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

Supreme Court briefMar 7, 2025

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Text

No. 24-297

IN THE

Supreme Court of the United States

————

TAMER MAHMOUD, ET AL.,

Petitioners,

THOMAS W. TAYLOR, IN HIS OFFICIAL CAPACITY AS

SUPERINTENDENT OF THE MONTGOMERY COUNTY

BOARD OF EDUCATION, ET AL.,

Respondents.

____________________________________________________________________________________________________

On Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

____________________________________________________________________________________________________

BRIEF FOR AMICUS CURIAE

AMERICANS FOR PROSPERITY FOUNDATION

IN SUPPORT OF PETITIONER

————

CYNTHIA FLEMING CRAWFORD

Counsel of Record

CASEY MATTOX

AMERICANS FOR PROSPERITY

FOUNDATION

4201 Wilson Blvd., Suite 1000

Arlington, VA 22203

(571) 329-2227

ccrawford@afphq.org

Counsel for Amicus Curiae

March 7, 2025

TABLE OF CONTENTS

TABLE OF AUTHORITIES ............................................... ii

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

SUMMARY OF ARGUMENT .............................................. 1

ARGUMENT.................................................................... 3

Parents’ Right to Educate Their Children Is

Imperiled When Schools Seek to Extend Their

Authority Beyond The Authority Delegated by

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

Parents’ Rights Are Chilled When Schools

Impose a Viewpoint on a Child that Conflicts

with the Parents’ Rights of Conscience. .......... 7

Longstanding Precedent Reveals no Doctrine

Allowing Schools to Displace Parents’ Right to

Guide Their Children’s Upbringing. ................ 8

Parental Delegation of Authority to Schools is

Deemed Limited in Many Areas. ................... 11

Instruction in Human Sexuality is One of the

Areas in Which Parental Delegation is Limited

and Subject to Withdrawal Under Maryland

Law. ................................................................. 13

II. Discrimination Against Matters of Conscience

Protected by the First Amendment Merits Strict

Scrutiny. .............................................................. 14

III. The Board Cannot Cure One First Amendment

Injury by Imposing Another. .............................. 18

CONCLUSION ............................................................... 21

TABLE OF AUTHORITIES

Page(s)

Cases

303 Creative LLC v. Elenis,

600 U.S. 570 (2023) ....................................... 3, 17

Brown v. Ent. Merchants Ass'n,

564 U.S. 786 (2011) ..................................... 17, 18

Christian Legal Soc’y v. Martinez,

561 U.S. 661 (2010) ........................................... 15

City of Ladue v. Gilleo,

512 U.S. 43 (1994) ....................................... 17, 18

Employment Div., Dept. of Human

Resources of Ore. v. Smith,

494 U.S. 872 (1990) ........................................... 15

Farrington v. Tokushige,

273 U.S. 284 (1927) ............................................. 9

Fulton v. City of Philadelphia,

141 S. Ct. 1868 (2021) ................................. 15, 16

Janus v. American Federation of State,

County, & Municipal Employees, Council

31,

138 S. Ct. 2448 (2018) ....................................... 17

iii

Keyishian v. Bd. of Regents,

385 U.S. 589 (1967) ....................................... 1, 15

Minersville School Dist. v. Gobitis,

310 U.S. 586 (1940) ................................. 3, 14, 19

Morse v. Frederick,

551 U.S. 393 (2007)) ........................................ 4, 5

National Institute of Family & Life

Advocates v. Becerra (“NIFLA”),

138 S. Ct. 2361 (2018) ...................................... 17

Pierce v. Society of the Sisters of the Holy

Names of Jesus and Mary,

268 U.S. 510 (1925) ....................................... 4, 10

Prince v. Massachusetts,

321 U.S. 158 (1944) ....................................... 6, 14

Reed v. Town of Gilbert,

576 U.S. 155 (2015) ........................................... 17

Rosenberger v. Rector & Visitors of Univ. of

Virginia,

515 U.S. 819 (1995) ........................................... 16

Thornhill v. Alabama,

310 U.S. 88 (1940) ............................................. 15

Tinker v. Des Moines Independent

Community School Dist.,

393 U.S. 503 (1969) ............................................. 4

United States v. Sineneng-Smith,

140 S. Ct. 1575 (2020) ....................................... 15

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

319 U.S. 624 (1943) ................................. 3, 20, 21

Wisconsin v. Yoder,

406 U.S. 205 (1972) ................................. 4, 10, 11

Constitutions

U.S. Const. Amend. I

......................1, 3, 7, 10, 11, 12, 13, 14, 15, 16, 18

Statutes

Md. Code Regs. 13A.04.18.01........................... 13, 14

Other Authorities

1 W. Blackstone, Commentaries on the

Laws of England 441 (1765) ............................... 4

Crawford, Cynthia, Children Have Liberty

Interests in Pursuing Education and

Freedom of Movement that Can be

Protected through Litigation Seeking a

Plaintiff-Focused Remedy (August 28,

2024) .............................................................. 8, 10

Montgomery County Public Schools, Office

of School Support and Improvement,

Parent/Guardian Approval for Trips

MCPS Transportation is Not Provided:

https://ww2.montgomeryschoolsmd.org/d

epartments/forms/pdf/560-31.pdf .................... 12

Montgomery County Public Schools, Office

of School Support and Improvement,

Parent/Guardian Approval for Trips

MCPS Transportation is Provided:

https://ww2.montgomeryschoolsmd.org/d

epartments/forms/pdf/555-6.pdf ...................... 12

Montgomery County Public Schools, Office

of School Support and Improvement,

Parent/Guardian Approval MCPS

Virtual Field Trip/Program Addendum:

https://ww2.montgomeryschoolsmd.org/d

epartments/forms/pdf/210-7.pdf ...................... 12

Montgomery County Public Schools, Office

of School Support and Improvement,

Approval for Extended Day, Out-of-Area,

and Overnight Field Trips,

https://ww2.montgomeryschoolsmd.org/d

epartments/forms/pdf/210-4.pdf ...................... 12

Montgomery County Public Schools

Montgomery County Department of

Health And Human Services,

Authorization to Administer Prescribed

Medication, available at:

https://www.montgomeryschoolsmd.org/s

iteassets/schools/elementary-schools/ac/burningtreees/uploadedfiles/authorizat

ion-to-administer-prescribedmedication.pdf .................................................. 13

State Compulsory Education Laws,

FindLaw, June 20, 2016,

http://bit.ly/3cc0y2b ............................................. 5

Jade Yeban, J.D., Susan Mills Richmond,

Esq. (legal review), State Laws

Regarding Corporal Punishment,

FindLaw (May 23, 2024) ................................... 13

INTEREST OF AMICUS CURIAE1

Americans for Prosperity Foundation (“AFPF”) is

a 501(c)(3) nonprofit organization committed to

educating and empowering Americans to address the

most important issues facing our country, including

civil

liberties

and

constitutionally

limited

government. As part of this mission, it appears as

amicus curiae before federal and state courts. AFPF is

interested in this case because protection of the

freedoms of expression and association, guaranteed by

the First Amendment, is essential for an open and

diverse society.

AFPF is committed to ensuring the freedom of

expression and association guaranteed by the First

Amendment for all Americans, including students and

their parents. Campuses are not just a place where

free expression should be protected; it is vital to their

mission. And they are uniquely positioned to instill in

the next generation an appreciation for free speech.

This is why “[t]he vigilant protection of constitutional

freedoms is nowhere more vital than in the

community of American schools.” Keyishian v. Bd. of

Regents, 385 U.S. 589, 603 (1967) (citation omitted).

SUMMARY OF ARGUMENT

Constitutional rights often travel together. The

First Amendment rights of freedom of speech,

religion, and assembly frequently overlap in

education cases. Here that overlap includes parents’

1 No counsel for a party authored this brief in whole or in part

and no person other than amicus or its counsel made any

monetary contributions to fund the preparation or submission of

this brief. AFPF notified counsel for all parties of its intent to file

this brief more than ten days before filing.

right to guide the education of their children and the

limits of parental delegation of authority to schools.

Longstanding precedent regarding parental rights

over the rearing of children runs the gamut from free

exercise, to economic freedom, to speech, to physical

control over the child’s body. Indeed, parental

authority is near-plenary. There are certain wellrecognized categories where parental delegation to

schools is presumed to be limited, requiring either an

opt out or supplemental grants of authority. These

include subjects that may conflict with religious

beliefs, physical punishment, transporting children

off school grounds (field trips), etc.

Moreover, as with all delegations, the scope of this

delegation is determined by the holder of the original

power. Where parents expressly withdraw the

delegation—especially in sensitive areas that are

well-established as subject to parental control—the

state must recognize that limitation or risk

unlawfully infringing the rights of the parents.

This case involves just such a withdrawal of

authority and sits comfortably within the topics for

which parental authority is clearly established. The

parents request nothing new here—indeed Maryland

statutory law allows parents to withdraw their

students from just such instruction. What is new in

this case is the Montgomery County Board of

Education’s assertion that if too many parents

withdraw their consent, then it can overrule them.

Thus, although this case comes before the Court on

Free Exercise grounds, it could have been brought on

Free Speech grounds subjecting it to a standard of

review that would be nearly impossible for the state

to overcome. This difference has been dispositive in

cases such as 303 Creative, requiring strict scrutiny as

a viewpoint-based infringement of speech. 303

Creative LLC v. Elenis, 600 U.S. 570, 583, 593 (2023).

Finally, the court below suggested that the parents

could cure infringement of their own free exercise

rights by re-educating their children to reject the

viewpoint imposed by the school, thus compounding

the First Amendment violation by compelling the

parents to implement curative speech at home. This

Court floated that remedy in Minersville School Dist.

v. Gobitis, 310 U.S. 586, 599 (1940) but later overruled

it in West Virginia State Board of Education v.

Barnette, 319 U.S. 624, 642 (1943) (“The decision of

this Court in Minersville School District v. Gobitis and

the holdings of those few per curiam decisions which

preceded and foreshadowed it are overruled”).

It is now well established that schools cannot

compel viewpoint-based participation from students,

especially when such participation has been

prohibited by parents.

ARGUMENT

I. PARENTS’ RIGHT TO EDUCATE THEIR CHILDREN

IS IMPERILED WHEN SCHOOLS SEEK TO EXTEND

THEIR AUTHORITY BEYOND THE AUTHORITY

DELEGATED BY PARENTS.

The Montgomery County Board of Education (“the

Board”) seeks to instruct grade school children on

sexual material contrary to the express will of their

parents and without an opportunity for the parents to

withdraw their children from exposure to that

material. This overreach sets up a conflict between

the limited authority of the school and the rights of

parents.

Concurring in Morse v. Frederick, Justices Thomas

and Alito presented competing models of school

authority: the in loco parentis model and the stateagent model. 551 U.S. 393, 413 (2007). Each model is

limited in scope, providing an outside boundary to

school authority. Coupled with longstanding

recognition of parents’ rights over rearing and

educating their children, both caution against

expansive interpretation of school authority to censor

or impose expression except in the narrow

circumstances set forth in Tinker v. Des Moines

Independent Community School Dist., 393 U.S. 503,

512–14 (1969) (articulating the substantial disruption

standard for censorship in school). See also, Wisconsin

v. Yoder, 406 U.S. 205, 232–33 (1972); Pierce v. Society

of the Sisters of the Holy Names of Jesus and Mary,

268 U.S. 510 534–35 (1925) (recognizing the right of

parents to raise and educate their children).

Under the in loco parentis model, school authority

over students derives from the concept that while

children are in the school’s care, the school acts “in

place of the parent.” This legal doctrine, which

originally governed the legal rights and obligations of

tutors and private schools, has been applied to public

schools as well. Morse, 551 U.S. at 413 (Thomas, J.

concurring) (citing 1 W. Blackstone, Commentaries on

the Laws of England 441 (1765) (“[A parent] may also

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”)).

Under this model, the authority of a school to act in

loco parentis is coterminous with the authority

delegated by the parent.

The state-agent model, conversely, advises tighter

boundaries on school authority arising from the threat

posed by state power. As Justice Alito cautioned: “It is

a dangerous fiction to pretend that parents simply

delegate their authority—including their authority to

determine what their children may say and hear—to

public school authorities. It is even more dangerous to

assume that such a delegation of authority somehow

strips public school authorities of their status as

agents of the State.” Morse, 551 U.S. at 413 (Alito, J.

concurring). This is so, in part, because “[m]ost

parents, realistically, have no choice but to send their

children to a public school and little ability to

influence what occurs in the school.” Id.2

Under either model, school authority does not

displace the authority of the parent to guide the

development of their children.

This interpretation is consistent with the Court’s

longstanding recognition that the Fourteenth

Amendment protects “those privileges long recognized

at common law as essential to the orderly pursuit of

2 See also State Compulsory Education Laws, FindLaw, June 20,

2016 (“All states have compulsory education laws and allow

exemptions for private schools and homeschooling, although the

regulation of non-public schooling varies from state to state. . . .

Parents who fail to comply with state compulsory education laws

may be charged with a misdemeanor, punishable upon conviction

by a fine or—for particularly serious violations—up to 30 days in

jail.” http://bit.ly/3cc0y2b.

happiness by free men,” which include the rearing and

education of children. Meyer, 262 U.S. at 399.3 Thus,

while recognizing state power to compel school

attendance and to make reasonable regulations for

schools, the Court has acknowledged “it is the natural

duty of the parent to give his children education

suitable to their station in life.” Meyer, 262 U.S. at

402–03. And interfering with “the power of parents to

control the education of their own” children violates

the Fourteenth Amendment. Id. at 399–401.

The Court has rarely found a state interest to

transcend the interest of the parent in the child’s

upbringing. Prince v. Massachusetts, 321 U.S. 158,

161 (1944) (upholding child labor law that prohibited

girls under age eighteen from selling magazines in a

street or public place.). But in Prince, the Court was

careful to annunciate the cardinal rule that “the

custody, care and nurture of the child reside first in

the parents, whose primary function and freedom

include preparation for obligations the state can

neither supply nor hinder” and to affirm the ruling

should not extend beyond its facts. Id. at 166, 171.

Accordingly, even where a school may have a valid

interest in protecting its ability to deliver education,

the Court has consistently found school interests must

yield to parental rights in all but the most compelling

circumstances. Here, no such circumstance has been

identified much less proven.

3 Amicus does not endorse the methodology the Court has used

to identify this right as being protected by the due process clause

of the Fourteenth Amendment. But it nonetheless recognizes its

existence and believes the same or similar right would be

identified using a privileges or immunities, or Ninth Amendment

methodology.

A. Parents’ Rights Are Chilled When

Schools Impose a Viewpoint on a Child

that Conflicts with the Parents’ Rights

of Conscience.

When schools present viewpoint-laden material on

topics that are deeply intertwined with religious or

other fundamental beliefs and disparage alternative

viewpoints, that viewpoint imposition affects more

than just the children, reaching into the relationships

within the family home and burdening the rights of

family members. The conflict here is thus not simply

whether certain information should be conveyed in

school, but rather the imposition of viewpoints outside

the schoolhouse walls that goes with it.

Here,

“Board members publicly accused

[dissenting parents] of promoting ‘hate’ and compared

them to ‘white supremacists’ and ‘xenophobes.’” Pet.

at 1–2. In addition to interfering with the parents’

rights to raise their children, the school board has

attacked the fundamental freedoms of the adults,

using the children as leverage over parents by

imposing on those children the public ignominy of

vilifying their parents.

The only way for parents to preclude unwanted

scrutiny of themselves and imposition of public

shaming on their children would be to withdraw

children from public school and place them in an

alternative form of education. For many parents that

alternative is not feasible, leaving them with a

Hobson’s choice, either sacrifice their own

constitutional protections or violate compulsory

education laws. As here, the First Amendment is

particularly vulnerable to infringement by zealous

school authorities and thus commands that school

authority be clearly limited. Thankfully, nearly all

states have resolved this quandary by allowing

parents to opt their children out of particularly

sensitive course material, such as sexual education.

But here, the Board refuses to allow that opt out.

B. Longstanding Precedent Reveals no

Doctrine Allowing Schools to Displace

Parents’ Right to Guide Their

Children’s Upbringing.

There is a long line of precedent addressing the

education of children that cabins the extent to which

a state may mandate where a child receives education

and what the child may or may not be taught. “The

tension turns on who gets to decide the appropriate

education for the child—the state or the individual.”4

“These cases presume the state has a legitimate

interest in ensuring the child is educated, but they

hold that various constitutional provisions limit how

that interest may be satisfied.” Id. “The Constitution

protects children, their parents, and even their

teachers when the state treads on fundamental liberty

interests. Although the cases have a common theme

and consistent outcomes, protecting the rights of

parents and their children to make their own

educational choices, they rely on a variety of

constitutional rights.” Id. The remedy has been to stop

the government from limiting their freedom.

4 Crawford, Cynthia, Children Have Liberty Interests in Pursuing

Education and Freedom of Movement that Can be Protected

through Litigation Seeking a Plaintiff-Focused Remedy at 20

(August

28,

2024).

Available

SSRN:

https://ssrn.com/abstract=5052593

http://dx.doi.org/10.2139/ssrn.5052593

Some claims relied on the Fifth and Fourteenth

Amendments’ due process protection against

deprivation of liberty. Id.

In Meyer, the issue was whether prohibiting the

teaching of students, who had not completed eighth

grade, in any modern language other than English,

“unreasonably infringe[d] the liberty guaranteed . . .

by the Fourteenth Amendment.” Meyer, 262 U.S. at

396–97. The plaintiff was a teacher who taught

parochial school in the German language and had

been convicted under the challenged statute. Id.

The Court, while acknowledging that the exact

forms of liberty protected by the Fourteenth

Amendment have not been defined, provided

examples of freedoms that “without doubt” it includes,

such as “freedom from bodily restraint but also the

right of the individual to contract, 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.”

Meyer, 262 U.S. at 399 (collecting cases).

“Farrington v. Tokushige presented a similar issue

when Hawaii attempted to regulate ‘foreign language

schools’ to such a degree that it threatened to squeeze

them out of existence.” Crawford at 22 (citing

Farrington v. Tokushige, 273 U.S. 284 (1927)). The

Court in Tokushige recognized the liberty interests of

the teachers in running the schools and of the parents

in directing the education of their children as superior

to the state’s interest in controlling them. Crawford,

at 23.

Similarly, in Pierce, plaintiff, the Society of Sisters,

challenged the compulsory public school attendance

law under the Fourteenth Amendment claiming

deprivation of property without due process. 268 U.S.

at 532–33. The Court held that “the Act of 1922

unreasonably interferes with the liberty of parents

and guardians to direct the upbringing and education

of children under their control,” and rejecting “any

general power of the state to standardize its children

by forcing them to accept instruction from public

teachers only;” holding that 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.” Id. at 534–35.

Yoder, by contrast, presented a constitutional

challenge to compulsory attendance under the Free

Exercise Clause of the First Amendment. 406 U.S. at

207. The question was whether Old Order Amish

children who had completed eighth grade could be

compelled to attend public school until age 16 when

formal high school education beyond eighth grade is

contrary to Amish beliefs. Id. at 211. Compelled

attendance at public school removed students “from

their community, physically and emotionally, during

the crucial and formative adolescent period of life”

depriving them of the time in which “the children

must acquire Amish attitudes favoring manual work

and self-reliance and the specific skills needed to

perform the adult role of an Amish farmer or

housewife.” Id. at 211. Thus “high school attendance

with teachers who are not of the Amish faith—and

may even be hostile to it—interpose[d] a serious

barrier to the integration of the Amish child into the

Amish religious community.” Id. at 211–12.

The state, by contrast, professed an “interest in

universal education” which it executed by

“establishing and maintaining an educational

system.” Id. at 213, 214. The Court found the state’s

interest in its system inadequate to override the

defendants’ individual rights to educate their children

in accordance with their religious beliefs. Id. at 221,

236.

All of these bedrock cases recognized some state

interest in education. But none of the cases

articulated any doctrine allowing public school

officials to displace parents’ choice of education.

C. Parental Delegation of Authority to

Schools is Deemed Limited in Many

Areas.

Parental delegation of authority to schools is

presumed to be limited in scope in a variety of

circumstances. It is thus not unusual to respect those

limits, which in many cases are expressly

acknowledged in law and policy.

School personnel cannot, for example, take

students to other locations outside the typical school

locations without parental permission even though

schools have physical custody of children during the

school day. Montgomery County Public Schools has

forms for providing parental authority for field trips, 5

5 Montgomery County Public Schools, Office of School Support

and Improvement, Parent/Guardian Approval for Trips MCPS

Transportation

Provided:

https://ww2.montgomeryschoolsmd.org/departments/forms/pdf/5

55-6.pdf; Montgomery County Public Schools, Office of School

Support and Improvement, Parent/Guardian Approval for Trips

including for “virtual fieldtrips.”6 Prior to requesting

parental approval, the trip sponsor must request

approval for the trip itself.7 The expectation in

Montgomery County Public Schools is that the school

does not have authority to physically move a child to

another location without additional express parental

consent even for a curricular reason, like a school trip.

Likewise, school personnel have limited authority

over the bodily integrity of students. They are

prohibited from administering medication without

express written permission: “No medication will be

administered in school or during school-sponsored

activities without the parent’s/guardian’s written

authorization and a written physician order. This

includes both prescription and over-the-counter

medications.”8 Similarly, Maryland outlawed corporal

MCPS

Transportation

Not

Provided:

https://ww2.montgomeryschoolsmd.org/departments/forms/pdf/5

60-31.pdf

6 Montgomery County Public Schools, Office of School Support

and Improvement, Parent/Guardian Approval MCPS Virtual

Field

Trip/Program

Addendum:

https://ww2.montgomeryschoolsmd.org/departments/forms/pdf/2

10-7.pdf

7 Montgomery County Public Schools, Office of School Support

and Improvement, Approval for Extended Day, Out-of-Area, and

Overnight

Field

Trips,

https://ww2.montgomeryschoolsmd.org/departments/forms/pdf/2

10-4.pdf

Montgomery County Public Schools Montgomery County

Department of Health And Human Services, Authorization to

Administer

Prescribed

Medication,

available

at:

https://www.montgomeryschoolsmd.org/siteassets/schools/eleme

ntary-schools/a-c/burningtreees/uploadedfiles/authorization-toadminister-prescribed-medication.pdf

punishment in public schools in 1993,9 representing a

hard line over which parental authority cannot be

delegated.

It is thus not unusual for public schools to

recognize a limit on the parental authority delegated

to them, particularly in sensitive areas.

D. Instruction in Human Sexuality is One

of the Areas in Which Parental

Delegation is Limited and Subject to

Withdrawal Under Maryland Law.

Among the variety of topics over which delegation

of parental authority is presumed to be limited,

subject to withdrawal, or required to be express, the

teaching of human sexuality is well-established. See

Pet. at 6–7, n. 5, 6, & 7 (collecting state laws).

Maryland statutory law recognizes and provides for

parents to opt-out of such instruction for their

children and places the burden on the school system

to facilitate opt-outs and provide “appropriate

alternative learning activities and/or assessments in

health education” and the “opportunity for

parents/guardians to view instructional materials to

be used in the teaching of family life and human

sexuality objectives.”10 Guiding the manner in which

9 Jade Yeban, J.D., Susan Mills Richmond, Esq. (legal review),

State Laws Regarding Corporal Punishment, FindLaw (May 23,

2024)

10 (e) Student Opt-Out.

(i) The local school system shall establish policies, guidelines,

and/or procedures for student opt-out regarding instruction

related to family life and human sexuality objectives.

(ii) For students opting out of family life and human sexuality

instruction, each school shall establish a procedure for providing

their children are instructed in sexuality is widely

recognized as among the topics over which parents

have the right to direct their children’s instruction.

II. DISCRIMINATION

AGAINST

MATTERS

CONSCIENCE PROTECTED BY THE FIRST

AMENDMENT MERITS STRICT SCRUTINY.

The First Amendment is a single sentence that

does not establish a hierarchy among its clauses. This

Court has noted that “it may be doubted that any of

the great liberties insured by the First Article can be

given higher place than the others. All have preferred

position in our basic scheme.” Prince v. Massachusetts,

321 U.S. 158 (1944). See also Gobitis, 310 U.S. at 595

(“Nor does the freedom of speech assured by Due

Process move in a more absolute circle of immunity

than that enjoyed by religious freedom.”) (overruled

on other grounds). Yet the level of scrutiny applied to

infringement of religious exercise is both

inconsistent—subject to exceptions, burden shifts,

and assessment of mental state—and dramatically

different from the scrutiny routinely applied to free

speech, with speech more easily vindicated. 11 To the

a student with appropriate alternative learning activities and/or

assessments in health education.

(iii) Each school shall make arrangements to permit students

opting out of the objectives related to family life and human

sexuality to receive instruction concerning menstruation.

(iv) The local school system shall provide an opportunity for

parents/guardians to view instructional materials to be used in

the teaching of family life and human sexuality objectives.

Md. Code Regs. 13A.04.18.01

11 This Court’s decision in Christian Legal Soc’y v. Martinez, 561

U.S. 661 (2010) is an especially clear illustration of the error of

extent the discord should be harmonized, it is this

Court’s province to do so. The Court’s recent ruling in

Fulton provides one means to narrow the gap by

applying strict scrutiny to any law that fails to satisfy

general-applicability by imposing additional burdens

on religious exercise.

Justice Thomas highlighted the unexplained

discrepancy in the treatment of the clauses in his

concurrence in United States v. Sineneng-Smith.12

Justice Alito, concurring in Fulton, discussed the

anomalous “hybrid-rights” theory of free-exercise

jurisprudence in which a free-exercise claim, to merit

full constitutional protection, must be joined with

another independently viable constitutional claim,

such as free speech. Fulton, 141 S. Ct. 1868, 1918

rank ordering First Amendment freedoms, allowing a public law

school to require waiver of core free exercise and free association

rights in order to enter a public speech forum. This decision is

inconsistent with the Court’s precedents before and since and

should be reconsidered in an appropriate case.

12 “Such arguments are typically raised in free speech cases, but

the Court has occasionally entertained overbreadth challenges

invoking the freedom of the press, see, e.g., Thornhill v. Alabama,

310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940), and the freedom

of association, see, e.g., Keyishian v. Board of Regents of Univ. of

State of N. Y., 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967).

Curiously, however, the Court has never applied this doctrine in

the context of the First Amendment's Religion Clauses. In fact,

the Court currently applies a far less protective standard to free

exercise claims, upholding laws that substantially burden

religious exercise so long as they are neutral and generally

applicable. See Employment Div., Dept. of Human Resources of

Ore. v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876

(1990). The Court has never acknowledged, much less explained,

this discrepancy.” United States v. Sineneng-Smith, 140 S. Ct.

1575, 1584 (2020) (Thomas, J. concurring).

(2021) (Alito, J. concurring). The hybrid-rights

philosophy appears to be unique among constitutional

models, imposing an additional burden solely on free

exercise claims.

Taken together, assorted arbitrary differences

inject substantial uncertainty and unequal treatment

into freedoms that the First Amendment itself treats

as equals.

Two key inquiries—burden and tailoring—may be

dispositive in a First Amendment case based on

viewpoint. But the outcome may vary depending on

whether free speech or free exercise is implicated,

with government bearing the initial burden to justify

the infringement and show narrow tailoring in free

speech cases but bearing a lesser and often unclear

burden in free exercise cases.

If this case were evaluated under the free-speech

rubric, the burden would fall squarely on the

government to rebut the presumption that the

infringement is unconstitutional. That is because

“[d]iscrimination against speech [due to] its message

is presumed to be unconstitutional.” Rosenberger v.

Rector & Visitors of Univ. of Virginia, 515 U.S. 819,

828–29 (1995). That the burden must be borne by the

government would be pellucid given the viewpointspecific nature of the infringement. “When the

government targets . . . particular views taken by

speakers on a subject, the violation of the First

Amendment is all the more blatant.” Id.

These standards reflect the principle that

governments have “‘no power to restrict expression

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

its content.’” Reed v. Town of Gilbert, 576 U.S. 155,

163 (2015) (citation omitted). And, this Court has

almost uniformly rebuffed attempts to compel speech

in the name of a never-ending string of assertedly

important government interests. See, e.g., 303

Creative, 600 U.S. at 603 (rejecting Colorado’s attempt

to use its public accommodations law to compel speech

in the context of website design); Ams. for Prosperity

Found. v. Bonta, 594 U.S. 595 (2021) (protecting

associative rights from purported state interest in

administrative convenience of access to information

for possible future need); Nat’l Institute of Family &

Life Advocates v. Becerra (“NIFLA”), 138 S. Ct. 2361,

2365 (2018) (rejecting law requiring clinics that

primarily serve pregnant women to display notices

providing information about abortion services); Janus

v. American Federation of State, County, & Municipal

Employees, Council 31, 138 S. Ct. 2448, 2456 (2018)

(holding compelled membership in and financial

support for a public employee union violated the First

Amendment).

To carry its burden under the free speech rubric,

the government would have to demonstrate that the

infringement passes strict scrutiny—that it “is

justified by a compelling government interest and is

narrowly drawn to serve that interest.” Brown v.

Entm’t Merch. Ass’n, 564 U.S. 786, 799 (2011). This

means the “State must specifically identify an actual

problem in need of solving, . . . and the curtailment of

free speech must be actually necessary to the

solution.” Id. (citations omitted). To be narrowly

drawn, a restriction may not be overinclusive,

prohibiting too much speech, or underinclusive,

restricting too little to meet its goal. City of Ladue v.

Gilleo, 512 U.S. 43 (1994). “Underinclusiveness raises

serious doubts about whether the government is . . .

pursuing the interest it invokes, rather than

disfavoring a particular speaker or viewpoint.” Entm’t

Merch. Ass’n, 564 U.S. at 802.

Here, Maryland has a long and ongoing tradition

of allowing parents to opt-out of instruction on sexual

topics for their children. Supra at n. 10. The State

identified no “actual problem in need of solving” that

would explain why its existing policy should be

suspended for grade school children. Thus, were the

underinclusiveness test applied to the compelled

participation here, the Board would be required, and

almost certainly unable, to show why high school

students can be opted-out of instruction on sexuality

the Board argues is a compelling interest, i.e., the

program is underinclusive.

III.

THE BOARD CANNOT CURE ONE FIRST

AMENDMENT INJURY BY IMPOSING ANOTHER.

The court below excused the constitutional

infringement in part by opining that parents could

cure it through their own instruction.

Although the Parents allege that the

Board’s decision not to provide notice

and an opt-out option burdens their right

to form their children on a matter of core

religious exercise and parenting: how to

understand who they are, they do not

show anything at this point about the

Board’s decision that affects what they

teach their own children. . . . the Parents

still may instruct their children on their

religious beliefs regarding sexuality,

marriage, and gender, and each family

may place contrary views in its religious

context.

App. 34a–35a (cleaned up).

This reasoning, in which one constitutional

violation allegedly can be vindicated by shifting the

burden to the victim to cure the harm was attempted

in the now-overruled Gobitis opinion, in which the

Court minimized the infringement by amplifying the

power of the parents.

What the school authorities are really

asserting is the right to awaken in the

child’s mind considerations as to the

significance of the flag contrary to those

implanted by the parent. In such an

attempt the state is normally at a

disadvantage in competing with the

parent’s authority, so long-and this is the

vital aspect of religious toleration-as

parents are unmolested in their right to

counteract by their own persuasiveness

the wisdom and rightness of those

loyalties which the state’s educational

system is seeking to promote.”

Gobitis, 310 U.S. at 599.

Of course, any “disadvantage” suffered by the

school authorities is not the point. The constitutional

injury occurs in the first sentence, in which school

authorities assert “the right to awaken in the child’s

mind considerations as to the significance of the flag

contrary to those implanted by the parent,” Id., which

cannot be effaced by compelling remedial action by the

parent. In dissent, Justice Stone expressed hesitancy

to rely on remedial political measures to excuse an

unconstitutional act. Id. at 605–06 (Stone, J.

dissenting) (“I am not persuaded that we should

refrain from passing upon the legislative judgment ‘as

long as the remedial channels of the democratic

process remain open and unobstructed.’”). While the

mechanism Justice Stone identified is different, his

rejection of potential remedial measures to excuse the

initial infringement is the same.

Gobitis, of course, was overruled by Barnette where

the Court focused on the very issue presented here:

the school’s attempt to step beyond mere presentation

of information to promote adoption of a certain ideal

and in-class expression of the promoted viewpoint.

Barnette, 319 U.S. at 630 (“Here, however, we are

dealing with a compulsion of students to declare a

belief. They are not merely made acquainted with the

flag salute so that they may be informed as to what it

is or even what it means.”). The record here indicates

that the school’s intent is the same: molding the

viewpoint of the students. The schoolboard promotes

this goal by providing guidance to teachers on how to

“[d]isrupt the either/or thinking” App. 12a, and

explains that the “purpose of learning about gender

and sexual[] identity diversity is to demonstrate that

children are unique and that there is no single way to

be a boy, girl, or any other gender.” App. 13a.

Moreover, compelled participation and vilification of

dissenters implies that discussion of sexuality

between school aged children and their teachers is

appropriate.

The court below declined to find injury, holding

“the existing record does not show that mere exposure

to the Storybooks is affirmatively compelling” the

Parents or their children to perform acts undeniably

at odds with “their religious views.” App. 29a (cleaned

up). But any lack of clarity on the results of the

compulsion does not excuse the attempt, nor does the

assertion that children are not coerced to agree with

the lessons. Barnette instructs otherwise. Barnette,

319 U.S. at 633 (“It is not clear whether the regulation

contemplates that pupils forego any contrary

convictions of their own and become unwilling

converts to the prescribed ceremony or whether it will

be acceptable if they simulate assent by words without

belief and by a gesture barren of meaning.”).

Moreover, it blinks reality to assert that parents

can avoid or cure harm when the school has taken

steps to foreclose their ability to remediate the risk on

the front end by simply opting out. Indeed, the

popularity of this approach, in which parents declined

to involve their children in these discussions, was so

broad the Board professed its inability to deal with the

sheer number of dissenting parents as the basis for

eliminating the ability to opt-out: “First, it claims that

the original notice-and-opt-out policy had led to high

student absenteeism,” and “cited concerns from

principals and teachers regarding the feasibility of

accommodating the growing number of opt out

requests without causing significant disruptions to

the classroom environment and undermining the

school system’s educational mission,” App. 15a–

16a.(cleaned up). Having taken steps to eliminate

parental control up-front, shifting the burden to

parents after-the-fact, and compelling them to speak

if they are to address the infringement they were

unable to avoid, simply adds another layer of

constitutional injury that is unsupported by law.

CONCLUSION

For the foregoing reasons, the Court should

reverse the judgment of the Fourth Circuit.

Respectfully submitted,

CYNTHIA FLEMING CRAWFORD

Counsel of Record

CASEY MATTOX

AMERICANS FOR PROSPERITY FOUNDATION

4201 Wilson Blvd. Suite 1000

Arlington, VA 22203

(571) 329-2227

ccrawford@afphq.org

Counsel for Amicus Curiae

March 7, 2025

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.