, homework, quizzes, classwork-based
tests and prepared tests related to classwork subject matter.” Id.
§ 13-1327.1(e)(1)(iii).
        “At the request of the supervisor, persons with other
qualifications may conduct the evaluation with the prior consent
of the district of residence superintendent. In no event shall the
evaluator be the supervisor or their spouse.” Id. § 13-
1327.1(e)(2).

                               22
           the child and a review of the portfolio required in
           clause (1) and shall certify whether or not an
           appropriate education is occurring.

Id.

       Based upon the entire file – the portfolio of records and
materials and the third-party evaluation – the superintendent
determines whether the home education program provides the
child with an “appropriate education.” 15

           If the superintendent . . . determines, based on the
           documentation provided . . . that appropriate
           education is not taking place for the child in the
           home education program, the superintendent shall
           send a letter . . . to the supervisor of the home
           education program stating that in his opinion
           appropriate education is not taking place for the
           child in the home education program and shall
           return all documentation, specifying what aspect
           or aspects of the documentation are inadequate.

Id. § 13-1327.1(i). Upon receipt of the letter, the supervisor has
twenty days “to submit additional documentation demonstrating
that appropriate education is taking place for the child in the

      15
       The superintendent may not rely upon the outline of
proposed educational objectives provided at the beginning of the
year when making his “appropriate education” determination.
24 Pa. Stat. Ann. § 13-1327.1(b)(1).

                                   23
home education program.” Id. § 13-1327.1(j). If the additional
documentation is not timely submitted, the home education
program “shall be out of compliance” with the compulsory
attendance requirements and the student must promptly enroll in
either a public school, a nonpublic religious school, or a licensed
private school. Id.

         If the superintendent concludes that a timely amended file
still fails to demonstrate appropriate education, he or she will
notify the supervisor of his or her determination. Further, the
supervisor will be given a “proper hearing by a duly qualified
and impartial hearing examiner” within thirty days. Id. § 13-
1327.1(k).16       “If the hearing examiner finds that the
documentation does not indicate that appropriate education is
taking place in the home education program,” the student must
be promptly enrolled in either a public school, a nonpublic
religious school, or a licensed private academic school.17 Id. §



   16
     The “hearing examiner” “shall not be an officer, employe
[sic] or agent of the Department of Education or of the school
district or intermediate unit of residence of the child in the home
education program.” Id. § 13-1327.1(a).
   17
    In lieu of rendering a decision, the hearing examiner may
“require the establishment of a remedial education plan mutually
agreed to by the superintendent and supervisor of the home
education program which shall continue the home education
program.” 24 Pa. Stat. Ann. § 13-1327.1(k).

                                24
13-1327.1(l). “The decision of the [hearing] examiner may be
appealed by either the supervisor of the home education
program or the superintendent to the Secretary of Education or
Commonwealth Court [of Pennsylvania].” Id. § 13-1327.1(k).

        In practice, the school districts engage in a limited level
of oversight. The school districts require a minimum of two
contacts with the State during the calendar year – the submission
of an affidavit at the beginning of the year and the submission
of the portfolio and evaluation at the end of the year. Deposition
testimony reveals that school officials do not check in on the
progress of home education programs during the school year.
Furthermore, all school officials deposed acknowledged that
they never disagreed with or rejected an independent evaluator’s
assessment of the home education program. School officials
reviewed the disclosures for compliance with the statute and, if
all the required disclosures were presented, the home education
program would be approved.

                                B.

       As noted, in 2002 the Pennsylvania General Assembly
enacted the Religious Freedom Protection Act. 71 Pa. Stat.
Ann. §§ 2401–2407. Titled “[a]n Act protecting the free
exercise of religion; and prescribing the conditions under which
government may substantially burden a person's free exercise of
religion,” Id. § 2401, the RFPA was based on two legislative
findings:

       (1) Laws and governmental actions which are

                                25
       facially neutral toward religion, as well as laws
       and governmental actions intended to interfere
       with religious exercise, may have the effect of
       substantially burdening the free exercise of
       religion.    However, neither State nor local
       government should substantially burden the free
       exercise of religion without compelling
       justification.

       (2) The General Assembly intends that all laws
       which it has heretofore enacted or will hereafter
       enact and all ordinances and regulations which
       have been or will be adopted by political
       subdivisions or executive agencies shall be
       construed so as to avoid the imposition of
       substantial burdens upon the free exercise of
       religion without compelling justification.

Id. § 2402.

        Under RFPA, “an agency shall not substantially burden
a person’s free exercise of religion, including any burden which
results from a rule of general applicability,” id. § 2404(a), unless
“the agency proves, by a preponderance of the evidence, that the
burden” is “[i]n furtherance of a compelling interest of the
agency” and is “[t]he least restrictive means of furthering the
compelling interest,” id. § 2404(b).

       The General Assembly provides definitions for several
key terms in section 2404. First, “free exercise of religion”

                                26
means “[t]he practice or observance of religion under section 3
of Article I of the Constitution of Pennsylvania.” 18 Id. § 2403.
Second, “person” is defined as “[a]n individual or a church,
association of churches or other religious order, body or
institution which qualifies for exemption from taxation under
section 501(c)(3) or (d) of the Internal Revenue Code of 1986
(Public Law 99-514, 26 U.S.C. § 501).” 71 Pa. Stat. Ann. §
2403. Third, RFPA defines “substantially burden” as “[a]n
agency action which does any of the following:”

          (1) Significantly constrains or inhibits conduct or
          expression mandated by a person’s sincerely held
          religious beliefs.
          (2) Significantly curtails a person’s ability to


     18
      Article I, Section 3 of the Pennsylvania Constitution
provides:
      All men have a natural and indefeasible right to
      worship Almighty God according to the dictates
      of their own consciences; no man can of right be
      compelled to attend, erect or support any place of
      worship, or to maintain any ministry against his
      consent; no human authority can, in any case
      whatever, control or interfere with the rights of
      conscience, and no preference shall ever be given
      by law to any religious establishments or modes
      of worship.
Pa. Const., Art. I, § 3.

                                  27
       express adherence to the person’s religious faith.
       (3) Denies a person a reasonable opportunity to
       engage in activities which are fundamental to the
       person’s religion.
       (4) Compels conduct or expression which violates
       a specific tenet of a person’s religious faith.

Id.

        RFPA allows a “person whose free exercise of religion
has been burdened or likely will be burdened in violation of [§
2404]” to bring a claim in a judicial proceeding. Id. § 2405(a).
Prior to bringing a claim, the “person” must notify the agency,
describing the agency action and the manner in which it burdens
religion. Id. § 2405(b). A “person” who “proves, by clear and
convincing evidence, that the person’s free exercise of religion
has been burdened . . . in violation of [§ 2404]” may receive
declaratory or injunctive relief. Id. § 2405(f). Monetary
damages are not available. Id.

       With limited exceptions, 71 Pa. Stat. Ann. § 2406(a)–(b),
RFPA applies “to any State or local law or ordinance and the
implementation of that law or ordinance, whether statutory or
otherwise and whether adopted or effective prior to or after the
effective date of this act,” id. § 2406(a). Thus, RFPA applies to
the Public School Code, 24 Pa. Stat. Ann. §§ 1-101 to 27-2702.

                              III.

       We address Parents’ federal constitutional claim. Parents


                               28
contend Act 169 imposes a substantial burden on the free
exercise of religion as protected by the First and Fourteenth
Amendments.19 The Commonwealth asserts Act 169 is a neutral
law of general applicability that is rationally related to the
legitimate governmental interest in ensuring a minimal level of
education for all children. Applying rational basis review, the
District Court concluded that “Act 169 passes constitutional
muster as a neutral law of general applicability and effect.”
Combs, 468 F. Supp. 2d at 777. Accordingly, the District Court
denied Parents’ motion for summary judgment as to the facial
challenge to Act 169 as a violation of the First Amendment of
the United States Constitution and granted the school districts’
motion for summary judgment as to Parents’ as-applied
challenges.

                               A.

       In Employment Division, Department of Human
Resources of Oregon v. Smith, 494 U.S. 872, 890 (1990), the
Supreme Court held “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. Hialeah, 508 U.S. 520, 531 (1993); see also Smith,
494 U.S. at 879 (“[T]he right to free exercise does not relieve an

     19
      The Free Exercise Clause applies to states and local
governments through the Fourteenth Amendment. Cantwell v.
Connecticut, 310 U.S. 296, 303 (1940).

                               29
individual of the obligation to comply with a valid and neutral
law of general applicability on the ground that the law
proscribes (or prescribes) conduct that his religion prescribes (or
proscribes).”). The District Court concluded that “Act 169 is a
neutral law of general applicability to all Pennsylvania home
schoolers and their home education programs, with no reference
or special impact on religious practices . . . .” Combs, 468 F.
Supp. 2d at 772. As a result, the District Court applied the
rational basis test to Parents’ challenge of Act 169 and upheld
the provision. Id. at 777.

        In Blackhawk v. Pennsylvania, 381 F.3d 202 (3d Cir.
2004), we applied the standards for a neutral law of general
applicability articulated by the Court in Hialeah. First, a law
must be both facially and actually neutral. “A law is ‘neutral’ if
it does not target religiously motivated conduct either on its face
or as applied in practice.” Blackhawk, 381 F.3d at 209; see also
Hialeah, 508 U.S. at 534 (“Official action that targets religious
conduct for distinctive treatment cannot be shielded by mere
compliance with the requirement of facial neutrality. The Free
Exercise Clause protects against governmental hostility which
is masked, as well as overt.”). Second, the government cannot
advance its interests solely by targeting religiously motivated
conduct. Instead, the regulation must be generally applicable.

       A law fails the general applicability requirement
       if it burdens a category of religiously motivated
       conduct but exempts or does not reach a
       substantial category of conduct that is not

                                30
       religiously motivated and that undermines the
       purposes of the law to at least the same degree as
       the covered conduct that is religiously motivated.

Blackhawk, 381 F.3d at 209; see also Hialeah, 508 U.S. at 543
(“The principle that government, in pursuit of legitimate
interests, cannot in a selective manner impose burdens only on
conduct motivated by religious belief is essential to the
protection of the rights guaranteed by the Free Exercise
Clause.”).

       Act 169 is a neutral law of general applicability. It
neither targets religious practice nor selectively imposes burdens
on religiously motivated conduct. Instead, it imposes the same
requirements on parents who home-school for secular reasons as
on parents who do so for religious reasons. Furthermore,
nothing in the record suggests Commonwealth school officials
discriminate against religiously motivated home education
programs (e.g., denying approval of home education programs
because they include faith-based curriculum materials).

        Parents contend Act 169 is not a law of general
applicability and is tantamount to a licensing scheme for home-
schooling. They cite Blackhawk, 381 F.3d at 209-10, for the
proposition “that a statute with a waiver mechanism creates a
regime of individualized, discretionary exemptions that triggers
strict scrutiny.” Parents Reply Br. at 8-9. Parents’ depiction of
Act 169 is mistaken and their reliance on Blackhawk is
misplaced.


                               31
       As noted, there are four ways to fulfill the compulsory
education requirement. None of the options is an exemption
from the compulsory education law. All four require that a child
be educated in the required subjects for the required period.
Furthermore, all parents who choose the home education
program alternative, whether for religious or secular reasons, are
required to fulfill the Act 169 requirements. Parents cite no
statutory waiver mechanism that gives the school districts the
authority to waive or exempt some parents from the disclosure
and review requirements.

       In Blackhawk, the Pennsylvania Wildlife Code contained
specific statutory exemptions authorizing the director of the
Game Commission to waive a permit fee “where hardship or
extraordinary circumstance warrants.” Id. at 205. Further, the
court stated: “[w]e are not presented here with a neutral and
generally applicable [provision] that is uniformly imposed
without allowing individualized exemptions. Under Smith, such
a scheme . . . would not trigger strict scrutiny, and a person
seeking to be excused [from the provision’s requirements] on
religious grounds would be unlikely to prevail.” Id. at 212. Act
169 is a neutral law of general applicability and does not allow
individualized exemptions. Blackhawk is distinguishable.

       Since Act 169 is a neutral law of general applicability, we
will apply rational basis review unless an exception to the Smith
rule applies. “[R]ational basis review requires merely that the
action be rationally related to a legitimate government
objective.” Tenafly Eruv Ass’n, Inc. v. Tenafly, 309 F.3d 144,

                               32
165 n.24 (3d Cir. 2002). “Under rational basis review, ‘a statute
is presumed constitutional, and the burden is on the one
attacking the legislative arrangement to negative every
conceivable basis which might support it, whether or not that
basis has a foundation in the record.’” Lighthouse Inst., 510
F.3d at 277 (quoting Heller v. Doe, 509 U.S. 312, 321 (1993)).

        The Commonwealth has a legitimate interest in ensuring
children taught under home education programs are achieving
minimum educational standards and are demonstrating sustained
progress in their educational program. See, e.g., Bd. of Educ. v.
Allen, 392 U.S. 236, 245-47 & n.7 (1968) (“[A] substantial body
of case law has confirmed the power of the States to insist that
attendance at private schools, if it is to satisfy state compulsory-
attendance laws, be at institutions which provide minimum
hours of instruction, employ teachers of specified training, and
cover prescribed subjects of instruction . . . . [I]f the State must
satisfy its interest in secular education through the instrument of
private schools, it has a proper interest in the manner in which
those schools perform their secular educational function.”);
Pierce v. Soc’y of Sisters of the Holy Names of Jesus and Mary,
268 U.S. 510, 534 (1925) (acknowledging the “power of the
State reasonably to regulate all schools, to inspect, supervise and
examine them, their teachers and pupils”). In Brown v. Board
of Education, the Supreme Court noted the importance of
education and the meaningful role the state plays in preparing a
child for citizenship and adult life:

       Today, education is perhaps the most important

                                33
       function of state and local governments.
       Compulsory school attendance laws and the great
       expenditures for education both demonstrate our
       recognition of the importance of education to our
       democratic society.       It is required in the
       performance of our most basic public
       responsibilities, even service in the armed forces.
       It is the very foundation of good citizenship.
       Today it is a principal instrument in awakening
       the child to cultural values, in preparing him for
       later professional training, and in helping him to
       adjust normally to his environment. In these days,
       it is doubtful that any child may reasonably be
       expected to succeed in life if he is denied the
       opportunity of an education.

347 U.S. 483, 493 (1954). Act 169's disclosure requirements
and corresponding school district review rationally further these
legitimate state interests. Accordingly, Act 169 survives rational
basis review.

                               B.

       Parents assert their claim falls within a “hybrid-rights”
exception the Supreme Court discussed in Smith:

       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

                               34
       alone, but the Free Exercise Clause in conjunction
       with other constitutional protections, such as
       freedom of speech and of the press, see Cantwell
       v. Connecticut, [310 U.S., at 304-307]
       (invalidating a licensing system for religious and
       charitable solicitations under which the
       administrator had discretion to deny a license to
       any cause he deemed nonreligious); Murdock v.
       Pennsylvania, [319 U.S. 105 (1943)] (invalidating
       a flat tax on solicitation as applied to the
       dissemination of religious ideas); Follett v.
       McCormick, [321 U.S. 573 (1944)] (same), or the
       right of parents, acknowledged in Pierce v.
       Society of Sisters, [268 U.S. 510 (1925)], to direct
       the education of their children, see Wisconsin v.
       Yoder, [406 U.S. 205 (1972)] (invalidating
       compulsory school-attendance laws as applied to
       Amish parents who refused on religious grounds
       to send their children to school).

Smith, 494 U.S. at 881. Parents contend Act 169 substantially
burdens both their free exercise of religion and their
fundamental right as parents, under the Fourteenth Amendment,
to direct the education and upbringing of their children.
Accordingly, they invoke the hybrid-rights exception of Smith,
seeking strict scrutiny review. Alternatively, Parents contend
that, notwithstanding our hybrid-rights determination, Wisconsin
v. Yoder remains good law and the same constitutional test


                               35
applies here.

                                1.

       Although we have discussed the Smith hybrid-rights
theory in prior opinions, its meaning and application remains an
open question in our circuit. See Blackhawk, 381 F.3d at 207
(noting, while discussing Smith, “the Court did not overrule
prior decisions in which ‘hybrid claims’ . . . had prevailed
against ‘neutral, generally applicable laws,’” but deciding case
on other grounds); Tenafly, 309 F.3d at 165 n.26 (noting “[s]trict
scrutiny may . . . apply when a neutral, generally applicable law
incidentally burdens” hybrid rights); Salvation Army v. Dep’t of
Cmty. Affairs, 919 F.2d 183, 200 (3d Cir. 1990) (finding
“[b]ecause the present controversy does not concern any state
action directly addressed to religion, [The Salvation Army]
cannot receive protection from the associational right derived
from the free exercise clause”). We have never decided a case
based on a hybrid-rights claim, let alone the type of a hybrid-
rights claim invoked here – one based on the Free Exercise
Clause and the companion right to direct a child’s upbringing.

        Smith’s hybrid-rights theory has divided our sister
circuits. Some characterize the theory as dicta and others use
different standards to decide whether a plaintiff has asserted a
cognizable hybrid-rights claim. The United States Courts of
Appeals for the Second and Sixth Circuits have concluded the
hybrid-rights language in Smith is dicta. See Leebaert v.
Harrington, 332 F.3d 134, 143 (2d Cir. 2003) (citing Knight v.


                               36
Connecticut Dep’t of Pub. Health, 275 F.3d 156, 167 (2d Cir.
2001)); Watchtower Bible & Tract Soc’y of New York, Inc. v.
Stratton, 240 F.3d 553, 561-62 (6th Cir. 2001), rev’d on other
grounds, 536 U.S. 150 (2002); Kissinger v. Bd. of Trs. of Ohio
State Univ., Coll. of Veterinary Med., 5 F.3d 177, 180 (6th Cir.
1993). Furthermore, the United States Court of Appeals for the
Sixth Circuit views the hybrid-rights exception as “completely
illogical,” Kissinger, 5 F.3d at 180, and the United States Court
of Appeals for the Second Circuit “can think of no good reason
for the standard of review to vary simply with the number of
constitutional rights that the plaintiff asserts have been
violated,” Leebaert, 332 F.3d at 144.20 Accordingly, when faced

   20
     Justice Souter, concurring in Hialeah, also criticized the
hybrid-rights theory:
       [T]he distinction Smith draws strikes me as
       ultimately untenable. If a hybrid claim is simply
       one in which another constitutional right is
       implicated, then the hybrid exception would
       probably be so vast as to swallow the Smith rule,
       and, indeed, the hybrid exception would cover the
       situation exemplified by Smith, since free speech
       and associational rights are certainly implicated in
       the peyote ritual. But if a hybrid claim is one in
       which a litigant would actually obtain an
       exemption from a formally neutral, generally
       applicable law under another constitutional
       provision, then there would have been no reason

                               37
with a neutral law of general applicability, both appellate courts
decline to allow the application of strict scrutiny to hybrid-rights
claims and instead apply Smith’s rational basis standard. See
Leebaert, 332 F.3d at 144 (“‘[A]t least until the Supreme Court
holds that legal standards under the Free Exercise Clause vary
depending on whether other constitutional rights are implicated,
we will not use a stricter legal standard’ to evaluate hybrid
claims.” (quoting Kissinger, 5 F.3d at 180)).

        The United States Courts of Appeals for the First Circuit
and District of Columbia have acknowledged that hybrid-rights
claims may warrant heightened scrutiny, but have suggested that
a plaintiff must meet a stringent standard: the free exercise claim
must be conjoined with an independently viable companion
right. See Henderson v. Kennedy, 253 F.3d 12, 19 (D.C. Cir.
2001) (rejecting the “hybrid claim” argument that “the
combination of two untenable claims equals a tenable one”);
E.E.O.C. v. Catholic Univ. of Am., 83 F.3d 455, 467 (D.C. Cir.
1996) (finding that the EEOC’s violation of the Establishment
Clause triggered the hybrid-rights exception); Gary S. v.
Manchester Sch. Dist., 374 F.3d 15, 18-19 (1st Cir. 2004) (citing
Gary S. v. Manchester Sch. Dist., 241 F. Supp. 2d 111, 121
(D.N.H. 2003)) (affirming, for the same reasons, the district
court’s rejection of a hybrid-rights claim because the free



      for the Court in what Smith calls the hybrid cases
      to have mentioned the Free Exercise Clause at all.
Hialeah, 508 U.S. at 567 (Souter, J., concurring).

                                38
exercise claim was not conjoined with an independently viable
companion claim); Brown v. Hot, Sexy & Safer Prods., Inc., 68
F.3d 525, 539 (1st Cir. 1995) (rejecting a hybrid-rights claim
because “[plaintiff’s] free exercise challenge is . . . not
conjoined with an independently protected constitutional
protection”).21

  21
    In Parker v. Hurley, 514 F.3d 87 (1st Cir. 2008), the United
States Court of Appeals for the First Circuit rejected plaintiff
parents’ claims that they must be given prior notice by a public
school and an opportunity to exempt their young children from
reading books the parents find religiously repugnant. In
discussing hybrid-rights claims, the court stated that the strength
of the companion constitutional claim required to establish a
hybrid situation remains unsettled in the First Circuit because
the Brown opinion did not “explicitly” decide the issue. Id. at
98 n.9. It also noted that “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.” Id. The Parker
court chose not to “enter[] the fray over the meaning and
application of Smith’s ‘hybrid situations’ language,” and instead
“approach[ed] 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.” Id. at 98. The court
ultimately found that plaintiffs did not describe “a constitutional
burden on their rights” and affirmed the district court’s dismissal

                                39
        This stringent approach requiring an independently valid
companion claim has received criticism, most notably that such
a requirement would make the free exercise claim superfluous.
See Hialeah, 508 U.S. at 567 (Souter, J., concurring) (“[I]f a
hybrid claim is one in which a litigant would actually obtain an
exemption from a formally neutral, generally applicable law
under another constitutional provision, then there would have
been no reason for the Court in what Smith calls the hybrid cases
to have mentioned the Free Exercise Clause at all.”); Axson-
Flynn v. Johnson, 356 F.3d 1277, 1296-97 (10th Cir. 2004)
(“[I]t makes no sense to adopt a strict standard that essentially
requires a successful companion claim because such a test would
make the free exercise claim unnecessary. If the plaintiff’s
additional constitutional claim is successful, he or she would
typically not need the free exercise claim and the hybrid-rights
exception would add nothing to the case.”).

      The United States Courts of Appeals for the Ninth and
Tenth Circuits 22 recognize hybrid rights and require a plaintiff



for failure to state a claim. Id. at 99.
     22
      Although the United States Court of Appeals for the
Seventh Circuit has not definitively articulated its approach, it
has approvingly quoted the United States Court of Appeals for
the Ninth Circuit. See Civil Liberties for Urban Believers v.
Chicago, 342 F.3d 752, 765 (7th Cir. 2003) (quoting Miller v.
Reed, 176 F.3d 1202, 1207-08 (9th Cir. 1999)); but see id.

                                40
to raise a “colorable claim that a companion right has been
violated.” San Jose Christian Coll. v. Morgan Hill, 360 F.3d
1024, 1032 (9th Cir. 2004); see also Axson-Flynn, 356 F.3d at
1297. They define colorable as “a fair probability or a
likelihood, but not a certitude, of success on the merits.” San
Jose Christian Coll., 360 F.3d at 1032; Axson-Flynn, 356 F.3d
at 1297. They characterize this fact-driven, case-by-case inquiry
as “a middle ground between two the extremes of painting
hybrid-rights claims too generously and construing them too
narrowly.” Axson-Flynn, 356 F.3d at 1295. A plaintiff cannot
“simply invoke the parental rights doctrine, combine it with a
claimed free-exercise right, and thereby force the government to
demonstrate the presence of a compelling state interest.”
Swanson v. Guthrie Indep. Sch. Dist. No. I-L, 135 F.3d 694, 700
(10th Cir. 1998). Nor is one required to establish that the
challenged law independently violates a companion
constitutional right alone, without any recognition of the Free
Exercise Clause.

       By requiring a “colorable claim” that a companion right



(citing Brown, 68 F.3d at 539 and Kissinger, 5 F.3d at 180).
The United States Court of Appeals for the Eighth Circuit has
recognized the existence of hybrid rights but has not defined the
contours of the analysis. See Cornerstone Bible Church v.
Hastings, 948 F.2d 464, 474 (8th Cir. 1991) (reversing and
remanding to district court to consider hybrid-rights claim).


                               41
has been violated, the United States Courts of Appeals for the
Ninth and Tenth Circuits examine “the claimed infringements
on the party’s claimed rights to determine whether either the
claimed rights or the claimed infringements are genuine.”
Swanson, 135 F.3d at 699. Thus, in order to trigger heightened
scrutiny, a hybrid-rights plaintiff must show a fair probability or
likelihood, but not a certitude, of success on the merits of his
companion constitutional claim.

       In Smith, the Court asserted that the case before it “[did]
not present . . . a hybrid situation, but a free exercise claim
unconnected with any communicative activity or parental right.”
 494 U.S. at 882. The criterion applicable to a free exercise
claim combined with a companion constitutional right was left
undefined. See, e.g., Kissinger, 5 F.3d at 180 (noting that the
Smith Court “did not explain how the standards under the Free
Exercise Clause would change depending on whether other
constitutional rights are implicated”). Since Smith, a majority of
the Court has not confirmed the viability of the hybrid-rights
theory.23 Until the Supreme Court provides direction, we


   23
      As noted, Justice Souter, concurring in Hialeah, criticized
the hybrid-rights theory. Hialeah, 508 U.S. at 566-67 (Souter,
J., concurring). Furthermore, in Boerne v. P.F. Flores, 521 U.S.
507 (1997), the Court noted, without further discussion or
explanation, that Yoder “implicated” the right to free exercise of
religion and the right of parents to control their children’s
education. Boerne, 521 U.S. at 514.

                                42
believe the hybrid-rights theory to be dicta.

                               2.

        Even if we were to apply the approaches used by our
sister circuits – “colorable” claim approach and independently
viable claim approach – we would find Parents’ arguments
unconvincing. Under either approach, we must determine
whether Parents can establish a hybrid-rights claim by asserting
combined violations of the Free Exercise Clause and the
companion right of a parent under the Fourteenth Amendment
to direct a child’s education. Parents have not presented an
independent or colorable companion claim and, accordingly,
cannot establish a valid hybrid-rights claim.

        “The Due Process Clause guarantees more than fair
process . . . . The Clause also provides heightened protection
against government interference with certain fundamental rights
and liberty interests.” Washington v. Glucksberg, 521 U.S. 702,
719-20 (1997). In Glucksberg, the Supreme Court articulated
the fundamental rights protected by the Due Process Clause. Id.
at 719-20. Included in the list was the right “to direct the
education and upbringing of one’s children.” Id. at 720 (citing
Meyer v. Nebraska, 262 U.S. 390 (1923), and Pierce v. Soc’y of
Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510
(1925)); see also Troxel v. Granville, 530 U.S. 57, 66 (2000)
(plurality opinion) (“[T]he Due Process Clause of the Fourteenth
Amendment protects the fundamental right of parents to make
decisions concerning the care, custody, and control of their


                               43
children.”).

       Parents rely on three Supreme Court cases to generally
identify a parent’s constitutional right to direct a child’s
education. See Meyer v. Nebraska, 262 U.S. 390, 401-03 (1923)
(holding state law prohibiting foreign language instruction
violated the “power of parents to control the education of their
own”); Pierce, 268 U.S. at 535-36 (holding state compulsory
education law requiring students to attend solely public schools
“unreasonably interferes with the liberty of parents . . . to direct
the upbringing and education of children under their control”);
Wisconsin v. Yoder, 406 U.S. 205, 214, 234-36 (1972) (finding
a compulsory education system, as applied to the Amish, to
violate the Free Exercise Clause and the “traditional interest of
parents with respect to the religious upbringing of their children
so long as they, in the words of Pierce, ‘prepare (them) for
additional obligations’”). But the particular right asserted in this
case – the right to be free from all reporting requirements and
“discretionary” state oversight of a child’s home-school
education – has never been recognized.

       Although Parents assert the fundamental nature of their
general right, it is a limited one. We have noted “[t]he Supreme
Court has never been called upon to define the precise
boundaries of a parent’s right to control a child’s upbringing and
education. It is clear, however, that the right is neither absolute
nor unqualified.” C.N. v. Ridgewood Bd. of Educ., 430 F.3d
159, 182 (3d Cir. 2005). “The case law in this area establishes
that parents simply do not have a constitutional right to control

                                44
each and every aspect of their children’s education and oust the
state’s authority over that subject.” Swanson, 135 F.3d at 699.24
Furthermore,

        [t]he Court has repeatedly stressed that while
        parents have a constitutional right to send their
        children to private schools and a constitutional
        right to select private schools that offer
        specialized instruction , they have no
        constitutional right to provide their children with
        private school education unfettered by reasonable
        government regulation.




   24
     Federal courts addressing the issue have held that parents
have no right to exempt their child from certain subjects, reading
assignments, community-service requirements or assembly
programs they find objectionable. See, e.g., Parker, 514 F.3d at
107 (reading assignment); Leebaert, 332 F.3d at 144 (health
education class); Herndon v. Chapel Hill-Carrboro City Bd. of
Educ., 89 F.3d 174 (4th Cir. 1996) (community-service
requirement); Immediato v. Rye Neck Sch. Dist., 73 F.3d 454,
461-62 (2d Cir. 1996) (community-service requirement); Brown,
68 F.3d at 539 (sexual education assembly); see also Blau v.
Fort Thomas Pub. Sch. Dist., 401 F.3d 381, 395-96 (6th Cir.
2005) (finding that a parent “does not have a fundamental right
to exempt his child from the school dress code”).

                                45
Runyon v. McCrary, 427 U.S. 160, 178 (1976).25

      In addition to Yoder, discussed infra, Parents rely on
Meyer and Pierce for foundational support. Read together, the
cases

        evince the principle that the state cannot prevent
        parents from choosing a specific educational
        program – whether it be religious instruction at a
        private school or instruction in a foreign
        language. That is, the state does not have the
        power to “standardize its children” or “foster a
        homogenous people” by completely foreclosing
        the opportunity of individuals and groups to
        choose a different path of education.

Brown, 68 F.3d at 533; see also Runyon, 427 U.S. at 177
(stressing the “limited scope” of Meyer and Pierce). In the
present case, Parents are given the freedom to choose a
“different path of education” – home-schooling – subject only
to the Act 169 requirements. The school districts do not have
any role in selecting the program Parents wish to follow.


   25
     Parents who home-school their children may be subjected
to standardized testing to ensure the children are receiving an
adequate education. See Murphy v. Arkansas, 852 F.2d 1039,
1044 (8th Cir. 1988) (upholding state standardized test
requirement over home-schooling parents’ First and Fourteenth
Amendment objections).

                               46
Parents are unable to point to a single instance in which the
school districts have limited or interfered with their religious
teachings and/or materials.

        In her deposition, Shari Nelson acknowledged that her
local school district never questioned or rejected her affidavits
and did not interfere with her religious content choices. Mrs.
Nelson noted she was never concerned that the local school
district would reject her children’s portfolio if it contained work
product with a religious subject matter. Similarly, Maryalice
Newborn acknowledged that her local school district never
questioned the appropriateness of her home education program
or its content.

        Parents nevertheless contend that the Commonwealth’s
“subjective” and “discretionary” review over the Act 169
disclosures violates their right to control their children’s
education. They insist any review of the home education
programs must be purely “objective.” In other words, they
contend the Commonwealth usurps the religious and parental
rights of parents when an official makes a limited determination
of whether a child has “sustained progress in the overall
program.” Parents have not articulated their definition of
“objective” in their brief. When questioned during oral
argument, Parents’ counsel was unable or unwilling to provide
a concrete explanation or example of an “objective” review.
Furthermore, it is difficult to accept Parents’ assertion that
review of a child’s educational progress can truly be objective.
The grading of an essay, even on a pass/fail scale, will always

                                47
be imbued with some element of subjectivity.

        As noted, there is no recognized right for parents to
educate their children “unfettered by reasonable government
regulation.” Runyon, 427 U.S. at 178. The Court in Pierce
expressly acknowledged “‘the power of the State reasonably to
regulate all schools, to inspect, supervise and examine them,
their teachers and pupils.’” Id. (quoting Pierce, 268 U.S. at
534); see also Meyer, 262 U.S. at 402 (noting “[t]he power of
the state to compel attendance at some school and to make
reasonable regulations for all schools . . . [was] not questioned”
by the parties).26 Furthermore, there is “a distinction between


   26
        In a different context, the Supreme Court stated:
          Since Pierce, a substantial body of case law has
          confirmed the power of the States to insist that
          attendance at private schools, if it is to satisfy
          state compulsory-attendance laws, be at
          institutions which provide minimum hours of
          instruction, employ teachers of specified training,
          and cover prescribed subjects of instruction.
          Indeed, the State’s interest in assuring that these
          standards are being met has been considered a
          sufficient reason for refusing to accept instruction
          at home as compliance with compulsory
          education statutes. These cases were a sensible
          corollary of Pierce v. Society of Sisters: if the
          State must satisfy its interest in secular education

                                  48
actions that strike at the heart of parental decision-making
authority on matters of the greatest importance and other actions
that . . . are not of constitutional dimension.” C.N., 430 F.3d at
184. Parents identify the general right to control the education
of one’s child. But Parents do not have a constitutional right to
avoid reasonable state regulation of their children’s education.
Act 169's reporting and superintendent review requirements
ensure children taught in home education programs demonstrate
progress in the educational program. The statute does not
interfere, or authorize any interference, with Parents’ religious
teachings and/or use of religious materials. Parents’ claim under
the Fourteenth Amendment is of insufficient constitutional
dimension to state either an independently viable or colorable
claim. Accordingly, under both the stringent and colorable
hybrid-rights approaches of our sister circuits, Parents have not
asserted a “hybrid-rights claim.”

                                3.

       Parents also contend that, notwithstanding the different
standards articulated by the circuits regarding hybrid-rights


       through the instrument of private schools, it has a
       proper interest in the manner in which those
       schools perform their secular education function.
Bd. of Educ. of Cent. Sch. Dist. No. 1 v. Allen, 392 U.S. 236,
245-47 (1968) (examining validity of a New York statute
requiring school districts to purchase and loan textbooks to
students enrolled in parochial schools).

                               49
claims, they raise the same type of claim as the parents in Yoder.
They contend that since Yoder is still good law, parents claiming
a religious-parental exemption to a neutral law of general
applicability get the benefit of the traditional Free Exercise test.
Parents assert that “it is beyond legitimate question that the same
constitutional tests employed in Yoder must be used here to
evaluate these Parents’ religious-parental claims.” Parents Br.
at 27.

        In Yoder, the Court granted a religious-based exception
to a regulation of general applicability. C.f. John E. Nowak &
Ronald D. Rotunda, Constitutional Law § 17.6 (7th ed. 2004)
(“Yoder stands out as the one instance in which the Court
required the government to grant to persons who could not
comply with the law due to their religious beliefs an exemption
from a law regulating the conduct of all persons . . . .”). But the
unique burden suffered by the Amish, combined with the
Supreme Court’s limiting language, distinguish Yoder from this
case.

        In response to objections by Amish citizens, the Yoder
Court held that the First Amendment required a partial
exemption from a Wisconsin compulsory high-school education
law requiring children to attend public or private school until
age 16. The Amish refused to send their children, ages 14 and
15, to school after completion of the eighth grade of schooling.
The Court noted the Amish’s “convincing showing:”

       the Amish in this case have convincingly


                                50
       demonstrated the sincerity of their religious
       beliefs, the interrelationship of belief with their
       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 the hazards presented by the
       State’s enforcement of a statute generally valid as
       to others.

Yoder, 406 U.S. at 235. The Court applied a heightened level of
scrutiny and found the State’s interest lacking. Id. at 235-36.

        Parents favor a broad reading of Yoder and insist that it
applies to all citizens. But Yoder’s reach is restricted by the
Court’s limiting language and the facts suggesting an
exceptional burden imposed on the plaintiffs. In Yoder, the
religious beliefs of the Amish were completely integrated with
their community and “mode of life.” 27 Yoder, 406 U.S. at 235.
As a result, compulsory attendance 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. Accordingly, the Wisconsin law
carried “a very real threat of undermining the Amish community
and religious practice,” id., and placed the continued survival of

  27
     This “mode of life” reference in Yoder has been interpreted
to refer to a distinct community and way of life, not simply the
centrality of one’s belief to his or her faith. See Parker, 514
F.3d at 100.

                               51
Amish communities in “danger,” id. at 218 n.9. Compulsory
attendance “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.” Parker,
514 F.3d at 99-100 (citing Yoder, 406 U.S. at 233-35).

       Before applying a heightened level of scrutiny, the Court
wanted to ensure that the “Amish religious faith and their mode
of life are, as they claim, inseparable and interdependent.”
Yoder, 406 U.S. at 215. Recognizing the exceptional nature of
the Amish’s showing, the Court held: “when the interests of
parenthood are combined with a free exercise claim of the
nature revealed by this record, more than merely a ‘reasonable
relation to some purpose within the competency of the State’ is
required to sustain the validity of the State’s requirement under
the First Amendment.” Id. at 233; see also Mozert v. Hawkins
County Bd. of Educ., 827 F.2d 1058, 1067 (6th Cir. 1987)
(“Yoder rested on such a singular set of facts that we do not
believe it can be held to announce a general rule . . . .”).

       The United States Court of Appeals for the Second
Circuit has interpreted the central underpinning of Yoder to be
the “threat to the Amish community’s way of life, posed by a
compulsory school attendance statute.” Leebaert, 332 F.3d at
144. In Leebaert, a parent alleged a violation of the First and
Fourteenth Amendments because a school refused to excuse his
son from a mandatory health and education course. While not
questioning the sincerity of the parent’s beliefs, the Second

                               52
Circuit found the claims were not governed by Yoder. See id.
(plaintiff did not allege that “his community’s entire way of life
is threatened;” plaintiff “does not assert that there is an
irreconcilable Yoder-like clash between the essence of
[plaintiff’s] religious culture and the mandatory health
curriculum that he challenges”); see also Brown, 68 F.3d at 539
(distinguishing Yoder because a one-time compulsory
attendance at a health program did not threaten “their entire way
of life”).

        In the pre-Smith case New Life Baptist Church Academy
v. East Longmeadow, 885 F.2d 940 (1st Cir. 1989), a religious
school asserted a remarkably similar claim to Parents’ claim.
The New Life Baptist Church Academy refused to comply with
state rules and procedures for determining the adequacy of the
secular education provided by the school because it believed “it
is a sin to ‘submit’ [its] educational enterprise to a secular
authority for approval.” Id. at 941. Finding that “the weight of
legal precedent is strongly against the Academy’s position,” id.
at 950, the United States Court of Appeals for the First Circuit
concluded that “this case differs significantly from [Yoder],” id.
at 951.28 It noted that the state’s procedures


   28
      As noted, New Life Baptist Church Academy was decided
before Smith. Accordingly, the First Circuit applied the
Sherbert test, New Life Baptist Church Acad., 885 F.2d at 944
(citing Sherbert v. Verner, 374 U.S. 398 (1963)), and analyzed
Yoder within the “less restrictive alternative ” context. New Life

                               53
       do not threaten interference with religious
       practices, prayer, or religious teaching; and the
       record, while indicating a sincere religious
       scruple, does not suggest that enforcement of the
       [state] procedures would destroy a religious
       community’s way of life. Nor does the record
       support the view that the Academy, left on its
       own, would provide “ideal” or even adequate
       secular education. All these factors make this
       case quite unlike Yoder.

Id. (citations omitted).

        Similarly, the claim raised by the Amish parents in Yoder
can be distinguished from the claim raised by Parents here. Act
169 does not threaten Parents’ or their community’s entire mode
of life. Even though Parents are required to keep records and
submit them for review, they are in complete control of the
religious upbringing of their children. In fact, Parents are
unable to point to even one occasion in which the school
districts have questioned their religious beliefs, texts, or
teachings.

       The dispute in Yoder involved an additional one or two
years of education at public schools versus “vocational”
education at home. The Amish allowed their children to attend



Baptist Church Acad., 885 F.2d at 948-52. Despite this, we find
the First Circuit’s discussion of Yoder to be informative.

                               54
public schools until eighth grade and sought only a partial
exemption from the state’s compulsory school attendance law.
Furthermore, the Court in Yoder assumed the state would
regulate the Amish’s home education to ensure the satisfaction
of educational standards. See Yoder, 406 U.S. at 236 (“The
States have had a long history of amicable and effective
relationships with church-sponsored schools, and there is no
basis for assuming that, in this related context, reasonable
standards cannot be established concerning the content of the
continuing vocational education of Amish children under
parental guidance . . . .”). In contrast, Parents request a full
exemption from Act 169, seeking to administer their children’s
entire primary and secondary education without any review by
the Commonwealth. They cite Yoder to challenge the
government’s authority to engage in the regulation and
discretionary review of their home education programs.29

   29
     In Duro v. Dist. Attorney, Second Judicial Dist., 712 F.2d
96 (4th Cir. 1983), plaintiffs, who home-schooled their children,
alleged that the state compulsory school attendance law
infringed upon their religious beliefs. The district court, relying
heavily upon Yoder, found the state law unconstitutional as
applied to the plaintiffs.       The Fourth Circuit reversed,
distinguishing Yoder. Duro, 712 F.2d at 98-99.
       [I]n Yoder, the Amish children attended public
       school through the eighth grade and then obtained
       informal vocational training to enable them to
       assimilate into the self-contained Amish

                                55
Parents’ claim is distinguishable from the Amish parents’ claim
in Yoder.

                                C.

       Since Act 169 survives rational basis review and since
Parents have failed to establish that an exception to Smith’s
neutral law of general applicability rule applies, Parents’ federal
constitutional claims fail.


        community. However, in the present case,
        [plaintiff] refuses to enroll his children in any
        public or nonpublic school for any length of time,
        but still expects them to be fully integrated and
        live normally in the modern world upon reaching
        the age of 18.
Id. at 98.
        Although Parents contend they can “readily demonstrate”
that their children will be self-sufficient even if they do not
submit their children’s work on an annual basis to a government
official for his review, Parents Br. at 31, their claim remains
distinguishable. The Amish allowed their children to attend
public schools until the completion of 8th grade. Therefore, the
State was assured that the Amish children received a state
approved education and the Court found an additional one or
two years of compulsory formal education to be insufficient to
overcome the Amish’s interests. In this case, Parents seek to
home-school their children for their entire primary and
secondary education.

                                56
                               IV.

        In addition to their federal constitutional claims, Parents
assert a state statutory claim under the Religious Freedom
Protection Act, 71 Pa. Stat. Ann. §§ 2401–2407. In order to
obtain relief under RFPA, Parents must prove by clear and
convincing evidence that their “free exercise of religion has
been burdened or likely will be burdened in violation of [§
2404].” 30 Id. § 2405(f). If Parents satisfy this burden, the
school districts are required to prove, by a preponderance of the
evidence, that Act 169 furthers a compelling interest and is the
least restrictive means of furthering the interest. 71 Pa. Stat.


   30
      Section 2404 states:
       (a) General rule.       Except as provided in
       subsection (b), an agency shall not substantially
       burden a person’s free exercise of religion,
       including any burden which results from a rule of
       general applicability.
       (b) Exceptions. An agency may substantially
       burden a person’s free exercise of religion if the
       agency proves, by a preponderance of the
       evidence, that the burden is all of the following:
              (1) In furtherance of a compelling
              interest of the agency.
              (2) The least restrictive means of
              furthering the compelling interest.
Id. § 2404 (emphases added).

                                57
Ann. § 2404(a)–(b). Thus, as a threshold matter, Parents must
prove, by clear and convincing evidence, that their free exercise
of religion has or will likely be “substantially burdened.” 31

        The District Court concluded Parents failed to establish
by clear and convincing evidence that Act 169 substantially
burdens their free exercise of religion. Combs, 468 F. Supp. 2d
at 771. It granted the school districts’ motion for summary
judgment on both the facial and as-applied challenges based on
the RFPA. Id. Parents assert error, contending the District
Court either failed to review or misapplied the actual text of the
statute. Further, they argue that because the fourth definition of
“substantially burden” is clear and unambiguous, the District
Court improperly resorted to extraneous sources like legislative
history and federal cases interpreting the federal Free Exercise


   31
    As noted, RFPA defines “substantially burden” as:
       An agency action which does any of the
       following: (1) Significantly constrains or inhibits
       conduct or expression mandated by a person’s
       sincerely held religious beliefs. (2) Significantly
       curtails a person’s ability to express adherence to
       the person’s religious faith. (3) Denies a person
       a reasonable opportunity to engage in activities
       which are fundamental to the person’s religion.
       (4) Compels conduct or expression which violates
       a specific tenet of a person’s religious faith.
71 Pa. Stat. Ann. § 2403.

                               58
Clause and the federal Religious Freedom Restoration Act.

        Parents invoke the fourth definition of “substantially
burden” – “[c]ompels conduct or expression which violates a
specific tenet of a person’s religious faith.” 71 Pa. Stat. Ann. §
2403.     Parents contend Act 169 compels “conduct or
expression” by requiring them to submit the content and records
of their children’s educational progress to the school districts.
Because these submissions are subject to review and approval
by the school districts, Parents contend Act 169 violates a
“specific tenet” of their religious faith – that “education of their
children, not merely the ‘religious education,’ is ‘religion’ and
is assigned by God to the jurisdiction of the family.” Parents Br.
at 64.

        The construction and application of RFPA’s fourth
definition of “substantially burden” is an issue of first
impression 32 and a matter of Pennsylvania law. As noted, the
District Court’s jurisdiction was based upon 28 U.S.C. §§ 1331,

      32
         In 2007, the Commonwealth Court of Pennsylvania
interpreted the third definition of substantially burden –
“[d]enies a person a reasonable opportunity to engage in
activities which are fundamental to the person’s religion.”
Ridley Park United Methodist Church v. Zoning Hearing Bd.
Ridley Park Borough (Ridley Park), 920 A.2d 953, 957-61 (Pa.
Commw. Ct. 2007). The court concluded that because “daycare
is not a fundamental religious activity of a church,” the Zoning
Hearing Board erroneously applied RFPA. Id. at 960.

                                59
1343(a)(3), 1367 and 1441. Because we affirm the District
Court’s grant of summary judgment on all of Parents’ federal
claims, only their state law claim remains. Under 28 U.S.C. §
1367(c), “district courts may decline to exercise supplemental
jurisdiction” over a state law claim if “the claim raises a novel
or complex issue of State law . . . [or] the district court has
dismissed all claims over which it has original jurisdiction.” Id.
Section 1367(c) provides courts “the discretion to refuse to
exercise supplemental jurisdiction when ‘values of judicial
economy, convenience, fairness, and comity’ counsel that the
district court remand state claims to a state forum.” Hudson
United Bank v. LiTenda Mortgage Corp., 142 F.3d 151, 157 (3d
Cir. 1998) (quoting City of Chicago v. Int’l Coll. of Surgeons,
522 U.S. 156, 173 (1997)). A decision to remand under section
1367 “reflects the court’s judgment . . . that at the present stage
of litigation it would be best for supplemental jurisdiction to be
declined so that state issues may be adjudicated by a state
court.” Hudson United Bank, 142 F.3d at 158 (citing United
Mine Workers v. Gibbs, 383 U.S. 715, 726-27 (1966)).

        Parents’ only remaining claim involves the interpretation
of a state statute on which there is no Pennsylvania precedent.
Because all federal issues have been decided on summary
judgment and since Parents’ RFPA claim raises a novel and
potentially complex issue of State law, we will decline to
exercise supplemental jurisdiction over Parents’ pendent state




                                60
law claim. 28 U.S.C. § 1367(c).33

                               V.

        For the foregoing reasons, we will affirm the District
Court’s grant of summary judgment in favor of the school
districts on Parents’ federal constitutional claims, vacate the
District Court’s holding regarding the pendent RFPA claim, and
remand the case to the District Court with instructions to remand
the RFPA claim to state court.




    33
       Shaffer v. Board of School Directors of Albert Gallatin
Area School District, 730 F.2d 910 (3d Cir. 1984), a pre-section
1367 decision, supports this conclusion. In Shaffer, we found
that “where the underlying issue of state law is a question of
first impression with important implications for public education
in Pennsylvania, factors weighing in favor of state court
adjudication certainly predominate.” Id. at 913.

                               61
SCIRICA, Chief Judge, concurring.

        Section 1367(c) provides: “The district courts may
decline to exercise supplemental jurisdiction over a claim . . . if
(1) the claim raises a novel or complex issue of State law . . .
[or] (3) the district court has dismissed all claims over which it
has original jurisdiction . . . .” 28 U.S.C. § 1367(c). The
District Court here exercised supplemental jurisdiction over
Parents’ state law Religious Freedom Protection Act claim. The
claim was fully presented to and adjudicated by the District
Court. I would decide the issue.

        As noted, in order to obtain relief under RFPA, Parents
must prove by clear and convincing evidence that their free
exercise of religion has been substantially burdened or likely
will be substantially burdened. Id. § 2404, 2405(f). If Parents
satisfy this burden, the school districts are required to prove, by
a preponderance of the evidence, that Act 169 furthers a
compelling interest and is the least restrictive means of
furthering the interest. 71 Pa. Stat. Ann. § 2404(a)–(b). Thus,
as a threshold matter, Parents must prove, by clear and
convincing evidence, that their free exercise of religion has or
will likely be “substantially burdened.”

        Parents have made conflicting claims as to what conduct
or review by the school districts constitutes a substantial burden.
In their complaint, Parents challenge all state review of their




                                62
home education programs.34 But deposition testimony reveals
some variance by Parents on the permissible level of state
oversight.35 Nevertheless, in their District Court briefs, Parents
again contended that “placing of authority in any state agency
violates their sincerely held religious beliefs” and that “it is a


    34
       See, e.g., Combs Compl. ¶ 12 (“Mr. and Mrs. Combs’
religious beliefs acknowledge that the civil government may
require them to educate their children, but, according to their
religious belief, the civil government lacks jurisdiction to
approve or administratively supervise the education they
provide.”); Combs Compl. ¶ 14 (“It is a specific tenet of Mr. and
Mrs. Combs’ religious faith, rooted in their understanding of the
Bible, that it would be sinful for them to engage in conduct or
expression that would grant control over their children’s
education to the civil government.”); Hankin Compl. ¶ 20 (“It is
a specific tent of Mr. and Mrs. Hankin’s religious faith, rooted
in their understanding of the Bible, that it would be sinful for
them to have any association with the public school system.”).
   35
     See, e.g., Maryalice Newborn Dep. at 49, Aug. 30, 2005
(“Q: What level of state review would be acceptable to you? A:
None.”); Thomas Hankin Dep. at 55, Sept. 6, 2005, (“I
personally believe that if the discretion of the school district
were removed, there would be a lot less trouble religiously with
my beliefs; that is, if I submitted to the school district a
statement that said . . . I am educating my children and this is
what I’m teaching them this year.”).

                               63
specific tenet of their religious faith that the State lacks the
jurisdiction over education and the family that Act 169 asserts.”
Parents Br. Opp’n to Def.’s Mot. Summ. J. at 9-10, Apr. 14,
2006.36 At oral argument, however, Parents’ counsel again
shifted the focus of their claims and appeared to concede that
the objectionable portion of Act 169 was not the record keeping,
testing, or third party evaluation, but the school districts’
independent, “discretionary” review of their children’s
educational progress. But assuming a proper concession, this
possible alteration of the claim was not made before the District
Court.

                                I.

       As noted, the construction and application of RFPA’s
fourth definition of “substantially burden” is an issue of first
impression. Because this is a matter of Pennsylvania law, “we
must predict how the Pennsylvania Supreme Court, if faced with
the identical issue, would construe the statute.” Prudential
Prop. & Cas. Ins. Co. v. Pendleton, 858 F.2d 930, 934 (3d Cir.

   36
     See also Parents Br. Opp’n to Def.’s Mot. Summ. J. at 10,
Apr. 14, 2006 (“Because Plaintiffs believe that all education is
inherently religious, Caesar has no jurisdiction over it at all.”);
id. at 11 (citing Herbert W. Titus, founding dean of Regent
University School of Law, for the proposition that “[b]oth the
Establishment and the Free Exercise clauses preclude the civil
government from exercising jurisdiction over the education of
the people.”).

                                64
1988).37

     37
        The Commonwealth’s rules of statutory construction,
codified at 1 Pa. Cons. Stat. §§ 1901–1978, “shall be observed,
unless the application of such rules would result in a
construction inconsistent with the manifest intent of the General
Assembly.” Id. § 1901. “The object of all interpretation and
construction of statutes is to ascertain and effectuate the
intention of the General Assembly.” Id. § 1921(a).
        Words and phrases are construed “according to their
common and approved usage,” whereas technical words which
are defined will be construed according to their peculiar
definitions. Id. § 1903. “When the words of the statute are clear
and free from all ambiguity, the letter of it is not to be
disregarded under the pretext of pursuing its spirit.” Id. §
1921(b). The Pennsylvania Supreme Court “has repeatedly
recognized that rules of construction, such as consideration of
a statute’s perceived ‘object’ or ‘purpose,’ are to be resorted to
only when there is an ambiguity.” Commonwealth v. Taylor,
841 A.2d 108, 112 (Pa. 2004). However,
        [w]hen the words of the statute are not explicit,
        the intention of the General Assembly may be
        ascertained by considering, among other matters:
        (1) The occasion and necessity for the statute. (2)
        The circumstances under which it was enacted.
        (3) The mischief to be remedied. (4) The object
        to be attained. (5) The former law, if any,
        including other statutes upon the same or similar

                               65
        In construing the meaning of “substantially burden,” the
District Court relied on the plain language of the statute, the
analysis of “substantially burden” in the “context of Free
Exercise Clause and similar freedom of religion restoration
acts,” and the intent of the General Assembly to restore the
“traditional (pre-Smith) free exercise of religion standards.”
Combs, 468 F. Supp. 2d at 771. As noted, Parents contend the
District Court either ignored or misapplied the plain language of
the statute and improperly included legislative history and pre-
Smith decisions in its analysis.

                               II.

         Parents rely exclusively upon the RFPA’s fourth
definition of “substantially burden” – “an agency action which
. . . [c]ompels conduct or expression which violates a specific
tenet of a person’s religious faith.” 71 Pa. Stat. Ann. § 2403.
Parents contend they are compelled, under threat of truancy
charges, to submit the portfolio of their children’s work product
to the school districts for discretionary review. Parents describe
the act of turning over the portfolio for discretionary review as
“conduct or expression.” They point to the exercise of editorial
judgment and creativity on the part of the home education


       subjects. (6) The consequences of a particular
       interpretation.     (7) The contemporaneous
       legislative history.       (8) Legislative and
       administrative interpretations of such statute.
1 Pa. Cons. Stat. § 1921(c).

                               66
supervisor as evidence of this expression.38 Moreover, Parents
assert a “specific tenet” based upon certain religious beliefs.

        First, Parents maintain their faith teaches that “education
of their children, not merely the ‘religious education,’ is
‘religion.’” Parents Br. at 64. Parents cite, inter alia,
Deuteronomy 6:5-7 (NIV) (“Love the Lord your God with all
your heart and with all your soul and with all your strength.
These commandments that I give you today are to be upon your
hearts. Impress them on your children. Talk about them when
you sit at home and when you walk along the road, when you lie
down and when you get up.”), Psalms 145:4 (NIV) (“One
generation will commend your works to another; they will tell
of your mighty acts.”), Ephesians 6:4 (NIV) (“Fathers, do not
exasperate your children; instead, bring them up in the training
and instruction of the Lord.”), and Proverbs 22:6 (“Train up a
child in the way he should go and when he is old, he will not
depart from it.”), for the proposition that God has directly called
upon them to home educate their children.

       Second, Parents contend God has assigned religious
matters to the exclusive jurisdiction of the family, citing, inter
alia, Luke 20:25 (“Then render to Caesar the things that are
Caesar’s, and to God the things that are God’s.”), Pslams 127:3
(NIV) (“Sons are a heritage from the Lord, children a reward
from him.”), Matthew 7:6 (“Don’t give what is holy to unholy

     38
      I assume, without deciding, that Parents’ actions are
“conduct or expression” within the meaning of the RFPA.

                                67
people.”), 1 Corinthians 10:31 (“Whatever you do, do it all for
the glory of God.”), 2 Timothy 2:15 (“Be diligent to present
yourself approved to God.”), 1 Thessalonians 2:4 (“We are not
trying to please men but God, who tests our hearts.”), and Acts
5:29 (“We must obey God rather than men.”). Parents contend
Act 169 replaces the headship of Christ over the family, and
their headship over their children, with the headship of the state
over the family, citing, inter alia, 1 Corinthians 11:3 (NIV)
(“Now I want you to realize that the head of every man is Christ,
and the head of the woman is man, and the head of Christ is
God.”), Ephesians 5:23 (NIV) (“For the husband is the head of
the wife as Christ is the head of the church, his body, of which
he is the Savior.”), and Ephesians 6:1 (NIV) (“Children, obey
your parents in the Lord, for this is right.”).39 As a result of this

     39
        The Previshes also cite the Catechism of the Roman
Catholic Church. See, e.g., Catechism 2223 (“Parents have the
first responsibility for the education of their children. They bear
witness to this responsibility first by creating a home where
tenderness, forgiveness, respect, fidelity, and disinterested
service are the rule. The home is well suited for education in the
virtues. This requires an apprenticeship in self-denial, sound
judgment, and self-mastery – the preconditions of all true
freedom. Parents should teach their children to subordinate the
‘material and instinctual dimensions to interior and spiritual
ones.’”); Catechism 2229 (“As those first responsible for the
education of their children, parents have the right to choose a
school for them which corresponds to their own convictions.

                                 68
“specific tenet,” Parents assert a sincerely held religious belief
that the school districts have no authority to compel reporting or
to engage in discretionary review of their home education
program.

        The term “specific tenet” is not defined in the Religious
Freedom Protection Act or 1 Pa. Cons. Stat. § 1991.40 The
Oxford English Dictionary defines “specific” as “precise or
exact in respect of fulfilment, conditions, or terms; definite,
explicit” and “exactly named or indicated, or capable of being
so; precise, particular.” 2 Oxford English Dictionary 2949
(Compact ed. 1971); see also Merriam-Webster’s Dictionary
1132 (9th ed. 1990) (defining “specific” as “sharing or being
those properties of something that allow it to be referred to a
particular category” or as “free from ambiguity”). “Tenet” is
defined as “[a] doctrine, dogma, principle, or opinion, in
religion, philosophy, politics or the like, held by a school, sect,
party, or person.” 2 Oxford English Dictionary 3260 (Compact
ed. 1971); see also Merriam-Webster’s Dictionary 1215 (9th ed.



This right is fundamental. As far as possible parents have the
duty of choosing schools that will best help them in their task as
Christian educators. Public authorities have the duty of
guaranteeing this parental right and of ensuring concrete
conditions for its exercise.”).
   40
      Section 1991 defines words and phrases for “any statute
finally enacted on or after September 1, 1937.”

                                69
1990) (defining “tenet” as “a principle, belief, or doctrine
generally held to be true; especially: one held in common by
members of an organization, group, movement, or profession”).

       In the religious context, the term “specific tenet” is
difficult to define.41 Even though a religious concept may be
stated generally, it may, in the believer’s mind, be a specific
religious tenet. At one end of the spectrum, specificity may be
relatively straightforward and easy to identify because the
“specific tenet” is observed as an outward manifestation of a
particular religious belief. For example, in Fraternal Order of
Police Newark Lodge No. 12 v. Newark, 170 F.3d 359 (3d Cir.


  41
     The words “specific,” “specificity,” and “particularity” are
familiar terms in Pennsylvania and federal procedural law, and
in that context, denote a heightened pleading standard as
opposed to a more general (notice) standard. See, e.g.,
Muhammad v. Strassburger, McKenna, Messer, Shilobod &
Gutnick, 587 A.2d 1346, 1352 (Pa. 1991) (“Both Rule 1019(b)
of the Pennsylvania Rules of Civil Procedure and case law
require that fraud be plead with specificity. The appellees’
complaint does not rise to the level of specificity that we
require.” (citation omitted)); c.f. In re Advanta Corp. Sec. Litig.,
180 F.3d 525, 534 (3d Cir. 1999) (noting, in the Private
Securities Litigation Reform Act (“PSLRA”) fraud context, that
the PSLRA “echoes precisely Fed. R. Civ. P. 9(b) and therefore
requires plaintiffs to plead ‘the who, what, when, where, and
how . . . .” (citation ommitted)).

                                70
1999), two Sunni Muslim officers successfully challenged an
internal order requiring all police officers to shave their beards.
Plaintiffs articulated a religious commandment to grow and
wear a beard. Id. at 360-61; see also Deveaux v. Philadelphia,
No. 3103 Feb. Term 2005, 2005 WL 1869666, at *1-2 (Pa.
Com. Pl. July 14, 2005) (granting a preliminary injunction
preventing the city from suspending a practicing Muslim
firefighter without pay for refusing to shave his beard). In
Sherbert v. Verner, 374 U.S. 398 (1963), a member of the
Seventh-day Adventist Church challenged state unemployment
compensation rules that conditioned the availability of benefits
upon her willingness to work under conditions forbidden by her
religion. The Court acknowledged that “the prohibition against
Saturday labor is a basic tenet of the Seventh-day Adventist
creed, based upon that religion’s interpretation of the Holy
Bible.” Id. at 399 n.1.

        Furthermore, religious dietary laws would appear to
qualify as specific tenets. In Williams v. Bitner, 455 F.3d 186
(3d Cir. 2006), a Muslim inmate assigned to kitchen duty was
disciplined for refusing to aid others in the consumption of pork.
Citing the Koran (“He has forbidden you . . . the flesh of
swine”) and Chapter Eleven of Leviticus in the Old Testament,
Williams averred that handling and serving pork would violate
his religious faith. Id. at 187. Our court held that “prison
officials must respect and accommodate, when practicable, a
Muslim inmate’s religious beliefs regarding prohibitions on the
handling of pork” and affirmed the denial of qualified immunity.


                                71
Id. at 194. See also DeHart v. Horn, 390 F.3d 262, 272-75 (3d
Cir. 2004) (discussing a Buddhist prisoner’s Religious Land Use
and Institutionalized Persons Act claim based upon his request
for a special diet).

        At the other end of the spectrum are claims similar to
Parents’. These claims cite more general and less obviously
manifested concepts. This is not to undervalue these tenets
which, as revelations, may be fundamental to one’s religious
beliefs. In these situations, however, it may be difficult to
determine whether a litigant’s citations to scripture or to general
religious concepts articulate a “specific tenet.”             Also
problematic in this analysis are religious tenets that may be
viewed as both general and specific. See, e.g., Exodus 20:7
(“Thou shalt not take the name of the LORD thy God in vain,
for the LORD will not hold him guiltless that taketh his name in
vain.”); Exodus 20:12 (“Honor thy father and thy mother that thy
days may be long upon the land which the LORD thy God
giveth thee.”).

        Furthermore, the RFPA definition of “substantially
burden” appears to create some tension between state and
federal law. The United States Supreme Court has cautioned
against making religious interpretations in the First Amendment
context. See, e.g., Smith, 494 U.S. at 887 (“Repeatedly and in
many different contexts, we have warned that courts must not
presume to determine the place of a particular belief in a religion
or the plausibility of a religious claim.”); id. at 886-87 (“It is no
more appropriate for judges to determine the ‘centrality’ of

                                 72
religious beliefs before applying a ‘compelling interest’ test in
the free exercise field, than it would be for them to determine
the ‘importance’ of ideas before applying the ‘compelling
interest’ test in the free speech field.”); Thomas v. Review Bd. of
the Indiana Employment Sec. Div., 450 U.S. 707, 715 (1981)
(“Courts should not undertake to dissect religious beliefs . . .
because [the believer’s] beliefs are not articulated with the
clarity and precision that a more sophisticated person might
employ.”); id. at 716 (“Courts are not arbiters of scriptural
interpretation.”). Additionally, the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc
to 2000cc-5, “does not permit a court to determine whether the
belief or practice in question is ‘compelled by, or central to, a
system of religious belief.’” Washington v. Klem, 497 F.3d 272,
277 (3d Cir. 2007) (quoting 42 U.S.C. § 2000cc-5(7)(A)).

       Nevertheless, the Pennsylvania General Assembly’s
statutory definition of “substantially burden” appears to require
courts to inquire into, inter alia, whether an activity is
fundamental to a person’s religion or whether a person is
compelled to violate a specific tenet of their religious faith. See
71 Pa. Stat. Ann. § 2403 (defining substantially burden as “an
agency action which . . . [d]enies a person a reasonable
opportunity to engage in activities which are fundamental to the
person’s religion [or c]ompels conduct or expression which




                                73
violates a specific tenet of a person’s religious faith.”).42
Arguably, a violation of a general tenet might substantially
burden one’s religious faith. But that was not what the
Pennsylvania General Assembly proscribed. The statutory
language shifts the burden of establishing a compelling interest
and least restrictive means to the state actor only after the
violation of a specific tenet, which must mean something
different from a general tenet. As noted, the dilemma is
especially striking because, in the view of the believer, the
violation of a general tenet may very well substantially burden
one’s religious faith.

       Nevertheless, given the normal usage of the term, it is
difficult to see that Parents have cited a specific tenet that would
prohibit reporting requirements and discretionary school district
review of their children’s educational progress. Instead, they
reference general, but nonetheless important, religious tenets,


   42
     As noted, in Ridley Park the Pennsylvania Commonwealth
Court examined the third definition of “substantially burden” –
“denies a person a reasonable opportunity to engage in activities
which are fundamental to the person’s religion” – and concluded
that while daycare “aided in carrying out the Church's religious
mission, [it] is not a fundamental religious activity of a church.”
Ridley Park, 920 A.2d at 960. “For example, ministering to the
sick can flow from a religious mission, but it is not a
fundamental religious activity of a church because a hospital
may be built to satisfy that mission.” Id.

                                74
see, e.g., Luke 20:25 (“Then render to Caesar the things that are
Caesar’s, and to God the things that are God’s.”); 2 Timothy
2:15 (“Be diligent to present yourself approved to God.”), to
assert that local school districts have no authority to conduct a
limited review of their children’s educational progress. In
addition, under RFPA’s fourth definition of “substantially
burden,” a party must establish a nexus between the specific
tenet and the compelled violation, a nexus that Parents have not
established here.

        Furthermore, the inconsistencies in Parents’ complaints,
depositions, briefs and appellate oral argument suggest the
difficulty in identifying a specific tenet (as opposed to a general
tenet) and its attendant consequences. In their complaints, briefs
to the district court, and some deposition testimony, Parents
asserted a “specific tenet” that the state “lacks the jurisdiction”
over their children’s education, i.e., that no level of state review
would be permissible.43 See Parents Br. Opp’n to Def.’s Mot.
Summ. J. at 9-10, Apr. 14, 2006. But at oral argument, Parents
implied that their asserted “tenet” might allow non-discretionary
review of their home education programs. See also Parents
Reply Br. at 8 (“Parents do not contend that the government may
not establish any standards to govern home education. Rather,


     43
      Although it is not entirely clear, I understand Parents’
argument to mean that the natural consequence of their asserted
specific tenet is that the state has no jurisdiction over home-
schooling.

                                75
the Parents’ core objection . . . is that their religious beliefs
forbid them from submitting their religious education of their
children to the discretionary review of a governmental
official.”). Yet it is problematic whether this interpretation of
“non-discretionary” review would amount to any review at all.

        Based upon the plain language of the RFPA, Parents have
failed to prove by clear and convincing evidence that they have
been compelled or will likely be compelled to violate a specific
tenet of their religious faith. Accordingly, Parents cannot
sustain their cause of action under the Pennsylvania RFPA.

                               III.

       Even finding the term “specific tenet” in the RFPA to be
ambiguous, the decision would be the same. As noted, the
purpose of statutory interpretation “is to ascertain and effectuate
the intention of the General Assembly.” 1 Pa. Cons. Stat. §
1921(a). Under section 1921(c), when a statute’s words are
ambiguous, the intention of the General Assembly “may be
ascertained” by considering an array of factors.44


   44
     As noted, those factors include, but are not limited to: “(1)
The occasion and necessity for the statute.               (2) The
circumstances under which it was enacted. (3) The mischief to
be remedied. (4) The object to be attained. (5) The former law,
if any, including other statutes upon the same or similar subjects.
(6) The consequences of a particular interpretation. (7) The
contemporaneous legislative history. (8) Legislative and

                                76
        The historical background and legislative history of
Pennsylvania’s RFPA places it in context and assists in
interpreting the statute. Much of this depends on the
development of federal First Amendment jurisprudence and its
influence on Pennsylvania law. Prior to 1990, legislation and
government regulation burdening the free exercise of religion
was subject to the Sherbert test. See Sherbert v. Verner, 374
U.S. 398 (1963).         Under this rule, if the government
substantially burdened a person’s constitutional free exercise
rights, then it was required to justify the burden with a
compelling state interest and with proof that the least restrictive
means was employed. Id. at 402-04. See also Jimmy Swaggart
Ministries v. Bd. of Equalization of California., 493 U.S. 378,
384-85 (1990) (“Our cases have established that ‘the free
exercise inquiry asks whether 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.’” (quoting Hernandez v. Comm’r,
490 U.S. 680, 699 (1989))).

       In 1990, the Supreme Court held that the Free Exercise
Clause did not prohibit enforcement of a neutral law of general
applicability supported by a rational basis. Employment Div.,
Dept. of Human Res. of Oregon v. Smith, 494 U.S. 872, 890
(1990). The Court concluded that the state could deny



administrative interpretations of such statute.” 1 Pa. Cons. Stat.
§ 1921(c).

                                77
unemployment benefits due to work-related misconduct based
upon an employee’s religiously motivated ingestion and use of
a drug; specifically, in that case, the ceremonial use of peyote.
Id. Declining to apply the Sherbert balancing test, the Court
noted that “the right of free exercise does not relieve an
individual of the obligation to comply with a ‘valid and neutral
law of general applicability on the ground that the law
proscribes (or prescribes) conduct that his religion prescribes (or
proscribes).’” Id. at 879 (quoting United States v. Lee, 455 U.S.
252, 263 n.3 (1982)). Thus, Smith and its progeny “establish the
general proposition that 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. Hialeah, 508 U.S. 520, 531 (1993) (citing Smith).

        The Smith Court noted that religious exemptions, while
not constitutionally required, could be created through the
political process. Smith, 494 U.S. at 890 (citing several state
statutes making “an exception to their drug laws for sacramental
peyote use”). In 1993, Congress accepted the Court’s invitation
by enacting the Religious Freedom Restoration Act (“RFRA”),
107 Stat. 1488, 42 U.S.C. §§ 2000bb to 2000bb-4 (amended
2000). Congress sought to restore the compelling interest test
articulated in Sherbert and Wisconsin v. Yoder, 406 U.S. 205
(1972), “and to guarantee its application in all cases where free
exercise of religion is substantially burdened.” 42 U.S.C. §
2000bb. Applicable to “all Federal and State law,” Pub. L. No.


                                78
103-141, § 6, 107 Stat. 1488, 1489 (1993), RFRA prohibited
both the federal and state governments45 from “substantially
burden[ing] a person’s exercise of religion” except through the
least restrictive means of furthering a compelling interest. 42
U.S.C. § 2000bb-1. In 1997, the Supreme Court struck down
RFRA as applied to the states 46 because RFRA exceeded the
scope of Congress’ enforcement power under section 5 of the
Fourteenth Amendment. Boerne v. P.F. Flores, 521 U.S. 507,
536 (1997). RFRA lacked a “congruence and proportionality
between the injury to be prevented or remedied and the means


     45
       At the time of enactment in 1993, “Government” was
defined as “a branch, department, agency, instrumentality, and
official (or other person acting under color of law) of the United
States, a State, or a subdivision of a State.” Pub. L. No. 103-
141, § 5, 107 Stat. 1488, 1489 (1993). As amended,
“Government” is defined as “a branch, department, agency,
instrumentality, and official (or other person acting under color
of law) of the United States, or of a covered entity.” 42 U.S.C.
§ 2000bb-2(1). “Covered entity means the District of Columbia,
the Commonwealth of Puerto Rico, and each territory and
possession of the United States.” Id. § 2000bb-2(2).
      46
        RFRA continues to be enforced against the federal
government. See Gonzales v. O Centro Espirita Beneficente
Uniao do Vegetal, 546 U.S. 418 (2006) (applying RFRA to
regulations by the federal government under the Controlled
Substances Act).

                               79
adopted to that end.” Id. at 520, 529-36.

        In part a reaction to City of Boerne, Congress enacted the
Religious Land Use and Institutionalized Persons Act, 42 U.S.C.
§§ 2000cc to 2000cc-5, which addresses only land use
regulations and the religious rights of institutionalized persons.
Id. §§ 2000cc, 2000cc-1. RLUIPA prohibits both state and
federal governments from imposing a “substantial burden” on
the religious exercise of an institutionalized person unless it is
the least restrictive means of furthering a compelling
governmental interest. 42 U.S.C. § 2000cc-1. Also, several
states in addition to Pennsylvania passed their own religious
freedom restoration or protection legislation.47

       Although there are differences among the various federal
and state religious protection statutes, most contain, at their
core, the same fundamental structure and purpose. They

   47
      See Ariz. Rev. Stat. Ann. §§ 41-1493; Conn. Gen. Stat. §
52-571b; Fla. Stat. § 761.01 to 761.05; Idaho Code Ann. §§ 73-
401 to 73-404; 775 Ill. Comp. Stat. 35/1 to 35/99; Mo. Ann.
Stat. §§ 1.302 & 1.307; N.M. Stat. §§ 28-22-1 to 28-22-5; Okla.
Stat. tit. 51 §§ 251 to 258; R.I. Gen. Laws §§ 42-80.1-1 to 42-
80.1-4; S.C. Code Ann. §§ 1-32-10 to 1-32-60; Tex. Civ. Prac.
& Rem. Code Ann. §§ 110.001 to 110.012; Va. Code Ann. §§
57-1 to 57-2.02; Utah Code Ann. §§ 63L-5-101 to 63L-5-403;
see also Ala. Const. Art I, § 3.01. The Pennsylvania RFPA
became effective December 9, 2002. Missouri, Utah and
Virginia passed legislation after 2002.

                               80
recognize that neutral laws of general applicability may burden
religious exercise as significantly as laws intended to interfere
with religious exercise. The federal statutes, Pennsylvania’s
RFPA, and a majority of the state statutes also acknowledge the
government need not justify every action having some effect on
religious exercise. Under those statutes, only substantial
burdens trigger heightened scrutiny.48 RFPA’s four definitions
of “substantially burden” emphasize the importance of this
threshold. See 71 Pa. Stat. Ann. § 2403 (“significantly
constrains or inhibits”; “significantly curtails”; “denies . . . a
reasonable opportunity to engage in activities . . . fundamental
to the person’s religion”; “violates a specific tenet of a person’s
religious faith.”) (emphasis added).

       In our modern regulatory state, virtually all legislation
(including neutral laws of general applicability) imposes an
incidental burden at some level by placing indirect costs on an
individual’s activity. Recognizing this, legislatures have sought
a balance between protecting free exercise of religion and


    48
       Alabama and Connecticut do not modify “burden.” Ala.
Const. Art I, § 3.01 (“Government shall not burden a person’s
freedom of religion . . . .”); Conn. Gen. Stat. § 52-571b (“The
state . . . shall not burden a person’s exercise of religion . . . .”).
Missouri, New Mexico, and Rhode Island prohibit the
government from “restrict[ing] a person’s free exercise of
religion.” Mo. Ann. Stat. § 1.302; N.M. Stat. §§ 28-22-3; R.I.
Gen. Laws §§ 42-80.1-3.

                                  81
preserving an effective police power. The federal government,
Pennsylvania, and several other states have identified a
substantiality threshold as the tipping point for requiring
heightened justifications for governmental action. 4 9

   49
      To illustrate, for the purposes of RLUIPA, we recognize
that a “substantial burden” exists where:
        1) a follower is forced to choose between
        following the precepts of his religion and
        forfeiting benefits otherwise generally available to
        other inmates versus abandoning one of the
        precepts of his religion in order to receive a
        benefit; OR 2) the government puts substantial
        pressure on an adherent to substantially modify
        his behavior and to violate his beliefs.
Washington v. Klem, 497 F.3d 272, 280 (3d Cir. 2007). Under
the Florida Religious Freedom Restoration Act, “a substantial
burden on the free exercise of religion is one that either compels
the religious adherent to engage in conduct that his religion
forbids or forbids him to engage in conduct that his religion
requires.” Warner v. Boca Raton, 887 So.2d 1023, 1033 (Fla.
2004). “A plaintiff who claims that a governmental regulation
constitutes a substantial burden must ‘prove that a governmental
regulatory mechanism burdens the adherent’s practice of his or
her religion by pressuring him or her to commit an act forbidden
by the religion or by preventing him or her from engaging in
conduct or having a religious experience which the faith
mandates.’” Id. at 1035 (citations omitted).

                               82
Furthermore, by requiring proof of a “substantial burden” by
clear and convincing evidence, Pennsylvania appears to have set
a higher threshold than other religious restoration statutes.
Compare 71 Pa. Stat. Ann. §§ 2404, 2405 (requiring “clear and
convincing evidence” of substantial burden), with 42 U.S.C. §
2000cc-2(b) (“plaintiff shall bear the burden of persuasion on
whether the law (including a regulation) or government practice
. . . substantially burdens the plaintiff’s exercise of religion”),
Warner, 887 So.2d at 1034 (“[T]he plaintiff bears the initial
burden of showing that a regulation constitutes a substantial
burden . . . .”), Diggs v. Snyder, 775 N.E.2d 40, 45 (Ill. App. Ct.
2002) (requiring, under the Illinois Religious Freedom
Restoration Act, plaintiff “to make a threshold showing” of
substantial burden).

        As noted, Parents have not cited a specific tenet that
would prevent adherence to the reporting requirements or
prohibit discretionary School District review of their children’s
educational progress. Instead, they reference general, but
important, religious tenets to support their claim that local
school districts have no authority to conduct limited review of
their home education programs. Such a broad interpretation of
the term “specific tenet” would appear to read “specific” out of
the statute.

      The occasion, necessity, and purpose of the RFPA do not
support a finding, by clear and convincing evidence, that Parents
are compelled or will likely be compelled to violate a specific



                                83
tenet of their religious faith. Accordingly, Parents cannot
prevail on their cause of action under the Pennsylvania RFPA.




                             84
