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 of National Religious Broadcasters,

Parental Rights Foundation, Wagner Faith and

Freedom Center, and Concerned Women for

America as Amici Curiae in support of

Petitioners

MICHAEL P. FARRIS

Counsel of Record

NATIONAL

WILLIAM WAGNER

RELIGIOUS

5600 West Mount Hope

BROADCASTERS

Highway

20 F. Street, Seventh

Lansing, MI 48917

Floor

(517) 643-1765

Washington, D.C. 20001 prof.wwjd@gmail.com

(202) 341-4783

mfarris@nrb.org

Counsel for Amicus

Curiae

Table of Contents

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

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

Interest of Amici......................................................... 1

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

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

I. The School District Seeks to Change the

Religious Viewpoints of Students........................... 5

II. It is Unconstitutional Per Se for Public Schools

to Seek to Change the Religious Views of Students

................................................................................. 8

III. This Court Has Promised Parents that Public

Schools Must Adhere to Religious Neutrality ..... 11

IV. Students are Protected from Mere Exposure to

Materials that Advance Religious Beliefs............ 13

V. The Idea that this Case Needs to be Remanded

for Evidentiary Development is Seriously Flawed

............................................................................... 21

Conclusion ................................................................ 22

Table of Authorities

Cases

Bowen v. Roy, 476 U.S. 693 (1986) ............................ 9

Braunfeld v. Brown, 366 U.S. 599 (1961).............. 8, 9

Cal. Parents for the Equalization of Educ. Materials

v. Torlakson, 973 F.3d 1010 (9th Cir. 2020) ........ 18

Citizens for Parental Rights v. San Mateo Bd. of Ed.,

51 Cal. App. 3d, 124 Cal. Rptr. (1975) ................. 20

Edwards v. Aguillard, 482 U.S. 578 (1987). ......... 5, 9

Engel v. Vitale, 370 U.S. 421(1962) ................... 14, 15

Epperson v. State of Ark., 393 U.S. 97 (1968) ......... 11

Florey v. Sioux Falls Sch. Dist. 49-5, 619 F.2d 1311

(8th Cir. 1980). ................................................ 18, 19

Grove v. Mead Sch. Dist. No. 354, 753 F.2d 1528 (9th

Cir. 1985). .............................................................. 20

Hobolth v. Greenway, 52 Mich. App. 682, 218 N.W.2d

98 (1974) ................................................................ 20

Mahmoud v. McKnight, 102 F.4th 191 (4th Cir.

2024) .........................................................5, 6, 18, 21

McDaniel v. Paty, 435 U.S. 618 (1978). ..................... 8

Mederios v. Kiyosaki, 52 Hawaii 436, 478 P.2d 314

(1970) ..................................................................... 20

Moody v. Cronin, 484 F. Supp. 270 (C.D. Ill. 1979) 20

Mozert v. Hawkins County Bd. of Educ., 827 F.2d

1058 (6th Cir. 1987) .................................. 16, 19, 20

Parker v. Hurley, 514 F.3d 87 (1st Cir. 2008) ... 18, 19

People of State of Ill. ex rel. McCollum v. Bd. of Ed.

of Sch. Dist. No. 71, Champaign Cnty., Ill., 333

U.S. 203 (1948) .......................................... 11, 12, 14

Sch. Dist. of Abington Twp., Pa. v. Schempp, 374

U.S. 203 (1963) .....................................12, 13, 14, 15

Smith v. Ricci, 89 N.J. 514, 446 A.2d 501 (1982).... 20

Spence v. Bailey, 465 F.2d 797 (6th Cir. 1972)......... 19

iii

Valent v. N.J. State Bd. of Ed., 114 N.J. Super. 63,

274 A.2d 832 (1971). ............................................. 20

Wallace v. Jaffree, 472 U.S. 38 (1985) ..................... 14

Wisconsin v. Yoder, 406 U.S. 205 (1972). ............... 18

Other Authorities

Mozert v. Hawkins County Public Schools, U.S.

Supreme Court No. 87-1100, Cert. Pet. at 8. (1987)

…………………………………………………………….16

Interest of Amici

National Religious Broadcasters (NRB) is a

non-partisan association of Christian broadcasters

united by their shared purpose of proclaiming

Christian teaching and promoting biblical truths.

NRB’s 1,487 members reach a weekly audience of

approximately 141 million American listeners,

viewers, and readers through radio, television, the

Internet, and other media.1

Since its founding in 1944, NRB has worked to

foster excellence, integrity, and accountability in its

membership. NRB also works to promote its

members’ use of all forms of communication to ensure

that they may broadcast their messages of hope

through First Amendment guarantees. NRB believes

that religious liberty and freedom of speech together

form the cornerstone of a free society.

The Parental Rights Foundation (PRF) is a

national, nonprofit, nonpartisan advocacy organization

with supporters in all fifty states. The PRF is

concerned about the erosion of the legal protection of

loving and fit parents to raise, nurture, and educate

their children without undue state interference. The

Parental Rights Foundation seeks to protect children

by preserving the liberty of their parents by educating

those in government and the public about the need to

roll back some of the intrusive state mechanisms that

1 Pursuant to Supreme Court Rule 37.6, counsel for your amicus

certifies that no counsel for any party authored this brief in

whole or in part. No person or entity other than the named amici

herein furnished any monetary contribution for the preparation

of this brief.

have worked to harm more children than they help,

and about the need to strengthen fundamental

parental rights at all levels of government.

Housed on the campus of Spring Arbor

University, the Wagner Faith & Freedom Center

(WFFC) serves as a national academic voice for

freedom of thought, conscience, and religion. The

WFFC strategically works to ensure the next

generation may exercise this liberty free of

persecution and oppression. In public forums

throughout the world the WFFC speaks on behalf of

the persecuted and most vulnerable. The WFFC

champions the cause of the defenseless and

oppressed, standing for faith and freedom all around

the world.

Concerned Women for America (CWA) is the

largest public policy organization for women in the

United States, with approximately half a million

supporters from all 50 States. Through its grassroots

organization, CWA encourages policies that

strengthen women and families and advocates for the

traditional virtues that are central to America's

cultural health and welfare. CWA actively promotes

legislation, education, and policymaking consistent

with its philosophy. Its members are people whose

voices are often overlooked-everyday, middle-class

American women and mothers whose views are not

represented by the powerful elite. CWA is profoundly

committed to fundamental principles of religious

liberty and the protection of parental rights in law

and culture.

Religious freedom cannot survive when

religious people and organizations are treated as

second class citizens. When religious neutrality in the

public schools means that non-religious children may

not be even exposed to religious materials, but

religious children must endure efforts by public school

officials to disrupt and change their religious beliefs—

no one’s religious rights are safe in this country.

Summary of the Argument

The right to believe has been repeatedly

acknowledged by this Court as an absolute right. In

this case, the record is clear that the school district

trains its teachers to contradict and “disrupt” the

religious beliefs of students expressing traditional

religious values at odds with the worldview embraced

by the school district. It is illegitimate per se for any

agency of any government in this country to seek to

change the religious beliefs of anyone and especially

the beliefs of five and six-year-old children.

Moreover, this Court has promised the public

school parents of this country that the First

Amendment is not hostile to religion but instead

requires public schools to operate with religious

neutrality. Specifically, this Court has repeatedly

held that public schools can neither advance nor

denigrate religious beliefs. Unless the federal judiciary

uses the same tests for cases involving denigration of

beliefs as it uses for cases involving the advancement

of religion, religious neutrality becomes an empty

promise or a cruel hoax.

In several cases involving public school

activities determined to be advancing religion, this

Court has observed that children are impressionable

and that attendance in the public schools is not

required by law. Moreover, teachers and other

officials stand as authority figures with an

overpowering opportunity to influence the beliefs of

children. Even though this Court has said that

coercion is required as an element in Establishment

Clause cases, it has found these factors to in fact be

coercive.

Religious children are just as impressionable

and vulnerable as the children who have objected to

being subjected to pro-religious teachings and

activities. The coercive power of the state is just as

real in this case as any case decided under the

Establishment Clause.

The conclusion by the Fourth Circuit that there

is no burden on the religious beliefs of these parents

because there is no proof of coercion is erroneous for

two reasons. First, it ignores the multiple holdings

from this Court regarding the impressionability of

children and the coercive power inherent in the public

schools. Second, it ignores the very real consequences

arising from the training given by the school district

which clearly aims at changing and disrupting the

religious beliefs of the plaintiffs’ children.

Argument

I. The School District Seeks to Change the

Religious Viewpoints of Students

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

Maryland’s Montgomery County Public

Schools adopted a group of “LGBTQ-Inclusive Books

[Storybooks] as part of the English Language Arts

Curriculum” for elementary students. Mahmoud v.

McKnight, 102 F.4th 191, 197 (4th Cir. 2024). While

some latitude is granted to teachers in how they

employ the books in their classroom, teachers

“cannot, however, elect not to use the Storybooks at

all.” Id at 198.

Initially, the District allowed parents to opt

their children out of the use of the Storybooks. Id. at

199. However, the materials were offensive to so

many parents, that the District cited “high student

absenteeism” as one of the reasons for terminating

the opt out program. Id. at 200.

The single most important set of facts in this

record is the training of the School District’s teachers

to answer common objections and problems. The

Fourth Circuit gave this summary of the training:

For example, if a student says “Being ___ (gay,

lesbian, queer, etc) is wrong and not allowed in

my religion,” teachers “can respond,” “I

understand that is what you believe, but not

everyone believes that. We don't have to

understand or support a person's identity to

treat them with respect and kindness.” The

guidance also counsels that if a student says

that “a girl ... can only like boys because she's a

girl,” the teacher can “[d]isrupt the either/or

thinking by saying something like: actually,

people of any gender can like whoever they

like.... How do you think it would make __ to

hear you say that? Do you think it's fair for

people to decide for us who we can and can't

like?” (emphasis added). If a student asks what

it means to be transgender, the teacher could

explain, “When we're born, people make a

guess about our gender and label us ‘boy’ or

‘girl’ based on our body parts. Sometimes

they're right and sometimes they're wrong....

Our body parts do not decide our gender. Our

gender comes from our inside[.]”

Id. at 198–99 (citations to JA omitted) (emphasis in

original).

There can be no doubt that the theme of this

training is that teachers are to mold the mind of the

child to align with the values preferred by the School

District rather than the values taught by their

parents and religious leaders.

Children who express a religious view about

LGBTQ issues are to be told that other people

think differently about it. Teachers are not told

to tell children who affirm the Storybooks that

other people think differently about these

things.

Children who express a religious viewpoint are

told that they may not understand people who

identify as LGBTQ. This has the undoubted

effect of undermining a child’s viewpoint when

his or her teacher tells the student that he or

she doesn’t understand. Teachers are molding

impressionable young children by challenging

their viewpoint as unenlightened.

Children who express the viewpoint that

opposite sex attraction is the norm are to be

disrupted by teachers. This intentional

disruption, which can mean nothing other than

the teacher is seeking to change the views of

the child, is accomplished by stating as a fact:

“People of any gender can like whoever they

like.” The District not only says that the

children’s expressed religious views are wrong,

but also directs the teacher to endeavor to

change those views.

Children whose religious beliefs teach them

that moral principles come from God, are

universal, and are not a matter of individual

choice, are to be directly undermined by being

questioned by their teachers “Do you think it's

fair for people to decide for us who we can and

can't like?” This directly and intentionally

contradicts the idea that moral standards come

from God.

Children who believe that there are only two

genders given by God and that this is evidenced

by biological reality are to be directly

contradicted by the teacher saying that gender

is merely a “guess” at birth based on body

parts. Children are also told that body parts do

not decide gender. “Gender comes from the

inside.” Once again, the school is seeking to

“correct” the beliefs of the children that gender

is an objective reality stemming from God’s

creation.

Any book could be used to teach language arts.

The instructions given to the teachers reveal beyond

any doubt that the District’s purpose for selecting

these particular books is to indoctrinate children in a

worldview that conflicts with the faith of a

considerable number of the families within the school

system.

II. It is Unconstitutional Per Se for Public

Schools to Seek to Change the Religious Views

of Students

This Court has described the Free Exercise

Clause as containing an “absolute prohibition of

infringements on the ‘freedom to believe.’” McDaniel

v. Paty, 435 U.S. 618, 627 (1978). See also, Braunfeld

v. Brown, 366 U.S. 599, 603 (1961) (“The freedom to

hold religious beliefs and opinions is absolute.”)

In Braunfeld, this Court relied on an oft-quoted

passage from Thomas Jefferson that is fully

applicable here.

Believing with you that religion is a matter

which lies solely between man and his God,

that he owes account to none other for his faith

or his worship, that the legislative powers of

government reach actions only, and not

opinions, I contemplate with sovereign

reverence that act of the whole American

people which declared that their legislature

should ‘make no law respecting an

establishment of religion, or prohibiting the

free exercise thereof,’ thus building a wall of

separation between church and State.

(Emphasis added.) 8 Works of Thomas

Jefferson 113.

Id. at 604.

By seeking to change the religious views held

by students, the School District acts in a manner that

is illegitimate for any level of government in this

nation. Without question, schools may seek to control

behavior. In this context, a prohibition against

bullying another student based on sexual orientation

or gender identity would fall within the school’s clear

and constitutional authority. But the District is

absolutely forbidden by the First Amendment to do

what it seeks to accomplish here: to change the

religious views of students.

Parents may not expect public schools to

affirmatively reinforce the beliefs they teach to their

children. Bowen v. Roy, 476 U.S. 693, 699 (1986). Nor

is the absolute right to believe involved when schools

present academic information that conflicts with the

views of students or parents, such as teaching the

theory of Darwinian evolution. Edwards v. Aguillard,

482 U.S. 578 (1987).

However, the right to believe could properly be

invoked if the teaching of scientific evidence

concerning Darwinian evolution were accompanied by

explicit efforts to undermine the religious faith of

children who believed otherwise. For example, if

biology teachers were instructed to go beyond the

presentation of scientific information and to attempt

to ensure that all students understood that views of

God as creator were wrong, the right to believe might

indeed be violated.

Montgomery County is not seeking to impart

scientific or historical information through the

Storybooks. As the teacher training makes incredibly

clear, the School District is seeking to indoctrinate

children in a worldview that is designed to supplant

the worldview that children learn from their parents

and religious leaders.

No level of American government has the

authority to do any such thing. It is per se

unconstitutional.

Even though a case could be made that such

intentional indoctrination could be required to be

removed from public schools under the Establishment

Clause, the parents in this case have only sought the

very modest remedy of being allowed to opt their own

children out of such instruction. If the right to believe

is to have any meaning at all, surely it should give

these parents the relief that they seek.

III. This Court Has Promised Parents that

Public Schools Must Adhere to Religious

Neutrality

The public school is at once the symbol of our

democracy and the most pervasive means for

promoting our common destiny. In no activity

of the State is it more vital to keep out divisive

forces than in its schools, to avoid confusing,

not to say fusing, what the Constitution sought

to keep strictly apart. ‘The great American

principle of eternal separation’—Elihu Root's

phrase bears repetition—is one of the vital

reliances of our Constitutional system for

assuring unities among our people stronger

than our diversities. It is the Court's duty to

enforce this principle in its full integrity.

People of State of Ill. ex rel. McCollum v. Bd. of Ed. of

Sch. Dist. No. 71, Champaign Cnty., Ill., 333 U.S. 203,

231 (1948) (plurality).

When this Court held that Arkansas could not

forbid the teaching of evolution in the public schools,

it promised religious parents who supported the law

that: “The First Amendment mandates governmental

neutrality between religion and religion, and between

religion and nonreligion.” Epperson v. State of Ark.,

393 U.S. 97, 104 (1968). Moreover, the Court said that

public schools “may not be hostile to any religion.” Id.

And when the Court held that Bible reading

and recitation of the Lord’s Prayer must be removed

from the public schools of Pennsylvania and

Maryland, the Court promised religious parents: ‘The

government is neutral, and, while protecting all, it

prefers none, and it disparages none.” Sch. Dist. of

Abington Twp., Pa. v. Schempp, 374 U.S. 203, 215

(1963) (cleaned up.) Schempp quoted with approval

Justice Frankfurter’s plurality opinion in People of

State of Ill. ex rel. McCollum, supra, which held that

the Constitution prohibits “the Government common

to all from becoming embroiled, however innocently,

in the destructive religious conflicts of which the

history of even this country records some dark pages.”

Schempp, supra at 219.

The promise that the public schools would not

be used to disparage religious beliefs is precisely the

issue in this case. In the many cases where this Court

has announced that the First Amendment equally

protects against the advancement as well as the

disparagement of religion, there has never been a hint

that different legal standards would be used to judge

cases which arise from these different sides of the

same coin. Indeed, in McCollum, this Court plainly

communicated the essential nature of this form of

equality.

To hold that a state cannot consistently with

the First and Fourteenth Amendments utilize

its public school system to aid any or all

religious faiths or sects in the dissemination of

their doctrines and ideals does not, as counsel

urge, manifest a governmental hostility to

religion or religious teachings. A manifestation

of such hostility would be at war with our

national tradition as embodied in the First

Amendment's guaranty of the free exercise of

religion. For the First Amendment rests upon

the premise that both religion and government

can best work to achieve their lofty aims if each

is left free from the other within its respective

sphere.

McCollum, supra, at 211-212.

This principle of equality should apply with full

force to the consideration of the need to show a

“burden” of religious rights within the public schools.

This means that the standard employed when public

schools seek to advance religion should be fully

applicable to cases when such schools seek to

undermine or change the religious faith of its

students.

IV. Students are Protected from Mere Exposure

to Materials that Advance Religious Beliefs

In Schempp, the complaint filed by the famed

atheist, Madylyn Murray, summarized the impact of

exposing her son to daily Bible readings or the

recitation of the Lord’s prayer:

[I]t threatens their religious liberty by

placing a premium on belief as against nonbelief and subjects their freedom of conscience

to the rule of the majority; it pronounces belief

in God as the source of all moral and spiritual

values, equating these values with religious

values, and thereby renders sinister, alien and

suspect the beliefs and ideals of your

Petitioners, promoting doubt and question of

their morality, good citizenship and good faith.’

Schempp, supra, at 212.

Schempp is the fountainhead for the rule that

“a violation of the Free Exercise Clause is predicated

on coercion while the Establishment Clause violation

need not be so attended.” Id. at 223. This is despite

the fact that this Court has often found the mere

exposure to religious materials to have a coercive

effect. In fact, in Schempp, this Court quoted Engel v.

Vitale, 370 U.S. 421, 430-431 (1962) to reveal that

coercion was found to be present:

This is not to say, of course, that laws officially

prescribing a particular form of religious

worship do not involve coercion of such

individuals. When the power, prestige and

financial support of government is placed

behind a particular religious belief, the indirect

coercive pressure upon religious minorities to

conform to the prevailing officially approved

religion is plain.

Schempp, supra, at 221.

Likewise, the coercive pressure of public school

exposure to religious teaching was acknowledged in

McCollum.

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

nonconformity is not an outstanding

characteristic of children. The result is an

obvious pressure upon children to attend.

333 U.S. at 227.

Even in the case of a moment of silence,

accompanied by the suggestion that it might be used

for prayer, this Court noted the claim from the

plaintiff’s complaint “that the minor children were

exposed to ostracism from their peer group class

members if they did not participate.” Wallace v.

Jaffree, 472 U.S. 38, 42 (1985). Moreover, the Wallace

Court quoted Engel: “[T]he indirect coercive pressure

upon religious minorities is plain.” And then added:

“This comment has special force in the public school

context.” Id. at 61, fn. 51.

This Court need not reverse the rule that Free

Exercise Clause violations require a showing of

coercion. Religious neutrality can be achieved by

employing the finding of coercion recognized in Engel

and Schempp in cases involving efforts to undermine

the religious faith of public school students.

It is easy to see why parents in Montgomery

County, Maryland feel very much like Madalyn

Murray felt over a half century ago. The instructions

given to the teachers today to promote the LGBTQ

worldview of the school “renders sinister, alien and

suspect the beliefs and ideals of your Petitioners,

promoting doubt and question of their morality, good

citizenship and good faith.” Schempp at 212.

What the Petitioner-parents cannot be

expected to accept is the use of one test to evaluate

their claims and another to evaluate the claims of

Mrs. Murray. Religious children are just as subject to

the inherent coercion of public-school pressure as

Mrs. Murray’s son being raised in atheism.

The Fourth Circuit is far from the only court to

fail to consider the coercive pressure of public school

programs designed to change the beliefs of children.

In Mozert v. Hawkins County Bd. of Educ., 827 F.2d

1058 (6th Cir. 1987), the Sixth Circuit found no

“burden” on the Free Exercise rights of the plaintiffparents in that case, on the basis that the children

were not coerced to believe the materials that they

were required to read. Even though the children in

that case were suspended from school for refusing to

read the offensive texts (Id. at 1060), and even though

the school district stipulated that the materials were

in fact offensive to the sincere beliefs of the plaintiffs

(Id. at 1061), the lack of any pressure to actually

believe the material was fatal to their case. (Id. at

1064).

However, the Superintendent of Hawkins

County Schools was more realistic in his assessment

of how it all worked.

Bill Snodgrass, the Hawkins County Public

School Superintendent at that time, said it was

better for children to be forced to read

materials to which they objected, than to give

them an alternative book, because “after a

while, they would quit kicking and screaming.”

Superintendent Snodgrass said he believed

that forcing children to read material that

violated their religious beliefs would build

character and develop self-discipline.

Mozert v. Hawkins County Public Schools, U.S.

Supreme Court No. 87-1100, Cert. Pet. at 8. (1987),

cert denied 484 U.S. 1066 (1988).

This Court’s decisions have repeatedly

recognized that the coercive effect upon children to

conform to what their teachers or school officials want

them to believe is very real. Montgomery County

schools intentionally attempt to “disrupt” the beliefs

of the children. Teachers question their faith.

Teachers suggest that the students’ religious views

reflect an inaccurate understanding of others. All of

this is far more coercive than any case in which this

Court has found religious activity to violate the

Establishment Clause.

What Montgomery County seeks to do is

inherently coercive. It is an egregious imbalance of

power. Professionally trained teachers who have been

coached by the school district on how to counteract the

expressed religious beliefs of students can be expected

to drive deep doubts into the minds and souls of

plaintiffs’ children. This is coercion in the extreme.

This is not to say that there are no relevant

distinctions between materials that promote religion

versus those which denigrate faith. In all cases,

materials that violate the Establishment Clause are

required to be removed from the public schools. In

most cases involving denigration of faith, the

appropriate remedy would be to allow parents to opt

their children out of the offending material or activity.

This is not to say that an especially direct denigration

of faith might not give rise to a valid request for

removal in an appropriate case. But this Court need

not determine where such a line needs to be drawn in

the present case. The Plaintiff-parents have only

asked to be notified so that they can protect their own

children by opting them out of reading the offending

texts.

The Eighth Circuit found the correct balance in

a case involving Christmas celebrations in the public

schools. After the court found that there was no

Establishment Clause violation since there had been

a careful balance of secular and religious material in

choral performances and the like, the Court endorsed

the right of parents to opt out their children if

offended by the religiosity of the material.

These inevitable conflicts with the individual

beliefs of some students or their parents, in the

absence of an Establishment Clause violation,

do not necessarily require the prohibition of a

school activity. On the other hand, forcing any

person to participate in an activity that offends

his religious or nonreligious beliefs will

generally contravene the Free Exercise Clause,

even without an Establishment Clause

violation. See Wisconsin v. Yoder, 406 U.S. 205

(1972). In this case, however, the Sioux Falls

School Board recognized that problem and

expressly provided that students may be

excused from activities authorized by the rules

if they so choose.

Florey v. Sioux Falls Sch. Dist. 49-5, 619 F.2d 1311,

1318–19 (8th Cir. 1980).

In the case at bar, the Fourth Circuit followed

a different line of lower court precedents for its

central holding, which was that the parents had not

satisfied the burden test necessary because of the

failure to prove coercion to believe the Storybooks.

The court cited three court decisions to justify this

conclusion. Cal. Parents for the Equalization of Educ.

Materials v. Torlakson, 973 F.3d 1010, 1020 (9th Cir.

2020); Parker v. Hurley, 514 F.3d 87, 90, 106 (1st Cir.

2008); Mozert v. Hawkins Cnty. Bd. of Educ., 827 F.2d

1058, 1065 (6th Cir. 1987). Mahmoud, supra, 104

F.4th at 210.

Torlakson involved an attempt to remove

public school curricular material because of an

alleged bias against Hinduism. The constitutional

issues surrounding efforts to remove curriculum are

very different from cases where parents merely seek

the right to opt out of material that they believe

denigrates their religious faith. Parker and Mozert

are both opt-out cases. And Parker relies heavily on

Mozert in reaching its decision. Neither of these cases

acknowledge the inherent coercive pressure upon

public school children when forced to participate in

activities which they find religiously objectionable.

That is, they fail to follow the rules of religious

neutrality that are required under the First

Amendment. Coercive pressure is the same on

religious and non-religious children alike.

Prior to Mozert, federal courts generally

recognized parental rights under the Free Exercise

Clause to opt their children out of material that they

found to be religiously objectionable even if there was

no violation of the Establishment Clause.

In addition to the Eighth Circuit’s decision in

Florey, the Sixth Circuit had a clear precedent prior

to Mozert that established the right of pacifist parents

to opt out their children from mandatory ROTC

classes in a public high school. Written by retired

Justice Tom Clark, Spence v. Bailey, 465 F.2d 797 (6th

Cir. 1972), held that the Free Exercise Clause

required the district to allow a student to opt out of

such training. The school in that case said, in effect,

ROTC or leave. Justice Clark struck this down saying:

“The State may not put its citizens to such a Hobson's

choice consistent with the Constitution without

showing a compelling state interest within the State's

constitutional power to regulate.” Id. at 800.

In a concurring opinion, a Ninth Circuit judge

assumed, without deciding, that a high school student

might well have the right to opt out of reading a

literature book that, among other things, called Jesus

Christ “a poor white trash God” and a “long-legged

white son-of-a-bitch.” Grove v. Mead Sch. Dist. No.

354, 753 F.2d 1528, 1540 (9th Cir. 1985).

Plaintiffs allege that they believe that “eternal

religious consequences” result to them and

their children from exposure to The Learning

Tree or discussion of it. That allegation would

probably be sufficient to present a free exercise

question if Cassie Grove had been compelled to

read the book or be present while it was

discussed in class. She was not.

Id. at 1541–42.

A district court decision of the pre-Mozert era

ruled for parents seeking the right to opt out of

religiously objectionable, public-school co-ed, physical

education classes in Moody v. Cronin, 484 F. Supp.

270 (C.D. Ill. 1979). Additionally, numerous state

court appellate decisions of this era recognized the

right of parents to obtain an opt out for their children

from offensive sex education classes. See, Smith v.

Ricci, 89 N.J. 514, 446 A.2d 501 (1982); Mederios v.

Kiyosaki, 52 Hawaii 436, 478 P.2d 314 (1970);

Citizens for Parental Rights v. San Mateo Bd. of Ed.,

51 Cal. App. 3d, 124 Cal. Rptr. (1975); Hobolth v.

Greenway, 52 Mich. App. 682, 218 N.W.2d 98 (1974);

Valent v. N.J. State Bd. of Ed., 114 N.J. Super. 63, 274

A.2d 832 (1971).

None of these cases revealed a school district

quite as intentional as Montgomery County in terms

of actively seeking to change the beliefs of students. A

simple conflict of beliefs in the context of coercive

public education was sufficient to win the right to opt

out of such courses. How much more should this right

be recognized when, in addition to the normal coercive

power of schools to induce conformity, there is proof

that the teachers are trained to be change-agents who

are seeking to influence the values of young children.

V. The Idea that this Case Needs to be

Remanded for Evidentiary Development is

Seriously Flawed

The Fourth Circuit held that this case requires

a remand to see how the materials are actually

employed to determine whether there is evidence of

actual coercion. 102 F.2d. at 211-213. Unless cameras

are installed in every classroom, or unless parents are

allowed to be physically present to monitor the actual

presentations, evidence of what actually happens will

be hard to obtain. It will boil down to a comparison of

the memories of five and six-year-olds versus

professionally trained teachers who have been

coached by the School District to block and parry each

religious argument raised by children.

The training offered by the School District,

together with the texts, are the best evidence, and

more than sufficient to determine the questions

before the Court. The Montgomery School District is

seeking to change the religious values of any student

who disagrees with the philosophy of the Storybooks.

Some teachers may be more effective change-agents

than others. Some may be ham-fisted in their

approach. Some may be more diplomatic. But the

constitutionality of this program may be correctly

assessed by using the clear and unmistakable

admissions that teachers are to be disrupters of

religious values and viewpoints.

Conclusion

For the foregoing reasons, the decision below

should be reversed.

Respectfully submitted,

MICHAEL P. FARRIS

Counsel of Record

NATIONAL RELIGIOUS

BROADCASTERS

20 F. Street, Seventh Floor

Washington D.C. 20001