Amicus Curiae Brief — Tamer Mahmoud, et al., Petitioners v. Thomas W. Taylor, et al.
Supreme Court briefApr 9, 2025
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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
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6/11/08
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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
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