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

Supreme Court briefApr 9, 2025

Ask Donna

What actually matters in this document.

Text

No. 24-154

No. 24-297

In the Supreme Court

of the United States

IN THE

___________________

Supreme

Court

of theBUREAU

United

CATHOLIC

CHARITIES

, INCStates

., ET AL.,

___________

Petitioners,

TAMER MAHMOUD

, ET AL.,

v.

Petitioners,

WISCONSIN LABOR & INDUSTRY

REVIEW COMMISSION,

v.

ET AL.,

THOMAS W. TAYLOR, ET AL.,

Respondents.

Respondents.

___________________

___________

On Writ of Certiorari

On Writ of Certiorari to the United States Court

to the Supreme Court of Wisconsin

of Appeals for the Fourth Circuit

___________________

___________

BRIEF

OF

SERVICE

EMPLOYEES

BRIEF OF THE NATIONAL

EDUCATION

INTERNATIONAL

UNION

AND AMERICAN

ASSOCIATION

ET AL.

AS AMICI

CURIAE IN

FEDERATION

OF

STATE

COUNTY

SUPPORT OF RESPONDENTS AND

MUNICIPAL EMPLOYEES

___________AS AMICI CURIAE

SUPPORTING RESPONDENTS

ALICE O’BRIEN

___________________

Counsel of Record

WALTA

JASON

SCOTT

A. KRONLAND

KEIRA MCNETT

Counsel of Record

LAURA GEVARTER KENNEDY

EMANUEL A. WADDELL

National Education Association

LTSHULER BERZON LLP

1201 A

16th

St., N.W.

177

Post

Street,

Washington,

DC

20036 #300

Francisco, CA 94108

(202) San

822-7035

(415)

421-7151

aobrien@nea.org

skronland@altber.com

[Additional counsel listed on inside cover]

April 9, 2025

Mosaic - (301) 927-3800 - Cheverly, MD

Mosaic - (301) 927-3800 - Cheverly, MD

49261_Ltrhd.indd

1

6/11/08

12:44:0

49261_Ltrhd.indd

1

6/11/08

12:44:0

KRISTY K. ANDERSON

Maryland State Education Association

140 Main St.

Annapolis, MD 21401

(443) 758-8395

DANIEL J. MCNEIL

CHANNING M. COOPER

American Federation of Teachers

555 New Jersey Avenue, N.W.

Washington, DC 20001

(202) 393-5690

ROBERT KIM

JESSICA LEVIN

Education Law Center

60 Park Place, Suite 300

Newark, NJ 07102

(973) 624-1815

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

Table of authorities ................................................. ii

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

Introduction and summary of argument ................ 3

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

A. Exposure to diverse ideas is not a

cognizable burden on religious exercise; it

is the foundation for education in the

United States .................................................. 5

1. The Constitution does not recognize

mere exposure to ideas as an

actionable burden on religion ................... 6

2. Public education in the United States

is founded on the importance of

exposure to diverse ideas .......................... 9

3. Montgomery County Public Schools’

inclusive curriculum is consistent

with constitutional principles and

reflects the traditional role of public

education ................................................. 12

B. The right of parents to direct the

upbringing and education of their children

does not include the prerogative to burden

schools with unworkable obligations........... 14

1. History and tradition do not recognize

the right of parents to insist that a

school operate in accordance with their

religious beliefs ....................................... 15

2. Requiring schools and educators to

anticipate parents’ religious objections

and provide alternative learning

arrangements is practically

unworkable .............................................. 21

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

ii

TABLE OF AUTHORITIES

Cases

Pages

Altman v. Bedford Cent. Sch. Dist., 245 F.3d

49 (2d Cir. 2001) ............................................... 26

Ambach v. Norwick, 441 U.S. 68 (1979) .............. 9,21

American Legion v. Am. Humanist Ass’n, 588

U.S. 29 (2019)...................................................... 7

Armstrong v. Manzo, 380 U.S. 545 (1965) ............. 17

Bethel Sch. Dist. v. Fraser, 478 U.S. 675

(1986) ................................................................... 9

Board of Educ. v. Purse, 28 S.E. 896 (Ga.

1897) .................................................................. 19

Bob Jones Univ. v. United States, 461 U.S.

574 (1983) .......................................................... 25

Bostock v. Clayton County, 590 U.S. 644

(2020) ................................................................. 23

Brown v. Bd. of Educ., 347 U.S. 483 (1954) ........... 10

Brown v. Woodland Joint Unif. Sch. Dist., 27

F.3d 1373 (9th Cir. 1994) ............................ 20,26

California Parents for the Equalization of

Educ. Materials v. Torlakson, 973 F.3d

1010 (9th Cir. 2020) .......................................... 27

Cantwell v. Connecticut, 310 U.S. 296 (1940) ........ 28

C.H. v. Sch. Dist. of the Chathams, 698 F.

Supp. 3d 752 (D.N.J. 2023) .............................. 27

Commonwealth ex. rel. Hart v. Hart, 14 Phil.

Rep. 352 (Pa. 1880) ........................................... 18

Davis v. Page, 385 F. Supp. 395 (D.N.H.

1974) ............................................................. 25,26

iii

DeShaney v. Winnebago County Dep’t of Soc.

Servs., 489 U.S. 189 (1989) .............................. 17

Elk Grove Unif. Sch. Dist. v. Newdow, 542

U.S. 1 (2004).................................................... 7–8

Endrew F. v. Douglas County Sch. Dist. RE1, 580 U.S. 386 (2017)....................................... 29

Ferriter v. Tyler, 48 Vt. 444 (1876) ......................... 19

Fleischfresser v. Dirs. of Sch. Dist. 200, 15

F.3d 680 (7th Cir. 1994) .............................. 26,27

Fulton v. Philadelphia, 593 U.S. 522 (2021).......... 25

Gertz v. Robert Welch, Inc., 418 U.S. 323

(1974) ............................................................... 6–7

Grove v. Mead Sch. Dist. No. 354, 753 F.2d

1528 (9th Cir. 1985) .......................................... 25

Grutter v. Bollinger, 539 U.S. 306 (2003)............... 10

Hardwick v. Bd. of Sch. Trs., 205 P. 49 (Cal.

App. 1921) ......................................................... 19

Harris v. Quinn, 573 U.S. 616 (2014)..................... 21

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

260 (1988) .................................................... 29–30

Herndon v. Chapel Hill–Carrboro City Bd. of

Educ., 89 F.3d 174 (4th Cir. 1996) ................... 26

Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495

(1952) .............................................................. 8,27

Kennedy v. Bremerton Sch. Dist., 597 U.S.

507 (2022) ........................................................ 8–9

Keyishian v. Bd. of Regents, 385 U.S. 589

(1967) ................................................................... 9

Kidder v. Chellis, 59 N.H. 473 (1879) .............. 19–20

iv

Lee v. Weisman, 505 U.S. 577 (1992) ....................... 9

Leebaert v. Harrington, 332 F.3d 134 (2d Cir.

2003) .................................................................. 26

Linnemeir v. Bd. of Trs. of Purdue Univ., 260

F.3d 757 (7th Cir. 2001) .............................. 20,25

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

180 (2021) ...................................................... 9–10

McCollum v. Bd. of Educ., 333 U.S. 203

(1948) ................................................................. 20

Meyer v. Nebraska, 262 U.S. 390 (1923) ................ 15

Missouri v. Jenkins, 515 U.S. 70 (1995)................. 30

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

1979) .................................................................. 25

Morrow v. Wood, 35 Wis. 59 (1874) ........................ 19

Morse v. Frederick, 551 U.S. 393 (2007) ...... 8,15,16–

17,18–19,28

Mozert v. Hawkins County Bd. of Educ., 827

F.2d 1058 (6th Cir. 1987) ............................ 26,27

Nikolao v. Lyon, 875 F.3d 310 (6th Cir. 2017) ....... 27

Obergefell v. Hodges, 576 U.S. 644 (2015) ............. 23

Ohio v. Clark, 576 U.S. 237 (2015) ........................ 21

People ex rel. Barry v. Mercein, 3 Hill 399

(N.Y. Sup. Ct. 1842) .......................................... 18

Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925)........ 15

Regan v. Taxation With Representation of

Wash., 461 U.S. 540 (1983) .............................. 17

Reinoehl v. Penn-Harris-Madison Sch. Corp.,

No. 23-cv-889, 2024 WL 4008301 (S.D.

Ind. Aug. 30, 2024) ........................................... 27

v

Rulison v. Post, 79 Ill. 567 (1875) ........................... 19

Samuel Benedict Mem’l Sch. v. Bradford, 36

S.E. 920 (Ga. 1900) ........................................... 19

School Bd. Dist. No. 18 v. Thompson, 103 P.

578 (Okla. 1909) ................................................ 19

Sedlock v. Baird, 185 Cal. Rptr. 3d 739 (Cal.

App. 2015) ......................................................... 26

Sewell v. Bd. of Educ. of Defiance Union

Sch., 29 Ohio St. 89 (1876) ............................... 19

Smith v. Bd. of Sch. Comm’rs, 827 F.2d 684

(11th Cir. 1987) ................................................. 26

Snyder v. Phelps, 562 U.S. 443 (2011) ..................... 6

State v. Bailey, 61 N.E. 730 (Ind. 1901) ................. 19

State v. Webber, 8 N.E. 708 (Ind. 1886) ................. 19

State ex rel. Sheibley v. Sch. Dist. No. 1, 48

N.W. 393 (Neb. 1891)........................................ 19

Texas v. Johnson, 491 U.S. 397 (1989) ..................... 6

Thomas v. Review Bd., 450 U.S. 707 (1981) .......... 25

Todd v. Rochester Cmty. Sch., 200 N.W.2d 90

(Mich. App. 1972) .............................................. 25

Town of Greece v. Galloway, 572 U.S. 565

(2014) ................................................................... 7

Troxel v. Granville, 530 U.S. 57 (2000) .................. 16

Turner Broad. Sys., Inc. v. FCC, 512 U.S.

622 (1994) ............................................................ 6

United States v. Ballard, 322 U.S. 78 (1944) ...... 7,25

U.S. Dep’t of State v. Muñoz, 602 U.S. 899

(2024) ................................................. 15–16,17,21

vi

Valley Forge Christian Coll. v. Americans

United for Separation of Church & State,

Inc., 454 U.S. 464 (1982) .................................... 7

Washington v. Glucksberg, 521 U.S. 702

(1997) ................................................................. 16

Wisconsin v. Yoder, 406 U.S. 205 (1972) .......... 10,16

Wood v. Arnold, 915 F.3d 308 (4th Cir. 2019) ....... 27

Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353

(2009) ................................................................. 17

Constitutional Provisions, Statues, and Rules

IND. CONST. art. VIII, § 1 (1851) ............................. 12

ME. CONST. art. VIII (1820) .................................... 12

MASS. CONST. pt. II, ch. V, § 2 (1780) ..................... 11

N.H. CONST. Pt. 2, art. LXXXIII (1783) ........... 11–12

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

U.S. CONST. amend. 1...................................... passim

U.S. CONST. amend. 14.................................... passim

Other Authorities

Am. Psych. Ass’n, School-Based Risk and

Protective Factors for Gender Diverse and

Sexual Minority Children and Youth (2015),

https://www.apa.org/pi/lgbt/programs/safesupportive/lgbt/risk-factors.pdf ........................ 13

Stephen E. Bennett et al., Reading’s Impact on

Democratic Citizenship in America, 22 POL.

BEHAV. 167 (2000)....................................... 10–11

William Blackstone, COMMENTARIES ..................... 17

vii

Children, Youth & Families, Nat’l Acad. of Sci.,

Eng’g & Med., Report in Brief: Preventing

Bullying Through Science, Policy and

Practice (2016),

https://nap.nationalacademies.org/resource/

23482/preventing_bullying_RiB.pdf ................ 13

Ralph Ellison, THE INVISIBLE MAN (1947).............. 24

F. Scott Fitzgerald, THE GREAT GATSBY (1925) ..... 24

Lianna Golden, Overcrowding has kids sitting

on the floor at MCPS school; parents

demand action, ABC 7 News (Jan. 28, 2025),

https://wjla.com/news/local/overcrowdingmcps-school-pta-parents-school-boardashburton-elementary-school-bethesdamaryland-md-overcrowded-staffingconcerns-hilary-swab-students-sit-on-floormontgomery-county-public-school-full-timepsychologists-special-education-teacher.... 28–29

Lewis Hochheimer, THE LAW RELATING TO THE

CUSTODY OF INFANTS (3d ed. 1899)................... 18

Thomas Jefferson, A Bill for the More General

Diffusion of Knowledge (1779), reprinted in

THE COMPLETE JEFFERSON (Saul K. Padover

ed., 1943) ........................................................... 11

Thomas Jefferson, Notes on the State of Virginia

(1781), reprinted in THE COMPLETE

JEFFERSON (Saul K. Padover ed., 1943)............. 6

viii

Wojciech Kaczkowski et al., Examining the

Relationship Between LGBTQ-Supportive

School Health Policies and Practices and

Psychosocial Health Outcomes of Lesbian,

Gay, Bisexual, and Heterosexual Students, 9

LGBT HEALTH 43 (2022),

https://www.liebertpub.com/doi/epdf/10.1089

/lgbt.2021.0133 ............................................ 13–14

James Kent, COMMENTARIES ON AMERICAN LAW

(O.W. Holmes, Jr., ed., 12th ed. 1873) ............. 18

Law Firm Anti-Racism All. & Nat’l Educ. Ass’n,

The Very Foundation of Good Citizenship:

The Legal and Pedagogical Case for

Culturally Responsive and Racially

Inclusive Public Education for All Students

(Sept. 29, 2022),

https://www.nea.org/sites/default/files/202209/lfaa-nea-white-paper.pdf ............................. 14

Terrence McNally, CORPUS CHRISTI (1998)............ 25

Montgomery County Pub. Sch., 2023–2024

Annual Report to the Community (July

2024),

https://ww2.montgomeryschoolsmd.org/annu

alreport/2024/asset/pdf/2023-2024AnnualReport-FINAL-web.pdf ........................ 22

Nat’l Ctr. for Educ. Stats., Digest of Education

Statistics (2022),

https://nces.ed.gov/programs/digest/d22/tabl

es/dt22_215.30.asp ............................................ 22

Gordon Parks, THE LEARNING TREE (1963)............ 25

ix

Nancy Roberts Trott, School District Anti-Gay

Policy Splits N.H. Town, L.A. TIMES (March

17, 1996),

https://www.latimes.com/archives/la-xpm1996-03-17-mn-47986-story.html .................... 24

William Shakespeare, TWELFTH NIGHT ................. 24

Joseph Story, COMMENTARIES ON EQUITY

JURISPRUDENCE (1836) ............................... 17–18

U.S. Ctr. for Disease Control & Prevention,

LGBTQ-Supportive School Policies and

Practices Help All Students Thrive (June

2022),

https://web.archive.org/web/2024061216315

4/https:/www.cdc.gov/healthyyouth/safesupportive-environments/pdf/LGBTQSchool-Policies-Practices.pdf ............................ 13

Virgil, THE AENEID .................................................. 24

Kurt Vonnegut, SLAUGHTERHOUSE-FIVE (1969) .... 25

George Washington, Presidential Farewell

Address (Sept. 17, 1796), reprinted in A

COMPILATION OF THE MESSAGES AND PAPERS

OF THE PRESIDENTS, 1789–1902 (James D.

Richardson ed., 1903) ....................................... 12

1

INTEREST OF AMICI CURIAE

This amicus brief is submitted on behalf of the National Education Association (“NEA”), Maryland State

Education Association (“MSEA”), Montgomery County

Education Association (“MCEA”), American Federation of Teachers (“AFT”), Education Law Center

(“ELC”), and People United for the American Way

(“PFAW”).1

NEA is the nation’s largest professional association and union representing approximately three million members, the vast majority of whom serve as educators, counselors, and education support professionals in our nation’s public schools. NEA is committed to

fulfilling the promise of public education to prepare

every student to succeed in a diverse and interdependent world.

MSEA is NEA’s Maryland affiliate and represents

75,000 educators and school employees who work in

Maryland’s public schools, teaching and preparing our

almost 900,000 students both for career jobs of the future and for citizenship in a diverse society.

MCEA represents 14,000 educators who work in

Montgomery County Public Schools. MCEA is an affiliate of MSEA and NEA. MCEA and its members are

committed to teaching the students in the school system and encouraging each of them to understand, analyze, and appreciate the diversity of our society,

thereby cultivating good citizens.

1 Amici state that no party’s counsel authored the brief in

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

intended to fund preparing or submitting the brief; and no person—other than Amici—contributed money that was intended to

fund preparing or submitting the brief. See Sup. Ct. R. 37.6.

2

AFT, an affiliate of the AFL-CIO, was founded in

1916 and today represents 1.8 million members. AFT

members include preK-12 educators, paraprofessionals, higher education faculty and administrative staff,

nurses and health care workers, and public employees.

Since its founding, the AFT has been devoted to preserving and strengthening our nation’s commitment to

high-quality public education and educational opportunity for all.

ELC is a non-profit organization that pursues justice and equity for public school students by enforcing

their right to a high-quality education in safe, equitable, non-discriminatory, integrated, and well-funded

learning environments. ELC seeks to support and improve public schools as the center of communities and

the foundation of a multicultural and multiracial democratic society. To achieve these goals, ELC engages in

federal and state litigation nationwide—including frequently serving as amicus curiae—as well as research

and data analysis, policy advocacy, and communications.

PFAW is a national nonpartisan civic organization

established to promote and protect civil and constitutional rights and other important values, including

public education and religious liberty. PFAW has promoted public education and religious liberty through

such activities as research, litigation, legislative advocacy, and outreach and advocacy to parents, teachers,

school board members, and school administrators. Founded in 1981 by a group of civic, educational,

and religious leaders, PFAW now has hundreds of

thousands of members nationwide.

3

INTRODUCTION AND

SUMMARY OF ARGUMENT

Petitioners urge this Court to declare that parents

have a broad constitutional right to insist that public

schools affirmatively provide them with advance notice, opt-out procedures, and alternative learning arrangements to shield their children from ideas that offend their religious beliefs. Amici submit this brief to

highlight both the lack of legal support for such a ruling and the unadministrable burdens it would impose

on individual educators, local school districts, and federal courts alike.

Petitioners claim that they are entitled to relief

primarily under the First Amendment’s Free Exercise

Clause, see Pet. Br. at 24–35, while many of their supporting amici argue that it is also required under the

substantive protections of the Fourteenth Amendment’s Due Process Clause, see, e.g., Amicus Br. of Parents Defending Educ. at 4–20. But neither of these provisions supports the recognition of a far-reaching right

to burden schools with an obligation to anticipate parents’ religious objections and to shield their children

from ideas the parents deem objectionable.

With respect to the First Amendment’s Free Exercise Clause, it is well established that mere exposure

to ideas—even ones that offend an observer’s sincerely

held religious convictions—is not a substantial burden

on religious exercise that the Constitution will recognize. Given our nation’s commitment to robust and

wide-open debate, as well as its wide variation of religious views, our democratic charter and the needs of a

pluralistic society require toleration of conflicting

views. The Constitution’s interlocking protections for

speech and religion therefore do not treat mere exposure to objectionable ideas as a wrong the state must

prevent.

4

Moreover, Petitioners’ Free Exercise claims are incompatible with the nation’s tradition of public education, which is founded on the idea that engaging students on a broad range of ideas will bring together disparate elements in our society, prepare them prepare

them for citizenship, and allow them to become productive members of an increasingly interconnected

world. The inclusive curriculum of Montgomery

County Public Schools is in harmony with both the toleration of conflicting beliefs that our Constitution requires and the embrace of diverse viewpoints that

fuels our tradition of public education.

And with respect to the Due Process Clause’s substantive protections for the right of parents to direct

the upbringing of their children, Petitioners’ and their

amici’s claims here are too far-reaching to accept. Neither history nor tradition supports a right to require

public schools to anticipate parents’ religious objections and to customize individual learning environments accordingly. On the contrary, the long-standing

rule is that the operational needs of schools are superior to a parent’s desire to direct the individual educational experience of a child within the school.

Whether it arises under the Free Exercise Clause

or the substantive protections of the Due Process

Clause, the broad right asserted here would also impose new and inappropriate burdens on individual educators, local school districts, and federal courts. Public-school educators should not be in the business of

scouring instructional materials and guessing at what

might conflict with a parent’s religious beliefs. And

federal judges should not be in the business of policing

day-to-day curricular decisions, homework assignments, and classroom-management techniques. Yet, a

ruling in Petitioners’ favor would inevitably thrust

schools and the judiciary into those roles.

5

Accordingly, this Court should affirm the decision

below.

ARGUMENT

A. Exposure to Diverse Ideas Is Not a

Cognizable Burden on Religious Exercise; It Is the Foundation for Education in the United States

Petitioners’ Free Exercise claims hinge entirely on

the notion that students’ mere exposure to books and

ideas in a public-school setting qualifies as a substantial burden on their parents’ religious beliefs. According to Petitioners, the Constitution requires public

schools to alleviate this burden by taking affirmative

steps—not only to anticipate parents’ religious objections and provide advance notice of any exposure to potentially objectional ideas—but also to provide alternative learning arrangements to shield students from

exposure to those ideas.2 See Pet. Br. at 2, 22, 34–35.

Petitioners’ claims have no grounding in the protections the Constitution affords for religious liberty,

which instead recognize that members of our pluralistic society must tolerate the expression of ideas that

might conflict with their religious views. Petitioners’

claims are also fundamentally incompatible with our

national tradition of public education, which is based

on the notion that engaging students on a broad and

varied range of ideas will prepare them to become citizens who uphold the values necessary for the

2 As explained in greater detail infra at 28–29, although Petitioners claim to seek only a right to opt their children out of instruction they object to, see Pet. Br. at 28–29, schools have an

obligation to supervise students throughout the school day. As a

result, these opt-outs will translate in practice to a requirement

that schools provide ad hoc alternative learning arrangements

for every parental objection.

6

maintenance of our democratic order and give them

the tools to become productive members of a diverse

and interconnected society. By contrast, the inclusive

curriculum of Montgomery County Public Schools is in

harmony with both the toleration of conflicting beliefs

that our Constitution requires and the embrace of diverse ideas that underlies our tradition of public education.

1. The Constitution does not recognize mere exposure to ideas as an

actionable burden on religion

Thomas Jefferson famously observed that “it does

me no injury for my neighbor to say there are twenty

gods or no God. It neither picks my pocket nor breaks

my leg.” Thomas Jefferson, Notes on the State of Virginia (1781), in THE COMPLETE JEFFERSON 675 (Saul

K. Padover ed., 1943). It is precisely this sentiment

that animates the First Amendment’s complementary

protections for freedom of speech and freedom of religious exercise.

“Our political system and cultural life rest upon”

the notion that “each person should decide for himself

or herself the ideas and beliefs deserving of expression,

consideration, and adherence.” Turner Broad. Sys.,

Inc. v. FCC, 512 U.S. 622, 641 (1994). The First

Amendment’s Free Speech Clause therefore reflects a

“profound national commitment to the principle that

debate on public issues should be uninhibited, robust,

and wide-open.” Snyder v. Phelps, 562 U.S. 443, 452

(2011) (citation and quotation marks omitted). And,

implicit in that is a recognition that it is not the role of

government to “prohibit the expression of an idea

simply because society finds the idea itself offensive or

disagreeable.” Texas v. Johnson, 491 U.S. 397, 414

(1989). In other words, no matter how “pernicious an

opinion may seem, we depend for its correction…on

7

the competition of other ideas.” Gertz v. Robert Welch,

Inc., 418 U.S. 323, 339–40 (1974).

The same principle extends to the First Amendment’s protections for religious belief and exercise. The

Founders were keenly aware of the wide variation of

religious views in the country, “of the violence of disagreement” among those views, “and of the lack of any

one religious creed on which all…would agree.” United

States v. Ballard, 322 U.S. 78, 87 (1944). The democratic charter they fashioned in response to this challenge was not one that obligated the government to anticipate and protect citizens from ideas that offend

their religious sensibilities. Instead, it was one that

“envisaged the widest possible toleration of conflicting

views.” Id. (emphasis added).

As Justice Gorsuch has observed, in “a large and

diverse country, offense can be easily found.” American Legion v. Am. Humanist Ass’n, 588 U.S. 29, 88

(2019) (concurring opinion). And even though such offense may be “sincere” or “even wise,” allowing it to

serve as a basis for overturning governmental action

is incompatible with “a society that holds among its

most cherished ambitions mutual respect, tolerance,

self-rule, and democratic responsibility.” Id.

Thus, even though exposure to certain ideas may

cause observers to “feel excluded and disrespected,”

the Constitution does not recognize that “sense of affront” as an actionable burden on religious belief.

Town of Greece v. Galloway, 572 U.S. 565, 589 (2014);

see also Valley Forge Christian Coll. v. Americans

United for Separation of Church & State, Inc., 454 U.S.

464, 485–86 (1982) (holding that the “observation of

conduct with which one disagrees” is not a constitutionally cognizable injury); Elk Grove Unif. Sch. Dist.

v. Newdow, 542 U.S. 1, 44 (2004) (O’Connor, J., concurring) (“[T]he Constitution does not guarantee

8

citizens a right entirely to avoid ideas with which they

disagree.”). “After all, much political and religious

speech might be perceived as offensive to some.” Morse

v. Frederick, 551 U.S. 393, 409 (2007). But this Court

has recognized that the “state has no legitimate interest in protecting any or all religions from views distasteful to them.” Joseph Burstyn, Inc. v. Wilson, 343

U.S. 495, 505 (1952).

Accordingly, Petitioners cannot claim that their

children’s exposure to certain ideas in school—even

ones that conflict with their religious beliefs—is a violation of their free-exercise rights. Of course, this is not

to say that their religious convictions are anything

other than genuine. Nor is it to say that their sense of

affront is illegitimate. The point is simply that the

Constitution’s interlocking protections for freedom of

speech and religion do not—and cannot—recognize the

mere exposure to objectionable ideas as a wrong that

the state must prevent.

This Court’s decision in Kennedy v. Bremerton

School District, 597 U.S. 507 (2022), drives this point

home in the context of our public schools. There, this

Court flatly rejected the notion that a football coach at

a public high school burdened the religious-freedom

rights of students or members of the public by engaging in on-the-job prayer at midfield in view of players

and spectators. This Court recognized that onlookers,

including students, would have “seen his religious exercise” and that those “close at hand might have heard

him too.” Id. at 538. And this Court even acknowledged

that some of those onlookers might “take offense” at

what they were witnessing because they did not share

the religious beliefs being espoused. Id. at 538–39.

Nevertheless, this Court held that mere exposure to

expressive activity that might conflict with one’s religious convictions did not amount to a cognizable

9

burden on anyone’s religious exercise, because “learning how to tolerate speech or prayer of all kinds is ‘part

of learning how to live in a pluralistic society,’ a trait

of character essential to ‘a tolerant citizenry.’” Id. at

538 (quoting Lee v. Weisman, 505 U.S. 577, 590

(1992)).

2. Public education in the United

States is founded on the importance of exposure to diverse

ideas

The nation’s tradition of public education is built

on similar principles. “Education is perhaps the most

important function of state and local governments.”

Ambach v. Norwick, 441 U.S. 68, 76 (1979) (cleaned

up). It is grounded in the idea that, through “wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues,” Keyishian v.

Bd. of Regents, 385 U.S. 589, 603 (1967) (cleaned up),

the nation’s public schools will work as an “assimilative force by which diverse and conflicting elements in

our society are brought together on a broad but common ground,” Ambach, 441 U.S. at 77. Exposure to diverse ideas advances the goals of public education in

two distinct ways.

First and foremost, education rooted in exposure

to diverse ideas prepares students for “participation as

citizens” and preserves “the values on which our society rests.” Id. at 76 (cleaned up). This is because the

“fundamental values” that are “essential to a democratic society” include “tolerance of divergent political

and religious views, even when the views expressed

may be unpopular.” Bethel Sch. Dist. No. 403 v. Fraser,

478 U.S. 675, 681 (1986). And as this Court has explained:

10

America’s public schools are the nurseries of

democracy. Our representative democracy

only works if we protect the “marketplace of

ideas.” This free exchange facilitates an informed public opinion, which, when transmitted to lawmakers, helps produce laws that reflect the People’s will. That protection must include the protection of unpopular ideas, for

popular ideas have less need for protection.

Thus, schools have a strong interest in ensuring that future generations understand the

workings in practice of the well-known aphorism, “I disapprove of what you say, but I will

defend to the death your right to say it.”

Mahanoy Area Sch. Dist. v. B.L., 594 U.S. 180, 190

(2021).

Second, exposure to—and toleration of—diverse

ideas is essential to public education’s goal of preparing students to realize their full potential for success

in an increasingly diverse and interconnected world.

See Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954)

(explaining that education is a “principal instrument”

for preparing students “for later professional training”); see also Wisconsin v. Yoder, 406 U.S. 205, 221

(1972) (recognizing that “education prepares individuals to be self-reliant and self-sufficient participants in

society”). Particularly “in today’s increasingly global

marketplace,” that capacity for success “can only be developed through exposure to widely diverse people,

cultures, ideas, and viewpoints.” Grutter v. Bollinger,

539 U.S. 306, 330 (2003).

The importance of public education rooted in exposure to diverse ideas is a tradition that dates back to

the very founding of the nation. See Stephen E. Bennett et al., Reading’s Impact on Democratic Citizenship

in America, 22 POL. BEHAV. 167, 167 (2000) (“Puritans

11

at Massachusetts Bay colony in the seventeenth century, visionaries…in the late eighteenth century, [and]

the creators of public schools in the early nineteenth

century…all believed that literacy was a sine qua non

for effective participation in public affairs.”) (internal

citations omitted).

For example, in 1779, Thomas Jefferson proposed

“A Bill for the More General Diffusion of Knowledge”

to create a public school system in Virginia, founded

on the belief that “the most effectual means of preventing” governmental abuse is to “illuminate…the minds

of the people at large” and give them knowledge of “the

experience of other ages and countries.” THE COMPLETE JEFFERSON 1048. His bill therefore sought to establish a system to provide “liberal education” without

“regard to wealth, birth or other accidental condition

or circumstance,” that would act “to guard the sacred

deposit of the rights and liberties of their fellow citizens.” Id.

In 1780, John Adams engrafted that principle onto

the Massachusetts Constitution, which recognized

that “[w]isdom and knowledge…diffused generally

among the body of the people” is “necessary for the

preservation of their rights and liberties,” and that it

was therefore the state’s duty “to cherish the interests

of literature and the sciences” in “public schools and

grammar schools.” MASS. CONST. pt. II, ch. V, § 2 (ratified 1780).3

3 Other early State constitutions contained similar exhortations. For example, the New Hampshire Constitution of 1783 proclaimed:

Knowledge and learning, generally diffused through a

community, being essential to the preservation of a free

government; and spreading the opportunities and advantages of education through the various parts of the

(continued…)

12

And in his famous Farewell Address in 1796,

George Washington urged his successors to promote,

“as an object of primary importance, institutions for

the general diffusion of knowledge.” A COMPILATION OF

THE MESSAGES AND PAPERS OF THE PRESIDENTS, 1789–

1902 220 (James D. Richardson ed., 1903). He explained that exposure to ideas and the acquisition of

knowledge was vital to the survival of the Republic because, in “proportion as the structure of a government

gives force to public opinion, it is essential that public

opinion should be enlightened.” Id.

3. Montgomery

County

Public

Schools’ inclusive curriculum is

consistent

with

constitutional

principles and reflects the traditional role of public education

The curriculum of Montgomery County Public

Schools (“MCPS”) is compatible with both the Constitutional imperatives and the tradition of public education outlined above. That curriculum is designed to be

inclusive and reflect the diversity of identities and experiences both within the school community and more

country, being highly conducive to promote this end; it

shall be the duty of the [the State]…in all future periods

of this government, to cherish the interest of literature

and the sciences, and all…public schools, to encourage

private and public institutions, rewards, and immunities for the promotion of agriculture, arts, sciences, commerce, trades, manufactures, and natural history of the

country; to countenance and inculcate the principles of

humanity and general benevolence, public and private

charity, industry and economy, honesty and punctuality, sincerity, sobriety, and all social affections, and generous sentiments, among the people.

N.H. CONST. Pt. 2, art. LXXXIII; see also ME. CONST. art. VIII

(ratified 1820); IND. CONST. art. VIII, § 1 (ratified 1851).

13

broadly in our society. This exposure to rich and diverse ideas and experiences not only helps prepare

students for citizenship in a multiracial and multicultural democracy, it also helps them thrive both emotionally and academically while they remain in school.

MCPS’s inclusive curriculum helps ensure a learning environment that is safe and welcoming for all.

School climates where some students are targeted for

unequal treatment have an impact on all students. Of

relevance here, it is well known that LGBTQ youth are

particularly vulnerable to bullying. In addition,

“youths who bully others are more likely to be depressed, engage in high-risk activities such as theft

and vandalism, and have adverse outcomes later in life

compared to those who do not bully.” 4 That being so,

there is a particular need to affirmatively welcome and

encourage acceptance of LGBTQ students and families

by, for example, including books and stories in the

school curriculum that represent the lives and experiences of LGBTQ people.5 In this sense, teaching inclusion is a rising tide that lifts all boats: policies that recognize the equality and dignity of all students benefit

not only LGBTQ students, but also their non-LGBTQ

peers.6

4 Board on Children, Youth & Families, Nat’l Acad. of Sci.,

Eng’g & Med., Report in Brief: Preventing Bullying Through Science, Policy and Practice at 2 (2016).

5 See Am. Psych. Ass’n, School-Based Risk and Protective

Factors for Gender Diverse and Sexual Minority Children and

Youth at 26 (2015).

6 See U.S. Ctr. for Disease Control & Prevention, LGBTQSupportive School Policies and Practices Help All Students Thrive

(June 2022) (“All young people do better in LGBTQ-inclusive

schools.”); Wojciech Kaczkowski et al., Examining the Relationship Between LGBTQ-Supportive School Health Policies and

Practices and Psychosocial Health Outcomes of Lesbian, Gay,

(continued…)

14

MCPS’s inclusive curricula also help all students

achieve academically and prepare to flourish in a dynamic economy. Research confirms that a school curriculum that highlights the lived experiences of members of the community from diverse backgrounds

yields improvements in students’ critical thinking

skills, as well as increases in direct measures of academic success such as GPA, school attendance, standardized test performance, and graduation rates.7

These educational benefits accrue not just to students

from minority or marginalized communities, but to all

students.8

*

*

*

Although the First Amendment rightly provides

expansive protection for Petitioners’ exercise of their

religious beliefs, the offense they have taken at

MCPS’s inclusive curriculum is not a ground for this

Court’s intervention. Particularly in a community as

diverse as Montgomery County, tolerance of speech,

ideas, and religious expression of all kinds is essential.

B. The Right of Parents to Direct the Upbringing and Education of their Children Does Not Include the Prerogative

to Burden Schools with Unworkable

Obligations

Bisexual, and Heterosexual Students, 9 LGBT HEALTH 43, 43–53

(2022) (finding that “LGBTQ-supportive policies and practices

are significantly associated with improved psychosocial health

outcomes among both LGB and heterosexual students”) (emphasis added).

7 See Law Firm Anti-Racism All. & Nat’l Educ. Ass’n, The

Very Foundation of Good Citizenship: The Legal and Pedagogical

Case for Culturally Responsive and Racially Inclusive Public Education for All Students at 14–15 (Sept. 29, 2022) (citing studies).

8 See id.

15

Petitioners’ claims are also not cognizable as a fundamental parental right. Although not mentioned explicitly in the Constitution, the right of parents to “direct the upbringing and education” of their children,

especially in religious matters, has long been recognized as entitled to protection under the substantive

component of the Due Process Clause. Pierce v. Soc’y

of Sisters, 268 U.S. 510, 534–35 (1925). Such a right,

however, is not unlimited. And that is particularly

true when it comes to parents’ desires to require public

schools to operate in accordance with their beliefs. As

Justice Thomas has explained, the established rule is

that “[i]f parents do not like the rules imposed by [their

public] schools, they can seek redress in school boards

or legislatures; they can send their children to private

schools or homeschool them; or they can simply move.”

Morse, 551 U.S. at 420 (Thomas, J., concurring).

What the Petitioners propose here would upend

that traditional rule. It would do so without a firm basis in history and tradition. And the result would be

the imposition of unworkable new burdens on schools,

as well as the conscription of federal courts into supervising the day-to-day classroom decisions of educators.

1. History and tradition do not recognize the right of parents to insist

that a school operate in accordance with their religious beliefs

The right that Petitioners assert here is not one

that this Court’s caselaw has recognized. Even this

Court’s seminal parental rights decision in Meyer v.

Nebraska, was quick to note that it involved no challenge to a “State’s power to prescribe a curriculum for

institutions which it supports.” 262 U.S. 390, 402

(1923). Recognizing a new fundamental right therefore

carries with it “a serious risk of judicial overreach.”

U.S. Dep’t of State v. Muñoz, 602 U.S. 899, 910 (2024).

16

To guard against that risk, this Court “exercises

the utmost care” whenever it is “asked to break new

ground.” Id. (cleaned up). Thus, any claim asserting a

new fundamental right must be supported by a “careful description of the asserted fundamental liberty interest.” Id. (cleaned up). And that carefully described

interest must, in turn, be shown to be “objectively,

deeply rooted in this Nation’s history and tradition.”

Id. (cleaned up). Together, these requirements “direct

and restrain” this Court’s exposition of fundamental

rights and “rein in the subjective elements that are

necessarily present” in recognizing such rights. Washington v. Glucksberg, 521 U.S. 702, 721–22 (1997).

Carefully described, see Muñoz, 602 U.S. at 910,

the right that Petitioners assert here would affirmatively require a public school to provide advance notice, opt-out procedures, and alternative learning arrangements for their children in order to avoid exposure to ideas that offend their beliefs—despite the fact

that they remain free to instill those beliefs at home.

Given both the nature and the broad implications of

the right they seek to assert, concerns about judicial

overreach should be particularly acute. “[N]o one believes” that “parental rights are to be absolute.” Troxel

v. Granville, 530 U.S. 57, 92–93 (2000) (Scalia, J., dissenting). And, as Justice Scalia warned, unless those

rights are carefully delineated, this Court runs the

risk of “ushering in a new regime of judicially prescribed, and federally prescribed, family law.” Id. at

93. Moreover, this Court has repeatedly recognized the

“obvious fact” that courts are “ill-equipped” to make

determinations about “discrete aspects” of schools’ curricula and operations. Yoder, 406 U.S. at 235; see also

Morse, 551 U.S. at 421 (Thomas, J., concurring) (“Local

school boards, not the courts, should determine what

17

pedagogical interests are legitimate and what rules

reasonably relate to those interests.”) (cleaned up).

Recognition of such a broad right is also at odds

with this Court’s usual understanding of substantive

due process as a limit on governmental power, rather

than an affirmative right to the government’s assistance. See DeShaney v. Winnebago County Dep’t of Soc.

Servs., 489 U.S. 189, 195 (1989). That, is, Petitioners

seek the public schools’ affirmative assistance in identifying, warning them about, and shielding their children from ideas that conflict with their religious beliefs. Yet, generally speaking, the government’s decision not to assist “the exercise of a fundamental right

does not infringe the right.” Regan v. Taxation With

Representation of Wash., 461 U.S. 540, 549 (1983); see

also Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353, 358

(2009).

Even more importantly, Petitioners’ asserted right

is not one that is “objectively, deeply rooted in this Nation’s history and tradition.” Muñoz, 602 U.S. at 910.

At the heart of their claim is the notion that the Constitution requires near-absolute deference to parental

authority—to the exclusion of the operational needs of

a school. To be sure, the early English (and, before

that, Roman) legal tradition gave a father an almost

absolute right to the custody, labor, and earnings of his

minor children. See 1 William Blackstone, COMMENTARIES *441 (explaining that children lived in “the empire of the father” until they reached the age of majority). But that tradition never fully took hold as part of

the American legal tradition, especially in the context

of schools.

For example, Joseph Story acknowledged the earlier common-law rule that a father had an “absolute

right to the care and custody of his children” and that

the state lacked the authority to “control the conduct

18

of the father in the education of his children,” but he

explained that continuing to adhere to such an inflexible rule would now “strike all civilized countries with

astonishment.” Joseph Story, 2 COMMENTARIES ON EQUITY JURISPRUDENCE § 1347 (1836). Other commentators were even more pointed. See James Kent, 2 COMMENTARIES ON AMERICAN LAW 205 (O.W. Holmes, Jr.,

ed., 12th ed. 1873) (explaining that the code of parentchild relations under Roman law “was barbarous and

unfit for a free and civilized people”); Lewis Hochheimer, THE LAW RELATING TO THE CUSTODY OF INFANTS

§ 22 (3d ed. 1899) (explaining that “the general result

of the American cases” is an “utter repudiation” of the

English common-law notion granting parents an absolute “proprietary right of interest in or to the custody”

of children). And courts, too, recognized that the American legal tradition did not adopt the absolutist conception of parental rights from English or Roman law.

See People ex rel. Barry v. Mercein, 3 Hill 399, 411

(N.Y. Sup. Ct. 1842) (“Those countries in which the father has a general power to dispose of his children,

have always been considered barbarous. Our own law

never has allowed the exercise of such power.”); Commonwealth ex. rel. Hart v. Hart, 14 Phil. Rep. 352, 353–

54 (Pa. 1880) (acknowledging that English common

law “conceded to a father the undoubted right as

guardian by nature and for nurture of his minor child,”

but that “it may safely be affirmed” that this rule “was

never received as recognized law of Pennsylvania”).

Instead, the American tradition of protecting parental rights has been more tempered. And that is especially true when parental prerogatives come into

conflict with the operation of public schools. See Morse,

551 U.S. at 413–16, 420 (Thomas, J., concurring) (surveying 19th Century cases that affirm the authority of

schools to “enforce rules” and to “maintain order,”

19

including over the objections of parents). While there

were undoubtedly instances where Early American

courts upheld a parent’s request to excuse a child from

some aspect of the school curriculum,9 the majority of

cases from this era recognize that the operational

needs of schools are superior to any individual parent’s

desire to direct the individual educational experience

of a child.10 As one of those courts observed:

[T]he power of each parent to decide the question what studies the scholars should pursue,

or what exercises they should perform, would

be a power of disorganizing the school, and

practically rendering it substantially useless.

However judicious it may be to consult the

wishes of parents, the disintegrating principle

9 See, e.g., Hardwick v. Bd. of Sch. Trs., 205 P. 49 (Cal. App.

1921) (excusing child from dancing exercises); School Bd. Dist.

No. 18 v. Thompson, 103 P. 578 (Okla. 1909) (singing lessons);

State ex rel. Sheibley v. Sch. Dist. No. 1, 48 N.W. 393 (Neb. 1891)

(grammar instruction); Rulison v. Post, 79 Ill. 567 (1875)

(bookkeeping class); Morrow v. Wood, 35 Wis. 59 (1874) (geography class).

10 See Ferriter v. Tyler, 48 Vt. 444, 467 (1876) (explaining

that the operational needs of a school could not be subjugated “to

the peculiar faith, personal judgment, individual will or wish of”

a parent, “however his conscience might demand or protest”);

Board of Educ. v. Purse, 28 S.E. 896, 900 (Ga. 1897) (explaining

that “it is the right of the state, through its constituted authorities, to require of the parent that he shall do nothing inconsistent

with the peace, good order, and authority of the [school] system”);

State v. Webber, 8 N.E. 708, 713 (Ind. 1886) (explaining that the

wishes of an individual parent “must yield and be subordinated

to the governing authorities of the school” and “their reasonable

rules and regulations for the government of the pupils of its high

school”); accord Sewell v. Bd. of Educ. of Defiance Union Sch., 29

Ohio St. 89, 92 (1876); Samuel Benedict Mem’l Sch. v. Bradford,

36 S.E. 920, 920–21 (Ga. 1900); State v. Bailey, 61 N.E. 730, 732

(Ind. 1901).

20

of parental authority to prevent all classification and destroy all system in any school, public or private, is unknown to the law.

Kidder v. Chellis, 59 N.H. 473, 476 (1879).

The same sentiment was voiced by the Late Justice Jackson, who explained that it would “leave public

education in shreds,” if parents were given the right to

“eliminate everything that is objectionable to any of

these warring sects or inconsistent with any of their

doctrines.” McCollum v. Bd. of Educ., 333 U.S. 203,

235 (1948) (concurring opinion). And he added that

nothing but “educational confusion and a discrediting

of the public school system can result from subjecting

it to constant law suits” challenging what or how students are taught. Id.

Other influential jurists have noted the same concern. Judge O’Scannlain posited that if the Constitution were violated “each time a student believed that a

school practice either advanced or disapproved of a religion, school curricula would be reduced to the lowest

common denominator, permitting each student to become a ‘curriculum review committee’ unto himself or

herself.” Brown v. Woodland Joint Unif. Sch. Dist., 27

F.3d 1373, 1379 (9th Cir. 1994). And Judge Posner explained that the “government’s interest in providing a

stimulating, well-rounded education would be crippled

by attempting to accommodate every parent’s hostility

to books inconsistent with their religious beliefs.” Linnemeir v. Bd. of Trs. of Purdue Univ., 260 F.3d 757,

759 (7th Cir. 2001) (citation omitted).

Simply put, the specific right that Petitioners

claim here—a right to burden schools with affirmative

obligations to anticipate parents’ religious objections

and provide alternative learning arrangements—is

not sufficiently rooted in our legal traditions to

21

warrant recognition. And giving force to such a right

in this case would be the very kind of “judicial overreach” that this Court’s decisions condemn. Muñoz,

602 U.S. at 910.

2. Requiring schools and educators

to anticipate parents’ religious objections and provide alternative

learning arrangements is practically unworkable

Petitioners claim that they are entitled to both advance notice of any instruction that conflicts with their

religious convictions and alternative learning arrangements for their children while that instruction is provided to others. But the constitutional rule that Petitioners ask this Court to adopt is one that will generate

endless administrative confusion, impose burdensome

unfunded mandates on schools, and mire federal

courts in litigation over matters far outside their expertise. That is a sure sign that adopting Petitioners’

position would lead this Court—and the nation’s public schools—down the wrong path. See Harris v. Quinn,

573 U.S. 616, 636–37 (2014) (explaining the dangers of

adopting constitutional rules that will be fraught with

“conceptual difficulty” and “practical administrative

problems”).

Public-school educators and administrators “have

a difficult job, and a vitally important one.” Morse, 551

U.S. at 409. Not only are they charged with providing

an education that prepares each new generation to become citizens, see Ambach, 441 U.S. at 75–76, they also

often act as the primary social safety net for many vulnerable young people—from providing free school

lunches for students who are food-insecure to serving

as mandatory reporters of childhood abuse and neglect. See Ohio v. Clark, 576 U.S. 237, 246–47 (2015).

22

Nowhere is that more true than in a place as culturally and economically diverse as Montgomery

County. As Petitioners note, its residents are the most

religiously diverse in the nation. See Pet. Br. at 6. Its

school district is also one of the nation’s largest, with

an enrollment of over 160,000 students at 211 different

schools and a workforce of over 25,000 employees.11 At

that scale, a rule requiring schools to provide parents

with both advance notice of any instruction that may

conflict with their religious convictions and alternative

learning arrangements for their children would

quickly hit a wall of practical impossibility.

Which “instruction”? Petitioners’ claim deals

only with “instruction” in the form of books that were

specifically assigned or read to students. See Pet. Br.

at 9–11. But the thrust of their argument is that any

school-based exposure to religiously objectionable

ideas triggers a constitutionally mandated obligation

for the school to provide parents with advance notice

and an opportunity to opt-out. Id. at 28–29, 34. The

administrative difficulties created by this constitutional rule should be readily apparent.

For example, are a school’s notice, opt-out, and alternative learning obligations triggered when a book

with objectionable content is merely suggested reading

or among a list of other books from which students may

choose? Are they required when objectionable books

are merely stocked in classroom or school libraries to

which students have access? Are they required for

11 See Montgomery County Pub. Sch., 2023–2024 Annual Report to the Community at 6 (July 2024); see also Nat’l Ctr. for

Educ. Stats., Digest of Education Statistics, Table 215.30, Enrollment, poverty, and federal funds for the 120 largest school districts, by enrollment size in 2021: School year 2019-20 and fiscal

year 2022 (2022) (listing Montgomery County Public Schools as

the 15th largest in the nation).

23

students’ in-school access to the internet? In each of

these situations, there is certainly a risk that a student will be exposed to ideas a parent finds objectionable. But the logistical challenges for a school to identify that risk and provide parents with advance notice

of it are effectively insurmountable.

Even more vexing questions arise when it comes to

contributions that other students make to the school

environment. For example, to help students develop

crucial public speaking skills, educators often require

them to deliver oral presentations. For younger students, that might involve a description of the student’s

family. And for older students, it might involve a research project that presents a perspective on a contemporary social or political issue. How should an educator respond if a younger student presents on being the

child of a same-sex couple? Or if an older student conducted her research on this Court’s decisions in Obergefell v. Hodges, 576 U.S. 644 (2015), or Bostock v.

Clayton County, 590 U.S. 644 (2020)? Is the teacher

required to review all presentations beforehand and

delay those that a parent might find objectionable?

Likewise, student art is often selected for display

in classrooms or common areas. And that art may be

open to interpretations that challenge or even offend

the religious sensibilities of students or parents. Is the

school required to suppress the art entirely because

the children of objecting parents cannot avoid it? Or is

it sufficient to provide parents with advanced notice of

its existence?

Also, good pedagogy engages students in discussion. In the course of that, students may spontaneously ask questions or make comments touching on

matters that conflict with the religious beliefs of parents or other students. In the split-second when such

a comment is made, is an educator’s obligation to shut

24

down free-flowing discussion until parents can be notified?

Which religious convictions? Petitioners’ claim

here deals specifically with “instruction on gender and

sexuality”—by which they mean, not just material explicitly depicting sexual acts or anatomy, but also material that references the existence of LGBTQ people.

See Pet. Br. at 9–12 (describing the material they object to); see also Resp. Br. at 26. As a result, identifying

instructional material that may conflict with Petitioners’ specific beliefs is itself no straightforward matter.

And because Petitioners are asking this Court to adopt

a broad constitutional rule requiring advance notice,

opt-out, and alternative learning procedures for conflicts with any parent’s religious beliefs, the uncertainty and burden it will place on schools in future

cases is essentially boundless.

Consider that, even if this Court’s ruling were limited only to instructional materials that reference

LGBTQ people, intractable problems would still arise.

How, for example, would schools address books where

the sexuality of characters is only hinted at, or the subject of literary debate, such as Nisus and Euryalus in

Virgil’s THE AENEID, Nick Carraway in Fitzgerald’s

THE GREAT GATSBY, or Young Emerson in Ellison’s

THE INVISIBLE MAN? How would they address the

tropes of cross-dressing and gender confusion in the

comedies of William Shakespeare?12

12 See Nancy Roberts Trott, School District Anti-Gay Policy

Splits N.H. Town, L.A. TIMES (March 17, 1996) (reporting on the

removal of Shakespeare’s TWELFTH NIGHT from schools after the

play was deemed to violate a school district’s policy on “alternative lifestyle instruction" that prohibited instruction “portraying

homosexuality as an acceptable way of life”).

25

And the problem grows exponentially more complex when schools must anticipate, not just the specific

religious beliefs about gender and sexuality at issue in

this case, but any religious objections to instruction

that parents might have. This will be an extraordinary

task, given both the wide variation of religious views

in the country, see Ballard, 322 U.S. at 87, and the fact

that those views need not be “‘logical, consistent, or

comprehensible to others in order to merit First

Amendment protection,’” Fulton v. Philadelphia, 593

U.S. 522, 532 (2021) (quoting Thomas v. Review Bd.,

450 U.S. 707, 714 (1981)). If a school confined itself

just to religious objections that have been asserted in

extant caselaw, notice and opt-out procedures would

still be required for a vast array of topics, including:

•

interracial dating and marriage;13

•

“immodest” apparel;14

•

a number of specific works of literature;15

•

movies, television, radio, or audio-visual projections;16

•

play acting, singing, and dancing;17

13 Bob Jones Univ. v. United States, 461 U.S. 574, 580 (1983).

14 Moody v. Cronin, 484 F. Supp. 270, 275 (C.D. Ill. 1979).

15 See Linnemeir, 260 F.3d at 758 (Terrence McNally’s COR-

PUS CHRISTI (1998)); Grove v. Mead Sch. Dist. No. 354, 753 F.2d

1528, 1534 (9th Cir. 1985) (Gordon Parks’s THE LEARNING TREE

(1963)); Todd v. Rochester Cmty. Sch., 200 N.W.2d 90, 95 (Mich.

App. 1972) (Kurt Vonnegut’s SLAUGHTERHOUSE-FIVE (1969)).

16 Davis v. Page, 385 F. Supp. 395, 397–405 (D.N.H. 1974).

17 Id.; Hardwick, 205 P. at 55; Thompson, 103 P. at 578.

26

•

“humanist” philosophy;18

•

The “Womans’ [sic] Liberation Movement,” feminism, and “biographical material about women

who have been recognized for achievements outside their homes”;19

•

home economics and shop class;20

•

“poetic chants”;21

•

substance-abuse prevention;22

•

yoga;23

•

Earth Day24

•

community service;25

•

telepathy, magic, witches, wizards, and “creatures with supernatural powers,”26

18 Davis, 385 F. Supp. at 397–405; Smith v. Bd. of Sch.

Comm’rs, 827 F.2d 684, 690–93 (11th Cir. 1987); Mozert v. Hawkins County Bd. of Educ., 827 F.2d 1058, 1062–70 (6th Cir. 1987).

70.

93.

19 Davis, 385 F. Supp. at 397–405; Mozert, 827 F.2d at 1062–

20 Davis, 385 F. Supp. at 397–405; Smith, 827 F.2d at 690–

21 Brown, 27 F.3d at 1377.

22 Leebaert v. Harrington, 332 F.3d 134, 136 (2d Cir. 2003);

Altman v. Bedford Cent. Sch. Dist., 245 F.3d 49, 57–63 (2d Cir.

2001).

Altman, 245 F.3d at 57–63; Sedlock v. Baird, 185 Cal.

Rptr. 3d 739, 759 (Cal. App. 2015).

23

24 Altman, 245 F.3d at 57–63.

25 Herndon v. Chapel Hill–Carrboro City Bd. of Educ., 89

F.3d 174, 176 (4th Cir. 1996).

26 Fleischfresser v. Dirs. of Sch. Dist. 200, 15 F.3d 680, 683,

690 (7th Cir. 1994); Mozert, 827 F.2d at 1062–70; Brown, 27 F.3d

at 1377.

27

•

tricks, deceit, and disrespect or rebellion

against parents; 27

•

evolution;28

•

vaccinations;29

•

pacifism;30

•

Christianity, Judaism, Hinduism, Islam, and

other world religions;31 and

•

the absence in history and social science texts of

“a sufficient discussion of the role of religion.”32

In other words, Petitioners’ rule would place public

schools—and, inevitably, courts—in the impossible position of the film censors in Joseph Burstyn, left to “apply [a] broad and all-inclusive definition of ‘sacrilegious’” that would leave them “adrift upon a boundless

sea amid a myriad of conflicting currents of religious

views.” 343 U.S. at 504.

What kind of notice? “Questions frequently arise

as to the adequacy of a particular form of notice in a

particular case.” Armstrong v. Manzo, 380 U.S. 545,

550 (1965). But with Petitioners’ proposed rule broadly

70.

27 Fleischfresser, 15 F.3d at 683; Mozert, 827 F.2d at 1062–

28 Mozert, 827 F.2d at 1062–70; Reinoehl v. Penn-HarrisMadison Sch. Corp., No. 23-cv-889, 2024 WL 4008301, at *5 (S.D.

Ind. Aug. 30, 2024); Davis, 385 F. Supp. at 397–405.

29 Nikolao v. Lyon, 875 F.3d 310, 319 (6th Cir. 2017).

30 Mozert, 827 F.2d at 1062–70.

31 Id.; California Parents for the Equalization of Educ. Mate-

rials v. Torlakson, 973 F.3d 1010, 1020–21 (9th Cir. 2020); Wood

v. Arnold, 915 F.3d 308, 316 (4th Cir. 2019); C.H. v. Sch. Dist. of

the Chathams, 698 F. Supp. 3d 752, 764–66 (D.N.J. 2023); Altman, 245 F.3d at 57–63.

32 Smith, 827 F.2d at 690–93.

28

requiring advance notice of any religiously objectionable school materials, those questions would be especially insoluble.

Ordinarily, notice must be “reasonably calculated,

under all the circumstances, to apprise” interested

parties of a proposed action “and afford them an opportunity to present their objections.” Id. But given the

“sharp differences” that arise in matters of religious

faith, Cantwell v. Connecticut, 310 U.S. 296, 310

(1940), educators and school administrators would

struggle to find predictable criteria for determining

what kind of information or what level of detail would

be sufficient to fully apprise parents of a potential conflict between instructional materials and their religious convictions.

What kind of “opt out”? Petitioners claim that

they only seek to allow parents to opt their children

out of instruction that offends their religious beliefs.

See Pet. Br. at 28–29. But, in practice, these opt-outs

will require schools to provide ad hoc alternative learning arrangements that will tax schools’ resources and

leave them mired in uncertainty.

Schools are entrusted with protecting the safety of

students while they are at school. See Morse, 551 U.S.

at 424 (Alito, J., concurring). As a result, students generally must be supervised throughout the school day.

When parents make opt-out requests that necessitate

removing students from class, the school must find

both the space and the personnel to ensure adequate

supervision. This will prove especially challenging in

schools that already struggle with overcrowding and

teacher shortages.33

33 See, e.g., Lianna Golden, Overcrowding has kids sitting on

the floor at MCPS school; parents demand action, ABC 7 NEWS

(continued…)

29

Petitioners’ request to constitutionalize opt-out

rights will also raise innumerable questions about how

missed assignments will factor into instruction and

grading. For example, will educators be required to develop and provide alternate assignments to ensure

that opted-out students are not deprived of instruction? How should a student be graded if opt-outs result

in missing especially challenging assignments or a

substantial amount of the coursework?

Opt-out arrangements could also have divisive and

disruptive effects on the classroom. Consider, for example, how a student with same-sex married parents

might react when told that references to the mere existence of families like his are so objectionable that

several of his fellow classmates must leave the room.

Or how a Jewish student might feel when she is required to bring home a note alerting parents that lessons on of her religious heritage could be offensive and

offering alternative learning arrangements for the

children of objecting parents.

*

*

*

This Court has repeatedly warned about the dangers of federal judicial interference in local school matters. See, e.g., Endrew F. v. Douglas County Sch. Dist.

RE-1, 580 U.S. 386, 404 (2017) (cautioning that courts

do not have “an invitation…to substitute their own notions of sound educational policy for those of the school

authorities which they review”) (citation and quotation

marks omitted); Hazelwood Sch. Dist. v. Kuhlmeier,

484 U.S. 260, 273 (1988) (reiterating this Court’s “oftexpressed view that the education of the Nation's

youth is primarily the responsibility of parents,

(Jan. 28, 2025) (discussing “widespread” problems with insufficient building space and staff shortages in Montgomery County

Public Schools).

30

teachers, and state and local school officials, and not of

federal judges”). Petitioners’ claims, by contrast, would

thrust courts into the role of exercising general supervisory authority over the day-to-day decisions of educators and administrators with regard to curriculum,

assignments, and classroom management.

“There simply are certain things that courts, in order to remain courts, cannot and should not do.” Missouri v. Jenkins, 515 U.S. 70, 132 (1995) (Thomas, J.,

concurring). Adopting the unfounded and unworkable

rule advanced by the Petitioners here is chief among

them.

CONCLUSION

For the reasons stated above, the judgment of the

Fourth Circuit should be affirmed.

Respectfully submitted,

ALICE O’BRIEN

Counsel of Record

JASON WALTA

KEIRA MCNETT

LAURA GEVARTER KENNEDY

National Education Association

1201 Sixteenth Street, N.W.

Washington, D.C. 20036

(202) 822-7035

aobrien@nea.org

KRISTY K. ANDERSON

Maryland State Education

Association

140 Main St.

Annapolis, MD 21401

(443) 758-8395

31

DANIEL J. MCNEIL

CHANNING M. COOPER

American Federation of Teachers,

AFL-CIO

555 New Jersey Avenue, N.W.

Washington, DC 20001

(202) 393-5690

ROBERT KIM

JESSICA LEVIN

Education Law Center

60 Park Place, Suite 300

Newark, NJ 07102

(973) 624-1815

Counsel for Amici Curiae

April 9, 2025

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.