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

Supreme Court briefMar 10, 2025

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No. 24-297

In the Supreme Court of the United States

__________

TAMER MAHMOUD, ET AL.,

Petitioners,

THOMAS W. TAYLOR, ET AL.,

Respondents.

____________________

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE FOURTH CIRCUIT

_______________

BRIEF FOR AMERICA FIRST LEGAL

FOUNDATION AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

__________

IAN PRIOR

NICHOLAS BARRY

America First Legal

Foundation

611 Pennsylvania Ave. SE

#231

Washington, DC 20003

(202) 964-3721

ian.prior@aflegal.org

CHRISTOPHER MILLS

Counsel of Record

Spero Law LLC

557 East Bay St.

#22251

Charleston, SC 29413

(843) 606-0640

cmills@spero.law

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

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

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

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

Argument ..................................................................... 5

Sexuality and gender identity education

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

II. Sex education has always been accompanied

by notice and opt-out rights. ............................ 11

III. Montgomery schools’ sexuality and gender

identity curriculum indoctrinates students. ... 17

Conclusion.................................................................. 30

TABLE OF AUTHORITIES

Page(s)

CASES

Ambach v. Norwick,

441 U.S. 68 (1979) .................................................... 3

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

No. 26 v. Pico, 457 U.S. 853 (1982) ............. 3, 17, 24

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

478 U.S. 675 (1986) ............................................ 7, 24

Brown v. Bd. of Ed. of Topeka,

347 U.S. 483 (1954) .................................................. 7

Dep’t of Com. v. New York,

588 U.S. 752 (2019) ................................................ 19

Edwards v. Aguillard,

482 U.S. 578 (1987) ................................................ 24

Epperson v. State of Ark.,

393 U.S. 97 (1968) .................................................... 7

Foldi v. Bd. of Educ. for Montgomery Cnty.,

No. 8:23-CV-3089-PX, 2024 WL 4213379

(D. Md. Sept. 17, 2024) ........................................ 1, 2

Gore v. Lee,

107 F.4th 548 (CA6 2024) ........................................ 9

Hazelwood Sch. Dist. v. Kuhlmeier,

484 U.S. 260 (1988) ...................................... 8, 10, 18

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

Addison, 461 F.2d 566 (CA2 1972) ........................ 24

Lee v. Weisman,

505 U.S. 577 (1992) ................................................ 24

iii

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

594 U.S. 180 (2021) ........................................ 6, 8, 10

Morse v. Frederick,

551 U.S. 393 (2007) ................................................ 10

Parker v. Hurley,

514 F.3d 87 (CA1 2008) ......................................... 23

Vernonia Sch. Dist. 47J v. Acton,

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

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

319 U.S. 624 (1943) ...................................... 7, 10, 29

Wisconsin v. Yoder,

406 U.S. 205 (1972) .............................................. 6, 8

STATUTES

Ala. Code § 16-40A-5 (2022) ...................................... 16

Ariz. Rev. Stat. § 15-102-(A)(4) ........................... 16, 27

Ark. Code § 6-16-157(c) (2023) .................................. 16

Ark. Code § 6-16-1006(c) (2021) ................................ 28

Fla. Stat. § 1001.42(8)(c)(3) (2022)............................ 16

Ind. Code § 20-30-17-2 (2023) ................................... 16

Iowa Code § 279.80 (2023)......................................... 16

Ky. Rev. Stat. § 158.1415(1)(d) (2023) ...................... 16

La. Stat. § 17-412 (2024) ........................................... 16

Minn. Stat. § 120B.20 ................................................ 27

Mont. Code § 20-7-120 (2021).................................... 28

N.C. Gen. Stat. § 115C-76.55 (2023) ......................... 16

Neb. Rev. Stat. § 79-531 ............................................ 27

Neb. Rev. Stat. § 79-532 ............................................ 27

Ohio Rev. Code § 3313.473

(effective April 9, 2025) .................................... 16, 28

Okla. Stat. tit. 25, § 2002(a) ................................ 16, 27

22 Pa. Code § 4.4.................................................. 16, 27

Tenn. Code § 49-6-1308 (2023) .................................. 28

Tex. Educ. Code § 26.010(a) ................................ 16, 27

Utah Code § 53G-10-205 ..................................... 16, 27

REGULATIONS

Haw. Dep’t of Educ. Reg. No. 2210.1,

https://perma.cc/6QAT-B6EL ................................ 27

Haw. Dep’t of Educ., Bd. of Educ. Policy 101-13 ...... 27

Md. Code Regs. § 13A.04.18.01 ........................... 15, 28

Or. Dep’t of Educ. Admin. R. 581-021-0009 ....... 16, 27

OTHER AUTHORITIES

1 W. Blackstone, Commentaries on the Laws of

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

Centers for Disease Control and Prevention, School

Health Policies and Practices Study (2014) .......... 13

Controversial Materials—Board Policy 4.801,

Sumner Cnty. Sch. Bd., https://perma.cc/D9R3YZBX ...................................................................... 28

D. Kirby & P. Scales, An Analysis of State Guidelines

for Sex Education Instruction in Public Schools, 30

Nat’l Council Family Relations 229 (1981) ........... 14

D. Villarreal, Can We Please Just Start Admitting

that We Do Actually Want to Indoctrinate Kids,

Queerty (May 12, 2011), https://perma.cc/PWV3EF84 ....................................................................... 25

Guidelines for Respecting Religious Diversity,

Montgomery Cnty. Pub. Schs. (2015),

https://perma.cc/979A-8H4C.................................. 15

How Can My Child Be Excused from Studying

Materials that Are Offensive to Me?, Greenville

Cnty. Schs., https://perma.cc/LQ5T-BP3T ............ 28

J. Schade, Abstinence-Only Until Marriage and

Abstinence Pledge Programs: A Policy Review for

Stakeholders, Georgia State University (2013) .... 13

K. Bultena, House Panel Denies Mandating Parents

Opt-In to Sex Education, SDPB (Feb. 10, 2016),

https://perma.cc/B9VA-PN29................................. 14

K. Hall, et al., The State of Sex Education in the

United States, 58 J. Adolesc. Health 595 (2016)... 11

K. Hayashi, Superintendent, Haw. Dep’t of Educ.,

Annual Memorandum: Notice on Board of

Education Policy 101-13 Controversial Issues (June

2023), in Opening of the School Year Packet for

School Year 2023–2024, Haw. Dep’t of Educ. 61

(June 2023), https://perma.cc/T6DS-XSWP .......... 27

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

over Whether Public Schools Can Provide Condoms

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

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

L. Wardle, The Impacts on Education of Legalizing

Same-Sex Marriage and Lessons from Abortion

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

(2011) ...................................................................... 25

LGBTQ Curricular Laws, Movement Advancement

Project, https://perma.cc/4M32-SJRN ................... 16

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

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

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

M. Katz, A History of Compulsory Education Laws

(1976) ........................................................................ 6

M. Walsh, Johnny the Walrus (2022) ....................... 20

Policy in Practice: Parental/Community Review of

Curriculum and Instruction Materials, in AnokaHennepin Schools School Handbook 2024-25,

Anoka-Hennepin Sch. Dist.,

https://perma.cc/FL2F-M4MR ............................... 28

R. Gold & E. Nash, State-Level Policies on Sexuality,

STD Education, 4 Guttmacher Report on Public

Policy 4 (2001) ............................................ 12, 13, 14

R. Mayer, 1996–97 Trends in Opposition to

Comprehensive Sexuality Education in Public

Schools in the United States,

25 SIECUS 20 (1997) ....................................... 11, 12

R. Salomone, Common Schools, Uncommon Values:

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

Pol’y Rev. 169 (1996) .......................................... 6, 25

Religious Exemption Opt-Out CUR-P007, SalemKeizer Sch. Dist. (Aug. 22, 2022),

https://perma.cc/LP8K-L99C ................................. 28

Review of Instructional Material by

Parents/Guardians and Students—Board Policy

105.1, North Penn Sch. Dist. (Jan. 16, 2020),

https://perma.cc/JG42-5TVC ................................. 28

vii

School-Based Programs to Reduce Sexual Risk

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

Health & Human Services, Public Health Reports

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

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

Online (Oct. 8, 2008),

https://perma.cc/H65B-UBKQ ............................... 25

T. Vesey, Md. Panel Approves Education Program,

Washington Post (Oct. 6, 1987),

https://archive.ph/joiIy ........................................... 14

INTEREST OF AMICUS CURIAE

America First Legal Foundation is a nonprofit

organization dedicated to promoting the rule of law in

the United States by preventing executive overreach,

ensuring due process and equal protection for every

American citizen, and encouraging understanding of

the law and individual rights guaranteed under the

Constitution and laws of the United States. *

America First Legal has a substantial interest in

this case. It represents Matthew Foldi and Bethany

Mandel, two journalists who tried to cover the

curriculum changes implemented here by the Board of

Education for Montgomery County. A few months

after the Board added LGBT readings to the

elementary curriculum in Montgomery County

schools, it suddenly removed the right of parents to

have notice and opt out of those readings.

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

“the next few months” saw public discussion at and

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

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

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

at one meeting, “a female Muslim student attested to

her discomfort with being made to read LGBTQIA+

books that ran contrary to her religious beliefs, to

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

* In accord with Rule 37.6, no counsel for a party authored this

brief in whole or in part, and no counsel or party made a

monetary contribution intended to fund the preparation or

submission of this brief. No person other than amicus curiae, its

members, or its counsel made a monetary contribution to its

preparation or submission.

for the student, and opined about whether the student

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

When Foldi and Mandel sought to attend the next

meeting—and even though Foldi “identified himself as

a member of the press”—they were turned away

because they had not “signed up in advance to speak

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

Around the same time, Mandel was blocked from an X

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

which staff “engage in online discourse about

LGBTQIA+ related issues”—and that was connected

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

Foldi and Mandel sued, and the district court recently

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

First Amendment claim based on being blocked from

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

SUMMARY OF THE ARGUMENT

Many courts, including this one, have long deferred

to public school curriculum choices on the ground that

these schools “inculcat[e] fundamental values

necessary to the maintenance of a democratic political

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

The opinion below, and the line of circuit cases it

followed, likewise emphasized the government’s

leeway “to conduct its own internal affairs” via

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

underlies this deferential approach is the assumption

that curriculum choices necessarily influence

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

schools can “establish and apply their curriculum in

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

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

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

quotation mark omitted).

Yet even as the Fourth Circuit echoed this

deferential approach, it departed from its underlying

assumption. Specifically, the court doubted whether

the mandatory sexuality and gender identity readings

would “pressure students to change their views.” App.

43a. According to the court, there is no evidence that

the curriculum “coerces children into changing” their

views. App. 44a.

This brief makes three points in favor of reversal.

First, education about sexuality and gender identity

has no historical roots and lacks any connection to

“inculcating fundamental values necessary to the

maintenance of a democratic political system.”

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

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

contested ideological and scientific assumptions. As

important as they are to many people, sexuality and

gender identity have nothing to do with fundamental

democratic values. Deference to curriculum choices on

these topics—including elevating the burden to show

a free exercise infringement based on a perceived need

for deference to communities—is thus improper.

Second, even when sex education arose, parental

notice and opt-out rights have nearly always

accompanied it. Maryland has followed this

nationwide norm, requiring schools to provide notice

and opt-outs for sex education. By prohibiting any

notice and opt-outs for its sexuality and gender

identity instruction, the Montgomery County Board of

Education has disregarded a statutory mandate and

widespread consensus—and the Constitution.

Third, the decision below disregards the

assumption underpinning both deference to

traditional curricular choices and parental opt-outs—

that school curriculum molds students’ values.

Whether one characterizes this as “inculcation” or

“indoctrination,” the point is inescapable: public

schooling could only matter to instilling fundamental

values if it affects students’ values. The theme of the

decision below is that “merely being exposed” is not

enough. App. 43a. But especially in the context of

elementary schooling and especially with sexuality

education, “being exposed” is precisely what is

supposed to affect students’ values. No matter what

“sorts of conversations” might happen afterward,

ibid., the very act of authority figures reading books

promoting certain values to impressionable children

in a room of their peers is significant.

And everyone knows this. That’s why Montgomery

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

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

That’s why the district court recognized that the point

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

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

strict scrutiny. Not because these books are being used

to diagram sentences—but because they impart

values. Those values being instilled contradict many

parents’ religious beliefs, so the schools’ mandatory

imposition of these readings burdens parents’

religious rights.

ARGUMENT

I. Sexuality and gender identity education

have no historical pedigree.

The Fourth Circuit, like other circuits that have

rejected similar challenges, expressed hesitation

about interfering with public school curriculum

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

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

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

the court’s analysis. But whatever deference must be

given to traditional curriculum choices is misplaced

when it comes to education about sexuality and gender

identity. These types of education have no historical

roots or connection with the fundamental democratic

values that this Court’s precedents emphasize.

To begin, characterizing any deference to public

school administrators’ curriculum choices as

constitutionally necessary is ahistorical. “[M]ass

compulsory state-controlled education itself” was “far

from the consciousness” of the framers. R. Salomone,

Common Schools, Uncommon Values: Listening to the

Voices of Dissent, 14 Yale L. & Pol’y Rev. 169, 212

(1996); see Mahanoy Area Sch. Dist. v. B.L., 594 U.S.

180, 203 n.14 (2021) (Alito, J., concurring) (“At the

time of the adoption of the First Amendment, public

education was virtually unknown . . . .”). Thus, “[u]ntil

the middle of the nineteenth century, the duty to

educate one’s child remained firmly placed with the

child’s parents.” M. Katz, A History of Compulsory

Education Laws 14 (1976).

To the extent any deference to compulsory school

curriculum choices is warranted, that deference

should be circumscribed by at least two historical

principles.

First, the “curriculum” in early American schools

“seldom extended beyond the elementary subjects.” Id.

at 13. States’ historically rooted interests in exotic

subjects are thus minimal. As this Court has

explained, though early Americans like Thomas

Jefferson “recognized that education was essential to

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

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

sufficiently meet the interests of the State.” Wisconsin

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

age, more instruction is appropriate, but again, the

relevant subjects are historically narrow. For

instance, this Court has said that “the State may

require teaching by instruction and study of all in our

history and in the structure and organization of our

government, including the guaranties of civil liberty

which tend to inspire patriotism and love of country.”

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

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

“public education in our Nation is committed to the

control of state and local authorities,” Epperson v.

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

be true of traditional school subjects that are

necessary to engage in “the performance of our most

basic public responsibilities” as citizens and perhaps

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

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

Second, any deference to compulsory school

curriculum choices should be cabined by the scope of

parents’ delegation of their rights over their children’s

education. This Court has characterized “school

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

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

drawing on Blackstone’s description:

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

authority, during his life, to the tutor or

schoolmaster of his child; who is then in loco

parentis, and has such a portion of the power of

the parent committed to his charge, viz. that of

restraint and correction, as may be necessary to

answer the purposes for which he is employed.”

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

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

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

“If in loco parentis is transplanted from

Blackstone’s England to the 21st century United

States, what it amounts to is simply a doctrine of

inferred parental consent to a public school’s exercise

of a degree of authority that is commensurate with the

task that the parents ask the school to perform.”

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

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

the Nation’s youth is primarily the responsibility of

parents, teachers, and state and local school officials”

should not be read as an unlimited license for public

school officials to impose ideological instruction in

newfound subject areas—especially when parents

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

260, 273 (1988).

Neither historical nor in loco parentis justifications

apply to modern notions of sexuality and gender

identity education. Those types of education are

irrelevant to citizens’ public responsibilities—indeed,

our democratic republic was the envy of the world long

before those subjects even existed. That for centuries

Americans have been taught to “function effectively in

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

education “is strong evidence that they are capable of

fulfilling the social and political responsibilities of

citizenship” without these types of instruction. Yoder,

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

irrelevant to professional training. Rather, sexuality

and gender identity education are personal,

subjective, value-laden, and inherently ideological.

The recency of their arrival in American (or any)

schools confirms that sexuality and gender identity

education cannot claim to be longstanding norms of

schools. “Before the turn of the twentieth century,

education involving sex and human sexuality was

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

information about venereal diseases, physical growth,

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

when the International Congress of Hygiene

recommended a broader study of the topic, that the

term ‘sex education’ was adopted.” 3

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

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

It emerged then “because unintended pregnancy and

sexually transmitted diseases among adolescents

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

decades, sex education programs have deviated from

their original purposes of educating children on

human development, reproduction, and diseases,”

instead focusing on topics like “the correct way to use

condoms and how to reduce the risk of becoming

pregnant.” 6 Discussing sexuality is even more recent.

Gender identity education is, of course, newer still.

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

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

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

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

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

2 Id. at 92.

3 Ibid.

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

Whether Public Schools Can Provide Condoms to Minors Without

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

(1997).

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

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

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

6 Fucci, supra note 1, at 110.

decade has this type of education emerged in any

significant way.

Neither of these subjects—sexuality or gender

identity—is connected to good citizenship or

professional training. And both are laden with

ideological assumptions and values. So while this

Court in the past has been careful to defer to school

curriculum to ensure that the schools “retain the

authority to refuse to” “associate the school with any

position other than neutrality on matters of political

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

and gender identity education require the school to

take such positions. They are historical anomalies

without connection to citizenship, and they contradict

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

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

faction.” Barnette, 319 U.S. at 637.

Last, sexuality and gender education are often—as

here—imposed against the wishes of parents, not with

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

a public school” cannot “reasonably be understood to

have delegated to the school the authority to” impose

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

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

loco parentis says that a parent “may” delegate certain

authority. 1 Blackstone, supra, at 441 (emphasis

added). Letting schools broaden their own authority

by “defin[ing] their educational missions as including

the inculcation of whatever political and social views

are held by” their administrators contradicts in loco

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

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

All this means that judicial deference is

unwarranted when it comes to school administrators’

sexuality and gender identity education choices.

II.

Sex

education

has

always

been

accompanied by notice and opt-out rights.

Even less exotic forms of sex education have

practically always included parental notice and optout rights. Yet even as the Montgomery schools

embraced novel and highly fraught sexuality and

gender identity education, they departed from this

nationwide norm.

With sex education historically administered at the

state and local level, “it is no wonder that . . . practices

are so disparate.” 7 But one practice has been

consistent across the board: parental notice and optout provisions.

By “the late 1980s and early 1990s” there was

“widespread

implementation

school

and

community-based [sex education] programs.” 8 At this

point, “[t]he vast majority of school districts ha[d] a

policy that allow[ed] parents to exclude their children

from sexuality education classes by notifying the

school ([i.e.,] an opt-out policy).” 9 The debate across

the states was not about whether opt-out policies were

good or bad; it was about whether states should go

7 K. Hall, et al., The State of Sex Education in the United States,

58 J. Adolesc. Health 595, 595 (2016).

8 Ibid.

9 R. Mayer, 1996–97 Trends in Opposition to Comprehensive

Sexuality Education in Public Schools in the United States, 25

SIECUS 20, 25 (1997).

even further and require parents to affirmatively opt

their child in to sex education. 10 Notification and optout policies were so common, in fact, that when

Massachusetts passed a statewide notification and

opt-out requirement in 1996, some teachers were

convinced it could only be an “attempt[] to censure

controversial topics,” since “most local school districts

already implemented such policies.” 11

As sex education continued to expand, so too did

parental involvement over the matter. At the start of

the twenty-first century, 39 states required that some

sex-related education be provided. 12 At the same time,

“35 states guarantee[d] some parental discretion over

whether their children w[ould] participate in this

instruction.” 13 32 of them had opt-out policies. 14 Two

states required parents to opt-in. 15 And one state,

Arizona, had a mixture of both. 16 In “most states

where parents [had] the option to withdraw their

children” from sex education programming, they were

allowed to do so “for any reason.” 17 When states did

not give parents blanket opt-out rights, at minimum,

See ibid. (reporting that “approximately 10 percent of

community debates documented by SIECUS involved efforts to

change to opt-in policies” without any mention of pushback to optout polices).

11 Id. at 20.

12 R. Gold & E. Nash, State-Level Policies on Sexuality, STD

Education, 4 Guttmacher Report on Public Policy 4, 4 (2001).

13 Id. at 4–5.

14 Id. at 6.

15 Ibid.

16 Ibid.

17 Id. at 5.

they would typically allow parents to withdraw their

children “based on religious or moral beliefs.” 18

Fast forward a decade and the story is the same. In

2013, at least 39 states and the District of Columbia

still allowed parents to opt out their children or

otherwise gave parents some discretion over their

child’s sex education. 19 And that’s just statewide

policies. Local-level data show that notice and opt-out

policies were almost universal. In a 2014 study, the

CDC estimated that about 83% of schools notified

parents before their children “receiv[ed] instruction on

human sexuality topics.” 20 And 88% of schools

“allow[ed] parents . . . to exclude their children from

receiving [such] instruction.” 21 For elementary schools

specifically, about 91% of schools were notifying

parents and 89% were providing opt-outs. 22

Today, every state permits some form of sexual

education, and the laws of 47 states and the District of

Columbia provide parents some discretion as to

whether their child must undergo it. Pet. 6–7. The

other three states—Delaware, North Dakota, and

South Dakota—leave the issue to localities, which

18 Ibid.

19 J. Schade, Abstinence-Only Until Marriage and Abstinence

Pledge Programs: A Policy Review for Stakeholders, Georgia

State University 37–43 (2013).

20 Centers for Disease Control and Prevention, School Health

Policies and Practices Study 15 (2014) (drawing from Table 1.11).

21 Id.

22 Id.

generally appear to follow opt-out policies that apply

elsewhere. 23

Maryland has always hewed close to the

nationwide norm. Since the State first involved itself

in the sex education sphere, parents have had a role

in the process. As far back as 1981, “Maryland

require[d] that parents can excuse their children [from

sex education] upon written consent.” 24 When the

state expanded programming into elementary schools

in 1987, requiring AIDS education for students as

early as third grade, the legislature “ma[d]e it clear

that local school systems must consult parents while

drawing up their specific . . . programs.” 25 In 2001,

Maryland continued to allow parents to opt their

children out of both “[s]exuality and STD

[e]ducation.” 26

As sex education in Maryland became more

formalized, opt-out and notification requirements

remained available and prioritized. When the State

codified its “Comprehensive Health Education

Instructional Programs for Grades Prekindergarten–

12” in 2010, it required “written notification . . . to

23 See, e.g., K. Bultena, House Panel Denies Mandating Parents

Opt-In to Sex Education, SDPB (Feb. 10, 2016),

https://perma.cc/B9VA-PN29 (South Dakota “[s]chools already

operate on policies that inform parents and allow them to keep

their children out of sex ed teaching.”).

24 D. Kirby & P. Scales, An Analysis of State Guidelines for Sex

Education Instruction in Public Schools, 30 Nat’l Council Family

Relations 229, 232 n.4 (1981).

25 T. Vesey, Md. Panel Approves Education Program, Washington

Post (Oct. 6, 1987), https://archive.ph/joiIy.

26 Gold & Nash, supra note 12, at 6.

parents/guardians announcing” the “Family Life and

Human Sexuality” unit of study. 27 And children were

to “be excused . . . upon written request from their

parent/guardian.” 28 When Maryland revised this

program in 2019 to refer to “sexual orientation, gender

identity, and gender expression,” state notification

and opt-out requirements remained. 29

Historically, Montgomery County has gone above

and beyond Maryland law and the national consensus.

In addition to the state-mandated opt-out and notice

requirements for sex education, the County has

provided broad opt-out accommodations for religious

adherents. For at least a decade, Montgomery County

has instructed schools to “make reasonable and

feasible adjustments . . . to accommodate requests

from students, . . . or parents/guardians on behalf of

their students, to be excluded from specific classroom

discussions and activities that they believe would

impose a substantial burden on their religious

beliefs.” 30 Its religious accommodations policy

remained virtually unchanged through the County’s

2022–2023 iteration. See App. 220a–221a.

27 Md.

Code Regs. § 13A.04.18.01(F)(3)(a) and (4) (2010)

(requiring that instruction, which shall “begin in or prior to fifth

grade,” come with notice and opt-out).

28 Id. § 13A.04.18.01(F)(5)(a).

29 Md. Code Regs. § 13A.04.18.01(D)(2)(a), (e)(i) and (iv) (2019)

(mandating that “[e]ach school shall establish policies . . . for

student opt-out,” and “provide an opportunity for

parents/guardians to view instructional materials to be used”).

30 Guidelines for Respecting Religious Diversity, at 7, Montgomery Cnty. Pub. Schs. (2015), https://perma.cc/979A-8H4C.

All told, where there has been sex education, there

has been notice and opt out. Maryland has been no

exception. And Montgomery County, if anything, has

secured added protection for parents disinclined to

subject their children to sexuality material.

Yet the Board now shrugs at decades of tradition

and consensus. Inserting sexual orientation and

gender identity into its elementary curriculum

already put Montgomery County on the fringe. 31

Denying parents any notice or opt-out rights on top of

that pushes it beyond the pale. Even where states and

localities have provided notice and opt-out on

narrower grounds, they, at minimum, preserve

religious accommodations. 32 And that’s all Petitioners

31 See

LGBTQ Curricular Laws, Movement Advancement

Project, https://perma.cc/4M32-SJRN (25 states do not have an

LGTBQ curricular requirement, 9 states have full or partial

prohibitions on LGBTQ issues in school curricula, only 8 states

have some sort of explicit LGTBQ curricular standard, and

another 8 states that permit it require notice and opt-out). In

just the last three years, 9 states have imposed age and content

limits on sexual orientation and gender identity instruction—

primarily prohibiting it in elementary schools. See Ark. Code § 616-157(c) (2023); Ala. Code § 16-40A-5 (2022); Fla. Stat.

§ 1001.42(8)(c)(3) (2022); Ky. Rev. Stat. § 158.1415(1)(d) (2023);

Ind. Code § 20-30-17-2 (2023); Iowa Code § 279.80 (2023); La.

Stat. § 17-412 (2024); N.C. Gen. Stat. § 115C-76.55 (2023); Ohio

Rev. Code § 3313.473(B)(1)(a)(E) (effective April 9, 2025).

32 For example, of the 9 states that expressly permit parental optouts across the entire curriculum, 6 require religion or morality

to be the reason a parent withdraws their child. See Ariz. Rev.

Stat. § 15-102-(A)(4); Okla. Stat. tit. 25, § 2002(a)(2)-(4); Or. Dep’t

of Educ. Admin. R. 581-021-0009; 22 Pa. Code § 4.4(d)(3); Tex.

Educ. Code § 26.010(a); Utah Code § 53G-10-205; see also supra

note 18 and accompanying text.

seek. But in Montgomery County, no notice, no optouts—no matter the circumstances. See App. 185a.

In sum, since sex education emerged, it has always

been accompanied by notice and opt-out rights. This

was true even when the topics weren’t as

controversial.

Now,

the

Board’s

mandatory

curriculum pushes the bounds of standard sex

education, moving to matters of sexuality and gender

identity. Yet it has outright prohibited parents from

knowing about or opting their children out of this

material, defying a decades-long, nationwide

consensus across even less ideological topics.

III. Montgomery schools’ sexuality and gender

identity curriculum indoctrinates students.

Parental notice and opt-out is crucial for the same

reason that the Board’s prohibition of it raises

constitutional concerns: schooling is necessarily

indoctrinative. This Court’s jurisprudence has long

recognized that reality. Indeed, it is this same reality

that animates the deference courts have given schools

on traditional curriculum choices. Yet even as the

Fourth Circuit below took a deferential approach to

public school curriculum choices, it departed from the

assumption underlying that approach: that “[w]hen

[the government] acts as an educator, at least at the

elementary and secondary school level, [it] is engaged

in inculcating social values and knowledge in

relatively impressionable young people.” Pico, 457

U.S. at 909 (Rehnquist, J., dissenting). Justice

Brennan recognized the same point: “the public

educator nurtures students’ social and moral

development by transmitting to them an official

dogma of ‘community values.’” Hazelwood, 484 U.S. at

278 (dissenting op.).

Though the court below erred in thinking that it

needed to defer to sexuality and gender identity

curriculum choices, it also erred in downplaying the

reality that education—especially of young children on

fraught personal topics like sexuality and gender—

necessarily indoctrinates students. Understanding

that point confirms the burden on parents’ religious

rights when schools try to instill their own values in

children about sexuality and gender identity in place

of their parents’ beliefs. If this is “mere exposure”

(App. 39a), why deny parents notice?

Below, the Fourth Circuit acted as if there were

some open evidentiary question about whether the

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

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

On one hand, they argued that the mandatory

readings “are literacy tools” that merely “impart

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

toward various disclaimers and red herrings, like that

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

able to answer questions about characters. I will be

able to share what I know about why authors tell

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

planned explicit lessons related to gender and

sexuality[.]”). They insisted that they were not

flouting any tradition or disregarding the statewide

opt-out requirement because parental awareness and

discretion are reserved for the “Family Life and

Human Sexuality Unit.” See App. 185a. And, we are

now told, “[t]he storybooks are used only as part of the

language-arts curriculum.” BIO 22. This is a common

refrain from schools caught red-handed imposing their

ideological values on captive students: we were simply

using these books to teach reading comprehension.

At the same time, in its more candid district court

briefing, the Board trumpeted that its reading choices

were intended to “redress implicit biases,” “promote[]

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

“normalize[] a fully inclusive environment,” and

“[r]educ[e] stigmatization.” D. Ct. Dkt. 42, at 3, 26

(cleaned up). These goals are so important, the schools

argued, that “allowing any student to opt out hinders

[their] educational mission”—thus supposedly

enabling the policy to pass strict scrutiny. Id. at 27 n.7;

see also App. 513a (“We teach—implicitly and

explicitly—about gender and sexuality identity all the

time in school.”); App. 498a (“[B]eing accepting is the

goal.”); App. 527a (noting “Impact of this Work”).

By making these claims, even the schools recognize

that an inherent purpose of education—especially at

young ages—is to instill and change values. The

decision below erred in glossing over the significance

of mandatory instruction in instilling values. Courts

are “not required to exhibit a naiveté from which

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

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

“The Boy Who Cried Wolf” to kindergarteners, the

point is not just to diagram sentences or test reading

comprehension—to the extent such skills are still

taught—but to teach a lesson about lying.

In the same way, everyone knows that the

Montgomery Board picked Born Ready: The True

Story of a Boy Named Penelope rather than, say,

Johnny the Walrus 33 because it wanted to send a

certain message about gender identity. Born Ready,

like most children’s books, is not subtle (App. 465a):

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

The messages in the other books are also apparent:

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

Wedding).

App. 423a (Prince and Knight).

App. 323a (Intersection Allies).

The included “notes” for this last reading say that

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

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

choice of pronouns” by using whatever they desire,

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

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

identify with one gender, multiple genders, or neither

gender.” Ibid.

These storybooks are specifically characterized as

“LGBTQ-Inclusive Books” that “as a whole express

their authors’ views on sexual orientation and gender

identity.” App. 10a. Pressing those views on young

students is why they are used. As the First Circuit

said in a similar case—even while rejecting the

parents’ free exercise claims—“[i]t is a fair inference

that the[se] reading[s]” were “precisely intended to

influence the listening children toward” a certain

value. Parker v. Hurley, 514 F.3d 87, 106 (CA1 2008).

“That was the point of why th[ese] book[s] w[ere]

chosen and used.” Ibid.

Calling this mandatory instruction “language arts”

cannot change that it is sexuality and gender identity

education—or that it is indoctrinative. Below, the

Board claimed that “use of the books involves no

instruction on sexual orientation or gender identity

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

understood that the books were intended to

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

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

meanwhile, would not concede even this much,

insisting that the mandatory instruction involved no

“direct or indirect pressure” and distinguishing

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

36a.

Especially in an elementary school setting, that is

not a plausible understanding of mandatory in-class

teaching, especially of readings with obvious value

preferences. Below, the Board embraced the reality

that students “may come away from public school

instruction with a new perspective not easily

contravened by their parents.” JA 46. This Court’s

jurisprudence recognizes that, too. See, e.g., Bethel,

478 U.S. at 683 (“The inculcation of [certain] values is

truly the work of the schools.” (cleaned up)); ibid.

(“Inescapably, like parents, [teachers] are role

models.”); Edwards v. Aguillard, 482 U.S. 578, 584

(1987) (emphasizing the “coercive power” of public

schools “because of the students’ emulation of teachers

as role models and the children’s susceptibility to peer

pressure”); Lee v. Weisman, 505 U.S. 577, 593–94

(1992) (holding that a brief prayer impermissibly

“places public pressure, as well as peer pressure, on”

high school students “to enforce orthodoxy”); Pico, 457

U.S. at 879 (Blackmun, J., concurring) (public schools

“inevitably . . . inculcate ways of thought and

outlooks”); James v. Bd. of Ed. of Cent. Dist. No. 1 of

Towns of Addison, 461 F.2d 566, 573 (CA2 1972) (“[A]

principal function of all elementary and secondary

education is indoctrinative—whether it be to teach the

ABC’s or multiplication tables or to transmit the basic

values of the community.”).

Many academic commentators have echoed the

point. As one explained:

Schooling is inherently indoctrinative. Both the

formal and informal curriculum, established by

those in authority in accordance with their own

views or those of the majority in the

community,

are

value-laden—from

the

textbooks selected, to the methods of teaching,

to extra-curricular offerings. School officials

may believe that students are developing

critical thinking skills in order to form their

own conclusions. However, the curriculum may

in fact lead students to certain school/teacherdirected conclusions. 34

Another applied the point to highly contentious

gender and sexuality issues:

[S]exual diversity public school curriculum[]

“whether for kindergartners or older children,

not

education

about

biology

but

indoctrination in values that go against the

traditional values that children learn in their

families and in their communities. Obviously,

the earlier this indoctrination begins, the better

its chances of overriding traditional values. The

question is not how urgently children in

kindergarten need to be taught about sex or gay

families but how important it is for

indoctrinators to get an early start.” 35

The commentator notes that “gay writer Daniel

Villarreal” candidly rejected the notion that this type

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

a lie. We want educators to teach future generations

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

future depends on it.” 36

34 Salomone, supra, at 216–17.

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

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

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

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

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

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

Admitting that We Do Actually Want to Indoctrinate Kids,

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

One need not go beyond the Board’s books

themselves to find pressure for students to alter the

beliefs that their parents are seeking to instill in them.

But the books’ accompanying materials confirm that

the main goal is not reading comprehension but

indoctrination. As elementary students express their

confusion about these subjects (because they are

elementary students), they will be informed that

“people of any gender can like whoever they like” and

that “[o]ur body parts do not decide our gender[,] . . .

[that] comes from our inside.” App. 12a–13a; see App.

620a. If a student says something like “He can’t be a

boy if he was born a girl. What body parts do they

have?”, teachers are told to say, “That comment is

hurtful; we shouldn’t use negative words to talk about

peoples’ identities.” App. 619a.

Whether one agrees or not, this language imparts

a particular value about gender identity. Tellingly,

these responses have nothing to do with reading

comprehension, language skills, or grammar.

Objecting students are not told, for instance, that they

misunderstood the stories. Instead, the responses are

about values—telling objecting students that they

have the wrong values.

The value-laden nature of the storybook

curriculum does not change based on what the Board

calls it or how it was ultimately authorized. That this

is characterized “language arts” does not make it so.

And that “the storybooks were not approved for the sex

education curriculum, which has its own approval

process,” BIO 22, does not make the storybooks any

less sexuality and gender identity education that

influences children. It just means the Board seemingly

violated its own internal processes in addition to

Maryland’s opt-out requirement, the national opt-out

consensus, and the Free Exercise Clause. Cf. App. 70a

n.4 (Quattlebaum, J., dissenting) (“I see nothing . . .

that would permit the board to avoid the requirement

to permit opt-outs for family life and human sexuality

just by adding instruction in that area to other

classes.”). Notice and opt-out provisions are necessary

for controversial, value-laden material because

schooling is necessarily indoctrinative. And what is

indoctrinative—what needs opting out of—is the

objectionable substance of a curriculum, not its title or

how it was approved.

Opt-out provisions in all their variations reflect

this sentiment. At least nine states now allow parents

to opt out of various forms of objectional instruction

across all curricula—not just “sex education.” 37 In the

last four years, another four states have allowed

parents to opt their child out of any sexual orientation

or gender identity instruction—regardless of the

37 See Ariz. Rev. Stat. § 15-102-(A)(4); Haw. Dep’t of Educ., Bd. of

Educ. Policy 101-13; Haw. Dep’t of Educ. Reg. No. 2210.1,

https://perma.cc/6QAT-B6EL; K. Hayashi, Superintendent, Haw.

Dep’t of Educ., Annual Memorandum: Notice on Board of

Education Policy 101-13 Controversial Issues (June 2023), in

Opening of the School Year Packet for School Year 2023–2024,

Haw. Dep’t of Educ. 61 (June 2023), https://perma.cc/T6DSXSWP; Minn. Stat. § 120B.20; Neb. Rev. Stat. §§ 79-531, 79532(1)(a)–(c); Okla. Stat. tit. 25, § 2002(a)(2)-(4); Or. Dep’t of

Educ. Admin. R. 581-021-0009; 22 Pa. Code § 4.4(d)(3); Tex. Educ.

Code § 26.010(a); Utah Code § 53G-10-205.

subject area in which it is taught. 38 Many of the

largest school districts in their respective states

provide parental opt-out for controversial content—

whether or not the school calls it “language arts.” 39

And Maryland (like most states) requires local schools

to provide student opt-out procedures regarding

“instruction related to”—not classes entitled—“family

life and human sexuality objectives.” 40 Parents wish

to protect their children from certain course content,

not course labels, a concept evident on the face of

many opt-out provisions themselves.

38 See Ark. Code § 6-16-1006(c) (2021); Mont. Code § 20-7-120

(2021); Ohio Rev. Code § 3313.473(B)(1)(b), F(5) (effective April

9, 2025); Tenn. Code § 49-6-1308 (2023).

39 See, e.g., Policy in Practice: Parental/Community Review of

Curriculum and Instruction Materials, in Anoka-Hennepin

Schools School Handbook 2024-25, at 47, Anoka-Hennepin Sch.

Dist., https://perma.cc/FL2F-M4MR (allowing parents in

Minnesota’s largest school district to require, regardless of the

subject area, “that specific instructional resources be excluded or

restricted for their children”); Religious Exemption Opt-Out

CUR-P007, Salem-Keizer Sch. Dist. (Aug. 22, 2022),

https://perma.cc/LP8K-L99C (similar policy in Oregon’s second

largest school district); Review of Instructional Material by

Parents/Guardians and Students—Board Policy 105.1, North

Penn Sch. Dist. (Jan. 16, 2020), https://perma.cc/JG42-5TVC

(Pennsylvania’s eighth largest school district); How Can My

Child Be Excused from Studying Materials that Are Offensive to

Me?, Greenville Cnty. Schs., https://perma.cc/LQ5T-BP3T (South

Carolina’s largest school district); Controversial Materials—

Board

Policy

4.801,

Sumner

Cnty.

Sch.

Bd.,

https://perma.cc/D9R3-YZBX (Tennessee’s eighth largest school

district); Selection & Adoption of Instructional Materials—Policy

No. 6161, at 14, Alpine Sch. Dist. (Sept. 24, 2024),

https://perma.cc/U359-7BBE (Utah’s largest school district).

40 Md. Code Regs. § 13A.04.18.01(D)(2)(e)(i) (emphasis added).

The court below found it meaningful to say that

“this case presents only an objection to their children’s

public school curriculum.” App. 49a. Yes—and

curriculum inherently tries to instill certain values,

especially in elementary students. When those values

contradict parents’ religious beliefs on highly personal

matters of sexuality and gender identity, the inherent

indoctrinative aspect of school curriculum raises a

significant constitutional problem. Labeling sexuality

instruction “language arts” doesn’t change that—or

eliminate the constitutional problem.

None of this is to argue that the judiciary is always

the right forum for curriculum disputes. Of course it is

not. But when curriculum—especially ahistorical,

ideological curriculum—butts up against the

Constitution, courts should not shrink from

vindicating individual rights. Not only does that

approach contradict the reason for deference—the

inculcation of values in impressionable children—but

it also applies a deferential approach where it does not

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

withdraw certain subjects from the vicissitudes of

political controversy, to place them beyond the reach

of majorities and officials and to establish them as

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

319 U.S. at 638. The Montgomery schools have

violated parents’ free exercise rights by imposing

mandatory indoctrination on their children about

controversial sexuality and gender identity issues

contrary to their religious beliefs.

CONCLUSION

The Court should reverse.

Respectfully submitted,