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

No. 24-297

In the Supreme Court of the United States

TAMER MAHMOUD., et al.,

v.

THOMAS W. TAYLOR, et al.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF OF JUSTIN DRIVER AND EUGENE VOLOKH AS

AMICI CURIAE SUPPORTING RESPONDENTS

H. RODGIN COHEN

SULLIVAN & CROMWELL LLP

125 Broad St.

New York, N.Y. 10004

AMANDA FLUG DAVIDOFF

Counsel of Record

DANIEL J. RICHARDSON

HARRISON J. T ANZOLA

SULLIVAN & CROMWELL LLP

1700 New York Ave., NW

Suite 700

Washington, D.C. 20006

(202) 956-7570

davidoffa@sullcrom.com

TABLE OF CONTENTS

Page

Interest of amici curiae ...................................................... 1

Introduction and summary of argument .......................... 2

Argument .............................................................................. 6

I. The Free Exercise Clause does not require

student-specific opt-outs .............................................. 6

A. This Court’s Religion Clause precedents

have established a stable framework that

accommodates competing interests....................... 6

1. This Court’s decisions offer important

protections for parents and students’ First

Amendment rights ............................................... 6

2. This Court’s decisions recognize that school

curricula are subject to judicial determinations

only in limited circumstances.............................. 9

B. Petitioners’ opt-out theory would undermine

this framework ....................................................... 11

II. This Court’s free-speech precedents confirm

that Petitioner’s opt-out theory is misguided .......... 15

A. This Court’s free-speech precedents

recognize that school authorities must have

the right to set the curriculum ............................. 15

B. This Court’s free-speech precedents refute

any claim to student-specific opt outs ................. 18

III. Petitioners’ opt-out theory is unworkable and

undemocratic ............................................................... 20

A. Petitioners’ theory would invite a virtually

unlimited range of opt-out demands ................... 20

(I)

II

B. Petitioners’ proposed limiting principles

would not work ....................................................... 24

Conclusion ........................................................................... 26

III

TABLE OF AUTHORITIES

Page(s)

Cases:

Agostini v. Felton,

521 U.S. 203 (1997) .................................................... 8

Axson-Flynn v. Johnson,

356 F.3d 1277 (10th Cir. 2004) .......................... 17, 19

Bethel Sch. Dist. No. 403 v. Fraser,

478 U.S. 675 (1986) .................................................. 18

Board of Educ. of Westside Cmty. Schs. v.

Mergens,

496 U.S. 226 (1990) .............................................. 7, 10

Bowen v. Roy,

476 U.S. 693 (1986) .................................................. 12

California Parents for Equalization of Educ.

Materials v. Torlakson,

973 F.3d 1010 (9th Cir. 2020) .................................. 21

Carson v. Makin,

596 U.S. 767 (2022) .................................................... 9

Chiras v. Miller,

432 F.3d 606 (5th Cir. 2005) .................................... 19

Employment Div. v. Smith,

494 U.S. 872 (1990) .................................................. 20

Fellowship of Christian Athletes v. San Jose

Unified Sch. Dist. Bd. of Educ.,

82 F.4th 664 (9th Cir. 2023) ...................................... 7

Fleischfresser v. Directors of Sch. Dist. 200,

15 F.3d 680 (7th Cir. 1994) .................................. 5, 21

Fulton v. City of Phila.,

593 U.S. 522 (2021) .......................................... 2, 4, 15

IV

Cases—Continued:

Griswold v. Driscoll,

625 F. Supp. 2d 49 (D. Mass. 2009) ........................ 21

Grove v. Mead Sch. Dist. No. 354,

753 F.2d 1528 (9th Cir. 1985) .................................. 12

Hazelwood Sch. Dist. v. Kuhlmeier,

484 U.S. 260 (1988) ...................................... 16, 17, 18

A.H. ex rel. Hernandez v. Northside

Indep. Sch. Dist.,

916 F. Supp. 2d 757 (W.D. Tex. 2013) ................... 21

Island Trees Sch. Dist. Bd. of Ed. v. Pico,

457 U.S. 853 (1982) .................................................. 17

Johanns v. Livestock Mktg. Ass’n,

544 U.S. 550 (2005) .................................................. 16

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

594 U.S. 180 (2021) .................................................. 16

McCollum v. Board of Educ.,

333 U.S. 203 (1948) ............................................ 13, 15

Meyer v. Nebraska,

262 U.S. 390 (1923) .................................................... 8

Milliken v. Bradley,

418 U.S. 717 (1974) .................................................. 10

Missouri v. Jenkins,

515 U.S. 70 (1995) .......................................... 4, 10, 13

Mitchell v. Helms,

530 U.S. 793 (2000) .................................................... 7

Montiero v. Tempe Union High Sch. Dist.,

158 F.3d 1022 (9th Cir. 1998) .................................. 22

Morse v. Frederick,

551 U.S. 393 (2007) ...................................... 16, 17, 18

V

Cases—Continued:

Mozert v. Hawkins Cnty. Bd. of Educ.,

827 F.2d 1058 (6th Cir. 1987) ...................... 12, 14, 20

National Inst. of Family & Life Advocates v.

Becerra,

585 U.S. 755 (2018) .................................................. 20

Parker v. Hurley,

514 F.3d 87 (1st Cir. 2008) ............................ 4, 12, 14

Pierce v. Society of the Sisters of the Holy

Names of Jesus and Mary,

268 U.S. 510 (1925) .................................................... 8

Pleasant Grove City, Utah v. Summum,

555 U.S. 460 (2009) .................................................. 16

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

2024 WL 4008301

(S.D. Ind. Aug. 30, 2024) ......................................... 21

San Antonio Indep. Sch. Dist. v. Rodriguez,

411 U.S. 1 (1973) .................................................. 9, 13

Swanson v. Guthrie Indep. Sch. Dist. No. I-L,

135 F.3d 694 (10th Cir. 1998) .................................. 15

Thomas v. Review Bd. of Ind. Emp. Sec. Div.,

450 U.S. 707 (1981) .................................................. 25

Tinker v. Des Moines Indep. Sch. Dist.,

393 U.S. 503 (1969) ............................................ 16, 18

United States v. Lee,

455 U.S. 252 (1982) ............................................ 12, 22

Wallace v. Jaffree,

472 U.S. 38 (1984) ...................................................... 7

West Virginia State Board of Educ. v.

Barnette,

319 U.S. 624 (1943) .................................................. 15

VI

Cases—Continued:

Wisconsin v. Yoder,

406 U.S. 205 (1972) .................................. 9, 10, 13, 14

Zelman v. Simmons-Harris,

536 U.S. 639 (2002) .................................................... 7

Statutes:

Ala. Code § 16-1-20 (1981) .............................................. 7

Other Authorities:

Driver, The Schoolhouse Gate: Public Education,

the Supreme Court, and the Battle for the

American Mind (2018) ................. 1, 7, 11, 14, 17, 20

Driver, Three Hail Marys: Carson, Kennedy, and

the Fractured Détente over Religion and

Education,

136 Harv. L. Rev. 208 (2022) .................................... 8

EdChoice, The ABCs of School Choice 8 (2024),

https://tinyurl.com/5b2865hw ................................. 11

For a Lot of American Teens, Religion Is a

Regular Part of the Public School Day, Pew

Rsch. Ctr. (Oct. 3, 2019),

https://tinyurl.com/ytdw2nje .................................. 11

Murphy, Against Civic Education in Public

Schools, 30 Int'l J. Pub. Admin. 651 (2007) ........... 24

Nash et al., History on Trial: Culture Wars and

Teaching of the Past (2000) .................................... 24

Ray, Research Facts on Homeschooling, National

Home Educ. Rsch. Inst. (July 20, 2023),

https://nheri.org/research-facts-onhomeschooling/ ........................................................ 11

Shaver, Chalk Talk—The Debate over the

Teaching of Evolution in Public Schools, 3 J.

L. & Educ. 399 (2003) .............................................. 24

VII

Other Authorities—Continued:

Volokh, Equal Treatment Is Not Establishment,

13 Notre Dame J.L. Ethics & Pub. Pol’y 341

(1999) ........................................................................... 8

Wilkinson, Goss v. Lopez: The Supreme Court as

School Superintendent,

1975 Sup. Ct. Rev. 25 (1975) ................................... 10

INTEREST OF AMICI CURIAE1

Amici are constitutional law scholars with expertise

in the First Amendment and public education. They

submit this brief to explain the First Amendment

framework applicable to public schools, and to draw the

Court’s attention to the practical consequences of requiring public schools to let students opt out of any portion of the curriculum that is arguably in tension with

their religious faith.

Justin Driver is the Robert R. Slaughter Professor

of Law at Yale Law School. An elected fellow of the

American Academy of Arts & Sciences and a member

of the American Law Institute, he teaches and writes

on constitutional law. Professor Driver is the author of

The Schoolhouse Gate: Public Education, the Supreme

Court, and the Battle for the American Mind (2018),

which received the Steven S. Goldberg Award for Distinguished Scholarship in Education Law, and was selected as a Washington Post notable book of the year.

Eugene Volokh is the Thomas M. Siebel Senior Fellow at the Hoover Institution at Stanford University

and the Gary T. Schwartz Professor of Law Emeritus

at the University of California, Los Angeles, as well as

a member of the American Law Institute. Professor

Volokh is known for his scholarship in First Amendment law.

No counsel for any party authored this brief in whole or in

part, and no entity or person, aside from amici curiae, their members, or their counsel made any monetary contribution intended to

fund the preparation or submission of this brief.

1

(1)

2

INTRODUCTION AND

SUMMARY OF ARGUMENT

Petitioners ask this Court to hold that parents have

a constitutional right to interfere with the routine curricular decisions of public schools. Whether this Court

answers that question by applying its existing freeexercise precedents or—as members of this Court have

recently suggested—by considering analogies to freespeech doctrine, see Fulton v. City of Phila., 593 U.S.

522, 543 (2021) (Barrett, J., concurring); id. at 565 n.28

(Alito, J., concurring in the judgment), the answer is

the same: The First Amendment does not shield publicschool students from the mere exposure to ideas that

conflict with their personal views, whether secular or

religious.

Every day, thousands of public schools throughout

the United States make countless decisions about the

best way to educate their students. Those decisions reflect the input of educators, parents, and local communities. They thus incorporate competing views about

both the materials that should be included in publicschool curricula and the role of public education in civil

society. In a country as diverse as the United States,

those decisions also often expose students to ideas that

may be in tension with their deeply held beliefs.

This Court has developed an extensive body of law

that balances the needs of the public-school system

against the free-exercise rights of students and parents. These decisions prevent public schools from espousing or indoctrinating religious views, require

schools to accommodate students’ private religious

practices, and let parents educate their children outside the public-school system altogether. At the same

3

time, they also recognize the importance of local control over education and the harms that can arise from

judicial interference in curricular decision-making.

Taken together, this Court’s precedents have established a stable framework—one that has allowed religious exercise to flourish on and off school grounds, but

without inhibiting the ability of local communities to

make decisions about public education and to expose

public-school students to a wide variety of ideas.

Petitioners’ suit would upset that balance. In this

case, the Montgomery County Public School Board approved a set of books for its English curriculum that

include LGBT characters. The Board added these

books to “assist students with mastering reading concepts” and to teach respect for other students.

Pet. App. 10a. Petitioners challenged MCPS’s decision,

arguing that the Free Exercise Clause requires the

county either to remove the books or to accommodate

opt-outs for any student who has a religious objection

to reading them. In advancing that claim, Petitioners

did not contend that the books espoused any religious

or anti-religious view, nor did they show that the Board

included the books to coerce students into adopting any

particular viewpoint. Instead, they argued that merely

introducing students to books in tension with their religious faith violated the Free Exercise Clause.

Petitioners’ sweeping opt-out theory is inconsistent

with free-exercise law and would undermine the educational system. For decades, this Court has recognized

that students do not surrender their constitutional

rights at the schoolhouse gate. But it has also explained

that the protections of the First Amendment must be

tailored to the unique demands of the school environment, and has cautioned against constitutional theories

4

that would displace the “vital national tradition” of local control over education. Missouri v. Jenkins, 515

U.S. 70, 99 (1995).

Applying those decisions, lower courts have consistently (and correctly) held that the Free Exercise

Clause does not allow parents to override routine

public-school curricular decisions. As these courts have

recognized, “[p]ublic schools often walk a tightrope between the many competing constitutional demands

made by parents, students, teachers, and the schools’

other constituents.” Parker v. Hurley, 514 F.3d 87, 107

(1st Cir. 2008). When weighing those demands, our

constitutional system vests authority in “the normal

political processes for change,” rather than the federal

courts. Ibid.

That result is not unique to free exercise. In recent

years, members of this Court have suggested that the

Free Exercise Clause should be understood in light of

other First Amendment freedoms. Justice Barrett’s

concurrence in Fulton suggested that the meaning of

free exercise may be informed by how “this Court[]” has

treated “other First Amendment rights—like speech

and assembly.” 593 U.S. 522, 543 (2021) (Barrett, J.,

concurring) (joined by Breyer, J., and Kavanaugh, J.).

And Justice Alito’s Fulton opinion argued that “the

phrase ‘no law’ applies to the freedom of speech and the

freedom of the press, as well as the right to the free

exercise of religion, and there is no reason to believe

that its meaning with respect to all these rights is not

the same.” Id. at 565, n.28 (Alito, J., concurring in the

judgment) (joined by Thomas, J. and Gorsuch, J.).

Examining how “other First Amendment rights”

apply to school curricula confirms that the decision below was correct. This Court has long held that schools

can expose students to materials on various subjects

5

without infringing the free-speech rights of students

and parents. And federal courts have long rejected

claims (like Petitioners’) that would either require

student-specific opt-outs or empower individual parents

to dictate educational decisions for the entire school.

This Court should not announce an opt-out right for religious objectors under the Free Exercise Clause that

its precedents would foreclose for students objecting to

public-school curricula under the Free Speech Clause.

The practical implications of Petitioners’ opt-out

theory provide another reason for caution. Were this

Court to adopt Petitioners’ view, public schools would

be forced to either (i) offer student-specific instruction

every time a parent identifies a potential conflict between the public-school curriculum and their religious

faith, or (ii) develop a curriculum so anodyne that it

aims to avoid even the slightest risk of exposing students to ideas that may conflict with any conceivable

religious belief—a task that would almost certainly

prove impossible in practice.

Such a result would be both unworkable and undemocratic. Parents would have the right to flyspeck curricula in a vast range of academic subjects, as they have

already tried to do. See, e.g., Fleischfresser v. Directors

of Sch. Dist. 200, 15 F.3d 680, 683 (7th Cir. 1994) (discussing a free-exercise challenge to books that reference “wizards, sorcerers, [and] giants”). And schools

would be discouraged from providing the education

they believe to be most valuable, in favor of making

choices that—they hope, but can never know—would

provoke relatively few parents to opt out.

The Court of Appeals’ decision correctly applied

free-exercise law, aligned with other First Amendment

doctrines, and honored the importance of local control

over education. This Court should affirm.

6

ARGUMENT

I. The Free Exercise Clause does not require studentspecific opt-outs.

This Court has decided many cases related to religious exercise and public education. Those decisions

have harmonized the demands of the Free Exercise

Clause with the needs of school administrators,

thereby allowing students and parents to practice their

faith without disrupting the day-to-day activities of

public schools.

Petitioners’ expansive opt-out theory departs from

that framework. On their view, public schools must

forego instruction on important subjects or adopt a

student-specific curriculum whenever a parent alleges

that a public school is exposing students to ideas in conflict with their religious faith. This Court’s precedents

do not endorse that far-reaching and disruptive view of

the Free Exercise Clause, which would shift control

over education from democratically elected officials to

individual parents and federal courts ill-equipped to

supervise public schools.

A. This Court’s Religion Clause precedents have

established a stable framework that accommodates competing interests.

1. This Court’s decisions offer important protections for parents and students’ First

Amendment rights.

Many strands of modern constitutional law (i) confirm that students do not shed their religious identities

at the schoolhouse gate, (ii) allow states to support a

wide range of private schools chosen by parents, and

(iii) recognize the rights of students and parents to pur-

7

sue a religious education outside the public-school system. These cases provide broad protection for freeexercise rights.

First, students are generally permitted to engage in

individual religious expression while in public schools.

See The Schoolhouse Gate, supra, at 394-399. In Wallace v. Jaffree, 472 U.S. 38, 59-61 (1985), the Court

struck down an Alabama statute authorizing moments

of silence in public school “for meditation or voluntary

prayer.” Ala. Code § 16-1-20 (1981). But in so doing, the

Court issued a decision that was broadly supportive of

other “moment-of-silence statutes,” which do not refer

to prayer and “provide students who wish to pray with

an opportunity to do so.” The Schoolhouse Gate, supra,

at 397 (explaining that Wallace was hailed as a “victory” for religious expression at the time). Similarly,

the Court has held that schools may provide “equal access” to school facilities for religious student organizations without violating the Establishment Clause.

Board of Educ. of Westside Cmty. Schs. v. Mergens,

496 U.S. 226, 247-253 (1990); see also Fellowship of

Christian Athletes v. San Jose Unified Sch. Dist. Bd.

of Educ., 82 F.4th 664, 672, 685-694 (9th Cir. 2023) (en

banc) (holding that a school district violated the Free

Exercise Clause by “penaliz[ing]” a student group

“based on its religious beliefs”).

Second, the Court has held that state and local governments can provide indirect public funds for families

who wish to enroll their children in private religious

schools. See Zelman v. Simmons-Harris, 536 U.S. 639,

662-663 (2002) (upholding school-choice program that

provided tuition aid for students attending religious

schools); Mitchell v. Helms, 530 U.S. 793, 843 (2000)

(upholding program by which “government aid sup-

8

ports a school’s religious mission only because of independent decisions made by numerous individuals”)

(O’Connor, J., concurring in the judgment); Agostini v.

Felton, 521 U.S. 203, 225-226 (1997) (holding that the

government may provide tuition aid “available generally without regard to the sectarian-nonsectarian, or

public-nonpublic nature of the institution benefited”)

(citation omitted). As a result of these decisions, communities can use tax dollars to support religious education indirectly, so long as religious schools are

treated on the same terms as other private schools. See

generally Volokh, Equal Treatment Is Not Establishment, 13 Notre Dame J.L. Ethics & Pub. Pol’y 341

(1999) (arguing before decisions such as Trinity Lutheran Church v. Comer, 582 U.S. 449 (2017), that the

Constitution compels equal treatment of religious

schools when government funds are made available for

private education).

Third, the Court’s decisions provide religious parents with broad rights to instruct their children outside

of the public-school system. A century ago, the Court

recognized the right of Nebraska’s Zion Parochial

School to provide Biblical instruction to the children of

German families in their native tongue. See Meyer v.

Nebraska, 262 U.S. 390, 402-403 (1923); see also Driver,

Three Hail Marys: Carson, Kennedy, and the Fractured Détente over Religion and Education, 136 Harv.

L. Rev. 208, 234 (2022). Just two years later, the Supreme Court rejected Oregon’s effort to mandate

public-school attendance and prevent parents from

providing “[s]ystematic religious instruction and moral

training according to the tenets of the Roman Catholic

Church.” Pierce v. Society of the Sisters of the Holy

Names of Jesus and Mary, 268 U.S. 510, 532 (1925).

The Court’s more recent free-exercise decisions chart

9

a similar course, ensuring that States do not discriminate against parents who wish to educate their children

in private religious schools, see Carson v. Makin, 596

U.S. 767, 781 (2022) (holding that states discriminate

against religion when they “pay[] tuition for certain

students at private schools—so long as the schools are

not religious”), or compel school attendance when doing so would needlessly pose a “danger to the continued

existence of an ancient religious faith,” Wisconsin v.

Yoder, 406 U.S. 205, 218 n.9 (1972).

Each of these decisions recognizes that there is no

categorical “school exception” to the First Amendment. Students have broad rights to engage in religious practice and to be free of religious discrimination

while at school, just as parents have freedom to pursue

private religious education for their children.

2. This Court’s decisions recognize that school

curricula are subject to judicial determinations only in limited circumstances.

This Court’s decisions do not, however, permit parents, students, or judges to supplant local control over

routine educational decisions. On the contrary, this

Court has repeatedly affirmed that decisions about

public-school curricula should be made through the

democratic process, not through litigation in federal

court.

This Court has rejected constitutional theories that

would require courts to second-guess public schools’

curricular decisions or saddle judges with the burden

of overseeing the day-to-day operations of a publicschool system. In San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 6 (1973), for example, the Court

rejected a claim alleging that Texas’s system for financing public schools, which resulted in some schools

10

receiving substantially fewer resources than others, violated the Equal Protection Clause. The Court justified that decision by explaining that courts lack “the

expertise and the familiarity with local problems” that

are necessary to effectively manage public education.

Id. at 41; see Wilkinson, Goss v. Lopez: The Supreme

Court as School Superintendent, 1975 Sup. Ct. Rev. 25,

73-74 (1975) (criticizing decisions that “load upon the

public school system . . . constitutional baggage” and

hamper local communities’ “capacity to influence” public schools).

The Court has taken the same approach to constitutional remedies. Even when a federal court is tasked

with curing a constitutional violation involving public

schools, it “must strive to restore state and local authorities to the control of a school system operating in

compliance with the Constitution.” Missouri v. Jenkins, 515 U.S. 70, 99 (1995). That is because “local autonomy has long been thought essential both to the

maintenance of community concern and support for

public schools and to the quality of the educational process.” Milliken v. Bradley, 418 U.S. 717, 741-742

(1974).

This Court’s free-exercise decisions adhere to those

precedents. Although the Court has recognized a right

for students who wish to engage in religious expression

to be treated on the same terms as other students,

see Mergens, 496 U.S. at 247-253, it has not required

schools to make benefits available to certain religious

groups that are not available to others. Indeed, even in

Yoder, on which Petitioners rely extensively, the

Court’s decision permitted Old Order Amish parents to

opt out of the public-school system altogether, but not

to commandeer the administration of the public

schools. See 406 U.S. at 218-219.

11

* * *

This Court’s precedents have allowed religious expression to thrive alongside democratically accountable public schools. Today, 34 states have enacted statutes authorizing moments of silence consistent with the

decision in Wallace. See The Schoolhouse Gate, supra,

at 397. Students throughout the country are free to

participate in religious clubs as part of their publicschool education. See For a Lot of American Teens, Religion Is a Regular Part of the Public School Day, Pew

Rsch. Ctr. (Oct. 3, 2019), https://tinyurl.com/ytdw2nje.

And millions of students are either homeschooled or

take advantage of neutral voucher programs that support private religious education. See EdChoice, The

ABCs of School Choice 8 (2024), https://tinyurl.com/5b2865hw; Ray, Research Facts on Homeschooling, National Home Educ. Rsch. Inst. (July 20,

2023), https://nheri.org/research-facts-on-homeschooling/. These forums for religious expression are now

common features of American education. And importantly, none of them erodes local control over

schools or allows students or parents to disrupt the education of others whose religious beliefs differ.

B. Petitioners’ opt-out theory would undermine

this framework.

Legitimating Petitioners’ claim would foment the

very disruption and judicial intrusion that this Court

has rightly sought to avoid. On Petitioners’ view, the

Free Exercise Clause shields students from mere exposure to ideas that conflict with their religious faith—

here, books that include LGBT characters and promote

respect for LGBT people. That understanding of the

First Amendment finds no support in this Court’s prec-

12

edents and would transfer control over curricular decisions from elected school boards to individual parents

and the federal judiciary.

1. As MCPS has explained (at 22-25), a student’s

mere exposure to ideas that may conflict with his or her

faith does not establish an unconstitutional burden under the Free Exercise Clause. “The Free Exercise

Clause simply cannot be understood to require the

Government to conduct its own internal affairs in ways

that comport with the religious beliefs of particular citizens.” Bowen v. Roy, 476 U.S. 693, 699 (1986). Nor

does the Free Exercise Clause allow some citizens to

impose their religious views on others. See United

States v. Lee, 455 U.S. 252, 261 (1982) (rejecting a freeexercise claim that would “operate[] to impose the employer’s religious faith on the employees”).

Accordingly, courts have long rightly rejected

claims that routine public-school curricular decisions

unconstitutionally burden the free-exercise rights of

students or parents. Those decisions uniformly recognize that “[p]ublic schools are not obliged to shield individual students from ideas which potentially are religiously offensive,” Parker, 514 F.3d at 106, and “[t]he

requirement that students read the assigned materials

and attend reading classes . . . does not place an unconstitutional burden on the students’ free exercise of religion,” Mozert v. Hawkins Cnty. Bd. of Educ., 827

F.2d 1058, 1060 (6th Cir. 1987). “Were the free exercise

clause violated whenever governmental activity is offensive to or at variance with sincerely held religious

precepts, virtually no governmental program would be

constitutionally possible.” Grove v. Mead Sch. Dist.

No. 354, 753 F.2d 1528, 1542 (9th Cir. 1985) (Canby, J.,

concurring).

13

Moreover, Petitioners’ expansive opt-out theory undermines the “vital national tradition” of local autonomy over education. Missouri, 515 U.S. at 99. If MCPS

is forced to choose between establishing a reticulated

opt-out regime or removing any books with gay characters from the shelves, many other schools will soon

be confronted with similar choices involving social science, biology, and history. See infra, Part III. And federal judges will be required to supervise those choices,

deciding if a school has sufficiently prevented students

from encountering ideas that may conflict with their

faith. That is the exact result this Court has warned

against. See, e.g., Rodriguez, 411 U.S. at 41; McCollum

v. Board of Educ., 333 U.S. 203, 235 (1948) (Jackson, J.,

concurring) (“If we are to eliminate everything that is

objectionable to any of these warring sects or inconsistent with any of their doctrines, we will leave public

education in shreds.”).

2. Petitioners principally rely on Yoder to support

their opt-out theory. On their view, Yoder’s holding

that parents have a right to “withdraw[]” their children

“from public schools entirely” necessarily justifies

their “much narrower request to opt their children out

of discrete instruction that deliberately seeks to confound their religious values.” Pet’rs’ Br. 21-22. That argument reads far too much into Yoder and ignores the

practical implications of Petitioners’ theory. As this

Court made clear, it is Yoder’s holding that is narrow,

while Petitioners’ theory is sweeping.

Yoder involved a challenge to a compulsory education law brought by adherents to the Old Order Amish

religion. After surveying the “lengthy and successful

track record of the Old Order Amish as a stand-alone

society,”—as well as the relationship of faith to the society’s “entire mode of life” and the Amish belief that

14

children should receive a “program of informal vocational education,” Yoder, 406 U.S. at 211, 219—the

Court held that “the State’s requirement of compulsory formal education after the eighth grade would

gravely endanger if not destroy the free exercise of respondents’ religious beliefs.” The Schoolhouse Gate,

supra, at 406.

Yoder’s highly limited, even idiosyncratic holding

does not suggest a constitutionally compelled opt-out

regime for all students attending public schools and for

a wide variety of subjects and subject matters. See Pet.

App. 36a-40a; Parker, 514 F.3d at 98-100 (distinguishing Yoder because “plaintiffs have chosen to place their

children in public schools”); Mozert, 827 F.2d at 1067

(noting the “dramatic[] difference between Yoder and

the present case”); see also MCPS Br. 38-40.

Petitioners are also wrong to suggest (at 25) that

their opt-out theory is “narrower” than the one embraced by Yoder. Yoder did not inhibit local control

over public education: It simply permitted Old Order

Amish parents to withdraw their children from the

public-school system after the eighth grade when requiring their continued enrollment in that system

would be incompatible with their faith. See 406 U.S. at

221 (discussing the state’s asserted interest in “compulsory education”).

By contrast, Petitioner’s opt-out theory empowers

parents to function as lesson planners and ultimately

as censors: Any time they disagree with the content of

educational material, the school would need to either

strike it from the curriculum altogether or establish

bespoke lesson plans for those who opt out; otherwise,

students who opt out would not receive the same educational opportunities as others. It is hard to see how

15

schools could possibly “sift out of their teaching everything inconsistent with [the] doctrines” of America’s

multitudinous religious sects. McCollum, 333 U.S. at

235 (Jackson, J., concurring). And the Free Exercise

Clause does not require that extreme result. “[P]arents

simply do not have a constitutional right to control each

and every aspect of their children’s education and oust

the state’s authority over that subject.” Swanson v.

Guthrie Indep. Sch. Dist. No. I-L, 135 F.3d 694, 699

(10th Cir. 1998).

II. This Court’s free-speech precedents confirm that

Petitioner’s opt-out theory is misguided.

Petitioners’ opt-out theory also finds no support in

other First Amendment doctrines. In arguing that the

Free Exercise Clause compels an opt-out regime, Petitioners invoke (at 25-26, 45) foundational free-speech

precedents like West Virginia State Board of Educ. v.

Barnette, 319 U.S. 624 (1943). And in recent years, several members of this Court have indicated that freespeech law could be instructive when resolving disputes involving religious freedom. See Fulton, 593 U.S.

at 543 (2021) (Barrett, J., concurring) (joined by

Breyer, J. and Kavanaugh, J.); id. at 565, n.28 (Alito,

J., concurring in the judgment) (joined by Thomas, J.

and Gorsuch, J.). If the Court considers its free-speech

framework here, the result will be the same: Public

schools are not constitutionally compelled to shield students from ideas that conflict with the personal views

of their parents.

A. This Court’s free-speech precedents recognize

that school authorities must have the right to

set the curriculum.

As with the Free Exercise Clause, students do not

“shed their constitutional rights to freedom of speech

16

or expression . . . at the schoolhouse gate.” Tinker v.

Des Moines Indep. Sch. Dist., 393 U.S. 503, 506 (1969).

“America’s public schools are the nurseries of democracy,” and therefore have “an interest in protecting a

student’s unpopular expression.” Mahanoy Area Sch.

Dist. v. B.L., 594 U.S. 180, 191 (2021). As a result, public schools cannot prohibit students from engaging in

core political speech simply based on “undifferentiated

fear or apprehension of a disturbance” or to prevent

“discomfort and unpleasantness.” Tinker, 393 U.S. at

508-509; see Morse v. Frederick, 551 U.S. 393, 403-404

(2007).

That said, “courts must apply the First Amendment

‘in light of the special characteristics of the school environment.’ ” Mahanoy, 594 U.S. at 187 (quoting Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266

(1988)). One important feature of that environment is

the government-speech doctrine, which recognizes that

“[a] government entity has the right to speak for itself”

on important matters, even when that speech requires

the government to take sides on a political or social debate. Pleasant Grove City, Utah v. Summum, 555 U.S.

460, 467 (2009) (citation omitted); see Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 559 (2005) (explaining

that viewpoint discrimination in speech by the government “does not alone raise First Amendment concerns”). Without the government-speech doctrine,

elected officials would be unable to take positions on

important issues, rendering them incapable of addressing the very problems they are tasked with solving.

“Indeed, it is not easy to imagine how government

could function if it lacked this freedom.” Pleasant

Grove, 555 U.S. at 468.

The government-speech doctrine is critical for public schools. Schools engage in all manner of speech,

17

whether through “school-sponsored publications, theatrical productions, and other expressive activities that

students, parents, and members of the public might

reasonably perceive to bear the imprimatur of the

school.” Hazelwood, 484 U.S. at 271. In those contexts,

“educators do not offend the First Amendment by exercising editorial control over the style and content of

student speech.” Id. at 273; see also Morse, 551 U.S. at

422-423 (Alito, J., concurring) (explaining that Hazelwood “allows a school to regulate what is in essence the

school’s own speech”). “The government, through the

public school, may say what it wishes through its official house organ.” The Schoolhouse Gate, supra, at 110.

Schools’ authority is at its apex for decisions involving school curricula. “Few activities bear a school’s imprimatur and involve pedagogical interests more significantly than speech that occurs within a classroom

setting as part of a school’s curriculum.” Axson-Flynn

v. Johnson, 356 F.3d 1277, 1289 (10th Cir. 2004) (citations and quotation marks omitted). For that reason,

“students assigned to write a paper about the American Revolution—who would prefer to tackle the Cuban

Revolution—[do not] have a legitimate claim to their

preferred topic under the First Amendment[.]” The

Schoolhouse Gate, supra, at 19.

This Court recognized that principle in Island Trees

School District Board of Education v. Pico, 457 U.S.

853, 864 (1982). In that case, the Justices who joined

the lead opinion reasoned that the Constitution limits a

school library’s decision to remove books in certain instances. Id. at 863. But in doing so, even those Justices

expressed “full agreement with petitioners that local

school boards must be permitted ‘to establish and apply their curriculum in such a way as to transmit community values,’ ” id. at 864, and noted that “Petitioners

18

might well defend their claim of absolute discretion in

matters of curriculum by reliance upon their duty to

inculcate community values,” id. at 869; see id. at 878

n.1 (Blackmun, J., concurring in part and concurring in

the judgment) (reasoning that “it is difficult to see the

First Amendment right that I believe is at work here,”

i.e., the right not to be subjected to viewpoint discrimination in excluding books from a school library, “playing a role in a school’s choice of curriculum”).

Another “special characteristic of the school environment” is the need for school administrators to create and maintain an environment conducive to student

learning. Tinker explained that schools can regulate

student speech if that speech is likely to “materially

and substantially disrupt the work and discipline of the

school.” 393 U.S. at 513. Following Tinker, this Court

has repeatedly rejected free-speech challenges involving school discipline for speech made at school or as

part of school-sponsored activities, including in situations where the speech at issue was purely private and

did not “bear the imprimatur of the school.” Morse, 551

U.S. at 405 (quoting Hazelwood, 484 U.S. at 271) (holding that schools can regulate private student speech

promoting the use of illicit drugs); see Bethel Sch. Dist.

No. 403 v. Fraser, 478 U.S. 675, 685 (1986) (holding that

a school did not violate the First Amendment by disciplining a student who made lewd remarks at a school

assembly). In light of these decisions, it is well-settled

that public-school free-speech claims are not always

subject to strict scrutiny.

B. This Court’s free-speech precedents refute any

claim to student-specific opt outs.

The principles laid out above illustrate the error of

Petitioners’ position. Every day, school districts across

the country define their learning objectives and select

19

the educational materials they will use to meet them.

Those decisions invariably conflict with the views of at

least some families in the community.

But students do not have a right to prevent or limit

school expression that they dislike. Instead, “states enjoy broad discretionary powers in the field of public education,” which include “the authority to establish public school curricula which accomplishes the states’ educational objectives.” Chiras v. Miller, 432 F.3d 606, 611

(5th Cir. 2005). Accordingly, schools are not constitutionally compelled to create elaborate opt-out regimes

that will burden teachers, administrators, and other

students.

Indeed, free-speech doctrine even permits schools

to require that students write or speak. See, e.g.,

Axson-Flynn, 356 F.3d at 1291-1292 (“Requiring an

acting student, in the context of a classroom exercise,

to speak the words of a script as written is no different

than requiring that a law or history student argue a position with which he disagrees.”). Such decisions highlight the broad latitude afforded to public-school administrators under the Free Speech Clause: If the government required citizens to convey a certain message

outside the public schools, its actions would generally

be struck down. See, e.g., National Inst. of Family &

Life Advocates v. Becerra, 585 U.S. 755, 766 (2018). But

the schooling context makes the analysis different. And

if schools can serve their pedagogical objectives by requiring that students write or speak, surely they can

require that students read or hear as well.

For these reasons, an analogy to free-speech doctrine confirms that, as the Fourth Circuit held below,

Petitioners do not have a constitutional right to opt

their children out of the public-school curriculum while

20

they remain in public schools simply because of disagreement with the ideas to which their children have

been exposed. And because the proper result here

aligns with other First Amendment freedoms, this case

is a poor vehicle to revisit bedrock free-exercise precedents. Pet’rs’ Br. 3 (suggesting that, if Employment

Div. v. Smith, 494 U.S. 872 (1990), forecloses their

claim, “then Smith is in direct conflict with free-exercise guarantees and should be overruled”).

III. Petitioners’ opt-out theory is unworkable and

undemocratic.

A. Petitioners’ theory would invite a virtually unlimited range of opt-out demands.

If Petitioners prevail, schools will be forced to adjust their curricula across a wide range of subjects, including biology, history, civics, and language arts.

These concerns are hardly hypothetical; prior free-exercise challenges (all of which were unsuccessful) show

that parents can and will challenge all manner of garden-variety educational determinations about course

material, including:

• Stories for beginning readers that include a girl

who reads a recipe from a cookbook to a boy who

prepares a meal, for allegedly “communicat[ing]

the idea that there are no God-given roles for the

different sexes.” The Schoolhouse Gate, supra,

at 402 (discussing Mozert v. Hawkins Cty. Bd. of

Educ., 827 F.2d 1058, 1059 (6th Cir. 1987)) (quotation omitted).

• Books about “wizards, sorcerers, [and] giants,”

for allegedly “foster[ing] a religious belief in the

existence of superior beings” and teaching children anti-Christian values such as “tricks” and

21

“despair.” Fleischfresser v. Directors of Sch.

Dist. 200, 15 F.3d 680, 683 (7th Cir. 1994).

• A social studies curriculum that (i) did not “describe the divine origins of Hinduism,” (ii) “describe[d] Hinduism as consisting of ‘beliefs and

practices,’ ” and (iii) taught that the caste system

“was a social and cultural structure as well as a

religious belief,” for allegedly disparaging Hindu

faith. California Parents for Equalization of

Educ. Materials v. Torlakson, 973 F.3d 1010,

1014-1015 (9th Cir. 2020).

• Science courses that reference elements of evolutionary theory, including the “Big Bang Theory”

and “fossil record[s],” for allegedly “advancing the

atheist religion” in violation of the Establishment

Clause. Reinoehl v. Penn-Harris-Madison Sch.

Corp., 2024 WL 4008301, at *1-2 (S.D. Ind. Aug. 30,

2024).

And those free-exercise challenges would not stop

at curriculum. In one case, a parent challenged a

school’s use of “Smart ID” badges because he “felt the

chip in the badge was ‘the mark of the beast.’ ” A.H. ex

rel. Hernandez v. Northside Indep. Sch. Dist., 916 F.

Supp. 2d 757, 768 (W.D. Tex. 2013). 2

Given the astonishing breadth of these challenges,

Petitioners’ opt-out theory would severely impair pub-

Parents have raised similarly broad free-speech claims as

well, and those claims were rightly rejected. See Griswold v. Driscoll,

625 F. Supp. 2d 49, 52-55 (D. Mass. 2009), aff’d on other grounds, 616

F.3d 53 (1st Cir. 2010) (challenge to the removal of certain materials

from a “curriculum guide” on genocide and human rights, for allegedly violating the free-speech rights of parents, students, and teachers).

2

22

lic elementary and secondary education. Most obviously, an opt-out regime would impose costs on public

school teachers, administrators, and their students. On

subject after subject, schools would have to choose between substantially narrowing their curricula and sacrificing legitimate pedagogical goals along the way, or

implementing onerous and impracticable systems for

giving notice and opt-out rights to individual students.

And, ultimately, those burdens would prevent schools

from fulfilling their mission to prepare students to participate in a society filled with people who live and

think in many different ways.

For schools forced to provide opt-outs, the additional burdens would be overwhelming. Students unwilling to participate in certain lessons would have to

receive separate lessons to stay on track. Homework

assignments would need to be adjusted to exclude objectionable material. And exams would need to change

as well, with each student receiving a test tailored to

their particular opt-outs. Those requirements would

sap scarce resources from already harried public

school officials, who would be forced to serve parents a

curricular buffet to avoid any possibility of religious offense.

Of course, many schools would avoid these extra

costs by eliminating altogether the topics that may

yield opt-out requests. But such a decision would also

harm other students, allowing a handful of parents to

exercise a veto over valuable educational opportunities

for the school as a whole. See Lee, 455 U.S. at 261 (noting that the limits imposed by individual religious beliefs should not be “superimposed” on the resources

the government makes available to others); Montiero

v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1028

(9th Cir. 1998) (explaining that a student’s equal-

23

protection challenge to the inclusion of books in a public-school curriculum would “severely restrict a student’s right to receive material that his school board or

other educational authority determines to be of legitimate educational value”).

Petitioners’ theory would also generate profound

uncertainty for school administrators and judges, who

would soon confront difficult questions about how far

schools must go to comply with a constitutional opt-out

requirement. If a student challenges multiple aspects

of the public-school curriculum at once, would the

school need to create a bespoke lesson plan for that

particular child? If a student opts out of instruction on

a particular topic, does a teacher violate the Constitution by responding to a question on that topic when the

student is present? And if one parent’s claim is diametrically opposed to another parent’s claim—consider a

Montgomery County parent whose faith teaches that it

is wrong to exclude LGBT characters from the curriculum—how are educators supposed to referee those

dueling challenges? These questions and many others

are unavoidable under an opt-out regime. But Petitioners have not even tried to answer them.

And Petitioners’ theory would erode local control

over education. Facing a deluge of free-exercise challenges across a wide range of academic subjects,

schools would be forced into a defensive crouch, avoiding exposure to topics or ideas altogether—even when

elected officials and school administrators believe they

are valuable. Such a regime deprives local communities

of the ability to shape the school system through the

normal democratic process.

24

B. Petitioners’ proposed limiting principles would

not work.

Perhaps recognizing the breadth of their opt-out

theory, Petitioners offer two grounds for narrowing it.

But neither one distinguishes this case from the many

others that have challenged school curricula under the

First Amendment.

First, Petitioners suggest (at 22) that “[t]he

longstanding consensus of states deferring to parents

on when and how their children will receive sex education confirms that compelled instruction against their

religious beliefs substantially interferes with Petitioners’ free exercise right.” At the outset, it is not clear

why assigning books that do not reference sex, but

simply include gay characters, is “sex education.”

More importantly, Petitioners have not explained

why existing state laws concerning sex education are

relevant to the meaning of the Free Exercise Clause.

Communities have long debated whether to educate

students on many subjects apart from sex education,

including evolution, history, and civics. See Shaver,

Chalk Talk—The Debate over the Teaching of Evolution in Public Schools, 3 J. L. & Educ. 399, 399 (2003);

Nash et al., History on Trial: Culture Wars and Teaching of the Past 17-23 (2000); Murphy, Against Civic Education in Public Schools, 30 Int’l J. Pub. Admin. 651,

664-666 (2007). This Court has never held that school

districts are constitutionally compelled to adopt the approach that has prevailed in the greatest number of local jurisdictions. And it would be strange to rely on the

supposed “consensus” that has emerged through the

democratic process to strip elected officials of the ability to continue making decisions about education related to sex, sexual orientation, and gender.

25

The facts of this case vividly illustrate the importance of leaving curricular decision-making in the

hands of local communities. The materials Petitioners

challenge have been the subject of active debate in

Montgomery County for years. Advocates and detractors have made their voices heard at public fora, and

democratically accountable officials have faced scrutiny and defended their decisions to the electorate.

Pet. App. 13a-16a. This Court need not endorse

MCPS’s curricular choices to recognize that local

elected officials, rather than unelected judges, are best

positioned to make them.

Second, Petitioners contend (at 22) that their suit is

distinct because MCPS’s curriculum “deliberately

seeks to confound their religious values.” Notably, Petitioners do not argue that MCPS applied “direct or indirect pressure to abandon religious beliefs or affirmatively act contrary to those beliefs.” Pet. App. 35a.

Thus, all they can assert (at 42) is that the curriculum

exposed students to views in “an area of curriculum

that [MCPS] knew was laden with religious import.”

That standard does not distinguish this case from

prior decisions that have declined to impose opt-out regimes. In each of the cases discussed above, there can

be little doubt that the parents believed the curriculum

at issue was designed to “confound their religious values” and was “laden with religious import.” See supra,

at pp. 20-21. Courts are not equipped to scrutinize the

accuracy of those beliefs. See Thomas v. Review Bd. of

Ind. Emp. Sec. Div., 450 U.S. 707, 714 (1981) (“[R]eligious beliefs need not be acceptable, logical, consistent,

or comprehensible to others in order to merit First

Amendment protection.”). Nor could federal judges re-

26

liably determine which subjects are sufficiently important to warrant constitutional protection and which

ones are not.

CONCLUSION

The decision below adhered to a longstanding body

of law at the intersection of the First Amendment—including both religious freedom and free speech—and

public education in the United States. Those precedents accommodate the needs of religious families in

the educational system, while also preserving local control over public schools. Petitioners’ request for a constitutionally compelled opt-out regime is incompatible

with that doctrine and would fundamentally alter the

relationship among public schools, parents, and the

federal judiciary. The judgment of the court of appeals

should be affirmed.

Respectfully submitted.

H. RODGIN COHEN

SULLIVAN & CROMWELL LLP

125 Broad St.

New York, N.Y. 10004

APRIL 9, 2025

AMANDA FLUG DAVIDOFF

Counsel of Record

DANIEL J. RICHARDSON

HARRISON J. TANZOLA

SULLIVAN & CROMWELL LLP

1700 New York Ave., NW

Suite 700

Washington, D.C. 20006

(202) 956-7570

davidoffa@sullcrom.com