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; JOHN PARENT 2,

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 NATIONAL ASSOCIATION

OF PARENTS, INC. D/B/A PARENTSUSA

IN SUPPORT OF PETITIONERS

_________

DAVID S. DELUGAS

Counsel of Record

NATIONAL ASSOCIATION OF PARENTS INC.

D/B/A PARENTSUSA

1600 Parkwood Cir, Ste. 200

Atlanta, Georgia 30339

(888) 687-4204

david.delugas@parentsusa.org

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

TABLE OF CONTENTS ..................................................... i

TABLE OF AUTHORITIES .............................................. iv

INTEREST OF AMICUS CURIAE .......................................1

SUMMARY OF ARGUMENTS ............................................1

ARGUMENTS ..................................................................3

The Court Should Grant The Writ To Protect Children and their Parents from Deceit and to Reaffirm the Fundamental Constitutional Rights of

Parents .........................................................................3

A. The “Parental Preclusion Policy” is based on

the false premise that students (children)

will be truthful to teachers and staff concerning their parents’ attitudes and level of

support with respect to issues relating to

gender ................................................................3

B. If MCPS has reason to believe a child is at

risk of physical harm or long-term emotional harm or of child abuse or neglect because of the child’s parents, as a state mandatory reporter, MCPS is required to notify

the local department of social services or

the appropriate law enforcement agency

about suspected cases of child abuse or neglect as soon as possible ...................................5

C. The State of Maryland empowers parents,

and only parents, and, through Maryland’s

Compulsory Education criminal statute,

with some exceptions, requires parents to

ii

decide from among competing education

service providers and to see that their children attend traditional public schools, public charter schools, public magnet schools,

private schools, or online academies, or are

homeschooled such that MCBE is an education service provider within Maryland’s

consumer protection laws which the “Parental Preclusion Policy” violates ........................14

D. The “Parental Preclusion Policy” teaches

children that being deceitful is acceptable

and requires teachers and staff to model deceit and, if the subject of the “Parental Preclusion Policy” was academic failure, illicit

drug use, sexual assault or activity at

school, or bullying, the violation of the fundamental rights of parents would be (more)

obvious and unacceptable ...............................18

CONCLUSION ...............................................................22

APPENDIX

Appendix A

County

Public

Montgomery

Schools Guidelines For Student

Gender Identity Academic Performance,

COMMUNICATION

WITH FAMILIES, PRIVACY

AND

DISCLOSURE

OF

INFORMATION, and STAFF

COMMUNICATION (hypothetical) .......................................... App. 1

iii

Appendix B

Montgomery

County

Public

Schools Guidelines For Student

Gender Identity Illicit Drug Use,

COMMUNICATION

WITH

FAMILIES,

PRIVACY

AND

DISCLOSURE

OF

INFORMATION, and STAFF

COMMUNICATION (hypothetical) ........................................... App. 4

Appendix C

County

Public

Montgomery

Schools Guidelines For Student

Gender

Identity

Bullying

COMMUNICATION

WITH

FAMILIES,

PRIVACY

AND

DISCLOSURE

OF

INFORMATION, and STAFF

COMMUNICATION (hypothetical) .......................................... App. 7

Appendix D

Montgomery

County

Public

Schools Guidelines For Student

Gender Identity Sexual Activity or

Assault

COMMUNICATION

WITH FAMILIES, PRIVACY

AND

DISCLOSURE

OF

INFORMATION, and STAFF

COMMUNICATION (hypothetical) ......................................... App. 10

iv

Cases

TABLE OF AUTHORITIES

Borgers v. Borgers,

820 S.E.2d 474 (2018) .....................................6, 7, 11

In the Interest of M. F.,

780 S.E.2d 291 (2015) ...............................................8

Meyer v. Nebraska,

262 U.S. 390 (1923)...............................................5, 7

Pierce v. Society of Sisters,

268 U.S. 510 (1925)...............................................5, 8

Prince v. Massachusetts,

321 U.S. 158 (1944)...............................................5, 7

Stanley v. Kramer,

455 U.S. 745 (1982)...............................................5, 9

Constitutions and Statutes

U.S. Const. amend. IX .................................................9

U.S. Const. amend. XIV ..............................................9

20 U.S.C. §1414(a)(1)(D)............................................16

Ga. Const. Art. 1, § 1, XXIX ........................................9

O.C.G.A. §5-6-34(a)(11) ...............................................6

O.C.G.A. §5-6-34(d)......................................................6

O.C.G.A. §5-6-35(j).......................................................6

O.C.G.A. §15-3-3.1(a)(6) ..............................................6

Appellate Jurisdiction Reform Act of 2016,

Ga. L. 2016, p. 883, §§ 3-1, 6-1 (c) ............................6

MD Code §1-103(b) ....................................................14

MD Code §1-401.........................................................14

MD Code §5-203.........................................................14

v

MD Code §5-706.........................................................13

MD Code CL 13-104 ..................................................17

MD Code CL 13-105 ..................................................17

MD Code CL 13-301 ..................................................17

MD Code ED 07-301 ..................................................15

Regulations

34 CFR 300.9 .............................................................16

Code

of

Maryland

Regulations,

07.02.07.04(B) ...................................................12, 13

Other Authorities

Five Myths about George Orwell, Gordon Bowker, The

Washington Post, February 24, 2017.....................10

Lying and Children, Facts for Families, American

Academy of Child and Adolescent Psychiatry, No. 44;

Updated July 2017 ..................................................20

Merriam-Webster,

https://www.merriam-webster.com/dictionary/ .....10

1

INTEREST OF AMICUS CURIAE 1

The National Association of Parents, Inc. (“ParentsUSA”) is a secular nonpartisan 501(c)(3) nonprofit

national organization located in Atlanta, Georgia.

ParentsUSA exists to serve all legal parents; i.e.,

mothers and fathers, married or unmarried, biological

or adoptive, and their children throughout the United

States. One of the missions of ParentsUSA is to preserve and support the parent-child relationship by

protecting the constitutional rights of parents — as

those rights have been recognized by this Court. See

https://parentsusa.org.

SUMMARY OF ARGUMENTS

“[T] the Montgomery County (Md.) Board of Education (“MCBE”) has recently adopted a policy that

requires school employees to hide from parents that

their child is transitioning gender at school if, in the

child’s or the school’s estimation, the parents will not

be “supportive” enough of the transition. Petitioner

Parents claim this ‘Parental Preclusion Policy’ violates their fundamental rights to direct the care and

upbringing of their children.” Petition for Writ of Certiorari, Questions Presented, p. (i).

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

ParentsUSA contends that (A) the “Parental

Preclusion Policy” is based on the false premise that

students (children) will be truthful to teachers and

staff concerning their parents’ attitudes and level of

support with respect to issues relating to gender, (B)

if MCPS has reason to believe a child is at risk of physical harm or long-term emotional harm or of child

abuse or neglect because of the child’s parents, as a

state mandatory reporter, MCPS is required to notify

the local department of social services or the appropriate law enforcement agency about suspected cases of

child abuse or neglect as soon as possible, (C) the State

of Maryland empowers parents, and only parents, and,

through Maryland’s Compulsory Education criminal

statute, with some exceptions, requires parents to decide from among competing education service providers and to see that their children attend traditional

public schools, public charter schools, public magnet

schools, private schools, or online academies, or are

homeschooled such that MCBE is an education service

provider within Maryland’s consumer protection laws

which the “Parental Preclusion Policy” violates, and

(D) the “Parental Preclusion Policy” teaches children

that being deceitful is acceptable and requires teachers and staff to model deceit and, if the subject of the

“Parental Preclusion Policy” was academic failure, illicit drug use, sexual assault or sexual activity at

school, or bullying, the violation of the fundamental

rights of parents would be (more) obvious and (unquestionably) unacceptable as a violation of the rights

of children and their parents.

3

ARGUMENTS

The Court Should Grant The Writ To Protect

Children and their Parents from Deceit and to

Reaffirm the Fundamental Constitutional

Rights of Parents.

A. The “Parental Preclusion Policy” is based on

the false premise that students (children) will

be truthful to teachers and staff concerning

their parents’ attitudes and level of support

with respect to issues relating to gender.

My dog ate my homework. – Students throughout

history.

The “Parental Preclusion Policy” is based entirely

on information the “principal or identified staff member” obtains solely from the student:

Prior to contacting a student’s parent/guardian, the principal or identified staff member

should speak with the student to ascertain

the level of support the student either receives or anticipates receiving from home. In

some cases, transgender and gender nonconforming students may not openly express

their gender identity at home because of

safety concerns or lack of acceptance. Matters of gender identity can be complex and

may involve familial conflict.

Guidelines for Student, Gender Identity in Montgomery County Public Schools, “Communication With

Families,” Pet App. 154a.

4

Children lie. 2 Children lie for many reasons and,

in the context of schools, children lie to avoid consequences for failing to complete an assignment or for

misbehaving or to curry favor with a teacher or staff

member for the benefits such favored status may provide the student. 3 Without requiring the principal or

2

Deceit, misleading, and lying are related. Deception indicates

successfully

lying

or

misleading:

https://academic.oup.com/book/5430/chapter-abstract/148271147?redirectedFrom=fulltext#

3

Although axiomatic that children will lie, ParentsUSA provides

the following sampling of academic and media reports and articles about children who lie and the adverse consequences to children who are not persuaded (taught) not to lie. Articles on children and lying:

a. https://archive.nytimes.com/parenting.blogs.nytimes.com/2016/02/10/why-students-lie-and-why-we-fall-forit/

b. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3483871/

c. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2597097/

d. https://www.healthychildren.org/English/family-life/familydynamics/communication-discipline/Pages/When-ChildrenLie.aspx

e. https://www.aacap.org/AACAP/Families_and_Youth/Facts_f

or_Families/FFF-Guide/Children-And-Lying-044.aspx

f. https://www.apa.org/news/podcasts/speaking-of-psychology/why-kids-lie

g. https://www.parentingforbrain.com/why-do-kids-lie/

h. https://calmerclassrooms.today/how-to-handle-children-wholie/

i. https://www.parents.com/kids/development/behavioral/ageby-age-guide-to-lying/

j. https://childmind.org/article/why-kids-lie/

k. https://www.nationwidechildrens.org/family-resources-education/700childrens/2022/05/why-do-children-lie

5

identified staff member to speak directly with the student’s parents or guardians to ascertain the level of

support the student receives or will receive from home,

MCPS easily can be manipulated by students or unnecessarily and in violation of the fundamental constitutional right of parents to mislead and to deceive parents.

B. If MCPS has reason to believe a child is at

risk of physical harm or long-term emotional

harm or of child abuse or neglect because of

the child’s parents, as a state mandatory reporter, MCPS is required to notify the local

department of social services or the appropriate law enforcement agency about suspected cases of child abuse or neglect as soon

as possible.

For nearly a century, from Meyer v. Nebraska,

262 U.S. 390 (1923), and Pierce v. Society of Sisters,

268 U.S. 510 (1925), and through Stanley v. Kramer,

455 U.S. 745 (1982) and Troxel v. Granville, 530 U.S.

57 (2000), this Court has repeatedly held that “the custody, care and nurture of the child reside first in the

parents.” Troxel, 530 U.S. at 60 (plurality opinion)

(quoting Prince v. Massachusetts, 321 U. S. 158, 166

(1944), and citing other cases).

Amicus is challenged with persuasively presenting existing law to this Court knowing there have

been few, if any, presentations more compelling than

l.

https://www.scholastic.com/parents/family-life/social-emotional-learning/development-milestones/truth-about-lying.html

6

that provided by then Chief Judge Dillard of the Georgia Court of Appeals 4 in his fully and specially concurring opinion in Borgers v. Borgers, 820 S.E.2d 474

(2018). Chief Judge Dillard, relying on decisions from

this Court, sets forth the rights of parents and the very

limited circumstances under which states may interfere with those rights:

The liberty interest of parents to direct

the upbringing, education, and care of

their children is the most ancient of the

fundamental rights we hold as a people,

and is “deeply embedded in our law.”

This cherished right derives from the

natural order, preexists government, and

may not be interfered with by the State

except in the most compelling circumstances.

Id. 820 S.E.2d at 478-479 (citations omitted).

Our trial courts must be mindful in every

case involving parental rights that, regardless of any perceived authority given

to them by a state statute to interfere

with a natural parent’s custodial relationship with his or her child, such authority is only authorized if it comports

with the long-standing, fundamental

principle that “[p]arents have a

4

In Georgia, the Court of Appeals now has exclusive appellate

jurisdiction over domestic relations cases pursuant to the Appellate Jurisdiction Reform Act of 2016. See Ga. L. 2016, p. 883, §§ 31, 6-1 (c); O.C.G.A. §15-3-3.1(a)(6); O.C.G.A. §5-6-34(a)(11) and

(d) and O.C.G.A. §5-6-35(j).

7

constitutional right under the United

States and Georgia Constitutions to the

care and custody of their children.” In

this respect, the Supreme Court of the

United States has acknowledged that

“[t]he liberty interest ... of parents in the

care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests ....” And while a

parent’s right to raise his or her children

without state interference is largely expressed as a “liberty” interest, the Supreme Court of the United States has

also noted that this right derives from

“privacy rights” inherent in the text,

structure, and history of the federal constitution.

Id. 820 S.E.2d at 479-48 (citations omitted).

Amicus relies extensively, as did Chief Judge

Dillard, on this Court’s holdings that address children

and their parents and the sanctity of the family. In

Meyer v. Nebraska, 262 U.S. 390, 399 (1923), this

Court noted the “liberty interest guaranteed by the

Fourteenth Amendment [to the United States Constitution] includes freedom ... to engage in any of the

common occupations of life, to acquire useful

knowledge, to marry, establish a home[,] and bring up

children, to worship God according to the dictates of

his own conscience, and generally to enjoy those privileges long recognized at common law as essential to

the orderly pursuit of happiness by free men[.]” In

Prince v. Massachusetts, 321 U.S. 158, 166 (1944) this

Court recognized there is a “private realm of family life

8

which the state cannot enter.” Similarly, the parentchild relationship was aptly described in Pierce v. Soc’y

of the Sisters of the Holy Names of Jesus & Mary, 268

U.S. 510, 535 (1925), thusly: “The child is not the mere

creature of the state; those who nurture him and direct

his destiny have the right, coupled with the high duty,

to recognize and prepare him for additional obligations.”

The Georgia Supreme Court also consistently

relies on the longstanding precedents of this Court

with regard to the barriers to state intervention in the

parent-child relationship:

The presumption that children ordinarily belong in the care and custody of their

parents is not merely a presumption of

the statutory and common law, but it has

roots in the fundamental constitutional

rights of parents. The Constitution secures the fundamental “right of parents

to direct the upbringing of their children,” Troxel v. Granville, 530 U.S. 57,65

(2000), and it “protects a private realm of

family life which the state cannot enter

without compelling justification.” Arnold

v Bd. of Ed. of Escambia County, 880

F.2d 305, 313 (11th Cir. 1989).

In the Interest of M. F., 780 S.E.2d 291, 297 (2015).

Regrettably for Petitioners and for other parents similarly situated across the USA, the Fourth

Circuit Court of Appeals failed to consider and then to

follow this Court’s long recognized constitutionally

9

protected interest of parents to raise their children

without undue state interference.

The fundamental liberty interest of natural parents in the care, custody, and

management of their child does not evaporate simply because they have not been

model parents or have lost [at least] temporary custody of their child to the State.

Even when blood relationships are

strained, parents retain a vital interest

in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their

parental rights have a more critical need

for procedural protections than do those

resisting state intervention into ongoing

family affairs. When the State moves to

destroy weakened familial bonds, it must

provide the parents with fundamentally

fair procedures.

Stanley v. Kramer, 455 U.S. 745, 753-754 (1982). See

generally U.S. Const. amend. IX (“The enumeration in

the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”); U.S. Const. amend. XIV, § 1 (“... No State shall

make or enforce any law which shall abridge the privileges or immunities of citizens of the United

States ....”); Ga. Const. Art. 1, § 1, XXIX (“The enumeration of rights herein contained as part of this Constitution shall not be construed to deny to the people any

inherent rights which they may have hitherto enjoyed.”).

10

“Orwellian” is an adjective that Merriam-Webster defines as: “of, relating to, or suggestive of George

Orwell or his writings[;] especially: relating to or suggestive of the dystopian reality depicted in the novel

1984.”

https://www.merriam-webster.com/dictionary/Orwellian. “Yet Orwellianism isn’t just about big

government; it’s about authoritarianism coupled with

lies.” Five Myths about George Orwell, Gordon

Bowker, The Washington Post, February 24, 2017.

https://www.washingtonpost.com/opinions/fivemyths-about-george-orwell/2017/02/24/24ef0572-f9ec11e6-9845-576c69081518_story.html

[W]hen [in the absence of compelling circumstances necessary to substitute its

own preferences for the parent’s decision]

state actors engage in this sort of Orwellian policymaking disguised as judging,

is it any wonder that so many citizens

feel as if the government does not speak

for them or respect the private realm of

family life.

In sum, I take this opportunity, yet

again, to remind our trial courts that, in

making any decision or taking any action

that interferes with a parent-child relationship, our state statutes are subordinate to and must be construed in light of

the fundamental rights recognized by the

federal and Georgia constitutions [ ]. As

this Court has rightly recognized, “[t]he

constitutional right of familial relations

is not provided by government; it preexists government.” Indeed, this “cherished

11

and sacrosanct right is not a gift from the

sovereign; it is our natural birthright.

Fixed. Innate. Unalienable.” Thus, regardless of a court’s personal feelings or

perception of a parent’s fitness to care for

or retain custody of his or her child, careful consideration of these bedrock constitutional principles and safeguards must

remain central to each case without exception. And when this fails to occur, we

will not hesitate to remind our trial

courts of the solemn obligation they have

to safeguard the parental rights of all

Georgians.

Borgers v. Borgers, 820 S.E.2d at 482 (citations omitted)(CJ Dillard, specially concurring).

Nothing could be more “Orwellian policymaking

disguised as judging” Id. at 482, than the MCPS untrained principal or identified staff member through

the “Parental Preclusion Policy” making the subjective

determination about the level of support a “student either receives or anticipates receiving from home[ ]”

based solely on the child’s (often incorrect or fabricated) report. The absence of due process is staggering. 5

5

Compare the Maryland Department of Human Services, Child

Protective Services: “The ultimate success of CPS intervention

rests with the family and they must be encouraged to be involved

with and participate in the intervention process.”

https://dhs.maryland.gov/child-protective-services/

12

In Maryland, “child abuse” and “child neglect”

are defined 6 as:

Physical injury not (necessarily visible)

of a child under circumstances that indicate that a child’s health or welfare is

harmed or at substantial risk of being

harmed.

The failure to give proper care and attention to a child, leaving a child unattended

where the child’s health or welfare is

harmed or a child is placed in substantial

risk of harm.

An act or acts involving sexual molestation or exploitation whether physical injuries are sustained or not.

Identifiable and substantial impairment

of a child’s mental or psychological ability to function.

Finding credible evidence that has not

been satisfactorily refuted that physical

abuse, neglect or sexual abuse occurred.

Whether concerning gender issues or any other

subject, issue, or matter, if any MCPS principal, staff

member, or teacher has reason to believe a child is at

risk of physical harm or long-term emotional harm or

even suspected child abuse or neglect because of the

6

Code of Maryland Regulations, Sec. 07.02.07.02(B)(11) and (14).

https://dhs.maryland.gov/child-protective-services/reporting-suspected-child-abuse-or-neglect/what-is-child-abuse-and-neglect/

13

child’s parents (or anyone else including another

MCPS employee), as a state mandatory reporter, 7

MCPS is required to notify the local department of social services or the appropriate law enforcement

agency about suspected cases of child abuse or neglect

as soon as possible. 8 Instead, MCPS, without any investigatory training or experience, any investigatory

powers, and any concept of due process for the parents

and for the students, set about to follow a course of

action detached from what the truth may be, all in violation of the fundamental constitutional rights of the

parents as defined by this Court.

7

“’Mandated reporter’ means a health practitioner, educator,

human service worker, or law enforcement officer required to notify a local department or law enforcement of suspected child

abuse or neglect pursuant to Family Law Article, §5-706, Annotated Code of Maryland.” Code of Maryland Regulations, Sec.

07.02.07.02(B)(35).

8

Code of Maryland Regulations, 07.02.07.04(B).

14

C. The State of Maryland empowers parents,

and only parents, and, through Maryland’s

Compulsory Education criminal statute, with

some exceptions, requires parents to decide

from among competing education service

providers and to see that their children attend traditional public schools, public charter schools, public magnet schools, private

schools, or online academies, or are homeschooled such that MCBE is an education service provider within Maryland’s consumer

protection laws which the “Parental Preclusion Policy” violates

As Petitioners well articulate in Count I of their

Complaint, Section 5-203 of the Family Article of the

Maryland Code, Section 1-103(b) and Section 1-401 of

the General Provisions Article of the Maryland Code,

parents are “jointly and severally responsible for the

child’s support, care, nurture, welfare, and education;

and have the same powers and duties in relation to the

child.” 9

As Petitioners well articulate in Count III of

their Complaint, the Maryland Constitution protects

the fundamental right to direct their children’s education. 10

As Petitioners well articulate in Count VI of

their Complaint, the United States Constitution

9

Complaint, Count I, Violation of Maryland Family Law, Pet.

App. 123a-125a.

10

Complaint, Count III, Violation of Maryland Constitution –

Parental Rights, Pet App. 131a-133a.

15

protects the fundamental right to direct their children’s education. 11

Through a criminal statute, the State of Maryland requires parents to see that their children attend

school. 12

The MCPS does not permit students to register.

Students do not have the autonomy or authority to

register for MCPS. Only parents or guardians may

13

register a child in MCPS.

Person enrolling student must present

official parent/guardian photo identification and proof of relationship to student.

Anyone other than parent or legal guardian must complete Determination of Residency and Tuition Status (MCPS Form

335-73) and contact International Admissions and Enrollment at 240-7404500.

Examples of proof of parent/guardian identity

that includes a photograph:

•

Driver’s license

•

Passport

11

Complaint, Count VI, Violation of United States Constitution

– Parental Rights, Pet. App. 140a-141a.

12

13

“Compulsory Education,” MD Code ED 07-301.

“Enrollment, Identity of Person Enrolling Student and Relationship

to

Student,”

MCPS,

https://www.montgomeryschoolsmd.org/info/enroll/proofs/

16

•

Other legal form of identification

Examples of proof of parent/guardian relationship to student:

•

Birth certificate of student which identifies the parents

•

Court order

•

Separation agreement or divorce decree

•

Other legal form of identification

For parents to consent to enrollment or to register a child in the education option the parents consider best, 14 parents must be fully informed. Parental

Consent in the education setting must require that the

parents have been fully informed of all relevant information, in his or her native language, or through another mode of communication, the parents understand

and agrees in writing, the parents understand the consent is voluntary and can be revoked; i.e., the parents

can withdraw the student and enroll their child in another education option or homeschool. 15

MCPS is a “Merchant” offering and making

available to parents, as “Consumers,” education

14

The parents’ decision not only is to enroll or to register a

child, but to continue the enrollment and not to withdraw the

child from a particular education option. In other words, the necessity of being fully informed in order to make provide consent

to continued enrollment occurs every day and not just prior to the

initial decision on the education option.

15

“Consent,” 34 CFR 300.9. Individuals With Disabilities Education Act, 20 U.S.C. 1414(a)(1)(D)

17

services which are “Consumer Services” within the

meaning of Maryland’s Consumer Protection Act. 16 Indeed, MCPS competes with other education service

providers within Maryland for the consent and decision of parents to enroll their children (as well as the

option to homeschool). “Maryland families can choose

from traditional public schools, public charter schools,

public magnet schools, private schools, online learning, homeschooling, and microschooling and mix-andmatch learning.” 17

16

Maryland Consumer Protection Act, Maryland Code, Title 13.

“Unfair, abusive, or deceptive trade practices include any: (1)

False, falsely disparaging, or misleading oral or written statement, visual description, or other representation of any kind

which has the capacity, tendency, or effect of deceiving or misleading consumers[.]” MD Code CL 13-301. Although there are

exemptions from Title 13, none apply to education service providers. MD Code CL 13-104. See also “This title shall be construed

and applied liberally to promote its purpose. It is the intent of the

General Assembly that in construing the term ‘unfair or deceptive trade practices’, due consideration and weight be given to the

interpretations of §5 (a)(1) of the Federal Trade Commission Act

by the Federal Trade Commission and the federal courts.” MD

Code CL 13-105.

17

NSCW is a charitable program of the National School Choice

Awareness Foundation (NSCAF), a 501(c)(3) nonprofit organization. NSCAF’s mission is to improve K-12 education in the United

States, and to support the success of America’s children, by raising broad and equal awareness of the traditional public, public

charter, public magnet, private, online, and home education options available for children and families. In addition to organizing NSCW, NSCAF researches, develops, and disseminates the

nation’s largest online portfolio of school navigation resources for

families,

in

English

and

in

Spanish.”

18

When parents select the education service provider for their children, parents must not encounter

deception from any of the available education service

providers.

D. The “Parental Preclusion Policy” teaches

children that being deceitful is acceptable

and requires teachers and staff to model deceit and, if the subject of the “Parental Preclusion Policy” was academic failure, illicit

drug use, sexual assault or activity at school,

or bullying, the violation of the fundamental

rights of parents would be (more) obvious

and (unquestionably) unacceptable as a violation of the rights of children and their parents.

Lying that may indicate emotional

problems:

Some children who can tell the difference

between a truth and a lie tell elaborate

stories which appear believable. Children or adolescents usually relate these

stories with enthusiasm because they receive a lot of attention as they tell the lie.

Other children or adolescents, who otherwise seem responsible, fall into a pattern

of repetitive lying. They often feel that lying is the easiest way to deal with the demands of parents, teachers, and friends.

https://schoolchoiceweek.com/about/ and

week.com/guide-school-choice-maryland/

https://schoolchoice-

19

These children are usually not trying to

be bad or malicious, but the repetitive

pattern of lying becomes a bad habit. For

example, a child may lie and say they finished their homework because they are

having difficulty doing the homework for

reasons related to learning, attention,

and/or emotional concerns.

Other adolescents may frequently use lying to cover up another serious problem.

For example, an adolescent with a serious drug or alcohol problem will lie repeatedly to hide the truth about where

they have been, who they were with,

what they were doing, and where their

money went. They often feel bad about lying but worry about getting in serious

trouble if they tell the truth. There are

also children and adolescents who are

not bothered by lying or taking advantage of others unless they get caught.

What to do if your child or adolescent lies:

Parents are the most important role

models for their children. When a child or

adolescent lies, parents should take some

time to have a serious discussion about:

the difference between make-believe and reality as well as lying and telling the truth

•

the importance of honesty at home

and in the community

•

20

•

alternatives to lying

If a child or adolescent develops a repetitive pattern of serious lying, then professional help may be indicated. Evaluation

by a child and adolescent psychiatrist

may help the child and parents understand and then replace the lying behavior with more honest communication and

trust.

Lying and Children, Facts for Families, American

Academy of Child and Adolescent Psychiatry, No. 44;

Updated July 2017. 18

MCPS justifies its “Parental Preclusion Policy”

because MCPS is “committed to a safe, welcoming

school environment where students are engaged in

learning and are active participants in the school community because they feel accepted and valued[ ]” and

“[t]o this end, all students should feel comfortable expressing their gender identity, including students who

identify as transgender or gender nonconforming.”

Guidelines for Student Gender Identity in Montgomery

County Public Schools, Pet. App. 150. Nothing indicates that MCPS considered or balanced the present

and life-long harm its “Parental Preclusion Policy”

causes students by teaching and modeling deceit, by

encouraging students to distancing themselves from

their parents, and by causing the avoidance of

18

Id., FN3e

https://www.aacap.org/AACAP/Families_and_Youth/Facts_for_F

amilies/FFF-Guide/Children-And-Lying-044.aspx.

21

possible conflicts rather than facing and overcoming

possible conflicts.

MCPS can and must be required to create “a

safe, welcoming school environment where students

are engaged in learning and are active participants in

the school community because they feel accepted and

valued[ ]” and “where all students . . . feel comfortable

expressing their gender identity, including students

who identify as transgender or gender nonconforming[

]” without violating the fundamental constitutional

rights of parents and without harming students.

What if the subject of the MCPS “Parental Preclusion Policy” was academic failure, illicit drug use,

sexual assault or activity at school, or bullying? ParentsUSA contends that the Court’s consideration of

the Petition for Writ of Certiorari should not be based

only on the Guidelines for Student Gender Identity and

limited to gender identity and related gender issues.

Rather, the legal issues presented become crystalized

when gender identity and related gender issues are replaced by the hypothetical Guidelines ParentsUSA

drafted for illustration:

1. Guidelines For Student Gender Identity Illicit Drug

Use, App. 4-6;

2. Guidelines For Student Gender Identity Academic

Performance, App1-3;

3. Guidelines For Student Gender Identity Bullying,

App. 7-9; and

4. Guidelines For Student Gender Identity Sexual Activity or Assault, App. 10-12.

22

Hiding information from parents regarding

subjects and issues other than gender identity would

violate Maryland’s Consumer Protection Act and the

fundamental rights of parents as found within the

Maryland and United States Constitutions. The subject of such deceit by the Respondents cannot insulate

Respondents from the violations they are perpetrating.

CONCLUSION

For the foregoing reasons, Amicus ParentsUSA

respectfully requests that this Court grant Petitioners’

Petition for Writ of Certiorari and, thereafter, emphatically reaffirm and clarify its parental-rights precedents by applying them to the pervasive deceit of parents by education service provider, Montgomery

County Public Schools, through its Guidelines For

Student Gender Identity.

Respectfully submitted,

DAVID S. DELUGAS

Counsel of Record

NATIONAL ASSOCIATION OF PARENTS INC.

D/B/A PARENTSUSA

1600 Parkwood Cir, Ste. 200

Atlanta, Georgia 30339

(888) 687-4204

david.delugas@parentsusa.org

Counsel for Amicus Curiae

January 4, 2024

APPENDIX

i

APPENDIX

TABLE OF CONTENTS

Appendix A Montgomery County Public Schools

Guidelines For Student Gender

Identity Academic Performance,

COMMUNICATION

WITH

FAMILIES, PRIVACY AND

DISCLOSURE OF INFORMATION,

and STAFF COMMUNICATION

(hypothetical) . . . . . . . . . . . . . . . . App. 1

Appendix B Montgomery County Public Schools

Guidelines For Student Gender

Identity Illicit Drug Use,

COMMUNICATION

WITH

FAMILIES, PRIVACY AND

DISCLOSURE OF INFORMATION,

and STAFF COMMUNICATION

(hypothetical) . . . . . . . . . . . . . . . . App. 4

Appendix C Montgomery County Public Schools

Guidelines For Student Gender

Identity Bullying COMMUNICATION

WITH FAMILIES, PRIVACY AND

DISCLOSURE OF INFORMATION,

and STAFF COMMUNICATION

(hypothetical) . . . . . . . . . . . . . . . . App. 7

ii

Appendix D Montgomery County Public Schools

Guidelines For Student Gender

Identity Sexual Activity or Assault

COMMUNICATION

WITH

FAMILIES, PRIVACY AND

DISCLOSURE OF INFORMATION,

and STAFF COMMUNICATION

(hypothetical) . . . . . . . . . . . . . . . App. 10

App. 1

APPENDIX A

Guidelines For Student Gender Identity

Academic Performance

COMMUNICATION WITH FAMILIES – ACADEMIC

PERFORMANCE

Prior to contacting a student’s parent/guardian, the

principal or identified staff member should speak with

the student to ascertain the level of support the

student either receives or anticipates receiving from

home. In some cases, transgender and gender

nonconforming students who underperform or fail

academically may not openly express their gender

identity underperforming or failing status at home

because of safety concerns or lack of acceptance.

Matters of gender identity academic underperformance

or failing can be complex and may involve familial

conflict.

PRIVACY AND DISCLOSURE OF INFORMATION –

ACADEMIC PERFORMANCE

All students have a right to privacy. This includes the

right to keep private one’s transgender status or gender

nonconforming academic underperformance

presentation at school.

Information about a student’s transgender academic

status, legal name, or sex assigned at birth may

constitute confidential medical information. Disclosing

this information to other students, their

parents/guardians, or third parties may violate privacy

App. 2

laws, such as the federal Family Educational Rights

and Privacy Act (FERPA).

Schools will ensure that all medical information,

including that relating to transgender students with

failing academic performance, is kept confidential in

accordance with applicable state, local, and federal

privacy laws.

Please note that medical diagnosis, treatment, and/or

other documentation are not required for a school to

accommodate requests regarding gender presentation,

identity, and diversity failing academic peformance.

Transgender and gender nonconforming students with

failing grades have the right to discuss and

demonstrate their gender identity and expression

academic underperformance openly and decide when,

with whom, and how much to share private

information. The fact that students choose to disclose

their status to staff members or other students does not

authorize school staff members to disclose students’

failing academic status to others, including

parents/guardians and other school staff members,

unless legally required to do so or unless students have

authorized such disclosure. It is inappropriate to ask

transgender or gender nonconforming students with

failing grades more questions than are necessary to

support them at school.

STAFF COMMUNICATION

....

Unless the student or parent/guardian has specified

otherwise, when contacting the parent/guardian of a

App. 3

transgender student with failing grades, MCPS school

staff members should use the student’s legal name and

pronoun academic performance and grades that

correspond to the student’s sex assigned at birth

desired academic status although not actually

achieved.

App. 4

APPENDIX B

Guidelines For Student Gender Identity

Illicit Drug Use

COMMUNICATION WITH FAMILIES – ILLICIT

DRUG USE

Prior to contacting a student’s parent/guardian, the

principal or identified staff member should speak with

the student to ascertain the level of support the

student either receives or anticipates receiving from

home. In some cases, transgender and gender

nonconforming students who use illicit drugs may not

openly express their gender identity illicit drug use at

home because of safety concerns or lack of acceptance.

Matters of gender identity illicit drug use can be

complex and may involve familial conflict.

PRIVACY AND DISCLOSURE OF INFORMATION –

ILLICIT DRUG USE

All students have a right to privacy. This includes the

right to keep private one’s transgender status or gender

nonconforming drug use presentation at school.

Information about a student’s transgender status, legal

name, or sex assigned at birth drug use may constitute

confidential medical information. Disclosing this

information to other students, their parents/guardians,

or third parties may violate privacy laws, such as the

federal Family Educational Rights and Privacy Act

(FERPA).

App. 5

Schools will ensure that all medical information,

including that relating to transgender students use of

illicit drugs at school or elsewhere, is kept confidential

in accordance with applicable state, local, and federal

privacy laws.

Please note that medical diagnosis, treatment, and/or

other documentation are not required for a school to

accommodate requests regarding gender presentation,

identity, and diversity use of illicit drugs at school or

elsewhere.

Transgender and gender nonconforming students using

illicit drugs at school or elsewhere have the right to

discuss and demonstrate their gender identity and

expression illicit drug use openly and decide when,

with whom, and how much to share private

information. The fact that students choose to disclose

their status to staff members or other students does not

authorize school staff members to disclose students’

illicit drug use status to others, including

parents/guardians and other school staff members,

unless legally required to do so or unless students have

authorized such disclosure. It is inappropriate to ask

transgender or gender nonconforming students who use

illicit drugs at school or elsewhere more questions than

are necessary to support them at school.

STAFF COMMUNICATION

....

Unless the student or parent/guardian has specified

otherwise, when contacting the parent/guardian of a

transgender student using illicit drugs at school or

elsewhere, MCPS school staff members should use the

App. 6

student’s legal name and pronoun drug use that

correspond to the student’s sex assigned at birth

desired clean and sober non-drug use status.

App. 7

APPENDIX C

Guidelines For Student Gender Identity Bullying

COMMUNICATION WITH FAMILIES – BULLYING

Prior to contacting a student’s parent/guardian, the

principal or identified staff member should speak with

the student to ascertain the level of support the

student either receives or anticipates receiving from

home. In some cases, transgender and gender

nonconforming students who bully others or who are

victims of bullying may not openly express their gender

identity perpetrator or victim status at home because

of safety concerns or lack of acceptance. Matters of

gender identity bullying can be complex and may

involve familial conflict.

PRIVACY AND DISCLOSURE OF INFORMATION –

BULLYING

All students have a right to privacy. This includes the

right to keep private one’s transgender status or gender

nonconforming bullying as a victim or perpetrator

presentation at school, whether as a victim or

perpetrator by or to another student or by or to a

teacher, administrator, or other employee of the school.

Information about a student’s transgender status, legal

name, or sex assigned at birth bullying at school as a

victim or perpetrator may constitute confidential

medical information. Disclosing this information to

other students, their parents/guardians, or third

App. 8

parties may violate privacy laws, such as the federal

Family Educational Rights and Privacy Act (FERPA).

Schools will ensure that all medical information,

including that relating to transgender students

bullying at school or elsewhere as a victim or

perpetrator, is kept confidential in accordance with

applicable state, local, and federal privacy laws.

Please note that medical diagnosis, treatment, and/or

other documentation are not required for a school to

accommodate requests regarding gender presentation,

identity, and diversity bullying at school or elsewhere

as a victim or perpetrator.

Transgender and gender nonconforming students

bullying at school or elsewhere as a victim or

perpetrator have the right to discuss and demonstrate

their gender identity and expression victim or

perpetrator status openly and decide when, with whom,

and how much to share private information. The fact

that students choose to disclose their status to staff

members or other students does not authorize school

staff members to disclose students’ bullying victim or

perpetrator status status to others, including

parents/guardians and other school staff members,

unless legally required to do so or unless students have

authorized such disclosure. It is inappropriate to ask

transgender or gender nonconforming students who are

bullied or who bully at school or elsewhere more

questions than are necessary to support them at school.

STAFF COMMUNICATION – BULLYING

....

App. 9

Unless the student or parent/guardian has specified

otherwise, when contacting the parent/guardian of a

transgender student who is a victim or perpetrator of

bullying at school or elsewhere, MCPS school staff

members should use the student’s legal name and

pronoun bullying status that correspond to the

student’s sex assigned at birth desired bullying status

including as not being a perpetrator although the

student is or as not being a victim of bullying although

the student is.

App. 10

APPENDIX D

Guidelines For Student Gender Identity

Sexual Activity or Assault

COMMUNICATION WITH FAMILIES – SEXUAL

ACTIVITY OR ASSAULT

Prior to contacting a student’s parent/guardian, the

principal or identified staff member should speak with

the student to ascertain the level of support the

student either receives or anticipates receiving from

home. In some cases, transgender and gender

nonconforming students who are victims of sexual

assault or who engage in sexual activity at school or

elsewhere may not openly express their gender identity

victim of sexual assault status or sexual activity at

home because of safety concerns or lack of acceptance.

Matters of gender identity sexual assault or activity at

school or elsewhere can be complex and may involve

familial conflict.

PRIVACY AND DISCLOSURE OF INFORMATION –

SEXUAL ACTIVITY OR ASSAULT

All students have a right to privacy. This includes the

right to keep private one’s transgender status or gender

nonconforming victim of sexual assault status or sexual

activity presentation at school, whether assault by or

sexual activity with another student or with a teacher,

administrator, or other employee of the school.

Information about a student’s transgender status, legal

name, or sex assigned at birth victim of sexual assault

App. 11

status or sexual activity at school may constitute

confidential medical information. Disclosing this

information to other students, their parents/guardians,

or third parties may violate privacy laws, such as the

federal Family Educational Rights and Privacy Act

(FERPA).

Schools will ensure that all medical information,

including that relating to transgender students victim

of sexual assault status or sexual activity at school or

elsewhere, is kept confidential in accordance with

applicable state, local, and federal privacy laws.

Please note that medical diagnosis, treatment, and/or

other documentation are not required for a school to

accommodate requests regarding gender presentation,

identity, and diversity victim of sexual assault status

or sexual activity at school or elsewhere.

Transgender and gender nonconforming students

sexually assaulted or sexually active at school or

elsewhere have the right to discuss and demonstrate or

keep confidential their gender identity and expression

victim of sexual assault status or sexual activity openly

and decide when, with whom, and how much to share

private information. The fact that students choose to

disclose their status to staff members or other students

does not authorize school staff members to disclose

students’ victim of sexual assault status or sexual

activity status to others, including parents/guardians

and other school staff members, unless legally required

to do so or unless students have authorized such

disclosure. It is inappropriate to ask transgender or

gender nonconforming students who are victims of

sexual assault or who are sexually active at school or

App. 12

elsewhere more questions than are necessary to

support them at school.

STAFF COMMUNICATION

....

Unless the student or parent/guardian has specified

otherwise, when contacting the parent/guardian of a

transgender student who is a victim of sexual assault

or who is sexually active at school or elsewhere, MCPS

school staff members should use the student’s legal

name and pronoun sexual inactivity or activity that

corresponds to the student’s sex assigned at birth

desired victim, active, virgin, or inactive status.