Amicus Curiae Brief — Tamer Mahmoud, et al., Petitioners v. Thomas W. Taylor, et al.

Supreme Court briefOct 16, 2024

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No. 24-297

In the Supreme Court of the United States

__________

TAMER MAHMOUD, ET AL.,

Petitioners,

THOMAS W. TAYLOR, ET AL.,

Respondents.

____________________

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

_______________

BRIEF FOR AMERICA FIRST LEGAL

FOUNDATION AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

__________

IAN PRIOR

NICHOLAS BARRY

America First Legal

Foundation

611 Pennsylvania Ave. SE

#231

Washington, DC 20003

(202) 964-3721

ian.prior@aflegal.org

CHRISTOPHER E. MILLS

Counsel of Record

Spero Law LLC

557 East Bay St.

#22251

Charleston, SC 29413

(843) 606-0640

cmills@spero.law

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

Table of Contents .......................................................... i

Table of Authorities .....................................................ii

Interest of Amicus Curiae ........................................... 1

Summary of the Argument ......................................... 3

Reasons for Granting the Writ.................................... 5

I. Sexuality and gender identity education have

no historical pedigree. ........................................ 5

II. Montgomery schools’ sexuality and gender

identity curriculum indoctrinates students. ... 10

Conclusion.................................................................. 20

TABLE OF AUTHORITIES

Page(s)

CASES

Ambach v. Norwick, 441 U.S. 68 (1979) ..................... 3

Bd. of Educ., Island Trees Union Free Sch. Dist.

No. 26 v. Pico, 457 U.S. 853 (1982) ............. 3, 11, 17

Bethel Sch. Dist. No. 403 v. Fraser,

478 U.S. 675 (1986) ............................................ 7, 16

Brown v. Bd. of Ed. of Topeka, 347 U.S. 483 (1954) .. 6

Dep’t of Com. v. New York, 588 U.S. 752 (2019)....... 12

Edwards v. Aguillard, 482 U.S. 578 (1987) .............. 16

Epperson v. State of Ark., 393 U.S. 97 (1968)............. 6

Foldi v. Bd. of Educ. for Montgomery Cnty., No. 8:23CV-3089-PX, 2024 WL 4213379 (D. Md. Sept. 17,

2024) ..................................................................... 1, 2

Gore v. Lee, 107 F.4th 548 (CA6 2024) ....................... 9

Hazelwood Sch. Dist. v. Kuhlmeier,

484 U.S. 260 (1988) ...................................... 7, 10, 11

James v. Bd. of Ed. of Cent. Dist. No. 1 of Towns of

Addison, 461 F.2d 566 (CA2 1972) ........................ 17

Lee v. Weisman, 505 U.S. 577 (1992) ........................ 16

Mahanoy Area Sch. Dist. v. B.L.,

594 U.S. 180 (2021) ........................................ 5, 7, 10

Meyer v. Nebraska, 262 U.S. 390 (1923) ................... 20

Morse v. Frederick, 551 U.S. 393 (2007) ................... 10

Parker v. Hurley, 514 F.3d 87 (CA1 2008) ................ 16

iii

Vernonia Sch. Dist. 47J v. Acton,

515 U.S. 646 (1995) .................................................. 7

W. Virginia State Bd. of Educ. v. Barnette,

319 U.S. 624 (1943) ...................................... 6, 10, 20

Wisconsin v. Yoder, 406 U.S. 205 (1972) ................ 6, 8

OTHER AUTHORITIES

1 W. Blackstone, Commentaries on the Laws of

England (1769)................................................... 7, 10

D. Villarreal, Can We Please Just Start Admitting

that We Do Actually Want to Indoctrinate Kids,

Queerty (May 12, 2011),

https://perma.cc/PWV3-EF84 ................................ 18

K. Rufo, Public Policy vs. Parent Policy: States Battle

over Whether Public Schools Can Provide Condoms

to Minors Without Parental Consent, 13 N.Y.L. Sch.

J. Hum. Rts. 589 (1997) ........................................... 9

L. Wardle, The Impacts on Education of Legalizing

Same-Sex Marriage and Lessons from Abortion

Jurisprudence, 2011 B.Y.U. Educ. & L.J. 593

(2011) ...................................................................... 18

M. Fucci, Educating Our Future: An Analysis of Sex

Education in the Classroom, 2000 B.Y.U. Educ. &

L.J. 91 (2000)........................................................ 8, 9

M. Katz, A History of Compulsory Education Laws

(1976) ........................................................................ 5

M. Walsh, Johnny the Walrus (2022) ....................... 13

R. Salomone, Common Schools, Uncommon Values:

Listening to the Voices of Dissent, 14 Yale L. &

Pol’y Rev. 169 (1996) .......................................... 5, 17

School-Based Programs to Reduce Sexual Risk

Behaviors: A Review of Effectiveness, U.S. Dep’t of

Health & Human Services, Public Health Reports

(May 1994)................................................................ 9

T. Sowell, High Ideals and No Principles, Nat’l Rev.

Online (Oct. 8, 2008),

https://perma.cc/H65B-UBKQ ............................... 18

INTEREST OF AMICUS CURIAE

America First Legal Foundation is a nonprofit

organization dedicated to promoting the rule of law in

the United States by preventing executive overreach,

ensuring due process and equal protection for every

American citizen, and encouraging understanding of

the law and individual rights guaranteed under the

Constitution and laws of the United States. *

America First Legal has a substantial interest in

this case. It represents Matthew Foldi and Bethany

Mandel, two journalists who tried to cover the

curriculum changes implemented here by the Board of

Education for Montgomery County. A few months

after the Board added LGBT readings to the

elementary curriculum in Montgomery County

schools, it suddenly removed the right of parents to

have notice and opt out of those readings.

Unsurprisingly, this “became a hot button issue,” and

“the next few months” saw public discussion at and

outside of Board meetings. Foldi v. Bd. of Educ. for

Montgomery Cnty., No. 8:23-CV-3089-PX, 2024 WL

4213379, at *1–2 (D. Md. Sept. 17, 2024). For instance,

at one meeting, “a female Muslim student attested to

her discomfort with being made to read LGBTQIA+

books that ran contrary to her religious beliefs, to

* Pursuant

to Rule 37.2, amicus provided timely notice of its

intention to file this brief. In accord with Rule 37.6, no counsel

for a party authored this brief in whole or in part, and no counsel

or party made a monetary contribution intended to fund the

preparation or submission of this brief. No person other than

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

contribution to its preparation or submission.

which” a Board member said “she ‘felt kind of sorry’

for the student, and opined about whether the student

was ‘parroting [the] dogma’ of her parents.” Id. at *2.

When Foldi and Mandel sought to attend the next

meeting—and even though Foldi “identified himself as

a member of the press”—they were turned away

because they had not “signed up in advance to speak

at the meeting” and were not “invited guests.” Ibid.

Around the same time, Mandel was blocked from an X

account run by school staff, “@MCPS-StaffPRIDE,” on

which staff “engage in online discourse about

LGBTQIA+ related issues”—and that was connected

to the school system’s official website. Id. at *2–3.

Foldi and Mandel sued, and the district court recently

denied the Board’s motion to dismiss as to Mandel’s

First Amendment claim based on being blocked from

the @MCPS_StaffPRIDE X account. Id. at *11.

SUMMARY OF THE ARGUMENT

Many courts, including this one, have long deferred

to public school curriculum choices on the ground that

these schools “inculcat[e] fundamental values

necessary to the maintenance of a democratic political

system.” Ambach v. Norwick, 441 U.S. 68, 77 (1979).

The opinion below, and the line of circuit cases it

followed, likewise emphasized the government’s

leeway “to conduct its own internal affairs” via

“curriculum choices.” App. 40a (cleaned up). What

underlies this deferential approach is the assumption

that curriculum choices necessarily influence

students’ “values,” Ambach, 441 U.S. at 77, and

schools can “establish and apply their curriculum in

such a way as to transmit community values.” Bd. of

Educ., Island Trees Union Free Sch. Dist. No. 26 v.

Pico, 457 U.S. 853, 864 (1982) (plurality op.) (internal

quotation mark omitted).

Yet even as the Fourth Circuit echoed this

deferential approach, it departed from its underlying

assumption. Specifically, the court doubted whether

the mandatory readings would “pressure students to

change their views.” App. 43a. According to the court,

there is no evidence that the curriculum “coerces

children into changing” their views. App. 44a.

This brief makes two points in support of certiorari.

First, education about sexuality and gender identity

has no historical roots and lacks any connection to

“inculcating fundamental values necessary to the

maintenance of a democratic political system.”

Ambach, 441 U.S. at 77. These types of education

sprang up in the last 50 years, and they are riven with

contested ideological and scientific assumptions. As

important as they are to many people, sexuality and

gender identity have nothing to do with fundamental

democratic values. Deference to curriculum choices on

these topics—including elevating the burden to show

a free exercise infringement based on a perceived need

for deference to communities—is thus improper.

Second, the decision below disregards the

assumption underpinning deference to traditional

curricular choices—that school curriculum molds

students’ values. Whether one characterizes this as

“inculcation” or “indoctrination,” the point is

inescapable: public schooling could only matter to

instilling fundamental values if it affects students’

values. The theme of the decision below is that “merely

being exposed” is not enough. App. 43a. But especially

in the context of elementary schooling and especially

with sexuality education, “being exposed” is precisely

what is supposed to affect students’ values. No matter

what “sorts of conversations” might happen afterward,

ibid., the very act of authority figures reading books

promoting certain values to impressionable children

in a room of their peers is significant.

And everyone knows this. That’s why Montgomery

schools said that opt-outs would “undermin[e] [the

school system’s] educational mission.” App. 16a.

That’s why the district court recognized that the point

of these readings is to “influence” children. App. 133a.

And that’s why the Board could claim below to pass

strict scrutiny. Not because these books are being used

to diagram sentences, but because they impart values.

Those values being instilled contradict many parents’

religious beliefs, so the schools’ mandatory imposition

of these readings burdens parents’ rights.

REASONS FOR GRANTING THE WRIT

I. Sexuality and gender identity education

have no historical pedigree.

The Fourth Circuit, like other circuits that have

rejected similar challenges, expressed hesitation

about interfering with public school curriculum

choices. According to the court below, “[i]t is not our

station to determine the pedagogical or childhooddevelopment value of the Storybooks or the related

topics.” App. 41a. This deferential approach shaded

the court’s analysis. Whatever deference must be

given to traditional curriculum choices is misplaced

when it comes to education about sexuality and gender

identity. These types of education have no historical

roots or connection with the fundamental democratic

values that this Court’s precedents emphasize.

To begin, characterizing any deference to public

school administrators’ curriculum choices as

constitutionally necessary is ahistorical. “[M]ass

compulsory state-controlled education itself” was “far

from the consciousness” of “the constitutional

framers.” R. Salomone, Common Schools, Uncommon

Values: Listening to the Voices of Dissent, 14 Yale L. &

Pol’y Rev. 169, 212 (1996); see Mahanoy Area Sch.

Dist. v. B.L., 594 U.S. 180, 203 n.14 (2021) (Alito, J.,

concurring) (“At the time of the adoption of the First

Amendment, public education was virtually

unknown . . . .”). Thus, “[u]ntil the middle of the

nineteenth century, the duty to educate one’s child

remained firmly placed with the child’s parents.”

M. Katz, A History of Compulsory Education Laws 14

(1976).

To the extent any deference to compulsory school

curriculum choices is warranted, that deference

should be circumscribed by at least two historical

principles.

First, the “curriculum” in early American schools

“seldom extended beyond the elementary subjects.” Id.

at 13. States’ historically rooted interests in exotic

subjects are thus minimal. As this Court has

explained, though early Americans like Thomas

Jefferson “recognized that education was essential to

the welfare and liberty of the people,” “he envisaged

that a basic education in the ‘three R’s’ would

sufficiently meet the interests of the State.” Wisconsin

v. Yoder, 406 U.S. 205, 226 n.14 (1972). As students

age, more instruction is appropriate, but again, the

relevant subjects are historically narrow. For

instance, this Court has said that “the State may

require teaching by instruction and study of all in our

history and in the structure and organization of our

government, including the guaranties of civil liberty

which tend to inspire patriotism and love of country.”

W. Virginia State Bd. of Educ. v. Barnette, 319 U.S.

624, 631 (1943) (internal quotation marks omitted). If

“public education in our Nation is committed to the

control of state and local authorities,” Epperson v.

State of Ark., 393 U.S. 97, 104 (1968), that could only

be true of traditional school subjects that are

necessary to engage in “the performance of our most

basic public responsibilities” as citizens and perhaps

“prepar[e] . . . for later professional training.” Brown

v. Bd. of Ed. of Topeka, 347 U.S. 483, 493 (1954).

Second, any deference to compulsory school

curriculum choices should be cabined by the scope of

parents’ delegation of their rights over their children’s

education. This Court has characterized “school

authorities [as] acting in loco parentis,” Bethel Sch.

Dist. No. 403 v. Fraser, 478 U.S. 675, 684 (1986),

drawing on Blackstone’s description:

A parent “may . . . delegate part of his parental

authority, during his life, to the tutor or

schoolmaster of his child; who is then in loco

parentis, and has such a portion of the power of

the parent committed to his charge, viz. that of

restraint and correction, as may be necessary to

answer the purposes for which he is employed.”

Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 655

(1995) (emphases added) (quoting 1 W. Blackstone,

Commentaries on the Laws of England 441 (1769)).

“If in loco parentis is transplanted from

Blackstone’s England to the 21st century United

States, what it amounts to is simply a doctrine of

inferred parental consent to a public school’s exercise

of a degree of authority that is commensurate with the

task that the parents ask the school to perform.”

Mahanoy, 594 U.S. at 200 (Alito, J., concurring). Thus,

this Court’s “oft-expressed view that the education of

the Nation’s youth is primarily the responsibility of

parents, teachers, and state and local school officials”

should not be read as an unlimited license for public

school officials to impose ideological instruction in

newfound subject areas—especially when parents

object. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S.

260, 273 (1988).

Neither historical nor in loco parentis justifications

apply to modern notions of sexuality and gender

identity education. Those types of education are

irrelevant to citizens’ public responsibilities—indeed,

our democratic republic was the envy of the world long

before those subjects even existed. That for centuries

Americans have been taught to “function effectively in

their day-to-day life” without sexuality and gender

education “is strong evidence that they are capable of

fulfilling the social and political responsibilities of

citizenship” without these types of instruction. Yoder,

406 U.S. at 225. And these types of instruction are

irrelevant to professional training. Rather, sexuality

and gender identity education are personal,

subjective, value-laden, and inherently ideological.

The recency of their arrival in American (or any)

schools confirms that sexuality and gender identity

education cannot claim to be longstanding norms of

schools. “Before the turn of the twentieth century,

education involving sex and human sexuality was

limited to ‘social hygiene.’” 1 “Such education included

information about venereal diseases, physical growth,

and human reproduction.” 2 “It was not until 1912,

when the International Congress of Hygiene

recommended a broader study of the topic, that the

term ‘sex education’ was adopted.” 3

1 M. Fucci, Educating Our Future: An Analysis of Sex Education

in the Classroom, 2000 B.Y.U. Educ. & L.J. 91, 91–92 (2000).

2 Id. at 92.

3 Ibid.

Public schools, however, did not “beg[i]n

implementing sexuality education [until] the 1970s.” 4

It emerged then “because unintended pregnancy and

sexually transmitted diseases among adolescents

became ‘better measured and publicized.’” 5 “In recent

decades, sex education programs have deviated from

their original purposes of educating children on

human development, reproduction, and diseases,”

instead focusing on topics like “the correct way to use

condoms and how to reduce the risk of becoming

pregnant.” 6 The shift to discussing sexualities is even

more recent.

Gender identity education is, of course, newer still.

After all, “[t]he concept of ‘gender identity’ did not

[even] enter the English lexicon until the 1960s.” Gore

v. Lee, 107 F.4th 548, 562 (CA6 2024). Only in the past

decade has this type of education emerged in any

significant way.

Neither of these subjects—sexuality or gender

identity—is connected to good citizenship or

professional training. And both are laden with

ideological assumptions and values. So while this

Court in the past has been careful to defer to school

curriculum to ensure that the schools “retain the

K. Rufo, Public Policy vs. Parent Policy: States Battle over

Whether Public Schools Can Provide Condoms to Minors Without

Parental Consent, 13 N.Y.L. Sch. J. Hum. Rts. 589, 591–92

(1997).

5 Id. at 592 n.15 (quoting School-Based Programs to Reduce

Sexual Risk Behaviors: A Review of Effectiveness 340, U.S. Dep’t

of Health & Human Services, Public Health Reports (May 1994)).

6 Fucci, supra note 1, at 110.

authority to refuse to” “associate the school with any

position other than neutrality on matters of political

controversy,” Hazelwood, 484 U.S. at 272, sexuality

and gender identity education require the school to

take such positions. They are historical anomalies

without connection to citizenship, and they contradict

the notion that “[f]ree public education . . . will not be

partisan or enemy of any class, creed, party, or

faction.” Barnette, 319 U.S. at 637.

Last, sexuality and gender education are often—as

here—imposed against the wishes of parents, not with

their approval. “[P]arents who enroll their children in

a public school” cannot “reasonably be understood to

have delegated to the school the authority to” impose

these types of instruction. Mahanoy, 594 U.S. at 203

(Alito, J., concurring). As Blackstone emphasized, in

loco parentis says that a parent “may” delegate certain

authority. 1 Blackstone, supra, at 441 (emphasis

added). Letting schools broaden their own authority

by “defin[ing] their educational missions as including

the inculcation of whatever political and social views

are held by” their administrators contradicts in loco

parentis. Morse v. Frederick, 551 U.S. 393, 423 (2007)

(Alito, J., concurring, joined by Kennedy, J.)

All this means that judicial deference is

unwarranted when it comes to school administrators’

sexuality and gender identity education choices.

II.

Montgomery schools’ sexuality and gender

identity curriculum indoctrinates students.

Even as the Fourth Circuit took a deferential

approach to public school curriculum choices, it

departed from the assumption underlying that

approach: that “[w]hen [the government] acts as an

educator, at least at the elementary and secondary

school level, [it] is engaged in inculcating social values

and knowledge in relatively impressionable young

people.” Pico, 457 U.S. at 909 (Rehnquist, J.,

dissenting). Justice Brennan recognized the same

point: “the public educator nurtures students’ social

and moral development by transmitting to them an

official dogma of ‘community values.’” Hazelwood, 484

U.S. at 278 (dissenting op.).

Though the court below erred in thinking that it

needed to defer to sexuality and gender identity

curriculum choices, it also erred in downplaying the

reality that education—especially of young children

and on fraught personal topics like sexuality and

gender—necessarily indoctrinates students. That is

the point. Understanding that point confirms the

burden on parents’ religious rights when schools try to

instill their own values in children about sexuality and

gender identity in place of their parents’ beliefs.

Below, the Fourth Circuit acted as if there were

some open evidentiary question about whether the

books “are being used in a coercive manner.” App. 43a.

For their part, the schools sought to have it both ways.

On one hand, they argued that the mandatory

readings “are literacy tools” that merely “impart

critical reading skills.” CA4 Br. 1–2. They gestured

toward various disclaimers and red herrings, like that

the books have “Curricular Connections”: “I will be

able to answer questions about characters. I will be

able to share what I know about why authors tell

stories.” App. 522a; see App. 520a (“There are no

planned explicit lessons related to gender and

sexuality[.]”). This is a common refrain from schools

caught red-handed imposing their ideological values

on captive students: we were simply using these books

to teach reading comprehension.

At the same time, in its more candid district court

briefing, the schools trumpeted that their reading

choices were intended to “redress implicit biases,”

“promote[] equity,” “[c]onfront and eliminate

stereotypes,”

“normalize[]

fully

inclusive

environment,” and “[r]educ[e] stigmatization.” D. Ct.

Dkt. 42, at 3, 26 (cleaned up). These goals are so

important, the schools argued, that “allowing any

student to opt out hinders [their] educational

mission”—thus supposedly enabling the policy to pass

strict scrutiny. Id. at 27 n.7; see also App. 513a (“We

teach—implicitly and explicitly—about gender and

sexuality identity all the time in school.”); App. 498a

(“[B]eing accepting is the goal.”); App. 527a (noting

“Impact of this Work”).

By making these claims, even the schools recognize

that an inherent purpose of education—especially at

young ages—is to instill and change values. The

decision below erred in glossing over the significance

of mandatory instruction in instilling values. Courts

are “not required to exhibit a naiveté from which

ordinary citizens are free.” Dep’t of Commerce v. New

York, 588 U.S. 752, 785 (2019). When a teacher reads

“The Boy Who Cried Wolf” to kindergarteners, the

point is not just to diagram sentences or test reading

comprehension—to the extent such skills are still

taught—but to teach a lesson about lying.

In the same way, everyone knows that the

Montgomery Board picked Born Ready: The True

Story of a Boy Named Penelope rather than, say,

Johnny the Walrus 7 because it wanted to send a

certain message about gender identity. Born Ready,

like most children’s books, is not subtle:

App. 465a. The messages in the other books are also

apparent:

7 M. Walsh, Johnny the Walrus (2022).

App. 265a (Pride Puppy!). App. 303a (Uncle Bobby’s

Wedding).

App. 423a (Prince and Knight).

App. 323a (Intersection Allies).

The included “notes” for this last reading say that

“[s]ex and gender” “are not the same.” App. 350a.

According to the notes, “[w]e would respect [a person’s]

choice of pronouns” by using whatever they desire,

whether it be “gendered pronouns” or “non-binary

pronouns”; “at any point in our lives, we can choose to

identify with one gender, multiple genders, or neither

gender.” Ibid.

As the First Circuit said in a similar case—even

while rejecting the parents’ free exercise claims—“[i]t

is a fair inference that the[se] reading[s]” were

“precisely intended to influence the listening children

toward” a certain value. Parker v. Hurley, 514 F.3d 87,

106 (CA1 2008). “That was the point of why th[ese]

book[s] w[ere] chosen and used.” Ibid.

To suggest otherwise blinks reality. Below, the

Board claimed that “use of the books involves no

instruction on sexual orientation or gender identity

per se.” D. Ct. Dkt. 42, at 6. But even the district court

understood that the books were intended to

“influence” children—it just found this “influence”

“permissible.” App. 133a. The Fourth Circuit,

meanwhile, would not concede even this much,

insisting that the mandatory instruction involved no

“direct or indirect pressure” and distinguishing

between “exposure” and “coercive effect.” App. 35a–

36a.

Especially in an elementary school setting, that is

not a plausible understanding of mandatory in-class

teaching, especially of readings with obvious value

preferences. See, e.g., Bethel, 478 U.S. at 683 (“The

inculcation of [certain] values is truly the work of the

schools.” (cleaned up)); ibid. (“Inescapably, like

parents, [teachers] are role models.”); Edwards v.

Aguillard, 482 U.S. 578, 584 (1987) (emphasizing the

“coercive power” of public schools “because of the

students’ emulation of teachers as role models and the

children’s susceptibility to peer pressure”); Lee v.

Weisman, 505 U.S. 577, 593–94 (1992) (holding that a

brief prayer impermissibly “places public pressure, as

well as peer pressure, on” high school students “to

enforce orthodoxy”); Pico, 457 U.S. at 879 (Blackmun,

J., concurring) (public schools “inevitably . . . inculcate

ways of thought and outlooks”); James v. Bd. of Ed. of

Cent. Dist. No. 1 of Towns of Addison, 461 F.2d 566,

573 (CA2 1972) (“[A] principal function of all

elementary

and

secondary

education

indoctrinative—whether it be to teach the ABC’s or

multiplication tables or to transmit the basic values of

the community.”).

Many academic commentators have echoed the

point. As one explained:

Schooling is inherently indoctrinative. Both the

formal and informal curriculum, established by

those in authority in accordance with their own

views or those of the majority in the

community,

are

value-laden—from

the

textbooks selected, to the methods of teaching,

to extra-curricular offerings. School officials

may believe that students are developing

critical thinking skills in order to form their

own conclusions. However, the curriculum may

in fact lead students to certain school/teacherdirected conclusions. 8

Another applied the point to highly contentious

gender and sexuality issues:

[S]exual diversity public school curriculum[]

“whether for kindergartners or older children,

8 Salomone, supra, at 216–17.

not

education

about

biology

but

indoctrination in values that go against the

traditional values that children learn in their

families and in their communities. Obviously,

the earlier this indoctrination begins, the better

its chances of overriding traditional values. The

question is not how urgently children in

kindergarten need to be taught about sex or gay

families but how important it is for

indoctrinators to get an early start.” 9

The commentator notes that “gay writer Daniel

Villarreal” candidly rejected the notion that this type

of education imparts no values: “[L]et’s face it—that’s

a lie. We want educators to teach future generations

of children to accept queer sexuality. In fact, our very

future depends on it.” 10

One need not go beyond the Board’s books

themselves to find pressure for students to alter the

beliefs that their parents are seeking to instill in them.

But the books’ accompanying materials confirm that

the main goal is not reading comprehension but

indoctrination. If a student says something like “He

can’t be a boy if he was born a girl. What body parts

do they have?”, teachers are told to say, “That

9 L. Wardle, The Impacts on Education of Legalizing Same-Sex

Marriage and Lessons from Abortion Jurisprudence, 2011 B.Y.U.

Educ. & L.J. 593, 613 (2011) (brackets omitted) (quoting T.

Sowell, High Ideals and No Principles, Nat’l Rev. Online (Oct. 8,

2008), https://perma.cc/H65B-UBKQ).

10 Id. at 605 (quoting D. Villarreal, Can We Please Just Start

Admitting that We Do Actually Want to Indoctrinate Kids,

Queerty (May 12, 2011), https://perma.cc/PWV3-EF84).

comment is hurtful; we shouldn’t use negative words

to talk about peoples’ identities.” App. 619a. The

suggested response continues: “When we’re born,

people make a guess about our gender and label us boy

or girl based on our body parts. Sometimes they’re

right and sometimes they’re wrong. Our body parts do

not decide our gender.” App. 620a.

Whether one agrees or not, this language imparts

a particular value about gender identity. Tellingly, the

responses have nothing to do with reading

comprehension, language skills, or grammar.

Objecting students are not told, for instance, that they

misunderstood the stories. Instead, the responses are

about values—telling objecting students that they

have the wrong values.

In sum, the court below found it meaningful to say

that “this case presents only an objection to their

children’s public school curriculum.” App. 49a. Yes—

and curriculum inherently tries to instill certain

values, especially in elementary students. When those

values contradict parents’ religious beliefs on highly

personal matters of sexuality and gender identity, the

inherent indoctrinative aspect of school curriculum

raises a significant constitutional problem.

None of this is to argue that the judiciary is always

the right forum for curriculum disputes. Of course it is

not. But when curriculum—especially ahistorical,

ideological curriculum—butts up against the

Constitution, courts should not shrink from

vindicating individual rights. Not only does that

approach contradict the reason for deference—the

inculcation of values in impressionable children—but

it also applies a deferential approach where it does not

belong. “The very purpose of a Bill of Rights was to

withdraw certain subjects from the vicissitudes of

political controversy, to place them beyond the reach

of majorities and officials and to establish them as

legal principles to be applied by the courts.” Barnette,

319 U.S. at 638; see also Meyer v. Nebraska, 262 U.S.

390, 401 (1923) (“That the state may do much, go very

far, indeed, in order to improve the quality of its

citizens, physically, mentally and morally, is clear; but

the individual has certain fundamental rights which

must be respected.”).

CONCLUSION

The Court should grant certiorari.

Respectfully submitted,