No Strict Scrutiny for Neutral, Non‑Curricular School Policies: Sixth Circuit Narrows Mahmoud v. Taylor and Clarifies Mootness-Damages Split

Introduction

This commentary analyzes the Sixth Circuit’s decision in John & Jane Doe No. 1 v. Bethel Local School District Board of Education, a case arising from a public school district’s decision to allow transgender students to use communal restrooms consistent with their gender identity. The policy change, made in January 2022 on the advice that Title IX required it, prompted a suit by Muslim and Christian parents and students (and one nonreligious parent), who alleged violations of the Free Exercise Clause and parental rights under the Fourteenth Amendment, and sought a declaratory judgment that Title IX does not require schools to adopt gender‑identity‑based restroom policies.

While the appeal was pending, two major developments occurred: (1) the sole transgender student (Anne Roe) left the district and (2) Ohio enacted SB 104 (Ohio Rev. Code § 3319.90(B)(2)) mandating that schools restrict communal restrooms by biological sex. The school district discontinued the challenged policy. These developments mooted the plaintiffs’ requests for injunctive and declaratory relief. The Sixth Circuit thus addressed whether damages remained available and, if so, whether the plaintiffs had viable claims for damages under 42 U.S.C. § 1983.

The core legal issues included: (a) mootness after a change in state law; (b) the appropriate Free Exercise framework after the Supreme Court’s decision in Mahmoud v. Taylor (2025), which recognized a Yoder-like exception to Smith for certain parental religious‑exercise burdens in the school context; and (c) the scope of substantive due process parental rights in relation to non‑curricular, operational school policies and schools’ responsiveness to parent inquiries.

Summary of the Judgment

• Mootness: Because Ohio SB 104 now requires communal restrooms to be restricted by biological sex and the district no longer maintains the challenged policy, the plaintiffs’ requests for injunctive and declaratory relief are moot. A request for damages under the Declaratory Judgment Act, 28 U.S.C. § 2202, is likewise moot because it must be “based on” a declaratory judgment, which is no longer justiciable.
• Damages under § 1983: Claims for damages survive mootness because they are retrospective. The court therefore addressed the merits of two federal claims for damages: Free Exercise and parental rights.
• Free Exercise: The restroom policy was neutral and generally applicable; it contained no individualized exemptions and was adopted to comply with Title IX as then understood. The court held Mahmoud’s Yoder‑like strict‑scrutiny exception inapplicable because the restroom policy was non‑curricular and non‑instructional. Applying rational basis review, the policy was constitutional.
• Parental rights (substantive due process): The school’s operational decision about restroom access, speculative safety concerns, and the district’s failure to answer every parental question did not violate parents’ fundamental rights. Schools have broad authority over non‑academic operations. The claim failed as a matter of law.
• State constitutional claim: With all federal claims dismissed or resolved on the pleadings, the court affirmed the district court’s discretionary decision to decline supplemental jurisdiction over Ohio constitutional claims.
• Concurrence: Judge Larsen agreed with the judgment and core holdings but cautioned against reading Mahmoud too narrowly. Even if Mahmoud could reach beyond curriculum to non‑curricular policies, Bethel provided a meaningful opt‑out (single‑stall restrooms), distinguishing this case from Yoder, Barnette, and Mahmoud, where no opt‑out existed.

Analysis

Precedents Cited and Their Influence

• Mootness and Declaratory Relief
  • TransUnion LLC v. Ramirez (standing per claim and form of relief) and Ford v. Wilder (mootness asks whether requested relief would make a difference to legal interests) guided the court’s relief‑specific jurisdictional analysis.
  • Banas v. Dempsey (6th Cir. 1984): Intervening legal change (here, Ohio SB 104) moots requests to enjoin a no‑longer‑permitted policy.
  • Campbell v. PMI Food Equip. Group, Inc. (6th Cir. 2007) and Allen v. Collins (6th Cir. 2013): Declaratory relief is moot when the challenged policy or manual is rescinded or has expired; a declaration would not affect current legal interests.
  • Ermold v. Davis (6th Cir. 2017) and Gottfried v. Medical Planning Services, Inc. (6th Cir. 2002): Damages claims are retrospective and survive even when injunctive or declaratory claims become moot.
  • Powell v. McCormack: § 2202 “further relief” must be predicated on a live declaratory judgment; without a live § 2201 declaration, § 2202 claims cannot proceed.
• Free Exercise Framework
  • Employment Division v. Smith and Church of the Lukumi Babalu Aye: Neutral, generally applicable policies that incidentally burden religion face rational basis review; targeted or exemption‑laden policies trigger strict scrutiny.
  • Fulton v. City of Philadelphia and Masterpiece Cakeshop: Individualized exemptions and/or hostility to religion defeat neutrality/general applicability and trigger strict scrutiny.
  • Mahmoud v. Taylor (2025), harmonized with Wisconsin v. Yoder and Barnette: Recognizes a heightened scrutiny route where the State substantially interferes with parents’ efforts to instill religious beliefs by compulsory classroom instruction presented in a manner pressuring conformity—especially for young children and without opt‑outs.
  • Parents for Privacy v. Barr (9th Cir. 2020): A similar transgender restroom/locker room policy was found neutral and generally applicable; no anti‑religious motive was alleged.
• Parental Rights
  • Troxel v. Granville and Meyer v. Nebraska: Establish parental liberty to direct the care, custody, and education of children, but recognize the State’s authority to make reasonable regulations of schools.
  • Blau v. Fort Thomas Public School District (6th Cir. 2005) and Skoros v. City of New York (2d Cir. 2006): Non‑academic school operational policies (dress codes, holiday displays) are typically within school control and do not offend parental rights.
  • Gruenke v. Seip (3d Cir. 2000): A school usurped a family’s role in a private crisis (a student’s pregnancy) while withholding information from the parents; materially different from a school’s refusal to answer general policy questions.

Legal Reasoning

1) Jurisdiction and Mootness

The court drew careful distinctions among the types of relief sought, consistent with Article III’s case‑or‑controversy requirement:

• Injunctive relief (moot): The challenged policy no longer exists and state law now forbids reinstatement. An injunction against a defunct policy would serve no purpose. This tracks the logic of Banas.
• Declaratory relief (moot): With the policy rescinded and prohibited by law, a declaration would not affect current legal relations (Campbell). Speculation that SB 104 might later be enjoined was insufficient because the district asserted it is bound by the statute and has no intent to re‑adopt the policy.
• § 2202 “further relief” (moot): Because § 2202 requires a live predicate declaratory judgment under § 2201, the mooting of declaratory relief mooted § 2202 damages as well.
• § 1983 damages (not moot): Damages for past harms are retrospective and remain live even if prospective relief is moot (Ermold).

2) Free Exercise

The plaintiffs argued that the restroom policy substantially burdened their religious exercise (modesty and sex‑separation norms). They urged strict scrutiny under Mahmoud, contending that Bethel’s policy interfered with their children’s religious development akin to Yoder.

The court rejected that framing for two reasons:

• Mahmoud’s scope: The majority viewed Mahmoud as addressing burdens arising from compulsory, instructional, curricular activity, where young students were exposed to viewpoint‑promoting materials without opt‑outs—burdens “of the same character” as Yoder. Bethel’s restroom policy was non‑curricular and did not compel any student to use communal restrooms; single‑occupancy restrooms were available to all.
• Neutrality and general applicability (Smith applies):
  • Neutrality: The policy made no reference to religion and was adopted to comply with Title IX as then interpreted. There were no contemporaneous statements evincing hostility to religion.
  • General applicability: The policy applied uniformly to all students; there were no individualized, discretionary exemptions like in Fulton. Any discomfort—religious or secular—was accommodated in the same way (single‑occupancy restrooms).

Applying rational basis review, the policy survived. The district’s purpose—preventing sex discrimination and complying with Title IX guidance—was legitimate, and permitting restroom use by gender identity was rationally related to that end. Plaintiffs did not negate “every conceivable basis.”

3) Parental Rights (Substantive Due Process)

The parents asserted three theories: (a) the policy itself intruded on their right to direct upbringing; (b) it increased safety risks; and (c) the district’s refusal to answer parental questions violated parental rights.

• Policy as an intrusion: Schools have broad authority over non‑academic operational matters (Blau). The availability of single‑occupancy restrooms meant no student was forced to act against conscience; the high bar of Yoder was not met.
• Safety risks: Plaintiffs offered no concrete incidents; speculative risk is insufficient to override school operational control.
• Refusal to answer questions: Unlike Gruenke, which involved a private family crisis and paternalistic usurpation, this case involved general questions about district policy. There is no recognized fundamental right to compel a school to answer every policy question on demand.

4) State Claims and Supplemental Jurisdiction

After disposing of all federal claims, the court affirmed the district court’s discretionary decision to decline supplemental jurisdiction over Ohio constitutional claims, following the usual practice when federal claims are dismissed before trial.

Impact

• Free Exercise challenges to restroom policies: Within the Sixth Circuit, neutral, non‑curricular policies that apply even‑handedly—with no discretionary exemptions and no anti‑religious animus—will be assessed under Smith’s rational basis. Plaintiffs seeking strict scrutiny must identify individualized exemptions or hostility, or demonstrate a Mahmoud/Yoder‑type burden (compulsory, instruction‑linked interference without opt‑outs).
• Mahmoud’s reach: The concurrence signals that Mahmoud might not be cabined to classroom instruction; some non‑curricular rules could “substantially interfere” with religious development. But even under that broader view, a bona fide, workable opt‑out may avoid the Yoder‑like burden that triggers strict scrutiny. The presence, genuineness, and non‑punitive nature of opt‑outs will likely be litigated.
• Designing policies post‑Doe (Bethel):
  • Document neutral purposes (e.g., compliance with governing law) and apply rules uniformly.
  • Avoid individualized, discretionary exemptions that can defeat general applicability.
  • Provide good‑faith accommodations that are not punitive, especially for sincerely held religious objections. A meaningful opt‑out lowers the risk of a Mahmoud‑triggered strict‑scrutiny review.
  • Ensure the record shows absence of religious hostility in deliberations and communications.
• Mootness strategy and remedies:
  • When intervening law or policy rescission moots prospective relief, damages claims under § 1983 can remain live. Litigants should plead and preserve damages theories early.
  • Requests for “further relief” under the Declaratory Judgment Act (§ 2202) are contingent on a live declaratory judgment under § 2201; mooting the latter moots the former.
• Title IX declaratory disputes: The court did not resolve whether Title IX requires or prohibits gender‑identity‑based restroom access because the claim became moot. In jurisdictions with legislative mandates like Ohio SB 104, similar declaratory claims may often be mooted unless a live policy persists and parties show a non‑speculative likelihood of re‑adoption.
• Parental rights boundaries: This decision reinforces that parental substantive due process rights do not extend to micro‑managing non‑academic operational rules or obligating schools to answer all parental inquiries, absent a private family matter akin to Gruenke.

Complex Concepts Simplified

• Mootness: Courts can only decide live disputes. If events make it impossible for a court to grant meaningful relief (e.g., a policy is rescinded and barred by new law), claims for forward‑looking relief (injunction or declaration) are moot.
• Declaratory Judgment Act (28 U.S.C. §§ 2201–2202): § 2201 allows courts to declare legal rights in a live dispute; § 2202 lets courts grant additional relief “based on” such a declaration. If there’s no live declaratory controversy, § 2202 relief is unavailable.
• § 1983 damages: A vehicle to seek money damages for past constitutional violations by state actors. Such claims are retrospective and generally remain live even if policies change.
• Neutral and generally applicable (Smith): A law is neutral if it neither targets nor shows hostility to religion; it is generally applicable if it applies equally and does not offer discretionary exemptions. Such laws get rational basis review.
• Strict scrutiny: The highest level of judicial review; the government must show its policy is narrowly tailored to serve a compelling interest. Triggered when a law is not neutral/generally applicable or, per Mahmoud/Yoder, when parents face substantial, Yoder‑like interference with their children’s religious development, especially in compulsory instruction without opt‑outs.
• Rational basis: The most deferential review; the policy stands if it is rationally related to a legitimate government interest.
• Individualized exemptions (Fulton): Discretionary case‑by‑case exemptions built into a policy undermine general applicability and can trigger strict scrutiny if religious exemptions are not equally available.
• Parental rights (substantive due process): Parents have a fundamental right to direct their children’s upbringing and education, but schools retain broad authority over reasonable, non‑academic operational rules.

Conclusion

Doe v. Bethel clarifies two important doctrinal points in the Sixth Circuit. First, when intervening law ends a challenged policy and bars its return, courts will moot claims for injunctive and declaratory relief, although § 1983 damages for past conduct may continue. Second, the Free Exercise analysis for school policies after Mahmoud remains anchored in Smith when the policy is neutral, generally applicable, and non‑curricular. The court treats Mahmoud as a targeted exception for Yoder‑like burdens arising from compulsory, instructional settings—particularly where there is no opt‑out. The concurrence underscores that Mahmoud might reach non‑curricular policies in some circumstances, but a genuine, non‑punitive opt‑out meaningfully distinguishes those cases.

On parental rights, the court reinforces limits: operational decisions like restroom management, absent coercion or concrete harm, fall within school discretion and do not create a constitutional duty to supply exhaustive information to parents. Looking ahead, districts designing policies in sensitive areas should maintain neutral rationales, avoid discretionary exemptions, and build workable accommodations. Plaintiffs challenging such policies should assess whether their case genuinely presents a Yoder‑like, opt‑out‑less burden; otherwise, Smith and rational basis will likely control.