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 A ppeals for the Fourth Circuit

BRIEF OF AMICUS CURIAE CALIFORNIA

PARENTS FOR THE EQUALIZATION OF

EDUCATIONAL MATERIALS IN

SUPPORT OF NEITHER PARTY

Glenn K aton

Counsel of Record

Mirador Law

6601 Owens Drive, Suite 238

Pleasanton, CA 94588

(925) 460-8484

glenn@miradorlaw.com

Counsel for Amicus Curiae

120324

A

(800) 274-3321 • (800) 359-6859

TABLE OF CONTENTS

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

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

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

SUMMARY OF ARGUMENT .................................... 3

ARGUMENT ............................................................... 5

I.

Schools and the Free Exercise Clause............. 5

II. A Test for Free Exercise Claims

Challenging School Curricula .......................... 6

1. The Negation of Religious Beliefs or

Practices ...................................................... 7

2. Targeted Hostility ....................................... 8

3. Lack of Neutrality....................................... 9

4. Coercion ..................................................... 10

CONCLUSION.......................................................... 14

i

TABLE OF AUTHORITIES

Page(s)

Cases

Bauchman v. West High Sch.,

132 F.3d 542 (10th Cir. 1997) ............................... 12

Brandon v. Kinter,

938 F.3d 21 (2d Cir. 2019) ....................................... 8

Cal. Parents for the Equalization of

Educ. Materials v. Torlakson,

267 F. Supp. 3d 1218 (N.D. Cal. 2017) ................... 7

California Parents for Equalization of

Educational Materials v. Noonan,

600 F. Supp. 2d 1088 (E.D. Cal. 2009) .................... 2

California Parents for the Equalization of

Educational Materials v. Torlakson,

973 F.3d 1010 (9th Cir. 2020) ............. 1, 7, 8, 12, 13

Church of Lukumi Babalu Aye v.

City of Hialeah,

508 U.S. 520 (1993)...................................... 9, 10, 11

Espinoza v. Mont. Dep’t of Revenue,

591 U.S. 464 (2020)............................................ 8, 11

Goldman v. Weinberger,

475 U.S. 503 (1986)................................................ 11

Illinois ex rel. McCollum v. Bd. of Educ.,

333 U.S. 203 (1948).................................................. 8

Lynch v. Donnelly,

465 U.S. 668 (1984).................................................. 8

Lyng v. Nw. Indian Cemetery Protective Ass’n,

485 U.S. 439 (1988)................................................ 12

ii

Mahmoud v. McKnight,

102 F.4th 191 (4th Cir. 2024) ........................ 1, 9, 12

Mahmoud v. McKnight,

688 F. Supp. 3d 265 (D. Md. 2023).......................... 1

Masterpiece Cakeshop, Ltd. v.

Colo. Civ. Rights Comm’n,

584 U.S. 617 (2017)........................................ 8, 9, 10

Oliver v. Arnold,

19 F.4th 843 (5th Cir. 2021) .................................... 7

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

374 U.S. 203 (1963).................................................. 5

Trinity Lutheran Church of Columbia, Inc. v.

Comer,

582 U.S. 449 (2017)............................................ 8, 11

Williams v. Hansen,

5 F.4th 1129 (10th Cir. 2021) .................................. 8

Constitutional Provisions

U.S. Const. amend. I ........................................... 2, 8, 9

Statutes, Rules and Regulations

Supreme Court Rule 37 .............................................. 1

Other Authorities

Kiri Blakeley, Seventh grader ‘had to say God

wasn’t real’ in classroom assignment at her

Texas school, Daily Mail, Oct. 28, 2015 .................. 7

Brief of Amici Curiae, Cal. Parents for the

Equalization of Educ. Materials v. Torlakson,

(No. 20-1137) 141 S. Ct. 2583 (2021) ...................... 2

Brief of Respondents in Opposition, Mahmoud v.

Taylor (No. 24-297) (Dec. 18, 2024) ........................ 1

iii

Petition for Writ of Certiorari, Mahmoud v.

Taylor (No. 24-297) (Sept. 12, 2024) ....................... 1

Petition for Writ of Certiorari, Cal. Parents for

the Equalization of Educ. Materials v.

Torlakson, 141 S. Ct. 2583 (No. 20-1137) ............... 9

Reply of Petitioners, Mahmoud v. Taylor (No. 24297) (Dec. 27, 2024) ................................................. 1

Bruce Schreiner & Gilma Avalos, Florida school

apologizes after students stomp on ‘Jesus’, NBC

News, Mar. 27, 2013 ................................................ 7

The Supreme Court 2019 Term: Leading Case:

Espinoza v. Montana Department of Revenue,

134 Harv. L. Rev. 470 (2020)................................... 6

iv

INTEREST OF AMICUS CURIAE1

California Parents for the Equalization of

Educational Materials (CAPEEM) is a nonprofit,

nonpartisan organization that is at the forefront of

advocating for religious freedom and the equal

treatment of Hindu public school students. For two

decades, CAPEEM has tried to eradicate the

disparaging treatment of Hinduism in California’s

statewide public school curriculum. That curriculum

upends Hindu beliefs by using secular theories to

present the religion as nothing more than a social

construct in statewide textbooks, California’s HistorySocial Science Content Standards, and the state’s

History-Social Science Framework.

CAPEEM’s most recent case, California

Parents for the Equalization of Educational Materials

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

cited throughout the current proceedings.2 The Circuit

Court and the parties cite Torlakson for different,

Pursuant to Supreme Court Rule 37.6, counsel for amicus

certifies that no party’s counsel authored this brief in whole or in

part; no party or party’s counsel contributed money that was

intended to fund the preparation or submission of the brief; and

no person other than amicus, its members, or its counsel

contributed money intended to fund the preparation or

submission of the brief.

1

2 See Mahmoud v. McKnight, 102 F.4th 191, 210 (4th Cir. 2024);

Mahmoud v. McKnight, 688 F. Supp. 3d 265, 290 (D. Md. 2023);

Petition for Writ of Certiorari, at 31, Mahmoud v. Taylor (No. 24297) (Sept. 12, 2024); Brief of Respondents in Opposition, at 12,

Mahmoud v. Taylor (No. 24-297) (Dec. 18, 2024); Reply of

Petitioners, at 4, Mahmoud v. Taylor (No. 24-297) (Dec. 27,

2024).

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sometimes contradictory, propositions. CAPEEM also

litigated California Parents for Equalization of

Educational Materials v. Noonan, 600 F. Supp. 2d

1088 (E.D. Cal. 2009), in which the court and the

parties tried to navigate the sometimes overlapping

provisions of the Constitution that apply to public

school curricula. CAPEEM’s experience litigating

violations of the rights of a religious group in schools

gives it an important perspective on the inadequacies

of existing law on the application of the Free Exercise

Clause to school curricula.

CAPEEM enjoys widespread support in Hindu

communities throughout the country. More than 150

Hindu

temples

and

religious

educational

organizations serving over half a million Hindus filed

an amicus brief in support of CAPEEM’s petition for

writ of certiorari in 2021, underscoring the importance

of this issue for Hindus. See Br. of Amici Curiae, Cal.

Parents for the Equalization of Educ. Materials v.

Torlakson, (No. 20-1137) 141 S. Ct. 2583 (2021).

CAPEEM takes no position on the ultimate

issues in this case, but notes that lower courts

currently lack sufficient guidance on free exercise law

on school curricula to adequately protect the free

exercise rights of students. We would like to see a

clear, simple test emerge from this case that will guide

schools in ensuring that their curricula are consistent

with the Free Exercise Clause of the First

Amendment.

2

SUMMARY OF ARGUMENT

Millions of public school students across the

country rely on state boards of education and local

school boards to protect their free exercise rights.

When state and local school boards fail to adequately

protect those rights, students and parents must go to

the courts. The problem right now is that there is not

a clear body of law to guide parents, students, school

boards, and lower courts when confronting free

exercise issues arising in schools.

CAPEEM’s experience litigating the religious

freedom of Hindu parents and students for nearly two

decades has informed a proposed four-part test to

determine if school policies and practices violate the

Free Exercise Clause:

(1) Does the curriculum material negate religious

beliefs or practices?

(2) Does the curriculum material itself or the

process through which it was adopted reflect

targeted hostility toward religion or a particular

religion?

(3) Does the curriculum material or the process

through which it was adopted lack neutrality

toward a particular religion?

(4) Is the curriculum material coercive?

This test draws on the history of Supreme

Court free exercise cases to propose a coherent

standard for school curriculum compliance with the

Free Exercise Clause. The prongs of the test

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recognizable most easily are neutrality and coercion,

with targeted hostility toward religion emphasized in

more recent decisions. The negation of religious beliefs

is also important because there are so many ways,

direct and indirect, that schools can negate students’

religious beliefs, including by teaching the purported

secular origin of a religion, which is a manner of

instructing students that their religion is not a real

religion. This four-pronged test can be used in this

case and others to address free exercise challenges to

school curricula.

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ARGUMENT

Americans regard the public schools as a most

vital civic institution for the preservation of a

democratic system of government. It is

therefore

understandable

that

the

constitutional prohibitions encounter their

severest test when they are sought to be applied

in the school classroom.

Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203,

230 (1963).

I.

Schools and the Free Exercise Clause

Given the centrality of religion in the history of

the world and the United States, school curricula will

invariably include instruction on how civilization and

this country have been influenced by different faiths

as a way to understand the world we live in. While any

subject taught in school can have significance within

the context of religion, whether it is physics and

Galileo, biology and the theory of evolution, or many

types of literature, schools are at their most coercive

when they teach about religion itself. Thus, schools

must be fair and neutral in their descriptions of

religions and their adherents. See Sch. Dist. of

Abington Twp. v. Schempp, 374 U.S. 203, 305

(Goldberg, J., concurring) (“The fullest realization of

true religious liberty requires that government

neither engage in nor compel religious practices, that

it effect no favoritism among sects or between religion

and nonreligion, and that it work deterrence of no

religious belief.”) (emphasis added).

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Notwithstanding the importance of schools’

adherence to free exercise principles in how they

develop curricula and teach students, vast confusion

persists in how the Free Exercise Clause is understood

in that context. See The Supreme Court 2019 Term:

Leading Case: Espinoza v. Montana Department of

Revenue, 134 Harv. L. Rev. 470, 470 (2020) (“The

Religion Clauses of the Constitution have proven

difficult for the Supreme Court to untangle.”) The case

before the Court provides an opportunity to, in the

process of deciding Petitioners’ appeal, provide clarity.

II. A Test for Free Exercise Claims

Challenging School Curricula

CAPEEM proposes the test explained below to

guide lower courts and school boards in determining

whether school curricula infringe on students’ free

exercise rights. We submit that this test properly

recognizes the flexibility needed by school boards in

crafting their curricula, while also protecting the free

exercise rights of students and parents this country

holds dearly.

(1) Does the curriculum material negate religious

beliefs or practices?

(2) Does the curriculum material itself or the

process through which it was adopted reflect

targeted hostility toward religion or a particular

religion?

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(3) Does the curriculum material or the process

through which it was adopted lack neutrality

toward a particular religion?

(4) Is the curriculum material coercive?

1. The Negation of Religious Beliefs or Practices

The first prong for determining whether a

school’s curriculum violates the Free Exercise Clause

is the denial of a student’s or parent’s religious beliefs

or practices. Violations of religious beliefs can come in

either direct or indirect forms. Direct forms are such

as those described by Judge Ho in his concurrence in

a denial of a petition for rehearing en banc: “Some

teachers force students to express views deeply

offensive to their faith. See, e.g., Kiri Blakeley,

Seventh grader 'had to say God wasn't real' in

classroom assignment at her Texas school, Daily Mail,

Oct. 28, 2015; Bruce Schreiner & Gilma Avalos,

Florida school apologizes after students stomp on

'Jesus', NBC News, Mar. 27, 2013.” Oliver v. Arnold,

19 F.4th 843, 844 (5th Cir. 2021) (Ho, J., concurring).

Indirect forms of negation include teaching

secular theories about the origins of Hinduism with no

reference to the belief in the divine and attributing

human authorship to the Vedas (Hindu scriptures),

while teaching how adherents of other religions

believe in the divine origins of their faiths and

scriptures without providing secular explanations.

See Cal. Parents for the Equalization of Educ.

Materials v. Torlakson, 267 F. Supp. 3d 1218, 1223

(N.D. Cal. 2017), aff’d, 973 F.3d 1010 (9th Cir. 2020).

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The negation of religious beliefs or practices

criterion that CAPEEM proposes does not rise to the

level of a substantial burden, which several Circuit

Courts still require to maintain a free exercise claim.

See Cal. Parents for the Equalization of Educ.

Materials v. Torlakson, 973 F.3d 1010, 1019 (9th Cir.

2020) (pleading substantial burden is required by this

court’s free exercise decisions); Williams v. Hansen, 5

F.4th 1129, 1133 (10th Cir. 2021); Brandon v. Kinter,

938 F.3d 21, 32 (2d Cir. 2019). The substantial burden

test is flatly inconsistent with this Court’s recent free

exercise cases involving forms of coercion that do not

directly suppress religious practices. See Trinity

Lutheran Church of Columbia, Inc. v. Comer, 582 U.S.

449, 467 (2017) (The consequence [of the state law] is,

in all likelihood, a few extra scraped knees. But the

exclusion of Trinity Lutheran from a public benefit for

which it is otherwise qualified, solely because it is a

church, is odious to our Constitution all the same, and

cannot stand.); Espinoza v. Mont. Dep't of Revenue,

591 U.S. 464, 489 (2020); Masterpiece Cakeshop, Ltd.

v. Colo. Civ. Rights Comm'n, 584 U.S. 617, 640 (2017).

2. Targeted Hostility

The Free Exercise Clause has long forbidden

government hostility toward religion or a particular

religion. The “Constitution . . . affirmatively mandates

accommodation, not merely tolerance, of all religions,

and forbids hostility toward any.” Lynch v. Donnelly,

465 U.S. 668, 673 (1984) (emphasis added); see also

Illinois ex rel. McCollum v. Bd. of Educ., 333 U.S. 203,

211-212 (1948) (“[G]overnmental hostility to religion

or religious teachings . . . would be at war with our

national tradition as embodied in the First

8

Amendment's guaranty of the free exercise of

religion.”). More recently, this Court has reiterated

that strict scrutiny applies when official action

demonstrates governmental hostility toward religion.

Masterpiece Cakeshop, 584 U.S. at 649 (“[N]o

bureaucratic judgment condemning a sincerely held

religious belief as “irrational” or “offensive” will ever

survive strict scrutiny under the First Amendment.”);

Church of Lukumi Babalu Aye v. City of Hialeah, 508

U.S. 520, 534 (1993) (“The Free Exercise Clause

protects against governmental hostility which is

masked as well as overt.”)

In this case, decided on a motion for

preliminary injunction, the Fourth Circuit found that

more factual development was needed to determine if

the board of education’s abrupt change in policy that

had previously allowed opting out of part of the

curriculum reflected hostility toward religion.

Mahmoud v. McKnight, 102 F.4th 191, 216 (4th Cir.

2024). In CAPEEM’s experience, describing Hinduism

as a negative social construct built on an oppressive

“caste” system imposed from without by Aryan

invaders, rather than as a divinely inspired religion,

and the use of the term ‘Brahmanism’ which has

historically been used in a derogatory manner,

constitute targeted hostility that should invoke strict

scrutiny. Petition for Writ of Certiorari, Cal. Parents

for the Equalization of Educ. Materials v. Torlakson,

141 S. Ct. 2583 (No. 20-1137).

3. Lack of Neutrality

Government neutrality with respect to religion

is a touchstone of the Free Exercise Clause. In the

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Masterpiece Cakeshop case, a baker refused to make a

wedding cake for a same-sex couple because of his

religious objection to same-sex marriage. The

Colorado Civil Rights Commission found that he

violated the Colorado Anti-Discrimination Act, which

Colorado state courts affirmed. This Court reversed.

In addition to the hostility the Commission showed to

the baker’s religion, as discussed above, this Court

held that he “was entitled to the neutral and respectful

consideration of his claims in all the circumstances of

the case.” Masterpiece Cakeshop, 584 U.S. at 634

(emphasis added); id., at 644 (Gorsuch, J., concurring)

(“the Colorado Civil Rights Commission failed to act

neutrally toward [the baker]’s religious faith”).

Thus, the Court was deeply concerned with the

religious bigotry the Commission showed toward the

baker during its administrative review process. School

boards, too, have an administrative process for

adopting curricula. CAPEEM urges the Court to look

closely at Respondent board of education’s

administrative process in this case and submits that

neutrality not just in content but in process be made

an essential part of any test the Court develops for

analyzing free exercise claims in connection with

school curricula. The Free Exercise Clause bars even

“subtle departures from neutrality” on matters of

religion.” Lukumi Babalu Aye, 508 U.S. at 534.

4. Coercion

A free exercise plaintiff must show coercion to

establish a claim. That coercion could be requiring the

plaintiff to do something their religion forbids, or

forbidding them from doing something their religion

10

requires. In Lukumi Babalu, this Court held it

unconstitutional for the City of Hialeah to criminalize

the ritualistic slaughter of animals required by the

Santeria faith. 508 U.S. at 547 (“Legislators may not

devise mechanisms, overt or disguised, designed to

persecute or oppress a religion or its practices.”); see

also Goldman v. Weinberger, 475 U.S. 503, 510 (Air

Force officer wearing yarmulke with uniform

implicated Free Exercise Clause but Air Force

regulation prohibiting the wearing of headgear held to

“reasonably and evenhandedly regulate dress in the

interest of the military's perceived need for

uniformity.”)

More recently, the Court has held in several

cases that a free exercise violation need not be based

on interference with a religious practice, such as

animal slaughter or wearing a yarmulke. Coercion can

take the form of denying a church playground

participation in a safety program that is available to

other playgrounds or denying a scholarship to a

student who wants to use it for a religious school. See

Trinity Lutheran, 582 U.S. at 467 (playground);

Espinoza v. Mont. Dep't of Revenue, 591 U.S. 464, 478

(“The Free Exercise Clause protects against even

indirect coercion, and a State punishes the free

exercise of religion by disqualifying the religious

from government aid as Montana did here.”) (cleaned

up).

In this case, the plaintiffs have argued that the

school board’s inclusion of stories in the district’s

curriculum that portray gay, transgender, and nonbinary characters without notice that those stories

would be included and an opportunity to opt out

11

violated their free exercise rights. Mahmoud, 102

F.4th at 201. The court considered the parents’

argument that “exposure” to the stories constituted

sufficient coercion and acknowledged this Court’s

precedent that the Free Exercise Clause “protects

against indirect coercion or penalties on the free

exercise of religion.” Id. at 204 (citing Lyng v. Nw.

Indian Cemetery Protective Ass'n, 485 U.S. 439, 450

(1988)). The court held that at the preliminary

injunction stage, the plaintiffs did not show coercion

that would give them a likelihood of success on the

merits on their free exercise claim. Mahmoud, 102

F.4th at 216. The question of what constitutes

“coercion” as part of a free exercise claim can be the

lynchpin of that claim.

In Bauchman v. West High School, a Jewish

high school student participated in a school choir and

objected that it performed Christian devotional music.

Bauchman v. West High Sch., 132 F.3d 542, 546 (10th

Cir. 1997). The choir teacher allowed her to opt out of

the Christian songs and assured her that her grade

would not be affected by her limited participation. Id.

at 557. The court held that the school did not coerce

her to violate her religious beliefs. Id. at 558. In

California Parents for the Equalization of Educational

Materials v. Torlakson, the Ninth Circuit found no

coercion under the Free Exercise Clause because

plaintiffs, who alleged students were being graded on

their ability to affirm material they found offensive

about their religion, did not allege “specific religious

conduct that was affected by the Defendants’ actions.”

973 F.3d at 1019 (emphasis added) (quoting district

court decision with approval).

12

CAPEEM submits that when students are

tested on material relating to their religion that is

part of the school curriculum, and their grades are

determined by how well they demonstrate their

understanding of that material, they are being coerced

to conform to the school’s portrayal of their religion. In

particular, the standard for what constitutes coercion

should be a low bar when it comes to teaching about

religion. For example, if schools tested students on

material about how Jews believe Moses was a prophet

who was given the Ten Commandments from God,

written on stone tablets, and that later, the Roman

emperor Constantine “created” Christianity, without

mentioning that Christians believe Jesus was the son

of God, that should constitute coercion of Christians

that would support a free exercise claim. One court

has erroneously held that requiring students to learn

their school’s secularized portrayal of their religion as

“truth” on which they are tested means nothing more

than students finding it offensive. See Torlakson, 973

F.3d at 1020 (“Offensive [curriculum] content that

does not penalize, interfere with, or otherwise burden

religious exercise does not violate Free Exercise

rights.”). It is coercion to require students to adopt

that portrayal under penalty of lower grades.

CAPEEM further submits that schools be given

greater latitude when teaching on subjects other than

religion, such as teaching the theory of evolution as

part of biology class (as opposed to during a class on

world religions). When teaching an array of stories or

literature designed to expose students to ideas or

experiences that are not taught in the context of

religion, there is little or no coercion by the school.

13

CONCLUSION

This case provides an important opportunity for

the Court to clarify the law for free exercise challenges

to school curricula. The four-part test proposed by

CAPEEM gives students, parents, school boards, and

lower courts with the guidance they need to protect

the free exercise rights we cherish as a country.

CAPEEM urges the Court to consider adopting the

test proposed in this brief.

Respectfully submitted,

GLENN KATON

MIRADOR LAW

6601 Owens Drive, Suite 238

Pleasanton, CA 94588

(925) 460-8484

glenn@miradorlaw.com

Counsel for Amicus Curiae

March 10, 2025

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