Gottesman v. Board of Education of Montgomery County, Maryland et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SETH GOTTESMAN, individually and:
as parent and next friend of
his minor child, T.G. 	:
v. 	: 	Civil Action No. DKC 25-1682
:
BOARD OF EDUCATION OF MONTGOMERY
COUNTY, MARYLAND, et al. 	:
MEMORANDUM OPINION
This 	case 	is 	brought 	by 	Seth 	Gottesman, 	individually 	and 	as
parent 	and 	next 	friend 	of 	his 	minor 	child, 	T.G., 	for 	alleged
violations 	of 	his 	parental 	rights 	and 	free 	exercise 	of 	religion.
Presently 	pending 	and 	ready 	for 	resolution 	are 	(1) 	the 	motion 	to
seal 	Exhibit 	1-13 	attached 	to 	the 	notice 	of 	removal 	filed 	by 	the
Board 	of 	Education 	of 	Montgomery 	County 	(“MCBE”), 	Montgomery
County Public Schools (“MCPS”), Thomas W. Taylor, Bradley Rohner,
and 	Yolanda 	Allen 	(collectively, 	“Defendants”), 	(ECF 	No. 	6); 	(2)
the 	motion 	to 	seal 	Defendant’s 	opposition 	to 	the 	motion 	for
temporary restraining order (“TRO”) filed by Defendants, (ECF No.
9); 	(3) 	the 	motion 	to 	seal 	Exhibit 	1 	to 	Defendants’ 	Local 	Rule
103.5.a Compliance filed by Defendants, (ECF No. 16); and (4) the
motion to dismiss for failure to state a claim filed by Defendants,
(ECF 	No. 	23). 	The 	issues 	have 	been 	briefed, 	and 	the 	court 	now
rules, no hearing being deemed necessary. 	Local Rule 105.6. 	For
the following reasons, the motions to seal will be granted in part
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and denied in part. 	The motion to dismiss will be granted in part
as 	to 	the 	federal 	claims, 	and 	the 	remaining 	state 	administrative
and constitutional claims will be remanded.
I. 	Background
A. 	Factual Background1
Plaintiff 	Seth 	Gottesman 	is 	a 	resident 	of 	Montgomery 	County
who sent his son, T.G., to public school in the MCPS system. 	(ECF
No. 	2 	¶ 	2). 	He 	did 	so 	because 	MCPS 	provided 	a 	“generally 	high
level of education,” was “the least expensive alternative afforded
to 	him,” 	and 	provided 	the 	“benefits 	of 	attending 	a 	diverse,
community school.” 	(Id. ¶ 94). 	T.G. attended Damascus High School
(“DHS”) 	starting 	in 	2021. 	(Id. 	¶ 	2). 	By 	the 	end 	of 	his 	senior
year, 	T.G. 	had 	completed 	all 	his 	academic 	requirements 	for
graduation except for one: the one-credit Health requirement. 	(Id.
¶¶ 	2, 	49). 	Mr. 	Gottesman’s 	unsuccessful 	efforts 	to 	exempt 	T.G.
from 	the 	Health 	requirement 	on 	religious 	grounds 	are 	the 	crux 	of
this case.
1. 	Health Requirement and Regulations
In Maryland, public high school students must complete a one-
credit 	Health 	education 	course, 	which 	consists 	of 	six 	units: 	(1)
Mental 	and 	Emotional 	Health; 	(2) 	Substance 	Abuse 	Prevention; 	(3)
1 The facts herein are either uncontroverted or set forth in
the 	complaint 	and 	construed 	in 	the 	light 	most 	favorable 	to
Plaintiff.
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Family Life and Human Sexuality (“FLHS”); (4) Safety and Violence
Prevention; 	(5) 	Healthy 	Eating; 	and 	(6) 	Disease 	Prevention 	and
Control. 	(Id. 	¶ 	16 	(citing 	COMAR 	13A.04.18.01(C))). 	Maryland
public 	schools 	are 	required 	to 	“provide 	an 	instructional 	program
in comprehensive health education” that covers these units. 	(Id.
¶ 63 (citing COMAR 13A.04.18.01)). 	A Maryland regulation directs
that 	“[FLHS] 	instruction 	shall 	represent 	all 	students 	regardless
of 	ability, 	sexual 	orientation, 	gender 	identity, 	and 	gender
expression.” 	(Id. 	¶ 	64 	(quoting 	COMAR 	13A.04.18.01(D)(2)(a))).
The 	Maryland 	State 	Board 	of 	Education 	(“MSBE”) 	has 	issued 	a
Comprehensive 	Health 	Education 	Framework 	(“Health 	Framework”),
which 	includes 	instruction 	in 	the 	FLHS 	unit 	on 	“Gender 	Identity
and 	Expression” 	and 	“Sexual 	Orientation 	and 	Identity.” 	(Id. 	¶
65). 	“[T]he Health Framework does not include similar objectives
relating 	to 	. 	. 	. 	LGBT-SOGI2 	in 	any 	other 	part 	of 	the 	health
education curriculum.” 	(Id. ¶ 67). 	MCPS Health instructors teach
that “non-traditional sexuality, non-traditional family units, and
transgenderism 	are 	as 	natural 	and 	beneficial 	as 	heterosexuality,
2 	Plaintiff 	uses 	the 	acronym 	“LGBT-SOGI,” 	which 	stands 	for
lesbian, 	gay, 	bisexual, 	transgender 	(“LGBT”), 	sexual 	orientation
and identity (“SO”), and/or gender identity or expression (“GI”).
(ECF 	No. 	2 	¶ 	15). 	A 	similar 	acronym, 	“LGBTQ+,” 	which 	stands 	for
lesbian, gay, bisexual, transgender, queer/questioning, and other
sexual orientations and gender identities, is used interchangeably
in this opinion.
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traditional family structures, and acceptance of one’s biological
sex.” 	(Id. ¶ 17).
In 	recognition 	of 	parental 	and 	religious 	concerns 	regarding
FLHS 	content, 	Maryland’s 	public 	school 	system 	offers 	parents
notice 	of 	and 	opt-out 	from 	FLHS 	instruction. 	Specifically, 	all
Maryland 	public 	school 	systems 	are 	required 	to 	“provide 	an
opportunity for parents/guardians to view instructional materials
to 	be 	used 	in 	the 	teaching 	of 	[FLHS] 	objectives,” 	(Id. 	¶ 	64
(quoting 	COMAR 	13A.04.18.01(D)(2)(e)(iv))), 	and 	“establish
policies, 	guidelines 	and/or 	procedures 	for 	student 	opt-out
regarding instruction related to [FLHS] objectives,” (Id. (quoting
COMAR 	13A.04.18.01(D)(2)(e)(i))). 	MCPS 	promulgated 	Regulation
IGP-RA, 	which 	details 	its 	Comprehensive 	Health 	Education
Instructional 	Program. 	(Id. 	¶ 	68). 	It 	instructs 	that 	“FLHS
materials are not to be used in any other instructional program of
the school.” 	(Id. ¶ 69). 	It further provides that “parents will
be 	given 	notice 	of 	the 	curricular 	materials 	related 	to 	FLHS” 	and
“[w]here FLHS is taught, students may be excused from the unit of
study 	upon 	written 	request 	from 	their 	parent/guardian.” 	(Id. 	¶
68).
Although the opt-out provision is not restricted to religious
reasons, 	MCPS 	has 	provided 	guidance 	regarding 	religious 	opt-outs
via 	its 	“Guidelines 	for 	Respecting 	Religious 	Diversity.” 	That
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document 	contains 	a 	section 	titled 	“Requests 	to 	Be 	Excused 	from
Instructional Programs for Religious Reasons.” 	Until the 2023–24
school year, this section read as follows:
When 	possible, 	schools 	should 	try 	to 	make
reasonable 	and 	feasible 	adjustments 	to 	the
instructional program to accommodate requests
from 	students, 	or 	requests 	from
parents/guardians on behalf of their students,
to 	be 	excused 	from 	specific 	classroom
discussions 	or 	activities 	that 	they 	believe
would 	impose 	a 	substantial 	burden 	on 	their
religious beliefs. . . .
Applying these principles, it may be feasible
to 	accommodate 	objections 	from 	students 	or
their 	parents/guardians 	to 	a 	particular
reading 	assignment 	on 	religious 	grounds 	by
providing an alternative selection that meets
the same lesson objectives. 	However, if such
requests 	become 	too 	frequent 	or 	too
burdensome, 	the 	school 	may 	refuse 	to
accommodate 	the 	requests. 	Schools 	are 	not
required 	to 	alter 	fundamentally 	the
educational 	program 	or 	create 	a 	separate
educational 	program 	or 	a 	separate 	course 	to
accommodate a student’s religious practice or
belief. 	For example, schools are not required
to excuse students from all music instruction
based on a religious concern, because music is
an 	integral 	part 	of 	Maryland’s 	arts
curriculum; 	however, 	schools 	may 	seek 	to
avoid, 	if 	possible, 	requiring 	a 	student 	with
a religious objection to play an instrument or
sing.
(Id. ¶ 73). 	Beginning with the 2023–24 school year, the Guidelines
were changed (and shortened) to the following:
Students 	may 	be 	excused 	from 	noncurricular
activities, such as classroom parties or free-
time 	events 	that 	involve 	materials 	or
practices 	in 	conflict 	with 	a 	family’s
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religious, and/or other, practices. 	However,
MCPS 	cannot 	accommodate 	requests 	for
exemptions 	from 	required 	curricular
instruction 	or 	the 	use 	of 	curricular
instructional 	materials 	based 	on 	religious,
and/or other, objections.
(Id. ¶ 75 (emphasis omitted)).
An MCPS student may also opt not to take the school-provided
Health 	course 	and 	instead 	satisfy 	the 	Health 	requirement 	through
one of two alternatives: (1) an independent study designed by the
student 	in 	cooperation 	with 	an 	MCPS 	staff 	member 	that 	covers 	the
MCPS 	Health 	objectives, 	or 	(2) 	completion 	of 	the 	“Personal 	and
Community Health” course at Montgomery College. 	(ECF No. 23-1, at
5 & n.1 (citing COMAR 13A.04.18.01(D)(2)(e); MCPS Regulation ISB-
RA; ECF No. 23-4, at 2)); id. at 7; see also ECF No. 2 ¶ 42).
2. 	Mr. Gottesman’s Religious Beliefs
Mr. Gottesman holds a sincere religious belief “in the divine
inspiration 	of 	the 	Holy 	Bible” 	and 	“understands 	his 	religion 	to
impress 	upon 	him, 	as 	a 	father, 	the 	primary 	duty 	. 	. 	. 	to 	provide
religious instruction to T.G. and to determine when to shield his
child 	from 	instruction 	that 	violates 	his 	religious 	teachings,
ethics, and principles.” 	(ECF No. 2 ¶ 88). 	Discussion of sexual
matters with his son is “at the[] core” of those responsibilities.
(Id.). 	Mr. 	Gottesman 	believes 	“that 	same-sex 	actions, 	including
same-sex 	marriage,” 	and 	“transgender 	actions, 	including 	taking
names 	and 	pronouns 	and 	wearing 	apparel 	inconsistent 	with 	the
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person’s biological sex, are not natural or normative, [and] that
they 	violate 	the 	biblical 	and 	religious 	doctrines 	to 	which 	he
adheres.” 	(Id. ¶¶ 89–90). 	Per Mr. Gottesman’s religious beliefs,
“humans 	attain 	their 	fullest 	God-given 	potential 	by 	acting
consistently with their biological sex.” 	(Id. ¶ 91).
Accordingly, Mr. Gottesman contends that “[i]nstruction that
gender 	transitioning 	is 	natural 	and 	appropriate” 	conflicts 	with
his 	religious 	beliefs 	regarding 	the 	immutability 	of 	human 	gender
and 	the 	“natural 	created 	order 	[of] 	human 	sexuality.” 	(Id. 	¶ 	92
(citing 	Genesis 	1:27)). 	Because 	he 	understands 	the 	Bible 	to
“teach[] that cooperating with the sin of others is itself a sin,
Mr. Gottesman believes he has a religious duty to stand up to evil
and to reject all sinful behavior.” 	(Id. ¶ 93). 	Without an opt-
out from instruction that conflicts with his faith, Mr. Gottesman
feels 	he 	would 	be 	forced 	to 	choose 	between 	free 	public 	education
or sin. 	(Id.).
3. 	Objectionable Content
Sometime 	“[i]n 	early 	2022, 	[Mr. 	Gottesman] 	became 	aware 	of
revelations of internal MCPS documents” that “were distributed in
the community.” 	(Id. ¶ 18). 	These documents included “a viewgraph
used 	by 	MCPS 	with 	its 	teachers 	that 	indicated 	that 	MCPS 	was 	not
restricting LGBT-SOGI instruction to the FLHS unit, but directing
its 	teachers 	to 	spread 	those 	topics 	throughout 	the 	course,
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subverting 	the 	opt-out 	rights 	of 	parents 	like 	[Mr. 	Gottesman].”
(Id.). 	In 	a 	brief 	that 	the 	MCBE 	submitted 	to 	the 	MSBE 	in 	March
2024, MCBE explained that a “request to confine LGBTQ+ instruction
solely to the FLHS portion of the curriculum constitutes a demand
for 	curriculum 	alteration, 	as 	LGBTQ+ 	topics 	are 	integrated
throughout the entirety of the health course, not confined solely
to one segment.” 	(Id. ¶ 57 (emphasis omitted) (quoting MCBE Reply
Brief 	at 	2, 	T.J. 	& 	D.J. 	v. 	Montgomery 	Cnty. 	Bd. 	of 	Educ., 	MSBE
Opinion 	No. 	24-10 	(2024))). 	The 	MSBE 	subsequently 	agreed 	that
“incorporation 	of 	LGBTQ+ 	resources 	throughout 	the 	entire 	health
classroom 	fulfill[ed]” 	MCPS’s 	obligations. 	(Id. 	¶ 	58 	(emphasis
omitted) 	(quoting 	T.J. 	& 	D.J., 	MSBE 	Opinion 	No. 	24-10)). 	Mr.
Gottesman 	thus 	believed 	that 	“MCPS 	ha[d] 	intentionally 	spread
LGBT-SOGI 	teaching 	throughout 	the 	Health 	course,” 	rendering 	the
opt-out from the FLHS unit “meaningless.” 	(Id. ¶ 59).
4. 	Administrative Process
Concerned 	that 	FLHS 	instruction 	pervaded 	the 	DHS 	Health
course his son would take, Mr. Gottesman “requested multiple times
[beginning 	March 	31, 	2022,] 	to 	review 	the 	Health 	curriculum 	that
MCPS was to teach to high school students.” 	(Id. ¶ 25). 	T.G. was
in 	ninth 	grade 	at 	the 	time. 	(Id.). 	MCPS 	told 	Mr. 	Gottesman 	to
file 	his 	request 	under 	the 	Maryland 	Public 	Information 	Act
(“MPIA”). 	(Id.). 	Mr. 	Gottesman 	filed 	the 	MPIA 	request 	on 	April
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11, 	2022, 	and 	continued 	communicating 	with 	MCPS 	regarding 	review
of the Health curricular materials. 	(Id. ¶ 26). 	MCPS replied to
Mr. 	Gottesman’s 	MPIA 	request 	on 	April 	26, 	2022, 	but 	did 	not
“provide the full curriculum as requested.” 	(Id. ¶ 27). 	Instead,
MCPS 	informed 	him 	that 	his 	request 	was 	“too 	broad,” 	the 	fee 	to
fulfill 	the 	request 	would 	be 	between 	‘$250 	to 	$5,000,’” 	and 	the
fee 	would 	not 	be 	waived. 	(Id.). 	The 	quoted 	fee 	was 	“beyond 	the
means” 	of 	Mr. 	Gottesman. 	(Id.). 	He 	did 	not 	further 	pursue 	that
MPIA request. 	(See id.).
On 	February 	4, 	2023, 	when 	T.G. 	was 	in 	tenth 	grade, 	Mr.
Gottesman 	submitted 	an 	administrative 	complaint, 	formally 	titled
a Complaint from the Public (“CFP”), “to DHS in which he sought a
religious exemption for T.G. from the Health course requirement.”
(Id. 	¶ 	29). 	MCPS 	and 	Maryland 	regulations 	establish 	a 	review
process for CFPs. 	(Id. ¶ 30).3 	First, the complainant should seek
to 	address 	his 	concern 	with 	the 	school. 	(Id.). 	The 	school 	is
3 An older version of MCPS Regulation KLA-RA was in effect in
February 	2023 	when 	Mr. 	Gottesman 	filed 	his 	CFP. 	See 	MCPS
Regulation 	KLA-RA 	(2018), 	https://web.archive.org/web/
20220308080008/https://ww2.montgomeryschoolsmd.org/departments/p
olicy/pdf/klara.pdf 	[https://perma.cc/37EB-DSA4]. 	MCPS 	made
several 	substantive 	changes 	to 	Regulation 	KLA-RA 	in 	October 	2023
and non-substantive changes in March 2024, which are reflected in
the 	current 	version. 	See 	MCPS 	Regulation 	KLA-RA 	(2024),
https://ww2.montgomeryschoolsmd.org/departments/policy/pdf/klara
.pdf [https://perma.cc/W9TC-LYUN]. 	Because the older process was
in effect during the initial review, that is the process described
here.
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supposed to make a determination within ten workdays of receipt of
the 	CFP. 	(See 	id. 	¶ 	31). 	Second, 	if 	the 	complainant 	does 	not
hear 	from 	the 	school 	within 	the 	time 	required 	or 	is 	dissatisfied
with 	the 	school’s 	response 	to 	his 	concern, 	the 	complainant 	may
request that the MCPS Chief Operating Officer (“COO”) or a designee
review 	his 	CFP 	and 	make 	a 	determination 	addressing 	the 	concerns
raised 	in 	the 	complaint. 	(Id. 	¶ 	30); 	MCPS 	Regulation 	KLA-RA 	§
IV.B.2 	(2018), 	https://web.archive.org/web/20220308080008/
https://ww2.montgomeryschoolsmd.org/departments/policy/pdf/klara
.pdf 	[https://perma.cc/37EB-DSA4]. 	The 	COO 	review 	process 	is
supposed to take no more than twenty workdays, subject to a limited
extension. 	See 	MCPS 	Regulation 	KLA-RA 	§ 	IV.B.2.a.5, 	.7 	(2018).
Third, 	if 	the 	COO 	fails 	to 	act 	within 	sixty 	days, 	or 	if 	the
complainant 	disagrees 	with 	the 	COO’s 	decision, 	he 	may 	appeal 	to
the MCBE. 	Id. § IV.B.2.a.7, .b.1; (ECF No. 2 ¶ 30). 	Fourth, the
complainant may appeal the MCBE’s decision to the MSBE. 	(ECF No.
2 	¶ 	30); 	see 	COMAR 	13A.01.05.02. 	Fifth, 	and 	finally, 	the
Montgomery 	County 	complainant 	may 	file 	a 	petition 	for 	judicial
review of the MSBE’s decision in the Circuit Court for Montgomery
County. 	(ECF No. 2 ¶ 30); see COMAR 13A.01.05.11(A).
Mr. 	Gottesman 	alleges 	that 	DHS 	failed 	to 	review 	his 	CFP 	and
instead 	it 	was 	reviewed 	first 	by 	a 	COO 	designee. 	(ECF 	No. 	2 	¶¶
31–34). 	Eugenia Dawson, MCPS Director of School Support and Well-
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Being, reached out to Mr. Gottesman regarding his CFP and met with
him 	virtually 	on 	March 	21, 	2023, 	to 	discuss 	his 	opt-out 	request.
(Id. ¶¶ 33-34). 	After not hearing anything further regarding his
CFP, 	(Id. 	¶ 	35), 	Mr. 	Gottesman 	contacted 	Ms. 	Dawson 	on 	April 	10,
2023, to “communicate his interpretation and understanding that in
light 	of 	MCPS’ 	failure 	to 	decide 	his 	CFP, 	. 	. 	. 	his 	religious
exemption 	had 	been 	effectively 	approved,” 	(Id. 	¶ 	36). 	Mr.
Gottesman received no response to this communication. 	(Id. ¶ 37).
For 	the 	next 	seventeen 	months, 	Mr. 	Gottesman 	believed 	that 	“the
religious 	exemption 	to 	the 	Health 	course 	had 	been 	conceded 	by
MCPS.” 	(Id. ¶ 38).
On 	September 	10, 	2024, 	however, 	MCPS 	notified 	Mr. 	Gottesman
that 	it 	had 	denied 	the 	religious 	exemption. 	(Id. 	¶ 	39). 	At 	the
time, T.G. was beginning his senior year of high school. 	Between
September 10 and October 22, 2024, Mr. Gottesman corresponded with
various 	MCPS 	and 	DHS 	officials, 	including 	the 	DHS 	Principal,
Bradley 	Rohner, 	to 	argue 	that 	they 	had 	violated 	the 	CFP 	process
and 	“could 	not 	at 	this 	late 	stage 	deny 	the 	religious 	exemption.”
(Id. 	¶¶ 	40–41). 	MCPS 	Director 	of 	Office 	of 	School 	Support 	and
Improvement Dr. Yolanda Allen (presumably Ms. Dawson’s successor)
responded to Mr. Gottesman on October 22, 2024, to “re-stat[e] the
Health 	course 	requirement 	for 	[T.G.], 	suggest[] 	alternatives 	to
the 	Health 	course” 	(namely, 	the 	independent 	study 	and 	Montgomery
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College 	options), 	and 	“advis[e] 	him 	of 	his 	. 	. 	. 	right 	to 	appeal
the denial of the religious exemption.” 	(Id. ¶ 42; ECF No. 23-4,
at 	2). 	Mr. 	Gottesman 	believed 	that 	the 	suggested 	alternatives
were “objectionable,” the Montgomery College option was “too late
to 	implement,” 	and 	his 	right 	to 	appeal 	had 	expired. 	(ECF 	Nos. 	2
¶ 	42; 	23-4, 	at 	2). 	Indeed, 	Dr. 	Allen 	indicated 	that 	“[a]lthough
the 	deadline 	for 	Semester 	1 	[of 	the 	Montgomery 	College 	course]
ha[d] passed, this could be a viable option for Semester 2.” 	(ECF
No. 23-4, at 2). 	On December 13, 2024, Mr. Gottesman appealed the
decision to deny his religious exemption to the MCBE. 	(ECF No. 2
¶ 43). 	He has not received any acknowledgement of or response to
his appeal. 	(Id. ¶ 44).
DHS 	Principal 	Mr. 	Rohner 	informed 	Mr. 	Gottesman 	on 	February
18, 	2025, 	that 	T.G. 	had 	not 	earned 	his 	Health 	credit, 	which 	was
required for graduation. 	(Id. ¶ 45). 	Mr. Gottesman responded to
reiterate his belief that MCPS had violated the CFP process, inform
Mr. 	Rohner 	that 	MCBE 	had 	not 	responded 	to 	his 	appeal, 	and 	convey
his 	expectation 	that 	T.G. 	would 	graduate 	on 	time 	with 	his
classmates. 	(Id. ¶ 46). 	Mr. Rohner replied to reaffirm that T.G.
could 	not 	graduate 	without 	having 	earned 	the 	required 	Health
credit. 	(Id. ¶ 47).
On 	April 	24, 	2025, 	DHS 	denied 	Mr. 	Gottesman’s 	request 	that
“T.G. be allowed to participate in graduation exercises.” 	(Id. ¶
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48). 	As 	of 	the 	time 	the 	complaint 	was 	filed, 	T.G.’s 	failure 	to
satisfy 	the 	Health 	requirement 	and 	lack 	of 	a 	religious 	exemption
therefrom 	would 	result 	in 	T.G.’s 	inability 	to 	participate 	in
graduation 	exercises 	on 	May 	30, 	2025, 	and 	receive 	a 	high 	school
diploma. 	(Id. ¶ 49).
B. 	Procedural Background
Mr. 	Gottesman 	filed 	suit 	individually 	and 	on 	behalf 	of 	his
minor son in the Circuit Court for Montgomery County, Maryland, on
May 14, 2025. 	(ECF No. 2, at 1). 	He named as defendants the MCBE,
MCPS, 	MCPS 	Superintendent 	Thomas 	W. 	Taylor, 	DHS 	Principal 	Mr.
Rohner, 	and 	MCPS 	Director 	of 	the 	Office 	of 	School 	Support 	and
Improvement 	Dr. 	Allen. 	(Id.). 	In 	his 	verified 	complaint, 	Mr.
Gottesman asserts twelve counts. 	At the core of the complaint are
the five counts he brings under 42 U.S.C. § 1983. 	Three of those
§ 1983 claims are premised on violations of the First Amendment’s
Free 	Exercise 	Clause 	for 	denial 	of 	the 	opt-out 	(Count 	VII),
discrimination against religion through a system of individualized
exemptions (Count IX), and official animus against religion (Count
XI). 	He 	bases 	another 	§ 	1983 	claim 	on 	Defendants’ 	alleged
violation 	of 	his 	Fourteenth 	Amendment 	substantive 	due 	process
right 	to 	direct 	the 	upbringing 	of 	his 	child 	(Count 	IV), 	and 	yet
another 	on 	Defendants’ 	alleged 	failure 	to 	comply 	with 	the
Protection 	of 	Pupil 	Rights 	Amendment 	(“PPRA”), 	20 	U.S.C. 	§ 	1232h
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(Count 	VI). 	In 	tandem 	with 	four 	of 	the 	§ 	1983 	constitutional
claims, 	Mr. 	Gottesman 	brings 	analogous 	claims 	under 	the 	Maryland
Declaration 	of 	Rights 	for 	violations 	of 	his 	religious 	freedom
(Counts VIII, X, and XII), and parental rights (Count V). 	Finally,
he 	asserts 	three 	claims 	under 	the 	Maryland 	Administrative
Procedure Act (“Maryland APA”), Md. Code Ann., State Gov’t §§ 10-
101 	to 	10-305 	(West), 	for 	violations 	of 	COMAR 	13A.04.18.01 	and
MCPS 	Regulation 	IGP-RA 	(Count 	I), 	MCPS 	Guidelines 	for 	Respecting
Religious Diversity (Count II), and MCPS Regulation KLA-RA (Count
III).
On 	May 	23, 	2025, 	just 	one 	week 	before 	his 	son’s 	high 	school
graduation, Mr. Gottesman filed a motion for a TRO requesting that
his 	son 	be 	permitted 	to 	participate 	in 	DHS 	graduation 	exercises,
graduate 	without 	penalty, 	and 	receive 	his 	diploma. 	(ECF 	No. 	1-
13). 	He attached twenty-two exhibits to the TRO motion.
Defendants 	removed 	the 	case 	to 	this 	court 	on 	May 	27 	on 	the
basis of federal question jurisdiction over the § 1983 claims and
supplemental 	jurisdiction 	over 	the 	state 	claims. 	(ECF 	No. 	1).4
Defendants filed a response in opposition to the TRO motion under
seal on May 28, (ECF No. 8), along with an accompanying motion to
4 Defendants’ Notice of Removal incorrectly cites to 28 U.S.C.
§ 	1441(c) 	as 	the 	source 	of 	this 	jurisdiction. 	(ECF 	No. 	1 	¶ 	5).
That error is not fatal in this instance. 	See Pet Quarters, Inc.
v. Depository Tr. & Clearing Corp., 559 F.3d 772, 778-79 (8 th Cir.
2009).
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seal, (ECF No. 9). 	Additionally, Defendants filed motions to seal
the exhibit attached to their notice of removal containing the TRO
motion 	and 	its 	attached 	exhibits, 	(ECF 	No. 	6), 	as 	well 	as 	the
exhibit 	attached 	to 	their 	Local 	Rule 	103.5.a 	Compliance 	filing
that 	contains 	the 	record 	of 	the 	state 	proceedings, 	(ECF 	No. 	16).
Mr. Gottesman did not oppose any of the motions to seal.
The 	court 	held 	a 	hearing 	on 	the 	TRO 	motion 	on 	May 	29. 	(ECF
No. 	11). 	At 	the 	hearing, 	counsel 	for 	Mr. 	Gottesman 	narrowed 	the
scope 	of 	relief 	sought 	to 	only 	the 	request 	that 	Mr. 	Gottesman’s
son 	be 	allowed 	to 	participate 	in 	DHS 	graduation 	exercises 	the
following 	day. 	(ECF 	No. 	20, 	at 	10). 	Because 	Mr. 	Gottesman 	was
requesting 	a 	mandatory 	rather 	than 	prohibitory 	injunction, 	the
court 	noted 	that 	he 	must 	show 	a 	particularly 	high 	likelihood 	of
success 	on 	the 	merits. 	(Id. 	at 	91). 	On 	the 	record 	at 	the 	time,
Mr. 	Gottesman 	had 	failed 	to 	satisfy 	that 	burden 	on 	any 	of 	the
twelve counts. 	(Id. at 92–95). 	Accordingly, the court denied the
TRO motion. 	(ECF No. 12).
Given 	the 	denial 	of 	Mr. 	Gottesman’s 	requests 	for 	temporary
injunctive 	relief, 	the 	remaining 	requests 	for 	relief 	in 	the
complaint 	are: 	(1) 	permanent 	injunctive 	relief 	to 	allow 	T.G. 	to
graduate 	and 	receive 	his 	high 	school 	diploma; 	(2) 	a 	series 	of
declarations related to the Health requirement, advance notice of
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Health curricular materials, and the opt-out system; (3) damages;
and (4) attorney’s fees and costs. 	(ECF No. 2, at 48–50).
Defendants 	filed 	their 	motion 	to 	dismiss 	Mr. 	Gottesman’s
complaint 	for 	failure 	to 	state 	a 	claim 	on 	June 	6. 	(ECF 	No. 	23).
They 	filed 	a 	supplement 	on 	July 	15 	to 	discuss 	the 	intervening
decision 	of 	the 	Supreme 	Court 	of 	the 	United 	States 	in 	Mahmoud 	v.
Taylor, 606 U.S. 522 (2025), another case arising out of Montgomery
County 	that 	involved 	opt-outs 	regarding 	instructional 	materials
containing 	LGBTQ+ 	content 	offensive 	to 	parents’ 	sincerely 	held
religious 	beliefs. 	(ECF 	No. 	26). 	After 	several 	extensions, 	Mr.
Gottesman 	responded 	to 	both 	the 	motion 	to 	dismiss 	and 	supplement
on August 25. 	(ECF No. 31). 	Defendants replied on September 15.
(ECF No. 32).
II. 	Motions to Seal
When considering motions to seal, courts in this circuit must
balance 	the 	individual’s 	privacy 	interest 	with 	the 	“qualified
right 	of 	access 	to 	judicial 	documents 	and 	records 	filed 	in 	civil
and 	criminal 	proceedings” 	of 	the 	press 	and 	the 	general 	public.
Doe 	v. 	Pub. 	Citizen, 	749 	F.3d 	246, 	265 	(4 th 	Cir. 	2014); 	see 	also
Rock 	v. 	McHugh, 	819 	F.Supp.2d 	456, 	475 	(D.Md. 	2011) 	(noting 	that
certain 	sensitive 	personal 	information 	may 	be 	sealed). 	As 	the
Public Citizen court explained:
When presented with a motion to seal, the law
in this Circuit requires a judicial officer to
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comply 	with 	the 	following 	procedural
requirements: (1) provide public notice of the
sealing 	request 	and 	a 	reasonable 	opportunity
for 	the 	public 	to 	voice 	objections 	to 	the
motion; (2) consider less drastic alternatives
to closure; and (3) if it determines that full
access 	is 	not 	necessary, 	it 	must 	state 	its
reasons—with 	specific 	findings—supporting
closure 	and 	its 	rejections 	of 	less 	drastic
alternatives.
Id. 	at 	272 	(citing 	In 	re 	Knight 	Publ’g 	Co., 	743 	F.2d 	231, 	234–35
(4th 	Cir. 	1984)). 	Likewise, 	Local 	Rule 	105.11 	requires 	the 	party
seeking 	sealing 	to 	provide 	“(a) 	proposed 	reasons 	supported 	by
specific factual representations to justify the sealing and (2) an
explanation 	why 	alternatives 	to 	sealing 	would 	not 	provide
sufficient protection.”
Defendants 	have 	filed 	three 	motions 	to 	seal. 	Two 	of 	the
motions seek to seal Plaintiff’s TRO motion and its exhibits, which
were attached to Defendants’ notice of removal at ECF No. 1-13 and
filed 	in 	compliance 	with 	Local 	Rule 	103.5.a 	at 	ECF 	No. 	18. 	(ECF
Nos. 	6, 	16). 	Specifically, 	Defendants 	note 	that 	Exhibits 	6, 	9,
11, 	12, 	13, 	15, 	16, 	17, 	18, 	and 	19 	to 	the 	TRO 	motion 	“possess
confidential 	personally 	identifying 	information” 	(“PII”) 	of
Plaintiff’s 	minor 	son. 	(ECF 	Nos. 	6 	¶¶ 	2, 	3; 	16 	¶¶ 	2, 	3). 	The
other 	motion 	seeks 	to 	seal 	Defendants’ 	response 	in 	opposition 	at
ECF 	No. 	8 	to 	Plaintiff’s 	TRO 	motion, 	including 	the 	exhibits
attached to the opposition, because it “cites to the confidential
information and documents contained in . . . Plaintiff’s exhibits,”
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and 	“their 	own 	exhibits 	. 	. 	. 	contain 	personally 	identifying 	and
confidential 	information.” 	(ECF 	No. 	9 	¶ 	5). 	Plaintiff 	did 	not
oppose any of the motions.
The less drastic alternative of redaction is appropriate with
respect 	to 	all 	three 	motions. 	On 	the 	one 	hand, 	there 	is 	no
prevailing public interest in accessing the PII of a minor. 	Heward
v. Bd. of Educ., No. 23-cv-195-ELH, 2023 WL 6067072, at *3 (D.Md.
Sep. 	15, 	2023) 	(“[C]ourts 	have 	found 	a 	compelling 	government
interest in sealing personal information, especially when relating
to minors.” (collecting cases)); Fed.R.Civ.P. 5.2(a)(3) (“[I]n an
electronic or paper filing with the court that contains . . . the
name of an individual known to be a minor, . . . a party or nonparty
making the filing may include only the minor’s initials[.]”). 	On
the 	other 	hand, 	Defendants 	themselves 	note 	in 	the 	three 	motions
that 	“Plaintiff 	filed 	these 	documents 	with 	redactions” 	in 	state
court, 	(ECF 	Nos. 	6 	¶ 	2; 	9 	¶ 2; 	16 	¶ 	2), 	and 	they offer 	no 	reason
why redaction is insufficient to protect the PII at issue. 	Rather
than 	seal 	the 	documents 	filed 	at 	ECF 	Nos. 	1-13 	and 	18, 	the 	court
will direct Defendants to file redacted versions of those documents
that 	protect 	the 	PII 	of 	Plaintiff’s 	son. 	As 	for 	Defendants’
opposition brief, it embeds several of the same exhibits containing
PII 	from 	Plaintiff’s 	TRO 	motion 	and 	thus 	should 	be 	redacted 	to
protect that information, rather than sealed. 	Finally, Defendants
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attach eight exhibits to their opposition, but only Exhibits C, E,
G, 	and 	H 	appear 	to 	contain 	PII. 	(ECF 	Nos. 	8-5; 	8-7; 	8-9; 	8-10).
Those 	exhibits 	should 	be 	redacted 	in 	the 	same 	fashion 	as 	the
previous 	documents 	discussed, 	and 	the 	other 	exhibits 	should 	be
neither sealed nor redacted.
III. Motion to Dismiss
Defendants’ 	motion 	to 	dismiss 	all 	twelve 	counts 	of
Plaintiff’s 	complaint 	is 	largely 	meritorious. 	Plaintiff’s 	five
federal claims are deficient both factually and legally. 	Without
those 	federal 	claims, 	the 	court 	will 	decline 	to 	exercise
supplemental 	jurisdiction 	over 	Plaintiff’s 	seven 	state 	claims.
The novel and complex issues of state law implicated in those state
law 	claims 	further 	counsel 	against 	the 	exercise 	of 	supplemental
jurisdiction. 	Therefore, 	Plaintiff’s 	federal 	claims 	will 	be
dismissed and his state claims will be remanded to state court.
A. 	Standard of Review
A 	motion 	to 	dismiss 	under 	Fed.R.Civ.P. 	12(b)(6) 	tests 	the
sufficiency of the complaint. 	Presley v. City of Charlottesville,
464 	F.3d 	480, 	483 	(4 th 	Cir. 	2006). 	The 	court 	“must 	accept 	the
complaint’s factual allegations as true and construe the facts in
the 	light 	most 	favorable 	to 	the 	plaintiff.” 	Barnett 	v. 	Inova
Health 	Care 	Servs., 	125 	F.4th 	465, 	469 	(4 th 	Cir. 	2025) 	(citing
Barbour 	v. 	Garland, 	105 	F.4th 	579, 	589 	(4 th 	Cir. 	2024)). 	A
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plaintiff’s 	complaint 	must 	only 	satisfy 	the 	standard 	of 	Rule
8(a)(2), which requires a “short and plain statement of the claim
showing 	that 	the 	pleader 	is 	entitled 	to 	relief.” 	“[W]here 	the
well-pleaded facts do not permit the court to infer more than the
mere 	possibility 	of 	misconduct, 	the 	complaint 	has 	alleged—but 	it
has 	not 	‘show[n]’—that 	the 	pleader 	is 	entitled 	to 	relief.’”
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (quoting Fed.R.Civ.P.
8(a)(2)). 	A Rule 8(a)(2) “showing” requires “stat[ing] a claim to
relief that is plausible on its face.” 	Bell Atl. Corp. v. Twombly,
550 	U.S. 	544, 	570 	(2007). 	“A 	claim 	has 	facial 	plausibility 	when
the plaintiff pleads factual content that allows the court to draw
the 	reasonable 	inference 	that 	defendant 	is 	liable 	for 	the
misconduct alleged.” 	Mays v. Sprinkle, 992 F.3d 295, 299–300 (4 th
Cir. 2021) (quoting Iqbal, 556 U.S. at 678).
B. 	Threshold Matters
1. 	Exhibits
The 	court 	must 	determine 	which 	extrinsic 	documents 	may 	be
considered on a motion to dismiss. 	“As a general rule, the court
does 	not 	consider 	extrinsic 	evidence 	at 	the 	motion 	to 	dismiss
stage[.]” 	Faulkenberry v. U.S. Dep’t of Def., 670 F.Supp.3d 234,
249 (D.Md. 2023) (quoting Reamer v. State Auto. Mut. Ins. Co., 556
F.Supp.3d 	544, 	549 	(D.Md. 	2021), 	aff’d, 	No. 	21-2432, 	2022 	WL
17985700 	(4th 	Cir. 	Dec. 	29, 	2022)). 	“However, 	‘the 	court 	may
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consider, 	without 	converting 	the 	motion 	to 	dismiss 	into 	one 	for
summary judgment, documents attached to the complaint as exhibits,
and 	documents 	attached 	to 	a 	motion 	to 	dismiss 	if 	the 	document 	is
integral 	to 	the 	complaint 	and 	there 	is 	no 	dispute 	about 	the
document’s authenticity.’” 	Id. (quoting Reamer, 556 F.Supp.3d at
549). 	“[F]or an extrinsic document to be integral to a complaint
the 	document 	must 	either 	give 	rise 	to 	a 	claim 	or 	be 	the 	basis 	of
an element of a claim.” 	Defs. of Wildlife v. Boyles, 608 F.Supp.3d
336, 	345 	(D.S.C. 	2022); 	see 	also 	Goines 	v. 	Valley 	Cmty. 	Servs.
Bd., 822 F.3d 159, 166 (4 th Cir. 2016).
Defendants 	attach 	four 	exhibits 	to 	their 	motion 	to 	dismiss.
Exhibits 2–4 are copies of opinions by the MSBE and Circuit Court
for 	Montgomery 	County, 	(ECF 	Nos. 	23-5; 	23-6; 	23-7), 	so 	they 	are
public 	records 	of 	which 	the 	court 	may 	take 	judicial 	notice. 	See
Walker 	v. 	Kelly, 	589 	F.3d 	127, 	139 	(4 th 	Cir. 	2009) 	(“[A] 	federal
court may consider matters of public record such as documents from
prior state court proceedings in conjunction with a Rule 12(b)(6)
motion.” (citing Henson v. CSC Credit Servs., 29 F.3d 280, 284 (7 th
Cir. 	1994))). 	Exhibit 	1 	is 	the 	October 	22, 	2024, 	email 	from 	Dr.
Allen 	to 	Plaintiff 	explaining 	that 	T.G. 	had 	not 	completed 	his
Health 	requirement 	and 	suggesting 	the 	independent 	study 	and
Montgomery College alternatives. 	(ECF No. 23-4). 	Defendants argue
that 	the 	email 	is 	authentic, 	integral 	to 	and 	relied 	on 	in 	the
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complaint, 	and 	a 	public 	record.5 	(ECF 	No. 	23-1, 	at 	10). 	In 	his
opposition, 	Plaintiff 	does 	not 	challenge 	the 	authenticity 	of 	the
email or otherwise argue against the court’s consideration of it.
(See generally ECF No. 31). 	The court will consider the email to
be authentic. 	Moreover, the email is relied on in the complaint,
(ECF 	No. 	2 	¶ 	42), 	and 	integral 	to 	the 	complaint 	because 	it 	forms
part 	of 	the 	asserted 	burden 	on 	Plaintiff’s 	free 	exercise 	of
religion. 	Therefore, the court will consider the email in Exhibit
1 	without 	converting 	Defendants’ 	motion 	into 	one 	for 	summary
judgment.
2. 	MCPS Is Not a Suable Entity
Defendants first seek to dismiss MCPS as a defendant because
it 	“is 	not 	a 	distinct 	legal 	entity 	empowered 	to 	sue 	or 	be 	sued.”
(ECF No. 23-1, at 10 (citing Miller v. Montgomery Cnty. Pub. Schs.,
No. 19-cv-3067-TJS, 2020 WL 2097686, at *1 (D.Md. May 1, 2020))).
Instead, MCPS “is simply the operational name for the school system
administered by the . . . MCBE.” 	(ECF No. 32, at 12). 	Defendants
contend that Maryland law authorizes only the county school board,
MCBE, 	rather 	than 	the 	county 	school 	system, 	to 	be 	sued. 	(Id.
(citing 	Md. 	Code 	Ann., 	Educ. 	§ 	3-104(b) 	(West))). 	Plaintiff
5 Defendants do not explain how the email constitutes a public
record. 	Because the email is appropriate to consider on separate
grounds, it is unnecessary to decide whether the email is a public
record.
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argues, however, that the then-Maryland Court of Appeals recently
decided a case in which the named defendant was MCPS and the court
“consistently referred to it as such.” 	(ECF No. 31, at 7–8 (citing
Donlon v. Montgomery Cnty. Pub. Schs., 460 Md. 62 (2018))).
Defendants 	are 	correct 	that 	MCPS 	cannot 	be 	sued. 	As 	this
court recently explained, it is well established that “MCPS is not
a 	distinct 	legal 	entity 	empowered 	to 	sue 	or 	be 	sued. 	Under
Maryland law, the board of education for each county school system
. . . is the entity which is empowered to sue and be sued.” 	Jones-
McDaniel v. Bd. of Educ., No. 24-cv-3075-DKC, 2025 WL 2494345, at
*4 (D.Md. Aug. 29, 2025) (quoting Miller, 2020 WL 2097686, at *1).
The 	question 	of 	whether 	MCPS 	could 	be 	sued 	was 	not 	before 	the
Maryland 	Court 	of 	Appeals 	in 	Donlon, 	which 	instead 	consistently
referred to MCPS as the “county school board” and the “county board
of 	education.” 	See, 	e.g., 	Donlon, 	460 	Md. 	at 	75 	(“The 	questions
for 	which 	we 	granted 	Donlon’s 	petition 	focus 	on 	whether 	county
boards 	of 	education 	are 	units 	of 	the 	State 	Executive 	branch.”
(emphasis 	added)). 	The 	intermediate 	appellate 	court 	below 	had
simply 	clarified 	that 	“[t]he 	legal 	name 	for 	[MCPS] 	is 	‘the 	Board
of Education of Montgomery County.’” 	Montgomery Cnty. Pub. Schs.
V. Donlon, 233 Md.App. 646, 650 n.3 (2017) (quoting Md. Code Ann.,
Educ. § 3-104 (West)). 	In other words, at no point did any court
in 	the 	Donlon 	litigation 	conceive 	of 	the 	MCPS 	and 	MCBE 	as 	two
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distinct entities capable of being sued separately. 	MCPS will be
dismissed as a defendant.
3. 	Defendants’ Group-Pleading Argument Fails
Defendants request dismissal of all claims with prejudice for
lack 	of 	fair 	notice 	because 	Plaintiff 	“repeatedly 	groups 	[them]
together and often collectively refers to them as the ‘defendants’
without 	attributing 	any 	particular 	act 	to 	a 	specific 	defendant
that 	would 	support 	a 	cause 	of 	action.” 	(ECF 	No. 	23-1, 	at 	12
(collecting citations)). 	It is true that “[a] plaintiff does not
satisfy 	[Fed.R.Civ.P.] 	8 	when 	the 	complaint 	‘lump[s] 	all 	the
defendants 	together 	and 	fail[s] 	to 	distinguish 	their 	conduct
because 	such 	allegations 	fail 	to 	give 	adequate 	notice 	to 	the
defendants as to what they did wrong.’” 	Classen Immunotherapies,
Inc. 	v. 	Biogen 	IDEC, 	381 	F.Supp.2d 	452, 	455 	(D.Md. 	2005) 	(third
and fourth alterations in original) (quoting Appalachian Enters.,
Inc. v. ePayment Sols. Ltd., No. 01-cv-11502, 2004 WL 2813121, at
*7 (S.D.N.Y. Dec. 8, 2004)). 	But that is not what Plaintiff does
here. 	Instead, 	Plaintiff 	specifically 	notes 	in 	his 	statement 	of
the 	facts 	that 	Mr. 	Rohner 	denied 	his 	opt-out 	request, 	(ECF 	No. 	2
¶¶ 	41, 	45, 	47–48), 	Dr. 	Allen 	denied 	his 	opt-out 	request, 	(Id. 	¶
42), 	Mr. 	Taylor 	was 	“responsible 	for 	implementing 	and 	enforcing
policies, rules, and regulations adopted by MCBE,” (Id. ¶ 7), and
all 	three 	were 	acting 	on 	behalf 	of 	the 	MCBE, 	(Id. 	¶¶ 	7–9).
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Plaintiff incorporates these allegations into each count. 	(Id. ¶¶
112, 	116, 	120, 	124, 	133, 	145, 	150, 	156, 	163, 	168, 	172, 	176). 	He
sufficiently 	distinguishes 	the 	conduct 	of 	each 	defendant 	to
provide fair notice under Rule 8. 	Whether his allegations against
each defendant are sufficient to state a claim under Rule 8 is, of
course, a separate question.
C. 	Federal Claims
1. 	Section 1983 “Persons” and Immunity
Plaintiff 	brings 	five 	counts 	under 	42 	U.S.C. 	§ 	1983. 	He
asserts 	each 	count 	against 	the 	MCBE, 	along 	with 	Mr. 	Taylor, 	Dr.
Allen, 	and 	Mr. 	Rohner 	(collectively, 	“Individual 	Defendants”) 	in
their individual and official capacities. 	In each count, he seeks
damages and prospective injunctive relief. 	Due to the intricacies
of § 1983 law, only some of these claims for relief survive.
To begin, a “person” is the only proper defendant to a § 1983
claim. 	The Supreme Court has long held that a state entity is not
a 	“person” 	for 	the 	purposes 	of 	§ 	1983. 	Will 	v. 	Mich. 	Dep’t 	of
State Police, 491 U.S. 58, 71 (1989); Biggs v. N.C. Dep’t of Pub.
Safety, 	953 	F.3d 	236, 	242 	(4 th 	Cir. 	2020). 	It 	is 	likewise 	well
established 	that 	the 	MCBE 	is 	a 	state 	entity. 	McNulty 	v. 	Bd. 	of
Educ., No. 03-cv-2520-DKC, 2004 WL 1554401, at *4 (“This court has
made clear, consistently and repeatedly, that the county boards of
education of Maryland are state agencies[.]” (collecting cases)).
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So, 	as 	Defendants 	point 	out, 	the 	MCBE 	is 	not 	a 	“person” 	and 	thus
not 	subject 	to 	suit 	in 	law 	or 	equity 	under 	§ 	1983. 	(ECF 	No. 	23-
1, at 13–14).
Plaintiff’s 	counterargument 	is 	unavailing. 	He 	notes 	that
Maryland 	has 	waived 	the 	sovereign 	immunity 	of 	county 	boards 	of
education on any claim for damages of $400,000 or less in Md. Code
Ann., 	Cts. 	& 	Jud. 	Proc. 	§ 	5-518(c) 	(West). 	(ECF 	No. 	31, 	at 	5).
The 	then-Maryland 	Court 	of 	Appeals 	held 	that 	this 	waiver 	applies
to Eleventh Amendment immunity in federal court, too. 	Bd. of Educ.
v. 	Zimmer-Rubert, 	409 	Md. 	200, 	216 	(2009). 	And 	as 	the 	United
States 	Court 	of 	Appeals 	for 	the 	Fourth 	Circuit 	has 	instructed, 	a
federal court must defer to a state high court’s decision regarding
whether a particular state law waives Eleventh Amendment immunity.
Lee-Thomas v. Prince George’s Cnty. Pub. Schs., 666 F.3d 244, 251
(4th 	Cir. 	2012). 	But 	the 	scope 	of 	§ 	1983 	and 	that 	of 	Eleventh
Amendment 	immunity 	are 	“separate 	issues.” 	Will, 	491 	U.S. 	at 	66.
Although the Supreme Court in Will looked to the Eleventh Amendment
as 	context 	for 	the 	meaning 	of 	“person” 	that 	Congress 	intended 	in
§ 	1983, 	it 	did 	not 	inextricably 	link 	the 	two 	such 	that 	a 	state
entity 	could 	waive 	itself 	into 	the 	statute. 	Id. 	at 	66–67. 	The
statutory term simply excludes state entities and does not create
liability for them. 	This conclusion may “make[] little sense” to
Plaintiff, 	(ECF 	No. 	31, 	at 	6), 	but 	it 	is 	the 	conclusion 	that
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binding 	precedent 	commands.6 	Accordingly, 	the 	§ 	1983 	claims
against the MCBE will be dismissed with prejudice.
Dismissing 	the 	§ 	1983 	claims 	against 	the 	MCBE 	leaves 	those
asserted 	against 	Individual 	Defendants 	in 	their 	individual 	and
official 	capacities. 	As 	employees 	of 	the 	MCBE, 	Individual
Defendants are state officials. 	Under § 1983, a plaintiff may sue
a 	state 	official 	for 	damages 	in 	his 	individual 	capacity 	but 	not
his 	official 	capacity. 	Hafer 	v. 	Melo, 	502 	U.S. 	21, 	27 	(1991)
(“State 	officers 	sued 	for 	damages 	in 	their 	official 	capacity 	are
not 	‘persons’ 	for 	purposes 	of 	the 	suit 	because 	they 	assume 	the
identity 	of 	the 	government 	that 	employs 	them. 	By 	contrast,
officers 	sued 	in 	their 	personal 	capacity 	come 	to 	court 	as
individuals.” 	(citing 	Will, 	491 	U.S. 	at 	71)). 	Moreover, 	a
plaintiff 	may 	sue 	a 	state 	official 	for 	prospective 	injunctive
6 Plaintiff makes various other arguments that do not change
this 	conclusion. 	He 	represents 	that 	the 	Fourth 	Circuit 	in 	Lee-
Thomas “treated the Board as a proper defendant under § 1983 up to
the 	[statutory 	damages] 	cap.” 	(ECF 	No. 	31, 	at 	6). 	Lee-Thomas,
however, involved an Americans with Disabilities Act claim to which
§ 	1983 	personhood 	was 	entirely 	irrelevant. 	See 	666 	F.3d 	at 	247.
He 	also 	presents 	a 	policy 	argument 	for 	accountability, 	(ECF 	No.
31, at 6), but such an argument cannot override a binding decision
of 	statutory 	interpretation. 	Finally, 	he 	contends 	that 	Maryland
cannot 	escape 	its 	waiver 	via 	removal 	to 	federal 	court. 	(Id.).
That is true. 	Biggs, 953 F.3d at 241 (“In this circuit, a state’s
removal of a suit to federal court waives sovereign immunity only
if 	the 	state 	has 	consented 	to 	suit 	in 	its 	own 	courts.” 	(citing
Stewart 	v. 	North 	Carolina, 	393 	F.3d 	484, 	490 	(4 th 	Cir. 	2005))).
The 	waiver, 	however, 	remains 	irrelevant 	to 	the 	statutory
definition of “person” in § 1983.
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relief 	in 	his 	official 	capacity 	but 	generally 	not 	his 	individual
capacity. 	Will, 491 U.S. at 71 n.10 (“Of course a state official
in his or her official capacity, when sued for injunctive relief,
would be a person under § 1983 because ‘official-capacity actions
for 	prospective 	relief 	are 	not 	treated 	as 	actions 	against 	the
State.’” 	(citation 	modified)); 	Cmty. 	Mental 	Health 	Servs. 	of
Belmont v. Mental Health & Recovery Bd., 150 F.App’x 389, 401 (6 th
Cir. 	2005) 	(“[A] 	plaintiff 	should 	not 	be 	able 	to 	sue 	a 	defendant
in his individual capacity for an injunction in situations in which
the 	injunction 	relates 	only 	to 	the 	official’s 	job, 	i.e., 	his
official 	capacity.”). 	Putting 	those 	pieces 	together, 	Plaintiff
may 	sue 	Individual 	Defendants 	in 	their 	individual 	capacity 	for
damages 	and 	their 	official 	capacity 	for 	prospective 	injunctive
relief.
The individual capacity claims are properly asserted against
Dr. 	Allen 	and 	Mr. 	Rohner, 	but 	not 	Mr. 	Taylor. 	In 	a 	§ 	1983 	suit
against 	a 	defendant 	in 	his 	individual 	capacity, 	“vicarious
liability is inapplicable” and the “plaintiff must plead that each
Government-official 	defendant, 	through 	the 	official’s 	own
individual actions, has violated the Constitution” or federal law.
Iqbal, 	556 	U.S. 	at 	676 	(emphasis 	added). 	A 	plaintiff 	can 	plead
supervisory 	liability 	only 	if 	he 	pleads 	that 	(1) 	the 	supervisor
knew 	his 	subordinate’s 	conduct 	“posed 	‘a 	pervasive 	and
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unreasonable 	risk’ 	of 	constitutional 	injury 	to 	citizens 	like 	the
plaintiff”; (2) the supervisor’s response “was so inadequate as to
show 	‘deliberate 	indifference 	to 	or 	tacit 	authorization 	of 	the
alleged 	offensive 	practices’”; 	and 	(3) 	the 	supervisor’s 	inaction
caused 	the 	particular 	constitutional 	injury. 	Wilkins 	v.
Montgomery, 	751 	F.3d 	214, 	226 	(4 th 	Cir. 	2014) 	(quoting 	Shaw 	v.
Stroud, 	13 	F.3d 	791, 	799 	(4 th 	Cir. 	1994)). 	Defendants 	do 	not
challenge 	Plaintiff’s 	allegations 	of 	personal 	involvement 	as 	to
Dr. Allen and Mr. Rohner, but they do contend that Plaintiff “fails
to identify any personal involvement by Taylor in the purportedly
unlawful actions which took place against him.” 	(ECF No. 23-1, at
11). 	Plaintiff 	responds 	that 	Mr. 	“Taylor’s 	involvement 	[was] 	in
adopting 	the 	positions 	of 	the 	prior 	MCPS 	Superintendent, 	which
Plaintiff’s 	Complaint 	alleges 	gave 	rise 	to 	his 	claims 	for 	relief
and 	damages.” 	(ECF 	No. 	31, 	at 	7). 	Defendants 	are 	correct.
Plaintiff 	alleges 	no 	particular 	action 	that 	Mr. 	Taylor 	took 	in
violation of his federal rights and only generally avers that Mr.
Taylor 	“was 	responsible 	for 	implementing 	and 	enforcing 	policies,
rules, 	and 	regulations 	adopted 	by 	MCBE.” 	(ECF 	No. 	2 	¶ 	7). 	All
his allegations pertain to actions taken by state officials below
Mr. 	Taylor; 	they 	do 	not 	demonstrate 	Mr. 	Taylor’s 	personal
involvement, 	nor 	can 	they 	satisfy 	the 	stringent 	requirements 	of
supervisory 	liability. 	Accordingly, 	Plaintiff’s 	individual-
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capacity 	claims 	against 	Mr. 	Taylor 	constitute 	an 	impermissible
end-run 	around 	§ 	1983’s 	bar 	on 	vicarious 	liability 	and 	must 	be
dismissed.
The 	official-capacity 	claims 	are 	proper 	against 	all 	three
individual 	defendants 	even 	without 	Mr. 	Taylor’s 	personal
involvement. 	For 	an 	official-capacity 	suit 	under 	§ 	1983 	to 	be
proper, 	there 	must 	be 	“‘a 	special 	relation 	between 	the 	officer
being 	sued 	and 	the 	challenged’ 	government 	action.” 	King 	v.
Youngkin, 	122 	F.4th 	539, 	548 	(4 th 	Cir. 	2024) 	(quoting 	McBurney 	v.
Cuccinelli, 	616 	F.3d 	393, 	399 	(4 th 	Cir. 	2010)). 	“A 	‘special
relation’ 	requires 	both 	‘proximity 	to 	and 	responsibility 	for 	the
challenged 	state 	action.’” 	Id. 	(quoting 	McBurney, 	616 	F.3d 	at
399). 	At 	no 	point 	do 	Defendants 	contend 	that 	any 	one 	of 	them 	is
not 	responsible 	for 	enforcing 	state 	and 	county 	education
requirements 	and 	regulations. 	Regulation 	KLA-RA 	explicitly
provides 	each 	of 	the 	individual 	defendants 	with 	decision-making
authority over complaints regarding the application of laws, MCBE
policies, 	and 	MCPS 	regulations 	and 	rules, 	including 	those
regarding opt-outs. 	MCPS Regulation KLA-RA §§ I, IV.B (Principal),
IV.C (OCOS or designee), IV.D (Superintendent). 	Accordingly, all
three 	individual 	defendants 	are 	properly 	sued 	in 	their 	official
capacity for prospective injunctive relief.
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Defendants argue, however, that such official-capacity claims
against 	Mr. 	Taylor 	must 	be 	dismissed 	because 	they 	are
“essentially[] 	an 	action 	against 	the 	municipal 	government,” 	(ECF
No. 23-1, at 11–12 (quoting Felder v. Leggett, No. 16-cv-3469-ELH,
2017 WL 1491463, at *5 (D.Md. Apr. 26, 2017))), and thus when the
municipality is also a defendant on identical claims, “the claims
against the municipal official are redundant,” (Id. at 12 (quoting
Corral v. Montgomery County, 4 F.Supp.3d 739, 748 (D.Md. 2014))).
Plaintiff 	does 	not 	respond 	to 	this 	contention. 	Defendants’
argument 	rests 	on 	a 	mistaken 	premise. 	For 	purposes 	of 	§ 	1983
claims, Mr. Taylor is a state official, not a municipal official.
McNulty, 2004 WL 1554401, at *4. 	While it is true that an official-
capacity 	claim 	against 	a 	municipal 	official 	is 	essentially 	one
against the municipality and thus redundant if an identical claim
is 	asserted 	against 	the 	municipality, 	that 	statement 	cannot 	be
true 	if 	the 	defendant 	is 	a 	state 	official. 	That 	is 	so 	because
states, 	unlike 	municipalities, 	are 	not 	“persons” 	under 	§ 	1983.
See Will, 491 U.S. at 70; Monell v. Dep’t of Soc. Servs., 436 U.S.
658, 	690 	(1978). 	Official-capacity 	“suits 	[for 	prospective
injunctive relief] against state officials who violate federal law
are not suits against the state.” 	Biggs, 953 F.3d at 242 (emphasis
added) (citing Bland v. Roberts, 730 F.3d 368, 390 (4 th Cir. 2013)).
Therefore, 	such 	suits 	are 	not 	essentially 	against 	the 	state 	and
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cannot 	be 	redundant 	of 	a 	claim 	against 	the 	state. 	Mr. 	Taylor 	is
subject to suit in his official capacity.
The final § 1983 issue to discuss is the defense of qualified
immunity that Individual Defendants raise.7 	(ECF No. 23-1, at 31–
35). 	Qualified immunity to suit under § 1983 exists to “protect[]
government officials ‘from liability for civil damages insofar as
their 	conduct 	does 	not 	violate 	clearly 	established 	statutory 	or
constitutional 	rights 	of 	which 	a 	reasonable 	person 	would 	have
known.’” 	Pearson 	v. 	Callahan, 	555 	U.S. 	223, 	231 	(2009) 	(quoting
Harlow 	v. 	Fitzgerald, 	457 	U.S. 	800, 	818 	(1982)). 	The 	“driving
force” behind the creation of this doctrine “was a desire to ensure
that ‘insubstantial claims against government officials [will] be
resolved prior to discovery.’” 	Id. at 231–32 (quoting Anderson v.
Creighton, 	483 	U.S. 	635, 	640 	n.2 	(1987)). 	It 	entails 	a 	two-step
inquiry, 	to 	be 	performed 	in 	either 	order: 	(1) 	“whether 	the 	facts
that 	a 	plaintiff 	has 	alleged 	. 	. 	. 	make 	out 	a 	violation 	of 	a
constitutional 	right,” 	and 	(2) 	“whether 	the 	right 	at 	issue 	was
‘clearly 	established’ 	at 	the 	time 	of 	[the] 	defendant’s 	alleged
misconduct.” 	Id. at 232, 236 (quoting and citing Saucier v. Katz,
7 	Defendants 	clarify 	in 	their 	reply 	that 	they 	do 	not 	also
assert 	failure 	to 	exhaust 	state 	administrative 	remedies 	as 	a
defense to the § 1983 counts. 	(ECF No. 32, at 9). 	In any event,
the 	Supreme 	Court 	has 	directly 	foreclosed 	such 	a 	defense. 	Patsy
v. Bd. of Regents, 457 U.S. 496, 516 (1982) (“[E]xhaustion of state
administrative 	remedies 	should 	not 	be 	required 	as 	a 	prerequisite
to bringing an action pursuant to § 1983.”).
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533 U.S. 194, 201 (2001)); see also Atkinson v. Godfrey, 100 F.4th
498, 	504 	(4th 	Cir. 	2024). 	Importantly, 	however, 	the 	qualified
immunity 	“defense 	is 	not 	available[] 	. 	. 	. 	[in] 	§ 	1983 	cases
against 	individuals 	where 	injunctive 	relief 	is 	sought 	instead 	of
or 	in 	addition 	to 	damages.” 	Id. 	at 	242 	(citing 	County 	of
Sacramento 	v. 	Lewis, 	523 	U.S. 	833, 	841 	n.5 	(1998)). 	Qualified
immunity likewise does not apply to claims for declaratory relief.
Lefemine 	v. 	Wideman, 	672 	F.3d 	292, 	303 	(4 th 	Cir. 	2012) 	(citation
modified), 	rev’d 	on 	other 	grounds, 	568 	U.S. 	1 	(2012). 	Because
Plaintiff 	seeks 	injunctive 	and 	declaratory 	relief 	on 	each 	of 	his
five 	§ 	1983 	counts, 	in 	addition 	to 	damages, 	the 	utility 	of 	the
qualified immunity inquiry is significantly diminished. 	Moreover,
the 	failure 	of 	Plaintiff’s 	§ 	1983 	claims 	as 	pleaded 	obviates 	the
need for a qualified immunity defense.
To 	recap, 	Plaintiff 	properly 	asserts 	the 	five 	§ 	1983 	counts
against Dr. Allen and Mr. Rohner in their individual capacity for
damages, 	and 	against 	all 	three 	individual 	defendants 	in 	their
official 	capacity 	for 	declaratory 	and 	prospective 	injunctive
relief.
2. 	Free Exercise of Religion
At 	the 	core 	of 	Plaintiff’s 	Complaint 	are 	his 	three 	Free
Exercise claims. 	In essence, they represent three distinct reasons
why Plaintiff believes strict scrutiny should apply, a standard he
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contends 	is 	not 	and 	cannot 	be 	met. 	In 	Count 	VII, 	he 	argues 	that
the 	denial 	of 	notice 	of 	LGBTQ+ 	materials 	and 	opt-out 	from 	the
Health course requirement created a substantial burden on his right
to 	direct 	the 	religious 	upbringing 	of 	his 	child.8 	(ECF 	No. 	2 	¶¶
152-53). 	He 	now 	contends 	that 	the 	burden 	is 	the 	same 	as 	that 	at
issue 	in 	Mahmoud 	and 	thus 	is 	subject 	to 	strict 	scrutiny 	rather
than 	the 	standard 	rational 	basis 	review. 	(ECF 	No. 	31, 	at 	3, 	12,
14). 	In 	Count 	IX, 	assuming 	his 	religious 	exercise 	is 	burdened,
Plaintiff alleges that Defendants’ opt-out policy is not generally
applicable 	because 	it 	admits 	of 	exceptions, 	(ECF 	No. 	2 	¶ 	165);
making 	the 	same 	assumption 	in 	Count 	XI, 	Plaintiff 	alleges 	that
Defendants’ opt-out policy is not neutral because it is motivated
by animus toward his religious beliefs, (Id. ¶ 174).
The 	First 	Amendment 	to 	the 	United 	States 	Constitution
provides 	that 	“Congress 	shall 	make 	no 	law 	. 	. 	. 	prohibiting 	the
free 	exercise” 	of 	religion. 	U.S. 	Const. 	amend. 	I. 	This
prohibition 	has 	been 	incorporated 	against 	the 	states 	via 	the
Fourteenth Amendment. 	Cantwell v. Connecticut, 310 U.S. 296, 303
(1940). 	Ordinarily, 	“the 	government 	is 	generally 	free 	to 	place
incidental 	burdens 	on 	religious 	exercise 	so 	long 	as 	it 	does 	so
8 	It 	is 	important 	to 	clarify 	what 	Plaintiff 	requested. 	He
did 	not 	simply 	request 	an 	opt-out 	from 	the 	FLHS 	unit, 	as 	MCPS
regulations permit, or an opt-out from any specific class in which
LGBTQ+ 	materials 	would 	be 	used. 	Instead, 	he 	sought 	an 	opt-out
from the state law Health course graduation requirement.
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pursuant 	to 	a 	neutral 	policy 	that 	is 	generally 	applicable.”
Mahmoud, 606 U.S. at 564 (citing Emp. Div. v. Smith, 494 U.S. 872,
878-79 	(1990)). 	If 	the 	court 	finds 	such 	a 	burden, 	it 	must 	then
“ask if the burdensome policy is neutral and generally applicable.”
Id. 	If it is, rational basis review applies. 	Jesus Christ Is the
Answer 	Ministries, 	Inc. 	v. 	Balt. 	County, 	915 	F.3d 	256, 	265 	(4 th
Cir. 	2019) 	(citing 	Smith, 	494 	U.S. 	at 	879). 	If 	it 	is 	not, 	the
policy triggers strict scrutiny. 	Mahmoud, 606 U.S. at 564.
Last 	year 	in 	Mahmoud, 	however, 	the 	Supreme 	Court 	clarified
that courts must proceed directly to strict scrutiny if they find
a 	burden 	of 	a 	particular 	character 	on 	the 	“right[] 	of 	parents 	to
direct the religious upbringing of their children.” 	Mahmoud, 606
U.S. at 547, 564 (quoting Espinoza v. Mont. Dep’t of Revenue, 591
U.S. 464, 486 (2020)). 	Because “many parents ‘have no choice but
to 	send 	their 	children 	to 	public 	school[,]’ 	. 	. 	. 	the 	right 	of
parents 	‘to 	direct 	the 	religious 	upbringing 	of 	their’ 	children 	.
. 	. 	follow[s] 	those 	children 	into 	the 	public 	school 	classroom.”
Id. 	at 	547 	(quoting 	Morse 	v. 	Frederick, 	551 	U.S. 	393, 	424 	(2007)
(Alito, 	J., 	concurring)). 	This 	right 	is 	“violated 	by 	government
policies 	that 	‘substantially 	interfer[e] 	with 	the 	religious
development’ of children.” 	Id. (alteration in original) (quoting
Wisconsin 	v. 	Yoder, 	406 	U.S. 	205, 	218 	(1972)). 	Beyond 	direct
compulsion of children “to depart from the religious practices of
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36
their parents,” violations can also include “more subtle forms of
interference” that pose “the kind of objective danger to the free
exercise 	of 	religion 	that 	the 	First 	Amendment 	was 	designed 	to
prevent.” 	Id. 	at 	548-49 	(quoting 	Yoder, 	406 	U.S. 	at 	218). 	In
other words, the inquiry focuses on whether the policy carries “‘a
very 	real 	threat 	of 	undermining’ 	the 	religious 	beliefs 	that 	the
parents 	wish 	to 	instill 	in 	their 	children.” 	Id. 	at 	553 	(quoting
Yoder, 406 U.S. at 218). 	The Court explicitly used as a benchmark
its decision in Wisconsin v. Yoder, in which the Court mandated an
exemption for Amish parents from a state law requiring children’s
attendance at school until the age of sixteen. 	Id. at 564 (holding
that strict scrutiny is triggered “[w]hen the burden imposed is of
the same character as that imposed in Yoder”).
Whether a government policy constitutes a “very real threat”
is 	a 	“fact-intensive”9 	question 	dependent 	on 	“the 	specific
religious beliefs and practices asserted” and “the specific nature
of 	the 	educational 	requirement 	or 	curricular 	feature.” 	Id. 	at
550. 	Relevant 	to 	the 	latter 	factor 	are 	the 	age 	of 	the 	targeted
9 Plaintiff argues that because the Court labeled the inquiry
“fact-intensive,” 	it 	cannot 	be 	resolved 	on 	a 	motion 	to 	dismiss.
(ECF 	No. 	31, 	at 	13). 	“Fact-intensive” 	simply 	means 	that 	context
matters. 	Plaintiffs 	still 	must 	carry 	their 	burden 	to 	“plead[]
factual 	content 	that 	allows 	the 	court 	to 	draw 	the 	reasonable
inference 	that 	defendant 	is 	liable 	for 	the 	misconduct 	alleged.”
Mays, 	992 	F.3d 	at 	299–300 	(quoting 	Iqbal, 	556 	U.S. 	at 	678).
Plaintiff has not carried that threshold burden here.
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children and whether the instruction or materials are presented in
a 	“neutral” 	or 	“hostile” 	manner. 	Id. 	If 	the 	court 	finds 	that 	a
“very real threat” exists, such a burden triggers strict scrutiny.
Plaintiff’s 	complaint 	undoubtedly 	implicates 	the 	right 	to
direct 	the 	religious 	upbringing 	of 	one’s 	child. 	But 	saying 	that
right is burdened does not make it so. 	Plaintiff fails to allege
a 	burden 	akin 	to 	the 	one 	present 	in 	Yoder 	and 	Mahmoud, 	much 	less
any 	cognizable 	burden 	on 	his 	religious 	exercise. 	Therefore, 	all
three of his free exercise claims fail.
To 	begin, 	Plaintiff’s 	complaint 	is 	factually 	insufficient.
Despite 	the 	complaint’s 	considerable 	length, 	Plaintiff’s 	factual
allegations 	regarding 	the 	use 	of 	LGBTQ+ 	instructional 	materials
appear in only a few paragraphs. 	He explains that he “became aware
of 	training 	materials 	for 	MCPS 	teachers 	of 	the 	Health 	Course 	for
the 	2022-23 	school 	year 	by 	obtaining 	a 	few 	pages 	from 	a 	non-
official 	source.” 	(ECF 	No. 	2 	¶ 	97). 	One 	page 	stated 	that 	among
the 	training 	day’s 	objectives 	was 	the 	following: 	“Review 	LGBTQ+
resources 	to 	incorporate 	more 	inclusive 	language 	in 	the 	Health
Education 	classroom 	throughout 	the 	ENTIRE 	course.” 	(Id.). 	He
further 	provides 	a 	quotation 	that 	allegedly 	appears 	in 	a 	legal
brief 	submitted 	by 	Defendants 	in 	a 	separate, 	administrative
proceeding, 	which 	says 	that 	it 	is 	“consistent 	with 	MCPS’s 	local
policy 	and 	educational 	objectives” 	that 	“LGBTQ+ 	topics 	are
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38
integrated throughout the entirety of the health course.” 	(Id. ¶
57 (emphasis omitted)). 	Finally, he points to the MSBE’s opinion
in that same case, in which the MSBE “agree[d] with the local board
[MCBE/MCPS] that incorporation of LGBTQ+ resources throughout the
entire 	health 	classroom” 	fulfills 	Defendants’ 	state 	law
responsibilities. 	(Id. 	¶ 	58 	(alteration 	in 	original) 	(emphasis
omitted) 	(quoting 	T.J. 	& 	D.J., 	Opinion 	No. 	24-10)). 	Despite
learning 	in 	2022 	of 	Defendants’ 	alleged 	plan 	to 	incorporate 	more
inclusive language throughout the entire Health course, which was
then 	in 	place 	for 	several 	years 	before 	Plaintiff 	filed 	suit,
Plaintiff 	offers 	only 	a 	few 	vague 	quotations 	from 	the 	MCBE 	and
MSBE 	that 	inclusion 	of 	LGBTQ+ 	materials 	throughout 	the 	Health
course is permissible. 	None of these factual allegations, if they
can 	all 	be 	called 	such, 	refers 	to 	specific 	materials 	used 	in 	the
Health 	classroom 	in 	MCPS, 	much 	less 	at 	DHS. 	In 	Mahmoud, 	by
contrast, the plaintiffs identified at least seven books that would
be 	read 	to 	their 	children 	and 	the 	guidance 	to 	teachers 	about 	how
to 	discuss 	the 	LGBTQ+ 	themes 	involved. 	Mahmoud, 	606 	U.S. 	at 	533
n.6; 	see 	also 	Amended 	Complaint 	¶¶ 	113-44, 	Mahmoud 	v. 	McKnight,
688 	F.Supp.3d 	265 	(2023), 	ECF 	No. 	36 	(discussing 	in 	detail 	the
objectionable contents of those seven books). 	The absence of any
such 	detail 	in 	Plaintiff’s 	complaint 	means 	he 	has 	not 	alleged
“enough 	to 	raise 	a 	right 	to 	relief 	above 	the 	speculative 	level.”
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Twombly, 	550 	U.S. 	at 	555 	(citing 	5 	Wright 	& 	Miller’s 	Federal
Practice & Procedure § 1216 (3 d ed. 2004)).
Plaintiff’s 	dearth 	of 	factual 	allegations 	renders 	it
impossible 	to 	assess 	“the 	specific 	nature 	of 	the 	educational
requirement 	or 	curricular 	feature” 	in 	question 	as 	the 	Court
instructed in Mahmoud. 	The way the material is presented and the
age of the students targeted are the paramount factors to consider.
Plaintiff obviously assumes that any LGBTQ+ materials used outside
the 	FLHS 	unit 	in 	the 	Health 	course 	are 	presented 	in 	a 	hostile
manner so as to impose on his son a “pressure to conform.” 	Mahmoud,
606 	U.S. 	at 	550 	(quoting 	Yoder, 	406 	U.S. 	at 	211). 	The 	Mahmoud
Court 	described 	such 	hostile 	presentation 	as 	involving
“unmistakably 	normative” 	messages 	that 	contravene 	parents’
religious 	beliefs. 	Id. 	Without 	any 	particular 	materials 	to
consider 	in 	Plaintiff’s 	case, 	he 	is 	unable 	to 	allege 	that
Defendants 	are 	pushing 	any 	normative 	message 	related 	to 	LGBTQ+
issues outside the FLHS unit. 	Even assuming LGBTQ+ materials are
presented 	in 	other 	Health 	units, 	Defendants 	appropriately
highlight 	a 	key 	conceptual 	distinction. 	(ECF 	No. 	23-1, 	at 	17).
As 	a 	Maryland 	circuit 	court 	recently 	held 	in 	a 	nearly 	identical
case, 	the 	incorporation 	of 	“more 	inclusive 	language, 	including
reference 	to 	the 	diverse 	LGBTQ+ 	community, 	into 	instructional
materials (consistent with the educational equity requirement for
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each 	local 	school 	board 	to 	use 	materials 	that 	are 	inclusive) 	is
not the same as the LGBTQ+ related direct teaching and instruction
that occurs in the FLHS unit of the class.” 	(Id. (quoting ECF No.
23-7, at 7)).
And even if the court stacks the assumption that some of the
materials 	conveyed 	a 	normative 	message 	on 	top 	of 	the 	assumption
that any such materials were presented at all, high school students
are far less prone to uncritical acceptance of such messages. 	The
Mahmoud 	Court 	repeatedly 	emphasized 	the 	importance 	of 	age 	in
assessing the nature of the challenged instruction. 	It explained
that 	“the 	age 	of 	the 	children 	involved 	is 	highly 	relevant 	in 	any
assessment of the likely effect of instruction on the subjects in
question.” 	Mahmoud, 	606 	U.S. 	at 	555 	n.8; 	see 	also 	id. 	at 	550
(“Educational 	requirements 	targeted 	toward 	very 	young 	children[]
. 	. 	. 	may 	be 	analyzed 	differently 	from 	educational 	requirements
for high school students.”). 	Accordingly, “[h]igh school students
may 	understand 	that 	widespread 	approval 	of 	a 	practice 	does 	not
necessarily 	mean 	that 	everyone 	should 	accept 	it, 	but 	very 	young
children are most unlikely to appreciate that fine point.” 	Id. at
551. 	Here, unlike Mahmoud, high school students are the relevant
population. 	They are not as “impressionable” as their elementary
school 	counterparts, 	and 	in 	Health 	class 	they 	are 	considerably
less “likely to accept without question any moral messages conveyed
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41
by their teachers’ instruction.” 	Id. at 551. 	At the very least,
Plaintiff has not alleged any facts to counteract this commonsense
intuition. 	Accordingly, to the extent the Health course presents
LGBTQ+ 	materials 	outside 	the 	FLHS 	unit, 	the 	age 	of 	the 	students
significantly diminishes the risk that the school will pressure a
student to conform to beliefs contrary to those of their parents.10
Finally, 	and 	most 	importantly, 	Defendants 	have 	provided
adequate 	alternatives 	to 	Plaintiff 	that 	were 	still 	available
despite 	the 	purportedly 	late 	notice 	that 	his 	opt-out 	request 	had
been denied. 	These alternatives included an independent study and
a 	course 	at 	Montgomery 	College. 	As 	the 	email 	sent 	to 	Plaintiff
explains, 	at 	any 	time, 	he 	and 	his 	son 	could 	have 	proposed 	an
independent study that accomplishes the Health course objectives,
10 	Plaintiff 	argues 	that 	“[c]ourts 	cannot 	assume 	high-school
students are immune from burdens on conscience,” and that the FLHS
opt-out exists “because lawmakers recognized those burdens remain
significant.” 	(ECF 	No. 	31, 	at 	13-14). 	Of 	course, 	high 	school
students 	are 	not 	immune 	from 	such 	burdens; 	the 	students 	in 	Yoder
were of high-school age, after all. 	But Plaintiff’s argument about
the opt-out rationale cuts against him. 	MCPS regulations permitted
an 	opt-out 	from 	the 	FLHS 	unit 	of 	study, 	MCPS 	Regulation 	IGP-RA 	§
III.e.4.c (2020), and prohibited the use of FLHS materials “in any
other instructional program of the school,” id. § III.e.2 (emphasis
added). 	The 	instructional 	program 	is 	“Comprehensive 	Health
Education,” not the FLHS unit. 	Id. § I. 	So, the regulation bars
the use of FLHS materials in other instructional programs outside
the Health course, but not in other units within the Health course.
It 	follows 	that 	lawmakers 	provided 	the 	opt-out 	from 	FLHS
instruction 	but 	not 	the 	general 	use 	of 	FLHS 	materials. 	Thus,
lawmakers acknowledged that the burden of the use of FLHS materials
was 	meaningfully 	different 	from, 	and 	lesser 	than, 	that 	of 	FLHS
instruction.
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which his son could have completed under faculty supervision. 	(ECF
No. 	23-4, 	at 	2; 	see 	also 	ECF 	No. 	2 	¶ 	42). 	Plaintiff 	himself
acknowledges 	that 	Maryland’s 	“Health 	Framework 	does 	not 	include
objectives 	relating 	to 	non-traditional, 	alternative 	family
structures and LGBT-SOGI in any other part of the health education
curriculum” 	besides 	the 	FLHS 	unit. 	(ECF 	No. 	2 	¶ 	67). 	Given 	the
available 	opt 	out 	from 	the 	FLHS 	unit, 	Plaintiff’s 	son 	could 	have
completed 	an 	independent 	study 	avoiding 	LGBTQ+ 	materials 	and
objectives 	entirely, 	earned 	his 	Health 	credit, 	and 	graduated.
Alternatively, 	Plaintiff’s 	son 	could 	have 	attended 	the 	course
“Personal 	and 	Community 	Health” 	at 	Montgomery 	College. 	(ECF 	No.
23-4, 	at 	2). 	True, 	that 	may 	have 	only 	been 	an 	option 	for 	the
Spring Semester because the Fall Semester deadline had passed when
Plaintiff learned of it. 	(Id.). 	But Plaintiff’s son still could
have 	completed 	an 	independent 	study 	in 	the 	Fall 	Semester 	and 	had
the 	option 	of 	completing 	either 	an 	independent 	study 	or 	the
Montgomery 	College 	course 	in 	the 	Spring 	Semester. 	As 	Defendants
point out, Plaintiff’s complaint “contains no factual allegations
that 	either 	alternative 	included 	constitutionally 	objectionable
content, 	violated 	his 	religious 	beliefs, 	or 	was 	prohibitively
expensive.” 	(ECF 	No. 	32, 	at 	4). 	All 	Plaintiff 	musters, 	without
any support, is that the alternatives were “objectionable.” 	(ECF
No. 2 ¶ 42). 	That is not enough.
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43
Nor 	does 	Plaintiff’s 	single 	counterargument 	hold 	purchase.
He 	contends 	that 	he 	was 	put 	to 	the 	impermissible 	choice 	“either
[to] risk [his] child’s exposure to burdensome instruction, or pay
substantial sums for alternative educational services.” 	Mahmoud,
606 U.S. at 569; (ECF No. 31, at 12).11 	That impermissible choice
arises, 	however, 	when 	the 	alternatives 	are 	private 	school 	or
homeschooling. 	Mahmoud, 	606 	U.S. 	at 	560-62. 	Here, 	the 	public
school 	is 	offering 	to 	supervise 	an 	independent 	study 	or 	permit
Plaintiff’s 	son 	to 	attend 	a 	pre-approved 	course 	at 	a 	local
community 	college. 	In 	either 	event, 	Plaintiff 	by 	no 	means 	would
be 	giving 	up 	his 	son’s 	public 	education 	or 	required 	to 	pay 	costs
akin 	to 	those 	associated 	with 	private 	school 	tuition 	or
homeschooling. 	Instead, 	the 	choice 	is 	between 	various 	public
avenues of completing the Health requirement.
Finally, because Plaintiff has failed to allege a cognizable
burden 	on 	his 	free 	exercise 	rights, 	his 	claims 	that 	Defendants’
11 	Plaintiff 	gestures 	at 	an 	additional 	argument: 	“Even 	when
one option was free, the Court recognized the stigma, disruption,
and 	coercion 	that 	accompany 	forcing 	families 	into 	alternative
channels.” 	(ECF No. 31, at 12-13). 	He does not specify where in
Mahmoud 	he 	derives 	the 	rule 	that 	even 	the 	provision 	of 	a 	free
alternative 	is 	coercive. 	To 	be 	sure, 	the 	Court 	dismissed 	the
“free” 	alternative 	that 	parents 	could 	simply 	instruct 	their
children differently outside of school, Mahmoud, 606 U.S. at 562-
63, 	but 	such 	an 	alternative 	is 	different 	in 	kind 	because 	it
supplements, 	rather 	than 	replaces, 	the 	burdensome 	instruction.
The 	alternatives 	here 	replace 	the 	allegedly 	burdensome
instruction.
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policy 	is 	neither 	generally 	applicable 	(Count 	IX) 	nor 	neutral
(Count 	XI) 	necessarily 	fail. 	Mahmoud 	v. 	McKnight, 	688 	F.Supp.3d
265, 302 n.14 (2023) (“Because the plaintiffs have not shown that
the no-opt-out policy likely will burden their religious exercise,
the 	Court 	need 	not 	address 	whether 	the 	policy 	is 	neutral 	and
generally 	applicable[.]”), 	aff’d, 	102 	F.4th 	191 	(2024), 	rev’d 	in
part sub nom., Mahmoud v. Taylor, 606 U.S. 522 (2025).12
For 	the 	reasons 	above, 	Plaintiff 	has 	failed 	to 	allege 	a
violation 	of 	his 	First 	Amendment 	right 	to 	direct 	the 	religious
upbringing 	of 	his 	son. 	His 	three 	First 	Amendment 	claims 	will 	be
dismissed.
3. 	Parental Rights
Plaintiff’s failure to state a claim under the First Amendment
likewise 	dooms 	his 	parental-rights 	substantive 	due 	process 	claim
under the Fourteenth Amendment.
12 The Supreme Court in Mahmoud considered only the following
question: 	“Do 	public 	schools 	burden 	parents’ 	religious 	exercise
when 	they 	compel 	elementary 	school 	children 	to 	participate 	in
instruction 	on 	gender 	and 	sexuality 	against 	their 	parents’
religious 	convictions 	and 	without 	notice 	or 	opportunity 	to 	opt
out?” 	Petition for Writ of Certiorari at i, Mahmoud, 606 U.S. 522
(No. 24-297), 2024 WL 4227215, at *i; Mahmoud v. Taylor, 145 S.Ct.
1123, 1123 (2025) (mem.) (granting writ of certiorari on question
presented). 	It 	did 	not 	address 	any 	other 	issues 	decided 	in 	the
district court and Fourth Circuit. 	Therefore, the portions of the
district court’s and Fourth Circuit’s opinions dealing with issues
other 	than 	the 	religious 	burden 	question 	are 	unaffected 	by 	the
Supreme 	Court 	decision. 	See 	Taylor 	v. 	Grubbs, 	930 	F.3d 	611, 	619
(4 th Cir. 2019).
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45
In Count IV, Plaintiff alleges that parents have a fundamental
right “to direct the care, custody, education, and control of their
minor children” under the Fourteenth Amendment. 	(ECF No. 2 ¶ 127).
He 	contends 	that 	this 	fundamental 	right 	includes 	“the 	right 	of
parents 	to 	counsel 	their 	children 	on 	important 	decisions 	related
to 	their 	health 	and 	safety, 	to 	determine 	what 	is 	in 	the 	best
interests 	of 	their 	minor 	children, 	to 	determine 	when 	their 	minor
children should be counseled on matters related to sexual identity
and 	family 	life, 	and 	to 	determine 	whether 	their 	children 	should
attend 	public 	school.” 	(Id.). 	Because 	“[m]atters 	regarding
homosexuality 	and 	transgenderism 	relate 	directly 	to 	the 	minor
child’s 	sexual 	identity 	and 	are 	at 	the 	core 	of 	family 	life,”
Plaintiff 	posits, 	they 	also 	touch 	the 	“core” 	of 	parents’
fundamental rights. 	(Id. ¶ 128). 	Defendants allegedly infringed
on 	such 	rights 	by 	denying 	advance 	notice 	of 	Health 	instructional
materials and Plaintiff’s request to opt his minor son out of the
Health 	course, 	in 	which 	LGBTQ+ 	instruction 	was 	allegedly 	spread
throughout, rather than confined to, the FLHS unit. 	(Id. ¶¶ 129–
30; ECF No. 31, at 4). 	Accordingly, Plaintiff contends that strict
scrutiny applies and that Defendants cannot satisfy it. 	(ECF No.
2 ¶¶ 131–32). 	Defendants move to dismiss this count on the ground
that 	only 	rational 	basis 	review 	applies, 	which 	they 	satisfy,
because 	parents’ 	“asserted 	due 	process 	right 	to 	direct 	their
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children’s upbringing by opting out of a public-school curriculum
that 	conflicts 	with 	their 	religious 	views 	is 	not 	a 	fundamental
right.” 	(ECF 	No. 	23-1, 	at 	20 	(quoting 	Mahmoud, 	688 	F.Supp.3d 	at
306) (citing Mahmoud v. McKnight, 102 F.4th 191, 217 (2024), rev’d
in part sub nom., Mahmoud v. Taylor, 606 U.S. 522 (2025))).
Defendants’ denial of the opt-out is subject to only rational
basis 	review. 	Judge 	Boardman 	explained 	the 	contours 	of 	the
substantive due process inquiry:
Under 	substantive 	due 	process
jurisprudence, 	“courts 	examine 	whether
government 	intrusions 	into 	citizens’
liberties 	are 	justified 	by 	adequate 	state
interests.” 	Herndon 	by 	Herndon 	v. 	Chapel
Hill-Carrboro City Bd. of Educ., 89 F.3d 174,
177 	(4 th 	Cir. 	1996). 	“A 	substantive 	due
process 	challenge 	is 	considered 	under
rational-basis review unless some fundamental
right is implicated.” 	Doe v. Settle, 24 F.4th
932, 	953 	(4 th 	Cir. 	2022) 	(citing 	Herndon, 	89
F.3d 	at 	177). 	Fundamental 	rights 	are 	those
“which are, objectively, deeply rooted in this
Nation’s 	history 	and 	tradition.” 	Hawkins 	v.
Freeman, 	195 	F.3d 	732, 	739 	(4 th 	Cir. 	1999)
(quoting 	Washington 	v. 	Glucksberg, 	521 	U.S.
702, 	720–21[] 	(1997)). 	“Critical 	to 	the
‘fundamental 	interest’ 	inquiry 	is 	the
requirement that it be conducted on the basis
of 	a 	‘careful 	description 	of 	the 	asserted
fundamental liberty interest.’” 	Id. (quoting
Glucksberg, 	521 	U.S. 	at 	720[]). 	In 	defining
the 	asserted 	liberty 	interest, 	courts 	must
avoid 	“overgeneralization 	in 	the 	historical
inquiry.” 	Id. at 747 (citing Glucksberg, 521
U.S. at 722–23[]).
Mahmoud, 	688 	F.Supp.3d 	at 	302. 	In 	other 	words, 	Plaintiff 	must
carefully 	define 	each 	parental 	right 	and 	identify 	a 	substantial
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historical pedigree for each such right. 	A right does not become
fundamental by a plaintiff’s ipse dixit. 	Given the strictures of
the 	fundamental 	right 	inquiry, 	“most 	due 	process 	challenges 	to
public school policies are subject only to rational basis review.”
Mahmoud, 	102 	F.4th 	at 	217 	(citing 	Herndon, 	89 	F.3d 	at 	177–79).
Here, 	the 	parental 	rights 	Plaintiff 	asserts 	are 	fundamental 	all
implicate, 	in 	the 	context 	of 	this 	case, 	“parental 	control 	over 	a
child’s 	public 	education.” 	Mahmoud, 	688 	F.Supp.3d 	at 	303. 	But
“the 	parental 	right 	to 	direct 	a 	child’s 	education 	is 	not
fundamental unless it includes a religious element.” 	Id. at 304;
Herndon, 	89 	F.3d 	at 	179 	(“[T]he 	Supreme 	Court 	has 	stated
consistently 	that 	parents 	have 	a 	liberty 	interest, 	protected 	by
the Fourteenth Amendment, in directing their children’s schooling.
Except 	when 	the 	parents’ 	interest 	includes 	a 	religious 	element,
however, 	the 	Court 	has 	declared 	[that] 	. 	. 	. 	rational 	basis
scrutiny [applies].”). 	Plaintiff makes no express mention in Count
IV 	of 	his 	right 	to 	control 	his 	child’s 	religious 	education. 	To
the extent his claim is purely secular, then, rational basis review
applies.
To the extent Plaintiff’s parental-rights claim does contain
a 	religious 	element, 	which 	it 	certainly 	appears 	to 	despite 	his
failure 	to 	say 	so 	explicitly 	in 	Count 	IV, 	it 	is 	still 	subject 	to
only 	rational 	basis 	review. 	The 	Fourth 	Circuit 	in 	Mahmoud
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described such a claim as a “hybrid-rights” claim, meaning a single
claim 	that 	rests 	on 	the 	violation 	of 	multiple 	constitutional
rights. 	102 F.4th at 217. 	Here, as in Mahmoud, Plaintiff’s “due
process 	claim 	involving 	parents’ 	rights 	related 	to 	the 	education
of 	their 	children 	is 	‘coupled 	with’ 	a 	religious-exercise 	claim.”
Id. 	(citing 	Combs 	v. 	Homer-Ctr. 	Sch. 	Dist., 	540 	F.3d 	231, 	243–47
(3d Cir. 2008)). 	The hybrid-rights theory suggests that heightened
scrutiny is triggered when constitutional rights are so coupled in
a single claim, id., and finds its origins in the Supreme Court’s
opinion in Employment Division v. Smith, 494 U.S. 872 (1990). 	The
Smith Court suggested that “hybrid” cases would trigger heightened
scrutiny, 	and 	cited 	Yoder 	as 	an 	example, 	but 	declined 	to 	apply
that 	theory 	to 	the 	case 	because 	the 	plaintiffs 	had 	not 	presented
such 	a 	theory. 	494 	U.S. 	at 	881–82. 	Within 	the 	Fourth 	Circuit,
“the 	validity 	of 	the 	hybrid-rights 	approach 	remains 	an 	open
question.” 	Mahmoud, 102 F.4th at 217. 	And the Supreme Court has
declined to provide any guidance on it. 	Mahmoud, 606 U.S. at 565
n.14 (describing the Smith Court’s hybrid-rights characterization
of 	Yoder 	as 	“speculat[ion]” 	and 	concluding 	that 	the 	Court 	“need
not 	consider 	whether 	the 	case 	before 	[it] 	qualifies 	as 	such 	a
‘hybrid rights’ case”). 	In any event, a hybrid-rights claim does
not 	warrant 	strict 	scrutiny 	if 	the 	assertion 	of 	one 	of 	the 	two
alleged constitutional violations is deficient. 	See Mahmoud, 102
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F.4th 	at 	217 	(“Regardless 	of 	the 	underlying 	merits 	of 	a 	hybrid-
rights 	due 	process 	claim, 	it 	could 	only 	be 	the 	basis 	for 	a
preliminary 	injunction 	if 	the 	Parents’ 	free 	exercise 	claims 	were
also likely to succeed on the merits.” (citation omitted)); Parents
for Priv. v. Barr, 949 F.3d 1210, 1237 (9 th Cir. 2020) (“[A]lleging
multiple 	failing 	constitutional 	claims 	that 	do 	not 	have 	a
likelihood 	of 	success 	on 	the 	merits 	cannot 	be 	enough 	to 	invoke 	a
hybrid 	rights 	exceptions 	and 	require 	strict 	scrutiny.” 	(citation
omitted)). 	Because Plaintiff does not state a plausible claim for
relief on his free exercise claims, his hybrid-rights due process
claim 	is 	not 	subject 	to 	strict 	scrutiny, 	but 	rather 	to 	rational
basis review.
Plaintiff points to the Supreme Court’s Mahmoud decision for
the 	proposition 	that 	“when 	a 	district 	denies 	notice 	and 	opt-outs
as to contested content, courts do not dispose of parental claims
on 	the 	pleadings.” 	(ECF 	No. 	31, 	at 	4). 	The 	Supreme 	Court’s
opinion reflects no such proposition. 	Mahmoud was a case decided
on the preliminary injunction record, not the pleadings, and more
importantly, 	it 	did 	not 	address 	the 	parental-rights 	substantive
due 	process 	claims. 	Mahmoud, 	606 	U.S. 	at 	545–46 	(noting 	the
preliminary 	injunction 	posture); 	id. 	at 	626 	(Sotomayor, 	J.,
dissenting) 	(“[T]he 	Court’s 	analysis 	makes 	no 	mention 	of
substantive 	due 	process 	rights 	or 	the 	Fourteenth 	Amendment 	Due
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Process 	Clause.”). 	Nothing 	in 	the 	Court’s 	Mahmoud 	opinion 	bars
disposing 	of 	Plaintiff’s 	parental-rights 	claim 	at 	the 	motion-to-
dismiss stage.
Thus, 	any 	version 	of 	Plaintiff’s 	parental-rights 	claim 	is
subject to rational basis review. 	The challenged government action
easily 	passes 	muster. 	Rational 	basis 	review 	“requires 	only 	that
the 	[challenged 	state 	action] 	be 	shown 	to 	bear 	some 	rational
relationship 	to 	legitimate 	state 	purposes.” 	Herndon, 	89 	F.3d 	at
177 	(alteration 	in 	original) 	(quoting 	S.A. 	Indep. 	Sch. 	Dist. 	v.
Rodriguez, 	411 	U.S. 	1, 	40 	(1973)). 	“Under 	this 	deferential
standard, 	the 	plaintiff 	bears 	the 	burden 	‘to 	negate 	every
conceivable 	basis 	which 	might 	support’ 	the 	legislation.”
Giarratano 	v. 	Johnson, 	521 	F.3d 	298, 	303 	(4 th 	Cir. 	2008) 	(quoting
Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973)).
“To 	survive 	a 	motion 	to 	dismiss 	for 	failure 	to 	state 	a 	claim, 	a
plaintiff must allege facts sufficient to overcome the presumption
of 	rationality 	that 	applies[.]” 	Id. 	(quoting 	Wroblewski 	v. 	City
of 	Washburn, 	965 	F.2d 	452, 	460 	(7 th 	Cir. 	1992)). 	Plaintiff
challenges 	three 	state 	actions: 	(1) 	refusal 	to 	provide 	advance
notice of the Health instructional materials; (2) spreading LGBTQ+
instructional 	materials 	throughout 	the 	Health 	course 	rather 	than
just 	the 	FLHS 	unit; 	and 	(3) 	refusal 	to 	allow 	opt-outs 	from 	the
Health credit requirement. 	At no point does Plaintiff argue that
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any 	of 	the 	challenged 	state 	actions 	fails 	rational 	basis 	review.
Therefore, he cannot overcome the presumption of rationality, and
his claim fails.
Moreover, each challenged state action had a rational basis.
Defendants 	did 	offer 	to 	provide 	advance 	notice 	of 	the 	materials
but for a fee due to the extensive nature of Plaintiff’s request.
(ECF 	No. 	2 	¶ 	27). 	Defendants’ 	response 	to 	Plaintiff’s 	request
bears a rational relationship to the legitimate state interest of
mitigating 	administrative 	and 	fiscal 	burdens. 	Armour 	v. 	City 	of
Indianapolis, 566 U.S. 673, 686 (2012) (holding that it is rational
for the government to seek to avoid an administrative burden). 	As
for the spreading of LGBTQ+ instructional materials throughout the
Health 	course, 	Plaintiff 	has 	provided 	no 	factual 	support 	for 	the
contention that LGBTQ+ instruction is occurring in any portion of
the 	Health 	course 	outside 	the 	FLHS 	unit. 	At 	most, 	the 	court 	can
infer that resources in other units refer to LGBTQ+ individuals or
subject 	matter. 	The 	court 	agrees 	with 	Defendants 	that 	including
such 	LGBTQ+ 	resources 	throughout 	the 	Health 	course 	is 	rationally
related 	to 	the 	MCBE’s 	legitimate 	interest 	in 	promoting 	“social
integration 	and 	cultural 	inclusiveness 	of 	transgender 	and 	gender
nonconforming 	students[,] 	. 	. 	. 	providing 	a 	safe 	and 	supportive
learning environment for its students, protecting LGBTQ students’
health 	and 	safety, 	and 	complying 	with 	anti-discrimination 	laws.”
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(ECF 	No. 	23-1, 	at 	20 	(quoting 	Mahmoud, 	688 	F.Supp.3d 	at 	306)).
Finally, 	the 	Maryland 	government 	undoubtedly 	has 	a 	significant
interest 	in 	fostering 	a 	health-conscious 	population 	through
mandatory 	Health 	education 	that 	opt-outs 	from 	the 	entire 	course
would 	frustrate. 	See 	Tri-Cnty. 	Paving, 	Inc. 	v. 	Ashe 	County, 	281
F.3d 	430, 	441 	(4 th 	Cir. 	2002) 	(noting 	that 	“protecting 	the 	health
or welfare of county residents” is a legitimate interest).
Because 	Plaintiff’s 	parental-rights 	claim 	cannot 	withstand
rational basis review, it will be dismissed.
4. 	PPRA
Finally, Plaintiff alleges that Defendants violated his right
under 	the 	PPRA 	and 	the 	United 	States 	Constitution 	to 	review 	the
Health instructional materials at no fee when they “refus[ed] his
reasonable 	requests 	to 	do 	so” 	and 	“condition[ed] 	such 	access 	on
exorbitant and unreasonable fees.” 	(ECF No. 2 ¶¶ 146, 147, 149).
Plaintiff’s PPRA claim is premised on the following provision
within the statute:
[A] 	local 	educational 	agency 	that 	receives
funds 	under 	any 	applicable 	program 	shall
develop 	and 	adopt 	policies, 	in 	consultation
with parents, regarding the following:
. . .
(C)
(i) The right of a parent of a student to
inspect, upon the request of the parent,
any 	instructional 	material 	used 	as 	part
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of 	the 	educational 	curriculum 	for 	the
student; and
(ii) 	any 	applicable 	procedures 	for
granting 	a 	request 	by 	a 	parent 	for
reasonable 	access 	to 	instructional
material 	within 	a 	reasonable 	period 	of
time after the request is received.
20 	U.S.C. 	§ 	1232h(c)(1)(C); 	(ECF 	No. 	2 	¶ 	147). 	A 	Maryland
regulation provides that “[t]he local school system shall provide
an 	opportunity 	for 	parents/guardians 	to 	view 	instructional
materials to be used in the teaching of [FLHS] objectives.” 	COMAR
13A.04.18.01(D)(2)(e)(iv). 	Montgomery 	County 	regulations
implement this state directive:
Each school will hold an informational meeting
to 	provide 	an 	opportunity 	for
parents/guardians to discuss the FLHS unit of
study 	with 	teachers 	and 	review 	instructional
materials. 	For 	parents/guardians 	unable 	to
attend 	the 	informational 	meeting, 	the 	school
shall make available special opportunities for
parents/guardians 	to 	view 	all 	instructional
materials 	to 	be 	used 	in 	the 	unit 	of 	study
before 	the 	materials 	are 	used 	in 	the
classroom.
MCPS Regulation IGP-RA § III.E.4.b (2020). 	The mechanism the MCBE
evidently chose to field parental requests to review instructional
materials 	was 	the 	MPIA. 	(ECF 	No. 	2 	¶ 	25). 	Plaintiff 	filed 	his
request 	to 	review 	the 	Health 	instructional 	materials 	under 	the
MPIA. 	(Id. 	¶ 	26). 	The 	MCBE 	responded 	to 	the 	MPIA 	request 	but
“claim[ed] that the request was too broad, and that fulfillment of
his 	request 	would 	require 	estimated 	fees 	to 	be 	incurred 	between
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‘$250 to $5,000,’ and that such means would not be waived.” 	(Id.
¶ 27). 	Plaintiff apparently did not pursue any further action on
his MPIA request and now alleges that the MCBE’s response violated
his rights under the PPRA.
Defendants move to dismiss Plaintiff’s PPRA claim because it
does not create enforceable rights via a § 1983 action. 	(ECF No.
23-1, at 21–22). 	Plaintiff acknowledges in response that “[s]ome
courts agree” with Defendants or treat the PPRA as enforceable via
§ 	1983 	“only 	when 	federal 	funds 	and 	surveys 	are 	involved.” 	(ECF
No. 	31, 	at 	8 	(citation 	omitted)). 	He 	offers 	that 	his 	“claims 	do
not 	rise 	or 	fall 	with 	[the] 	PPRA” 	and 	that 	the 	court 	“may 	treat
[the] 	PPRA 	allegations 	as 	contextual 	and 	reserve 	decision 	on 	any
stand-alone PPRA count.” 	(Id.).
Although 	the 	issue 	is 	somewhat 	closer 	than 	either 	party
recognizes, 	the 	court 	ultimately 	agrees 	with 	Defendants 	that 	the
relevant 	provision 	of 	the 	PPRA 	is 	not 	the 	sort 	of 	provision
Congress intended to be enforceable via a § 1983 claim. 	Numerous
courts have been presented with the question of whether a provision
of 	the 	PPRA 	is 	enforceable 	under 	§ 	1983, 	but 	none 	appear 	to 	have
engaged 	in 	a 	fulsome 	analysis 	of 	the 	provision 	in 	question, 	20
U.S.C. 	§ 	1232h(c)(1)(C). 	See 	Herbert 	v. 	Reinstein, 	976 	F.Supp.
331, 	340 	(E.D.Pa. 	1997) 	(holding 	that 	§ 	1232h(b) 	was 	not
enforceable by plaintiffs under § 1983 because plaintiffs were not
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intended 	beneficiaries 	of 	survey 	provision); 	Altman 	v. 	Bedford
Cent. 	Sch. 	Dist., 	45 	F.Supp.2d 	368, 	391 	(S.D.N.Y. 	1999) 	(same),
aff’d 	in 	part, 	vacated 	in 	part, 	rev’d 	in 	part 	on 	other 	grounds,
245 	F.3d 	49 	(2 d 	Cir. 	2001); 	C.N. 	v. 	Ridgewood 	Bd. 	of 	Educ., 	146
F.Supp.2d 	528, 	535–37 	(D.N.J. 	2001) 	(concluding 	that 	even 	if 	§
1232h(b) 	were 	enforceable 	under 	§ 	1983, 	plaintiff’s 	claim 	would
fail), aff’d, 430 F.3d 159 (3 d Cir. 2005); Ashby v. Isle of Wight
Cnty. Sch. Bd., 354 F.Supp.2d 616, 623 n.9 (E.D.Va. 2004) (holding
that 	§ 	1232h(b) 	does 	not 	create 	a 	private 	right 	of 	action 	and
declining to reach whether it would be enforceable under § 1983);
Doe 	No. 	1 	v. 	Bethel 	Loc. 	Sch. 	Dist. 	Bd. 	of 	Educ., 	No. 	22-cv-337,
2023 	WL 	5018511, 	at 	*21–22 	(S.D.Ohio 	Aug. 	7, 	2023) 	(assuming
without 	deciding 	that 	§ 	1232h(b) 	is 	enforceable 	under 	§ 	1983);
Myers v. Beaverton Sch. Dist. 48J, No. 25-cv-677, 2025 WL 2019336,
at 	*5 	(D.Or. 	July 	18, 	2025) 	(finding 	it 	unlikely 	that 	§ 	1232h(b)
is enforceable under § 1983).
As 	a 	baseline, 	the 	Supreme 	Court 	has 	recognized 	that 	for
Spending Clause legislation like the PPRA, “the typical remedy for
state 	noncompliance 	with 	federally 	imposed 	conditions 	is 	not 	a
private cause of action for noncompliance but rather action by the
Federal Government to terminate funds to the State.” 	Gonzaga Univ.
v. 	Doe, 	536 	U.S. 	273, 	280 	(2002) 	(quoting 	Pennhurst 	State 	Sch. 	&
Hosp. 	v. 	Halderman, 	451 	U.S. 	1, 	28 	(1981)). 	In 	the 	“atypical
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case,” 	however, 	Spending 	Clause 	legislation 	can 	generate
enforceable 	rights 	under 	§ 	1983. 	Health 	& 	Hosp. 	Corp. 	of 	Marion
Cnty. 	v. 	Talevski, 	599 	U.S. 	166, 	183 	(2023). 	The 	Court 	set 	out
the 	governing 	test 	in 	Gonzaga 	University 	v. 	Doe 	and 	recently
restated 	it: 	The 	statutory 	provision 	must 	“‘unambiguously
confe[r]’ 	individual 	rights” 	on 	“‘a 	class 	of 	beneficiaries’ 	to
which 	the 	plaintiff 	belongs,” 	thereby 	“making 	those 	rights
‘presumptively 	enforceable’ 	under 	§ 	1983.” 	Id. 	(alteration 	in
original) 	(quoting 	Gonzaga, 	536 	U.S. 	at 	283–84). 	Courts 	“employ
traditional 	tools 	of 	statutory 	construction” 	to 	make 	this
assessment. 	Id. 	In Talevski, the Court provided further guidance
on this front:
We 	have 	held 	that 	the 	Gonzaga 	test 	is
satisfied 	where 	the 	provision 	in 	question 	is
“phrased 	in 	terms 	of 	the 	persons 	benefited”
and 	contains 	“rights-creating,” 	individual-
centric 	language 	with 	an 	“unmistakable 	focus
on the benefited class.” 	[Gonzaga, 536 U.S.]
at 284, 287[] (emphasis deleted). 	Conversely,
we 	have 	rejected 	§ 	1983 	enforceability 	where
the 	statutory 	provision 	“contain[ed] 	no
rights-creating language”; had “an aggregate,
not 	individual, 	focus”; 	and 	“serve[d]
primarily to direct the [Federal Government’s]
distribution 	of 	public 	funds.” 	Id.[] 	at
290[].
Id. at 183–84.
The 	statutory 	provisions 	at 	issue 	in 	Gonzaga 	and 	Talevski
shed 	light 	on 	what 	is 	needed 	to 	find 	an 	unambiguously 	conferred
right. 	In Gonzaga, the Court considered a provision of the Family
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Educational Rights and Privacy Act of 1974 (“FERPA”), 20 U.S.C. §
1232g, 	which 	other 	courts 	have 	referred 	to 	as 	the 	PPRA’s 	“sister
statute,” 	Doe 	No. 	1, 	2023 	WL 	5018511, 	at 	*21. 	That 	provision
provided 	that 	“[n]o 	funds 	shall 	be 	made 	available 	under 	any
applicable program to any educational agency or institution which
has 	a 	policy 	or 	practice 	of 	permitting 	the 	release 	of 	education
records 	. 	. 	. 	of 	students 	without 	the 	written 	consent 	of 	their
parents to any individual, agency, or organization.” 	20 U.S.C. §
1232g(b)(1). 	Because the provision is “two steps removed from the
interests 	of 	individual 	students 	and 	parents,” 	“speak[s] 	only 	in
terms 	of 	institutional 	policy 	and 	practice, 	not 	individual
instances 	of 	disclosure,” 	and 	“expressly 	authorize[s] 	the
Secretary 	of 	Education” 	to 	enforce 	the 	statute 	through 	a
“centralized review” process, the Court held that the statute did
not unambiguously confer an enforceable right. 	Gonzaga, 536 U.S.
at 287–90. 	The Talevski Court, on the other hand, concluded that
two 	provisions 	of 	the 	Federal 	Nursing 	Home 	Reform 	Act 	(“FNHRA”)
are 	enforceable 	under 	§ 	1983. 	Both 	provisions 	are 	found 	in 	42
U.S.C. 	§ 	1396r(c), 	titled 	“Requirements 	Relating 	to 	Residents’
Rights,” 	which 	“is 	indicative 	of 	an 	individual 	‘rights-creating’
focus.” 	Talevski, 	599 	U.S. 	at 	184 	(quoting 	Gonzaga, 	536 	U.S. 	at
284). 	One provision required nursing homes to “protect and promote
. 	. 	. 	[t]he 	right 	to 	be 	free 	from 	. 	. 	. 	any 	physical 	or 	chemical
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restraints 	imposed 	for 	purposes 	of 	discipline 	or 	convenience 	and
not 	required 	to 	treat 	the 	resident’s 	medical 	symptoms.” 	Id.
(quoting 	42 	U.S.C. 	§ 	1396r(c)(1)(A)(ii)). 	The 	other 	instructed
nursing 	homes 	that 	they 	“‘must 	not 	transfer 	or 	discharge 	[a]
resident’ 	unless 	certain 	preconditions 	are 	met.” 	Id. 	at 	185
(alteration 	in 	original) 	(quoting 	and 	citing 	42 	U.S.C. 	§
1396r(c)(2)(A)–(B)). 	Although 	these 	two 	provisions 	specify 	who
“must 	respect 	and 	honor 	these 	statutory 	rights[,] 	. 	. 	. 	that 	is
not a material diversion from the necessary focus on the nursing-
home residents.” 	Id.
Here, the particular PPRA provision shares similarities with
the 	provisions 	in 	both 	Talevski 	and 	Gonzaga. 	Like 	the
“Requirements Related to Residents’ Rights” title in Talevski, the
fact that the statute here is titled “Protection of Pupil Rights”
“is 	indicative 	of 	an 	individual 	‘rights-creating’ 	focus.”
Talevski, 599 U.S. at 184 (quoting Gonzaga, 536 U.S. at 284). 	That
being 	said, 	the 	Family 	Educational 	Rights 	and 	Privacy 	Act
considered 	in 	Gonzaga 	also 	explicitly 	mentions 	rights, 	so 	this
fact is not dispositive. 	Like the chemical-restraint provision in
Talevski 	and 	unlike 	the 	FERPA 	provision 	in 	Gonzaga, 	§
1232h(c)(1)(C) 	explicitly 	mentions 	“[t]he 	right 	of 	a 	parent 	of 	a
student 	to 	inspect[] 	. 	. 	. 	any 	instructional 	material.” 	The
statute 	later 	refers 	to 	this 	as 	one 	of 	“the 	rights 	established
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under this section.” 	20 U.S.C. § 1232h(f) (emphasis added). 	But
§ 	1232h(c)(1) 	merely 	requires 	school 	districts 	to 	“develop 	and
adopt policies[] . . . regarding” that right. 	It thus operates at
the 	policy 	level 	like 	the 	FERPA 	provision 	in 	Gonzaga, 	not 	at 	the
individual 	level 	like 	the 	FNHRA 	provisions 	in 	Talevski.
Accordingly, it is less clear than in Talevski that the provision’s
articulation of those responsible for protecting the right “is not
a 	material 	diversion 	from 	the 	necessary 	focus” 	on 	the 	parents.
With 	that 	lack 	of 	clarity 	in 	mind, 	it 	is 	important 	to 	note 	that
Talevski is the only Supreme Court case permitting enforcement of
a 	Spending 	Clause 	statutory 	right 	via 	§ 	1983 	of 	which 	the 	Court
continues 	to 	approve. 	Medina 	v. 	Planned 	Parenthood 	S. 	Atl., 	606
U.S. 357, 377 (2025) (noting that of the three Supreme Court cases
holding that Spending Clause statutory rights are enforceable via
§ 	1983, 	Talevski 	is 	the 	only 	one 	the 	Court 	has 	not 	repudiated).
Given the great caution that implies, and the requirement that the
conferral 	of 	the 	right 	be 	unambiguous, 	§ 	1232h(c)(1)(C) 	does 	not
meet the high bar of § 1983 enforceability.
Even assuming that § 1232h(c)(1)(C) does unambiguously confer
a 	parental 	right 	to 	review 	instructional 	materials, 	the 	statute
still 	would 	not 	be 	enforceable 	via 	§ 	1983. 	When 	“a 	statutory
provision 	unambiguously 	secures 	rights, 	a 	defendant 	‘may 	defeat
t[he] 	presumption 	by 	demonstrating 	that 	Congress 	did 	not 	intend’
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that § 1983 be available to enforce those rights.” 	Talevski, 599
U.S. at 186 (alteration in original) (quoting City of Ranchos Palos
Verdes v. Abrams, 544 U.S. 113, 120 (2005)). 	To do so, a defendant
may show that Congress created a “comprehensive enforcement scheme
that 	is 	incompatible 	with 	individual 	enforcement 	under 	§ 	1983.”
Id. 	(emphasis 	added) 	(quoting 	Ranchos 	Palos 	Verdes, 	544 	U.S. 	at
120).13 	Such 	incompatibility 	may 	exist 	when 	Congress 	provides 	“a
private 	judicial 	right 	of 	action” 	or 	a 	“private 	federal
administrative remedy.” 	Id. at 190; see also id. at 195 (Barrett,
J., 	concurring) 	(explaining 	that 	“contextual 	clues” 	of
incompatibility 	include 	enforcement 	provisions 	authorizing
government 	officials 	to 	sue, 	administrative 	remedies, 	and 	a
centralized 	review 	mechanism). 	Here, 	the 	PPRA 	directs 	the
Secretary 	of 	Education 	to 	“take 	such 	action 	as 	the 	Secretary
13 Defendants focus on whether the PPRA provision in question
confers 	rights 	and 	thus 	do 	not 	make 	a 	specific 	incompatibility
argument. 	(See ECF Nos. 23-1, at 21–22; 32, at 8). 	They do note
the 	Secretary’s 	role, 	however, 	in 	policing 	compliance 	with 	the
statute. 	(ECF 	No. 	23-1, 	at 	21–22). 	The 	exact 	nature 	of 	the
defendant’s 	burden, 	including 	whether 	it 	can 	be 	adjudicated 	on 	a
motion 	to 	dismiss, 	is 	unclear. 	But 	various 	courts 	have 	held 	the
burden to be discharged at this early stage, see, e.g., Trepanier
v. Ryan, No. 00-cv-2393, 2004 WL 1102417, at *3 (N.D.Ill. May 17,
2004), 	and 	the 	court 	sees 	little 	reason 	why 	discovery 	or 	further
development 	of 	the 	litigation 	is 	needed 	to 	flesh 	out 	remedial
incompatibility, 	a 	question 	of 	statutory 	interpretation.
Therefore, 	even 	if 	§ 	1232h(c)(1)(C) 	unambiguously 	conferred 	a
parental 	right, 	the 	court 	would 	hold 	that 	Defendants 	have
discharged their burden by pointing to the Secretary’s role in the
statute, which is incompatible with § 1983 enforcement.
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determines appropriate to enforce this section,” including “action
to 	terminate 	assistance.” 	20 	U.S.C. 	§ 	1232h(e). 	Crucially, 	it
further 	instructs 	the 	Secretary 	to 	“establish 	or 	designate 	an
office 	and 	review 	board 	within 	the 	Department 	of 	Education 	to
investigate, 	process, 	review, 	and 	adjudicate 	violations 	of 	the
rights established under this section.” 	Id. § 1232h(f) (emphasis
added). 	In 	other 	words, 	the 	statute 	provides 	a 	private 	federal
administrative 	remedy 	via 	a 	centralized 	review 	mechanism 	for
statutory 	violations, 	implicitly 	precluding 	enforcement 	via 	§
1983.
Finally, 	even 	considering 	the 	PPRA 	claim 	on 	its 	merits,
Plaintiff at no point explains why the right of a parent to inspect
instructional material categorically bars charging a fee for such
inspection. 	His categorical no-fee rule would lead to the absurd
result 	that 	any 	parent 	could 	impose 	crippling 	administrative
burdens 	on 	a 	school 	or 	school 	district 	at 	no 	cost. 	See 	Lara-
Aguilar 	v. 	Sessions, 	889 	F.3d 	134, 	144 	(4 th 	Cir. 	2018) 	(“[Courts]
are 	to 	avoid 	‘interpretations 	of 	a 	statute 	which 	would 	produce
absurd 	results 	. 	. 	. 	if 	alternative 	interpretations 	consistent
with the legislative purpose are available.” (citation omitted)).
The 	PPRA 	is 	silent 	on 	fees, 	most 	likely 	because 	it 	directs 	local
education 	agencies 	to 	“develop 	and 	adopt 	policies” 	regarding 	the
inspection right and “procedures for granting a request by a parent
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for 	reasonable 	access 	to 	instructional 	material 	within 	a
reasonable 	amount 	of 	time.” 	20 	U.S.C. 	§ 	1232h(c)(1)(C)(ii)
(emphasis added). 	In doing so, Congress likely left the issue of
fees 	to 	the 	discretion 	of 	local 	education 	agencies, 	bounded 	by
reasonableness.14 	Accordingly, 	unreasonable 	fees 	might 	give 	rise
to a statutory violation, but a plaintiff would need to allege why
the fee charged was unreasonably disproportionate to the request.
Here, the MCBE informed Plaintiff that his request was “too broad”
and 	would 	require 	a 	fee 	of 	“$250–$5,000.” 	(ECF 	No. 	2 	¶ 	27).
Plaintiff 	contends 	that 	this 	fee 	was 	“unreasonable” 	but 	fails 	to
explain 	why 	it 	was 	disproportionate 	to 	his 	request 	for 	all 	the
instructional 	materials 	used 	in 	the 	Health 	course. 	(See 	id.).
That failure is fatal to any PPRA claim he might have.
Plaintiff 	also 	grounds 	this 	right 	to 	review 	in 	the 	U.S.
Constitution, but the Constitution provides no better hook for his
claim. 	He 	ties 	the 	right 	to 	review 	to 	the 	parental 	right 	“to
determine whether their minor child should attend public school.”
(ECF 	No. 	2 	¶ 	146). 	If 	he 	means 	to 	assert 	the 	right 	to 	review 	as
a substantive due process right, he makes no effort to demonstrate
its 	historical 	pedigree. 	Glucksberg, 	521 	U.S. 	at 	720–21. 	If 	he
14 	When 	Congress 	wants 	to 	establish 	when 	fees 	can 	and 	cannot
be charged for document requests from government agencies, it knows
how to do so. 	See 5 U.S.C. § 552(a)(4)(A) (Freedom of Information
Act fee provisions); id. § 552a(f)(5) (Privacy Act fee provision).
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means to assert it as a procedural due process right, he has failed
to allege adequately any liberty interest of which he was deprived.
Moreover, he has failed to allege that the existing state remedies
for any deprivation were inadequate. 	Zinermon v. Burch, 494 U.S.
113, 126 (1990) (“The constitutional violation actionable under §
1983 	is 	not 	complete 	when 	the 	deprivation 	occurs; 	it 	is 	not
complete 	unless 	and 	until 	the 	State 	fails 	to 	provide 	due
process.”). 	The 	MPIA 	under 	which 	Plaintiff 	sought 	review 	of 	the
instructional 	materials 	provided 	a 	pathway 	to 	have 	an 	ombudsman
review 	the 	denial 	of 	his 	request 	and 	fee 	waiver, 	Md. 	Code 	Ann.,
Gen. Provisions § 4-1B-04 (West), and then appeal the ombudsman’s
determination to the Public Information Act Compliance Board, id.
§ 4-1A-05. 	Plaintiff did not pursue these avenues of review.
D. 	Leave to Amend
Plaintiff 	asks 	for 	leave 	to 	amend 	if 	the 	court 	“identifies
any 	curable 	pleading 	deficiency 	(e.g., 	substitution 	of 	the 	Board
for ‘MCPS,’ additional detail as to a defendant, or refinement of
a 	statutory 	count).” 	(ECF 	No. 	31, 	at 	15). 	The 	defects 	in 	the
complaint are far more fundamental. 	Leave to amend is denied.
E. 	State Claims
Once this court has federal question jurisdiction over one or
more 	claims 	in 	any 	action, 	it 	also 	has, 	pursuant 	to 	28 	U.S.C. 	§
1367(a), supplemental jurisdiction “over all other claims that are
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so 	related 	to 	claims 	in 	the 	action 	. 	. 	. 	that 	they 	form 	part 	of
the 	same 	case 	or 	controversy.” 	A 	court 	may, 	however, 	decline 	to
exercise supplemental jurisdiction if “the claim raises a novel or
complex issue of State law,” or “the district court has dismissed
all 	claims 	over 	which 	it 	has 	original 	jurisdiction.” 	28 	U.S.C 	§
1367(c)(1), 	(3); 	Royal 	Canin 	U.S.A., 	Inc. 	v. 	Wullschleger, 	604
U.S. 22, 31–32 (2025). 	Both of those grounds apply here.
First, the court has dismissed all federal claims as discussed
above. 	At 	this 	early 	stage 	of 	the 	litigation, 	remand 	of 	claims
arising 	under 	state 	law 	is 	the 	normal 	course. 	See 	United 	Mine
Workers 	of 	Am. 	v. 	Gibbs, 	383 	U.S. 	715, 	726 	(1966) 	(“[I]f 	the
federal 	claims 	are 	dismissed 	before 	trial, 	even 	though 	not
insubstantial 	in 	a 	jurisdictional 	sense, 	the 	state 	claims 	should
be dismissed as well.”). 	“With all [the] federal questions gone,
there 	may 	be 	the 	authority 	to 	keep 	[this 	case] 	in 	federal 	court
under 	28 	U.S.C. 	§§ 	1367(a) 	and 	1441(c) 	(2000), 	but 	there 	is 	no
good 	reason 	to 	do 	so.” 	Waybright 	v. 	Frederick 	County, 	528 	F.3d
199, 	209 	(4th 	Cir. 	2008). 	The 	court 	declines 	to 	exercise
supplemental 	jurisdiction 	over 	the 	seven 	state 	claims 	in 	the
complaint.
Second, the issues presented by the state administrative and
constitutional claims raise some novel and some complex issues of
state law best left to state courts to resolve. 	An issue of state
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law 	is 	novel 	if 	it 	is 	a 	matter 	of 	first 	impression 	for 	the 	state
courts 	or 	is 	currently 	pending 	before 	a 	state 	appellate 	court.
Winingear 	v. 	City 	of 	Norfolk, 	No. 	12-cv-560, 	2013 	WL 	5672668, 	at
*4 	n.6 	(E.D.Va. 	Oct. 	16, 	2023) 	(citing 	Sawyer 	v. 	Atlas 	Heating 	&
Sheet 	Metal 	Works, 	Inc., 	731 	F.Supp.2d 	849, 	850 	(E.D.Wis. 	2010);
Erdman 	v. 	Nationwide 	Ins. 	Co., 	621 	F.Supp.2d 	230, 	238 	(M.D.Pa.
2007, 	aff’d, 	582 	F.3d 	500 	(3 d 	Cir. 	2009)); 	see 	also 	Green 	v.
Zendrian, 916 F.Supp. 493, 496 (D.Md. 1996) (holding that the issue
was novel and/or complex because it was a “serious issue of first
impression”). 	There is little guidance on the complexity inquiry,
other 	than 	that 	the 	issue 	must 	be 	“intricate,” 	and 	perhaps
“important.” 	See 	Arrington 	v. 	City 	of 	Raleigh, 	369 	F.App'x 	420,
423 n.2 (4th Cir. 2010).
The 	state 	administrative 	claims 	in 	Counts 	I-III 	raise 	novel
and complex issues of state law. 	Principal among these issues is
that 	of 	exhaustion 	of 	state 	administrative 	remedies, 	given 	the
apparent 	procedural 	mishaps 	that 	occurred. 	The 	court 	is 	unaware
of any Maryland cases interpreting the MCPS procedural regulation
at issue. 	Therefore, Plaintiff’s compliance or lack thereof with
the administrative process raises novel issues. 	See Omnis Health
Life, LLC v. Optum, Inc., No. 24-cv-3642-ELH, 2025 WL 2659881, at
*4 	(D.Md. 	Sep. 	17, 	2025) 	(holding 	particular 	administrative
exhaustion 	issue 	is 	novel 	and/or 	complex 	issue 	of 	Maryland 	law).
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Other 	novel 	and 	complex 	issues 	include 	the 	applicability 	of 	the
Maryland APA or Maryland’s Accardi doctrine.15 	See Md. Code Ann.,
State 	Gov’t 	§ 	10-202(b) 	(West) 	(agencies 	covered 	by 	the 	Maryland
APA); 	id. 	§ 	10-222 	(Maryland 	APA 	judicial 	review 	provision);
Pollock 	v. 	Patuxent 	Inst. 	Bd. 	of 	Rev., 	374 	Md. 	463, 	503 	(2003)
(adopting 	modified 	version 	of 	Accardi 	doctrine 	for 	Maryland
administrative agencies not covered by the Maryland APA). 	Maryland
state courts should resolve these issues.
The 	state 	constitutional 	claims 	in 	Count 	V 	under 	Article 	24
of the Maryland Declaration of Rights, and Counts VIII, X, and XII
under 	Article 	36 	of 	the 	Maryland 	Declaration 	of 	Rights, 	likewise
raise novel and complex issues of state law. 	Generally speaking,
“[q]uestions of state constitutional law are best answered by state
courts, rather than by the federal judiciary.” 	Bayadi v. Clarke,
No. 16-cv-3, 2017 WL 1091946, at *6 (W.D.Va. Mar. 22, 2017) (citing
Harris Cnty. Comm’rs Ct. v. Moore, 420 U.S. 77, 84–85 (1975); Reetz
v. 	Bozanich, 	397 	U.S. 	82, 	85 	(1970)). 	Indeed, 	the 	Supreme 	Court
has announced that “[i]t is fundamental that state courts be left
free and unfettered by [federal courts] in interpreting their state
15 	Under 	federal 	administrative 	law, 	the 	“Accardi 	doctrine 	.
. . provides that when an agency fails to follow its own procedures
or 	regulations, 	that 	agency’s 	actions 	are 	generally 	invalid.”
Orellana 	v. 	Bondi, 	141 	F.4th 	560, 	566 	(4 th 	Cir. 	2025) 	(quoting
Nader v. Blair, 549 F.3d 953, 962 (4 th Cir. 2008)); see also United
States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 268 (1954).
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constitutions.” 	Minnesota 	v. 	Nat’l 	Tea 	Co., 	309 	U.S. 	551, 	557
(1940). 	Although Maryland courts ordinarily read Articles 24 and
36 	in 	pari 	materia 	with 	their 	federal 	counterparts, 	that 	is 	not
always 	or 	necessarily 	the 	case. 	Koshko 	v. 	Haining, 	398 	Md. 	404,
444 	n.22 	(2007) 	(explaining 	that 	while 	Article 	24 	is 	ordinarily
read in pari materia with federal due process provisions, Maryland
courts 	“have 	not 	hesitated, 	where 	deemed 	appropriate, 	to 	offer 	a
different 	interpretation”); 	Booth 	v. 	Maryland, 	337 	F.App’x 	301,
311 	(4th 	Cir. 	2009) 	(“Maryland 	state 	courts 	have 	proceeded 	on 	the
basis that . . . Article 36 and the First Amendment of the United
States Constitution have the same effect.” (citations omitted)).16
In fact, the Fourth Circuit has noted that a district court “erred
in passing on the merits of plaintiffs’ Article 24 claim” because
Article 	24 	is 	not 	necessarily 	in 	pari 	materia 	with 	federal 	due
process 	provisions. 	Waybright, 	528 	F.3d 	at 	209. 	Although 	the
federal 	Constitution 	does 	not 	grant 	Plaintiff 	the 	protection 	he
asserts, 	it 	is 	possible 	that 	Maryland 	courts 	will 	afford 	greater
protection 	under 	Articles 	24 	and 	36 	the 	Maryland 	Declaration 	of
16 	Also 	novel 	is 	the 	issue 	of 	whether 	Article 	36 	provides 	a
private 	cause 	of 	action. 	Booth, 	337 	F.App’x 	at 	311 	(“Whether
Article 36 of the Maryland Declaration of Rights provides a private
cause of action is undecided.” (citation omitted)). 	Other courts
in 	this 	circuit 	have 	declined 	to 	exercise 	supplemental
jurisdiction over a state constitutional claim when it is unclear
whether the provision of the state constitution at issue contains
a private right of action. 	E.g., Bayadi, 2017 WL 1091946, at *6.
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Rights. 	This court will not interfere with Maryland state courts’
resolution of these issues.
Rather 	than 	immediately 	effectuate 	the 	remand 	of 	the 	seven
state counts, however, the court will delay remand for thirty days
to 	give 	the 	parties 	an 	opportunity 	to 	move 	to 	stay 	the 	remand
pending 	appeal. 	Forty 	Six 	Hundred 	LLC 	v. 	Cadence 	Educ., 	LLC, 	15
F.4th 70, 81 (1st Cir. 2021) (explaining that when a district court
decides 	to 	remand 	“in 	a 	removed 	case 	and 	the 	remand 	order 	is
appealable, 	the 	district 	court 	may 	wish 	to 	avoid 	immediately
certifying 	the 	remand 	order 	and 	returning 	the 	case 	file 	to 	the
state court until it believes” the risk of needing to retrieve the
state 	claims 	due 	to 	reversal 	on 	appeal 	“has 	abated”); 	Carlsbad
Tech., 	Inc. 	v. 	HIF 	Bio, 	Inc., 	556 	U.S. 	635, 	641 	(2009) 	(holding
that 	a 	remand 	order 	is 	appealable 	if 	it 	is 	based 	on 	the 	court’s
decision to decline to exercise supplemental jurisdiction).
IV. 	Conclusion
For 	the 	foregoing 	reasons, 	Defendants’ 	motions 	to 	seal 	will
be granted in part and denied in part, and their motion to dismiss
will 	be 	granted 	in 	part 	as 	to 	the 	federal 	claims. 	The 	state 	law
claims 	will 	be 	remanded 	to 	state 	court. 	A 	separate 	order 	will
follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
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