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 THE CENTER FOR AMERICAN

LIBERTY AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

Mark Trammell

Josh Dixon

Eric Sell

Center For A merican

Liberty

1311 South Main Street,

Suite 207

Mount Airy, MD 21771

Dale Schowengerdt

Counsel of Record

Timothy Longfield

Landmark Law PLLC

7 West 6th Avenue,

Suite 518

Helena, MT 59601

(406) 438-2163

dale@landmarklawpllc.com

Attorneys for Amicus Curiae

Center for American Liberty

March 10, 2025

131062

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

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

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

INTERESTS OF AMICUS CURIAE . . . . . . . . . . . . . . 1

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

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I.

Gender identity curriculum aims to root

out religious understandings of gender

and sexuality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

II. MCPS’s gender identity instr uction

evokes ea rlier attempts to root out

disfavored beliefs through the school

system, attempts this Court has rejected . . . . . 11

III. In loco parentis does not give public schools

the authority to indoctrinate children

about gender and sexuality . . . . . . . . . . . . . . . . . 15

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

ii

TABLE OF CITED AUTHORITIES

Page

Cases

Antonucci v. Winter,

No. 2:24-CV-783,

2025 WL 569928 (D. Vt. Feb. 20, 2025),

appeal filed (1st Cir. Mar. 4, 2025) . . . . . . . . . . . . . . . 1

B.W. v. Austin Indep. Sch. Dist.,

121 F.4th 1066 (5th Cir. 2024),

petition for certiorari docketed

No 24-871 (Feb. 10, 2025) . . . . . . . . . . . . . . . . . . . . . . . 1

Bartels v. Iowa,

262 U.S. 404 (1923) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Blau v. Fort Thomas Pub. Sch. Dist.,

401 F.3d 381 (6th Cir. 2005) . . . . . . . . . . . . . . . . . . . . 16

Brewer v. Williams,

430 U.S. 387 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Brookhart v. Janis,

384 U.S. 1 (1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Brown v. Hot, Sexy & Safer Prods., Inc.,

68 F.3d 525 (1st Cir. 1995) . . . . . . . . . . . . . . . . . . . . . 16

California Parents for the Equalization

of Educ. Materials v. Torlakson,

973 F.3d 1010 (9th Cir. 2020) . . . . . . . . . . . . . . . . . . . 17

iii

Cited Authorities

Page

Crowley v. McKinnery,

400 F.3d 965 (7th Cir. 2005) . . . . . . . . . . . . . . . . . . . . 16

Dobbs v. Jackson Women’s Health Org.,

597 U.S. 215 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Doe v. Delaware Valley Reg’l High Sch. Bd. of Educ.,

2024 WL 5006711 (D. N. J. Nov. 27, 2024) . . . . . . . . 10

Doe v. Weiser,

No. 1:24-CV-2185-CNS-SBP,

2025 WL 295015 (D. Colo. Jan. 24, 2025),

appeal docketed No. 25-1037

(10th Cir. Jan. 31, 2025) . . . . . . . . . . . . . . . . . . 1, 10, 11

Edwards v. Aguillard,

482 U.S. 578 (1987) . . . . . . . . . . . . . . . . . . . . . . . . 18, 21

Espinoza v. Mont. Dep’t of Rev.,

591 U.S. 464 (2020) . . . . . . . . . . . . . . . . . . . . . . . . 19, 23

Everson v. Bd. of Educ.,

330 U.S. 1 (1947) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Fields v. Palmdale Sch. Dist.,

427 F.3d 1197 (9th Cir. 2005),

am. on denial of reh’g, 447 F.3d 1187

(9th Cir. 2006) . . . . . . . . . . . . . . . . . . . 16, 17, 18, 21, 23

Foote v. Ludlow Sch. Comm.,

No. 23-1069, — F.4th —,

2025 WL 520578 (1st Cir. Feb. 18, 2025) . . . . . . 10, 16

iv

Cited Authorities

Page

Fulton v. City of Phila.,

593 U.S. 522 (2021) . . . . . . . . . . . . . . . . . . . . . 19, 20, 23

Hazelwood Sch. Dist. v. Kuhlmeier,

484 U.S. 260 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

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

585 U.S. 878 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Jones v. Boulder Valley Sch. Dist. RE-2,

2021 WL 5264188 (Oct. 4, 2021) . . . . . . . . . . . . . . . . 10

Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507 (2022) . . . . . . . . . . . . . . . . . . . . . . . . 18, 19

Lee v. Weisman,

505 U.S. 577 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Littlefield v. Forney Indep. Sch. Dist.,

268 F.3d 275 (5th Cir. 2001) . . . . . . . . . . . . . . . . . . . . 16

M.L.B. v. S.L.J.,

519 U.S. 102 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

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

594 U.S. 180 (2021) . . . . . . . . . . . . . . . . . . 17, 19, 20, 23

Masterpiece Cakeshop v. Colo. Civil Rights Comm’n,

584 U.S. 617 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . 8, 19

v

Cited Authorities

Page

Mayer v. Chi.,

404 U.S. 189 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Meyer v. Nebraska,

262 U.S. 390 (1925) . . . . . . . . . . . . . . . 12, 13, 15, 16, 18

Meyer v. State,

187 N.W. 100 (Neb. 1922) . . . . . . . . . . . . . . . . 12, 13, 21

Minersville School District v. Gobitis,

310 U.S. 586 (1940) . . . . . . . . . . . . . . . . . . . . . . . . 14, 16

Morse v. Frederick,

551 U.S. 393 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Parents for Priv. v. Barr,

949 F.3d 1210 (9th Cir. 2020) . . . . . . . . . . . . . . . . . . . 16

Parham v. J.R.,

442 U.S. 584 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Parker v. Hurley,

514 F.3d 87 (1st Cir. 2008) . . . . . . . . . . . . . . . . . . . . . 16

Pierce v. Society of Sisters,

268 U.S. 510 (1925) . . . . . . . . . . . . . . . . . . 13, 14, 15, 16

Planned Parenthood of Se. Pa. v. Casey,

505 U.S. 833 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

vi

Cited Authorities

Page

Pohl v. State,

132 N.E. 20 (Ohio 1921) . . . . . . . . . . . . . . . . . . . . . . . . 13

Regino v. Staley,

2023 WL 4464845 (E.D. Cal. July 11, 2023),

appeal docketed No. 23-16031

(9th Cir. July 25, 2023) . . . . . . . . . . . . . . . . 1, 10, 11, 16

Santa Fe Indep. Sch. Dist. v. Doe,

503 U.S. 290 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

State v. Bartels,

181 N.W. 508 (Iowa 1921) . . . . . . . . . . . . . . . . . . . . . . 13

Tatel v. Mt. Lebanon Sch. Dist.,

2024 WL 4362459 (W.D. Pa. Sept. 30, 2024) . . . . . . 10

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

319 U.S. 624 (1943) . . . . . . . . . . . . 12, 14, 15, 16, 18, 23

Wallace v. Jaffree,

472 U.S. 38 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Wiemann v. Updegraff,

344 U.S. 183 (1952) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Willey v. Sweetwater Cnty. Sch.

Dist. No. 1. Bd. of Trustees,

680 F. Supp. 3d 1250 (D. Wyo. 2023) . . . . . . . . . . . . . 10

Wisconsin v. Yoder,

406 U.S. 205 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

vii

Cited Authorities

Page

Constitutional Provisions

U.S. Const. amend. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

U.S. Const. amend. XIV . . . . . . . . . . . . . . . . . . . . . . . . . 19

Statutes, Rules and Regulations

Supreme Court Rule 37.6 . . . . . . . . . . . . . . . . . . . . . . . . . 1

Other Authorities

Melanie Hanson, Education Data Initiative,

Average Cost of Private School, available at

https://educationdata.org/average-cost-ofprivate-school (last visited Mar. 10, 2025) . . . . . . . . 22

Gretchen Livingston, Pew Research Center, The

way U.S. teens spend their time is changing,

but differences between boys and girls persist,

(Feb. 20, 2019), available at https://perma.cc/

W9JF-P3ZL (last visited Mar. 5, 2025) . . . . . . . . . . 22

Pew Research Center, How U.S. relig ious

composit ion ha s cha nged i n recent

de c a de s (S ep. 13 , 2 0 2 2), av ai l a bl e a t

https://perma.cc/KAU2-AM5W . . . . . . . . . . . . . . . . 22

William G. Ross, A Judicial Janus: Meyer v.

Nebraska in Historical Perspective, 57 U. Cin. L.

Rev. 125 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

viii

Cited Authorities

Page

William G. Ross, The Role of Religion in the Defeat

of the 1937 Court-Packing Plan, 23 J.L. &

Religion 629 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Katherine Schaeffer, Pew Research Center,

U.S. public, private and charter schools

in 5 charts, (Jun. 6, 2024), available at

https://perma.cc/NDD7-YVMP . . . . . . . . . . . . . . 21, 22

Trans Student Educational Resources, 2015, “The

Gender Unicorn,” available at https://perma.cc/

2ZPN-8P9E (last visited Mar. 7, 2025) . . . . . . . . . . 10

United States Census Bureau, School Enrollment

in the United States: 2021, (Jun. 2023),

available at https://perma.cc/P27T-HY7P

(last visited Mar. 4, 2025) . . . . . . . . . . . . . . . . . . . . . . 21

S. Ernie Walton, Gender Identity Ideology: The

Totalitarian, Unconstitutional Takeover of

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

Rev. 219, 253–283 (2021) . . . . . . . . . . . . . . . 9, 10, 11, 14

1

INTERESTS OF AMICUS CURIAE1

The Center for American Liberty (CAL) is a 501(c)(3)

non-profit law firm dedicated to protecting free speech

and civil liberties. CAL has represented litigants across

the country, including in this Court, in cases seeking to

vindicate individuals’ religious freedom, free speech, and

parental rights, among other things, against oppressive

state action. See, e.g., B.W. v. Austin Indep. Sch. Dist.,

121 F.4th 1066 (5th Cir. 2024), petition for certiorari

docketed No 24-871 (Feb. 10, 2025); Doe v. Weiser, No.

1:24-CV-2185-CNS-SBP, 2025 WL 295015 (D. Colo. Jan.

24, 2025), appeal docketed No. 25-1037 (10th Cir. Jan. 31,

2025); Regino v. Staley, 2023 WL 4464845 (E.D. Cal. July

11, 2023), appeal docketed No. 23-16031 (9th Cir. July 25,

2023); Antonucci v. Winter, No. 2:24-CV-783, 2025 WL

569928, at *1 (D. Vt. Feb. 20, 2025), appeal filed (1st Cir.

Mar. 4, 2025). CAL has an interest in ensuring that courts

apply the correct legal standard in cases involving First

Amendment rights.

SUMMARY OF THE ARGUMENT

Montgomery County Public Schools (MCPS) and many

other schools across the country are actively working to

supplant parents’ traditional views about gender and

sexuality and indoctrinate children in new views preferred

1. No counsel for any party authored this brief in whole

or in part and no entity or person, aside from amicus curiae,

its members, and its counsel, made any monetary contribution

toward the preparation or submission of this brief. Supreme Court

Rule 37.6. Counsel for all parties were notified of amicus curiae’s

intention to file this brief at least 10 days prior to the deadline to

file this brief.

2

by the State. The lower courts’ anemic view of parental

rights and expansive view of in loco parentis gives schools

carte blanche to continue to do so. Affirming would

mean that parents, practically, have no say over their

children’s religious upbringing Monday through Friday

from the first day of kindergarten until they reach the

age of majority. This result flouts precedent, history, and

common sense.

Amicus CAL urges this Court to reverse and hold that

parents have a fundamental right to opt out of ideological

gender identity instruction for their elementary school

children. This brief makes three points.

1. Views about sexuality and gender are fundamental

worldview issues. They go to the core of what it means to

be human. Motivated by hostility toward some religious

views on these existential questions, MCPS’s gender

identity curriculum supplants parents’ values on these

crucial topics and replaces them with the District’s. The

entire point is to “disrupt” disfavored religious beliefs

and replace them with new ones. Why? MCPS thinks

religion—and parents—are teaching the “wrong lessons”

about sex and gender and wants to impart different ones.

2. This 21st-century indoctrination project evokes

earlier attempts to erase disfavored religious beliefs and

identities through the school system. Though prevailing

orthodoxies have changed, the statist tendency to force

preferred views on children hasn’t. But this Court has long

maintained that such attempts, which strike at the heart of

families, also strike at the heart of our constitutional order.

3

3. Points one and two show why in loco parentis cannot

justify MCPS’s no-opt-out policy. In loco parentis is

a limited delegation of parental authority to educate

children. But it does not include the authority to replace

deeply held religious beliefs with state-sanctioned

ones. Such a sweeping view of in loco parentis defies

precedent, history, tradition, precedent, and common

sense. It also ignores the compulsory nature of modern

education, where roughly 90% of American children attend

public school. Unfortunately, this sweeping view of in loco

parentis holds sway in the lower courts. This Court should

right the ship.

ARGUMENT

I.

Gender identity curriculum aims to root out

religious understandings of gender and sexuality.

A. Most everyone agrees that sexuality and gender

are important topics—indeed, they touch the heart of the

“concept of existence . . . and of the mystery of human

life.” Planned Parenthood of Se. Pa. v. Casey, 505 U.S.

833, 851 (1992), overruled by Dobbs v. Jackson Women’s

Health Org., 597 U.S. 215 (2022). Our pluralistic society

is currently engaged in a contentious debate about what

these fundamentally religious topics mean. See Janus v.

Am. Fed. of State, Cnty., and Mun. Emps., 585 U.S. 878,

913–14 (2018) (noting that sexual orientation and gender

identity are “sensitive political topics . . . of profound value

and concern to the public”). Part of that debate centers

on who gets to introduce children to these concepts.

Many religious people believe parents bear the primary

responsibility for teaching children about sexuality and

gender. Others view the State as the primary influence

4

and believe that children should explore these concepts

from an early age. For good or ill, there is little common

ground between these two positions.

MCPS has planted its flag firmly on one side of this

intrinsically religious debate. It requires every student

from kindergarten through fifth grade to undergo gender

identity instruction. And because it believes objecting

parents are teaching the wrong lessons, it bars parents

from opting their children out. The point of MCPS’s

curriculum is to erase traditional religious beliefs about

sexuality and gender.

MCPS has, at times, claimed that gender identity

curriculum is about teaching basic concepts rather than

changing children’s opinions on these core topics. See

Pet. App. 103a (claiming that parents are worried simply

because “a book . . . has an LGBTQ character in it”);

Pet. App. 520a (“There are no planned explicit lessons

related to gender and sexuality[.]”); Pet. App. 640a (“No

child who does not agree with or understand another

student’s gender expression, or their sexual identity is

asked to change how they feel about it.”). The Fourth

Circuit accepted this claim at face value and thought the

curriculum merely exposes children to “other views”

without “exert[ing] pressure to believe or act differently

than one’s religious faith requires.” Pet. App. 35a. But the

facts simply don’t bear this out.

For one thing, the books at issue are candid about their

goals. Consider IntersectionAllies—a book for children

in Kindergarten through 5th grade—which begins with

a foreword by Dr. Kimberlé Crenshaw, a leader in the

critical theory movement. Dr. Crenshaw explains that

5

we normally associate elementary school with “learning

things like numbers and letters, colors and shapes,” but we

“less often consider[] . . . that youth is also an opportunity

for planting the seeds of social conscience.” Id. (emphasis

added). IntersectionAllies, Dr. Crenshaw explains, “is an

invaluable tool” for “bringing about [a] future” where “all

children” are “taught about justice, equity, and solidarity”

along with their ABC’s. App.311a

IntersectionAllies follows Dr. Crenshaw’s foreword

with “A Letter To Grown-Ups” penned by the Chair

of Gender and Sexuality Studies at the University of

Southern California. Pet. App. 312a–313a. The book, this

academic explains, answers a “classic parenting dilemma:

How do we teach children how to treat each other in a

world that promotes all the wrong lessons?” Pet. App. 312a

(emphasis added). The answer to these “wrong lessons”

is “[m]aking room,” a concept that “is stronger than ideas

like ‘respect’ and ‘tolerance’ because it asks for a positive

action from us rather than a minimal response.” Pet. App.

312a. Like brushing one’s teeth, “[m]aking room’ . . . is

something that is necessary to do over and over again

to be healthy.” Pet. App. 312a. It is “something anyone

can learn and everyone needs to learn.” Pet. App. 313a.

(emphasis added).

It’s no mystery what InterSectionAllies thinks are

the “wrong lessons” that prevent the “seeds of social

conscience” from being implanted. Take the story of one

character, Kate:

6

(Pet. App. 322a–323a)

7

The moral of the story is straightforward. Good

friends will affirm Kate’s feelings about and expression

of her gender. Those who disagree are “confused” and are

not “friends.” After all, who would want to deny a friend

“a safe space”?

Lest there be any risk that kindergartners miss the

point, IntersectionAllies ends with “Book Notes” to help

teachers reinforce the not-so-subtle message of the Kate

story. Pet. App. 350a. The lesson? “When we are born, our

gender is often decided for us based on our sex. . . . But at

any point in our lives, we can choose to identify with one

gender, multiple genders, or neither gender.” Pet. App.

350a. This is not simply about kindness, tolerance, or

respect. It is about worldview formation—“planting the

seeds of social conscience” in Dr. Crenshaw’s phrasing.

MCPS’s guidance to teachers reinforces the point.

If a student states a traditional religious view about

sexuality, teachers are encouraged to “[d]isrupt the either/

or thinking by saying something like: actually, people

of any gender can like whoever they like. People are

allowed to like whoever they want. How do you think it

would make (character’s name) feel to hear you say that?

Do you think it’s fair for people to decide for us who we

can and can’t like?” Pet. App. 629a. If a kindergartener

says, “That’s weird. He can’t be a boy if he was born a

girl,” the teacher should characterize this as a “hurtful”

and “negative” way “to talk about peoples’ identities.”

Pet. App. 630a. The teachers’ guide also anticipates that

reading the books at issue will lead preschoolers to ask,

“What’s transgender?” Teachers are urged to answer

that “[w]hen we’re born, people make a guess about our

gender and label us ‘boy’ or ‘girl’ based on our body parts.

8

Sometimes they’re right and sometimes they’re wrong.

When someone’s transgender, they guessed wrong[.]” Pet.

App. 629a (emphasis added). These responses derive from

“sources” such as “Correcting Kids’ Stereotypes,” and

“Responding to Sexism, Homophobia and Transphobia:

Tips for Parents and Educators of Younger Children.”

Pet. App. 635a.

MCPS’s explanation for why it chose these books

confirms the obvious. MCPS looked for books that would

“disrupt[]” “heteronormativity,” “cisnormativity,” and

“power hierarchies that uphold the dominant culture[.]”

Pet. App. 622a.

And when parents pushed back on this curriculum, the

mask came all the way off. At a board meeting, one board

member equated parents’ invocation of their religious

rights, “family values,” and “core beliefs” to “hate.” Pet.

App. 103a. She argued that “saying that a kindergartner

can’t be present when you read a book about a rainbow

unicorn because it offends your religious rights or your

family values is just telling that kid, ‘here’s another

reason to hate another person.’” Pet. App.103a–104a

(emphasis added). Cf. Masterpiece Cakeshop v. Colo. Civil

Rights Comm’n, 584 U.S. 617, 635 (2018) (criticizing state

official’s “inappropriate” characterization of “[f]reedom of

religion” as a justification for “all kinds of discrimination

throughout history, whether it be slavery, whether it be

the holocaust”).

The same Board member implied that these parents’

children may not “feel safe being who they are at home,

or in their other community,” Pet. App. 103a, and

suggested that parents seeking opt-outs were engaging

9

in a “dehumanizing form of erasure,” Pet. App. 187a.

A Montgomery County Council member lamented that

concerns about the books at issue put “some Muslim

families on the same side of an issue as White supremacists

and outright bigots.” Pet. App. 107a.

In short, there’s no question that MCPS believes

parents with traditional beliefs about sexuality and gender

are teaching the wrong lessons. It chose these books to

“disrupt” those religious beliefs and replace them with

controversial ideas grounded in critical gender theory

and intersectionality.

MCPS’s gender identity curriculum is designed to

send a clear message to young children: good people reject

traditional understandings of gender and sexuality. Those

who resist are “confused,” Pet. App. 323a, not “safe,” full

of “hate,” and “are outsiders, not full members of the

political community.” Santa Fe Indep. Sch. Dist. v. Doe,

503 U.S. 290, 309 (2000). All this aims to preempt parents’

inculcation of religious values in their children.

B. MCPS’s curriculum is just one node in a “national

network of” school policies “aimed at coercing” children

to adopt these beliefs. Wiemann v. Updegraff, 344 U.S.

183, 193 (1952) (Black, J., concurring). Like MCPS, schools

across the country are finding creative ways to “disrupt”

the way children think about gender and sexuality. See

generally S. Ernie Walton, Gender Identity Ideology: The

Totalitarian, Unconstitutional Takeover of America’s

Public Schools, 34 Regent U. L. Rev. 219, 253–283 (2021).

Like MCPS, many schools are using books, music,

and children’s characters to introduce young children

10

to gender fluidity, often without notifying parents and

allowing them to opt-out. See, e.g., Tatel v. Mt. Lebanon

Sch. Dist., 2024 WL 4362459 (W.D. Pa. Sept. 30, 2024)

(similar books and topics); Jones v. Boulder Valley Sch.

Dist. RE-2, 2021 WL 5264188 (Oct. 4, 2021) (transgender

choir performance for first graders). Many schools, for

instance, use “tools” like the “Gender Unicorn” and the

“Genderbread Person” to guide young children through

an exploration of their gender identity and sexual

preferences, Walton, Gender Identity Ideology, 34 Regent

U. L. Rev. at 278–79, as shown below:2

Like MCPS, many schools have gone to great lengths to

prevent parents from interfering with these pedagogical

2. Trans Student Educational Resources, 2015, “The Gender

Unicorn,” available at https://perma.cc/2ZPN-8P9E (last visited

Mar. 7, 2025).

11

experiments. See Walton, Gender Identity Ideology, 34

Regent U. L. Rev. at 253–62.

Many schools are also adopting “social transitioning”

policies. See, e.g., Foote v. Ludlow Sch. Comm., No. 231069, — F.4th —, 2025 WL 520578 (1st Cir. Feb. 18,

2025); Doe v. Weiser, No. 1:24-CV-2185-CNS-SBP, 2025

WL 295015 (D. Colo. Jan. 24, 2025), appeal docketed No.

25-1037 (10th Cir. Jan. 31, 2025); Doe v. Delaware Valley

Reg’l High Sch. Bd. of Educ., 2024 WL 5006711 (D. N. J.

Nov. 27, 2024); Regino v. Staley, 2023 WL 4464845 (E.D.

Cal. July 11, 2023), appeal docketed No. 23-16031 (9th Cir.

July 25, 2023); Willey v. Sweetwater Cnty. Sch. Dist. No.

1. Bd. of Trustees, 680 F. Supp. 3d 1250 (D. Wyo. 2023).

Under these policies, school administrators, teachers, and

students are required to accept a student’s assertion of

their gender identity, including the use of new names and

pronouns. See, e.g., Regino, 2023 WL 4464845, at *1–2;

see also Doe, 2025 WL 295015, at *2; Walton, Gender

Identity Ideology, 34 Regent U. L. Rev. at 256–60. But

unless the child expressly consents to parental disclosure

or the school deems parental disclosure “necessary,”

these policies require the school to conceal the social

transition from the child’s parents. See, e.g., Regino, 2023

WL 4464845, at *1–2; see also Doe, 2025 WL 295015, at

*2 (policy prohibiting parental disclosure unless “legally

required”).

This Court has long recognized the “heightened

concerns with protecting freedom of conscience from

subtle coercive pressure in the elementary and secondary

public schools.” Lee, 505 U.S. at 592. But “coercive

pressure” is not just a “subtle” byproduct of gender

identity curriculum—it is the point. That’s why it starts

12

young. That’s why MCPS’s “educational mission” can

brook no opt-outs. And that’s why MCPS’s latent hostility

toward traditional religious beliefs turned overt when

parents pushed back on the policy. While the Fourth

Circuit questioned whether anything beyond “mere

exposure” took place, Pet. App. 39a, the record is clear:

eradicating traditional views is “the very point.” Lee, 505

U.S. at 593. Whatever one thinks about these efforts,

parents should be able to opt their children out.

II. MCPS’s gender identity instruction evokes earlier

attempts to root out disfavored beliefs through the

school system, attempts this Court has rejected.

Like MCPS, States have often used early childhood

education “to coerce uniformity of sentiment in support

of some end thought essential to their time and country,”

W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 640

(1943), often at a high cost to religious communities with

dissenting views. But this Court has long made clear that

such attempts have no place in our constitutional order.

In the wake of World War I, a surge of ethnocentrism

swept the nation, sparking “a spate of legislation to

restrict the teaching of foreign languages”—especially

German—to schoolchildren. William G. Ross, A Judicial

Janus: Meyer v. Nebraska in Historical Perspective,

57 U. Cin. L. Rev. 125, 126 (1988). These laws sought to

dismantle the distinctive German-American culture and

replace it with a patriotic, homogenized monoculture. Id.

at 130–34. Nebraska, for instance, derided German as a

“mental poison” that prevented the “sunshine of American

ideals” from “permeat[ing] the life of the future citizens

of this republic.” Id. at 177 (cleaned up).

13

Like MCPS’s policy, this legislative effort came with

a steep religious cost. Many German Americans didn’t

know enough English to “give their children religious

instruction in the English as well as in the German.”

Meyer v. State, 187 N.W. 100, 101 (Neb. 1922) rev’d sub

nom. Meyer v. Nebraska, 262 U.S. 390 (1925). For these

families, teaching their children the German language

was not merely political. Rather, it was necessary so

children “could be able to worship with their parents”

and “to keep the parents and children in a religious way

in contact with each other and not diminish the influence

of the parents in the home.” Ibid.

State supreme courts brushed these concerns aside.

They told parents that if they wanted to read the Bible to

their children, then they could learn English. See id. at

101–02 (arguing that “religious teaching could, manifestly,

be as fully and adequately done in the English as in the

German language”); see also State v. Bartels, 181 N.W.

508, 514 (Iowa 1921), rev’d sub nom. Bartels v. Iowa, 262

U.S. 404 (1923). Believing that “permitting foreigners

. . . to rear and educate their children in the language of

their native land” would “naturally inculcate in them the

ideas and sentiments . . . foreign to the best interests of

this country,” state courts upheld these laws. Meyer, 187

N.W. at 101; Bartels, 181 N.W. 508; Pohl v. State, 132 N.E.

20 (Ohio 1921), rev’d by Bartels, 262 U.S. 404.

But in Meyer, this Court rejected this reasoning in a

landmark decision. It affirmed the “right” and “natural

duty of the parent to give his children education suitable

to their station in life.” 262 U.S. at 400. That right, this

Court held, extended to choosing how children should be

educated, even in German. Id. at 401. Meyer famously

14

rejected using the schools—as the Spartans and Plato

envisioned—“to submerge the individual and develop

ideal citizens.” Id. at 401–02. The State’s desire to “foster

a homogenous people with American ideals” did not justify

disrupting the fundamental liberty of parents to direct

their children’s upbringing. Id. at 402.

Two years later, in Pierce v. Society of Sisters, this

Court held unconstitutional an Oregon law compelling all

children from eight to sixteen to attend public schools.

268 U.S. 510, 534–535 (1925). Like the anti-German laws

in Meyer, Oregon’s law was enacted during a nativist

paroxysm; it was intended to prevent Roman Catholic

children from attending Catholic School. See William G.

Ross, The Role of Religion in the Defeat of the 1937 CourtPacking Plan, 23 J.L. & Religion 629, 636 (2008); S. Ernie

Walton, 34 Reg. Univ. L. Rev. at 264. Pierce reaffirmed

that the “child is not the mere creature of the State,” and

that Oregon’s law could not stand under “the doctrine of

Meyer” because it “interfere[d] with the liberty of parents

. . . to direct the upbringing and education of children

under their control.” Id. at 534–35.

The same principles animated this Court’s seminal

decision in Barnette. 319 U.S. at 641–42. There, the Court

confronted a West Virginia statute that required all

schools to orient instruction “for the purpose of teaching,

fostering, and perpetuating the ideals, principles and

spirit of Americanism.” Id. at 625. Part of this program

required students to salute the American flag. Id. at 625,

628–29. Here again, the State’s attempt to “standardize”

children came at the expense of those with religious

beliefs—this time, Jehovah’s Witnesses. Id. at 629–30;

see also Wisconsin v. Yoder, 406 U.S. 205, 244 (1972)

15

(Douglas, J., dissenting in part) (opining that the “chief

vice of [West Virginia’s] regime was its interference with

the child’s free exercise of religion”).

In enjoining the law—and reversing Minersville

School District v. Gobitis, 310 U.S. 586 (1940)—this

Court contrasted the American system with totalitarian

attempts to eradicate disfavored religious beliefs—

from the Roman Empire’s attempt to snuff out nascent

Christianity; to the Inquisition’s persecution of Jews,

Muslims and Protestants; to the then-contemporary

examples of Nazi and Communist governments. History,

Barnette explained, shows that “[t]hose who begin coercive

elimination of dissent soon find themselves exterminating

dissenters.” Barnette, 319 U.S. at 641. And “no deeper

division could proceed from any provocation than from

finding it necessary to choose what doctrine and whose

program public educational officials shall compel youth to

unite in embracing.” Ibid.

Meyer, Pierce, and Barnette make clear that State

attempts to enforce preferred views through schools have

no place in the American system. This is true especially

for topics like gender and sexuality, “things that touch

the heart of the existing order.” Barnette, 319 U.S. at 642.

Later precedents confirm this core teaching. Yoder, 406

U.S. at 231–234; see also Wallace v. Jaffree, 472 U.S. 38,

50–52 (1985).

T hough preva i l i ng or t hodox ie s cha nge , t he

government’s desire to enforce those orthodoxies through

the public school system has proven evergreen. But just

as the States may not use the coercive power of schools to

root out German identity or steamroll Jehovah’s Witnesses

16

in the name of American patriotism, they may not root

out traditional views of gender and sexuality in the name

of Diversity, Equity, and Inclusion. In our constitutional

order, “no official”—not even a public-school teacher—

“can prescribe what shall be orthodox.” Barnette, 319

U.S. at 642.

III. In loco parentis does not give public schools the

authority to indoctrinate children about gender

and sexuality.

Like the Fourth Circuit below, the lower courts

have been loath to vindicate parental rights in the public

schools. They have consistently—and incorrectly—framed

cases like this as parents attempting to “create a preferred

educational experience for their child in public school,”

rather than public schools attempting to indoctrinate

children. Foote, 2025 WL 520578, at *16; see also Parents

for Priv. v. Barr, 949 F.3d 1210, 1229–33 (9th Cir.

2020); Parker v. Hurley, 514 F.3d 87, 101 (1st Cir. 2008);

Crowley v. McKinnery, 400 F.3d 965, 971 (7th Cir. 2005);

Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 291

(5th Cir. 2001); Brown v. Hot, Sexy & Safer Prods., Inc.,

68 F.3d 525, 534 (1st Cir. 1995) (“Meyer and Pierce do not

encompass [the] broad-based right to restrict the flow of

information in public schools.”).

Echoing Gobitis’s concern over making federal

courts “the school board for the country,” 310 U.S. at

598, overruled by Barnette, 319 U.S. 624, courts have

given public schools free rein over and against parents’

objections, see, e.g., Brown, 68 F.3d at 529, 533–34 (no

parental right to notice and opt-out of assembly where

adult performer “had a male minor lick an oversized

17

condom with her”); Parents for Priv., 949 F.3d at 1229–33

(no parental right to protect children from changing and

showering in front of students of the opposite biological

sex in high school facilities); Regino, 2023 WL 4464845 (no

parental right to stop schools from socially transitioning

students without parental notice or consent).

The theme of these decisions is a sweeping view of

in loco parentis. By sending children to public school,

the lower courts reason, parents impliedly waive their

fundamental right to control their children’s education;

thus, school instruction on sex, gender, and other

existential topics can never burden parents’ rights. See

Blau v. Fort Thomas Pub. Sch. Dist., 401 F.3d 381, 395–96

(6th Cir. 2005); Fields v. Palmdale Sch. Dist., 427 F.3d

1197 (9th Cir. 2005), am. on denial of reh’g, 447 F.3d 1187

(9th Cir. 2006).

The Ninth Circuit’s Fields decision epitomizes this

line of reasoning: “Parents have a right to inform their

children when and as they wish on the subject of sex;

they have no constitutional right, however, to prevent a

public school from providing its students with whatever

information it wishes to provide, sexual or otherwise,

when and as the school determines that it is appropriate

to do so.” 427 F.3d at 1206 (internal quotation marks

omitted; emphasis added). In other words, parental rights

do “not extend beyond the threshold of the school door.”

Id. at 1207. 3

3. In Fields, the Ninth Circuit deleted this sentence from

its opinion in response to a petition for rehearing “to make [its]

holding more precise,” 447 F.3d at 1187, but at least one subsequent

Ninth Circuit decision has cited this sentence as binding, see, e.g.,

California Parents for the Equalization of Educ. Materials v.

Torlakson, 973 F.3d 1010, 1020 (9th Cir. 2020).

18

Of course, parents entrust public schools with some

control over what their children see, hear, and say. See,

e.g., Mahanoy Area Sch. Dist. v. B.L., 594 U.S. 180,

196–98 (2021) (Alito, J., concurring); Hazelwood Sch.

Dist. v. Kuhlmeier, 484 U.S. 260, 279 (1988) (Brennan,

J., dissenting) (“The young polemic who stands on a

soapbox during calculus class to deliver an eloquent

political diatribe interferes with the legitimate teaching of

calculus.”). But by sending their children to public school,

do parents really waive all their fundamental rights,

including the right to decide when, how, and what children

learn about gender and sexuality? Precedent, history,

and the compulsory nature of modern public education

all compel that the answer must be no.

First, precedent. This Court has long recognized

the coercive power the State wields in public schools and

rejected attempts to catechize children in state-approved

orthodoxies. See Barnette, 319 U.S. at 641–42; Meyer, 262

U.S. at 400–02. These cases reveal that parents’ rights

do, in fact, extend beyond the schoolhouse door despite

Fields’ suggestion otherwise.

And while this Court has recognized a State’s “power

to prescribe a curriculum” for public schools, Meyer, 262

U.S. at 402, it has never approved the use of that power

to root out disfavored religious beliefs. Parents “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). Even if the lower courts have cabined

this principle to the Establishment Clause context, the

Free Exercise Clause and Establishment Clause “appear

19

in the same sentence of the same Amendment,” and “have

complementary purposes, not warring ones[.]” Kennedy

v. Bremerton Sch. Dist., 597 U.S. 507, 533 (2022) (citation

and quotation marks omitted). Parents do not consent

to religious indoctrination by sending children to public

school; neither do they consent to putatively non-religious

indoctrination intended to deconstruct their family’s

religious beliefs. “State power is no more to be used so as

to handicap religions than it is to favor them.” Everson v.

Bd. of Educ., 330 U.S. 1, 18 (1947).

MCPS’s hostility toward religious beliefs further

confirms that it is attempting a form of indoctrination

that has no place in our pluralistic constitutional order.

Compare Masterpiece Cakeshop, 584 U.S. at 635 with Pet.

App.103a–104a, 187a (calling parents’ invocation of their

rights “hate” and a “dehumanizing form of erasure”). The

“denigration of those who continue to adhere to traditional

moral standards . . . as outmoded at best and bigoted at

worst” has no place in our constitutional order. Espinoza

v. Mont. Dep’t of Rev., 591 U.S. 464, 496 (2020) (Thomas,

J., concurring).

Second, history. W hen interpreting the First

A mend ment , a ny “ l i ne that cou r t s must d raw ”

should “accord with history and faithfully reflect the

understanding of the Founding Fathers.” Kennedy, 597

U.S. at 535–36 (cleaned up). Allowing schools to deny any

religious exemptions from instruction that touches upon

topics like sexuality and gender is incongruous with our

Nation’s history of religious tolerance.

Of course, there are no Founding-era examples

of exemptions from compulsory public school in the

20

public-school context because widespread compulsory

public education did not exist at the time. Mahanoy, 594

U.S. at 216 (Thomas, J., dissenting) (noting that when

the Fourteenth Amendment was ratified, only three

jurisdictions had compulsory education laws).

But the right to religious exemptions, even from

critical State functions, is deeply rooted in our Nation’s

history. See Fulton v. City of Phila., 593 U.S. 522,

582–83 (2021) (Alito, J., concurring). For instance,

the Colonies and States granted religious exemptions

from critical public duties like swearing an oath before

entering public office, testifying in court, and voting. Id.

at 583. Colonies and States allowed religious objectors

to opt out of militia service, even though the “militia

was regarded as essential to the security of the State

and the preservation of freedom.” Id. at 583. And the

Continental Congress granted religious exemptions from

military conscription during the Revolutionary War. Id.

at 583–84. Public school is, doubtless, important. But it

seems unlikely that the founding generation would have

granted religious exemptions to military-aged males

during the Revolutionary War—when “the very survival

of the new Nation often seemed in danger”—but not to

school children from instruction that is inherently imbued

with religious overtones. Id. at 583–84.

Also, Blackstone treated in loco parentis “primarily

as an implied term in a private employment agreement”

in which parents would delegate their exclusive authority

over children’s education to educators. Mahanoy, 594 U.S.

at 198–99 (Alito, J., concurring). But petitioners, like many

MCPS parents, didn’t contract with the school board to

“disrupt heteronormativity” in their elementary schoolers.

21

MCPS made its volte-face on parental opt-outs precisely

because it knew that parents didn’t approve of the

instruction and viewed these concerns as an impediment

to its “educational mission.” Pet. App. 16a. This is a far

cry from Blackstone’s England. See Mahanoy, 594 U.S.

at 198–200 (Alito, J., concurring).

The gender identity indoctrination efforts of MCPS,

and many other schools, also invert the Constitution’s

presumptions about parental fitness and affection—that

the “natural bonds of affection lead parents to act in

the best interests of their children.” Parham v. J.R.,

442 U.S. 584, 602 (1979) (emphasis added). MCPS’s

gender identity curriculum, by contrast, presumes that

parents are teaching the wrong lessons at home. When

the State’s purpose is to “fix” what parents are teaching

about sexuality and gender—what the State calls “hate”

and “erasure”—this runs afoul of the constitutional

presumption that parents act in the best interests of their

children.

Third, the lower courts’ expansive application of in

loco parentis fails to consider the compulsory nature of

modern public education. The most recent data suggest

that between 80% and 90% of American children attend

public school.4 It cannot be that eight or nine out of ten

Americans lose their fundamental right to direct their

children’s religious upbringing five days a week from the

child’s first day of kindergarten until they reach the age

of majority.

4. https://perma.cc/NDD7-YVMP (last visited Mar. 4, 2025);

see also United States Census Bureau, School Enrollment in the

United States: 2021, (Jun. 2023), available at https://perma.cc/

P27T-HY7P (last visited Mar. 4, 2025).

22

The lower courts have often responded to parental

concerns by telling parents that if they don’t like what the

school is teaching, they have two options: (1) keep children

in public school and teach different views at home or (2)

send children to private school. See Pet. App. 35a; Fields,

427 F.3d at 1205–06; Cf. Meyer, 187 N.W. at 101–02.

But parents’ ability to counteract school indoctrination

is limited. Schools wield a unique power to coerce due to

“students’ emulation of teachers as role models and the

children’s susceptibility to peer pressure.” Edwards, 482

U.S. at 584. This is particularly true today, considering

the significant amount of time students spend at school and

school-related tasks and events.5 Societal trends also make

parents’ jobs more challenging: With each generation,

cultural forces make it more difficult to pass on religious

beliefs and easier to pass on nonreligious ones.6

Nor is private school a realistic option for many

families. According to one recent report, the average

private elementary school costs $9,210 per year.7 For many,

public school is thus the only realistic financial choice. See

5. Gretchen Livingston, Pew Research Center, The way U.S.

teens spend their time is changing, but differences between boys

and girls persist, (Feb. 20, 2019), available at https://perma.cc/

W9JF-P3ZL (last visited Mar. 5, 2025).

6. Pew Research Center, How U.S. religious composition

has changed in recent decades (Sep. 13, 2022), (describing the

increasing “stickiness” of nonreligion and decreasing “stickiness”

of religion), available at https://perma.cc/KAU2-AM5W

7. Melanie Hanson, Education Data Initiative, Average Cost

of Private School, available at https://educationdata.org/averagecost-of-private-school (last visited Mar. 10, 2025).

23

Morse v. Frederick, 551 U.S. 393, 424 (2007) (Alito, J.,

concurring). And even for parents of means, private school

availability varies greatly from state to state, and rural

communities have far fewer private schools than urban and

suburban ones. 8 Parents’ fundamental rights over their

children’s religious upbringing shouldn’t hinge on their

ability to pay or their zip code. See, e.g., M.L.B. v. S.L.J.,

519 U.S. 102 (1996); Mayer v. Chi., 404 U.S. 189 (1971).

Putting parents “to the choice” of losing their ability to

direct their children’s religious upbringing or paying for

private school is antithetical to this Court’s Free Exercise

precedents. Fulton, 593 U.S. at 532.

Treating most Americans’ decision to send their

children to public school as an implicit waiver of their

parental rights also doesn’t track how constitutional

waiver normally works. There is generally a “presumption

against waiver of constitutional rights” that is overcome

only when the State shows a waiver is knowing and

voluntary. Brookhart v. Janis, 384 U.S. 1, 4 (1966) (cleaned

up); Brewer v. Williams, 430 U.S. 387, 412 (1977) (Powell,

J., concurring) (“It is settled law that an inferred waiver of

a constitutional right is disfavored.”). But the lower courts

have decided that parents who send their children to public

school have implicitly waived their fundamental right to

direct their children’s upbringing—even over parents’

explicit objections—despite the fact many parents don’t

have a real alternative. See, e.g., Fields, 427 F.3d at 1206–

07. Perhaps the lower courts think religious constitutional

rights may be waived more easily than others, but Free

8. Katherine Schaeffer, Pew Research Center, U.S. public,

private and charter schools in 5 charts, (Jun. 6, 2024), available

at https://perma.cc/NDD7-YVMP

24

Exercise freedoms should not be placed “on the lowest

rung of the Court’s ladder of rights.” Espinoza, 591 U.S.

at 496–97 (Thomas, J., concurring).

Finally, courts shouldn’t allow “modest estimates

of [their] own competence in such specialties as public

education” to cause them to shirk their duty to step in

“when liberty is infringed.” Barnette, 319 U.S. at 640. And

the limited scope of relief requested by the petitioners

here should assuage concerns about entangling federal

courts in the minutiae of public-school affairs. If the basis

for public schools’ authority over children is inferred

parental consent, see Mahanoy, 594 U.S. at 196–98 (Alito,

J., concurring), parents should have a chance to make that

consent explicit—especially when the school introduces a

program to systematically change pre- and elementaryschoolers’ ways of thinking about controversial religious

topics. That’s all petitioners seek here.

25

CONCLUSION

The Court should reverse.

Respectfully submitted,

Mark Trammell

Josh Dixon

Eric Sell

Center For A merican

Liberty

1311 South Main Street,

Suite 207

Mount Airy, MD 21771

Dale Schowengerdt

Counsel of Record

Timothy Longfield

Landmark Law PLLC

7 West 6th Avenue,

Suite 518

Helena, MT 59601

(406) 438-2163

dale@landmarklawpllc.com

Attorneys for Amicus Curiae

Center for American Liberty

March 10, 2025