Ash Wednesday Issue

Howard Friedman posts a very interesting issue over at his Religious Liberty blog. Here is the passage:

"In Bakersfield, California, parent Nona Darling is complaining to school authorities about policies that make it difficult for children to miss school for religious holidays. Darling wanted to take her children out of school at noon on Ash Wednesday to attend services. However, the school said that if she did, the children would be given an "unexcused" absence. The Bakersfield Californian yesterday said it is not clear to what extent the school's policy, that gives excused absences for doctor's appointments, sickness, and funerals, but only in limited situations for religious observances, reflects the state's education code."

This looks like a pretty clear violation of Free Exercise under Smith, both because the policy is substantially underinclusive ( the broad exemptions for doctor's visits, sickness, and funerals--what about for weddings and varsity athletics?--appear to render the mandatory attendance policy non-generally applicable) and because it appears to contain an individualized exemption process for determining which religious observances are excused and which are not.

Any thoughts?