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

No. 24-297

In the Supreme Court of the United States

_________________

TAMER MAHMOUD, ET AL.,

Petitioners,

v.

THOMAS W. TAYLOR, ET AL.,

Respondents.

_________________

On A Writ of Certiorari To

The United States Court of Appeals

For The Fourth Circuit

_________________

BRIEF OF AMICI CURIAE

PROFESSOR S. ERNIE WALTON AND

PROFESSOR ERIC A. DEGROFF

IN SUPPORT OF PETITIONERS

__________________

Christopher T. Holinger

Counsel of Record

Robertson Center for

Constitutional Law

1000 Regent Univ. Drive

Suite 303

Virginia Beach, VA 23464

(757) 410-2293 x709

Chriho3@regent.edu

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

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

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

INTEREST OF AMICI CURIAE ............................... 1

SUMMARY OF THE ARGUMENT ........................... 2

ARGUMENT .............................................................. 4

The Right of Parents to Oversee Their

Children’s Religious Formation Has Long Been

Part of the Western Legal Tradition ..................... 6

I.

II. The Founders Saw Educating Children as a

Religious Duty ........................................................ 8

III. Enforced Conformity Has Jeopardized

Legitimate Rights; Opt-Outs Have Been an

Effective Judicial Solution ................................... 13

A. This Court has recognized the harm done

when states and state-run schools marginalize

religious differences. ........................................ 13

B. State courts have also affirmed the role of

parents in overseeing their children’s moral and

religious development. ..................................... 19

IV. Opt-Outs Recognize the Historical Limits to

In Loco Parentis. .................................................. 22

CONCLUSION ......................................................... 28

ii

TABLE OF AUTHORITIES

Page(s)

CASES

Espinoza v. Montana Department of Revenue, 591

U.S. 464 (2020) ......................................... 16, 18, 22

Fulton v. City of Philadelphia, 593 U.S. 522 (2021) . 6

Janus v. Am. Fed. of State, Cnty., and Mun. Emps.,

585 US. 878 (2018) ............................................... 25

Kennedy v. Bremerton Sch. Dist., 597 U.S. 507 (2022)

................................................................................ 5

Mahanoy Area School District v. B.L., 594 U.S. 180

(2021) ........................................................ 23, 24, 26

Meyer v. Nebraska, 262 U.S. 390 (1923)............ 16, 24

Mitchell v. Helms, 530 U.S. 793 (2000) ................... 18

Morrow v. Wisconsin, 35 Wis. 59 (1874).................. 20

New York State Rifle & Pistol Ass’n, Inc. v. Bruen,

597 U.S. 1 (2022) .................................................... 5

Pierce v. Society of Sisters, 268 U.S. 510 (1925)16, 17,

24

Spiller v. Inhabitants of Woburn, 94 Mass. 127

(1866) .................................................................... 19

State ex rel. Chambers v. Sch. Dist., 472 P.2d 1013

(Mont. 1970) ......................................................... 15

State v. Ferguson, 144 N.W. 1039 (Neb. 1914).. 19, 20

State v. School District, 48 N.W. 393 (Neb. 1891) .. 19

State v. Weedman, 226 N.W. 348 (S.D. 1929) ......... 20

Town of Greece v. Galloway, 572 U.S. 565 (2014) ..... 5

iii

Trinity Lutheran Church v. Comer, 582 U.S. 449

(2017) .............................................................. 16, 17

Troxel v. Granville, 530 U.S. 57 (2000). .................... 5

Vollmar v. Stanley, 81 Colo. 276 (1927) .................. 21

Wisconsin v. Yoder, 406 U.S. 205 (1972) ........... 21, 22

OTHER AUTHORITIES

Aviad M. Kleinberg, A Thirteenth-Century Struggle

Over Custody: The Case of Catherine of Par-auxDames, 20 Bull. Medieval Canon L. 51 (1990) ..... 8

Elizabeth Maddock McCarley, Blaine in the Joints:

The History of Blaine Amendments and Modern

Supreme Court Religious Liberty Doctrine in

Education, 18 Duke J. Const. L. & Pub. Pol’y 195

(2023) .................................................................... 15

Ephesians 6:4 ........................................................... 11

Eric A. DeGroff, Parental Rights and Public School

Curricula: Revisiting Mozert after 20 Years, 38

J.L. & Educ. 83 (2009) ..........................1, 6, 7, 8, 27

Eric A. DeGroff, Sex Education in the Public Schools

and the Accommodation of Familial Rights, 26

Child. Legal Rts. J. 21 (2006) ................................ 1

Ian Bartrum, The Political Origins of Secular Public

Education: The New York School Controversy

1840-1842, 3 N.Y.U. J.L. 267 (2008)........ 13, 14, 15

James Kent, Commentaries ................................. 9, 23

James Wilson, Of the Natural Rights of Individuals

(1790) .................................................................... 11

iv

Jared Sparks, The Life of Gouverneur Morris, with

Selections from His Correspondence and

Miscellaneous Papers (1832) ............................... 10

The Adams Papers, Diary and Autobiography of

John Adams (Lyman H. Butterfield ed., 1961) .. 10

John David Chambers, A Practical Treatise on the

Jurisdiction of the High Court of Chancery Over

the Persons and Property of Infants (2015) ........... 8

John T. McGreevy, Catholicism and American

Freedom: A History (2004) ..................13, 14, 15, 18

John Witherspoon, The Religious Education of

Children: A Sermon, Preached in the Old

Presbyterian Church in New-York, on the Second

Sabbath in May, 1789 (1790) .............................. 12

Joseph K. Griffith II, Is the Right of Parents to Direct

Their Children’s Education “Deeply Rooted” in

Our “History and Tradition”? 28 Tex. Rev. L. &

Pols. 795 (2024) ...................................................... 9

Joseph Story, Commentaries on Equity

Jurisprudence (2d ed. 1839) .................................. 9

Kyle Duncan, Secularism’s Laws: State Blaine

Amendments and Religious Persecution, 72

Fordham L. Rev. 493 (2003) .......................... 15, 16

Lee M. Friedman, The Parental Right to Control the

Religious Education of a Child, 29 Harv. L. Rev.

485 (1916) ........................................................... 7, 8

Letters of Noah Webster (Harry A. Warfel ed., 1953)

.............................................................................. 10

Proverbs 22:6 ............................................................ 11

v

Robert Wolstenholme Holland, The Law Relating to

the Child: Its Protection, Education, and

Employment (1914) ................................................ 7

S. Ernie Walton, Gender Identity Ideology: The

Totalitarian, Unconstitutional Takeover of

America’s Public Schools, 34 Regent U. L. Rev.

219 (2022) ......................................................... 1, 25

S. Ernie Walton, In Loco Parentis, The First

Amendment, and Parental Rights–Can They

Coexist in Public Schools?, 55 Tex. Tech L. Rev.

461 (2023) ..................................1, 22, 23, 24, 25, 27

S. Ernie Walton, The Fundamental Right to

Homeschool: A Historical Response to Professor

Bartholet, 25 Tex. Rev. L. & Pol. 377 (2021)....... 23

Stephen L. Carter, Parents, Religion, and Schools:

Reflections on Pierce, 70 Years Later, 27 Seton

Hall L. Rev. 1194 (1997) ................................ 12, 26

Thomas Jefferson, Bill for Establishing Elementary

Schools (Sept. 9, 1817) ........................................... 9

William Blackstone, Commentaries .............. 6, 22, 23

1

INTEREST OF AMICI CURIAE

Amici are both Professors at Regent University

School of Law. Professor DeGroff has taught courses

in the Regent University Schools of Law,

Government, and Education in administrative law,

education law, and legal history. His scholarship has

focused on parental rights, education policy, and

religious liberty. He has lectured on topics related to

the history and principles of American education and

law and contemporary public-school issues. Associate

Dean Walton, who also serves as an Assistant

Professor and as the faculty director of the Regent

Law Center for Global Justice, is also a prominent

lecturer and scholar on the intersection of parental

authority and public schools’ gender policies. Their

publications include Eric A. DeGroff, Parental Rights

and Public School Curricula: Revisiting Mozert after

20 Years, 38 J.L. & Educ. 83 (2009); Sex Education in

the Public Schools and the Accommodation of

Familial Rights, 26 Child. Legal Rts. J. 21 (2006); S.

Ernie Walton, In Loco Parentis, The First

Amendment, and Parental Rights–Can They Coexist

in Public Schools?, 55 Tex. Tech L. Rev. 461 (2023);

and Gender Identity Ideology: The Totalitarian,

Unconstitutional Takeover of America’s Public

Schools, 34 Regent U. L. Rev. 219 (2022), among other

law review articles and frequent opinion/editorial

pieces in a variety of outlets.1

1Under Rule 37.6, no counsel for a party authored this brief in

whole or in part, and no person other than amici or their counsel

made a monetary contribution to its preparation or submission.

2

SUMMARY OF THE ARGUMENT

The idea that parents bear the primary

responsibility for educating their children, and thus

hold the primary authority over that education, has

long been a part of western legal thought. English

Common Law, and the political and legal

philosophers who influenced the founders, all

acknowledged that it was parents, not the state, who

directed and controlled their children’s upbringing

and education, especially about subjects as sensitive

as values, identity, and religious beliefs.

Schooling free from values and religious

instruction was largely unknown for much of the first

half of our Nation’s history. When education was

largely a private affair, this merging of values with

reading, writing, and arithmetic was of little

consequence, and even less so because, with few

exceptions, our new Nation was relatively religiously

homogeneous. Every person was free to exercise his

religion as he saw fit, without federal interference,

and it generally went without saying that every

child’s education was at least informed and influenced

by his parent’s religious beliefs.

As America grew, it became more dedicated to

education and, simultaneously, more religiously

diverse. Early efforts to encourage cultural (and

religious) conformity through education led to

conflicts

between

the

budding

educational

institutions and growing religious minority groups.

For a time, these conflicts played out in state

legislatures and frequently led to the kind of religious

and ethnic segregation that public school advocates

3

were trying to avoid when they envisioned education

as a way of improving community cohesion.

Eventually, courts began to step in to remind local

governments that both State constitutions and (after

Reconstruction) the Federal Constitution protected

the right of parents to direct the religious upbringing

of their children. The right to exercise one’s religion

includes the right to pass it on to one’s children, and

that right is severely curtailed when the child’s

public-school curriculum overtly inculcates ideas that

directly conflict with the values being taught at home.

Today, the vast majority of parents find

themselves with little choice but to entrust their

children to others for the purpose of education. Those

third parties (whether public or private schools, or

individual tutors) act in loco parentis within clear

boundaries, exercising only the limited authority

delegated to them by parents. No parents willingly

delegate to anyone the authority to teach their

children values that directly contradict the religious

values parents are teaching at home. Such efforts by

a school constitute a direct attack on parents’

religious exercise, whether done overtly by forced

participation in religious activities that parents find

objectionable or through the subtle infusion of values

into an ostensibly “non-religious” curriculum

intended only to teach language arts. Courts have

consistently recognized that forcing a child to use a

curriculum that conflicts with the values a parent is

teaching at home exceeds any authority a parent

might willingly delegate. In such circumstances, a

religiously based opt-out from the curriculum

preserves both the rights of the parents and the goals

of public education.

4

The Montgomery County School Board’s

refusal to allow parents to opt out of a language arts

curriculum heavily-laden with ideas about gender

and sexuality that conflict with their religious beliefs

exceeds any reasonable limit to the in loco parentis

doctrine. The Board’s actions abrogate the rights of

parents by forcing their children to participate in

lessons that advance values fundamentally in conflict

with those the parents are instilling at home. In so

doing, the Board has infringed upon the parents’ right

to practice their religion by undermining their efforts

to pass it on to their children.

This Court should affirm the principle that

parents need not choose between a public education

and their right to protect their children from values

antithetical to their religious convictions. History

shows that parental opt-outs, such as the one sought

by Petitioners in this case, are an appropriate

compromise between the parents’ religious duty to

guide their children’s development and the state’s

desire to foster community in a religiously

heterogeneous society.

ARGUMENT

The Board’s refusal to allow parents to opt

their elementary-school-aged children out of

language-arts lessons laden with emphasis on

sexuality and gender identity violates the parents’

free exercise right to direct the religious development

of their children and the fundamental right of parents

to control the upbringing of their children. This right

has been recognized by this Court for more than one

5

hundred years. See, e.g., Troxel v. Granville, 530 U.S.

57 (2000). Although schools play a role in the

development of children, the primary responsibility

for, and authority over, the development of a “child’s

social and moral character” lies with parents. Id. at

78 (Souter, J., concurring).

Essential to preserving the parents’ rights is

the authority to limit their children’s exposure to

instruction that contradicts their own values,

especially when children are most impressionable.

When state actors assume responsibility for shaping

children’s attitudes and beliefs concerning moral

principles on which religious faiths differ, they

intrude upon a role reserved in our legal tradition for

parents. Just as parents control their children’s social

companions, they also have a say in “the designation

of the adults who will influence the child in school,”

id., and, by extension, the ideas those adults will

present.

This fundamental right is protected by the

Fourteenth Amendment. “[T]o carry th[e] burden” of

justifying a law or regulation that infringes on

fundamental rights, “the government must generally

point to historical evidence about the reach of the

First Amendment’s protections.” N.Y. State Rifle &

Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 24–25 (2022)

(emphasis added). Thus, “an analysis focused on

original meaning and history” is “the rule rather than

some exception” when it comes to constitutional

interpretation of such issues. Kennedy v. Bremerton

Sch. Dist., 597 U.S. 507, 536 (2022) (cleaned up)

(quoting Town of Greece v. Galloway, 572 U.S. 565,

576 (2014)). Historically, the First Amendment has

6

provided “broad protection for religious liberty.”

Fulton v. City of Philadelphia, 593 U.S. 522, 575

(2021) (Alito, J., concurring). This protection has often

included exemptions when generally applicable laws

conflicted with the religious practices of particular

groups, so long as the religious practice in question

did not endanger “public peace and safety.” Id. at 582.

I.

The Right of Parents to Oversee Their

Children’s Religious Formation Has Long

Been Part of the Western Legal Tradition

Under English common law, parents had both

the responsibility and the authority to “guide their

children’s development.” Eric A. DeGroff, supra, at

108

(2009)

(citing

1

William

Blackstone,

Commentaries *452–53). In fact, as early as the

seventeenth century, English philosopher John Locke

and his contemporaries could point to a common law

system in which parents were considered to have “a

God-given duty to nourish, protect, and educate their

young, and to have a corresponding right” to “fulfill

those duties.” DeGroff, supra, at 117 (citing John

Locke on Politics and Education: The Second Treatise

on Civil Government 106–08 (Howard R. Penniman,

intro., 1947)). Thus, when Blackstone asserted in his

Commentaries that it was “the duty of parents to their

children” to provide for their education, he was

explicating a body of law that had already been

developing for generations. 1 William Blackstone,

Commentaries *450–51.

This duty, originally considered a moral

responsibility, see id., was recognized by the Court of

7

Chancery as a legal right. Thus, English courts as

early as the eighteenth century were enforcing “the

right of parents to make educational choices for their

children despite the wishes of the child or even the

preferences of civil authorities.” DeGroff, supra, at

110 (collecting English cases). By the nineteenth

century, the right of parents to make educational

decisions for their child had become so ingrained in

the common law that one scholar described that right

as “absolute against all the world.” Robert

Wolstenholme Holland, The Law Relating to the

Child: Its Protection, Education, and Employment 60

(1914).

When a child’s education involved religious

matters, the common law was even more solicitous of

parental choices. See Lee M. Friedman, The Parental

Right to Control the Religious Education of a Child,

29 Harv. L. Rev. 485, 488 (1916). By the early 1700’s,

following centuries of sometimes violent conflict

between Protestant and Roman Catholic adherents,

and despite the fact that English statute books still

reflected anti-Catholic and anti-Jewish sentiment,

the Courts were taking modest but meaningful steps

toward vindicating the God-given authority of

parents to direct their children’s religious upbringing.

DeGroff, supra, at 111; Friedman, supra, at 485–88.

For example, despite its concern for the children’s

eternal welfare if raised in other faiths, the Court of

Chancery held that a guardian was not punishable for

educating his ward as a Roman Catholic and affirmed

the right of Jewish parents to educate their children

in the Jewish faith. Friedman, supra, at 487; John

David Chambers, A Practical Treatise on the

Jurisdiction of the High Court of Chancery Over the

8

Persons and Property of Infants 117–18 (2015).

Ultimately, parental authority with respect to a

child’s religion became so firmly established in the

common law that a father’s right to determine the

religion in which a child would be educated continued

even after the father’s death. Friedman, supra, at 488.

This common law heritage built on even older

canonical laws dating back to the ninth century,

which held in high regard the right of parents to

direct the education and upbringing of their children.

Following the teachings of Aquinas and earlier

medieval

authorities

concerning

parental

prerogatives, the ecclesiastical courts, for example,

ordered the return of abducted Jewish infants to their

parents despite their conviction that the children

would lose the “advantage[] of the faith” and suffer

eternal damnation if raised as Jews. Aviad M.

Kleinberg, A Thirteenth-–Century Struggle Over

Custody: The Case of Catherine of Par-aux-Dames, 20

Bull. Medieval Canon L. 67 (1990). Thus, the right of

parents to direct their children’s education in both

religious and secular environments is evident in both

the common law and the canonical law that heavily

influenced American traditions.

II.

The Founders Saw Educating Children as

a Religious Duty

America’s legal history has, if anything, been

even more sensitive to the link between education and

religion and thus more protective of parental rights

than the English common law. See Joseph K. Griffith

II, Is the Right of Parents to Direct Their Children’s

Education “Deeply Rooted” in Our “History and

9

Tradition”? 28 Tex. Rev. L. & Pols. 795, 801–02

(2024). Jurist James Kent described the role of

parents in directing their children’s development and

education as the “discharge of their sacred trust.” Id.

at 801 (quoting 2 James Kent, Commentaries *203)

(emphasis added).Likewise, Joseph Story—an

Associate Justice of this Court—explained that

“parents are ‘ordinarily entrusted with the care of

[their] children,’ . . . because it is reasonably and

rightfully presumed that parents ‘will best execute

the trust reposed in [them]; for [it] is a trust, and of

all trusts the most sacred.’” Id. at 801–02 (quoting 2

Joseph Story, Commentaries on Equity Jurisprudence

§ 1343 (2d ed. 1839)) (emphasis added) Even Thomas

Jefferson, a champion of local public education, stated

that it would be preferable to risk the miseducation of

a child than to forcibly interfere with his parents’

right to direct his upbringing: “It is better to tolerate

the rare instance of a parent refusing to let his child

be educated than to shock the common feelings and

ideas by the forcible asportation and education of the

infant against the will of the father.” Thomas

Jefferson,

Bill

for

Establishing

Elementary

Schools

(Sept.

9,

1817),

https://founders.archives.gov/documents/

Jefferson/03-12-02-0007

[https://perma.cc/WH8VA2EL].

At the time of the Founding, philosophers and

leading political thinkers alike acknowledged the

basic truth that God gave to parents the natural right,

duty, and responsibility to educate their children, and

to direct and govern their moral improvement.

Education, as we think of it today, devoid of moral

direction and distinct from religious instruction, was

10

entirely alien to the founders of our Republic. John

Adams, a signer of the Declaration of Independence

and our Nation’s second president, clearly understood

the connection between education and morality and

the natural role of parents in inculcating values: “The

foundations of national Morality must be laid in

private Families. In vain are Schools, Academies and

universities instituted, if loose Principles and

licentious habits are impressed upon Children in

their earliest years. The Mothers are the earliest and

most important Instructors of youth.” John Adams,

Entry of June 2, 1778, in The Adams Papers, Diary

and Autobiography of John Adams vol. 4 123 (Lyman

H. Butterfield ed., 1961).

Early Americans’ understanding of education

did not restrict the purpose of teaching to the mere

accumulation of knowledge. Rather, education was

suffused with moral, and ultimately religious,

instruction, focused on the formation of a civilized and

virtuous man. “Any system of education,” wrote Noah

Webster, “which limits instruction to the arts and

sciences, and rejects the aids of religion in forming the

characters of citizens, is essentially defective.” Letter

from Noah Webster to David McClure (Oct. 25, 1836),

in Letters of Noah Webster 453–54 (Harry A. Warfel

ed., 1953). Gouverneur Morris, a signer of the

Constitution, put the prevailing view on education

succinctly: “I believe that religion is the only solid

base of morals and that morals are the only possible

support of free governments. [T]herefore education

should teach the precepts of religion and the duties of

man towards God.” Jared Sparks, The Life of

Gouverneur Morris, with Selections from His

Correspondence and Miscellaneous Papers 483 (1832).

11

This education, both moral and temporal, was

the natural prerogative, and the Divinely commanded

duty, of parents. Men such as James Wilson, who

signed the Declaration of Independence before later

serving as an Associate Justice of this Court,

promoted the traditional, common law understanding

of the parental duty to educate children, locating its

origins in the Bible. “It is the duty of parents to

maintain their children decently,” Wilson said, “and

according to their circumstances; to protect them

according to the dictates of prudence; and to educate

them according to the suggestions of a judicious and

zealous regard for their usefulness, their

respectability, and their happiness.” James Wilson,

Of the Natural Rights of Individuals (1790), reprinted

in 2 Collected Works of James Wilson loc. Ch. XII

(Kermit L. Hall & Mark D. Hall eds., 2007),

https://oll.libertyfund.org/titles/wilson-collectedworks-of-james-wilson-vol-2 [https:// perma.cc/9VRYJ59F].

In an overwhelmingly Christian society,

fathers understood that it was a religious imperative,

ordered by the Almighty, to “train a child up in the

way he should go,” Proverbs 22:6, and to “bring

[children] up in the nurture and admonition of the

Lord,” Ephesians 6:4. And if parents were not aware

of this religious mandate, preachers such as John

Witherspoon, another signer of the Declaration of

Independence, would remind them: “Let us consider

the duties incumbent on parents. . . . [P]arents should

be . . . early and diligent in instruction. . . . Let not,

therefore, the devil and the world be too far beforehand with you, in possessing their fancy, engaging

12

their affections, and misleading their judgement. . . .”

John Witherspoon, The Religious Education of

Children: A Sermon, Preached in the Old Presbyterian

Church in New-York, on the Second Sabbath in May,

1789 10–11 (1790).

Because the Founders understood the moral

and religious nature of education, and the religious

duty of parents to direct their children’s education,

this Court can easily infer that the Founders

considered parental control over their children’s

education to be, at least in part, a religious exercise

protected by the First Amendment’s Free Exercise

Clause. As Yale Professor Stephen Carter has well

said, the practice of religion “represents a story

extended over time” and “across the generations.” See

Stephen L. Carter, Parents, Religion, and Schools:

Reflections on Pierce, 70 Years Later, 27 Seton Hall L.

Rev. 1194, 1204 (1997). “A religion survives through

tradition, and tradition is multi-generational. A

religion that fails to extend itself over time . . . might

be a . . . collection of folk tales . . . or a list of

interesting rules, but . . . it is not . . . a religion.” Id.

at 1205. If state authorities unduly interfere with the

transmission of religious values from parent to child,

they effectively deny parents the free exercise of

religion.

13

III.

Enforced Conformity Has Jeopardized

Legitimate Rights; Opt-Outs Have Been an

Effective Judicial Solution

A. This Court has recognized the harm

done when states and state-run

schools marginalize religious

differences.

The Founders enjoyed a society in which a

large majority shared a “Christian” worldview and

religious adherents could live in states that supported

their preferred denominations. That changed,

however, as our Nation grew. As the common school

movement took root, and the Nation grew more

religiously diverse, efforts to impose conformity in

public education bred conflict, discrimination, and

deep division. The issue was apparent in the

treatment of Catholic students and families, who

faced coercive classroom practices and even physical

punishment for resisting Protestant-dominated

public education. John T. McGreevy, Catholicism and

American Freedom: A History 7–8 (2004). These

conflicts were not merely cultural; they were deeply

embedded in state laws, school policies, and judicial

rulings that sought to erase religious differences in

the name of national unity. See Ian Bartrum, The

Political Origins of Secular Public Education: The

New York School Controversy 1840-1842, 3 N.Y.U.

J.L. 267, 291–92 (2008). From the New York School

Controversy to the Eliot School Rebellion and the

passage of Blaine Amendments, Catholic families

fought to protect their children from state-enforced

ideological indoctrination. Id.; McGreevy, supra. Over

time, courts began to recognize these injustices,

14

affirming that government-mandated educational

conformity violated Free Exercise rights and the

fundamental right of parents to direct their children’s

upbringing.

The New York School Controversy of 1840–

1842 was an early example of systemic discrimination

against Catholicism in education. When Catholic

leaders petitioned for equal funding for Catholic

schools, they were denied, while Protestant-affiliated

schools continued to receive public support. Bartrum,

supra, at 299. The message was clear: public

education would serve as a vehicle for Protestant

assimilation, not a system that accommodated

religious pluralism. Id. at 286. As Protestant control

over public schools remained unchallenged, Catholic

families were forced to choose between exposing their

children to religious coercion or bearing the financial

burden of private education.

In one particularly egregious example of antiCatholic animosity, the Eliot School Rebellion of 1859

highlighted the dangers of forcing conformity in

education by compelling students to violate their

religious beliefs. On March 7, 1859, in a Boston

classroom, Thomas Whall, a ten-year-old Irish

Catholic student, was whipped for thirty minutes for

refusing to read from the King James Bible.

McGreevy, supra, at 7–8. The school principal later

declared that any boy unwilling to recite the Ten

Commandments from the King James Bible must

leave, leading to the expulsion of approximately one

hundred Catholic students. Id. at 8. Whall’s father

pursued legal action against the assistant principal

for excessive use of force, but the court ruled in favor

15

of the school, reinforcing the institutionalized

discrimination against Catholic students. Id. In

response, Boston’s Catholic community founded St.

Mary’s Institute, one of the first Catholic parochial

schools, to provide an avenue for parents to honor

their religious convictions in the education of their

children. Id. at 42. Rather than fostering community,

the school’s policy of dictating conformity drove a

wedge between the Catholic and Protestant

populations.

As Catholic families sought alternatives to

state-imposed discrimination, Protestant-led publicschool systems responded with a legal strategy

designed to deprive the parochial schools of resources.

Bartrum, supra, at 300. In 1875, Congressman James

Blaine

introduced

a

federal

constitutional

amendment to permanently enshrine this exclusion,

but it failed by a narrow margin. Elizabeth Maddock

McCarley, Blaine in the Joints: The History of Blaine

Amendments and Modern Supreme Court Religious

Liberty Doctrine in Education, 18 Duke J. Const. L. &

Pub. Pol’y 195, 200 (2023). However, the damage was

already done; many states incorporated Blaine

provisions into their own constitutions, often as a

prerequisite for statehood. Kyle Duncan, Secularism’s

Laws: State Blaine Amendments and Religious

Persecution, 72 Fordham L. Rev. 493, 516 (2003); see

also State ex rel. Chambers v. Sch. Dist., 472 P.2d

1013, 1016 (Mont. 1970). For example, Montana’s

Blaine Amendment, imposed through the 1889

Enabling Act, ensured that Catholic schools were

denied public support, reinforcing a system of

religious exclusion that persisted well into the

twentieth century. Chambers, 472 P.2d at 1016.

16

While originally enacted to target Catholics, Blaine

Amendments remained embedded in over half of state

constitutions, where they continued to restrict

religious families’ educational choices and prevented

faith-based institutions from participating in

generally available public programs. Duncan, supra

at 493. It took constitutional challenges, through

cases such as Trinity Lutheran Church v. Comer, 582

U.S. 449 (2017), and Espinoza v. Montana

Department of Revenue, 591 U.S. 464 (2020), to finally

undo this long history of state-sponsored religious

discrimination.

The Fourteenth Amendment provided a

constitutional foundation for legal challenges to

religious discrimination in public schooling. Over

time, courts increasingly recognized that state laws

forcing children to participate in school activities that

conflicted with their parents’ religious convictions—

while excluding alternatives—violated fundamental

principles of religious liberty and parental authority.

In Meyer v. Nebraska, 262 U.S. 390, 400–01

(1923), this Court ruled that the liberty protected by

the Fourteenth Amendment encompasses the right of

parents to direct their children’s education. This

principle laid the groundwork for Pierce v. Society of

Sisters, 268 U.S. 510, 534–35 (1925), where the Court

struck down an Oregon law mandating public school

attendance for all children. Citing Meyer, the Court

held that Oregon’s compulsory public-school law

“unreasonably interfere[d] with the liberty of parents

and guardians to direct the upbringing of children

under their control.” Id. Rejecting state-imposed

17

ideological uniformity, the Court firmly established

the following:

The fundamental theory of liberty upon

which all governments in this Union

repose excludes any general power of

the State to standardize its children by

forcing them to accept instruction from

public teachers only. 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 535 (emphasis added).

The decision was not simply about Catholic

education; it was a broad reaffirmation of the

principle that parents—not the government—hold

the primary responsibility for directing their

children’s moral and religious formation.

The legal barriers faced by Catholics in

directing their children’s religious upbringing

reflected the broader pedagogical failure of

attempting to impose ideological conformity through

the education system, rather than accommodating a

diverse student body. Courts, including this Court,

eventually recognized that excluding religious schools

from state programs designed to support education,

solely because of their religious character, violated

the Free Exercise Clause. In Trinity Lutheran, 582

U.S. at 565, this Court struck down Missouri’s

exclusion of a religious preschool from a generally

18

available grant program, holding that denying a

public benefit solely based on religious identity is

“odious to our Constitution” and “cannot stand.”

Building on this principle, in Espinoza, 591 U.S. at

482, this Court ruled that Montana’s Blaine

Amendment violated the Free Exercise Clause by

prohibiting religious schools from receiving public

scholarship funds solely due to their religious status.

The Court explicitly recognized that Blaine

Amendments were “born of bigotry” and cannot

justify modern-day religious discrimination. Id.

(quoting Mitchell v. Helms, 530 U.S. 793, 828–29

(2000)).

The discrimination against religious practice

that this Court rejected in Espinoza and Trinity

Lutheran is nowhere near as severe as in this case,

where Petitioners are not just deprived of an

educational opportunity because of their religious

practice, but face active opposition from the schools.

Petitioners are being denied even the option of

keeping their children from instruction that directly

contradicts their values and hinders their efforts to

teach those values to their children. This mindset

harkens back to the “bad old days” when children

were forced, in school, to read a version of the Bible

that their church found heretical. McGreevy, supra

at 7. It must not stand.

19

B. State courts have also affirmed the

role of parents in overseeing their

children’s moral and religious

development.

Even before Pierce, state courts had begun

resisting compulsory ideological instruction by

invoking constitutional protections and recognizing

religious opt-outs. As early as Spiller v. Inhabitants

of Woburn, 94 Mass. 127, 129 (1866), the

Massachusetts Supreme Court ruled that compelling

students to engage in activities contrary to their

religious convictions violated the state constitution,

which guaranteed that no person shall be “hurt or

molested in his person, liberty, or estate” for

worshipping God according to his conscience. The

court upheld a local rule requiring daily Bible

readings and prayer—only because parents had the

right to excuse their children from this portion of the

curriculum. Id. at 130.

By the late 19th and early 20th centuries,

courts increasingly recognized that parents had the

right to exempt their children from school activities

that conflicted with their beliefs. In State v. School

District, 48 N.W. 393, 395 (Neb. 1891), and State v.

Ferguson, 144 N.W. 1039, 1042 (Neb. 1914), the

Nebraska Supreme Court affirmed parents’

authority to opt their children out of school subjects,

including grammar and home economics. The court

unequivocally stated that “the right of the parent . . .

is superior to that of the school officers and the

teachers.” Ferguson, 144 N.W. at 1042. To rule

otherwise, it warned, would “destroy both the Godgiven and constitutional right of a parent to have

20

some voice in the bringing up and education of his

children.” Id. at 1043.

State courts have long recognized a

constitutional barrier to forced participation in school

activities when the school orders a child to do

something the parents forbid. In Morrow v.

Wisconsin, 35 Wis. 59, 62–63 (1874), for instance, the

Supreme Court of Wisconsin resolved a disagreement

between a parent and a teacher regarding the child’s

course selection. The parent wanted his child to focus

on orthography, reading, writing, and arithmetic at

the expense of geography. Id. His teacher disagreed,

but the court ruled for the parent, holding that the

teacher “does not have an absolute right to prescribe

and dictate what studies a child shall pursue.” Id. at

64. The father had “the right to direct what studies,

included in the prescribed course, his child shall

take.” Id. “[I]n case of a difference of opinion between

the parent and teacher upon the subject,” there was

“no reason for holding that the views of the teacher

must prevail.” Id. at 66.

Other states would later extend this primacy of

the parent’s wishes when the conflict crossed into the

realm of religion. In State v. Weedman, 226 N.W. 348,

354 (S.D. 1929), the South Dakota Supreme Court

held that compelling Catholic students to attend

Protestant Bible readings violated the Free Exercise

protections of the state constitution, emphasizing

that “[i]t is essential to religious liberty that one be

free to worship according to the dictates of his own

conscience, and not only that, but to live and teach his

religion.”

21

Similarly, in Vollmar v. Stanley, 81 Colo. 276,

282 (1927), the Colorado Supreme Court upheld a

Catholic parent’s right to excuse his child from

readings from the King James Bible, ruling that

forced participation violated both state and federal

constitutional

protections.

These

decisions

demonstrate that, even before Pierce and around the

time of the Pierce decision, courts recognized the

fundamental injustice of compelling children to

participate in educational practices that violated

their parents’ convictions.

This Court’s ruling in Wisconsin v. Yoder, 406

U.S. 205, 232–33 (1972), reaffirmed a principle that

had been emerging in state courts for decades:

parents, not the government, hold the ultimate

authority over their children’s religious and moral

education. In striking down Wisconsin’s compulsory

school attendance law for Amish students, the Court

ruled that state interests in educational uniformity

do not override parental and religious liberty rights.

Id. The Court explicitly reaffirmed that “the primary

role of the parents in the upbringing of their children

is now established beyond debate as an enduring

American tradition.” Id. at 232.

From the Catholic school conflicts of the 19th

century to Yoder, courts have consistently affirmed

that the government cannot impose ideological

conformity in public education at the expense of

parental and religious liberty rights. The persecution

and exclusion faced by Catholic families—ranging

from compulsory religious exercises to legal barriers

against

Catholic

schools—demonstrate

the

22

significant

principle.

consequences

of

disregarding

this

As cases such as Spiller, Ferguson, Vollmar,

and Yoder illustrate, the solution to balancing a

shared curriculum with respect for religious and

parental rights lies in recognizing reasonable optouts. Today, as in the past, such accommodations

serve as constitutional safeguards, ensuring that

public education remains inclusive while respecting

the religious diversity of American society. America

has an “enduring . . . tradition” of protecting the right

of parents to direct “the religious upbringing” of their

children.” Espinoza, 591 U.S. at 486 (quoting Yoder,

406 U.S. at 213–14). This tradition must not be

limited to forcing (or allowing) religious parents to

seek alternate schools for their children. Curriculum

opt-outs further that tradition without forcing

parents to uproot their children from an otherwise

acceptable school.

IV.

Opt-Outs Recognize the Historical Limits

to In Loco Parentis.

As discussed, English common law recognized

the natural law right of parents to educate their

children. 1 William Blackstone, Commentaries *446–

47, *452. The educational right belonged “exclusively”

to parents. S. Ernie Walton, In Loco Parentis, The

First Amendment, and Parental Rights–Can They

Coexist in Public Schools?, 55 Tex. Tech L. Rev. 461,

466 (2023). Indeed, “[s]o strong” was the educational

right of parents at common law that third parties

could only educate another person’s children if and

when “parents chose to delegate that right to them.”

23

S. Ernie Walton, The Fundamental Right to

Homeschool: A Historical Response to Professor

Bartholet, 25 Tex. Rev. L. & Pol. 377, 402 (2021). “And

even then, the third party stood ‘in loco parentis,’ i.e.,

in place of the parents.” Id. (quoting 1 William

Blackstone, Commentaries *453).

This tradition, and the corresponding principle

of in loco parentis, was recognized in the early history

of our Nation by commentators such as Justice James

Wilson and Chancellor James Kent. Walton, In Loco

Parentis, supra, at 469; 2 James Kent, Commentaries

*205 (“[T]he power allowed by law to the parent

over . . . the child, may be delegated to a tutor or

instructor.”). American courts, both before the

existence of public schools and after they became a

regular fixture of American culture, applied the

doctrine of in loco parentis to public schools to resolve

conflicts between teachers and students. Walton, In

Loco Parentis, supra, at 472–76. Yet even then, tutors

or schoolmasters exercised only “that portion of the

power of the parent . . . as may be necessary to

answer the purposes for which he is employed.” 1

William Blackstone, Commentaries *453; see also

Mahanoy Area School District v. B.L., 594 U.S. 180,

200 (2021) (Alito, J., concurring) (calling in loco

parentis a “doctrine of inferred parental consent” for

the school to wield the degree of authority

“commensurate with the task that the parents ask the

school to perform”).

While the delegation of authority from parents

to public schools might have been broader in the

nineteenth century, a number of changes arising over

the past two hundred years mandate that courts

24

construe the delegation of authority “much more

narrowly than was done in the early days of the

Republic.” Walton, In Loco Parentis, supra, at 492.

These changes include the rise of compulsory

education, the inability of parents to sign employment

contracts with public schools, the increasingly

coercive economic power of the state in public

education, and state-mandated educational agendas

that often directly conflict with parents’ values. Id. at

489–92; see also Mahanoy, 594 U.S. at 199–201 (Alito,

J., concurring) (discussing changes in education since

the rise of in loco parentis in common law England).

In addition to these changes, this Court has

also made clear that the state has no authority to

indoctrinate children against parental wishes.

Starting with Meyer, this Court located in parents the

power and duty to educate children and

acknowledged that schools exercise educational

power only to the extent that parents delegate it to

the schools. 262 U.S. at 399–400. Referencing the

practice of Sparta under which children were removed

from their parents at an early age and educated solely

by “guardians,” this Court noted that any practice

empowering agents of the state above a child’s

parents in matters of character development rests on

ideas about “the relationship between individual and

state” that would do “violence to both letter and spirit

of the Constitution.” Id. at 402. Pierce reaffirmed this

concept with its reminder that a child “is not the mere

creature of the State.” 268 U.S. at 534–35. These

cases, and those from state courts discussed above,

make clear that parents retain their right to direct

their children’s moral upbringing and education in

25

public schools. Walton, In Loco Parentis, supra, at

497.

Given the drastic changes in education and this

Court’s repeated pronouncements in favor of parental

authority, this Court should construe the delegation

of authority from parents to public schools to

correspond only to education in traditional subjects

and non-ideological matters. Walton, In Loco

Parentis, supra, at 499. In other words, “education in

‘matters of public concern’ should be deemed to fall

outside the scope of the parental delegation of

authority[.]” Id. Gender identity ideology is a “matter

of public concern.” Janus v. Am. Fed. of State, Cnty.,

and Mun. Emps., 585 US. 878, 913–14 (2018)

(referring to sexual orientation and gender identity,

among other things, as “sensitive political topics” and

“matters of profound ‘value and concern to the

public’”). Courts should therefore not construe

parents to have delegated to public schools their

authority over how their children are instructed

about matters of such profound moral significance.

See S. Ernie Walton, Gender Identity Ideology: The

Totalitarian, Unconstitutional Takeover of America’s

Public Schools, 34 Regent U. L. Rev. 219, 261 (2022).

Gender ideology is rooted in a worldview called

expressive individualism, which holds that human

identity is primarily sexual and is rooted in a person’s

own psychological and subjective view of oneself. It

“touches on the deepest moral, social, and religious

questions, even going to the heart of what it means to

be human.” Id. at 261. Accordingly, decisions about

what children will be taught about sexuality, gender

identity, and gender expression––and at what age

26

they will be taught, remain solely a matter of parental

authority.

The curriculum and books at issue involve

instruction in gender identity ideology. Teachers in

Montgomery County Public Schools are required to

utilize the Pride Storybooks. App. 12a. And when they

do, the district provides teachers with a toolkit to

“[d]isrupt the either/or thinking” of any child who

expresses traditional views on sexuality. App. 12a.

One tool is to contradict the child’s belief: “[A]ctually,

people of any gender can like whoever they like.” App.

12a. Another tool is to shame the child: “How do you

think it would make (character’s name) [feel] to hear

you say that? Do you think it’s fair for people to decide

for us who we can and can’t like?” App. 12a. It should

go without saying that the parent petitioners did not

explicitly or implicitly grant the school authority to

secretly repudiate and shame their children for

expressing the very beliefs the parents taught them.

In other words, it is “not reasonable to infer that [the

parents] gave the school th[at] authority . . . .”

Mahanoy, 594 U.S. at 210 (Alito, J., concurring).

Contrary to the Fourth Circuit’s holding,

intentionally disrupting their children’s “either/or”

thinking about biological sex imposes a burden on the

parent petitioners’ right to freely exercise their

religion. What the Fourth Circuit decision failed to

recognize

is

that

religion

is

inherently

intergenerational. See Stephen L. Carter, supra, at

1204. The transfer of core values and beliefs from one

generation to the next is central to the practice of any

of the major religions. If the State has the power

through its institutions to inhibit the transfer of

27

moral and religious values by parents, then religious

freedom has lost its meaning. The School Board must

not be allowed to negate parental authority to decide

how children will be taught, and what they will be

taught, about matters of such profound moral and

religious concern as human sexuality, sexual

behavior, and individual identity.

The simplest way for schools to respect the

limits on their delegated authority and comply with

the First Amendment is with a parental opt-out

provision, as petitioners are seeking in this case.

Walton, In Loco Parentis, supra, at 488–89.

Reasonable opt-outs are employed throughout our

Nation with little effect on the day-to-day functioning

of our Nation’s schools, and they are normally applied

in subject areas where questions of values, morals,

and religious ideas are at stake. DeGroff, Revisiting

Mozert, supra at 129–30.

Importantly, this Court need not even consider

whether imposing an opt-out in this case would be too

burdensome on the school. This is because

Respondents themselves originally allowed such an

opt-out for the very materials at issue. App. 14a. And

they continue to offer opt-outs for other areas of the

curriculum that implicate values and sexuality. App.

170a–173a. It was only the District’s sudden and

unexplained elimination of the Pride Storybooks optout which gave rise to this litigation. App. 16a–17a.

Granting an opt-out in this case will uphold our

Nation’s longstanding tradition of honoring parental

rights in education, vindicate the right of parents to

transmit core values as part of their free exercise of

28

religion, and remind public schools that they have no

authority to indoctrinate children in matters of public

concern. For far too long lower courts have effectively

told parents that they have no rights at public schools.

This Nation’s history belies that notion. Parents have

the primary educational right in the United States,

and they do not lose that right when they send their

children to public schools. This Court has recognized

this right, as have many state courts. While schools

do stand in loco parentis, this Court should hold that

they only do so with respect to traditional subjects,

and the Court should bar school districts from

indoctrinating children in ideologies that conflict with

their parents’ faith. The history of the world—and

this Nation—demonstrate the danger and folly of

allowing the state to use public education to

undermine parental authority. This Court should

reverse the Fourth Circuit’s decision and restore the

primacy of parental authority in education to its

rightful place.

CONCLUSION

The Court should reverse the decision of the

Fourth Circuit and realign the relationship between

parents and schools with this Nation’s history and

tradition of respecting parents’ ability to direct their

children’s upbringing, moral formation, and

education.

29

Respectfully submitted,

Christopher T. Holinger

Counsel of Record

Robertson Center for

Constitutional Law

1000 Regent Univ. Drive

Suite 303

Virginia Beach, VA 23464

(757) 410-2293 x709

Chriho3@regent.edu

Counsel for Amici Curiae