Chung v. Washington Interscholastic Activities Association

Opinion

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 CHUNG, ET AL., 9 Plaintiffs, CASE NO. C19-5730-RSM 10 v. ORDER DENYING PLAINTIFFS’ MOTION FOR SUMMARY 11 WASHINGTON INTERSCHOLASTIC JUDGMENT ACTIVITIES ASSOCIATION, 12 Defendant. 13

14 I. INTRODUCTION 15 This matter comes before the Court on Plaintiffs’ Motion for Summary Judgment. Dkt. 16 #53. Defendant Washington Interscholastic Activities Association (“WIAA”) opposes Plaintiffs’ 17 Motion. Dkt. #57.1 The Court has determined it can rule on this Motion without oral argument.2 18

1 The Court strongly disfavors footnoted legal citations as they “serve as an end-run around page limits 19 and formatting requirements dictated by the Local Rules” and make it more challenging for the Court to review the brief. Rosario v. Starbucks Corp., No. C16-01951RAJ, 2017 WL 4122569, at *1 (W.D. 20 Wash. Sept. 18, 2017); see Local Rules W.D. Wash. LCR 7(e). The Court strongly discourages Defendant from footnoting its legal citations in future submissions. 21 2 Plaintiffs request oral argument. However, “[w]hen a party has [had] an adequate opportunity to provide the trial court with evidence and a memorandum of law, there is no prejudice [in a refusal to grant 22 oral argument].” Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998) (internal quotations omitted). Here, the issues have been thoroughly briefed by the parties and oral argument would not be of assistance 23 to the Court. See also LCR 7(b)(4). 1 Having considered Plaintiffs’ Motion, WIAA’s Response, Plaintiffs’ Reply, the declarations and 2 exhibits attached thereto, and the remainder of the record, Plaintiffs’ Motion is DENIED. 3 II. BACKGROUND 4 Joelle Chung and her brothers J.N.C. and J.D.C., and their teammates A.H.B. and A.A.B., 5 bring this action against the WIAA under the Free Exercise Clause and Equal Protection Clause

6 of the U.S. Constitution, the Washington State Constitution, and RCW § 28A.600.200 for failure 7 to accommodate Sabbath observers in its scheduling and administration of high school tennis state 8 championship tournaments. Dkt. #34. Plaintiffs are current and former students at William F. 9 West High School (“W.F. West”) and Seventh-day Adventists who observe the Sabbath each 10 week. Id. at ¶¶ 1-11. Observing the Sabbath requires that Plaintiffs rest from work and refrain 11 from competitive sports from sundown Friday until sundown Saturday every week. 12 The WIAA is an organization authorized under Washington state law to schedule and 13 oversee interscholastic sports and activities in the state. Dkt. #59 at ¶ 3. Through its thirteen- 14 member Executive Board and Representative Assembly, the WIAA establishes and interprets rules

15 for interscholastic sports in Washington, including the sites, dates and rules for postseason play 16 for WIAA member schools. Id. Before the postseason state championship, competitions are 17 organized by individual leagues and schools around the state. In Washington, over 400 public and 18 private high schools are members of the WIAA. Id. at ¶ 4. 19 Each tennis season, the top performers from the boys’ and girls’ tennis teams at W.F. West 20 are selected to compete in postseason competition culminating in a state championship tournament. 21 Tennis postseason includes sub-district, district, and finally, state. Dkt. #34 at ¶¶ 44-45. The top 22 three girls, boys, and doubles teams from W.F. West are selected to advance to state. Id. at ¶ 46. 23 Under former WIAA Rule 22.2.5, each member school certified that for postseason competition, 1 “barring injury, illness, or unforeseen events, the team or individuals representing the school will 2 participate in every level of competition through the completion of the state championship event.” 3 Dkt. #54-24 at 49. In turn, WIAA Rule 22.2.6 provides that “[a]ny withdrawal and intentional 4 forfeiture shall be considered a violation of WIAA rules and regulations, and shall be subject to 5 penalties as determined by the WIAA Executive Board.” Id.

6 During the 2017-2018 season, Joelle was selected for postseason competition. Dkt. #5 at 7 ¶ 11. After advancing from sub-districts, she had to withdraw from the district tournament because 8 it was scheduled on Saturday. For the 2018-2019 season, because Joelle expected to qualify again 9 for postseason, she and the Chung family preemptively asked WIAA for an accommodation. 10 Specifically, the Chungs asked that WIAA “change rule 22.2.5 to allow religious observances as 11 a valid reason to drop out of the tournament” so Sabbatarians “can play as far as they are able until 12 Sabbath becomes an issue.” Dkt. #54-1 at 10. Additionally, they asked that WIAA “move the 2A 13 state tennis tournament” to weekdays. Id. Joelle qualified for postseason competition. However, 14 while the sub-district and district competitions were scheduled outside the Sabbath, the state

15 tournament was scheduled for Friday and Saturday. Consequently, if Joelle advanced to the state 16 championship, she would not have played the final day. 17 On April 23, 2019, WIAA rejected Joelle’s request to preemptively withdraw from the 18 state tournament in the event that she advanced to the final round. Dkt. #54-1 at 18. WIAA stated 19 that withdrawal based on an anticipated Sabbath conflict would “violate [] specific WIAA rules 20 and cannot be granted.” Id. WIAA explained that withdrawal due to Sabbath conflict would be 21 (1) unfair to athletes who would have qualified but for the withdrawing athlete, and (2) create a 22 competitive advantage for the athlete scheduled to play the athlete who forfeited. Id. 23 On August 6, 2019, the Chungs filed this lawsuit on behalf of Joelle and J.N.C. seeking 1 compensatory and nominal damages for WIAA’s failure to accommodate Sabbath observers in 2 scheduling postseason tournaments and in their application of Rules 22.2.5 and 22.2.6 regarding 3 withdrawal from postseason play. Dkt. #1. Plaintiffs also sought declaratory and injunctive relief 4 requiring WIAA to permit religious withdrawals under Rule 22.2.5 and to schedule the 2A tennis 5 tournament to accommodate Sabbath observance.

6 On August 27, 2019, WIAA amended Rule 22.2.5 to permit withdrawals for “religious 7 observance.” Dkt. #27 at ¶ 5. Plaintiffs filed an amended complaint on December 20, 2019, adding 8 minor Plaintiffs J.D.C., A.A.B., and A.H.B. Dkt. #34. The amended complaint claims that WIAA 9 violated Plaintiffs’ free exercise and equal protection rights under the U.S. Constitution for (1) 10 scheduling the 2A tennis tournament on Plaintiffs’ Sabbath; and (2) prohibiting Joelle from 11 withdrawing from postseason play for religious reasons under Rules 22.2.5 and 22.2.6. It also 12 claims violations of art. 1 § 11 of the Washington State Constitution and RCW § 28A.600.200(1). 13 Plaintiffs seek an award of compensatory damages and $100 in nominal damages to Joelle, a 14 declaration of Plaintiffs’ rights under the First and Fourteenth Amendments, the Washington

15 Constitution, and RCW § 28A.600.200, and a permanent injunction barring WIAA from 16 scheduling any 2A Boys State Tennis matches on Saturday for which any of the minor Plaintiffs 17 qualify and barring WIAA from enforcing its rules to prohibit Plaintiffs’ withdrawal from 18 postseason competition due to religious observance. 19 On September 29, 2020, Plaintiffs filed the instant Motion for Summary Judgment on their 20 claims under the Free Exercise Clause, the Washington State Constitution, and RCW § 21 28A.600.200. Dkt. #53. Plaintiffs’ Motion also contains a cursory reference to their Equal 22 Protection claims. See id. at 20, n.6. WIAA opposes Plaintiffs’ motion in its entirety. Dkt. #57. 23 // 1 III. DISCUSSION 2 A. Legal Standard 3 Summary judgment is appropriate where “the movant shows that there is no genuine 4 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. 5 R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, (1986). Material facts are

6 those which might affect the outcome of the suit under governing law. Id. at 248. In ruling on 7 summary judgment, a court does not weigh evidence to determine the truth of the matter, but 8 “only determine[s] whether there is a genuine issue for trial.” Crane v. Conoco, Inc., 41 F.3d 9 547, 549 (9th Cir. 1994) (citing Federal Deposit Ins. Corp. v. O’Melveny & Meyers, 969 F.2d 10 744, 747 (9th Cir. 1992)). 11 On a motion for summary judgment, the court views the evidence and draws inferences 12 in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255; Sullivan v. U.S. 13 Dep’t of the Navy, 365 F.3d 827, 832 (9th Cir. 2004). However, the non-moving party must make 14 a “sufficient showing on an essential element of her case with respect to which she has the burden

15 of proof” to survive summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 16 Where the non-moving party fails to properly support an assertion of fact or fails to properly 17 address the moving party’s assertions of fact, the Court will accept the fact as undisputed. Fed. 18 R. Civ. P. 56(e). As such, the Court relies “on the nonmoving party to identify with reasonable 19 particularity the evidence that precludes summary judgment.” Keenan v. Allan, 91 F.3d 1275, 20 1278–79 (9th Cir. 1996) (quotation marks and citations omitted). The Court need not “comb 21 through the record to find some reason to deny a motion for summary judgment.” Carmen v. San 22 Francisco Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001). 23 // 1 B. Standing for Minor Plaintiffs 2 As a threshold issue, WIAA argues that the minor Plaintiffs lack standing to challenge 3 WIAA’s future scheduling of Saturday tournaments. Dkt. #57 at 12. WIAA contends that none 4 of the minor Plaintiffs have qualified for a state tournament, and since it is speculative to assert 5 that they will qualify, their claims “rest[] upon contingent future events that may not occur as

6 anticipated, or indeed may not occur at all.” Id. (quoting A Woman’s Friend Pregnancy Resource 7 Clinic v. Harris, 153 F. Supp. 3d 1168, 1188 (E.D. Cal. 2015)) (internal citations omitted). 8 Furthermore, WIAA argues that Plaintiff J.N.C. previously claimed he would play in a Saturday 9 match if he advanced to state. Dkt. #57 at 12. Because minor Plaintiffs fail to satisfy the injury- 10 in-fact prong due to the speculative nature of their injury, the Court need not reach WIAA’s 11 arguments regarding J.N.C.’s previous statements. 12 Where a summary judgment motion is based on standing, a plaintiff must make “a factual 13 showing of perceptible harm.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 566 (1992). In a 14 challenge to standing, the party seeking to invoke federal jurisdiction bears the burden of showing

15 that jurisdiction is proper. See Unigard Ins. Co. v. Dept. of Treasury, 997 F. Supp. 1339, 1341 16 (S.D. Cal. 1997) (citing Thornhill Publishing Co. v. Gen. Tel. & Electronics Corp., 594 F.2d 730 17 (9th Cir. 1979)). For the reasons set forth below, the Court finds that Plaintiffs have failed to 18 meet their burden to show that minor Plaintiffs have standing to pursue injunctive relief. 19 Pursuant to Article III of the U.S. Constitution, federal courts are courts of limited 20 jurisdiction, hearing only live “cases” and “controversies.” Lujan v. Defenders of Wildlife, 504 21 U.S. 555, 559 (1992); U.S. Const. art. III, § 2. To satisfy the case-or-controversy requirement, 22 the plaintiff must establish “(1) [A]n ‘injury in fact’ that is (a) concrete and particularized and (b) 23 actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the 1 challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the 2 injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. 3 Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000). Furthermore, “a plaintiff must demonstrate 4 standing separately for each form of relief sought.” Id. at 185 (citing City of Los Angeles v. Lyons, 5 461 U.S. 95, 109 (1983)).

6 Minor Plaintiffs seek prospective injunctive relief in the form of rescheduling the state 7 tournament so that no play takes place between Friday sundown and Saturday sundown, and 8 enjoining WIAA from enforcing its rules to prohibit Plaintiffs from withdrawing from postseason 9 competition due to religious observance. Dkt. #34 at 25. Plaintiffs argue that they need not prove 10 they will qualify for state given that their injury in fact is “the inability to compete on an equal 11 footing” from the start. Dkt. #77 at 3-4 (citing Trinity Lutheran Church of Columbia, Inc. v. 12 Comer, 137 S. Ct. 2012, 2022 (2017)) (quoting Ne. Fla. Chapter, Associated Gen. Contractors of 13 Am. v. Jacksonville, 508 U.S. 656, 666 (1993)). The Court finds these cases inapplicable to the 14 present facts. Trinity Lutheran addressed a state policy excluding religious organizations from

15 participating in a state-run program that offered reimbursement grants to organizations for certain 16 playground renovations. Id. The Supreme Court concluded that the injury in fact was not the 17 denial of the grant “but rather the refusal to allow the Church—solely because it is a church—to 18 compete with secular organizations for a grant.” Id. (citing Ne. Fla. Chapter, Associated Gen. 19 Contractors of Am. v. Jacksonville, 508 U.S. 656, 666 (1993)). 20 Here, in contrast, minor Plaintiffs are not barred from participating in competition 21 altogether. Rather, the WIAA’s amendments to Rules 22.2.5 and 22.2.6, which added “religious 22 observance” to the list of reasons for players to withdraw from postseason play, allow minor 23 Plaintiffs to compete until a scheduled tournament conflicts with their Sabbath observance. Dkt. 1 #34 at ¶ 97. For the 2020-21 and 2021-22 postseason schedules, this conflict would only occur 2 if Plaintiffs were to reach the state championship tournament. Id. at ¶ 97. Consequently, the 3 injury inflicted by WIAA’s scheduling policy—barring Plaintiffs from competing with players 4 who do not observe the Sabbath—is conditioned on minor Plaintiffs reaching the state 5 championship. Plaintiffs are therefore only barred from competing “on equal footing” with non-

6 Sabbath observing players if they advance to state. Cf. Trinity Lutheran, 137 S. Ct. at 2022. For 7 that reason, minor Plaintiffs’ likelihood of reaching the state championship event is central to the 8 standing inquiry. 9 Plaintiffs also argue that they need only show a “reasonable probability” that WIAA’s 10 action will harm the minor students’ concrete interests. Dkt. #77 at 4 (citing Navajo Nation v. 11 Dep’t of the Interior, 876 F.3d 1144, 1161 (9th Cir. 2017). However, the “less demanding” 12 standard for injury-in-fact set forth in Navajo Nation applies to injury from procedural harm, 13 meaning the injury inflicted by an administrative agency as a result of failing to follow their own 14 procedural rules. Navajo Nation, 876 F.3d 1144, 1161 (9th Cir. 2017) (quoting Hall v. Norton,

15 266 F.3d 969, 976 (9th Cir. 2001)). This standard is more relaxed than the test for injury-in-fact 16 for alleged substantive injuries. See id. (“Where plaintiffs allege a ‘procedural injury’—that is, 17 that the government’s violation of a procedural requirement could impair some separate interest 18 of the plaintiffs’—the ‘normal standards for . . . [the] immediacy’ of injury are relaxed.”) (quoting 19 Lujan v. Defs. Of Wildlife, 504 U.S. 555, 572 n.7 (1992)). Here, minor Plaintiffs are not alleging 20 a procedural injury inflicted by WIAA. Rather, they claim that WIAA’s scheduling policy inflicts 21 substantive harm by preventing them from competing in the state championship tournament. For 22 that reason, to have standing to bring their claims, Plaintiffs must demonstrate that their injury is 23 1 “actual or imminent, not conjectural or hypothetical.” Friends of the Earth, Inc., 528 U.S. at 180– 2 81 (2000). 3 The Court finds that minor Plaintiffs have failed to meet this more exacting standard. It 4 cannot conclude from the record that minor Plaintiffs’ injury, based on WIAA’s scheduling of 5 future state championships on the Sabbath, is actual or imminent as opposed to merely

6 hypothetical. Plaintiffs rely exclusively on statements from Plaintiffs’ coach that W.F. West’s 7 team is likely to qualify for postseason competition in the future. See Dkt. #54-15 at 109-:11- 8 113:18. (Stating that W.F. West’s team for the 2020-21 season is “the best [he’s] ever had” in 47 9 years of coaching, he is “sure” Plaintiffs “will qualify for the postseason,” that J.N.C. is “among 10 the favorites of making it to state,” and that A.H.B. is “talented” enough to do so even in this his 11 freshman year). While the coach speaks optimistically about his players, particularly A.H.B. and 12 J.N.C., his complete testimony does not convey any level of certainty regarding their likelihood 13 of advancing to state. See id. at 111:10-15 (“I would anticipate that A.H.B. and his partner will 14 be undefeated . . . [a]nd I think they have a very good shot of going to district and an outside

15 chance of making it to state, an outside chance, maybe quite a ways outside but still a chance.”) 16 (emphasis added). When asked whether J.D.C. would qualify for postseason, the coach stated, 17 “[A] lot for J.D.C. will be where his head is.” Id. at 113:4-8. The Court cannot conclude that 18 these statements, on their own, are sufficient to demonstrate minor Plaintiffs’ likelihood of 19 qualifying for state such that they face actual or imminent injury from WIAA’s scheduling 20 decisions regarding the state tournament. 21 In addition to the speculative nature of whether minor Plaintiffs will advance to state, the 22 cancellations and postponements of sports competitions caused by the COVID-19 pandemic 23 inject additional uncertainty into the injury-in-fact inquiry. Indeed, WIAA rescheduled the 2021 1 state tournament with “no indication that [it] will be rescheduled.” Dkt. #79 at 2. WIAA instead 2 paired athletic districts into regions with their own culminating events. Dkt. #79-1 at ¶¶ 3-4. 3 While Plaintiffs insist that relief “remains necessary for the remaining seasons of Plaintiffs’ 4 careers,” Dkt. #79 at 3, the Court finds that the uncertainty that minor Plaintiffs will qualify in 5 future seasons, magnified by the uncertainty of whether state tournaments will be held in the same

6 format due to the ongoing COVID-19 crisis, make their alleged injury merely speculative as 7 opposed to actual or imminent. 8 Having concluded that the minor Plaintiffs lack standing, the Court now turns to whether 9 WIAA’s rules as applied to Joelle Chung—the scheduling of tournaments on a Saturday and 10 application of Rules 22.2.5 and 22.2.6—violated her rights under the Free Exercise clause. The 11 Court will address each claim in turn. 12 C. Scheduling Tournaments on a Saturday 13 The Free Exercise Clause of the First Amendment provides that “Congress shall make no 14 law respecting an establishment of religion, or prohibiting the free exercise thereof.” U.S. Const.,

15 amend. I. (emphasis added). The Free Exercise Clause is made applicable to States through the 16 Fourteenth Amendment. Cantwell v. State of Conn., 310 U.S. 296, 303 (1940). As the U.S. 17 Supreme Court affirmed in Church of Lukumi Babalu Aye, Inc. v. City of Hialeah (“Lukumi ”), 18 508 U.S. 520, 531 (1993), a neutral law of general application need not be supported by a 19 compelling government interest even when “the law has the incidental effect of burdening a 20 particular religious practice.” Such laws need only survive rational basis review. Miller v. Reed, 21 176 F.3d 1202, 1206 (9th Cir. 1999). For laws that are not neutral or not generally applicable, 22 the more exacting standard of strict scrutiny applies. See Lukumi, 508 U.S. at 531–32 (“A law 23 1 failing to satisfy these requirements must be justified by a compelling governmental interest and 2 must be narrowly tailored to advance that interest.”). 3 i. Standard of Review 4 The Court first addresses the question of whether WIAA’s scheduling of the 2A tennis 5 tournament on the Sabbath is subject to rational basis or strict scrutiny review. The tests for

6 neutrality and general applicability “are interrelated, and . . . failure to satisfy one requirement is 7 a likely indication that the other has not been satisfied.” Stormans, Inc. v. Wiesman, 794 F.3d 8 1064, 1076 (9th Cir. 2015) (quoting Lukumi, 508 U.S. at 531) (internal quotations omitted). When 9 assessing whether a rule is neutral and generally applicable, courts “must consider each criterion 10 separately so as to evaluate the text of the challenged law as well as the ‘effect . . . in its real 11 operation.’” Id. (quoting Lukumi, 508 U.S. at 535). Whether a law is neutral and generally 12 applicable is a mixed question of law and fact. Stormans, Inc. v. Selecky, 854 F. Supp. 2d 925, 13 966 (W.D. Wash. 2012), rev’d on other grounds, Stormans, Inc. v. Wiesman, 794 F.3d 1064 (9th 14 Cir. 2015).

15 A law is not neutral if its object “is to infringe upon or restrict practices because of their 16 religious motivation . . . .” Id. (quoting Lukumi, 508 U.S. at 533). “A law lacks facial neutrality 17 if it refers to a religious practice without a secular meaning discernable from the language or 18 context.” Lukumi, 508 U.S. at 533. Here, WIAA’s decision to schedule the state tournament on 19 Saturday makes no reference to any religious practice, conduct, belief or motivation. For that 20 reason, the WIAA’s scheduling decision is facially neutral. Wiesman, 794 F.3d at 1076. 21 However, the question remains as to whether WIAA’s scheduling policy is operationally neutral, 22 meaning it operates in a way that burdened Joelle’s ability to freely observe the Sabbath. 23 1 Plaintiffs argue that WIAA’s decision to schedule the 2A tennis tournament on the 2 Sabbath is not neutral or generally applicable because it was undertaken “under a system of 3 ‘individualized governmental assessments.’” Dkt. #53 at 13 (quoting Emp’t Div. v. Smith, 494 4 U.S. 872, 884 (1990)). The “individualized exemptions” doctrine invoked by Plaintiffs was 5 developed in a series of cases addressing the eligibility of persons for unemployment benefits

6 should they fail to accept available employment “without good cause.” See Sherbert v. Verner, 7 374 U.S. 398, 402–10 (1963) (finding denial of benefits unconstitutional where state determined 8 that claimant’s religiously-motivated refusal to work on Saturday was “without good cause”); 9 Hobbie v. Unemp’t Appeals Comm’n, 480 U.S. 136, 140–46 (1987) (same); Thomas v. Review 10 Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 717–18 (1981) (finding denial of unemployment 11 benefits unconstitutional where state determined that claimant’s voluntary, religiously-motivated 12 termination of employment in armaments production was “without good cause”). Under Sherbert 13 and its progeny, the Supreme Court determined that “an open-ended, purely discretionary 14 standard like ‘without good cause’ easily could allow discrimination against religious practices

15 or beliefs.’” Wiesman, 794 F.3d at 1081 (citing Sherbert, 374 U.S. at 406); see also Lukumi, 508 16 U.S. at 537–38. 17 However, since the Sherbert line of cases, the Supreme Court has limited the 18 individualized exemption doctrine. Id. In Smith, it refused to extend its reasoning under Sherbert 19 to a criminal prohibition on the use of peyote that could disqualify someone from receiving 20 unemployment benefits. See 494 U.S. at 882–85 (finding that reasoning of Sherbert, Thomas, 21 and Hobbie had “nothing to do with an across-the-board criminal prohibition on a particular form 22 of conduct”). It explained that the individualized exemption doctrine was “developed in a context 23 1 that lent itself to individualized governmental assessment of the reasons for the relevant conduct.” 2 Id. at 884. 3 Here, Plaintiffs identify WIAA’s handbook as evidence of WIAA’s “unfettered and purely 4 discretionary authority” to schedule tournaments on Saturday. The handbook states that WIAA 5 is charged with establishing a yearly calendar of events “including the beginning and ending dates

6 for each sport or activity season” and for determining “allocations, management, sites, dates, 7 formats, schedules and rules and regulations for Regional and State events[.]” Dkt. #54-21 at 15. 8 Plaintiffs argue that WIAA’s broad discretion is evidenced by the fact that the handbook provides 9 no “particularized or objective criteria” by which it decides when to schedule postseason 10 competition. Dkt. #53 at 16. 11 The Court finds that WIAA has raised a material dispute of fact as to whether its 12 scheduling policy amounts to a system of individualized exemptions such that strict scrutiny must 13 apply. First, although the criteria are not set forth in the handbook, WIAA asserts that several 14 “particularized, objective criteria” govern its scheduling decisions for postseason competition: (1)

15 minimizing the amount of time students, teachers, coaches, and athletic directors are out of the 16 classroom; (2) reducing school expenses associated with the event such as the cost for substitute 17 teachers and transportation; (3) increasing the opportunity for students, friends and community 18 supporters to attend the events; (4) increasing revenue for due to higher ticket sale prices on 19 Fridays and Saturdays; (5) increasing the ability to hire officials who have day jobs; (6) easily 20 obtaining competition venues, which are more accessible on the weekends for high school venues; 21 and (7) maintaining the “tournament atmosphere” for the event by maximizing audience 22 attendance. Dkt. #58 at ¶ 23; Dkt. #60 at ¶ 7. Guided by these criteria, WIAA typically schedules 23 its single-day tournaments on Saturday and its two-day tournaments on Friday and Saturday. Dkt. 1 #59 at ¶ 5. While Plaintiffs dismiss these reasons as “post hoc justifications,” Dkt. #77 at 6, the 2 question of whether WIAA developed its scheduling policy around these criteria is a question of 3 fact reserved for the jury. 4 Plaintiffs also argue that the criteria are dubious given that no competitions are scheduled 5 for Sunday, despite WIAA’s stated goal of reducing missed school time and enabling more friends

6 and family to attend portions of the competition. Dkt. #53 at 16. However, WIAA explains that 7 its policy of not scheduling competition on Sunday serves a purely secular purpose: Sunday is 8 reserved as a travel-back day, considering the possibility of hazardous road conditions or 9 long-distance travel through mountain passes, and may also serve as a makeup day if competition 10 is postponed by bad weather. Dkt. #57 at ¶¶ 5, 18. The Court finds WIAA’s explanation sufficient 11 to raise a material dispute of fact on this point. 12 Plaintiffs further argue that the offered criteria are suspicious given that more than a dozen 13 state tournaments were not scheduled for Saturday competition. Dkt. #53 at 10. However, WIAA 14 explains that it has only carved out an exception to its Saturday end-day policy for the state

15 championship tournament in two sports: golf and volleyball. To the extent Plaintiffs claim that 16 WIAA accommodates basketball, soccer and baseball teams, WIAA responds that it “does not 17 change tournament dates but is able to adjust starting times of the games for those schools.” Dkt. 18 #57 at 6 (citing Dkt. #59 at ¶¶ 12-14). Plaintiffs also claim that dance and drill have been 19 scheduled for non-Sabbath competition, but WIAA explains that those events are always 20 scheduled for Friday and Saturday, with 4A teams performing on Friday in even-numbered years 21 and other classifications performing on Saturday, with the order reversed in odd-numbered years. 22 Dkt. #59 at ¶ 18. WIAA agrees with Plaintiffs that golf has always been scheduled for weekday 23 1 play for the past 33 years, but explains its scheduling is due to the unavailability of golf courses 2 on weekends. Id. at ¶¶ 6, 18. 3 Consequently, volleyball is the only sport for which WIAA concedes that it has 4 accommodated Sabbath observers by not scheduling tournaments on a Saturday. For 1B and 2B 5 volleyball teams, WIAA accommodated religiously-affiliated schools that observed the Sabbath

6 by moving the competition from Friday-Saturday to Thursday-Friday, with all Friday matches 7 completed before sundown. Dkt. #59 at ¶ 15. WIAA explains that it has accommodated 8 Sabbath-observing religious schools competing in team sports by rescheduling the state 9 tournament from a Friday-Saturday schedule to a Thursday-Friday schedule, with all Friday 10 matches for the Sabbath-observant schools completed before sundown. Id. WIAA distinguishes 11 accommodation of these schools from accommodation of individual student athletes at any 12 Washington school based on the fact that “[a]djusting the schedule for any single athlete create[s] 13 a conflict for several others.” Id. at ¶ 11. WIAA attempted to accommodate three individual 14 athletes in track and field events in 2005. Id. However, due to the “cascade of issues for

15 student/athletes, coaches and schools” created by the accommodations, WIAA decided in March 16 2006 that the interest in accommodating individual athletes in postseason competition was 17 outweighed by the interests of students, coaches and schools affected by the scheduling 18 consequences. Id. 19 The Court finds that WIAA has raised a material dispute of fact as to whether its 20 accommodation of athletes in certain sports—but not others—subjects its scheduling policy to 21 strict scrutiny review. A reasonable factfinder could conclude that WIAA’s accommodation of 22 schools in team sports, but not for individual tennis players, is not so comprehensive that it 23 amounts to a “system of individualized exemptions” wherein “case-by-case inquiries are routinely 1 made, such that there is an ‘individualized governmental assessment of the reasons for the 2 relevant conduct’ . . . .” Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 651 3 (10th Cir. 2006) (citing Axson-Flynn v. Johnson, 356 F.3d 1277, 1297 (10th Cir. 2004)). Viewing 4 the record in the light most favorable to WIAA, the Court finds that WIAA has raised a genuine 5 issue of material fact as to whether it maintains a discretionary system of case-by-case exemptions

6 with respect to its tournament scheduling. 7 Lastly, Plaintiffs filed supplemental authority to notify the Court of the Ninth Circuit’s 8 recent decision in Calvary Chapel Dayton Valley v. Sisolak, 982 F.3d 1228 (9th Cir. 2020). Dkt. 9 #78. Calvary Chapel applied strict scrutiny to an emergency directive issued by the Governor of 10 Nevada in response to the COVID-19 pandemic, which imposed a 50-person limit on in-person 11 services at houses of worship. Calvary Chapel, 982 F.3d at 1233. In observing that the directive 12 allowed casinos, bowling alleys, retain businesses, restaurants, arcades and other secular entities 13 to maintain “50% of fire-code capacity” while houses of worship were limited to fifty people 14 “regardless of their fire-code capacities,” the Ninth Circuit concluded that the directive “treat[ed]

15 numerous secular activities and entities significantly better than religious worship services.” Id. 16 (emphasis added). Given this disparate treatment of secular entities compared to religious ones, 17 the Ninth Circuit reasoned, strict scrutiny applied. 18 Plaintiffs argue that because WIAA has accommodated many secular concerns in its 19 scheduling decisions, but not religious ones, strict scrutiny applies pursuant to Calvary Chapel. 20 As an initial matter, the record reflects that WIAA has accommodated religious conflicts in 21 certain team sports. Indeed, one of Plaintiffs’ arguments relies on WIAA’s inconsistent practice 22 of accommodating Sabbath observers in certain sports but not in tennis. See Dkt. #53 at 10. More 23 fatal to Plaintiffs’ argument, however, is that the facts of Calvary Chapel are readily 1 distinguishable from this case. Calvary Chapel relied on the Supreme Court’s decision in Roman 2 Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020) (per curiam), which the Ninth 3 Circuit viewed as compelling it to reverse the district court. Calvary Chapel, 982 F.3d at 1233. 4 Roman Catholic Diocese concluded that a similar executive order issued by the New York 5 Governor during the COVID-19 pandemic that restricted attendance at religious services in

6 certain areas “violate[d] the minimum requirement of neutrality to religion.” Roman Catholic 7 Diocese, 141 S. Ct. at 65–66. “Under the [Supreme] Court’s reasoning, the New York order was 8 not neutral because it ‘single[d] out houses of worship for especially harsh treatment.’” Calvary 9 Chapel, 982 F.3d at 1233 (quoting Roman Catholic Diocese, 141 S. Ct. at 65–66). In both cases, 10 attendance regulations imposed on houses of worship, but not secular entities, were considered 11 disparate treatment and thus subject to strict scrutiny. 12 Here, in contrast, WIAA’s scheduling decisions do not “single out” religious activities as 13 did the emergency directives at issue in Roman Catholic Diocese and Calvary Chapel. While 14 both executive orders directly regulated religious activity through attendance limits, WIAA’s

15 policy merely sets forth the dates of postseason play. For that reason, it cannot be construed as 16 treating secular activities “significantly better” than religious ones, nor as “singl[ing] out” 17 religious entities from secular ones. Cf. Calvary Chapel, 982 F.3d at 1233; Roman Catholic 18 Diocese, 141 S. Ct. at 65–66. Accordingly, the Court finds this line of cases inapplicable.3 19 For these reasons, the Court cannot conclude that strict scrutiny applies as a matter of law 20 to WIAA’s scheduling decisions. 21 3 For the same reasons, the supplemental authority Plaintiffs filed on April 13, 2021—which addresses 22 another COVID-19 public health mandate imposing attendance limits on religious gatherings—is inapplicable to the WIAA’s scheduling decision at issue here. See Dkt. #86 (citing the Supreme Court’s 23 recent per curiam decision in Tandon v. Newsom, No. 20A151, 593 U.S. ___, 2021 WL 1328507 (Apr. 9, 2021)). Tandon reversed the Ninth Circuit’s denial of plaintiffs’ motion for preliminary injunction on a California law restricting religious gatherings in homes to three households. 1 ii. WIAA’s Scheduling Decision Survives Rational Basis Review 2 Having determined that a material dispute of fact exists as to whether strict scrutiny 3 applies, the Court addresses whether WIAA’s scheduling decision survives rational basis review. 4 Under rational basis review, a rule must be upheld if it is “rationally related to a legitimate 5 governmental purpose.” Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1084 (9th Cir. 2015) (quoting

6 Gadda v. State Bar of Cal., 511 F.3d 933, 938 (9th Cir. 2007)). Plaintiffs “have the burden to 7 negat[e] every conceivable basis which might support [the rules] . . . .” Id. (quoting FCC v. Beach 8 Commc’ns, Inc., 508 U.S. 307, 315 (1993)) (internal quotations omitted). 9 Here, WIAA has met its burden to show that its policy to schedule state championship 10 tournaments to end on Saturday is rationally related to Washington’s interests. Scheduling 11 tournaments to end on Saturday—rather than scheduling them to end on a weekday—is rationally 12 related to the State’s interest in minimizing class time missed for students and coaches, many of 13 whom are also teachers. With 384 students competing in postseason tournaments and one to two 14 coaches from each of the 160 schools attending, a tournament on a weekday as opposed to a

15 Saturday would result in missed class time for hundreds of students and coaches. Dkt. #60 at ¶ 16 9; Dkt. #58 at ¶ 9. While Plaintiffs insist that WIAA has failed to point to any scientific study 17 documenting the correlation between academic performance and missed class time, Dkt. #53 at 18 17, a scientific study is not needed to support the conclusion that sparing hundreds of students 19 and teachers from missing class during the weekdays supports the State’s interests of education. 20 See Wash. Const., Art. 9, § 1 (Education is of “paramount” importance). Plaintiffs also argue that 21 WIAA could uphold the State’s interests in minimizing out-of-school time by scheduling the 22 tournament for Sunday-Monday rather than Friday-Saturday. Dkt. #53 at 20. However, under 23 1 rational basis review, WIAA need only demonstrate that its scheduling practice is rationally 2 related to a legitimate government purpose. WIAA has done so here. 3 Accordingly, having concluded that material disputes of fact preclude application of strict 4 scrutiny, and that WIAA’s scheduling policy survives rational basis review, summary judgment 5 is denied as to Plaintiff’s First Amendment claims regarding WIAA’s scheduling policy.

6 D. Application of Rules 22.2.5 and 22.2.6 to Joelle Chung 7 Next, the Court considers whether WIAA’s application of former Rule 22.2.5 and Rule 8 22.2.6 to Joelle Chung violated her rights under the Free Exercise Clause. For the reasons set 9 forth below, the Court finds that material disputes of fact preclude application of strict scrutiny. 10 Furthermore, the Court finds that WIAA’s actions survive rational basis review. 11 i. Standard of Review 12 Plaintiffs argue that WIAA’s application of Rules 22.2.5 and 22.2.6 to Joelle Chung was 13 not neutral or generally applicable and therefore triggers strict scrutiny. Specifically, Plaintiffs 14 argue that (1) former Rule 22.2.5 created categorical exemptions for individuals with secular

15 reasons to act but not religious; (2) was enforced in a discriminatory manner; and (3) created a 16 system of “individualized exemptions” because of its open-ended exception for “unforeseen 17 events.” Dkt. #53 at 21-25. The Court will address each argument in turn. 18 1. Categorical Exemptions 19 First, Plaintiffs argue that former Rule 22.2.5, as applied to Joelle Chung, was not neutral 20 or generally applicable because it included categorical exemptions for individuals with secular 21 reasons to withdraw but not for individuals with religious reasons. Dkt. #53 at 21. A law is not 22 generally applicable “if its prohibitions substantially underinclude non-religiously motivated 23 conduct that might endanger the same governmental interest that the law is designed to protect.” 1 Stormans, Inc., 794 F.3d at 1079 (citing Lukumi, 508 U.S. at 542–46). In other words, if a law 2 “fails to include in its prohibitions substantial, comparable secular conduct that would similarly 3 threaten the government’s interest, then the law is not generally applicable.” Id. 4 The Court finds that the categorical exemptions for withdrawal, including injury and 5 illness, do not defeat the general applicability of Rule 22.2.5. In contrast to the categorical

6 exemptions at issue in Stormans, the category for “unforeseen events” plainly encompasses both 7 secular and religious reasons—whether that be illness or injury, as enumerated by the rule, or 8 unexpected religious obligations. Likewise, the Rule’s prohibition on expected absences does not 9 apply strictly to religiously-motivated conduct. The distinction between approved and 10 non-approved absences under Rule 22.2.5 does not hinge on whether the reason for absence is 11 religiously-based, but whether the reason for the withdrawal is anticipated.4 Accordingly, the 12 Court finds that strict scrutiny does not apply to former Rule 22.2.5 based on its categorical 13 exemptions. 14 2. Enforcement in Selective and Discriminatory Manner

15 Next, Plaintiffs contend that WIAA’s application of former Rule 22.2.5 to Joelle Chung 16 is subject to strict scrutiny because WIAA selectively enforced the Rule in a discriminatory 17 manner. Dkt. #57 at 14-15. A rule is not generally applicable if it is enforced in a selective and 18 discriminatory manner. Stormans, 794 F.3d at 1079 (“A law is not generally applicable if it, ‘in 19

20 4 For the same reasons discussed supra, § III(C)(i), Plaintiffs’ supplemental authority on First Amendment rights during COVID-19 is inapplicable here. Calvary Chapel addressed an emergency directive issued 21 by the Governor of Nevada in response to the COVID-19 pandemic that expressly regulated the operations of houses of worship. Calvary Chapel, 982 F.3d at 1233. Consequently, the Ninth Circuit concluded that 22 the directive “treat[ed] numerous secular activities and entities significantly better than religious worship services” and therefore engaged in disparate treatment. Id. (emphasis added). Here, in contrast, the 23 language of former Rule 22.2.5 applied to both secular and religious entities and turned on whether the withdrawal was expected—not whether the conduct was religiously-motivated. 1 a selective manner [,] impose[s] burdens only on conduct motivated by religious belief.’”) 2 (quoting Lukumi, 508 U.S. at 543). 3 Here, Plaintiffs argue that WIAA prohibited Joelle from withdrawing to observe her 4 Sabbath based on Rule 22.2.5, yet in practice permitted secular withdrawals “for any reason or 5 no reason at all.” Dkt. #77 at 10. These anticipated withdrawals for secular reasons included a

6 trip to Alaska, a quinceañera celebration, and a manicure appointment. Dkts. #54-3 at 89-92; Dkt. 7 #54-2 at 199; Dkt. #54-15 at 16. Other withdrawals were granted where no reason for the 8 student’s absence was provided. See, e.g., Dkt. #54-30 (“She can’t go”); Dkt. #54-1 at 52 9 (withdrawal from state “due to a conflict.”); id. at 36 (golfer “will not be attending the state 10 tournament”). In each of these instances, WIAA officials failed to investigate the circumstances 11 of these withdrawals to determine if they were consistent with the Rules. See Dkt. #54-3 at 63- 12 72. Plaintiffs argue that these secular exemptions, which did not comply with Rule 22.2.5, show 13 that WIAA engaged in selective and discriminatory application of the Rules to Joelle. 14 WIAA responds that its failure to enforce Rules 22.2.5 and 22.2.6 against withdrawing

15 students is not evidence of selective enforcement because it operated under a system of “passive 16 enforcement,” meaning that it relied on reports of non-compliance rather than proactive 17 enforcement of the rules. Dkt. #57 at 21-22. In Stormans, the Ninth Circuit concluded that in a 18 passive enforcement system, disproportionate complaints against a single entity were not 19 evidence of selective enforcement given that enforcement was only triggered in response to 20 complaints. Stormans, 794 F.3d at 1083–84 (“[S]elective enforcement cannot be inferred from 21 the fact that Ralph’s has been implicated in a disproportionate percentage of investigations, 22 because the Commission responds only to the complaints that it receives.”). 23 1 WIAA has raised a material dispute of fact as to whether it operated a system of passive 2 enforcement at the time it prohibited Joelle’s withdrawal under former Rule 22.2.5. Due to 3 limited staff and resources, WIAA explains that “it does not have an investigation on arm to 4 monitor 400 high schools, 400 middle schools and 200,000 participants in all of the sports and 5 activities,” and therefore “relies on its members to self-report violations of the rules.” Dkt. #60

6 at ¶ 12. Likewise, where emails withdrawing a student from competition failed to give any reason, 7 WIAA Assistant Executive Director Barnes explains that he “would not . . . assume that there 8 was any violation of Rule 22.2.5 even if it was not specifically stated that the withdrawal was due 9 to injury, illness or an unforeseen event.” Id. at ¶ 13. Viewing these facts in the light most 10 favorable to WIAA, the Court finds that a material dispute of fact exists as to whether WIAA 11 engaged in a passive enforcement system, and thus whether its enforcement of the Rules against 12 Joelle—but not the students traveling to Alaska, celebrating a quinceañera, or withdrawing for 13 unstated reasons—amounts to “selective enforcement” such that strict scrutiny is triggered. 14 Plaintiffs contend that even if the above-listed exceptions could be construed as passive

15 enforcement, WIAA allowed tennis players taking the international baccalaureate (“IB”) exam 16 and Sabbath-observing volleyball players in Sea-Tac League to forfeit in violation of the Rules 17 without imposing penalties. Dkt. #77 at 11-12. Viewing the facts in the light most favorable to 18 WIAA, the Court finds that material disputes of fact exist with respect to both exceptions. 19 Regarding the IB exam takers, WIAA maintains that the conflict arose on “short notice” at the 20 time the accommodation was given and was a legal withdrawal under the United States Tennis 21 Association (“USTA”) rules, which allows a player to default one match at a tournament without 22 penalty. Dkt. #60 at ¶ 15. Given that WIAA follows USTA rules “unless the WIAA has explicitly 23 stated otherwise,” WIAA initially considered the IB exam an “unforeseen circumstance” under 1 Rule 22.2.5 and allowed the players to default their first-round matches. Id. Only after the 2 Executive Board conferred later did it agree that the outcome was contrary to the objective of 3 Rule 22.2.5 to limit holes in the bracket and determined that, going forward, a default for IB 4 exams would not be permitted. Id. A reasonable person may conclude that the WIAA’s treatment 5 of IB exam takers, which was consistent with USTA rules but ultimately deemed a violation of

6 Rule 22.2.5 after-the-fact, does not amount to selective enforcement. For that reason, viewing 7 the facts in the light most favorable to WIAA, the application of former Rule 22.2.5 to IB exam 8 takers does not trigger strict scrutiny review as a matter of law. 9 A reasonable person may likewise conclude that granting Sabbath-related withdrawals for 10 volleyball teams in the Sea-Tac League, but not for individual tennis players, does not constitute 11 selective and discriminatory enforcement against members of religious communities that observe 12 the Sabbath. In 2014, the Sea-Tac League asked WIAA to allow three Sabbath-observing schools 13 to play in the postseason tournament even though they would withdraw if they qualified for 14 district. Dkt. #59 at ¶ 16. The request was presented “with the support of all of the Sea-Tac

15 League schools” given that the league tournament “would not be much of an event” without the 16 three Sabbath-observing schools, and “there would be no unfairness to any of the Sea-Tac league 17 schools since they had all agreed to the proposal.” Id. at ¶ 16. Viewed in the light most favorable 18 to WIAA, a reasonable factfinder may conclude that WIAA’s accommodation of three Sabbath- 19 observing teams in Sea-Tac League, requested and agreed to by all teams in the league, is not 20 evidence of selective or discriminatory enforcement against Sabbath observers. 21 For these reasons, the Court finds that a material dispute of fact exists as to whether WIAA 22 engaged in selective and discriminatory enforcement against Joelle based on its application of 23 Rules 22.2.5 and 22.2.6 to IB exam takers and the Sea-Tac League volleyball teams. 1 3. Sherbert Individualized Exemptions 2 Finally, Plaintiffs argue that the exception under Rule 22.2.5 for “unforeseen events” 3 triggers strict scrutiny review as it amounts to a system of individualized exemptions. Dkt. #53 4 at 24-25. The “individualized exemption” exception recognized in Sherbert addresses “systems 5 that are designed to make case-by-case determinations.” Axson-Flyyn, 356 F.3d at 1298.

6 However, the exception does not apply to rules “that, although otherwise generally applicable, 7 contain express exceptions for objectively defined categories of persons.” Id.; see also Swanson, 8 135 F.3d at 698, 701 (school district’s policy requiring full-time attendance by all students did 9 not “establish a system of individualized exceptions that give rise to the application of a subjective 10 test” when the exceptions to the policy were confined to “strict categories of students,” such as 11 fifth-year seniors and special education students); Hicks v. Halifax County Bd. of Educ., 93 12 F.Supp.2d 649, 657 n. 4 (E.D.N.C. 1999) (limited financial hardship exception to school’s 13 uniform policy did not “rise to the level” of system of individualized exemptions). But see 14 Fraternal Order of Police v. City of Newark, 170 F.3d 359, 364–66 (3d Cir.1999) (police

15 department regulation prohibiting beards was not generally applicable under Smith as it allowed 16 medical exemptions but not religious exemptions). 17 Here, the category for “unforeseen events” does not create a system of individualized 18 exemptions. Even if some degree of individualized inquiry were needed to determine whether an 19 event is truly “unforeseen” such that it triggers the exception to Rule 22.2.5, the exception is 20 limited to the objectively-defined category of unexpected conflicts. See Axson-Flyyn, 356 F.3d 21 at 1298 (“While of course it takes some degree of individualized inquiry to determine whether a 22 person is eligible for even a strictly defined exemption, that kind of limited yes-or-no inquiry is 23 qualitatively different from the kind of case-by-case system envisioned by the Smith Court in its 1 discussion of Sherbert and related cases.”). By its plain terms, the category “unforeseen events” 2 always excludes weekly Sabbath observance. Accordingly, the category of “unforeseen events” 3 does not trigger strict scrutiny based on the Sherbert “individualized exemption” exception. 4 ii. WIAA’s Application of Rules 22.2.5 and 22.2.6 Survives Rational Basis Review 5 Having concluded that material disputes of act preclude application of strict scrutiny to

6 Rule 22.2.5 and WIAA’s application of the Rule to Joelle Chung, the Court assesses whether, as 7 a matter of law, WIAA’s actions survive rational basis review. For the reasons set forth below, 8 the Court finds that WIAA has demonstrated a rational basis for prohibiting Joelle from 9 competing in postseason competition due to her anticipated withdrawal if she qualified for state. 10 Under rational basis review, WIAA need only demonstrate that Rules 22.2.5 and 22.2.6 11 and their application to Joelle Chung were “rationally related to a legitimate governmental 12 purpose.” Stormans, 794 F.3d at 1084 (quoting Gadda, 511 F.3d at 938). The Court finds that 13 WIAA has met its burden to show that former Rule 22.2.5 and Rule 22.2.6, which only allowed 14 withdrawals for injury, illness, or other unforeseen events, were rationally related to WIAA’s

15 interest in fair competition by preventing planned withdrawals from postseason tournaments. See 16 Dkt. #58 at ¶ 16. Withdrawals, which create holes in the tournament bracket, give certain players 17 an unfair advantage since they do not risk suffering injury and are better rested to play their next 18 match. Id. Furthermore, even if the hole can be filled by an alternate, anticipated withdrawals 19 are unfair to athletes who could have participated in postseason without withdrawing but were 20 precluded from doing so because of the withdrawing athlete. Id. The Court finds that these 21 reasons support a rational basis for Rule 22.2.5 barring planned withdrawals from postseason 22 competition. For the same reasons, the application of Rule 22.2.5 to Joelle Chung, which 23 1 prevented her from competing in postseason competition when she planned to withdraw if she 2 advanced to state, supported the WIAA’s legitimate interest in ensuring fair competition. 3 Plaintiffs respond that WIAA has no cognizable interest in protecting other students from 4 planned withdrawals, given that withdrawals for the secular reasons set forth under Rule 22.2.5, 5 including injury, illness, or another unforeseen event, have the same effect as withdrawals for

6 Sabbath observance. The Court finds the two easily distinguishable, given that allowing 7 anticipated withdrawals in addition to unforeseen withdrawal magnifies the problems created by 8 holes in the bracket, which give certain athletes an unfair advantage over others. Furthermore, 9 anticipated withdrawals prejudice athletes who could have competed in postseason but for the 10 withdrawing player. Plaintiffs further argue that WIAA’s purported concerns about opening up 11 tournaments to religious withdrawals is “bizarre,” given that it amended Rules 22.2.5 and 22.2.6 12 to permit religious withdrawals and “no dire consequences have followed.” Dkt. #77 at 12. As 13 an initial matter, WIAA’s decision to change course in response to litigation does not invalidate 14 any of its asserted interests in minimizing holes in the bracket and unfairness to other players

15 caused by expected withdrawals. Furthermore, Plaintiffs’ conclusory argument that “no dire 16 consequences have followed” is insufficient to conclude that no interests were served by the 17 original rules that barred anticipated withdrawals for any reason. 18 Accordingly, the Court finds that former Rule 22.2.5 and Rule 22.2.6, and WIAA’s 19 application of the Rules to Joelle Chung, survive rational basis review. 20 E. Equal Protection Claims 21 Before proceeding to Plaintiffs’ state law claims, the Court will address Plaintiffs’ cursory 22 reference to their Equal Protection claims. See Dkt. #53 at 20, n.6. In a footnote, Plaintiffs assert 23 that “WIAA’s longstanding preference for Sunday Sabbatarians also violates Equal Protection.” 1 Id. “Because this preference ‘impinge[s] . . . a fundamental right,’ it must be ‘precisely tailored’ 2 to serve a compelling interest.” Id. (quoting Plyler v. Doe, 457 U.S. 202, 216–17 (1982)). 3 The Equal Protection Clause of the Fourteenth Amendment provides that no State shall 4 “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. 5 XIV. “This is ‘essentially a direction that all persons similarly situated should be treated alike.’”

6 Stormans Inc. v. Selecky, 844 F. Supp. 2d 1172, 1199–200 (W.D. Wash. 2012) (quoting City of 7 Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985)). Courts apply strict scrutiny 8 to state action that classifies by race, alienage, or national origin or impinges a fundamental right. 9 Id. Here, Plaintiffs have not demonstrated as a matter of law that WIAA’s actions impinge a 10 fundamental right such that strict scrutiny applies. Nor do they argue, in the alternative, that 11 WIAA’s actions fail rational basis review. Accordingly, summary judgment on this claim is 12 properly denied. 13 F. Washington’s Free Exercise Provision 14 Plaintiffs also move for summary judgment on their claims under the free-exercise

15 provision of the Washington State Constitution, art. 1 § 11. Section 11 protects “freedom of 16 conscience in all matters of religious sentiment, belief, and worship” and guarantees that “no one 17 shall be molested or disturbed in person or property on account of religion.” Art. 1, § 11. 18 Plaintiffs argue that, as a matter of law, WIAA violated Section 11 by (1) scheduling state 19 championship tournaments on the Sabbath; and (2) applying former Rule 22.2.5 to bar Sabbath 20 observers, like Joelle, from participating in any post-season play. Dkt. #53 at 28-29. 21 As an initial matter, parties dispute whether Section 11 affords Plaintiffs greater protection 22 than the First Amendment’s Free Exercise Clause. Under Washington law, courts apply a 23 Gunwall analysis to determine when and how Washington’s constitution affords different 1 protection of rights than the federal Constitution. See State v. Gunwall, 106 Wash.2d 54, 720 2 P.2d 808 (1986). Where courts have “already determined in a particular context the appropriate 3 state constitutional analysis under a provision of the Washington State Constitution, it is 4 unnecessary to provide a threshold Gunwall analysis.” City of Woodinville v. Northshore United 5 Church of Christ, 166 Wash. 2d 633, 641, 211 P.3d 406, 410 (2009)

6 In the context of free exercise of religion, Washington courts previously interpreted 7 Section 11 to provide the same protection as the First Amendment’s free exercise clause and 8 therefore applied strict scrutiny to laws burdening religion. State v. Arlene’s Flowers, Inc., 193 9 Wash. 2d 469, 524, 441 P.3d 1203, 1231 (2019) (collecting cases). However, in 1990, the U.S. 10 Supreme Court adopted rational basis review for neutral, generally applicable laws that 11 incidentally burden religion. Id. (citing Smith, 494 U.S. at 878–90). After Smith, the Washington 12 Supreme Court revisited its Section 11 test in five cases—all of which were churches challenging 13 land use regulations—and determined that strict scrutiny applied. Id. at 527. However, while the 14 court noted that these five holdings were limited to land use cases, it declined to address whether

15 strict scrutiny applies to Section 11 claims “even if the regulation indirectly burdens the exercise 16 of religion,” as is the case here. See id. at 528. 17 Parties dispute the consequence of these post-Smith holdings in terms of the standard 18 applied in this case. Plaintiffs argue that strict scrutiny applies to all free exercise claims brought 19 under Section 11. Dkt. #77 at 13. WIAA, relying on dicta from Arlene’s Flowers, contends that 20 the post-Smith holdings are limited to land use regulations. Dkt. #57 at 24. WIAA further argues 21 that even if Arlene’s Flowers merely casts doubt on the standard to apply, Plaintiffs at least needed 22 to address the Gunwall factors to support their argument that Section 11 affords broader 23 protections. 1 The Court need not resolve parties’ dispute as to the standard applied under Section 11. 2 Even under the test proposed by Plaintiffs, material disputes of fact preclude summary judgment. 3 Under the four-pronged analysis applied before and after Smith to Section 11 challenges, a 4 plaintiff must show (1) that their belief is sincere; and (2) that the government action burdens the 5 exercise of religion. City of Woodinville, 166 Wash. 2d at 642, 211 P.3d 406 (citing Open Door

6 Baptist Church v. Clark County, 140 Wash.2d 143, 152, 995 P.2d 33 (2000)). Assuming the 7 higher standard of strict scrutiny applies, the government must show that it has a narrow means 8 for achieving a compelling goal. Id. WIAA does not dispute that Plaintiffs’ observance of the 9 Sabbath is sincere. Accordingly, the issue presented here is whether WIAA’s actions burden the 10 exercise of Plaintiffs’ religion and, if so, whether their actions fulfill a compelling goal. 11 Viewing the facts in the light most favorable to WIAA, a reasonable factfinder may 12 conclude that WIAA’s tournament scheduling decision did not burden Joelle’s exercise of her 13 religion to the extent that it violated her state free exercise rights under Section 11. Government 14 burdens religious exercise “[i]f the ‘coercive effect of [an] enactment’ operates against a party ‘in

15 the practice of his religion . . . .’” First Covenant Church v. City of Seattle, 120 Wash.2d 203, 16 226, 840 P.2d 174 (1992) (second alteration in original) (quoting Witters v. Comm’n for the Blind, 17 112 Wn.2d 363, 371, 771 P.2d 1119 (1989)). “This does not mean any slight burden is invalid, 18 however.” City of Woodinville, 166 Wash. 2d at 642–43, 211 P.3d 406. Rather, “a burden can 19 be a slight inconvenience without violating article I, section 11, but the State cannot impose 20 substantial burden on the exercise of religion.” Id. at 644, 211 P.3d 406 (emphasis added). In 21 analyzing the coercive effect of government action, courts have distinguished cases where the 22 action disadvantages a plaintiff, such as the denial of financial aid, from instances where “persons 23 have been pressured by state policies to choose between benefits or rights and practicing their 1 religion.” Witters v. State Comm’n for the Blind, 112 Wash. 2d 363, 371, 771 P.2d 1119, 1123 2 (1989). In Witters, the denial of vocational aid to the plaintiff “did not compel or pressure him to 3 violate his religious belief” given that provision of financial aid was not a benefit to which he was 4 entitled. See id. (“This case is dissimilar to those in which persons have been pressured by state 5 policies to choose between benefits or rights and practicing their religion.”).

6 Here, Plaintiffs have failed to demonstrate as a matter of law that WIAA’s actions inflicted 7 a “substantial burden” on Joelle such that its scheduling decision or application of former Rule 8 22.2.25 violated her state free exercise rights. While Washington courts recognize participation 9 in sports as an activity that “supplements and enriches a student’s educational experience,” they 10 acknowledge “there is no fundamental right to engage in interscholastic sports.” Taylor v. 11 Enumclaw Sch. Dist. No. 216, 132 Wash. App. 688, 697, 133 P.3d 492, 496 (2006) (“We hold 12 that participation in interscholastic sports is a privilege, not a protected property or liberty interest 13 arising under Washington Law.”). Here, Plaintiffs assert an even narrower right—Joelle’s 14 entitlement to compete in postseason play, in the sport of her choice. The Court cannot conclude,

15 as a matter of law, that competing in tennis postseason competition was a right or benefit to which 16 she was entitled. 17 The cases Plaintiffs rely upon are inapposite. Plaintiffs cite several cases brought by 18 students against school districts under the Religious Freedom Restoration Act (“RFRA”). As an 19 initial matter, Plaintiffs have provided no support for their proposition that the construction of 20 “substantial burden” under RFRA extends to the context of Section 11. Indeed, in other contexts, 21 courts have refrained from exporting the definition of “substantial burden” from RFRA to other 22 statutes. See, e.g., C.L. for Urb. Believers v. City of Chicago, 342 F.3d 752, 761 (7th Cir. 2003) 23 (Finding that definition of “substantial burden” under RFRA “cannot be the correct construction 1 of ‘substantial burden on religious exercise’ under [the Religious Land Use and Institutionalized 2 Persons Act].”). The Court cannot conclude, absent further support, that the meaning of 3 “substantial burden” under RFRA automatically extends to Section 11. 4 Moreover, even if the meaning of “substantial burden” under RFRA applies to Section 11 5 claims, the cited cases are distinguishable from the facts at issue here. In Cheema v. Thompson,

6 the Ninth Circuit found that the school district placed a substantial burden on students’ exercise 7 of religion by enforcing its weapons ban against students whose religious beliefs required them 8 to always carry ceremonial knives. See F.3d 883, 884–85 (9th Cir. 1995). Accordingly, plaintiffs 9 were faced with the dilemma of either leaving their ceremonial knives at home, thus violating a 10 fundamental tenet of their religion, or not attending school. Similarly, in Gonzales v. Mathis 11 Indep. Sch. Dist., students were banned from participating “in any extra-curricular or [University 12 Interscholastic League] activities” unless they complied with the school district’s hair grooming 13 policy. No. 18-cv-43, 2018 WL 6804595, at *1, 5 (S.D. Tex. Dec. 27, 2018) (emphasis added). 14 In both instances, the government’s actions forced students to choose between complete exclusion

15 from school or extracurricular activities and abandoning a central tenet of their religion. Here, in 16 contrast, Joelle was not faced with such a dilemma. Rather, she was forced to choose between 17 her religion and competing in postseason tournaments in the sport of her choice. Viewing these 18 facts in the light most favorable to WIAA, a reasonable person may conclude that WIAA’s 19 scheduling policy or application of Rule 22.2.5 did not impose a burden on Joelle so substantial 20 that it violated Section 11. 21 G. RCW 28A.600.200 22 Finally, Plaintiffs move for summary judgment on their claims under RCW 23 § 28A.600.200. RCW § 28A.600.200 prohibits state entities, including WIAA, from 1 discriminating on creed in “any function it performs.” RCW § 28A.600.200. Plaintiffs concede 2 that Washington courts “haven’t yet had occasion to construe ‘creed’ discrimination” but indicate 3 that two other state statutes—the Washington Law Against Discrimination (“WLAD”), RCW § 4 49.60.180(3), and RCW § 28A.642.010—require reasonable accommodation of religious 5 practices absent undue hardship. Dkt. #53 at 29-30. Plaintiffs argue that because Washington

6 law requires statutes relating to the same subject matter to be read in pari materia, the state 7 supreme court “would likely interpret § 28A.600.200 to contain the same requirement.” Id. at 30. 8 The Washington doctrine of in pari materia means “each provision of a statute should be read 9 together with other provisions in order to determine legislative intent.” In re Estate of Kerr, 134 10 Wash.2d 328, 336, 949 P.2d 810 (1998). Courts read related provisions in pari materia “to 11 determine the legislative intent underlying the entire statutory scheme and read the provisions ‘as 12 constituting a unified whole, to the end that a harmonious, total statutory scheme evolves which 13 maintains the integrity of the respective statutes.’” State v. Williams, 94 Wash.2d 531, 547, 617 14 P.2d 1012 (1980) (quoting State v. Wright, 84 Wash.2d 645, 650, 529 P.2d 453 (1974)).

15 The Court is not persuaded that RCW § 28A.600.200 must be construed in pari materia 16 with WLAD and RCW § 28A.642.010, or that the invoked rule of statutory construction supports 17 the interpretation proposed by Plaintiffs. Statutory provisions stand in pari materia if they “relate 18 to the same person or thing, or the same class of persons or things.” State v. Houck, 32 Wash.2d 19 681, 684, 203 P.2d 693 (1949). Here, RCW § 28A.600.200 governs the administration of 20 interscholastic sports and activities for students. The WLAD, in contrast, is an employment 21 statute that creates a private cause of action against an employer engaging in an “unfair practice.” 22 RCW § 49.60.180; see also Kumar v. Gate Gourmet, Inc., 180 Wash.2d 481, 489, 325 P.3d 193 23 (2014). In determining the scope of the WLAD, Washington courts look to federal law. Id. at 1 491 (“[E]ven though almost all of the WLAD’s prohibitions predate Title VII’s, the ADA’s, and 2 the ADEA’s, Washington courts still look to federal case law interpreting those statutes to guide 3 our interpretation of the WLAD.”). Consequently, although the WLAD lacks an express 4 requirement for employers to make “reasonable accommodations” for employees’ religious 5 practices, courts have read an implied requirement into it so that the WLAD affords employees

6 the same protections against religious discrimination that Title VII provides. Id. at 492. While 7 Plaintiffs urge the Court to read the same implied requirement into RCW § 28A.600.200, they 8 have offered no coherent basis for reading the statutes together, or for exporting a “reasonable 9 accommodation” requirement from federal employment law into a state statute governing 10 administration of interscholastic activities. 11 Plaintiffs’ arguments as to RCW § 28A.642.010 are likewise unavailing. While RCW § 12 28A.642.010 prohibits discrimination in Washington public schools, RCW § 28A.600.200 13 governs the operations of voluntary nonprofit entities such as the WIAA that organize 14 extracurricular sports and activities. To the extent that both statutes address the general category

15 student affairs, Washington courts have distinguished between the realm of education and that of 16 interscholastic sports. See Taylor, 132 Wash. App. at 697, 133 P.3d 492 (“[A]lthough 17 participation in extracurricular activities, including sports, clearly supplements and enriches a 18 student’s educational experience, neither sports nor any other extracurricular activity is required 19 for graduation or mandated by state law.”). For these reasons, the Court is not persuaded that the 20 statutes address sufficiently related subject matter such that they must be read in pari materia. 21 Moreover, even if the statutes addressed sufficiently related subject matter, Plaintiffs 22 provide scant support for their proposition that RCW 28A.642.010 contains an implied 23 “reasonable accommodation” requirement for religious practices. See Dkt. #53 at 29-30 (citing 1 Kumar, 325 P.3d 193, 203–04). Plaintiffs’ reliance on Kumar is misplaced, given that the case 2 only addresses the WLAD without any reference to RCW § 28A.642.010. See generally Kumar, 3 180 Wash. 2d 481, 325 P.3d 193. Plaintiffs also rely on a Washington Public Schools guidance 4 document, Prohibiting Discrimination in Washington Public Schools: Guidelines for School 5 Districts, Office of Superintendent (2012), https://perma.cc/JT7R-HCMH. While this document

6 references reasonable accommodations for individuals with disability and transgender and gender 7 nonconforming students, it only references reasonable accommodation of religion in the context 8 of employer-employee relations. See id. at 55 (“Employers may be required . . . to provide 9 reasonable accommodations to enable an employee to do his or her job.”). Accordingly, the Court 10 finds insufficient basis to construe Section 28A.642.010 as containing an implied requirement for 11 reasonable accommodation of religion. 12 For these reasons, the Court DENIES Plaintiffs’ motion for summary judgment on their 13 claims under RCW § 28A.600.200. 14 IV. CONCLUSION

15 Having reviewed Plaintiffs’ Motion, Defendant’s Response, Plaintiffs’ Reply, the exhibits 16 and declarations attached thereto, and the remainder of the record, it is ORDERED that Plaintiffs’ 17 Motion for Summary Judgment, Dkt. #53, is DENIED. 18 19 Dated this 10th day of May, 2021. 20 21 A 22 RICARDO S. MARTINEZ 23 CHIEF UNITED STATES DISTRICT JUDGE