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 Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

AMICUS BRIEF OF THE AMERICAN CENTER

FOR LAW AND JUSTICE

IN SUPPORT OF PETITIONERS

JAY ALAN SEKULOW

Counsel of Record

JORDAN A. SEKULOW

STUART J. ROTH

WALTER M. WEBER

NATHAN J. MOELKER

AMERICAN CENTER FOR

LAW & JUSTICE

201 Maryland Ave., N.E.

Washington, DC 20002

(202) 546-8890

sekulow@aclj.org

Counsel for Amicus

i

TABLE OF CONTENTS

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

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

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

ARGUMENT: TEACHING CHILDREN IDEAS

CONTRARY TO THEIR PARENTS’ FAITH

AND MORALS BURDENS PARENTAL

FREE EXERCISE RIGHTS. . . . . . . . . . . . . . . . 2

I.

The Whole Point of Teaching Is to

Change Students. . . . . . . . . . . . . . . . . . . . 3

II.

Teaching Students Things that

Contradict Parental Teaching Burdens

Parental Free Exercise . . . . . . . . . . . . . . . 6

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

ii

TABLE OF AUTHORITIES

Cases

Pages

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

Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986) . . 3

Carson v. Makin, 596 U.S. 767 (2022) . . . . . . . . . . 1

City of Boerne v. Flores, 521 U.S. 507 (1997) . . . . . 1

Edwards v. Aguillard, 482 U.S. 578 (1987) . . . . 4, 5

FCC v. Pacifica Found., 438 U.S. 726 (1978) . . . . . 7

Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507 (2022) . . . . . . . . . . . . . . . . . . . . . . 5

Lamb’s Chapel v. Center Moriches Union Free

School District, 508 U.S. 384 (1993) . . . . . . . . . 1

Lee v. Weisman, 505 U.S. 577 (1992) . . . . . . . . . . . 4

Locke v. Davey, 540 U.S. 712 (2004) . . . . . . . . . . . . 1

Pierce v. Society of Sisters, 268 U.S. 510 (1925) . . . 6

School Dist. v. Ball, 473 U.S. 373 (1985) . . . . . . . . 4

Tinker v. Des Moines Indep. Cmty. Sch. Dist.,

393 U.S. 503 (1969) . . . . . . . . . . . . . . . . . . . . . . 6

Wallace v. Jaffree, 472 U.S. 38 (1985) . . . . . . . . . . 6

West Va. State Bd. of Educ. v. Barnette,

319 U.S. 624 (1943) . . . . . . . . . . . . . . . . . . . . . . 5

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

Constitutional Provisions

U.S. Const. amend. I . . . . . . . . . . . . . . . . . 1-2, 4-5, 8

Other Authorities

C. Beard & M. Beard, New Basic History of the

United States (1968) . . . . . . . . . . . . . . . . . . . . . 3

Vladimir Lenin, A-Z Quotes ). . . . . . . . . . . . . . . . . . 5

1

INTEREST OF AMICUS1

The American Center for Law and Justice (ACLJ)

is an organization dedicated to the defense of

constitutional liberties secured by law, including the

defense of religious liberty and parental rights. The

ACLJ has appeared before this Court in many cases

advocating for religious liberty, as counsel for a party,

e.g., Lamb’s Chapel v. Center Moriches Union Free

School District, 508 U.S. 384 (1993); Locke v. Davey,

540 U.S. 712 (2004), or for amicus, e.g., Carson v.

Makin, 596 U.S. 767 (2022); City of Boerne v. Flores,

521 U.S. 507 (1997).

SUMMARY OF ARGUMENT

A threshold question in a Free Exercise case is

whether the state has “burdened” the right freely to

exercise one’s faith. The decision below erred right out

of the gate when it held that the petitioner parents

had not shown any burden on their parental Free

Exercise right to raise their own children. The Fourth

Circuit held that “mere exposure” (Pet. App. 40a) of

children to contrary ideas does not amount to

“coercion” (Pet. App. 40a) or “pressure . . . to change

views or act contrary to their faith” (Pet. App. 41a).

Respondents pick up this same theme, contending that

the issue is whether children “were coerced to change

their beliefs or act contrary to their religious faith.”

1

No counsel for any party authored this brief in whole or in

part. No such counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief. No

person or entity aside from the ACLJ, its members, or its counsel

made a monetary contribution to the preparation or submission

of this brief.

2

Opp. at i. This characterization of the issue and of the

case is wrong on multiple fronts. The issue here is not

“exposure” but rather “teaching,” and the whole point

of “teaching” is to change the student. As this Court

has emphasized repeatedly, mandatory instruction

inherently constitutes a coercive environment

entailing pressure on the students to conform to what

is taught.

Teaching involves the presentation and

dissemination of values. Teaching children values and

ideas that contradict those of their parents clearly

burdens parental Free Exercise rights.

ARGUMENT

TEACHING CHILDREN IDEAS CONTRARY TO

THEIR PARENTS’ FAITH AND MORALS

BURDENS PARENTAL FREE EXERCISE

RIGHTS.

The Fourth Circuit held that a Free Exercise

plaintiff must, first and foremost, “establish[] that a

government action has burdened his religious

exercise,” Pet. App. 26a, and that the Petitioners’

failure to show such a burden defeated their Free

Exercise claim here, at least at this stage of the

proceedings, Pet. App. 48a. The Fourth Circuit’s

conclusion that Petitioners had not shown a burden on

their Free Exercise rights was wrong and should be

reversed.

Government schools that intentionally seek to

inculcate in students views which are incompatible

with parental religious and moral beliefs flagrantly

undermine, and thus burden, parental rights to direct

the religious and moral upbringing of their children.

3

I.

The Whole Point of Teaching Is to

Change Students.

A dose of common sense is in order here.

Education is a complete waste unless it actually, or

likely, changes the students who are taught. Yes, some

parents may send their children to school just to use

the school as a babysitter, or to comply with truancy

laws. But the purpose of schooling is to produce an

educated student – someone who is different in terms

of scope of knowledge, power to reason, capacity to

identify sources of information, etc. Moreover,

education also – inevitably and more importantly –

includes instruction in values and character. As this

Court explained,

The role and purpose of the American public

school system were well described by two

historians . . .: “[Public] education must prepare

pupils for citizenship in the Republic. . . . It must

inculcate the habits and manners of civility as

values in themselves conducive to happiness and

as indispensable to the practice of selfgovernment in the community and the nation.” C.

Beard & M. Beard, New Basic History of the

United States 228 (1968). In Ambach v. Norwick,

441 U.S. 68, 76-77 (1979), we echoed the essence

of this statement of the objectives of public

education as the “[inculcation of] fundamental

values necessary to the maintenance of a

democratic political system.”

Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 681 (1986)

(emphasis added; brackets in original).

And the central part of schooling is the teaching,

the curriculum, precisely what is at issue here. To

4

label that mere “exposure . . to material,” Pet. App.

40a, as the Fourth Circuit did, is profoundly to

undersell education.2 This is not a case about students

being merely “exposed” to a classmate’s words,

appearance, or lifestyle. Nor is this a case about mere

“exposure” to a teacher’s purple hair or unconventional

attire. Rather, this case focuses on the very instruction

being given to students – that is, what the students are

being told to learn. As this Court observed,

Students in such institutions are impressionable

and their attendance is involuntary. . . . The State

exerts great authority and coercive power through

mandatory attendance requirements, and because

of the students’ emulation of teachers as role

models and the children’s susceptibility to peer

pressure.

Edwards v. Aguillard, 482 U.S. 578, 584 (1987)

(citations omitted). See also Lee v. Weisman, 505 U.S.

577, 592 (1992) (“As we have observed before, there

are heightened concerns with protecting freedom of

conscience from subtle coercive pressure in the

elementary and secondary public schools”) (and cases

cited). While the Establishment Clause analysis

articulated in these and many other school cases no

longer governs, the Court's observations about the

2

To hold to the contrary would be to regard as absurd a

family’s preference for a college education at an institution of

higher ed that supports the family’s values. And if such choices

make sense for college-age children, they are all the more vital

when it comes to youth. As Justice Brennan wrote for this Court,

“The government’s activities in this area can have a magnified

impact on impressionable young minds,” School Dist. v. Ball, 473

U.S. 373, 383 (1985). Impressionability applies not just to the

alleged promotion of religion but also to its undermining.

5

reality of the school environment still hold true.

Families entrust public schools with the

education of their children, but condition their

trust on the understanding that the classroom

will not purposely be used to advance religious

views that may conflict with the private beliefs of

the student and his or her family.

Edwards, 482 U.S. at 584. This holds true regardless

of whether the “religious views” which the public

school advances bolster or undercut the parents’ faith,

and regardless of whether the “views” are openly antireligious or simply irreconcilable with the tenets of a

family’s faith.3 Parental choice is therefore crucial.

That way parents can see to it that their children are

“not required or expected to participate” in a program

that “sought to persuade” students in a direction in

conflict with parental beliefs. Kennedy v. Bremerton

Sch. Dist., 597 U.S. 507, 541-42 (2022)

Education is a multi-directional sword. It can be

used to further some parental goals, or to undermine

them. To raise believers, or to eliminate them. To form

patriots, or to mold rebels. Compare West Va. State Bd.

of Educ. v. Barnette, 319 U.S. 624, 640 (1943)

(“National unity as an end which officials may foster

by persuasion and example is not in question”) with

Vladimir Lenin, A-Z Quotes (“Give me just one

3

Indeed, it would be an anemic First Amendment which

would only shield families from views that conflict with their

private beliefs when those school-inculcated beliefs were

themselves labelled religious. Thus, public schools teaching that

"there is no Heaven" would be religious and thus impermissible,

but teaching that "the material world is all that exists" would be

philosophical and thus allowed.

6

generation of youth, and I’ll transform the world”).

Protection of parental rights therefore has the virtue

not just of being essential to freedom, but apolitical –

and religiously agnostic – as well. “There can be no

assumption that today’s majority is ‘right’ and the

[Petitioners] and others like them are ‘wrong.’”

Wisconsin v. Yoder, 406 U.S. 205, 223-24 (1972).

II. Teaching Students Things that

Contradict Parental Teaching Burdens

Parental Free Exercise.

It follows that subjecting children to instruction

that runs counter to their parents’ faith and morals

corrodes – burdens – parental efforts to raise their

children in accord with such values.

This Court has already held that public schools

have no monopoly on the instruction of the young.

Pierce v. Society of Sisters, 268 U.S. 510 (1925). “In our

system, students may not be regarded as closed-circuit

recipients of only that which the State chooses to

communicate.” Tinker v. Des Moines Indep. Cmty. Sch.

Dist., 393 U.S. 503, 511 (1969). But one does not need

a monopoly to exert influence.

That the parents remain “free to impart their

religion at home,” Pet. Br. at 45 (quoting Respondents’

lower court brief), is of small consolation.

That a child is offered an alternative may reduce

the constraint; it does not eliminate the operation

of influence by the school in matters sacred to

conscience and outside the school’s domain. The

law of imitation operates, and non-conformity is

not an outstanding characteristic of children.

Wallace v. Jaffree, 472 U.S. 38, 60 n.51 (1985)

7

(internal quotation marks and citation omitted).

This Court has already recognized that even

isolated exposure of children to speech can have a

lasting effect: “broadcast [of obscene words] could have

enlarged a child’s vocabulary in an instant.” FCC v.

Pacifica Found., 438 U.S. 726, 749 (1978). So much

more so when the child is instructed in a curriculum

day in and day out, while parents are left to try to

undo lessons explicitly or implicitly taught. Just as it

is specious to say the “remedy for an assault is to run

away after the first blow,” id., it is fallacious to say

that parents can unfailingly rehabilitate a student’s

worldview after repeated, systematic “blows” against

parental values.

In short, the decision below disregarded what

should be an obvious point: the parental right to direct

the religious and moral upbringing of one’s children is

burdened, and burdened heavily, if parents must

surrender those children to daily, intentional

inculcation of antagonistic values, without even notice

or a right to opt out. That is not “mere exposure.” It is

teaching children to embrace values at odds with those

of their parents.

***

Teaching a child values which contradict those of

his or her parents plainly burdens parental free

exercise rights, even if the teaching is not openly

“coercive.”

The history and culture of Western civilization

reflect a strong tradition of parental concern for

the nurture and upbringing of their children. This

primary role of the parents in the upbringing of

their children is now established beyond debate

as an enduring American tradition.

8

Yoder, 406 U.S. at 232 (emphasis added). Importantly,

this conclusion does not depend on which values are

being taught. Assuming the parents have an

identifiable religious concern, the question could be

whether the school defends or condemns Christopher

Columbus and other explorers and colonists; embraces

or warns against the Sexual Revolution; teaches why

students should oppose or support abortion; promotes

or denounces Marxism; or cultivates alarm or peace

regarding future climate developments. Governmentrun schools – at least in the United States – do not

have the right, at the expense of parents, to occupy

pride of place in deciding what values children must

daily be taught, leaving it to parents to supplement,

correct, or undo, as best they can, any errors they

perceive their children inevitably to have absorbed.

The Fourth Circuit viewed the constitutional

question as whether a public school “directly or

indirectly coerces the Parents or their children to

believe or act contrary to their religious faith.” Pet.

App. 49a. One answer is that all education at least

“indirectly coerces” students to adopt the positions

being taught. Another answer is that the intentional,

attempted inculcation or “disruption”4 of values in this

case certainly pressures students to conform, and thus

to reject contrary parental values. This plainly

burdens parental Free Exercise rights, whether that

pressure is characterized as a carrot or a stick.

Either way one looks at it, the decision below was

flatly incorrect and fundamentally incompatible with

parental rights. This Court should reverse.

4

Pet. Br. at 29 (citing Respondent Board’s documents).

9

CONCLUSION

This Court should reverse the judgment of the

Fourth Circuit.

Respectfully submitted,

Jay Alan Sekulow

Counsel of Record

Jordan A. Sekulow

Stuart J. Roth

Walter M. Weber

Nathan J. Moelker

American Center for

Law & Justice

201 Maryland Ave., N.E.

Washington, DC 20002

(202) 546-8890

sekulow@aclj.org

Counsel for Amicus

March 10, 2025