Amicus Curiae Brief — John and Jane Parents 1, et al., Petitioners v. Montgomery County Board of Education, et al.

No. 23-601

In the

Supreme Court of the United States

__________________

JOHN AND JANE PARENTS 1, ET AL.,

Petitioners,

v.

MONTGOMERY COUNTY BOARD OF EDUCATION, ET AL.,

Respondents.

__________________

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

__________________

BRIEF OF AMICUS CURIAE INSTITUTE

FOR FAITH AND FAMILY

IN SUPPORT OF PETITIONERS

__________________

Tami Fitzgerald

The Institute for Faith

And Family

9650 Strickland Road

Suite 103-222

Raleigh, NC 27615

(980) 404-2880

tfitzgerald@ncvalues.org

Deborah J. Dewart

Counsel of Record

Attorney at Law

111 Magnolia Lane

Hubert, NC 28539

(910) 326-4554

lawyerdeborah@outlook.com

Counsel for Amicus Curiae

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . iii

IDENTITY AND INTEREST OF AMICUS

CURIAE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

INTRODUCTION AND SUMMARY. . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

I.

THE POLICY VIOLATES THE FIRST

AMENDMENT BY COMPELLING SPEECH.

..................................... 2

II.

COMPELLED SPEECH AND VIEWPOINT

DISCRIMINATION ARE UNIQUELY

PERNICIOUS

FREE

SPEECH

VIOLATIONS. . . . . . . . . . . . . . . . . . . . . . . . . . 4

A. The Policy is a paradigmatic example of

compelled speech that is anathema to the

First Amendment. . . . . . . . . . . . . . . . . . . . 7

B. The Policy transgresses liberties of

religion and conscience. . . . . . . . . . . . . . . . 7

C. The Policy exemplifies the blatant

viewpoint discrimination characteristic of

tyrannical government. . . . . . . . . . . . . . . . 9

D. Viewpoint-based compelled speech stifles

debate and attacks the dignity of those

who disagree with the prevailing state

orthodoxy. . . . . . . . . . . . . . . . . . . . . . . . . . 12

ii

E. The

prohibition

of

viewpoint

discrimination, now firmly entrenched in

this Court’s precedent, is a necessary

component of the Free Speech Clause. . . 15

III.

THE POLICY DOES NOT CONCERN

CURRICULUM OR ANY OTHER

LEGITIMATE PURPOSE. . . . . . . . . . . . . . . 19

A. Transgender ideology is a matter of

intense public concern.. . . . . . . . . . . . . . . 20

B. MCBE has no legitimate purpose in

suppressing any person’s viewpoint about

“gender identity” or compelling expression

of a view the person does not hold. . . . . . 20

C. Schools can affirm the dignity of every

student without sacrificing the

constitutional liberties of either faculty or

other students. . . . . . . . . . . . . . . . . . . . . . 23

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

iii

TABLE OF AUTHORITIES

Cases

303 Creative, LLC v. Elenis,

143 S. Ct. 2298 (2023). . . . . . . . . 11, 12, 13, 15, 18

Abrams v. United States,

250 U.S. 616 (1919). . . . . . . . . . . . . . . . . . . . . . . 15

Ashcroft v. Free Speech Coal.,

535 U.S. 234 (2002). . . . . . . . . . . . . . . . . . . . . 9, 10

Benton v. Maryland,

395 U.S. 784 (1969). . . . . . . . . . . . . . . . . . . . . . 5, 6

Boy Scouts of Am. v. Dale,

530 U.S. 640 (2000). . . . . . . . . . . . . . . . . . 4, 21, 22

Brown v. Li,

308 F.3d 939 (9th Cir. 2002). . . . . . . . . . . . . . . . 21

Capitol Square Review & Advisory Bd. v. Pinette,

515 U.S. 753 (1995). . . . . . . . . . . . . . . . . . . . . . . . 7

Carey v. Brown,

447 U.S. 455 (1980). . . . . . . . . . . . . . . . . . . . . . . 17

Cohen v. California,

403 U.S. 15 (1971). . . . . . . . . . . . . . . . . . . . . 15, 16

Coles ex rel. Coles v. Cleveland Bd. of Educ.,

171 F.3d 369 (6th Cir. 1999). . . . . . . . . . . . . 23, 24

Doe v. University of Michigan,

721 F.Supp.852 (E.D. Mich. 1989) . . . . . . . . . . . 21

Girouard v. United States,

328 U.S. 61 (1946). . . . . . . . . . . . . . . . . . . . . . . . . 9

iv

Good News Club v. Milford Central School,

533 U.S. 98 (2001). . . . . . . . . . . . . . . . . . . . . . . . 18

Hurley v. Irish-American Gay, Lesbian & Bisexual

Group of Boston,

515 U.S. 557 (1995). . . . . . . . 10, 11, 13, 14, 18, 23

Iancu v. Brunetti,

139 S. Ct. 2294 (2019). . . . . . . . . . . . . . . . . . 12, 19

Janus v. Am. Fed’n of State, Cnty. & Mun. Emps.,

Council 31,

138 S. Ct. 2448 (2018). . . . . . . . . . . . . . . . 6, 12, 20

John & Jane Parents 1 v. Montgomery Cnty. Bd. of

Educ.,

622 F. Supp. 3d 118 (S.D. Md. 2022) . . . . . . . 3, 21

John & Jane Parents 1 v. Montgomery Cnty. Bd. of

Educ.,

78 F.4th 622 (4th Cir. 2023) . . . . . . . . . . . . . . . . . 3

Keyishian v. Bd. of Regents,

385 U.S. 589 (1967). . . . . . . . . . . . . . . . . . . . 19, 24

Lamb’s Chapel v. Center Moriches Union Free

School District,

508 U.S. 384 (1993). . . . . . . . . . . . . . . . . . . . . . . 17

Lee v. Weisman,

505 U.S. 577 (1992). . . . . . . . . . . . . . . . . . . . . 9, 23

Matal v. Tam,

137 S. Ct. 1744 (2017). . . . . . . . . . . . . 4, 15, 18, 19

Meriwether v. Hartop,

992 F.3d 492 (6th Cir. 2021). . . . . . . . . . . . . 20, 24

v

Mozert v. Hawkins County Bd. of Education,

827 F.2d 1058 (6th Cir. 1987). . . . . . . . . . . . . . . 21

National Institute of Family & Life Advocates v.

Becerra (NIFLA),

138 S. Ct. 2361 (2018). . . . . . . . . 3, 4, 9, 10, 13, 18

Pacific Gas & Electric Co. v. Public Utilities

Comm’n of Cal.,

475 U.S. 1 (1986). . . . . . . . . . . . . . . . 10, 16, 22, 23

Palko v. Connecticut,

302 U.S. 319 (1937). . . . . . . . . . . . . . . . . . . . . . . . 5

Parents Defending Educ. v. Linn Mar Cmty. Sch.

Dist.,

83 F.4th 658 (8th Cir. 2023) . . . . . . . . . . . . . . . . . 1

Parents Defending Educ. v. Linn Mar Cmty. Sch.

Dist.,

629 F. Supp. 3d 891 (S.D. Ia. 2022) . . . . . . . . . . . 5

Parker v. Hurley,

514 F.3d 87 (1st Cir. 2008) . . . . . . . . . . . . . . . . . 21

Perry Education Ass’n v. Perry Local Educators’

Ass’n,

460 U.S. 37 (1983). . . . . . . . . . . . . . . . . . . . . . . . 16

Police Department of Chicago v. Mosley,

408 U.S. 92 (1972). . . . . . . . . . . . . . . . . . . . . . . . 16

R.A.V. v. City of St. Paul,

505 U.S. 377 (1992). . . . . . . . . . . . . . . . . . . . . . . 17

Reed v. Town of Gilbert,

135 S. Ct. 2215 (2015). . . . . . . . . . . . . . . . . . . . . 18

vi

Riley v. Nat’l Fed’n of the Blind of N.C., Inc.,

487 U.S. 781 (1988). . . . . . . . . . . . . . . . . . . . . . 4, 6

Rosenberger v. Rector & Visitors of Univ. of Va.,

515 U.S. 819 (1995). . . . . . . . . . . . . . . . . 12, 13, 18

Schneiderman v. United States,

320 U.S. 118 (1943). . . . . . . . . . . . . . . . . . . . . . . . 6

Settle v. Dickson County Sch. Bd.,

53 F.3d 152 (6th Cir. 1995). . . . . . . . . . . . . . . . . 21

Shelton v. Tucker,

364 U.S. 479 (1960). . . . . . . . . . . . . . . . . . . . . 6, 19

Sweezy v. New Hampshire,

354 U.S. 234 (1957). . . . . . . . . . . . . . . . . . . . . . . 22

Texas v. Johnson,

491 U.S. 397 (1989). . . . . . . . . . . . . . 16, 17, 20, 21

Thomas v. Collins,

323 U.S. 516 (1945). . . . . . . . . . . . . . . . . . . . . . . 13

Turner Broadcasting Systems, Inc. v. FCC,

512 U. S. 622 (1994) . . . . . . . . . . . . . . . . . . . 12, 18

United States v. Schwimmer,

279 U.S. 644 (1929). . . . . . . . . . . . . . . . . . . . . . . . 4

West Virginia State Board of Education v. Barnette,

319 U.S. 624 (1943). . . . . . . . . . 3, 4, 6, 10, 11, 12,

15, 18, 22, 24

Wooley v. Maynard,

430 U.S. 705 (1977). . . . . . . . . . . 3, 4, 6, 11, 18, 22

vii

State Constitutions

Alabama Const. Art. I, Sec. 4. . . . . . . . . . . . . . . . . . . 8

A.R.S. Const. Art. II, § 12 . . . . . . . . . . . . . . . . . . . . . 8

Alaska Const. Art. I, § 4. . . . . . . . . . . . . . . . . . . . . . . 8

Ark. Const. Art. 2, § 24 . . . . . . . . . . . . . . . . . . . . . . . 8

Cal. Const. art. I, § 4 . . . . . . . . . . . . . . . . . . . . . . . . . 8

Colo. Const. Art. II, Section 4 . . . . . . . . . . . . . . . . . . 8

Conn. Const. Art. I., Sec. 3. . . . . . . . . . . . . . . . . . . . . 8

Del. Const. art I, § 1 . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Fla. Const. Art. I, § 3 . . . . . . . . . . . . . . . . . . . . . . . . . 8

Ga. Const. Art. I, § I, Para. III. . . . . . . . . . . . . . . . . . 8

HRS Const. Art. I, § 4 . . . . . . . . . . . . . . . . . . . . . . . . 8

Idaho Const. Art. I, § 4. . . . . . . . . . . . . . . . . . . . . . . . 8

Illinois Const., Art. I, § 3 . . . . . . . . . . . . . . . . . . . . . . 8

Ind. Const. Art. 1, §§ 2, 3 . . . . . . . . . . . . . . . . . . . . . . 8

Iowa Const. Art. I, § 3 . . . . . . . . . . . . . . . . . . . . . . . . 8

Kan. Const. B. of R. § 7 . . . . . . . . . . . . . . . . . . . . . . . 8

Ky. Const. § 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

La. Const. Art. I, § 8. . . . . . . . . . . . . . . . . . . . . . . . . . 8

ALM Constitution Appx. Pt. 1, Art. II. . . . . . . . . . . . 8

Me. Const. Art. I, § 3 . . . . . . . . . . . . . . . . . . . . . . . . . 8

viii

Md. Dec. of R. art. 36 . . . . . . . . . . . . . . . . . . . . . . . . . 8

MCLS Const. Art. I, § 4 . . . . . . . . . . . . . . . . . . . . . . . 8

Minn. Const. art. 1, § 16 . . . . . . . . . . . . . . . . . . . . . . 8

Miss. Const. Ann. Art. 3, § 18 . . . . . . . . . . . . . . . . . . 8

Mo. Const. Art. I, § 5 . . . . . . . . . . . . . . . . . . . . . . . . . 8

Mont. Const., Art. II § 5 . . . . . . . . . . . . . . . . . . . . . . . 8

Ne. Const. Art. I, § 4 . . . . . . . . . . . . . . . . . . . . . . . . . 8

Nev. Const. Art. 1, § 4 . . . . . . . . . . . . . . . . . . . . . . . . 8

N.H. Const. Pt. FIRST, Art. 4 and Art. 5 . . . . . . . . . 8

N.J. Const., Art. I, Para. 3 . . . . . . . . . . . . . . . . . . . . . 8

N.M. Const. Art. II, § 11 . . . . . . . . . . . . . . . . . . . . . . 8

NY CLS Const Art I, § 3. . . . . . . . . . . . . . . . . . . . . . . 8

N.C. Const. art. I, § 13 . . . . . . . . . . . . . . . . . . . . . . . . 8

N.D. Const. Art. I, § 3 . . . . . . . . . . . . . . . . . . . . . . . . 8

Oh. Const. art. I, § 7. . . . . . . . . . . . . . . . . . . . . . . . . . 8

Okl. Const. Art. I, § 2 . . . . . . . . . . . . . . . . . . . . . . . . . 9

Ore. Const. Art. I, §§ 2, 3 . . . . . . . . . . . . . . . . . . . . . . 8

Pa. Const. Art. I, § 3. . . . . . . . . . . . . . . . . . . . . . . . . . 8

R.I. Const. Art. I, § 3 . . . . . . . . . . . . . . . . . . . . . . . . . 8

S.C. Const. Ann. Art. I, § 2 . . . . . . . . . . . . . . . . . . . . 8

S.D. Const. Article VI, § 3 . . . . . . . . . . . . . . . . . . . . . 8

ix

Tenn. Const. Art. I, § 3. . . . . . . . . . . . . . . . . . . . . . . . 8

Tex. Const. Art. I, § 6 . . . . . . . . . . . . . . . . . . . . . . . . . 8

Utah Const. Art. I, § 4 . . . . . . . . . . . . . . . . . . . . . . . . 8

Vt. Const. Ch. I, Art. 3 . . . . . . . . . . . . . . . . . . . . . . . . 8

Va. Const. Art. I, § 16. . . . . . . . . . . . . . . . . . . . . . . . . 8

Wash. Const. art. 1, § 11 . . . . . . . . . . . . . . . . . . . . . . 8

W. Va. Const. Art. III, § 15 . . . . . . . . . . . . . . . . . . . . 8

Wis. Const. Art. I, § 18 . . . . . . . . . . . . . . . . . . . . . . . . 8

Wyo. Const. Art. 1, § 18 . . . . . . . . . . . . . . . . . . . . . . . 8

Other Authorities

Lackland H. Bloom, Jr., The Rise of the ViewpointDiscrimination Principle, 72 SMU L. Rev. F. 20

(2019). . . . . . . . . . . . . . . . . . . . . . 15, 16, 17, 18, 19

Robert Bolt, A Man For All Seasons: A Play in Two

Acts (1st ed., Vintage Int’l 1990) (1962). . . . . . . . 3

Richard F. Duncan, Seeing the No-CompelledSpeech Doctrine Clearly Through the Lens of

Telescope Media, 99 Neb. L. Rev. 58 (2020). . 5, 6,

9, 10, 11, 12, 13, 14

Richard F. Duncan, Article: Defense Against the

Dark Arts: Justice Jackson, Justice Kennedy,

and the No-Compelled Speech Doctrine, 32

Regent U. L. Rev. 265 (2019-2020). . . . . . . 2, 3, 4,

7, 10, 12, 18

x

Robert P. George, Facebook (Aug. 2, 2017),

https://www.facebook.com/

RobertPGeorge/posts/10155417655377906 . . . . . 7

Erica Goldberg, “Good Orthodoxy” and the Legacy of

Barnette, 13 FIU L. Rev. 639 (2019) . . . 10, 14, 23

Paul Horwitz, A Close Reading of Barnette, in

Honor of Vincent Blasi, 13 FIU L. Rev. 689

(2019). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 12

George Orwell, “1984”

(Penguin Group 1977) (1949) . . . . . . . . . . . . . . . . 9

1

IDENTITY AND INTEREST

OF AMICUS CURIAE1

Amicus curiae urges this Court to grant the Petition

for Certiorari and reverse the decision of the Fourth

Circuit.

The Institute for Faith and Family is a North

Carolina nonprofit organization that exists to preserve

and promote faith, family, and freedom through public

policies that protect constitutional liberties, including

the right to live and work according to conscience and

faith. See https://iffnc.com. IFFNC is engaged in

fighting policies like the one challenged here.

INTRODUCTION AND SUMMARY

Transgender ideology is invading many areas of

American life at a rapidly escalating rate. The “Gender

Identity” Guidelines issued by the Montgomery County

Board of Education (“MCBE”) contains a “Parental

Exclusion Policy.” Amicus curiae urges the Court to

consider the alarming First Amendment violations

inherent in this type of policy, a growing national trend

that has spawned numerous legal challenges. See, e.g.,

Parents Defending Educ. v. Linn Marr Cmty. Sch. Dist.,

83 F.4th 658, *14-15 (8th Cir. 2023). The Policy

threatens First Amendment rights by demanding use

of a minor child’s preferred name and pronouns—not

1

Counsel of record for all parties received notice at least 10 days

prior to the due date of amicus curiae’s intention to file this brief.

Amicus curiae certifies that no counsel for a party authored this

brief in whole or in part and no person or entity, other than amicus

curiae, its members, or its counsel, has made a monetary

contribution to its preparation or submission.

2

only without parental consent but intentionally

deceiving parents and excluding them from their child’s

“gender support plan.” This coerced acceptance of

transgender ideology exacerbates the Policy’s massive

intrusion on parental rights.

The Policy’s combination of speech and viewpoint

compulsion is a formula for tyranny that cannot be

salvaged by appealing to MCBE’s right to determine

the content of educational curriculum. Pronouns are an

integral part of everyday speech based on objective

biological reality and often coupled with the belief that

each person is created immutably male or female. This

aspect of speech touches a matter of public concern.

Parents, students, and school personnel do not sacrifice

their constitutional rights as a condition of

participating in public education. Not everyone accepts

transgender ideology or believes that a person can

transition from one sex to the other. The First

Amendment safeguards the rights of personnel,

students, and parents to think and speak according to

each one’s own beliefs, even in public schools.

ARGUMENT

I.

THE POLICY VIOLATES THE FIRST

AMENDMENT BY COMPELLING SPEECH.

There is hardly a more “dramatic example of

authoritarian government and compelled speech” than

when King Henry commanded Sir Thomas More to sign

a statement blessing the King’s divorce and

remarriage. Richard F. Duncan, Article: Defense

Against the Dark Arts: Justice Jackson, Justice

Kennedy, and the No-Compelled Speech Doctrine, 32

3

Regent U. L. Rev. 265, 292 (2019-2020), citing Robert

Bolt, A Man For All Seasons: A Play in Two Acts (1st

ed., Vintage Int’l 1990) (1962). Thomas More, a faithful

Catholic, could not sign.

Five centuries later, MCBE has created a

conundrum that is no less momentous than Thomas

More’s predicament. Under the Policy, school personnel

must use a child’s preferred name and pronouns.

Additionally, personnel must deceive the parents, if

they are deemed “unsupportive,” by withholding

information and reverting to the child’s legal name and

correct sex in communications with them. John & Jane

Parents 1 v. Montgomery Cnty. Bd. of Educ., 622 F.

Supp. 3d 118, 126 (S.D. Md. 2022); John & Jane

Parents 1 v. Montgomery Cnty. Bd. of Educ., 78 F.4th

622, 637-638 (4th Cir. 2023) (Niemeyer, J., dissenting).

The Policy reeks of viewpoint-based compelled speech.

As in Barnette, there is “probably no deeper division”

than a conflict provoked by the choice of “what doctrine

. . . public educational officials shall compel youth to

unite in embracing.” Duncan, Dark Arts, 32 Regent U.

L. Rev. at 292, citing West Virginia State Board of

Education v. Barnette, 319 U.S. 624, 641 (1943). The

Policy does not implicate curriculum but does reflect

the deep divisions over what position public schools

should assume concerning sexuality. These divisions

impact the speech of everyone involved in public

education.

Compelled speech is anathema to the First

Amendment, particularly where government mandates

conformity to its preferred viewpoint. Barnette, Wooley,

NIFLA and other “eloquent and powerful opinions”

4

stand as “landmarks of liberty and strong shields

against an authoritarian government’s tyrannical

attempts to coerce ideological orthodoxy.” Duncan,

Dark Arts, 32 Regent U. L. Rev. at 266; Barnette, 319

U.S. 624; Wooley v. Maynard, 430 U.S. 705 (1977);

National Institute of Family & Life Advocates v.

Becerra (“NIFLA”), 138 S. Ct. 2361 (2018). The Policy

demands conformity to the government’s controversial

transgender ideology.

II.

COMPELLED SPEECH AND VIEWPOINT

DISCRIMINATION ARE UNIQUELY

PERNICIOUS

FREE

SPEECH

VIOLATIONS.

The “proudest boast” of America’s free speech

jurisprudence is that we safeguard “the freedom to

express ‘the thought that we hate.’” Matal v. Tam, 137

S. Ct. 1744, 1764 (2017) (quoting United States v.

Schwimmer, 279 U.S. 644, 655 (1929) (Holmes, J.,

dissenting)). Gender identity may be “embraced and

advocated by increasing numbers of people,” but that is

“all the more reason to protect the First Amendment

rights of those who wish to voice a different view.” Boy

Scouts of Am. v. Dale, 530 U.S. 640, 660 (2000). Our

law also protects the right to remain silent—to not

express viewpoints a speaker hates. Compelled

expression is even worse than compelled silence

because compelled speech affirmatively associates the

speaker with a viewpoint he does not hold.

The Policy “[m]andates speech” many “would not

otherwise make” and “exacts a penalty” for

noncompliance. Riley v. Nat’l Fed’n of the Blind of N.C.,

Inc., 487 U.S. 781, 795 (1988). The Policy demands that

5

personnel and students make assertions they know are

false, such as using male pronouns for a biological

female or female pronouns for a biological male—all

based on the command of a gender-confused child. This

viewpoint-based mandate requires endorsement of

transgender ideology regardless of conscience or faith.

It is not an adequate response to suggest the absence

of names and pronouns when speaking to a

transgender student, or using the plural “they” instead

of singular pronouns. Parents Defending Educ. v. Linn

Mar Cmty. Sch. Dist., 629 F. Supp. 3d 891, 909-910

(S.D. Ia. 2022). Nor is it reasonable to presume

“students will not interact, again, intentionally and

unintentionally, with students with whom they

fundamentally disagree or whose lifestyles they do not

agree with.” Id., 910. This severe limitation on

association flouts “diversity” and “inclusion,” creating

the very discrimination the Policy purportedly

eliminates.

“When the law strikes at free speech it hits human

dignity . . . when the law compels a person to say that

which he believes to be untrue, the blade cuts deeper

because it requires the person to be untrue to himself,

perhaps even untrue to God.” Richard F. Duncan, NoCompelled-Speech, 99 Neb. L. Rev. 58, 59 (2020)

(emphasis added). The Policy combines the worst of two

worlds—compelled speech and viewpoint

discrimination.

Freedom of thought is the “indispensable condition”

of “nearly every other form of freedom.” Palko v.

Connecticut, 302 U.S. 319, 326-27 (1937)), overruled on

other grounds by Benton v. Maryland, 395 U.S. 784

6

(1969). This freedom undergirds the First Amendment

and merits “unqualified attachment.” Schneiderman v.

United States, 320 U.S. 118, 144 (1943). The distinction

between compelled speech and compelled silence is

“without constitutional significance.” Riley, 487 U.S. at

796. These two are “complementary components” of the

“individual freedom of mind.” Wooley, 430 U.S. at 714;

Barnette, 319 U.S. at 637. Together they guard “both

the right to speak freely and the right to refrain from

speaking at all.” Wooley, 430 U.S. at 714; Barnette, 319

U.S. at 633-634; id., at 645 (Murphy, J., concurring). A

system that protects the right to promote ideological

causes “must also guarantee the concomitant right to

decline to foster such concepts.” Wooley, 430 U.S. at

714; Duncan, No-Compelled-Speech, 99 Neb. L. Rev. at

63.

The Policy is a government demand that forces

students, teachers, and parents to become

“instrument[s] for fostering . . . an ideological point of

view” many find “morally objectionable.” Wooley, 430

U.S. at 714-715. A government edict that commands

“involuntary affirmation” demands “even more

immediate and urgent grounds than a law demanding

silence.” Janus v. AFSCME, Council 31, 138 S. Ct.

2448, 2464 (2018), citing Barnette, 319 U.S. at 633

(internal quotation marks omitted). Even a legitimate

and substantial government purpose “cannot be

pursued by means that broadly stifle fundamental

personal liberties when the end can be more narrowly

achieved.” Wooley, 430 U.S. at 716-717, citing

Shelton v. Tucker, 364 U.S. 479, 488 (1960). The Policy

cannot jump this hurdle.

7

A. The Policy is a paradigmatic example of

compelled speech that is anathema to

the First Amendment.

Compelled speech “invades the private space of

one’s mind and beliefs.” Richard F. Duncan, Dark Arts,

32 Regent U. L. Rev. at 275. While “ordinary

authoritarians” merely demand silence, “[t]otalitarians

insist on forcing people to say things they know or

believe to be untrue.” Id., quoting Robert P. George.2

The Policy issues a totalitarian demand to adopt a

distorted view of reality that aligns with whatever

“gender identity” any child demands. Many cannot in

good conscience comply.

B. The Policy transgresses liberties of

religion and conscience.

In addition to speech, the Policy encroaches on

religious liberty and conscience. Religious speech is not

only “as fully protected . . . as secular private

expression,” but historically, “government suppression

of speech has so commonly been directed precisely at

religious speech that a free-speech clause without

religion would be Hamlet without the prince.” Capitol

Square Review & Advisory Bd. v. Pinette, 515 U.S. 753,

760 (1995) (cleaned up). Convictions about sexuality

are integrally intertwined with religion and conscience,

as many faith traditions have strong teachings about

sexual morality, marriage, and the distinction between

male and female. Compelled speech—that a boy is a

2

Robert P. George, Facebook (Aug. 2, 2017), Professor of

Jurisprudence at Princeton, https://www.facebook.com/

RobertPGeorge/posts/10155417655377906.

8

girl or a girl is a boy—tramples deeply held religious

beliefs and attacks conscience.

The vast majority of state constitutions expressly

define religious liberty in terms of conscience.3 A few do

not use the term “conscience” but nevertheless protect

their citizens against state compulsion.4 Some limit

religious liberty only by licentiousness or threats to

public morals, peace and/or safety.5 Several essentially

duplicate the federal Constitution.6 Oklahoma provides

for “perfect toleration of religious sentiment” and

3

See A.R.S. Const. Art. II, § 12; Ark. Const. Art. 2, § 24; Cal.

Const. art. I, § 4; Colo. Const. Art. II, Section 4; Del. Const. art I,

§ 1; Ga. Const. Art. I, § I, Para. III-IV; Idaho Const. Art. I, § 4;

Illinois Const., Art. I, § 3; Ind. Const. Art. 1, §§ 2, 3; Kan. Const. B.

of R. § 7; Ky. Const. § 1; ALM Constitution Appx. Pt. 1, Art. II; Me.

Const. Art. I, § 3; MCLS Const. Art. I, § 4; Minn. Const. art. 1,

§ 16; Mo. Const. Art. I, § 5; Ne. Const. Art. I, § 4; Nev. Const.

Art. 1, § 4; N.H. Const. Pt. FIRST, Art. 4 and Art. 5; N.J. Const.,

Art. I, Para. 3; N.M. Const. Art. II, § 11; NY CLS Const Art I, § 3;

N.C. Const. art. I, § 13; N.D. Const. Art. I, § 3; Oh. Const. art. I,

§ 7; Ore. Const. Art. I, §§ 2, 3; Pa. Const. Art. I, § 3; R.I. Const.

Art. I, § 3; S.D. Const. Article VI, § 3; Tenn. Const. Art. I, § 3; Tex.

Const. Art. I, § 6; Utah Const. Art. I, § 4; Vt. Const. Ch. I, Art. 3;

Va. Const. Art. I, § 16; Wash. Const. art. 1, § 11; Wis. Const. Art. I,

§ 18; Wyo. Const. Art. 1, § 18.

4

Alabama Const. Art. I, Sec. 4; Iowa Const. Art. I, § 3; Md. Dec. of

R. art. 36; W. Va. Const. Art. III, § 15.

5

Conn. Const. Art. I., Sec. 3; Fla. Const. Art. I, § 3; Md. Dec. of R.

art. 36; Miss. Const. Ann. Art. 3, § 18.

6

Alaska Const. Art. I, § 4; HRS Const. Art. I, § 4; La. Const. Art. I,

§ 8; Mont. Const., Art. II § 5; S.C. Const. Ann. Art. I, § 2.

9

prohibits any religious test to exercise civil rights. Okl.

Const. Art. I, § 2.

The Bill of Rights recognizes that in the domain of

conscience there is a moral power higher than the

State. Girouard v. United States, 328 U.S. 61, 68

(1946). Courts have an affirmative “duty to guard and

respect that sphere of inviolable conscience and belief

which is the mark of a free people.” Lee v. Weisman,

505 U.S. 577, 592 (1992). The Policy assaults liberty of

thought and conscience, compelling participants in

public education “to contradict [their] most deeply held

beliefs, beliefs grounded in basic philosophical, ethical,

or religious precepts”—by affirming the lie that a

biological female is a male (or a biological male is a

female). NIFLA, 138 S. Ct. at 2379 (Kennedy, J.,

concurring); see Duncan, No-Compelled-Speech, 99 Neb.

L. Rev. at 65-66.

C. The Policy exemplifies the blatant

viewpoint discrimination characteristic

of tyrannical government.

“The possibility of enforcing not only complete

obedience to the will of the State, but complete

uniformity of opinion on all subjects, now existed for

the first time.” George Orwell, “1984” 206 (Penguin

Group 1977) (1949) (emphasis added).

Viewpoint discrimination ushers in an Orwellian

system that destroys liberty of thought. As Justice

Kennedy cautioned, “The right to think is the

beginning of freedom, and speech must be protected

from the government because speech is the beginning

of thought.” Ashcroft v. Free Speech Coal., 535 U.S. 234,

10

253 (2002); see Duncan, Dark Arts, 32 Regent U. L.

Rev. at 265. The Policy imperils these liberties.

“[T]he history of authoritarian government . . .

shows how relentless[ly] authoritarian regimes . . .

stifle free speech.” NIFLA, 138 S. Ct. at 2379 (Kennedy,

J., concurring). There is “no such thing as good

orthodoxy” under a Constitution that safeguards

thought, speech, conscience, and religion, even when

the government pursues seemingly benign purposes

like national allegiance (Barnette), equality, or

tolerance. Erica Goldberg, “Good Orthodoxy” and the

Legacy of Barnette, 13 FIU L. Rev. 639, 643 (2019).

“Even commendable public values can furnish the

spark for the dynamic that Jackson insists leads to the

‘unanimity of the graveyard.’” Paul Horwitz, A Close

Reading of Barnette, in Honor of Vincent Blasi, 13 FIU

L. Rev. 689, 723 (2019).

Every speaker must decide “what to say and what

to leave unsaid.” Hurley v. Irish-American Gay,

Lesbian & Bisexual Group of Boston, 515 U.S. 557, 575

(1995), quoting Pacific Gas & Electric Co. v. Public

Utilities Comm’n, 475 U.S. 1, 11 (1986) (plurality

opinion) (emphasis in original). An individual’s

“intellectual autonomy” is the freedom to say what that

person believes is true and to refrain from saying what

is false. Duncan, No-Compelled-Speech, 99 Neb. L. Rev.

at 85. A speaker’s choice “not to propound a particular

point of view” is “beyond the government’s power to

control,” regardless of the speaker’s rationale. Hurley,

515 U.S. at 575. There is “no more certain antithesis”

to free speech than a government mandate imposed to

produce “orthodox expression.” Id. at 579. Such a

11

restriction “grates on the First Amendment.” Id. “Only

a tyrannical [School Board]” “requires one to say that

which he believes is not true,” e.g., that “two plus two

make five.” Id. Here, the Policy requires personnel (and

students) to make false statements about the sex of a

gender-confused student.

This Court has never upheld a viewpoint-based

mandate compelling “an unwilling speaker to express

a message that takes a particular ideological position

on a particular subject.” Duncan, No-CompelledSpeech, 99 Neb. L. Rev. at 78; see 303 Creative, LLC v.

Elenis, 143 S. Ct. 2298 (2023). But that is precisely

what the Policy requires, darkening the “fixed star in

our constitutional constellation” that forbids any

government official, “high or petty,” from prescribing

“what shall be orthodox in politics, nationalism,

religion, or other matters of opinion or force citizens to

confess by word or act their faith therein.” Barnette,

319 U.S. at 642. Regardless of the current cultural

acceptance of transgenderism, MCBE’s interest in

disseminating that ideology “cannot outweigh [a

student’s or teacher’s] First Amendment right to avoid

becoming the courier for such message.” Wooley, 430

U.S. at 717. Barnette, Wooley, and 303 Creative all

solidify the principle that government lacks the “power

to compel a person to speak, compose, create, or

disseminate a message on any matter of political,

ideological, religious, or public concern.” Duncan, NoCompelled-Speech, 99 Neb. L. Rev. at 63-64. The Policy

is even more intrusive than in Wooley, where the state

did not “require an individual to speak any words,

affirm any beliefs, or create or compose any expressive

message,” but rather to serve as a “mobile billboard” for

12

an ideological message obviously attributable to the

state. Id. at 63. Even this passive display violated the

First Amendment because it “usurp[ed] speaker

autonomy.” Id. at 76.

D. Viewpoint-based compelled speech

stifles debate and attacks the dignity of

those who disagree with the prevailing

state orthodoxy.

Viewpoint discrimination is “an egregious form of

content discrimination.” Rosenberger v. Rector &

Visitors of Univ. of Va., 515 U.S. 819, 829 (1995). It

creates a “substantial risk of excising certain ideas or

viewpoints from the public dialogue.” Turner Broad.

Sys., Inc. v. FCC, 512 U.S. 622, 642 (1994). This is

“poison to a free society.” Iancu v. Brunetti, 139 S. Ct.

2294, 2302 (2019) (Alito, J., concurring).

Citizens who hold competing views on public issues

may use the political process to enact legislation

consistent with their views, but under Barnette and 303

Creative, the government may not “insist that the

victory of one side, of one creed or value, be

memorialized by compelling the defeated side to

literally give voice to its submission.” Duncan, Dark

Arts, 32 Regent U. L. Rev. at 278, quoting Horwitz, A

Close Reading of Barnette, 13 FIU L. REV. at 723.

“Forcing free and independent individuals to endorse

ideas they find objectionable is always demeaning.”

Janus, 138 S. Ct. at 2464.

“Generally, the government may not compel a

person to speak its own preferred messages.” 303

Creative, 143 S. Ct. at 2312. The government may not

13

regulate speech “when the specific motivating ideology

or the opinion or perspective of the speaker is the

rationale for the restriction.” Rosenberger, 515 U.S. at

829. The Policy is “a paradigmatic example of the

serious threat presented when government seeks to

impose its own message,” replacing individual

expression. NIFLA, 138 S. Ct. at 2379 (Kennedy, J.,

concurring). The Policy’s viewpoint-based compulsion

to speak seeks not only to control content (names and

pronouns) but also to promote an ideology unacceptable

to many students, their families, and school personnel.

Such coerced compliance attacks dignity. “Freedom of

thought, belief, and speech are fundamental to the

dignity of the human person.” Duncan, No-CompelledSpeech, 99 Neb. L. Rev. at 59. “The framers designed

the Free Speech Clause of the First Amendment to

protect the freedom to think as you will and to speak as

you think.” 303 Creative, 143 S. Ct. at 2310 (cleaned

up).

The Policy contravenes “[t]he very purpose of the

First Amendment . . . to foreclose public authority from

assuming a guardianship of the public mind through

regulating the press, speech, and religion.” Thomas v.

Collins, 323 U.S. 516, 545 (1945) (Jackson, J.,

concurring). This is dangerous to a free society where

the government must respect a wide range of diverse

viewpoints. The government itself may adopt a

viewpoint but may never “interfere with speech for no

better reason than promoting an approved message or

discouraging a disfavored one, however enlightened

either purpose may strike the government.” Hurley,

515 U.S. at 579.

14

MCBE may not enhance the dignity of transgender

students by censoring the protected expression of other

persons or compelling regurgitation of the state’s

preferred message. That is exactly what the Policy

attempts, but this purpose is “insufficient to override

First Amendment concerns.” Goldberg, “Good

Orthodoxy”, 13 FIU L. Rev. at 664. Even when it is

appropriate to regulate harmful discriminatory

conduct, the state may not require that some

citizens—either personnel or young students—

“communicate a message of tolerance that affirms the

dignity of others.” Id. Dignity is an interest “so

amorphous as to invite viewpoint-based discrimination,

antithetical to our viewpoint-neutral free speech

regime, by courts and legislatures.” Id. at 665.

As Hurley teaches, the state must guard against

“conflation of message with messenger” because “a

speaker’s objection to speaking or disseminating a

particular ideological message is at the core of the nocompelled-speech doctrine.” Duncan, No-CompelledSpeech, 99 Neb. L. Rev. at 64. The trial judge in Hurley

erroneously reasoned that the parade organizer’s

rejection of a group’s message was tantamount to

“discrimination on the basis of the innate personhood

of the group’s members.” Id. (emphasis added). The

First Amendment guards a speaker’s autonomy to

“discriminate” by favoring viewpoints he wishes to

express and rejecting other viewpoints. Id. Rejecting a

message is not equivalent to rejecting a person who

prefers that message. Similarly, rejecting transgender

ideology that conflicts with biological reality is not

tantamount to rejecting a person who is confused about

his or her gender.

15

E. The

prohibition

of

viewpoint

discrimination, now firmly entrenched

in this Court’s precedent, is a necessary

component of the Free Speech Clause.

A century ago, this Court affirmed a conviction

under the Espionage Act, which criminalized

publication of “disloyal, scurrilous and abusive

language” about the United States when the country

was at war. Abrams v. United States, 250 U.S. 616, 624

(1919). If that case came before the Court today, no

doubt “the statute itself would be invalidated as patent

viewpoint discrimination.” Lackland H. Bloom, Jr., The

Rise of the Viewpoint-Discrimination Principle, 72

SMU L. Rev. F. 20, 21 (2019). A few years after

Abrams, the Court shifted gears in Barnette, “a

forerunner of the more recent viewpoint-discrimination

principle.” Id. Barnette’s often-quoted “fixed star”

passage was informed by “the fear of government

manipulation of the marketplace of ideas.” Id.; 303

Creative, 143 S. Ct. at 2311. Justice Kennedy echoed

the thought: “The danger of viewpoint discrimination

is that the government is attempting to remove certain

ideas or perspectives from a broader debate. . . . To

permit viewpoint discrimination . . . is to permit

Government censorship.” Matal, 137 S. Ct. at 17671768 (Kennedy, J., concurring). Justice Kennedy’s

comments “explain why viewpoint discrimination is

particularly inconsistent with free speech values.”

Bloom, The Rise of the Viewpoint-Discrimination

Principle, 72 SMU L. Rev. F. at 36.

Since Barnette, this Court has further refined the

concept of viewpoint discrimination. In Cohen v.

16

California, Justice Harlan warned that “governments

might soon seize upon the censorship of particular

words as a convenient guise for banning the expression

of unpopular views.” 403 U.S. 15, 26 (1971); see Bloom,

The Rise of the Viewpoint-Discrimination Principle, 72

SMU L. Rev. F. at 22. A year later this Court affirmed

that “government has no power to restrict expression

because of its message, its ideas, its subject matter, or

its content” and “must afford all points of view an equal

opportunity to be heard.” Police Department of Chicago

v. Mosley, 408 U.S. 92, 95-96 (1972).

Further development occurred in the 1980's. Both

the majority and dissent in Perry Education Ass’n v.

Perry Local Educators’ Ass’n agreed that viewpoint

discrimination is impermissible, with the dissent

explaining that such discrimination “is censorship in

its purest form and government regulation that

discriminates among viewpoints threatens the

continued vitality of free speech.” 460 U.S. 37, 62

(1983) (Brennan, J., dissenting). It became apparent

that this Court considered viewpoint regulation an

“even more serious threat” to speech than “mere

content discrimination.” Bloom, The Rise of the

Viewpoint-Discrimination Principle, 72 SMU L. Rev. F.

at 23. Three years later, the Court struck down a

viewpoint-based regulation based on coerced

association with the views of other speakers. Pacific

Gas & Electric, 475 U.S. at 20-21 (plurality opinion). At

the end of this decade, the Court affirmed the “bedrock

principle underlying the First Amendment . . . that the

government may not prohibit the expression of an idea

simply because society finds the idea itself offensive or

disagreeable.” Texas v. Johnson, 491 U.S. 397, 414

17

(1989) (striking down Texas statute that made it a

crime to desecrate a venerated object, including a state

or national flag).

Justice Scalia authored a key decision in the early

1990’s striking down a Minnesota ordinance that

criminalized placing a symbol on private property that

“arouses anger, alarm or resentment in others on the

basis of race, color, creed, religion or gender.” R.A.V. v.

City of St. Paul, 505 U.S. 377, 380 (1992) (burning

cross). This Court considered “the anti-viewpointdiscrimination principle . . . so important to free speech

jurisprudence that it applied even to speech that was

otherwise excluded from First Amendment protection.”

Bloom, The Rise of the Viewpoint-Discrimination

Principle, 72 SMU L. Rev. F. at 25, citing R.A.V., 505

U.S. at 384-385. The ruling defined viewpoint

discrimination as “hostility—or favoritism—towards

the underlying message expressed” (R.A.V., 505 U.S. at

385 (citing Carey v. Brown, 447 U.S. 455 (1980)),

effectively placing the principle “at the very heart of

serious free speech protection.” Bloom, The Rise of the

Viewpoint-Discrimination Principle, 72 SMU L. Rev. F.

at 25. As Justice Scalia observed, the government may

not “license one side of a debate to fight free style,

while requiring the other to follow Marquis of

Queensberry rules.” R.A.V., 505 U.S. at 392.

During this same time frame, this Court held that

the government may not discriminate against speech

solely because of its religious perspective. See, e.g.,

Lamb’s Chapel v. Center Moriches Union Free School

District, 508 U.S. 384, 394 (1993) (policy for use of

school premises could not exclude film series based on

18

its religious perspective); Rosenberger, 515 U.S. at 829

(invalidating university regulation that prohibited

reimbursement of expenses to student newspaper that

“primarily promotes or manifests a particular belief in

or about a deity or an ultimate reality”); Good News

Club v. Milford Central School, 533 U.S. 98, 112 (2001)

(striking down regulation that discriminated against

religious speech).

Government speech mandates often implicate

viewpoint discrimination by either compelling a

speaker to express the government’s viewpoint (Wooley,

NIFLA, 303 Creative) (transgender ideology in this

case) or a third party’s viewpoint (Hurley) (student’s

unilateral declaration of gender identity). Duncan,

Defense Against the Dark Arts, 32 Regent U. L. Rev. at

283. After Hurley, “the constitutional ideal of

intellectual autonomy for speakers, artists, and parade

organizers, which originated in Barnette, now had the

support of a unanimous Supreme Court.” Id. at 282;

Hurley, 515 U.S. 557. Even when the government’s

motives are innocent, there is a residual danger of

censorship in facially content-based statutes because

“future government officials may one day wield such

statutes to suppress disfavored speech.” Reed v. Town

of Gilbert, 576 U.S. 155, 167 (2015).

Just recently, this Court condemned Colorado’s

attempt to “excis[e] certain ideas or viewpoints from

the public dialogue.” 303 Creative, 143 S. Ct. at 2313,

quoting Turner Broad. Sys. v. FCC, 512 U. S. 622, 642

(1994). Previously, Matal was “th[is] Court’s most

important decision in the anti-viewpoint-discrimination

line of cases.” Bloom, The Rise of the Viewpoint-

19

Discrimination Principle, 72 SMU L. Rev. F. at 29. As

the case at issue in this Petition illustrates, “[g]iving

offense [to a transgender student] is a viewpoint.”

Matal, 137 S. Ct. at 1763. MCBE may not escape the

charge of viewpoint discrimination “by

tying censorship to the reaction of [the student’s]

audience.” Id. at 1766. Shortly after Matal, this Court

struck down a provision forbidding “immoral or

scandalous” trademarks because the ban “disfavors

certain ideas.” Iancu v. Brunetti, 139 S. Ct. at 2297.

The Court’s approach “indicated that governmental

viewpoint discrimination is a per se violation of the

First Amendment.” Bloom, The Rise of the ViewpointDiscrimination Principle, 72 SMU L. Rev. F. at 33.

MCBE’s viewpoint-based Policy is unmistakably a “per

se violation of the First Amendment.”

III.

THE POLICY DOES NOT CONCERN

CURRICULUM OR ANY OTHER

LEGITIMATE PURPOSE.

“The vigilant protection of constitutional freedoms

is nowhere more vital than in the community of

American schools.” Shelton, 364 U.S. at 487. Even if

MCBE had a legitimate purpose for the Policy, it

“cannot be pursued by means that broadly stifle

fundamental personal liberties when the end can be

more narrowly achieved.” Id. at 488. The First

Amendment facilitates the free flow of information and

ideas. “The Nation’s future depends upon leaders

trained through wide exposure” to a “robust exchange

of ideas” that “discovers truth out of a multitude of

tongues” rather than “authoritative selection.”

Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967).

20

A. Transgender ideology is a matter of

intense public concern.

Speech on matters of public concern merits

heightened protection. There is hardly a more

contentious “matter of public concern” than gender

identity, “a controversial [and] sensitive political topic[]

. . . of profound value and concern to the public.” Janus,

138 S. Ct. at 2476 (cleaned up). Every person has a

fundamental right to speak on this matter. The Policy

“use[s] pronouns to communicate a message” many

believe is false—that “[p]eople can have a gender

identity inconsistent with their sex at birth.”

Meriwether v. Hartop, 992 F.3d 492, 507 (6th Cir.

2021). “Pronouns can and do convey a powerful

message implicating a sensitive topic of public

concern.” Id. at 508. It is not the business of any

government official in any position to coerce any

person’s chosen perspective on this—including public

school faculty and students.

B. MCBE has no legitimate purpose in

suppressing any person’s viewpoint

about “gender identity” or compelling

expression of a view the person does not

hold.

Speech and beliefs about sexuality merit

constitutional protection no matter how profoundly

school officials—or even society generally—might

disagree. “If there is a bedrock principle underlying the

First Amendment, it is that the government may not

prohibit the expression of an idea simply because

society finds the idea offensive or disagreeable.” Texas

v. Johnson, 491 U.S. at 414.

21

The district court concluded that “parents do not

have a constitutional right to dictate a public school’s

curriculum.” John & Jane Parents 1, 622 F. Supp. 3d at

13. But the Policy is not a regulation of curriculum,

unlike some prior cases. See, e.g., Parker v. Hurley, 514

F.3d 87 (1st Cir. 2008) (school curriculum included

books depicting same sex relationships); Mozert v.

Hawkins County Bd. of Education, 827 F.2d 1058, 1059

(6th Cir. 1987) (textbooks had no coercive effect that

operated against plaintiff’s religion). The Policy is also

not about “academic assignments” that educators may

require students to complete. Brown v. Li, 308 F.3d

939, 949 (9th Cir. 2002). Students do not have free

reign to alter a school assignment and receive credit.

Settle v. Dickson County Sch. Bd., 53 F.3d 152 (6th Cir.

1995) (Batchelder, J., concurring) (research paper).

MCBE adopts one side of the contentious

transgender debate and shuts down further inquiry,

demanding compliance with its preferred viewpoint.

But the Constitution protects unpopular minority

viewpoints. Dale, 530 U.S. at 660; Texas v. Johnson,

491 U.S. 397 (burning American flag); Doe v. University

of Michigan, 721 F. Supp. 852, 863 (E.D. Mich. 1989)

(University could not “establish an anti-discrimination

policy which had the effect of prohibiting certain speech

because it disagreed with ideas or messages sought to

be conveyed,” nor could it “proscribe speech simply

because it was found to be offensive, even gravely so, by

large numbers of people”). This is particularly true in

a changing social environment—“the fact that an idea

may be embraced and advocated by increasing numbers

of people is all the more reason to protect the First

Amendment rights of those who wish to voice a

22

different view.” Dale, 530 U.S. at 660. “Mere

unorthodoxy or dissent from the prevailing mores is not

to be condemned. The absence of such voices would be

a symptom of grave illness in our society.” Sweezy v.

New Hampshire, 354 U.S. 234, 251 (1957).

Schools are not a haven where educators can ignore

the First Amendment with impunity. Public schools

cannot invade the protected liberties of faculty,

students, or parents. It is well settled that “censorship

or suppression of expression of opinion is tolerated by

our Constitution only when the expression presents a

clear and present danger of action of a kind the State

is empowered to prevent and punish.” Barnette, 319

U.S. at 633 (allowing students to quietly forego the

compulsory flag salute presented no “clear and present

danger”). To affirm the Fourth Circuit’s ruling, this

Circuit would be “required to say that a Bill of Rights

which guards the individual’s right to speak his own

mind, left it open to public authorities to compel him to

utter what is not in his mind.” Id. at 634. Such

compulsion “invades the sphere of intellect and spirit”

which the First Amendment “reserve[s] from all official

control.” Id. at 642.

The Policy compels school personnel to either

dishonestly affirm a belief they do not hold or alter

their beliefs under state compulsion. Both alternatives

gut the First Amendment. Decades of precedent drive

the conclusion that MCBE cannot compel anyone to

affirm a viewpoint that collides their own convictions.

Wooley, 430 U.S. at 715 (“The First Amendment

protects the right of individuals . . . to refuse to foster

. . . an idea they find morally objectionable.”); Pacific

23

Gas & Electric, 475 U.S. at 16 ([I]f “the government

[were] freely able to compel . . . speakers to propound

political messages with which they disagree, . . .

protection [of a speaker’s freedom] would be empty, for

the government could require speakers to affirm in one

breath that which they deny in the next.”); Hurley, 515

U.S. at 575 (“[T]he choice of a speaker not to propound

a particular point of view . . . is presumed to lie beyond

the government’s power to control.”)

C. Schools can affirm the dignity of every

student without sacrificing the

constitutional liberties of either faculty

or other students.

It is a critical to “affirm[] the equal dignity of every

student,” so as to create the best environment for

learning. Goldberg, “Good Orthodoxy”, 13 FIU L. Rev.

at 666. At the same time, “students need to tolerate

views that upset them, or even disturb them to their

core, especially from other students.” Id. (emphasis

added). Students must learn to endure speech that is

offensive or even false as “part of learning how to live

in a pluralistic society, a society which insists upon

open discourse towards the end of a tolerant citizenry.”

Lee v. Weisman, 505 U.S. at 590. Indeed, students

attending required classes are exposed to “ideas they

find distasteful or immoral or absurd or all of these.”

Id. at 591. Transgender students are not exempt but

must learn to tolerate the views of those who disagree

with them.

Public schools have a role in “educat[ing] youth in

the values of a democratic, pluralistic society.” Coles ex

rel. Coles v. Cleveland Bd. of Educ., 171 F.3d 369, 378

24

(6th Cir. 1999). Rigorous protection of constitutional

liberties is essential to preparing young persons for

citizenship, so that we do not “strangle the free mind at

its source and teach youth to discount important

principles of our government as mere platitudes.”

Barnette, 319 U.S. at 637. Our Nation’s deep

commitment to “safeguarding academic freedom” is “a

special concern of the First Amendment, which does

not tolerate laws that cast a pall of orthodoxy over the

classroom.” Meriwether, 992 F.3d at 504-505, 509,

quoting Keyishian, 385 U.S. at 603.

CONCLUSION

Amicus curiae urges the Court to grant the Petition

and reverse the Fourth Circuit ruling.

Respectfully submitted,

Deborah J. Dewart

Counsel of Record

Attorney at Law

111 Magnolia Lane

Hubert, NC 28539

(910) 326-4554

lawyerdeborah@outlook.com

Tami Fitzgerald

The Institute for Faith And Family

9650 Strickland Road, Suite 103-222

Raleigh, NC 27615

(980) 404-2880

tfitzgerald@ncvalues.org

Counsel for Amicus Curiae