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

TAHMER MAHMOUD, ET AL.,

Petitioners,

THOMAS W. TAYLOR, ET AL.,

Respondents.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR PARENTS DEFENDING

EDUCATION AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

J. Michael Connolly

Counsel of Record

James F. Hasson

CONSOVOY MCCARTHY PLLC

1600 Wilson Blvd., Ste. 700

Arlington, VA 22209

(703) 243-9423

mike@consovoymccarthy.com

March 10, 2025

Attorneys for Amicus Curiae

TABLE OF CONTENTS

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

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

Summary of Argument................................................2

Argument .....................................................................4

Parental rights are at their apex in

matters of conscience and religious belief. ....4

II. Parental exclusion policies substantially

burden parental rights. ..................................7

A. Parental exclusion policies harm

parents and children alike. ......................9

B. Enrolling children in public

education is a “virtual necessity” for

many parents. ........................................17

Conclusion .................................................................20

TABLE OF CITED AUTHORITIES

Cases

Edwards v. Aguillard,

482 U.S. 578 (1987) ............................................... 15

Gruenke v. Seip,

225 F.3d 290 (3d Cir. 2000) .................................... 6

Guerrieri v. Tyson,

24 A.2d 468 (Pa. Super. 1942) ................................ 7

Hailey v. Brooks,

191 S.W. 781 (Tex. Civ. App. 1916) ........................ 7

Hardy v. James,

5 Ky. Op. 36, 1872 WL 10621 (1872) ...................... 7

Morse v. Frederick,

551 U.S. 393 (2007) ....................................... 5, 6, 17

Parham v. J.R.,

442 U.S. 584 (1979) ................................................. 1

Pierce v. Society of Sisters,

268 U.S. 510 (1925) ................................................. 4

S.E. v. Grey,

3:24-cv-01611, ECF 1 (S.D. Cal. 2024) ........... 11-13

State ex rel. Bowe v. Bd. of Educ. of

City of Fond du Lac,

23 N.W. 102 (Wis. 1885) ......................................... 7

State v. Ferguson,

144 N.W. 1039 (Neb. 1914) ..................................... 7

Tatel v. Mt. Lebanon Sch. Dist.,

637 F. Supp. 3d 295 (W.D. Pa. 2022).............. 10, 11

iii

Troxel v. Granville,

530 U.S. 57 (2000) ................................................... 2

Vanvactor v. State,

15 N.E. 341 (Ind. 1888) ........................................... 7

Wisconsin v. Yoder,

406 U.S. 205 (1972) ....................................... 4, 5, 14

Wooley v. Maynard,

430 U.S. 705 (1977) ....................................... 4, 9, 20

Statutes

Md. Code Educ. § 7-101(a) ........................................ 18

Md. Code Educ. § 7-301(a-1)(1) ................................. 18

Md. Code Educ. § 7-301(a)(3) .................................... 18

Md. Code Educ. § 7-301(e)(2) .................................... 18

Rules

Sup. Ct. R. 37.6 ............................................................ 1

Other Authorities

1 Blackstone ............................................................ 1, 6

2 J. Kent, Commentaries on American Law 203

(1827) ....................................................................... 1

A. Jones & E. Kao, The Equality Act’s Impact

on School Curriculum and Parental Rights,

Heritage Foundation (May 15, 2019),

perma.cc/A2KL-VD2H .......................................... 13

A. Sanders, et al., LGBTQ+ Literature in the

Elementary and Secondary Classroom as

Windows and Mirrors for Young Readers

(IGI Global 2020)................................................... 13

Bd. of Educ. of Montgomery Cnty., Policy

JEE-RA, Student Transfers,

perma.cc/4FA8-JMGV ........................................... 18

Black’s Law Dictionary (11th ed. 2019) ...................... 6

Brief of Appellant, Parents Defending Educ.

v. Linn-Mar Comm. Sch. Dist., No. 22-2927

(8th Cir. Nov. 4, 2022)........................................... 16

D. St. George, Gender Transitions at School Spur

Debate Over When, or if, Parents Are Told,

Washington Post (July 18, 2022),

perma.cc/EZ2K-D4NS ........................................... 17

Human Rights Campaign Foundation, Born Ready:

The True Story of a Boy Named Penelope,

perma.cc/34SL-3KUZ ............................................ 10

Human Rights Campaign Foundation, I Am Jazz:

Transgender Topics in Elementary School,

perma.cc/Q9DF-LC2D ....................................... 9, 10

K. Ingraham, How Replacing Biological Sex

with Gender Identity Harms Children,

Discovery Institute (Mar. 23, 2022),

perma.cc/8MJW-HM9L ......................................... 14

Lee & Low Books, Teacher’s Guide: When Aidan

Became a Brother, bit.ly/4brodZi .................... 10, 11

M. Frost, Boost Scholarship Program Sees.

‘Extreme Demand’; Funds Uncertain for

New Applicants (Aug. 21, 2023),

perma.cc/P84E-EH5W .......................................... 18

M. C. Lytle & R.A. Sprott, Supporting Gender

Identity and Sexual Orientation Diversity in

K–12 Schools (Am. Psych. Assoc. 2021) ......... 13, 15

Transgender Reveal in Kindergarten Class Leaves

Parents Feeling ‘Betrayed,’ CBS News

(Aug. 22, 2017), perma.cc/TLN8-VU4J ................ 10

INTEREST OF AMICUS CURIAE*

Parents Defending Education is a national, nonprofit, grassroots association. Its members include

many parents with school-aged children. Launched in

2021, it uses advocacy, disclosure, and litigation to

combat the increasing politicization and indoctrination of K-12 education.

The bond between parent and child is “the most

universal relationship in nature.” 1 Blackstone 446.

Accordingly, the common law “recognized that natural

bonds of affection lead parents to act in the best interests of their children.” Parham v. J.R., 442 U.S. 584,

603 (1979). The law also recognized that from this

same “impulse of nature” flowed a “natural duty” for

parents to provide for their children. Of those parental

responsibilities, the “duty of giving [their children] an

education” was “of far the greatest importance of any.”

1 Blackstone 448-49. Moreover, “[a]s [parents] are

bound to maintain and educate their children, the law

has given them a right to such authority.” 2 J. Kent,

Commentaries on American Law 203 (1827). PDE exists to defend that right.

PDE has a significant interest in eliminating policies that strip parents of their right to remove their

children from lessons about sexuality and gender

identity that conflict with their deeply held religious

* Under Rule 37.6, no counsel for a party authored this brief

in whole or in part, and no person other than amicus curiae, its

members, or its counsel made a monetary contribution to the

preparation or submission of this brief.

beliefs. Montgomery County’s policy is not an aberration. Other school districts across the country have

adopted similar parental exclusion policies in recent

years, threatening to splinter the “national consensus

respecting parental control over instruction on gender

and sexuality.” Pet.Br.6. Like this Court, PDE believes that children are best served when their parents control their upbringing. E.g., Troxel v. Granville,

530 U.S. 57, 65-66 (2000) (collecting cases). Affirming

the Fourth Circuit’s decision would render that principle a hollow promise where education is concerned

and strip parents of their right to direct their children’s development on the most sensitive, sacred—

and increasingly fraught—aspects of the parent-child

relationship.

SUMMARY OF ARGUMENT

Respondents here—the Montgomery County

Board of Education and its officials (the “Board”)—

frame this case as a garden-variety disagreement

about classroom content and maintain that the questions it presents have been asked and answered already. See Pet.App.117a. The Board claims that Petitioners’ parental rights are not burdened—or even implicated—by its decision to teach gender identity theory to their young children over their objections. The

Board offers a variety of reasons for this assertion, but

none are convincing.

Parental rights are strongest in matters involving

the religious education of children. See infra I. And

despite the Board’s best efforts, the record plainly

demonstrates that the school district’s new instruction about sexuality and gender identity not only conflicts with the religious instruction Petitioners provide to their children but actively contradicts that instruction as well.

Its vigorous defense of its new curriculum notwithstanding, the Board’s primary argument appears to be

that Petitioners’ concerns about the sex and gender

identity-themed storybooks are overblown. It suggests

that Petitioners’ young children cannot be harmed by

mere “expos[ure] to different ideas” and that such exposure does not interfere with parents’ religious instruction of their children. As explained below, see infra II.A, the Board’s new lessons on “gender identity

diversity and sexual identity diversity” are not

unique: similar or identical storybooks—in some

cases, accompanied by lesson plans that match the

Board’s lessons almost verbatim—have popped up in

school districts across the country in recent years. The

impact of the Board’s policy has been field-tested in

classrooms around the nation, with observable results. And the evidence reveals a clear pattern of confusion, anxiety, and fear expressed by the students involved, and religious students in particular.

The Board’s fallback positions fare little better.

The school district asserts that parents categorically

have no right to object to materials that “professional

educators” choose “to include … in the curriculum,”

Pet.App.643a, and that parents surrender all rights

by enrolling their children in school regardless. But no

decision of this Court has ever said that, and the

Court’s parental-rights decisions conclusively point in

the opposite direction. Moreover, the Board cannot

implicitly or explicitly condition waivers of fundamental rights on actions, like sending one’s kids to public

school, that are “a virtual necessity” of life in society.

Wooley v. Maynard, 430 U.S. 705, 715 (1977); see infra

II.B.

Affirming the Fourth Circuit’s decision will strip

millions of parents of the right to control their children’s education on sensitive issues that involve their

religious beliefs and implicate the core of the parentchild relationship. This Court should reverse.

ARGUMENT

I. Parental rights are at their apex in matters

of conscience and religious belief.

A century ago, this Court recognized that “[t]he

child is not the mere creature of the State; those who

nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him

for additional obligations.” Pierce v. Society of Sisters,

268 U.S. 510, 535 (1925). “The Court’s holding in

Pierce stands as a charter of the rights of parents to

direct the religious upbringing of their children.” Wisconsin v. Yoder, 406 U.S. 205, 233 (1972). “And, when

the interests of parenthood are combined with a free

exercise claim of the nature revealed by this record,

more than merely a ‘reasonable relation to some purpose within the competency of the State’ is required to

sustain the validity of the State’s requirement.” Id. It

is unsurprising, then, that many of this Court’s

strongest declarations of parental rights have come in

cases involving parents’ religious instruction of their

children.

Here, Petitioners have taught their children that

God created everyone male and female with a specific

purpose in mind, and that God does not make mistakes. E.g., Pet.App.530a (“We believe that mankind

has been divinely created as male and female.”);

Pet.App.537a (“Based on these teachings, we believe

that a person’s biological sex is both unchanging and

integral to that person’s being, and that gender and

biological sex are intertwined and inseparable.”);

Pet.App.625a (“[O]ur sacred obligation as parents

compels us to form our daughter’s understanding of

what it means to be a woman, to love another person,

the nature and purpose of marriage, and how to embrace the vocation she is called to by God.”). The

Board, however, is teaching Petitioners’ children that

male and female are arbitrary classifications at birth,

the people who “assign” those classifications—i.e.,

parents, and implicitly, God himself—sometimes

“make mistakes,” and that children “know … best”

and can determine their sex for themselves. Pet.Br.913. If the facts here do not implicate “the rights of parents to direct the religious upbringing of their children,” it is difficult to envision any curricular policy

that would. Yoder, 406 U.S. at 233.

The Board’s only response is that “[o]nce professional educators make a decision to include [material]

in the curriculum,” parents no longer have a say in the

matter. Pet.App.643a. But “[t]his argument can be

easily manipulated in dangerous ways.” Morse v.

Frederick, 551 U.S. 393, 423 (2007) (Alito, J., concurring). Because the “‘educational mission’ of the public

schools is defined by the elected and appointed public

officials with authority over the schools and by the

school administrators and faculty,” “some public

schools have defined their educational missions as including the inculcation of whatever political and social

views are held by the members of these groups.” Id.

That is exactly the case here. See infra 9-11 (noting

policy’s conformity with model policies recommended

by outside groups). For this reason, “[i]t is a dangerous

fiction to pretend that parents simply delegate their

authority—including their authority to determine

what their children may say and hear—to public

school authorities” simply by enrolling them in school.

Morse, 551 U.S. at 424 (Alito, J., concurring).

The Board invokes an astonishingly broad view of

in loco parentis that neither this Court nor the common law has ever recognized. In loco parentis means

“in the place of a parent.” Black’s Law Dictionary

(11th ed. 2019). It has never meant “displace parents.”

Gruenke v. Seip, 225 F.3d 290, 307 (3d Cir. 2000). The

doctrine rested on a theory of delegation: parents delegate parental authority to the school while their children are not in their custody. But as Blackstone recognized, this delegation was “part[ial]” and only

granted a teacher the authority “of restraint and correction” to the extent “necessary to answer for the purposes for which he is employed.” 1 Blackstone 441 (emphasis added).

In other words, teachers had incidental authority

to ensure order and discipline to the extent necessary

to educate the child. Implicit in this arrangement was

the understanding that the parent, not the teacher,

retained overall authority over the child’s education.

The common law never envisioned that teachers could

override parents and teach whatever they pleased. Indeed, when schools took unnecessary actions that exceeded the bounds of their partial delegation, courts

held them liable. See Hailey v. Brooks, 191 S.W. 781,

783 (Tex. Civ. App. 1916) (delegation is “limited” and

school has only “reasonably necessary” powers); Vanvactor v. State, 15 N.E. 341, 342 (Ind. 1888) (teacher’s

delegation is “restricted to the limits of his jurisdiction

and responsibility as a teacher”); Guerrieri v. Tyson,

24 A.2d 468, 469 (Pa. Super. 1942) (school could not

dictate how to treat student’s injury); State ex rel.

Bowe v. Bd. of Educ. of City of Fond du Lac, 23 N.W.

102, 104 (Wis. 1885) (school could not punish student

for failing to collect firewood); Hardy v. James, 5 Ky.

Op. 36, 1872 WL 10621, at *1 (1872) (school could not

punish child for “trivial” playground disagreement);

State v. Ferguson, 144 N.W. 1039, 1044 (Neb. 1914)

(school could not force student to take a cooking class).

This Court should reject the Board’s radical expansion

of in loco parentis.

II. Parental exclusion policies substantially

burden parental rights.

The Board tries its hardest to downplay the burden

on parents in this case. It characterizes the school district’s lessons on sex and gender identity as gardenvariety children’s books that contain “everyday tales”

and “touch on the same themes introduced to children

in such classic books as Snow White, Cinderella, and

Peter Pan.” BIO.5. It likewise casts the school district’s decision to embed these lessons in the general

curriculum—instead of sexual education programs

subject to state opt-out laws—as an isolated pedagogical decision with no ulterior motive. See id. at 5-7. Finally, the Board asserts—and the courts below held—

that classroom instruction is the sole prerogative of

teachers and administrators and that parents burdened by such instruction can simply homeschool or

enroll their children in private school. See

Pet.App.46a.

None of the above is accurate. The Board’s lessons

on sex and gender identity for children as young as

four years old strike at the heart of parental decision

making. The classroom instruction at issue in this

case implicates the most fundamental topics parents

can address with their children, including the nature

of the human person, what it means to be created

male or female, and God’s unique plan for them. Compare Pet.Br.9-13, with Pet.App.530a, 537a, 625a.

There is nothing unique about the materials the

Board selected or its choice to shield them from optout laws by placing them in general curriculum—

schools across the country are taking similar steps.

Moreover, there is ample evidence that children who

receive this instruction are confused and understand

it to contradict the religious instruction their parents

have given them. See infra II.A. And in states that

lack school-choice programs, like Maryland, enrolling

children in public schools is a “virtual necessity” for

many low-income and working-class families. Wooley,

430 U.S. at 715; see infra II.B.

A. Parental exclusion policies harm parents

and children alike.

1. Contra the Board, grade schoolers who receive

the school district’s instruction are not merely “exposed” to views their parents find objectionable. Cf.

Pet.App.643a. Rather, the record shows that the

school district “provided materials for teachers and

administrators to use in responding to” students who

doubted or disagreed with the themes in the storybook

lessons. Pet. App.54a. For example, if a student voices

a belief that a character “can only like boys, because

she’s a girl,” the materials prompt teachers to

“[d]isrupt the either/or thinking” expressed by the

third or fourth grader. Pet.App.629a. One of the Petitioners who was denied an opt-out from this lesson

was the mother of a ten-year-old girl with an Individualized Education Program under the Individuals

with Disabilities Education Act. See Pet.App.627-28a;

see also Pet. App.48 (counsel for the Board conceding

that “instructing children that gender is anyone’s

guess at birth” “may well be part of the discussion”).

Nearly identical scenarios have unfolded in other

school districts across the country in recent years,

with predictable results. According to CBS News, Sacramento-area “kindergartners came home very confused, about whether or not you can pick your gender

[and] whether or not they really were a boy or a girl”

after their teacher used the storybook I Am Jazz to

teach them gender identity concepts. Transgender Reveal in Kindergarten Class Leaves Parents Feeling ‘Betrayed,’ CBS News, (Aug. 22, 2017), perma.cc/TLN8VU4J. Like the storybooks read to kindergartners in

Montgomery, I Am Jazz purports to “expand” fourand five-year-olds’ “perceptions and understandings

of gender.” Compare Human Rights Campaign Foundation, I Am Jazz: Transgender Topics in Elementary

School, perma.cc/Q9DF-LC2D, with Human Rights

Campaign Foundation, Born Ready: The True Story of

a Boy Named Penelope, perma.cc/34SL-3KUZ; see

Pet.App.240a (listing Born Ready as one of the school

district’s instructional storybooks). A parent of one of

the kindergartners told CBS that her “daughter came

home crying and shaking, so afraid she could turn into

a boy.” CBS News, supra. For its part, the school district said that “the books were age-appropriate and

fell within their literature selection policy” and therefore did not “require prior parental notice.” Id.

In Mount Lebanon, Pennsylvania, parents only

discovered that their first graders were learning about

gender identity—by way of a storybook titled When

Aidan Became a Brother—after one of the children

asked her mother: “How do you know that I am a girl?”

Tatel v. Mt. Lebanon Sch. Dist., 637 F. Supp. 3d 295,

321 (W.D. Pa. 2022). A typical “teacher’s guide” for

When Aidan Became a Brother provides the following

synopsis of its contents:

When Aidan was born, everyone thought

he was a girl. His parents gave him a

pretty name, his room looked like a girl’s

room, and he wore clothes that other

girls liked wearing. After he realized he

was a trans boy, Aidan and his parents

fixed the parts of his life that didn’t fit

anymore, and he settled happily into his

new everyday.

Lee & Low Books, Teacher’s Guide: When Aidan Became a Brother, bit.ly/4brodZi. Further investigation

revealed that, as part of the lessons, the children’s

teacher “explained to her students that sometimes

‘parents are wrong’ and parents and doctors ‘make

mistakes’ when they bring a child home from the hospital.” Tatel, 637 F. Supp. 3d at 305. Those teaching

points are much like the “sample” instructions the

school district tells teachers to provide to students

here: “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. When someone’s transgender, they guessed

wrong.” Pet.App.630a; see also Pet.App.631a (“We

know ourselves best.”).

Indeed, all available evidence shows that teachers

view picture books as important teaching tools for elementary school children, not irrelevant and interchangeable storylines, as the Board now suggests. See

BIO.28. During a mandatory equity and inclusion

training session for teachers in Encinitas School District in California in 2023, the instructor recommended the use of picture books to help children absorb gender identity concepts in a familiar manner.

See S.E. v. Grey, 3:24-cv-01611, ECF 1, ¶75 (S.D. Cal.

2024). The instructor suggested that elementary

school teachers “read[] a picture book” to their students “and just once in a while, take out the ‘he’ or

‘she,’ and say ‘they,’” so the students could “get used

to practicing reading” stories that employ non-binary

pronouns. Id.

Later that year, an elementary school in the same

district required fifth graders—some of whom were as

young as nine—to read a transgender-themed storybook titled My Shadow is Pink and conduct a related

in-class assignment. See id. ¶2. The rhyming storybook follows the life of a young boy who “loves wearing

dresses and dancing around” and playing with “pink

toys, princesses, fairies and things not for boys.” Id.

¶116. The story concludes when the boy’s father, initially cast as cold and disapproving, admits that he

was wrong and accepts his son’s identity as a girl. Id.

¶117. Multiple parents had already exercised their

statutory rights to opt their children out of the formal

instruction block on gender identity in the school’s

health class, but their children were subjected to the

same material in general education programming

without parental notice or opportunity for opt-out. Id.

¶¶99-102. The incidents described above are just a few

of countless similar examples PDE has learned about

while interacting with parents throughout the country over the past few years.

2. The Board emphasizes that the “storybooks are

part of [Montgomery’s] language-arts instruction, not

sex education,” and it rejects the so-called “false pretense that parents have been denied a right to opt

their children out of sex education.” BIO.28; see also

id. (“But as explained above, the record contains no

evidence that petitioners, or any other parents, have

been denied the opportunity to opt their children out

of sex education, a separate unit of instruction with

specialized procedures for selecting and using instructional materials.”). Indeed, the Board elsewhere concedes that it placed these lessons about gender identity and sexual behavior in the general curriculum

“precisely … to fight against” the idea that lessons on

gender identity and sexual identity belong in “a special curriculum from which people may have the optout right in Maryland.” J.A.49-50.

Like the lessons themselves, nothing about the

Board’s decision to place them in the general education curriculum is original or organic. Outside groups

have openly encouraged school districts to “extend

their efforts beyond sex education, which is subject to

close scrutiny and protected by parental opt-out policies.” A. Jones & E. Kao, The Equality Act’s Impact on

School Curriculum and Parental Rights, Heritage

Foundation, (May 15, 2019), perma.cc/A2KL-VD2H;

e.g., M. C. Lytle & R.A. Sprott, Supporting Gender

Identity and Sexual Orientation Diversity in K–12

Schools (Am. Psych. Assoc. 2021) (noting “[w]hen

[Gender and Sexual Diversity] issues are included in

the school curriculum, they are often taught within

the realm of sex education” and criticizing “[t]his lack

of infusion into the regular curriculum”); A. Sanders,

et al., LGBTQ+ Literature in the Elementary and Secondary Classroom as Windows and Mirrors for Young

Readers, (IGI Global 2020) (similar). Multiple school

districts in Oregon, for example, “bypass the requirement to notify parents of gender identity and sexualcontent teaching by only requiring parental communication and opt-out allowances for health classes while

giving schools free rein to promote the ideas in other

classes.” K. Ingraham, How Replacing Biological Sex

with Gender Identity Harms Children, Discovery Institute (Mar. 23, 2022), perma.cc/8MJW-HM9L.

Thus, far from making a discrete pedagogical decision about the placement of the lessons at issue here,

cf. BIO.5-6, the Board simply followed the trend by attempting to exclude parents from issues that go to the

core of parental decisionmaking: molding their children’s identities and religious beliefs. (In the process,

the Board overruled even their own elementary school

principals, who also “objected to the storybook instruction.” Pet.Br.13.) In any event, the Board’s admissions

make clear that its inclusion of the storybooks in the

general curriculum was an intentional strategy to facilitate the exact arguments the Board now raises.

The Court should give it no credence—parental rights

are implicated by the contents of the lessons teachers

impart to impressionable children, not the labels administrators affix to those lessons. See Yoder, 406 U.S.

at 232-33.

3. The Board’s and the Fourth Circuit’s assertion

that children are unaffected by the school district’s

lessons on “gender identity diversity and sexual identity diversity” is inconsistent with everything society

knows about young children and authority figures.

Pet.App.636a; Pet.App.35a-36a. As this Court has recognized, “[t]he State exerts great authority and coercive power through mandatory attendance requirements, and because of the students’ emulation of

teachers as role models and the children’s susceptibility to peer pressure.” Edwards v. Aguillard, 482 U.S.

578, 584 (1987).

As even opponents of parental opt-out rights

acknowledge, “[d]uring a single school year, full-time

students spend more waking hours in the classroom

and with their peer group than they do with their family members.” Lytle & Sprott, supra at 49. “When one

accounts for work schedules and other commitments,

a student may well see more of their teacher and other

adults in the school building than they do of their own

parents.” Id. “The proportion of time spent in this environment serves to partially explain the tremendous

power that schools hold regarding the identity and

self-esteem of any student.” Id.

Here, the Board and the Fourth Circuit minimized

the burden on Petitioners as their children “simply

hearing about other views.” BIO.9; Pet.App.35a. That

characterization is mistaken several times over. First,

describing the effect on Petitioners’ children—who are

no older than second grade and include at least one

child with learning difficulties—as “hearing about

other views” ignores the imbalance of power between

the parties that this Court has recognized in

Aguillard and elsewhere. See 482 U.S. at 584. Statements that are presented as facts in class materials

and ratified as true by the adults in the room do not

meaningfully compare to statements from other second graders in the hallways or at recess. Second, the

authority figures in question are not only stating their

views but affirmatively telling Petitioners’ children

that their differing beliefs are “hurtful to a lot of people.” Pet.App.94. And despite the Board’s statements

to the contrary, the school district does instruct teachers to contradict the children’s beliefs. See

Pet.App.94a-95a (“Sometimes when we learn information that is different from what we always thought,

it can be confusing and hard to process.”). Third, the

Board’s claim that parents’ rights are not burdened

because they can always provide counter narratives to

course content at home does not explain how parents

can respond to lessons when the school district refuses

to notify them that the lessons occurred. See

Pet.App.63a, 643a.

Finally, the notion that elementary school students are sophisticated and independent-minded

enough to process the material presented by the storybooks without parental involvement is inconsistent

with how public schools treat children in every other

context. In PDE’s experience, many schools that reserve the right to override parents’ objections and

teach children that their sex is determined only by

their perception are the same schools that require students to show “signed and dated authorization from

[a] parent/legal guardian” before students can receive

a “standard dose acetaminophen or ibuprofen.” Brief

of Appellant, Parents Defending Educ. v. Linn-Mar

Comm. Sch. Dist., No. 22-2927 (8th Cir. Nov. 4, 2022).

In a world in which schools “routinely send notes

home to parents about lesser matters,” such as “playground tussles, missing homework, and social events,”

there is no justification for withholding such fundamentally important information from parents. D. St.

George, Gender Transitions at School Spur Debate

Over When, or if, Parents Are Told, Washington Post,

(July 18, 2022), perma.cc/EZ2K-D4NS.

B. Enrolling children in public education is

a “virtual necessity” for many parents.

The Board criticizes Petitioners for allegedly “telling public school teachers what to teach and not to

teach,” and it blithely suggests that “the way to ensure

that parents can ‘avoid exposing their children to any

religiously objectionable materials’ in a public-school

curriculum” is to “‘choose alternatives such as a private school.’” BIO.26-28; see Pet.App.46a. Both assertions lack merit. First, Petitioners have no interest in

dictating other students’ educations and do not object

to teachers continuing to present the lessons to the

rest of the student body. Instead, they seek to protect

their own children from one-sided, undisclosed instruction that imparts a worldview fundamentally at

odds with their most deeply held beliefs. See

Pet.Br.19-20.

Second, as Justice Alito recognized in Morse,

“[m]ost parents, realistically, have no choice but to

send their children to a public school.” 551 U.S. at 424

(Alito, J., concurring). This observation is especially

true in states like Maryland and for parents like Petitioners. Maryland law requires parents to keep their

elementary-age children in public school, unless they

can provide an equivalent education through homeschooling or private schools, See Md. Code Educ. §§ 7301(a)(3), (a-1)(1). Any parent or legal guardian “who

fails to see that [their] child attends school” is “guilty

of a misdemeanor” and may be sentenced to fines, imprisonment, or both. Id. § 7-301(e)(2).

Although Maryland law makes homeschooling or

enrolling in private school a requirement for disenrolling a child from public school without risking criminal penalties, it provides virtually no resources to parents who wish to avail themselves of those options.

Homeschooling is infeasible for single parents who

must work to support their children or for dual-income families that require both parents to work to

make ends meet. Maryland has no school choice program and no meaningful voucher program aside from

roughly 3,000 partial scholarships statewide each

year—a figure that includes returning students and

cuts across all K-12 grades. See M. Frost, Boost Scholarship Program Sees. ‘Extreme Demand’; Funds Uncertain for New Applicants, (Aug. 21, 2023),

perma.cc/P84E-EH5W. Demand for those scholarships vastly exceeds supply each year. See id. Students cannot even transfer to a different public school

district within the State unless they obtain a waiver

from their home school district, and the school district

here offers such waivers under vanishingly narrow

conditions. See Md. Code Educ. § 7-101(a); Bd. of

Educ. of Montgomery Cnty, Policy JEE-RA, Student

Transfers, perma.cc/4FA8-JMGV.

Judge Quattlebaum’s observation that the Board’s

policy “forces the parents to make a choice—either adhere to their faith or receive a free public education

for their children” was correct but incomplete.

Pet.App.62a. For some parents, remaining enrolled in

the school district under the current policy restricts

their ability to “adhere to their faith” and thus

“forc[es]” a “choice” between paying private tuition

and violating their beliefs. Id. But many families have

no choice at all because they lack the means to move

their children to a different school or their children’s

circumstances make such a move impossible.

For Petitioners, the “choice” described by the dissent is illusory. Petitioners include parents of children

with specialized learning requirements not available

in private school, as well as low-income families who

lack the means to pay for private school and cannot

homeschool because they are dual-income households.

E.g., Pet.App.626a (“[B]ecause of her needs we do not

have a clear alternative for her education except to remain in the public schools. Even if we could afford private education, none of the private school options we

are aware of would be able to keep her instruction at

her developmental level.”).

Taken together, truancy laws subjecting parents to

criminal punishment if their children do not attend

school, the absence of school choice programs, and the

lack of financially or logistically feasible homeschool

alternatives all mean that Petitioners are functionally

required to turn their children over to the State every

day to receive instruction that expressly contradicts

the beliefs they hold most dear. Put differently, because enrolling their children in Montgomery public

schools is a “virtual necessity” of life for Petitioners,

the school district cannot condition such enrollment

on Petitioners’ forfeiture of their constitutional rights.

See Wooley, 430 U.S. at 715.

CONCLUSION

This Court should reverse.

Respectfully submitted,