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.

Petitioners,

THOMAS W. TAYLOR, ET AL.,

Respondents.

————

On Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

————

BRIEF OF AMICI CURIAE

AMERICAN ATHEISTS, INC.

AND OTHER SECULAR GROUPS

IN SUPPORT OF RESPONDENT

————

GEOFFREY T. BLACKWELL

Counsel of Record

AMERICAN ATHEISTS, INC.

PO Box 58637

Philadelphia, PA 19121

(908) 276-7300, ext. 310

legal@atheists.org

Counsel for Amici Curiae

April 9, 2025

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................

ii

INTEREST OF AMICI CURIAE ........................

1

INTRODUCTION ................................................

2

ARGUMENT ........................................................

3

I.

Montgomery County’s actions do not

infringe the due process rights of

parents ......................................................

3

A. The scope of the parental due process

right is narrow .....................................

4

1. Private Instruction .........................

4

2. School Choice..................................

5

3. Child Labor ....................................

6

4. Mandatory School Attendance .......

7

B. State actions that implicate parental

rights are subject to rational basis

review ...................................................

9

C. Petitioners’ interpretation of the due

process rights of parents would break

the public school system ......................

11

Montgomery County is not responsible

for the independent actions of private

schools .......................................................

13

CONCLUSION ....................................................

15

II.

(i)

ii

TABLE OF AUTHORITIES

CASES

Page(s)

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

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

8

Blum v. Yaretsky,

457 U.S. 991 (1982) ...................................

14

Bob Jones Univ. v. United States,

461 U.S. 574 (1983) ...................................

12

Bordeaux v. Lions Gate Ent., Inc.,

703 F. Supp. 3d 1117 (C.D. Cal. 2023) .....

12

Brentwood Acad. v. Tenn. Secondary Sch.

Ath. Ass’n,

531 U.S. 288 (2001) ...................................

14

Brown v. Hot, Sexy & Safer Prods.,

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

8, 9

Fields v. Palmdale Sch. Dist.,

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

8-9

Jackson v. Metropolitan Edison Co.,

419 U.S. 345 (1974) ...................................

14

Kerry v. Din,

576 U.S. 86 (2015) .....................................

4

Lugar v. Edmondson Oil Co.,

457 U.S. 922 (1982) ...................................

14

McLean v. Ark. Bd. of Ed.,

529 F. Supp. 1255 (E.D. Ark. 1982) .........

12

Meyer v. Nebraska,

262 U.S. 390 (1923) .......................... 3-5, 8, 9, 11

Parents for Privacy v. Barr,

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

9

iii

TABLE OF AUTHORITIES—Continued

Page(s)

Pierce v. Society of Sisters,

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

5-8

Prince v. Massachusetts,

321 U.S. 158 (1944) .................................. 6-8, 10

Rendell-Baker v. Kohn,

457 U.S. 830 (1982) ...................................

14

Stanley v. Illinois,

405 U.S. 645 (1972) ................................... 10, 11

Tayag v. Lahey Clinic Hosp., Inc.,

632 F.3d 788 (1st Cir. 2011) .....................

12

United States v. Carolene Products Co.,

304 U.S. 144 (1938) ...................................

9

Wisconsin v. Yoder,

406 U.S. 205 (1972) ................................. 7, 8, 11

CONSTITUTION

U.S. Const. amend. I .................................... 1, 6, 8

U.S. Const. amend. XIV ............................ 2-4, 6, 9

STATUTES

42 U.S.C. § 1983 ........................................... 14, 15

Md. Code Ann., Educ. § 7-301(a)(3)

(LexisNexis 2024)......................................

13

iv

TABLE OF AUTHORITIES—Continued

OTHER AUTHORITIES

Page(s)

David Meconi, “The Seven Deadly Sins:

And how to overcome them in your life,”

Catholic Answers (Feb. 1, 2020),

available at https://www.catholic.com/ma

gazine/print-edition/the-seven-deadlysins ............................................................

12

Ugo A. Perego, “The Book of Mormon and

the Origin of Native Americans from a

Maternally Inherited DNA Standpoint,”

Brigham Young University Religious

Studies Center (2011) available at

https://rsc.byu.edu/no-weapon-shall-pros

per/book-mormon-origin-native-america

ns-maternally-inherited-dna-standpoint ...

12

INTEREST OF AMICI CURIAE 1

American Atheists, Inc., is a national 501(c)(3) civil

rights organization that works to achieve religious

equality for all Americans by protecting what Thomas

Jefferson called the “wall of separation” between

government and religion created by the First Amendment. American Atheists strives to promote understanding of atheists through education, advocacy,

and community-building; works to end the stigma

associated with atheism; and fosters an environment

where bigotry against our community is rejected.

To that end, American Atheists opposes any effort

to allow religious doctrine to govern public education

in the United States, whether by injecting religious

content into the curriculum or, as in the case before

the Court, by excluding content that happens to

contradict a parent’s religious beliefs.

The Secular Student Alliance (SSA) is a 501(c)(3)

educational nonprofit and network of over 200 student

chapters on high school and college campuses. Dedicated to advancing nonreligious viewpoints in public

discourse, the mission of the Secular Student Alliance

is to organize, unite, educate, and serve secular students and student communities that promote the

ideals of scientific and critical inquiry, democracy,

secularism and human-based ethics. SSA empowers

secular students to proudly express their identity,

build welcoming communities, promote secular values,

and set a course for lifelong activism. SSA and its

Amici have no parent company nor have they issued stock.

No counsel for a party authored this brief in whole or in part, and

no party or counsel for a party made a monetary contribution

intended to fund its preparation or submission. No person other

than amici made a monetary contribution to the preparation or

submission of this brief.

1

2

chapters and affiliates value the efforts of high

schools, colleges, and universities to ensure an inclusive and welcoming educational environment.

The Secular Coalition for America (SCA) is a group

of diverse organizations large and small representing

atheists, agnostics, humanists, and other nonreligious

Americans. As such, the Secular Coalition for America

is a dedicated 20-year-old lobbying organization whose

mission is to advocate for the equal rights of nonreligious Americans and defend the separation of

religion and government in Congress, in the executive

branch, in the courts, and more recently, in public

schools. SCA is also dedicated to amplifying the

diverse and growing voice of the nontheistic community in the United States.

INTRODUCTION

Parents have a limited right under the Due Process

Clause of the 14th Amendment to control the upbringing of their children. This Court has always acknowledged that this protection falls short of granting

parents the equivalent of a line-item veto over the

public school curriculum. Such a system would be

wholly unworkable in light of the multitude of disparate and contradictory religious beliefs American

parents hold that may conflict with teachers’ lesson

plans.

Furthermore, Petitioners present this Court with

a question not raised by this case. Petitioners do have

the opportunity to opt their children out of the

instruction they find objectionable: They can send

their children to a religious private school. Petitioners,

however, do not like this option because private

schools cost money. This, they contend, means

that the Montgomery County Board of Education

3

(“Montgomery County” or the “Board”) is burdening

their religious exercise. They demand that the Board

convert its public school system to an a-la-carte system

of education wherein every parent may pick and

choose each individual lesson for their child, based on

their personal religious beliefs. But the independent

decisions of private schools to charge tuition payments

is not attributable to Montgomery County. Private

schools may indeed be burdening the Petitioners’

exercise of their religious beliefs but that is their

prerogative and not within the control of Montgomery

County.

ARGUMENT

I. Montgomery County’s actions do not

infringe the due process rights of parents.

The parental right to control the upbringing of

children is found nowhere in the Constitution. It is,

instead, a creature of judicial creation dating back

only to the 1900s. Nevertheless, there is no serious

doubt that parents have a limited right to control

the upbringing of their children, protected against

encroachment by the government by the Due Process

Clause of the 14th Amendment. Meyer v. Nebraska,

262 U.S. 390, 399-400 (1923). This substantive due

process right applies only in specific contexts,

however: school choice and private instruction of

children, custody determinations, and control over

third parties’ access to a child. This Court has also

clearly stated a number of areas into which the right

does not extend: child labor and, crucially, curricular

decisions made by public schools.

4

A. The scope of the parental due process

right is narrow.

1. Private Instruction

The Supreme Court first explicitly acknowledged a

parent’s right to “bring up children” not in a case

brought by a parent but in a German-language

teacher’s appeal of a criminal conviction. Meyer, 262

U.S. at 396. Nebraska law prohibited the teaching

of “[l]anguages, other than the English language,” to

children prior to completion of eighth grade. Id. at 397.

In holding that the law violated the 14th Amendment’s

Due Process Clause, the Court stated that the liberty

guaranteed therein:

denotes not merely freedom from bodily

restraint but also the right of the individual

to contract, to engage in any of the common

occupations of life, to acquire useful knowledge, to marry, establish a home and bring

up children, to worship God according to the

dictates of his own conscience, and generally

to enjoy those privileges long recognized

at common law as essential to the orderly

pursuit of happiness by free men. 2

Id. at 399 (emphasis added). The Court then cited a

string of cases supporting elements of this declaration.

None of the cited cases deal directly with the

upbringing of children, however.

Notably, the Supreme Court recently identified this language

as dicta, Kerry v. Din, 576 U.S. 86, 93-94 (2015), though the Court

acknowledged the existence of parents’ Due Process Clause right

nonetheless, id. at 94-95.

2

5

The Court did not expand further on the right to

bring up children and noted that the decision had no

bearing on “[t]he power of the State to compel

attendance at some school and to make reasonable

regulations for all schools, including a requirement

that they shall give instructions in English,” and, of

particular importance in the present case, “to prescribe a curriculum for institutions which it supports.”

Id. at 402.

2. School Choice

The Supreme Court next expounded on parents’

Due Process right in Pierce v. Society of Sisters, a

consolidation of two cases brought by private schools

in Oregon. 268 U.S. 510, 529-30 (1925). The schools

had been granted preliminary injunctions prohibiting

the enforcement of Oregon’s Compulsory Education

Act, which required parents and guardians of children

between eight and sixteen years old to send their

children to public schools. Id. at 530. Failure to do

so was a misdemeanor offense. Id. With very little

discussion, the Court declared:

Under the doctrine of Meyer v. Nebraska, 262

U.S. 390, we think it entirely plain that the

Act of 1922 unreasonably interferes with the

liberty of parents and guardians to direct the

upbringing and education of children under

their control. . . . The fundamental theory of

liberty upon which all governments in this

Union repose excludes any general power

of the State to standardize its children by

forcing them to accept instruction from public

teachers only. The child is not the mere

creature of the State; those who nurture him

and direct his destiny have the right, coupled

6

with the high duty, to recognize and prepare

him for additional obligations.

Id. at 534-35.

3. Child Labor

Twenty years later, in Prince v. Massachusetts, the

Court reaffirmed parents’ right to control “the custody,

care[,] and nurture of the child,” 321 U.S. 158, 166

(1944), but also significantly limited the scope of that

right (as well as the right to the free exercise of

religion), id. at 169-70. Prince reached the Supreme

Court on appeal from the conviction of a nine-year-old

girl’s guardian for the violation of Massachusetts’

child labor laws, which declared:

No boy under twelve and no girl under

eighteen shall sell, expose[,] or offer for sale

any newspapers, magazines, periodicals[,] or

any other articles of merchandise of any

description, or exercise the trade of bootblack

or scavenger, or any other trade, in any street

or public place.

Id. at 159-60. Holding that the state statute violated

neither the Free Exercise Clause nor the 14th Amendment’s Due Process Clause, the Supreme Court stated:

Acting to guard the general interest in

youth’s well being, the state as parens patriae

may restrict the parent’s control by requiring

school attendance, regulating or prohibiting

the child’s labor[,] and in many other ways.

Its authority is not nullified merely because

the parent grounds his claim to control

the child’s course of conduct on religion or

conscience. . . . It is sufficient to show what

indeed appellant hardly disputes, that the

7

state has a wide range of power for limiting

parental freedom and authority in things

affecting the child’s welfare; and that this

includes, to some extent, matters of conscience and religious conviction.

Id. at 166-67. The Court went on to note that parents’

right did not invalidate this restriction on child labor

even though the same law, if it were applied “to adults

or all persons generally, would be invalid.” Id. at 167.

The state’s authority over children’s activities

is broader than over like actions of adults.

This is peculiarly true of public activities and

in matters of employment. A democratic

society rests, for its continuance, upon the

healthy, well-rounded growth of young people

into full maturity as citizens, with all that

implies. It may secure this against impeding

restraints and dangers within a broad range

of selection. . . . It is too late now to doubt that

legislation appropriately designed to reach

such evils is within the state’s police power,

whether against the parent’s claim to control

of the child or one that religious scruples

dictate contrary action.

Id. at 168-69 (emphasis added).

4. Mandatory School Attendance

Society of Sisters had expressly left open the question

of the state’s power “to require that all children of

proper age attend some school[.]” Id. at 534. That

question would be partially answered half a century

later in Wisconsin v. Yoder, in which the Court heard

three Amish parents’ appeal of their convictions under

a Wisconsin statute that mandated that children attend

school (whether public or private) until they turn 16.

8

406 U.S. 205, 207 (1972). The parents argued that it

violated their right to the free exercise of their religion

to send their children to school beyond 8th grade. Id.

Although primarily focused on applying the Free

Exercise Clause, id. at 215-29, the Court also

addressed Wisconsin’s argument that the statute

should survive both free exercise and parents’ right

challenges based on the Court’s decision in Prince.

Citing the language of Society of Sisters, the Court

stated that parents’ “duty to prepare the child for

‘additional obligations[]’ . . . must be read to include

the inculcation of moral standards, religious beliefs,

and elements of good citizenship.” Id. at 233.

“[A]ccommodating the religious objections of the

Amish by forgoing one, or at most two, additional

years of compulsory education” beyond eighth grade

would not undermine the state’s interest in

maintaining “the health or safety of the child, or have

a potential for significant social burdens.” Id. at 234.

Nevertheless, this Court unequivocally stated that

its parental rights cases “lend[] no support to the

contention that parents may replace state educational

requirements with their own idiosyncratic views of

what knowledge a child needs to be a productive and

happy member of society; . . . .” Id. at 239. Once a

parent has chosen to send their children to public

school, their due process right does not require the

school or district to tailor its curriculum or policies to

the parent’s beliefs. See Meyer, 262 U.S. at 402; Brown

v. Hot, Sexy & Safer Prods., 68 F.3d 525, 533-34 (1st

Cir. 1995) (addressing parent’s objection to public

school’s sex education curriculum); Blau v. Fort

Thomas Pub. Sch. Dist., 401 F.3d 381, 395-96 (6th Cir.

2005) (addressing challenge to school dress code);

Fields v. Palmdale Sch. Dist., 427 F.3d 1197, 1206

9

(9th Cir. 2005) (challenge to psychological survey of

students that included questions relating to sexual

topics); Parents for Privacy v. Barr, 949 F.3d 1210 (9th

Cir. 2020) (challenge to policy protecting transgender

children).

If all parents had a fundamental constitutional right to dictate individually what the

schools teach their children, the schools

would be forced to cater a curriculum for each

student whose parents had genuine moral

disagreements with the school’s choice of

subject matter.

Brown, 68 F.3d at 534.

B. State actions that implicate parental

rights are subject to rational basis

review.

This Court has never applied strict scrutiny in the

context of a parental rights claim. Meyer and Society

of Sisters applied only rational basis review when

invalidating the laws at issue. 262 U.S at 402-403

(“We are constrained to conclude that the statute as

applied is arbitrary and without reasonable relation to

any end within the competency of the State.”); 268

U.S. at 534-35 (“rights guaranteed by the Constitution

may not be abridged by legislation which has no

reasonable relation to some purpose within the competency of the State”). 3

These cases predate United States v. Carolene Products Co.,

304 U.S. 144 (1938), in which the Court first indicated that

heightened scrutiny may be warranted where a challenged

government action “appears on its face to be within a specific

prohibition of the Constitution,” including particularly the

Fourteenth Amendment, id. at 152 n.4, and eventually led to the

development of the intermediate and strict scrutiny standards.

3

10

The Court likewise subjected the child labor statute

challenged in Prince to rational basis review when it

concluded “that legislation appropriately designed to

reach such evils is within the state’s police power,

whether against the parent’s claim to control of the

child or one that religious scruples dictate contrary

action.” 321 U.S. at 169. “The state’s authority over

children’s activities is broader than over like actions of

adults.” Id. at 168.

Massachusetts has determined that an absolute prohibition [of child labor], though one

limited to streets and public places and to

the incidental uses proscribed, is necessary to

accomplish its legitimate objectives. Its power

to attain them is broad enough to reach these

peripheral instances in which the parent’s

supervision may reduce but cannot eliminate

entirely the ill effects of the prohibited

conduct.

Id. at 170.

This Court also implicitly subjected the state’s law

governing the custody of illegitimate children to

rational basis review. Prior to 1972, Illinois’ family law

included an irrebuttable presumption that the fathers

of “illegitimate” children were unfit and that, upon the

death of the mother, and without a hearing, the

children became wards of the state. Stanley v. Illinois,

405 U.S. 645, 646-47 (1972). The father’s actual fitness

“was irrelevant.” Id. at 647. Unwed fathers who

wished to regain custody of their children had to do so

through either guardianship or adoption proceedings.

Id. at 647-48.

The Supreme Court, while acknowledging that

the state undoubtedly had an interest in protecting

11

children from “neglectful parents,” id. at 652, determined that the state’s interest was not served by

presumptively declaring all unwed fathers to be unfit

simply because some of them were. Id. at 652-53, 654

n.6. The Court recognized the state’s declared interests in protecting the wellbeing of children and

the community, 405 U.S. at 652, and in establishing

efficient procedures, id. at 656, as legitimate. Nevertheless, the Court went on to invalidate the statute on

the ground that “the State registers no gain towards

its declared goals when it separates children from the

custody of fit parents. Indeed, if Stanley is a fit father,

the State spites its own articulated goals when it

needlessly separates him from his family.” Id. at

652-53.

C. Petitioners’ interpretation of the due

process rights of parents would break

the public school system.

From the moment this Court first recognized

parents’ due process right to raise children, it has

acknowledged the impracticability of giving parents

individualized control over the school curriculum.

Meyer, 262 U.S. at 402; see also Yoder, 406 U.S. at 239.

Demanding that schools permit parents to opt their

children out of any element of the curriculum that

conflicts with their religious beliefs would impact

every lesson in every subject. The number of topics

that may conflict with an individual parent’s religious

beliefs is as numerous as the varied religious beliefs

held by American parents.

One need not look further than the numerous

Christian sects with adherents in the United States.

School districts would need to present every parent

with a list of all books that may potentially be included

in class, lest any of them run counter to the parents’

12

beliefs. A parent could veto any storybook that features an interracial couple, Bob Jones Univ. v. United

States, 461 U.S. 574, 580 (1983). A “young Earth”

creationist parent may object to world history lessons

that examine (or even acknowledge) any events

occurring more than approximately 6,000 years ago, or

object to their child taking high school physics because

it would introduce them to the principles that undergird radio-carbon dating, which again show that

the world existed more than 6,000 years ago. See

generally, McLean v. Ark. Bd. of Ed., 529 F. Supp. 1255

(E.D. Ark. 1982). A Christian Scientist parent may

object to instruction concerning the germ theory of

disease. Tayag v. Lahey Clinic Hosp., Inc., 632 F.3d

788, 791 (1st Cir. 2011); see also Bordeaux v. Lions

Gate Ent., Inc., 703 F. Supp. 3d 1117, 1126 (C.D. Cal.

2023). A Catholic parent might object to lessons on

capitalism and economics as a promotion of greed, one

of the seven deadly sins. David Meconi, “The Seven

Deadly Sins: And how to overcome them in your life,”

Catholic Answers (Feb. 1, 2020), available at https://

www.catholic.com/magazine/print-edition/the-sevendeadly-sins. A Mormon parent may wish to opt their

child out of significant portions of American History

courses—such as those describing the migration of

humans from Asia to North America across the Bering

Strait—which contradict the Book of Mormon. Ugo A.

Perego, “The Book of Mormon and the Origin of

Native Americans from a Maternally Inherited DNA

Standpoint,” Brigham Young University Religious

Studies Center (2011) available at https://rsc.byu.edu

/no-weapon-shall-prosper/book-mormon-origin-nativeamericans-maternally-inherited-dna-standpoint. Such

a situation would make planning for instruction and

testing a practical impossibility.

13

II. Montgomery County is not responsible

for the independent actions of private

schools.

The Petitioners contend that Montgomery County

must give them an opportunity to opt their children

out of the instruction they disagree with and that

it has not given them such an opportunity. At the same

time, the Petitioners repeatedly acknowledge that

they may choose to send their children to private

school rather than to the public schools. Br. for Pet’rs

15-16, 21, 45. Indeed, the Petitioners do send their

children to private school and they do not allege that

they have been punished in any way for doing so. Id.

Nevertheless, they contend that this option is insufficient because the private schools they have chosen to

send their children to charge tuition. Id. at 16, 18, 21,

45. The state imposes no penalty for sending a child

to private school, nor does Montgomery County. The

government imposes no fine or fee, no special tax, no

criminal sanction, on anyone who wishes for their

children to receive an education that fully comports

with their religious beliefs. Md. Code Ann., Educ.

§ 7-301(a)(3) (LexisNexis 2024). Petitioners’ argument, stripped of spin and obfuscation, is that the

government unconstitutionally burdens their free exercise of religion when it provides a free service to the

community and allows private, religious entities to

provide the same service, but the religious entities

charge money for that service. This is a shocking

argument. The contention that the Montgomery

County Board of Education burdens the Petitioners’

religious exercise because someone else charges money

for the equivalent service flies in the face of basic

understandings of state action.

14

To prevail on a constitutional claim brought under

42 U.S.C. § 1983, a litigant must demonstrate, among

other things, that the act giving rise to their claim

is attributable to state action. It has long been

understood that the actions of a private entity are only

attributable to the government in specific circumstances. Brentwood Acad. v. Tenn. Secondary Sch.

Ath. Ass’n, 531 U.S. 288, 295 (2001). These are limited

to situations in which the private entity (i) is performing a traditional, exclusive public function, Jackson v.

Metropolitan Edison Co., 419 U.S. 345, 352-54 (1974),

(ii) is compelled by the government to take a particular

action, Blum v. Yaretsky, 457 U.S. 991, 1004-1005

(1982); or (iii) is working jointly with the government,

Lugar v. Edmondson Oil Co., 457 U.S. 922, 941-942

(1982). Absent such a connection between an action of

the government and the alleged harm, a claim cannot

survive.

Petitioners in the present case have not, and cannot,

show that the burden on their free exercise—the

financial costs of sending their children to religious

private schools—is imposed by any state action.

Private schools do not perform a function that has

traditionally been exclusively performed by the state.

See, e.g., Rendell-Baker v. Kohn, 457 U.S. 830, 842

(1982) (plaintiff could not sustain 1983 action against

private school for termination of employment, despite

public funding). Nowhere do petitioners contend that

the Respondents compelled the private schools to

which the Petitioners send their children to charge the

tuition, fees, and other costs imposed by those schools

on the Petitioners. Nor do Petitioners make any

allegation that the government is working jointly with

the private schools where their children are enrolled.

In short, the Petitioners have made no attempt to

show that the burden imposed on their religious

15

exercise, i.e., the costs associated with religious education, are caused in any way by the Respondents or any

other state actor. Without this key element of any

§ 1983 claim, the Petitioners cannot succeed in their

challenge to the Board’s actions.

CONCLUSION

For the foregoing reasons, amici urge this Court to

AFFIRM the decision of the Fourth Circuit Court of

Appeals.

Respectfully submitted,

GEOFFREY T. BLACKWELL

Counsel of Record

AMERICAN ATHEISTS, INC.

PO Box 58637

Philadelphia, PA 19121

(908) 276-7300, ext. 310

legal@atheists.org

Counsel for Amici Curiae

April 9, 2025