F I L E D

United States Court of Appeals

Tenth Circuit

JAN 29 1998

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ANNIE SWANSON, a minor child,

by and through her parents and next

friends, DENNIS SWANSON and

LUCY SWANSON, 

Plaintiffs-Appellants, 

v.

GUTHRIE INDEPENDENT SCHOOL

DISTRICT NO. I-L; MELVIN

SCHEIHING, President; KARL

KINNEY, 1st Vice President; RICK

DAVIS, 2nd Vice President; HUGH

PLAGG, Member; EVANS G. FOWLER,

Member; ROBERT HUDSON, Member;

JANNA PIERSON, Member;

DON BOWMAN, Superintendent; J. E.

HANEY, Principal,

Defendants-Appellees. 

No. 96-6354

 

 

Appeal from the United States District Court

for the Western District of Oklahoma 

 (D.C. No. CIV-95-596M)

Douglas Laycock, University of Texas School of Law, Austin, Texas (A. Daniel Woska,

Conner L. Helms of Woska Helms Dowd Underwood & Hasbrook, Oklahoma City,

Oklahoma; Todd A. McKinnis of McAlister, McAlister & Burnett, P.C., Edmond
1 The Honorable Bruce D. Black, United States District Judge for the District of

New Mexico, sitting by designation.

2Annie had also claimed that Defendants’ actions violated the Religious Freedom

Restoration Act. However, as she acknowledged at oral argument, the Supreme Court has

declared that statute unconstitutional. City of Boerne v. Flores, 117 S.Ct. 2157 (1997).

2

Oklahoma; Kelly Shakelford of The Rutherford Institute, Dallas, Texas, were on the

briefs), for Plaintiffs-Appellants.

Jerry A. Richardson (Frederick J. Hegenbart with him on the brief) of Rosenstein, Fist &

Ringold, Tulsa, Oklahoma, for Defendants-Appellees.

Walter A. Smith, Jr., Steven J. Routh, and Barbara J. de La Viez of Hogan & Hartson,

L.L.P., Washington, D.C.; Kathryn W. Bradley of Hogan & Hartson, L.L.P., Denver,

Colorado, filed an amici curiae brief. 

_______________________________

Before BRORBY and McWILLIAMS, Circuit Judges, and BLACK, District Judge.1

_______________________________

BLACK, District Judge.

______________________________

Annie Swanson and her parents as next friends (Plaintiffs) appeal the district

court’s grant of summary judgment to Defendants. Annie had filed suit claiming that

Defendants’ refusal to allow her to attend public school on a part-time basis violated her

rights under the Free Exercise Clause of the United States Constitution, her parents’

constitutional right to direct her education, and her rights under Oklahoma state law.2 We

affirm the judgment of the district court.
3

FACTS

Annie has been home-schooled by her parents since she started school. The

purpose behind the home-schooling is religious–Annie’s parents wish to be able to teach

her Christian principles that are excluded from the public-school curriculum. When

Annie reached the seventh grade, her parents decided that she would benefit by taking a

few classes at the public school. Annie’s parents believed the public school’s ability to

teach certain classes (particularly foreign-language classes, vocal music, and some

science classes) was superior to their instructional capability in those areas, and that

attending some classes at the public school would better prepare Annie for college.

Annie’s parents spoke to the then-superintendent of schools and received

permission for her to attend two seventh-grade classes for the last nine weeks of the

school year. She attended those classes, performed very well in them, and caused no

disruption to the school system. Annie then pre-registered for two classes for the eighth

grade. Before she began school, however, Defendant Bowman was hired as the new

superintendent. He refused to allow Annie to attend the eighth grade on a part-time basis,

and told her parents they would need permission from the school board. He also made

some statements that Mrs. Swanson interpreted as criticism of Christian home-schoolers. 

In August 1994 the school board held a regularly-scheduled meeting at which the

Swansons were allowed to present their position. The board deferred a decision on

adopting a policy concerning part-time attendance, but did vote to require Annie to
4

register as a full-time student if she wished to attend eighth-grade classes before such a 

policy could be adopted. At the September meeting of the school board the board voted

to adopt the following part-time-attendance policy:

“It is the policy of the Guthrie Board of Education that all

 students enrolling in Guthrie Public Schools must do so on a fulltime basis. Full-time basis shall be defined as attending classes for

the full instructional day within the public school system or in conjunction with another state accredited institution such as vocationaltechnical school or a college or university for concurrent enrollment.

The only exceptions to this policy shall be for fifth-year seniors and

special education students whose IEP’s require variations of

student schedules.”

Following this meeting, attorneys representing Annie and her parents wrote to the

school board threatening a lawsuit and requesting an opportunity to address the board. A

special meeting of the board was held in October 1994, at which the board reiterated its

previously-adopted policy. The board also added the following sentence to the policy: “In

the event the State Department of Education advises us that part-time students can be

counted for state aid purposes, the Board will reconsider this policy.” The board’s

president also made a public statement concerning the issue, noting the board’s respect

for the right of parents to home-school their children, and indicating that the basis for the

board’s decision was simply the fact that part-time students cannot be counted for state

financial-aid purposes. The board feared that Annie’s request, if granted, could set a

precedent allowing other home-schooled children as well as private-school students to use

the public school’s facilities on an as-wanted basis, without a corresponding increase in
5

state financial aid. Pursuant to the board’s policy, Annie was not allowed to take classes

of her choice from the public school during the 1994-95 school year, or to otherwise

attend the public school on a part-time basis.

In April 1995, Plaintiffs filed the instant lawsuit, alleging various constitutional

violations and a state-law claim. Following a motion to dismiss by Defendants, a motion

for summary judgment by Plaintiffs, and a hearing on Plaintiffs’ motion for a preliminary

injunction, the district court granted summary judgment for Defendants. 

STANDARD OF REVIEW

Plaintiffs do not claim there are any material facts in dispute. Instead, they

maintain that the trial court should have granted their own motion for summary judgment

as a matter of law. “We review the grant of summary judgment de novo, applying the

same standard applicable in the district court.” Meyerhoff v. Michelin Tire Corp., 70

F.3d 1175, 1178 (10th Cir. 1995). When there is no genuine issue of material fact and the

moving party is entitled to judgment as a matter of law, summary judgment is appropriate. 

Id. Accepting the facts of this case as presented, therefore, we must decide whether

Annie or her parents have shown that they, rather than Defendants, were entitled to

summary judgment on one or more of their claims. 
6

ANALYSIS

Free-Exercise Claim

The question at issue in this case is the validity of the rule or regulation enacted by

the school board, as it impacts on Plaintiffs’ right to the free exercise of their religion. 

Plaintiffs maintain that the part-time-attendance policy is a burden, albeit indirect, on the

full and free exercise of their religious beliefs concerning the way in which children

should be raised and educated. Therefore, they argue, the policy should be subjected to a

type of strict scrutiny, requiring that it be justified by a compelling governmental interest

and that it be narrowly tailored to meet that interest. See Sherbert v. Verner, 374 U.S.

398, 402-03 (1963) (applying this test to a denial of unemployment compensation benefits

that was based on the government’s refusal to recognize religious beliefs as a valid reason

for terminating one’s employment). Defendants, on the other hand, contend that the

policy is a neutral policy of general applicability that need not satisfy the compellinggovernmental-interest requirement. In the alternative, they claim there were compelling

governmental interests at stake in the adoption of the part-time-attendance policy.

As a general proposition, a law (or policy) that is neutral and of general

applicability need not be justified by a compelling governmental interest even if that law

incidentally burdens a particular religious practice or belief. Church of the Lukumi

Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993); U.S. v. Meyers, 95 F.3d

1475, 1481 (10th Cir. 1996), cert. denied, ___ S.Ct. ___, 1997 WL 696625 (1997). On its
7

face, the policy enacted by the school board in this case is neutral and of general

application–it applies to all persons who might wish to attend public school on a part-time

basis, and prohibits such part-time attendance (with certain specific exceptions, such as

fifth-year seniors and special-education students). It applies to students who are homeschooled for secular reasons as well as those home-schooled for religious reasons, and it

applies to students attending private schools whether or not those private schools are

religious or secular in orientation. 

In their briefs on appeal, Plaintiffs have argued that the policy is not actually

neutral and instead was aimed specifically at Annie, for purposes of discriminating

against Christian home-schoolers. If that were the case, the general proposition discussed

in Lukumi Babalu Aye would not apply and Defendants would have to justify the policy

with a compelling governmental interest and a showing that the policy was narrowly

tailored to further that interest. Lukumi Babalu Aye, 508 U.S. at 531-32. However, as

Defendants point out, Plaintiffs never made this argument below. That is, Plaintiffs did

not attempt to show that the seemingly neutral policy was in fact created for a

discriminatory purpose, or that the exceptions to the policy were so pervasive that the

policy actually applied only to Christian home-schoolers. Cf. id., 508 U.S. at 534-42

(although city’s ordinance appeared neutral on its face, circumstances surrounding its

enactment, statements of city councilors, and fact that exceptions to ordinance meant

burden of ordinance fell only on particular religious practice established that ordinance
3We note that Plaintiffs do not appear to have made a sufficient evidentiary

showing below to raise an issue of fact concerning the neutrality of the part-timeattendance policy. It is undisputed that the only exceptions to the policy constitute

categories of students that are counted for state-aid purposes; that is, if the state counts a

part-time student, such as a student enrolled in a vocational-technical program as well as

the high school, as a full-time student for purposes of doling out educational funds, the

policy grants an exception to the full-time-attendance requirement. This is not

discrimination on the basis of religion, but on the basis of funding. In addition, it is

undisputed that no school board member made any derogatory comments about Christian

home-schoolers or home-schoolers of any kind, unlike the city councilors in Lukumi

Babalu Aye. Finally, the fact that Annie is the only student who has to this point

requested the privilege of attending public school part-time does not mean that the policy

was aimed solely at her. The school board expressly discussed the fact that the problem

was the precedent that would be set, not that Annie’s attendance alone would cause

difficulties. Perhaps because the neutrality issue was not raised below, Plaintiffs failed to

make any evidentiary showing that the adoption of the policy was motivated by a

discriminatory motive of any kind.

8

was not in fact neutral but was aimed at suppressing that practice). Since the argument

now advanced by Plaintiffs was not made below or ruled on by the district court, we will

not address it for the first time on appeal. See Tele-Communications, Inc. v.

Commissioner of Internal Revenue, 104 F.3d 1229, 1232-33 (10th Cir. 1997) (generally,

appellate court will not consider issue raised for first time on appeal; vague, arguable

references to a point in the district court proceedings do not preserve the issue for

appeal).3

We are therefore left with the fact that the board’s policy is a neutral policy of

general applicability. Plaintiffs do not attempt to argue that the policy directly burdens

their right to free expression, nor could they. The policy does not prohibit them from

home-schooling Annie in accordance with their religious beliefs, and does not force them
9

to do anything that is contrary to those beliefs. Cf. Employment Div., Oregon Dep’t of

Human Services v. Smith, 494 U.S. 872, 877-78 (1989) (government may not regulate

religious beliefs as such, nor compel affirmation of certain beliefs, nor punish the

expression of religious doctrines, nor impose special disabilities on the basis of religious

views or religious status, but may enact laws that incidentally burden religious

expression). The board’s policy therefore does not violate traditional free-exercise

principles. See Thiry v. Carlson, 78 F.3d 1491, 1496 (10th Cir.) (law that is religionneutral and generally applicable does not violate Free Exercise Clause even if it

incidentally affects religious practice), cert. denied, 117 S.Ct. 78 (1996).

Hybrid-Rights Claim

Plaintiffs point out that parents have a constitutional right to raise and educate their

children, and that the part-time-attendance policy infringes on this right as well as on the

free-exercise right discussed above. Therefore, according to Plaintiffs, the compellinginterest/closely-tailored analysis must be applied to determine the validity of the policy. 

Plaintiffs’ argument is based on a portion of the Smith case, in which the Supreme Court

noted the difference between cases solely involving the Free Exercise Clause and those

implicating other constitutional protections, such as the parental right to direct the

education of children. 494 U.S. at 881. The Court also quoted a passage from Wisconsin

v. Yoder, 406 U.S. 205, 233 (1972), which states the proposition that when the interests

of parenthood are combined with a free exercise claim “of the nature revealed by this
4But see Kissinger v. Board of Trustees, 5 F.3d 177, 180 (6th Cir. 1993), in which

the Sixth Circuit held that the legal standard applicable to a constitutional claim would

not change simply because constitutional principles other than the Free Exercise Clause

had been implicated. 

10

record,” the government must establish more than a mere reasonable relationship between

its law and a purpose within the competency of the State. Id. at fn. 1. This more-than-areasonable-relationship requirement, it could be argued, is similar to the compellinginterest test set out in Sherbert.

4

It is difficult to delineate the exact contours of the hybrid-rights theory discussed in

Smith. As we discuss below, however, we believe that simply raising such a claim is not

a talisman that automatically leads to the application of the compelling-interest test. We

must examine the claimed infringements on the party’s claimed rights to determine

whether either the claimed rights or the claimed infringements are genuine. We will

begin with Plaintiffs’ parental-rights claim.

We have no quarrel with Plaintiffs’ assertion that Annie’s parents have a

constitutional right to direct her education, up to a point. For example, they have a right

to send her to a private school, whether that school is religious or secular. See Pierce v.

Society of Sisters, 268 U.S. 510 (1925). Numerous cases, however, have made it clear

that this constitutional right is limited in scope. Federal courts addressing the issue have

held that parents have no right to exempt their children from certain reading programs the

parents found objectionable, or from a school’s community-service requirement, or from
11

an assembly program that included sexually explicit topics. Immediato v. Rye Neck

School Dist., 73 F.3d 454 (2d Cir.), cert. denied, 117 S.Ct. 60 (1996); Brown v. Hot, Sexy

and Safer Productions, Inc., 68 F.3d 525 (1st Cir. 1995), cert. denied, 116 S.Ct. 1044

(1996); Fleischfresser v. Directors of School Dist. 200, 15 F.3d 680 (7th Cir. 1994);

Mozert v. Hawkins County Bd. of Educ., 827 F.2d 1058 (6th Cir. 1987), cert. denied, 484

U.S. 1066 (1988). Other courts have determined that home-schooled children may be

subjected to standardized testing to assess the quality of education the children are

receiving, even over the parents’ objections. Murphy v. State of Arkansas, 852 F.2d 1039

(8th Cir. 1988). In addition, states may constitutionally require that teachers at religiouslyoriented private schools be certified by the state. Fellowship Baptist Church v. Benton,

815 F.2d 485 (8th Cir. 1987). The case law in this area establishes that parents simply do

not have a constitutional right to control each and every aspect of their children’s

education and oust the state’s authority over that subject. See, e.g., Murphy, 852 F.2d at

1043; see also State v. DeLaBruere, 577 A.2d 254, 274 (Vt. 1990) (reasonable state

regulations do not infringe on right to home school); In re Charles, 504 N.E.2d 592, 599-

600 (Mass. 1987) (same).

The claimed constitutional right Plaintiffs wish to establish in this case is the right

of parents to send their children to public school on a part-time basis, and to pick and

choose which courses their children will take from the public school. Plaintiffs would

have this right override the local school board’s explicit decision to disallow such part-
12

time attendance (except where the school would receive state funding for the part-time

attendee). However, decisions as to how to allocate scarce resources, as well as what

curriculum to offer or require, are uniquely committed to the discretion of local school

authorities, as the cases cited above demonstrate. 

Plaintiffs maintain that they do not wish to alter the curriculum offered by

Defendants, and that they are therefore in a different position than the parents in other

cases who wanted to exempt their children from certain classes or requirements. We do

not accept this distinction. Plaintiffs do wish to exempt Annie from certain classes–they

simply wish to exempt her from more classes than did the parents in, for example, the

Mozert case. We see no difference of constitutional dimension between picking and

choosing one class your child will not attend, and picking and choosing three, four, or

five classes your child will not attend. The right to direct one’s child’s education does not

protect either alternative. 

The above discussion establishes that Plaintiffs have shown no colorable claim of

infringement on the constitutional right to direct a child’s education. Accordingly, we

hold that this is not a hybrid-rights case. See Brown, 68 F.3d at 539 (plaintiffs had not

stated a privacy or substantive-due-process claim, so the Smith hybrid exception did not

apply). We note that this case illustrates the difficulty of applying the Smith exception. 

See Kissinger, 5 F.3d at 180, fn. 1 (quoting Justice Souter’s concurrence in the Lukumi

Babalu Aye case, which points out the danger that the Smith exception will swallow the
5The Smith opinion does not make it clear whether it is constitutionally sufficient

for a law or policy to be neutral and of general applicability, or whether the law or policy

will still have to satisfy some lesser standard than the compelling-interest test. See

Bowen v. Roy, 476 U.S. 693, 707-08 (1986) (where there is no intent to discriminate

against a particular religion, the government’s burden will be met if the condition

required is a reasonable means of promoting a legitimate public interest). Plaintiffs have

not argued that the part-time-attendance policy does not satisfy such a reasonablerelationship test, as opposed to the more stringent compelling-interest analysis. Assuming

that the reasonable-means test applies in this case, however, it is clear that the policy is a

reasonable means of promoting a legitimate governmental interest. The policy is

designed to ensure that any student attending the public school on a part-time basis

provides a concomitant source of state financial aid, because he or she is recognized by

the state department of education as a countable unit for purposes of determining

13

Smith rule). At a minimum, however, as we stated above, it cannot be true that a plaintiff

can simply invoke the parental rights doctrine, combine it with a claimed free-exercise

right, and thereby force the government to demonstrate the presence of a compelling state

interest. Whatever the Smith hybrid-rights theory may ultimately mean, we believe that it

at least requires a colorable showing of infringement of recognized and specific

constitutional rights, rather than the mere invocation of a general right such as the right to

control the education of one’s child. Cf. Yoder, 406 U.S. at 233 (stating that heightened

scrutiny applies when one right is combined with a free exercise claim of the nature

revealed by this record, indicating that it is not sufficient simply to invoke the Free

Exercise Clause as well as another general constitutional claim to trigger the compellinginterest/narrowly-tailored-rule analysis for which Plaintiffs argue). Based on the

foregoing, we hold that Defendants were not required to show a compelling state interest

in this case, despite Plaintiffs’ attempt to invoke the hybrid-rights doctrine.5 
attendance at the public school. While Plaintiffs hold a dim view of the wisdom of the

policy, it can certainly not be denied that attempting to maximize the state funding

available on a per-student basis is a legitimate interest of Defendants, and that limiting

part-time attendance to those categories of students recognized by the policy is a

reasonable means of accomplishing that goal. See Lisa M. Lukasik, Comment, The

Latest Home Education Challenge: The Relationship Between Home Schools and Public

Schools, 74 N.C.L.R. 1913, 1967-69 (1996), for a discussion of other legitimate reasons a

school board might have for restricting part-time enrollment. 

6

In the unemployment context, the system of individualized exceptions that has

been created consists of the “good cause” standard. That is, a worker is eligible for

unemployment benefits if he or she leaves her employment for good cause, but not if he

or she simply resigns. Smith. Under the Sherbert line of cases, a person who resigns

from employment due to strongly-held religious beliefs (e.g., a Seventh-Day Adventist

who could not work on the Sabbath, or a Quaker who could not in good conscience work

on weapons of war) has established good cause for resigning to the same extent as a

14

Claim to Benefit Conferred by State

Relying on a series of Supreme Court cases decided in the unemployment context

(see, e.g., Sherbert v. Verner; Thomas v. Review Bd, Indiana Employment Security Div.,

450 U.S. 707 (1981)), Plaintiffs make the following argument: (1) they have been denied

a benefit that has been conferred on other students who are allowed to attend public

school part-time; (2) they have been denied that benefit because their religious beliefs

require that Annie be educated at home part-time; and (3) therefore, an exception must be

made to accommodate their beliefs and allow Annie to attend part-time. Sherbert and its

progeny may stand for the proposition that where a system of individualized or

particularized exceptions has been set in place, a religious reason for qualifying for such

an exception must be given as much weight as a non-religious reason. See Smith, 494

U.S. at 884; Kissinger, 5 F.3d at 179-80.6 
person who resigns due to poor health, or lack of transportation to the job site, or any

other secular reason that might prevent a person from continuing to work at a particular

job.

15

There is some doubt concerning the continued validity of the Sherbert analysis

outside the unemployment context. Smith, 494 U.S. at 883 (noting that in recent years,

the Supreme Court has abstained from applying the Sherbert test outside the

unemployment-compensation field). Even if the analysis remains applicable to a case

such as this one, however, it does not aid Plaintiffs’ position. The school board’s policy

in this case does not establish a system of individualized exceptions that give rise to the

application of a subjective test. Instead, the only recognized exceptions to the full-timeattendance requirement are strict categories of students, all of whom have one

characteristic in common--the state of Oklahoma recognizes them as students for

purposes of calculating the amount of financial aid to provide to the school district. 

Plaintiffs, and all other home-schoolers (religious or secular) who do not meet that

requirement, are ineligible for the exception. As we discussed above, there is no evidence

that the exception is in any way based on religious categorization or discrimination. In

the absence of a system of individualized exceptions to the no-part-time-attendance

policy, there is no room for a Sherbert-type argument that Plaintiffs’ religious reasons for

wanting Annie to attend public school only part-time must be given credence. 

Plaintiffs also attempt to extend the Sherbert analysis beyond the individualizedexceptions rule recognized (although not adopted) in Smith. They maintain that part-time
16

attendance is a benefit conferred by the government, and that they may not be disqualified

from receiving that benefit if they have a religious motivation for taking certain actions

(here, refusing to send Annie to public school full time) that would otherwise disqualify

them from receiving the benefit. Put simply, Plaintiffs argue (as they explicitly

acknowledged at oral argument) that if anyone is allowed to attend the public school parttime, Annie must be allowed to do so also, because her motivation for wanting to do so is

religious. According to Plaintiffs’ argument, if a governmental entity offers a benefit such

as part-time attendance under limited qualifying conditions, and a claimant’s religious

beliefs or practices prevent him or her from meeting those conditions, the benefit must be

awarded to the claimant despite the failure to meet the conditions. 

The difficulty we have with this argument is that it would elevate Plaintiffs to a

higher status than other home-schoolers who educate their children at home (or, for that

matter, in a private school) for secular rather than religious reasons. That is, the part-time

attendance policy, which at present precludes Annie and all other home-schooled or

private-schooled children from taking a few selected classes from the public school,

would be rendered inapplicable to religious home-schooling families but not to secular

home-schooling or private-schooling families. The Free Exercise Clause does not extend

so far. It is designed to prevent the government from impermissibly burdening an

individual’s free exercise of religion, not to allow an individual to exact special treatment

from the government. See Snyder v. Murray City Corp., 124 F.3d 1349, 1353 (10th Cir.
7

In fact, there is a real possibility that creating an exception for religious purposes

but not for secular purposes would run afoul of the Establishment Clause, which

complements the Free Exercise Clause by prohibiting discrimination in favor of, rather

than against, a certain religion or religions. See, e.g., Board of Educ. of Kiryas Joel

Village School Dist. v. Grumet, 512 U.S. 687, 696, 706 (1994) (proper respect for both

Free Exercise Clause and Establishment Clause requires neutrality toward religion,

favoring neither one religion over others nor religious adherents over nonadherents;

statute that singled out a particular religious sect for special treatment in school context

violated First Amendment); Parents’ Ass’n of P.S. 16 v. Quinones, 803 F.2d 1235, 1242

(2d Cir. 1986) (violation of Establishment Clause if students at a private Jewish school

allowed to attend remedial classes at public school); Americans United for Separation of

Church and State v. Porter, 485 F.Supp. 432, 444 (W.D. Mich. 1980) (after examining all

facets of dual enrollment program between public and parochial schools, court concluded

program violated Establishment Clause). 

17

1997) (quoting Justice Douglas’ concurring opinion in Sherbert: the Free Exercise Clause

“is written in terms of what the government cannot do to the individual, not in terms of

what the individual can exact from the government.”). Despite Plaintiffs’ arguments to

the contrary, what they seek in this case is special treatment not accorded other homeschooled or private-schooled students. They seek an added exception to the part-time

attendance policy, that would accommodate people who home-school for religious

reasons. Nothing in the Free Exercise Clause requires that such special treatment be

provided.7 See Bowen, 476 U.S. at 703-07 (discussing fact that no violation of right to

free exercise of religion occurs when government conditions award of benefits on

conduct that might be prohibited by some religions). 

Parental Right to Direct Education
18

In addition to arguing the parental-rights issue as a component of the hybrid-rights

claim, Plaintiffs maintain that the part-time-attendance policy violates the right to control

Annie’s education, separate and apart from the claimed free-exercise violation. For the

reasons stated in the hybrid-rights discussion, however, we hold that the parental right to

control a child’s education does not extend as far as Plaintiffs would wish. There is no

federal parental right that would force a local school board to allow parents to dictate that

their children will attend public school for only part of the school day. 

Possible State-Law Claims Not Addressed

Plaintiffs contend that Defendants should be estopped from applying the part-timeattendance policy to Annie, because she was allowed to attend the public school on a parttime basis for a portion of one semester during her seventh-grade year. This argument

was not raised below or ruled on by the district court. Therefore, we will not address it on

appeal. See Tele-Communications, Inc., supra, 104 F.3d at 1232-33.

The parties’ briefs on appeal contain some references to the Oklahoma

Constitution and to Oklahoma statutes. In the proceedings held below, the question of

Oklahoma law appears to have been raised in two contexts. First, Plaintiffs’ complaint

claimed a violation of the Oklahoma Governmental Tort Claims Act (GTCA). The

district court ruled that this claim had been confessed during the briefing process, and

Plaintiffs have not appealed that ruling. We therefore do not discuss the issue. 
19

Second, Oklahoma law was argued in the parties’ briefs below in connection with

a federal due-process argument. (App. 28-36, 107-08). Plaintiffs maintained they had a

property interest in a free public education, under Oklahoma law, and had been deprived

of that interest without due process. The district court ruled that Plaintiffs had no

property interest in a part-time free public education and dismissed the due-process claim. 

Plaintiffs have not argued the due-process issue in their briefs on appeal, and so have

abandoned it. Cf. Reazin v. Blue Cross and Blue Shield of Kansas, 899 F.2d 951, 979, fn.

43 (10th Cir.) (issue listed in docketing statement but not briefed is considered

abandoned), cert. denied, 497 U.S. 1005 (1990). 

Plaintiffs now, in their briefs on appeal, point to the Oklahoma Constitution in

support of their parental-rights claim rather than a due-process claim. They state that a

parent’s right to direct a child’s education is even broader under Oklahoma law than

under federal law. Plaintiffs do not explain, however, how the Oklahoma Constitution or

Oklahoma statutes have any application to federal law, apart from the due-process claim

that has been abandoned. They have never clearly argued an independent state-law basis

for applying Oklahoma law, other than the GTCA claim abandoned below. Given the

confused state of the pleadings concerning the position of Oklahoma law in this litigation,

as well as the fact that all federal claims are being disposed of in this opinion, we will not

address any potential claim involving Oklahoma law. Cf. Snyder, supra, 124 F.3d at 1354

(refusing to address state constitutional claim where state law on the subject was unclear
20

and all federal claims were resolved in this Court’s opinion). We express no opinion as to

any preclusive effect that might result from the district court’s holdings in this case and

Plaintiffs’ failure to clearly brief the possible state-law issues.

CONCLUSION

Plaintiffs have attempted to portray this case as one involving religious

discrimination against Christian home-schoolers. The record provided to the district court

and this court, however, indicates that it involves only financial distinctions between

certain part-time students and all home-schoolers, secular or religious, as well as privateschool students. Since this case involved only a neutral rule of general applicability, it

was sufficient for Defendants to prove a reasonable relationship between the part-timeattendance policy and a legitimate purpose of the school board. Plaintiffs have not argued

that Defendants failed to meet this low threshold, and it is clear that Defendants have

satisfied it. Therefore, the district court’s decision dismissing all of Plaintiffs’ claims is

AFFIRMED.