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.,

Petitioners,

Respondents.

On Writ of Certiorari to the United States

Court of A ppeals for the Fourth Circuit

BRIEF OF AMERICAN CIVIL LIBERTIES

UNION AND AMERICAN CIVIL LIBERTIES

UNION OF MARYLAND AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

Cecillia D. Wang

A merican Civil Liberties

Union Foundation

425 California Street

Suite 700

San Francisco, CA 94104

Louise Melling

A merican Civil Liberties

Union Foundation

125 Broad Street

18th Floor

New York, NY 10004

378547

Daniel Mach

Counsel of Record

Aditi Fruitwala

Heather L. Weaver

Michelle Fraling

A merican Civil Liberties

Union Foundation

915 15th Street, N.W.

Washington, D.C. 20005

(202) 675-2330

dmach@aclu.org

Deborah Jeon

Sonia Kumar

A merican Civil Liberties

Union Foundation Of

Maryland

3600 Clipper Mill Road

Suite 350

Baltimore, MD 21211

TABLE OF CONTENTS

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

INTEREST OF AMICI CURIAE ..............................1

INTRODUCTION .....................................................1

SUMMARY OF ARGUMENT ..................................4

ARGUMENT .............................................................8

I.

YODER DOES NOT REQUIRE COURTS

TO APPLY STRICT SCRUTINY TO

EVERY CURRICULAR REQUIREMENT

TO WHICH PARENTS OBJECT ON

RELIGIOUS GROUNDS ...................................8

II. THE “NO OPT-OUT” POLICY DOES NOT

TREAT SECULAR AND RELIGIOUS

CONDUCT DIFFERENTLY AND DOES

NOT TRIGGER STRICT SCRUTINY

UNDER TANDON ...........................................12

A. The ELA Curriculum and the Sex

Education

Curriculum

Present

Different Content and Serve Different

Governmental Interests ............................14

B. The ELA Opt-Outs Undermined

MCPS’s Governmental Interest in

Educating Students About Diverse

Individuals, Groups, and Cultures,

Conflicted with MCPS’s Obligation to

Provide an Inclusive and Safe Learning

Environment for LGBTQ Students and

Families, and Proved Unworkable............17

i

III. MCPS’S POLICY PROHIBITING OPTOUTS

DOES

NOT

INCLUDE

DISCRETIONARY EXEMPTIONS AND

DOES

NOT

IMPLICATE

STRICT

SCRUTINY UNDER FULTON .......................20

IV. THE “NO OPT-OUT” POLICY WAS NOT

ENACTED OUT OF HOSTILITY TO

RELIGION AND STRICT SCRUTINY IS

NOT

REQUIRED

UNDER

MASTERPIECE ...............................................23

CONCLUSION........................................................27

ii

TABLE OF AUTHORITIES

Cases

Page(s)

Bd. of Educ., Island Trees Union Free Sch. Dist.

No. 26 v. Pico,

457 U.S. 853 (1982) .............................................. 1

Canaan Christian Church v. Montgomery Cnty.,

29 F.4th 182 (4th Cir. 2022) .............................. 21

Church of Lukumi Babalu Aye, Inc. v. City of

Hialeah,

508 U.S. 520 (1993) ............................ 5, 13, 22, 24

Edwards v. Aguillard,

482 U.S. 578 (1987) .............................................. 2

Emp. Div. v. Smith,

494 U.S. 872 (1990) .............................................. 5

Fulton v. City of Philadelphia,

593 U.S. 522 (2021) ...................... 6, 13, 20, 21, 22

General Motors Corp. v. Tracy,

519 U.S. 278 (1997) ............................................ 14

Illinois ex rel. McCollum v. Bd. of Educ.,

333 U.S. 203 (1948) .............................................. 2

Masterpiece Cakeshop, Ltd. v. Colo. C.R.

Comm’n,

584 U.S. 617 (2018) ............................ 7, 23, 24, 25

Meyer v. Nebraska,

262 U.S. 390 (1923) ........................................ 9, 10

iii

Parker v. Hurley,

514 F.3d 87 (1st Cir. 2008) .................................. 9

Pierce v. Soc’y of the Sisters of the Holy Names of

Jesus & Mary,

268 U.S. 510 (1925) ........................................ 9, 10

Sch. Dist. of Abington Twp. v. Schempp,

374 U.S. 203 (1963) .............................................. 2

Swartz v. Sylvester,

53 F.4th 693 (1st Cir. 2022) ............................... 22

Tandon v. Newsom,

593 U.S. 61 (2021) .............6, 12, 13, 14, 15, 17, 20

Tingley v. Ferguson,

47 F.4th 1055 (9th Cir. 2022) ............................ 22

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

393 U.S. 503 (1969) .............................................. 2

Wisconsin v. Yoder,

406 U.S. 205 (1972) ...................... 5, 6, 8, 9, 10, 12

Yellowbear v. Lampert,

741 F.3d 48 (10th Cir. 2014) .............................. 23

Other Authorities

Page(s)

CKLA Grade 5 Overview,

Montgomery Cnty. Pub. Schs.,

https://perma.cc/4A5H-F2A3 ............................. 12

iv

CKLA Kindergarten Overview,

Montgomery Cnty. Pub. Schs.,

https://perma.cc/H97S-BTEE............................. 16

CKLA PreK Overview,

Montgomery Cnty. Pub. Schs.,

https://perma.cc/2CX2-BQRY ............................ 16

Comprehensive Health Education in Grade 4,

Montgomery Cnty. Pub. Schs.,

https://perma.cc/9N63-2TA9 .............................. 11

Cooke, Trish,

Full, Full, Full of Love (2008) ............................ 16

Gower et. al, Amy L.,

First- and Second-Hand Experiences of

Enacted Stigma among LGBTQ Youth, J.

Sch. Nurs. (July 23, 2019) .................................. 18

Heide, Florence Parry,

Princess Hyacinth (The Surprising Tale of a

Girl Who Floated) (2016).................................... 16

Hertzler-McCain, Aleja,

Montgomery County, Maryland, was most

religiously diverse US county in 2023,

Religion News Serv. (Aug. 30, 2024) ................... 4

Intro to CKLA: Grade 2,

Montgomery Cnty. Pub. Schs.,

https://perma.cc/6G2N-UN94 ............................ 11

Intro to CKLA: Kindergarten,

Montgomery Cnty. Pub. Schs.,

https://perma.cc/TRG6-8Z7N ............................. 11

v

Intro to CKLA: PreK,

Montgomery Cnty. Pub. Schs.,

https://perma.cc/XBT4-6G7D ............................. 11

Mot. for Prelim. Inj.,

Mahmoud v. McKnight, No. 8:23-cv-01380

(D. Md. Aug. 9, 2023), ECF No. 23 .................... 19

Prelim. Inj. Tr.,

Mahmoud v. McKnight, No. 8:23-cv-01380

(D. Md. Aug. 9, 2023), ECF No. 50 .................... 20

Science Curriculum: Elementary School,

Montgomery Cnty. Pub. Schs.,

https://perma.cc/4WBE-EV9J (click

“Grade 1 Science”) .............................................. 11

Science Curriculum: Elementary School,

Montgomery Cnty. Pub. Schs.,

https://perma.cc/4WBE-EV9J (click “Grade 3

Science”).............................................................. 11

Regulations

Page(s)

Md. Code Regs. 13A.04.18.01 ................. 14, 15, 17, 19

vi

INTEREST OF AMICI CURIAE1

The American Civil Liberties Union

(“ACLU”) is a nationwide, nonprofit, nonpartisan

organization with nearly two million members and

supporters dedicated to the principles of liberty and

equality embodied in the Constitution and our

nation’s civil rights laws. The ACLU of Maryland is

one of the ACLU’s statewide affiliates.

Since its founding in 1920, the ACLU has

frequently appeared before this Court, both as direct

counsel and as amicus curiae. As organizations that

have long been dedicated to preserving the right of

religious exercise without harm to others and

ensuring that our public education system remains

safe and welcoming for all students, the ACLU and the

ACLU of Maryland have a strong interest in the

proper resolution of this case.

INTRODUCTION

This Court has consistently recognized that

“public schools are vitally important in the

preparation of individuals for participation as

citizens[.]” Bd. of Educ., Island Trees Union Free Sch.

Dist. No. 26 v. Pico, 457 U.S. 853, 864 (1982) (internal

quotation marks omitted). And, to that end, this Court

has also observed that “[t]he Nation’s future depends

1 Pursuant to Supreme Court Rule 37.6, counsel for amici certify

that no party’s counsel authored this brief in whole or in part; no

party or party’s counsel contributed money that was intended to

fund the preparation or submission of the brief; and no person

other than amici, their members, or their counsel contributed

money intended to fund the preparation or submission of the

brief.

1

upon leaders trained through wide exposure to . . . [a]

robust exchange of ideas[.]” Tinker v. Des Moines

Indep. Cmty. Sch. Dist., 393 U.S. 503, 512 (1969).

Public schools instill in students democratic and civic

values, expose them to a diversity of ideas and

perspectives, and prepare them to live and succeed in

our pluralistic society. Indeed, public schools are “at

once the symbol of our democracy and the most

pervasive means for promoting our common destiny.”

Edwards v. Aguillard, 482 U.S. 578, 584 (1987)

(quoting Illinois ex rel. McCollum v. Bd. of Educ., 333

U.S. 203, 231 (1948)); see also Sch. Dist. of Abington

Twp. v. Schempp, 374 U.S. 203, 230 (1963) (Brennan,

J., concurring) (“Americans regard the public schools

as a most vital civic institution for the preservation of

a democratic system of government.”).

Montgomery County Public Schools (“MCPS”)

previously allowed opt-outs from the LGBTQ-related

portion of its English Language Arts (“ELA”)

curriculum for any reason, religious or secular. That

policy, however, proved to be disruptive, divisive, and

stigmatizing. It undermined the educational mission

of the ELA curriculum, which seeks to acquaint

students with their peers, neighbors, and

communities through literature. As a result, MCPS

barred all ELA opt-outs. The ELA curriculum and

MCPS’s decision to no longer offer opt-outs are

religion-neutral, generally applicable, and entirely

permissible under the First Amendment.

Under Petitioners’ argument, public school

parents and students could demand religious

exemptions from wide swaths of curricular

requirements and instruction. Citing their religious

beliefs against interfaith or interracial marriages,

2

parents could demand that their children be pulled

out of class during storybook readings because, in text

or illustration, a book depicts an interfaith or multiracial family. Parents of one religion could demand to

opt their children out of neutral social studies lessons

on other faiths, arguing that even an academically

objective curriculum on these topics violates their

religious beliefs. Some parents could object for

religious reasons to their students being assigned to

read Shakespeare’s Twelfth Night because a woman

character pretends to be a man. Protestant parents

could claim the right to remove their children from

history lessons on

nineteenth-century antiCatholicism, asserting that such lessons denigrate the

Protestant faith and its history. A student or parent

could demand a religious opt-out from instruction on

efforts to protect endangered species because it

implicitly conflicts with their view that God exerts

infallible, divine control over the environment.

Lessons in patriotism could be viewed by some people

of faith as improperly elevating country over God.

Some parents could object to lessons on any historical

figure who happened to be LGBTQ (e.g., Sally Ride,

Alan Turing, Frida Kahlo, Jane Addams). Others

might object to their children being in the classroom

for a peer’s presentation on their family tree, if the

family tree includes same-sex parents. And parents

whose faith teaches that women should not work

outside of the home could seek to opt out of every

lesson featuring women who do.

In sum, requiring public schools to exempt

students from secular instruction that they or their

parents may find objectionable for religious reasons

could throw public schools into disarray, effectively

3

forcing them to tailor their educational materials to

align with the religious beliefs of individual students

and/or their parents. Depending on the topic, schools

might be unable to reconcile parents’ and students’

various religious objections and, therefore, might not

have any feasible way to cover the topic at all. Or

schools could even be pushed into segregating

students by religion, providing instruction acceptable

to some faith traditions in one classroom and

instruction acceptable to other faith traditions in

another. Such a risk is especially high in Montgomery

County, which is, as Petitioners note, the most

religiously diverse county in the United States. Pet’rs’

Br. 8 n.8 (citing Aleja Hertzler-McCain, Montgomery

County, Maryland, was most religiously diverse US

county in 2023, Religion News Serv. (Aug. 30, 2024),

https://perma.cc/86PU-3QLA). Rather than promoting

understanding and a healthy exchange of ideas,

classes with opt-outs could invite polarization and

division.

Not only would such a system be extremely

disruptive to the educational process, as MCPS

discovered, but it would upend public schools’ raison

d’être and offend the basic principles of religious

comity at the heart of the First Amendment and our

democracy.

SUMMARY OF ARGUMENT

Amici write to explain that, should this Court

identify a cognizable burden on Petitioners’ religious

exercise, MCPS’s policy prohibiting opt-outs from the

ELA curriculum should be subject to rational basis

review, not strict scrutiny.

4

Under this Court’s precedents, a “neutral law of

general applicability” is subject to rational basis

review under the Free Exercise Clause of the First

Amendment, even if it incidentally burdens a

particular religious practice or belief. Employment

Div. v. Smith, 494 U.S. 872, 878–79 (1990); see also

Church of Lukumi Babalu Aye, Inc. v. City of Hialeah,

508 U.S. 520, 531 (1993). The MCPS policy against

opt-outs from the ELA curriculum comfortably

satisfies this standard. It applies to all students and

families across the board, regardless of the reason for

their objection to any portion of the ELA instruction.

None of the grounds Petitioners offer in proposing

strict scrutiny actually requires departing from the

Smith standard.2 Indeed, this case demonstrates one

benefit of the Smith rule: If public policymakers did

not have leeway to impose religion-neutral and

generally applicable requirements, the chaos of optouts could gravely threaten public schools’ ability to

function effectively.

First, Petitioners argue that Wisconsin v. Yoder,

406 U.S. 205 (1972), requires the Court to apply strict

scrutiny. But Yoder did not alter “the obvious fact that

courts are not school boards” and are “ill-equipped to

determine the ‘necessity’ of discrete aspects of a

State’s program of compulsory education.” 406 U.S. at

234–35. Reviewing a robust record that detailed the

incompatibility of public education with Amish

culture and religion, this Court permitted the Amish

parents to opt out entirely of the public education

2 Though

Petitioners hastily suggest that this Court should

overrule Smith in one paragraph in their Introduction, Pet’rs’

Br. 3, the issue is not before this Court, has not been briefed, and

is thus not directly presented here.

5

system. Id. at 207. It did not confer on parents who

decide to participate in a public school system the

right to veto or opt out of every curricular school

requirement they find religiously objectionable.

Second, Petitioners contend that MCPS’s policy is

subject to strict scrutiny because it treats “comparable

secular activity more favorably than religious

exercise[,]” thereby undermining the governmental

justifications for prohibiting opt-outs. See Tandon v.

Newsom, 593 U.S. 61, 62 (2021). But MCPS treats

religious and non-religious ELA curriculum opt-outs

exactly the same: All opt-outs are prohibited.

Petitioners’ argument tries to conflate the ELA

curriculum with the sex education curriculum, but

they are separate curricula and are not comparable

activities under Tandon. The sex education

curriculum operates differently from, and serves a

different mission and purpose than, the ELA

curriculum.

Third, Petitioners assert that strict scrutiny

applies under Fulton v. City of Philadelphia, 593 U.S.

522 (2021). But strict scrutiny is triggered under

Fulton only where a policy provides for a formal

framework of purely discretionary, individualized

exemptions. Id. at 536. Here, no exemptions exist,

much less discretionary exemptions. To find otherwise

would expand Fulton far beyond its reasoning and

would threaten the validity of every generally

applicable policy.

Finally, Petitioners allege that MCPS’s

prohibition on opt-outs from the ELA curriculum is

“hostile to . . . religious beliefs” and warrants strict

scrutiny on that independent basis. See Masterpiece

6

Cakeshop, Ltd. v. Colo. C.R. Comm’n, 584 U.S. 617,

619 (2018) (internal quotation marks omitted). Not so.

The handful of Board member statements identified

by Petitioners did not invoke or criticize specific

religions. The decision to prohibit opt-outs going

forward was not rooted in animus toward religion, but

rather in a desire to correct a policy that undermined

a core purpose of public schools. The sheer number of

opt-out requests was disruptive, engendered a

harmful environment for LGBTQ students and

students with LGBTQ families, and interfered with

MCPS’s educational mission. This was true whether

the opt-out was requested for religious or secular

reasons.

MCPS easily passes rational basis review and is

not required to offer exceptions to its facially neutral

and generally applicable “no opt-out” policy.

Accordingly, amici respectfully request that this Court

affirm the Fourth Circuit’s judgment.3

3 While beyond the scope of this brief, MCPS’s “no opt-out” policy

would also satisfy strict scrutiny. MCPS has compelling interests

in carrying out its educational mission, introducing all students

to different perspectives to prepare them to live in our society,

and avoiding a hostile environment for LGBTQ students and

students with LGBTQ family members. MCPS’s rule against optouts is narrowly tailored, as illustrated by the previous harms

imposed by allowing exemptions.

7

ARGUMENT

I.

YODER DOES NOT REQUIRE COURTS TO

APPLY STRICT SCRUTINY TO EVERY

CURRICULAR REQUIREMENT TO WHICH

PARENTS

OBJECT

ON

RELIGIOUS

GROUNDS.

While this Court’s precedents recognize that

parents have an interest in directing their children’s

education, they do not confer on parents the right to

dictate the curricular and instructional requirements

of public schools, or the broad right to opt out of those

requirements based on religious objections. Yoder,

central to Petitioners’ argument, concerned the

constitutionality of a statute mandating attendance at

any school, whether private or public. 406 U.S. at 207.

It had nothing to do with parents’ rights vis-à-vis the

curriculum and instruction once a child is actually

enrolled in school. The situation in Yoder is therefore

entirely distinct from the circumstances here.

In Yoder, this Court held that the state could not

compel Amish children to attend public or private

school for formal education after eighth grade against

their parents’ wishes, where doing so would not only

violate core Amish religious precepts but would also

threaten the existence of the entire Amish

community’s way of life. Id. at 235. The ruling was

based on the unique nature of the Amish religion and

an understanding that the Amish faith and daily life

are inextricably interwoven. Id. at 216 (“[T]he Old

Order Amish religion pervades and determines

virtually their entire way of life, regulating it with the

detail of the Talmudic diet through the strictly

enforced rules of the church community.”).

8

Compulsory school attendance prevented Amish

children from engaging in a “program of informal

vocational education” that taught “specific skills

needed to perform the adult role of an Amish farmer

or housewife.” Id. at 222. Yoder, then, was about the

First Amendment and due process right to opt out

entirely of the formal education system. Id. at 208. The

ruling has little applicability outside of this context:

As one court has observed, “few sects could make a

similar showing of a unique and demanding religious

way of life that is fundamentally incompatible with

any schooling system.” Parker v. Hurley, 514 F.3d 87,

100 (1st Cir. 2008).

The other cases cited by Petitioners, Pierce v.

Society of the Sisters of the Holy Names of Jesus &

Mary, 268 U.S. 510 (1925), and Meyer v. Nebraska,

262 U.S. 390 (1923), also do not help them. Pierce

addressed the due process right of private schools

(there, religious schools) to provide private education

and the right of parents to send their children to those

schools instead of public schools—not the right to

control or opt out of curricular requirements in a

public school. 268 U.S. at 532. Indeed, in discussing

Oregon’s compulsory education law, which required

students to attend public schools, this Court noted:

“No question is raised concerning the power of the

state reasonably to regulate all schools, to inspect,

supervise and examine them, their teachers and

pupils; [or] to require that . . . certain studies plainly

essential to good citizenship must be taught, and that

nothing be taught which is manifestly inimical to the

public welfare.” Id. at 534.

Meyer likewise dealt with the due process right of

parents to choose private instruction for their

9

children, as well as the right of an instructor to

provide such education. 262 U.S. at 398. There, the

state had convicted a teacher of violating a law

prohibiting foreign-language instruction for students

who had not yet completed eighth grade. Id. at 397. As

in Pierce, “[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,” was not

at issue. Id. at 402. “Nor [was] the state’s power to

prescribe a curriculum for institutions which it

supports.” Id. Rather, the Court held that the law

violated the instructor’s Fourteenth Amendment right

“to teach and the right of parents to engage him so to

instruct their children[.]” Id. at 400.

These precedents affirm the rights of parents to

choose alternatives to public schooling—but they say

nothing about whether parents may pick and choose

from a public school’s curriculum. Parents, like those

in Pierce and Meyer, who choose a private educational

path will have more control over the instruction their

child receives. They may enroll their children in a

religious school affiliated with their faith or a private

school whose curriculum aligns with their religious

beliefs. But these cases “in no way alter[ed] [the

Court’s] recognition of the obvious fact that courts are

not school boards or legislatures, and are ill-equipped

to determine the ‘necessity’ of discrete aspects of a

State’s program of compulsory education.” See Yoder,

406 U.S. at 234–35. Indeed, this Court has never held

that parents have a free exercise right to dictate, opt

out of, or subject to strict scrutiny a religiously neutral

and generally applicable secular curriculum that their

children will be taught in public schools. And

10

Petitioners present no good reason for the Court to

reverse course now.

Such a result would turn public education on its

head, allowing parents and students to opt out of any

lesson or requirement that they find religiously

objectionable—potentially trapping the public school

system in an educational impasse among competing

objections. Indeed, MCPS’s curricula include

instruction on myriad topics that some parents and

students could find unacceptable for religious reasons.

For example, the pre-kindergarten curriculum

presents instruction on respect for different cultures.

Intro to CKLA: PreK, Montgomery Cnty. Pub. Schs.,

https://perma.cc/XBT4-6G7D.

The

kindergarten

curriculum has a unit on the importance of caring for

the earth. Intro to CKLA: Kindergarten, Montgomery

Cnty. Pub. Schs., https://perma.cc/TRG6-8Z7N. In

first grade, students learn that the earth rotates

around the sun, a lesson that could be controversial to

people who believe the earth is flat. Science

Curriculum: Elementary School, Montgomery Cnty.

Pub. Schs., https://perma.cc/4WBE-EV9J (click

“Grade 1 Science”). Second graders learn about

America’s immigration history, and third graders

learn about evolution. Intro to CKLA: Grade 2,

Montgomery Cnty. Pub. Schs., https://perma.cc/6G2NUN94; Science Curriculum: Elementary School,

Montgomery

Cnty.

Pub.

Schs.,

https://perma.cc/4WBE-EV9J

(click

“Grade

3

Science”). In fourth grade, students learn about gun

safety and disease prevention, such as masking.

Comprehensive Health Education in Grade 4,

Montgomery Cnty. Pub. Schs., https://perma.cc/9N632TA9. In fifth grade, students read Science of

11

Breakable Things, a book featuring a character with

depression. CKLA Grade 5 Overview, Montgomery

Cnty. Pub. Schs., https://perma.cc/4A5H-F2A3.

Requiring religious exemptions from these and

other curricular requirements would put schools in an

untenable position. Teachers would need to create

alternative assignments for every lesson, stretching

their resources and capacity. Pet. App. 605a–06a ¶32.

Where specific topics draw numerous opt-outs,

instruction could become effectively segregated by

faith to accommodate all parents’ and students’

religious beliefs. Moreover, depending on the topic,

opt-outs could stigmatize and harm students who

remain, as MCPS discovered with its initial opt-out

policy for the ELA curriculum’s LGBTQ-inclusive

elements. In the end, the educational and civic

mission of our public schools could be severely

undermined. Yoder does not mandate this outcome,

nor does any other decision of this Court.

II. THE “NO OPT-OUT” POLICY DOES NOT

TREAT

SECULAR

AND

RELIGIOUS

CONDUCT DIFFERENTLY AND DOES NOT

TRIGGER STRICT SCRUTINY UNDER

TANDON.

Under Tandon, a government regulation is not

neutral or generally applicable if it treats “comparable

secular activity more favorably than religious

exercise.” 593 U.S. at 62–63 (applying strict scrutiny

to pandemic restrictions that “treat[ed] some

comparable secular activities,” such as patronizing

hair salons and restaurants, “more favorably than”

engaging in religious activities, such as “at-home

religious exercise”). Comparability is judged “against

12

the asserted government interest that justifies the

regulation at issue.” Id. (internal quotation marks

omitted). For example, if religious activities and

secular activities “both . . . pose[] a similar hazard” to

the governmental interest in a policy, restricting only

the former is a “form[] of underinclusiveness” and the

law is “not generally applicable.” Fulton, 593 U.S. at

534 (citing Lukumi, 508 U.S. at 544–46).

Lukumi illustrates the point. There, the city

adopted several ordinances prohibiting animal

sacrifice, a practice of the Santeria faith. 508 U.S.

at 524–28. The city claimed that the ordinances were

necessary, in part, to protect public health, which was

“threatened by the disposal of animal carcasses in

open public places.” Id. at 544. But the ordinances did

not regulate comparable conduct, such as hunters’

disposal of their kills or improper garbage disposal by

restaurants, both of which posed a similar hazard. Id.

at 544–45. The Court concluded that this and other

forms of underinclusiveness meant that the

ordinances were “religious gerrymanders” that

targeted Santeria religious practice, and were thus

neither religiously neutral nor generally applicable.

Id. at 535, 545–46 (internal quotation marks omitted).

Here, MCPS’s current “no opt-out” policy treats

religious and secular exemptions exactly the same

because it offers no exemptions at all. All students

must be present for the approved ELA curriculum.

There is no differential treatment, and Petitioners

have introduced no evidence to the contrary. MCPS

does not offer opt-outs for secular reasons while

denying them for religious reasons. In fact, some of the

opt-out requests under the previous policy were lodged

for secular reasons, not religious reasons.

13

Pet. App. 14a. Where religious and secular activity

are not treated differently, strict scrutiny is not

required under Tandon.

Instead of comparing the availability of religious

opt-outs and secular opt-outs in the ELA curriculum,

Petitioners urge the Court to compare apples to

oranges, pointing to a regulation permitting opt-outs

from the sex education curriculum, Md. Code Regs.

13A.04.18.01. But the ELA curriculum and sex

education curriculum are not proper comparators

under Tandon. See 593 U.S. at 62. The curricula do

not function in the same way, and they serve different

educational interests. Cf. General Motors Corp. v.

Tracy, 519 U.S. 278, 298 (1997) (“Conceptually, of

course, any notion of discrimination assumes a

comparison of substantially similar entities.”).

A. The ELA Curriculum and the Sex

Education Curriculum Present Different

Content

and

Serve

Different

Governmental Interests.

As an initial matter, the ELA curriculum and the

sex education curriculum are entirely distinct

curricula that are “tailored to different grade levels,

cover different topics, and serve different educational

objectives.” JA 4. The mission of the ELA curriculum

is “to create literate, thoughtful communicators,

capable of controlling language effectively as they

negotiate an increasingly complex and informationrich world.” JA 5. In ELA class, students explore a

variety of texts as “catalysts for deep thought and

emotion.” Id. The class seeks to “encourage[] critical

thinking”

and

“nurture[]

appreciation

and

understanding of diverse individuals, groups, and

14

cultures.” JA 8. The sex education class, by regulation,

seeks to provide comprehensive instruction that “shall

help students adopt and maintain healthy behaviors

and skills that contribute directly to a student’s ability

to successfully practice behaviors that protect and

promote health and avoid or reduce health risks.” Md.

Code Regs. 13A.04.18.01(B)(1).

Petitioners’ attempt to characterize all material

that touches on LGBTQ-related themes as prurient

instruction elides this difference, fails the commonsense test, and lacks any support in the record.

Seeking to shoehorn the ELA and sex education

curricula into comparator roles under Tandon,

Petitioners imply that the ELA storybooks include

pornography lessons or sex simulations. Pet’rs’ Br. 35.

But all of the LGBTQ-related books added to the ELA

curriculum are children’s books with children’s

themes.

Early MCPS learners read books like Uncle

Bobby’s Wedding, Intersection Allies: We Make Room

for All, and Prince & Knight. Uncle Bobby’s Wedding

is about a child’s worry that her uncle, who is gay, will

have less time for her once he gets married.

Intersection Allies: We Make Room for All is about a

diverse group of friends—one child uses a wheelchair,

another has a single parent, another child wears a

hijab, another speaks Spanish, and another appears

to not conform to gender stereotypes. The book’s

repeated refrain is: “Where there’s room for some, we

can make room for all.” Prince & Knight is a story of a

prince falling in love with a knight as they battle a

dragon in a mythical land. These books are ageappropriate and designed for young learners, and they

speak directly to a core governmental interest

15

animating the ELA curriculum: to teach children

about the existence of diverse individuals, groups, and

cultures, in preparing them to live and thrive in our

society. JA 8.

Nothing in these books is remotely salacious, and

it is incorrect and offensive to equate the matters they

depict with sexual behavior or sex education. These

books are no more related to sex education than a book

in which a princess marries a prince or a family with

a mom and dad go on an adventure, common themes

in children’s literature. In fact, MCPS’s ELA

curriculum already includes books with similar

themes. Pre-kindergarten classes read Full, Full, Full

of Love,4 a book about the depth of a grandmother’s

love for her grandchild—a similar theme to Uncle

Bobby’s Wedding but without a gay character. CKLA

PreK Overview, Montgomery Cnty. Pub. Schs.,

https://perma.cc/2CX2-BQRY. Princess Hyacinth,5

read in kindergarten, is about the adventures of a

princess who floats and a boy who saves her, an

adventure tale similar to Prince & Knight. CKLA

Kindergarten Overview, Montgomery Cnty. Pub.

Schs., https://perma.cc/H97S-BTEE. Reading books

about magical kingdoms, families, adventure, and

love are archetypal for early grades, and teachers are

experts in how to present such material effectively

and appropriately.

Meanwhile, the sex education curriculum covers

entirely different topics, such as “sexual activity,”

4 Trish Cooke, Full, Full, Full of Love (2008).

5 Florence Parry Heide, Princess Hyacinth (The Surprising Tale

of a Girl Who Floated) (2016).

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“sexually transmitted infections, including HIV,”

“pregnancy,”

“contraception,”

“condoms,”

and

“consent.” Md. Code Regs. 13A.04.18.01(D)(2).

Because they present different instruction that serves

different government purposes, the ELA and sex

education curricula are not similarly situated and are

not proper comparators under Tandon.

B. The ELA Opt-Outs Undermined MCPS’s

Governmental Interest in Educating

Students About Diverse Individuals,

Groups, and Cultures, Conflicted with

MCPS’s Obligation to Provide an

Inclusive

and

Safe

Learning

Environment for LGBTQ Students and

Families, and Proved Unworkable.

The attempted comparison under Tandon is

especially inappropriate here because the opt-outs

that Petitioners seek from the ELA curriculum are

different in nature and impact than MCPS’s opt-out

from sex education instruction. LGBTQ students and

students with LGBTQ family members are part of

MCPS’s student body and community. Accordingly,

ELA lessons that invoke or reflect the existence of

LGBTQ people and teach inclusivity of LGBTQ people

are paramount not only to preparing students to be

part of a diverse school environment and live in a

diverse society, but also to carrying out MCPS’s

obligation and “effort[] to ensure a classroom

environment that is safe and conducive to learning for

all students.” Pet. App. 607a. ¶39.

MCPS officials realized that, due to the sheer

number of opt-outs, permitting students to leave the

classroom whenever books featuring LGBTQ

17

characters were used “defeated” this educational

purpose and obligation by exposing “students who

believe that the books represent them or their

families” to “social stigma and isolation.” Id. This type

of social stigma can impact a student’s ability to focus

and participate in class. See Amy L. Gower et. al,

First- and Second-Hand Experiences of Enacted

Stigma among LGBTQ Youth, J. Sch. Nurs. (July 23,

2019), https://perma.cc/FRC4-MVW6. In other words,

the ELA opt-outs ultimately undermined the mission

of the ELA curriculum by creating a classroom

situation that directly conflicts with the very purpose

of incorporating LGBTQ-inclusive materials into

lessons, conveying the exact opposite of the

curriculum’s intended pedagogical message and

denying those who remained in class the full benefit

of that lesson.

MCPS’s current “no opt-out” policy makes sense

when considered in relation to instruction about the

existence, history, and achievements of other

historically marginalized communities—for example,

Indigenous people, people of color, religious

minorities, and women. Public schools have long

presented this information in the humanities,

literature, and history courses. To allow students to

selectively opt out of education regarding disfavored

groups would undermine the purpose of the public

education system. Creating engaged citizens in a

thriving multi-faith, multi-cultural democracy

necessitates that students learn about their peers and

community members and practice discussing (and

potentially disagreeing on) complex issues and ideas

with respect and civility.

18

Moreover, as discussed above, in addition to

harming LGBTQ students and students with LGBTQ

family members, the ELA opt-outs became utterly

unworkable. Each time a student opted out of LGBTQrelated ELA instruction, discussion, or reading, the

teacher had to create an alternate lesson, and many

students did not bother to attend school at all on those

days, leading to high absenteeism. Pet. App. 605a–06a

¶32, ¶37. The growing number of opt-out requests

created “significant disruptions to the classroom

environment” and placed “too great a burden on school

staff” tasked with tracking which students needed

accommodations and developing alternative lesson

plans for those students. Pet. App. 16a.6

The opt-outs for sex education have not resulted

in the same concerns as the ELA opt-outs. Under the

sex education curriculum, MCPS students who want

to opt out must do so in full, Md. Code Regs.

13A.04.18.01(D)(2); opt-outs from discrete portions of

the sex education class, such as information that may

be inclusive of sex education concerns specific to

LGBTQ students, are not permitted and thus do not

present the same risk of marginalizing students based

on protected characteristics or conveying a lesson that

is in direct conflict with the pedagogical purposes of

The opt-outs demanded by Petitioners in this case could be even

more disruptive. While much of Petitioners’ brief focuses on the

LGBTQ-inclusive books being read aloud in ELA class,

Petitioners’ asserted objections are substantially broader.

Petitioners’ Motion for Preliminary Injunction sought an

injunction allowing parents to opt their child out of “reading,

listening to, or discussing” the books, as well as “any other

instruction related to family life or human sexuality.” Mot. for

Prelim. Inj., Mahmoud v. McKnight, No. 8:23-cv-01380 (D. Md.

Aug. 9, 2023), ECF No. 23.

6

19

sex education classes. Further, the sex education

curriculum is a “hermetically sealed off curriculum”

that is scheduled in one 90-minute window or two 45minute windows. Prelim. Inj. Tr. at 70, ¶¶7–13,

Mahmoud v. McKnight, No. 8:23-cv-01380 (D. Md.

Aug. 9, 2023), ECF No. 50. Thus, the unit on sex

education can be quarantined and alternative

assignments can easily be coordinated, avoiding the

administrative chaos and disruption to the

educational environment that occurred with the prior

ELA opt-outs.

In sum, MCPS’s policies merely recognize the

substantive difference—in purpose and content—

between sex education, on one hand, and information

relating to LGBTQ themes that may arise in ELA

classes, on the other. Indeed, even if the ELA and sex

education curricula were proper comparators under

Tandon, the opt-out demanded by Petitioners would

severely undermine MCPS’s educational and civic

mission, its obligation to provide an equal education

to all children, including LGBTQ students and

students with LGBTQ family members, and the

inclusive purpose of the ELA curriculum. The sex

education opt-out does not compromise MCPS’s

interests in the same way, or at all. Petitioners’ efforts

to draw a parallel between the sex education and ELA

curricula under Tandon are thus unavailing.

III. MCPS’S POLICY PROHIBITING OPT-OUTS

DOES NOT INCLUDE DISCRETIONARY

EXEMPTIONS AND DOES NOT IMPLICATE

STRICT SCRUTINY UNDER FULTON.

Fulton is a narrow decision holding that a

regulation allowing for a “formal” system of “entirely

20

discretionary exceptions” on an individualized basis is

not generally applicable. 593 U.S. at 536. In Fulton,

the City of Philadelphia suspended a contract with a

provider of foster care services after it refused to

certify same-sex couples as prospective foster parents

on the ground that doing so would contravene its

religious beliefs. Id. at 530. Although the provider’s

refusal violated an antidiscrimination provision in the

agency’s contract with the city, which prohibited

sexual orientation discrimination, the contract also

included a provision that permitted the Commissioner

to grant an exception to the antidiscrimination bar “in

his/her sole discretion.” Id. at 537. This Court

concluded that the discretionary-exception provision

“render[ed] the contractual non-discrimination

requirement not generally applicable” because it

invited a decisionmaker to discriminate on the basis

of religion. The Court thus applied strict scrutiny to

the City’s refusal to exempt the provider from the

nondiscrimination rule. Id.

Here, not only does MCPS’s “no opt-out” policy

offer no individualized, discretionary exemptions—it

permits no exemptions at all. See Fulton, 593 U.S.

at 551–52 (2021) (Alito, J, concurring) (explaining

that the city would not violate the Free Exercise

Clause if it “eliminate[s] the never-used exemption

power”). Uniformly, every lower court to review a rule

that offers no exceptions has held that such a law

cannot trigger strict scrutiny under Fulton because,

by definition, it allows for no discretionary decisionmaking. See, e.g., Canaan Christian Church v.

Montgomery Cnty., 29 F.4th 182, 197 (4th Cir. 2022);

Swartz v. Sylvester, 53 F.4th 693, 696, 702 (1st

21

Cir. 2022); Tingley v. Ferguson, 47 F.4th 1055, 1064,

1088 (9th Cir. 2022).

Petitioners seek to cast the creation of an opt-out

policy itself, or any changes to that policy, as

discretionary acts because the Board, at some point,

used its discretion to create, amend, or withdraw the

policy. Pet’rs’ Br. 38–39. But Petitioners’ sweeping

position would render every policy decision ever made

by any governmental entity subject to Fulton’s

“discretion” rule. Fulton does not require or permit

this: It applies only when there is a formal system

allowing entirely discretionary exceptions on an

individualized basis. These criteria reflect the Court’s

concern that such a system could easily be abused by

decisionmakers, who could inquire into the reasons

underlying an exemption request and subjectively

weigh the offered rationale against the religious

applicant.7 Fulton, 593 U.S. at 542. In short,

application of such a policy can “devalue[] religious

reasons” for noncompliance “by judging them to be of

lesser import than nonreligious reasons,” and thus

expose religious practice to discriminatory treatment.

Lukumi, 508 U.S. at 537. Such is not the case here.8

7 Petitioners also assert that the grant or denial of some opt-out

requests made under the Board’s previous policy were subject to

school officials’ discretion. Pet’rs’ Br. 39. This is a red herring.

This case does not challenge the prior policy, which is no longer

in effect at MCPS.

8 Petitioners’

suggestion that MCPS’s Religious Diversity

Guidelines, Pet’rs’ Br. 38, operate as a discretionary exemption

scheme requiring strict scrutiny under Fulton likewise fails.

With respect to the ELA curriculum, the challenged “no opt-outs”

policy supplanted the guidelines as well as any other existing

22

IV. THE “NO OPT-OUT” POLICY WAS NOT

ENACTED OUT OF HOSTILITY TO

RELIGION AND STRICT SCRUTINY IS NOT

REQUIRED UNDER MASTERPIECE.

Under Masterpiece, a decision by a quasi-judicial

body grounded in religious hostility “casts doubt on

the fairness of the adjudication” and indicates that the

individual may not have received “neutral and

respectful consideration of his claims.” 584 U.S. at

618. There, this Court held that strict scrutiny applied

to Colorado’s denial of a religious accommodation for

a bakery owner’s free-exercise objections to

compliance with the state’s nondiscrimination law

because the Colorado Civil Rights Commission had

acted with religious animosity in denying the

exemption. Id. at 634. One commissioner described

the baker’s religious beliefs as “one of the most

despicable pieces of rhetoric that people can use,” not

only disparaging the baker’s religion but also

“characterizing it as merely rhetorical—something

insubstantial and even insincere.” Id. at 635. The

commissioners in Masterpiece “wished to condemn”

the baker “for expressing” an “irrational” or

policy or practice that allowed opt-outs from ELA instruction.

Moreover, the Guidelines have since been amended to eliminate

any potential exemption from curricular instruction, so even if

there were not a specific policy barring opt-outs from the ELA

curriculum, such exemptions would not otherwise be permitted

under current MCPS Religious Guidelines. Pet. App. 15a. No

school official has discretion to disregard either the “no-opts”

ELA policy or the current Guidelines, despite the availability of

opt-outs in the past. See id.; Yellowbear v. Lampert, 741 F.3d 48,

58 (10th Cir. 2014) (Gorsuch, J.) (“Surely the granting of a

religious accommodation to some in the past doesn’t bind the

government to provide that accommodation to all in the future.”).

23

“offensive” religious message. Id. at 649 (Gorsuch, J,

concurring). Moreover, the Commission had taken

actions that treated secular claims differently from

analogous religious claims, further suggesting

hostility to religion. Masterpiece, 584 U.S. at 654

(Thomas, J, concurring).

The facts here stand in sharp contrast to those in

Masterpiece. To begin, in Masterpiece, this Court

found it important that the remarks disparaging the

bakery owner’s religion were made “by an

adjudicatory body deciding a particular case,” which

presents “a very different context” from a nonadjudicatory body issuing a neutral, across-the-board

policy. 584 U.S. at 636; see Lukumi, 508 U.S. at 540–

42. That “very different context” exists here: The

School Board, in its non-adjudicatory, quasilegislative role, enacted a policy that applies equally

to all families. Religious parents and students are not

singled out for disfavor or hostility in any way. Indeed,

the Board was responding to an unadministrable

number of opt-out requests that were based both on

religious and non-religious grounds.

There is simply no evidence of hostility to religion

here. Petitioners attempt to establish religious

animus by cherry-picking a few statements—most of

which occurred after the “no opt-out” policy was

enacted—without providing any context. See Pet’rs’

Br. 15; see also Pet. App. 50a n.18 (noting that

Petitioners “have bundled together a handful of

statements made during and outside Board meetings,

both before and after the decision to allow opt-outs”).

But on their face, the statements do not support

Petitioners’ narrative of animus against religion for at

least two reasons. First, Board members’ statements

24

expressing opposition to perceived discrimination

must be viewed in connection with their obligation

and desire to protect all students from discriminatory

harms—again, regardless of whether those harms

stem from opt-outs asserted for religious or nonreligious reasons. See Pet. App. 50a n.18 (noting that

additional discovery may help further contextualize

the comments of Board members).

Second, none of the statements pointed to by

Petitioners invokes or criticizes a specific religion,

much less the Petitioners’ religions. Opposing

discrimination generally does not equate to religious

hostility, and Petitioners offer no evidence to support

their conclusory assertions. The parents seeking optouts did so for religious and non-religious reasons, and

the Board members addressed the problems and

disruption created by the opt-out requests by enacting

a neutral “no opt-out” policy that does not target

religion facially or in application. It would be a misuse

of Masterpiece to presume religious hostility in every

contentious interaction between the government and

its citizens.

Petitioners also ask this Court to assume that the

change in policy, alone, is sufficient evidence of

religious hostility. Pet’rs’ Br. 41. But a showing of

hostility requires substantially more.9 If anything, the

prior policy of allowing opt-outs rebuts any inference

9 To be sure, further factual development during the merits phase

of the litigation could uncover actual evidence of Board members’

hostility toward Petitioners’ faiths at the time the Board adopted

the “no opt-outs” policy. But given the current record, the district

court and court of appeals correctly held that Petitioners were

not entitled to a preliminary injunction on that basis.

25

of animus, demonstrating that the Board sincerely

attempted to accommodate all objections, including

religious ones. Accord Pet’rs’ Br. 41. It is clear that

MCPS eliminated the opt-outs because they were

disruptive, exacerbated student absenteeism, created

a stigmatizing and harmful environment for some

students, and seriously compromised MCPS’s

pedagogical mission—not due to religious hostility.

*

*

26

*

CONCLUSION

For the foregoing reasons, the court of appeals

correctly concluded that Petitioners did not “satisfy

the extraordinary showing necessary to obtain a

preliminary injunction.” Pet. App. 51a. The decision

should be affirmed by this Court.

Respectfully submitted,

Cecillia D. Wang

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

425 California Street

Suite 700

San Francisco, CA 94104

Daniel Mach

Counsel of Record

Aditi Fruitwala

Heather L. Weaver

Michelle Fraling

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

915 15th Street, N.W.

Washington, D.C. 20005

(202) 675-2330

dmach@aclu.org

Louise Melling

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 Broad Street

18th Floor

New York, NY 10004

(212) 549-2500

Deborah Jeon

Sonia Kumar

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION OF

MARYLAND

3600 Clipper Mill Road

Suite 350

Baltimore, MD 21211

Counsel for Amici Curiae

April 9, 2025

27