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.,

Petitioners,

v.

THOMAS W. TAYLOR, et al.,

————

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

————

BRIEF OF MARYLAND, MASSACHUSETTS,

SIXTEEN OTHER STATES, AND THE

DISTRICT OF COLUMBIA AS AMICI CURIAE

SUPPORTING RESPONDENTS

————

ANDREA JOY CAMPBELL

Attorney General of

Massachusetts

ANTHONY G. BROWN

Attorney General of

Maryland

DAVID C. KRAVITZ

State Solicitor

ANNA LUMELSKY

Deputy State Solicitor

ADAM CAMBIER

Assistant Attorney General

One Ashburton Place

Boston, Massachusetts 02108

anna.lumelsky@mass.gov

(617) 963-2204

JULIA DOYLE

Solicitor General

JOSHUA M. SEGAL*

Principal Deputy Solicitor

General

200 Saint Paul Place

20th Floor

Baltimore, Maryland 21202

jsegal@oag.state.md.us

(410) 576-6446

* Counsel of Record

[Additional counsel listed on signature page.]

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

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

2

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

3

I.

THE COUNTY’S EFFORTS TO PROMOTE

RESPECT AND TOLERANCE FOR LGTBQ

PEOPLE FALL WITHIN STATE AND LOCAL

GOVERNMENTS’ BROAD DISCRETION TO

SHAPE PUBLIC EDUCATION. .......................

3

A. State and Local Governments Possess

Broad Discretion in How They

Educate Students. ...............................

3

B. States’ and Schools’ Broad Educational Discretion Encompasses Policies

That Protect LGBTQ Students from

Harm. ...................................................

6

C. Policies Such as the County’s Fall

Within State and Local Educational

Discretion. ...........................................

10

PETITIONERS HAVE FAILED TO ESTABLISH

A CONSTITUTIONAL BURDEN ON THE

MINIMAL RECORD AT THIS PRELIMINARY

PHASE. .......................................................

14

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

21

II.

(i)

ii

TABLE OF AUTHORITIES

CASES

Page(s)

Ambach v. Norwick,

441 U.S. 68 (1979) .......................................... 4, 11

Bethel School District No. 403 v. Fraser,

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

4

Board of Educ., Island Trees Union

Free Sch. Dist. No. 26 v. Pico,

457 U.S. 853 (1982) ................................... 5, 12

Bowen v. Roy,

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

18

Brown v. Board of Education,

347 U.S. 483 (1954) ...................................

3, 4

Edwards v. Aguillard,

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

5

Epperson v. Arkansas,

393 U.S. 97 (1968) .....................................

5

Espinoza v. Montana Dep’t of Revenue,

591 U.S. 464 (2020) ...................................

19

Gonzales v. Raich,

545 U.S. 1 (2005) .......................................

15

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

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

6

McCollum v. Board of Ed. of

Sch. Dist. No. 71,

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

4

Meyer v. Nebraska,

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

19

Norwood v. Harrison,

413 U.S. 455 (1973) ................................... 19, 20

iii

TABLE OF AUTHORITIES—Continued

Page(s)

O’Bannon v. Town Ct. Nursing Ctr.,

447 U.S. 773 (1980) ...................................

16

Pierce v. Society of Sisters of Holy

Names of Jesus & Mary,

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

19

Runyon v. McCrary,

427 U.S. 160 (1976) ...................................

19

San Antonio Indep. Sch. Dist. v.

Rodriguez,

411 U.S. 1 (1973) .......................................

4

School Dist. of Abington Twp. v. Schempp,

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

4-5

Tandon v. Newsom,

593 U.S. 61 (2021) .....................................

13

Thornburgh v. American Coll. of

Obstetricians & Gynecologists,

476 U.S. 747 (1986) ...................................

15

Tinker v. Des Moines Indep. Cmty.

Sch. Dist.,

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

5

West Virginia State Board of Education

v. Barnette,

319 U.S. 624 (1943) ................................... 16, 18

Winter v. Natural Res. Def. Council, Inc.,

555 U.S. 7 (2008) .......................................

16

Wisconsin v. Yoder,

406 U.S. 205 (1972) ................................ 5, 16-19

iv

TABLE OF AUTHORITIES—Continued

STATUTES AND REGULATIONS

Page(s)

Md. Code Ann., Educ. § 2-205(e)

(LexisNexis 2022)......................................

12

Md. Code Ann., Educ. § 4-205(c)(2)

(LexisNexis 2022)......................................

12

Md. Code Ann., Educ. § 4-205(c)(3)

(LexisNexis 2022)......................................

12

Md. Code Ann., Educ. § 7-424

(LexisNexis 2022)......................................

12

Md. Code Ann., Educ. § 7-424.1

(LexisNexis 2022)......................................

11

Md. Code Ann., Educ. § 26-704

(LexisNexis 2022)......................................

11

Md. Code Regs. 13A.01.05.11 ........................

12

Md. Code Regs. 13A.01.06.04C(1)....................

11

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

13

Md. Code Regs. 13A.04.18.01C(1)....................

13

Md. Code Regs. 13A.04.18.01C(1)(c) ..............

12

Md. Code Regs. 13A.04.18.01D(2)(e)(i) ...........

12

Mass. Gen. Laws ch. 69, § 1P(a) ..................

7

Mass. Gen. Laws ch. 76, § 5 .........................

11

RULES

Sup. Ct. R. 14.1(a) ........................................

21

v

TABLE OF AUTHORITIES—Continued

MISCELLANEOUS

Page(s)

Am. Psych. Ass’n, Safe and Supportive

Schools Project (2014), https://tinyurl.

com/4utzz 8kp ...........................................

6

Dorothy Kunhardt, Pat the Bunny (1940) ...

14

Jack K. Day et al., Safe and Supportive

Schools for LGBT Youth: Addressing

Educational Inequities Through Inclusive

Policies and Practices, 74 J. Sch. Psych.

29-43 (June 2019), https://tinyurl.com/

4e9zydk4....................................................

10

Jenna Howard Terrell, Conceptualizing

and Measuring Safe and Supportive

Schools, 24 Contemp. Sch. Psych. 327-29

(Aug. 2020), https://tinyurl.com/bd5tt93x

6

Joseph G. Kosciw et al., GLSEN, The 2021

National School Climate Survey: The

Experiences of LGBTQ+ Youth in Our

Nation’s Schools (2022), https://tinyurl.

com/mtsva2nd ........................................... 7-10

Linda Darling-Hammond et al., Implications for Educational Practice of the

Science of Learning and Development, 24

Applied Dev. Sci. 97-98 (Feb. 17, 2019),

https://tinyurl.com/yc4jvr9m ....................

6, 7

Md. State Dep’t of Educ., Model Policy:

Bullying, Harassment, or Intimidation

(2021), https://tinyurl.com/2c4wvtvj ...........

11

Movement Advancement Project, Equality

Maps: Safe Schools Laws (2022), https://

tinyurl.com/4bubd64k ...............................

11

vi

TABLE OF AUTHORITIES—Continued

Page(s)

Nat’l Ctr. on Safe Supportive Learning

Environments, About (2022), https://

perma.cc/3WES-WPL4..............................

6

Nhan L. Truong et al., GLSEN, Erasure

and Resilience: The Experiences of

LGBTQ Students of Color—Black

LGBTQ Youth in U.S. Schools (2020),

https://tinyurl.com/ynhf9zxb ....................

7-8

Off. of Elementary and Secondary Educ.,

U.S. Dep’t of Educ., Safe and Supportive

Schools (2023), https://perma.cc/3UK5Y9ZQ ..........................................................

6

The Trevor Project, 2023 National

Survey on the Mental Health of LGBTQ

Young People (2023), https://tinyurl.com/

3nwfn rx9 ..................................................

7, 8

Tyler Hatchel et al., Peer Victimization

and Suicidality Among LGBTQ Youth:

The Roles of School Belonging, SelfCompassion, and Parental Support,

16(2) J. LGBT Youth 134 (2019), https://

tiny url.com/5n8m8ypp .............................

8-9

Tyler Hatchel et al., Sexual Harassment

Victimization, School Belonging, and

Depressive Symptoms Among LGBTQ

Adolescents: Temporal Insights, 88(4)

Am. J. Orthopsychiatry 422 (2018),

https://tinyurl.com/26ynk3yv ...................

8

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Wojciech Kaczkowski et al., Examining

the Relationship Between LGBTQSupportive School Health Policies and

Practices and Psychosocial Health

Outcomes of Lesbian, Gay, Bisexual,

and Heterosexual Students, 9(1) LGBT

Health 43-53 (Jan. 2022), https://

tiny url.com/34m5fvu5 ..............................

10

INTERESTS OF AMICI CURIAE

Maryland, Massachusetts, California, Colorado,

Connecticut, Delaware, the District of Columbia,

Hawai‘i, Illinois, Maine, Michigan, Minnesota, Nevada,

New Jersey, New York, Oregon, Rhode Island,

Vermont, and Washington file this brief in support

of respondents because we share sovereign and

compelling interests in upholding the traditional

primary role of state and local authorities in setting

school curricula and in making schools safe and

supportive places for all students. Like other school

authorities around the country, the Montgomery County

Board of Education (“the County”) has responsibility

for one of government’s most important functions:

nurturing children into capable citizens of a diverse but

unified nation. Recognizing the importance of this

responsibility, this Court has long afforded state and

local governments significant discretion to craft school

policies to best serve this goal, so long as they act

within the constraints of state and federal law.

Amici States respectfully submit this brief because

the County’s incorporation of LGBTQ-inclusive books

into its language arts curriculum falls well within

state and local governments’ broad discretion to

shape their curricula and raises no constitutional

concerns. At the same time, mandating that state or

local governments allow opt-outs from any school

instruction that parents deem religiously objectionable would interfere with schools’ ability not only

to design curricula, but also to balance particular

families’ desires against the need to provide a safe and

supportive learning environment for all students.

2

SUMMARY OF ARGUMENT

1. Public education lies at the heart of state and

local governments’ responsibility to their citizens, and

this Court has repeatedly emphasized their broad

discretion in shaping its contours. That discretion

encompasses not only what schools teach, but also how

they create an environment conducive to educating

their students. The County’s incorporation of LGBTQinclusive books into school language arts curricula,

without providing a right to opt out, falls well within

this broad educational discretion. LGBTQ students

face disproportionate levels of stereotyping, discrimination, and even violence, with profound psychological

and educational consequences. The books at issue

here confront these serious problems by promoting

tolerance of, and respect for, people who are LGBTQ.

They are no more “sex education” than are curricular

materials that portray heterosexual families and

relationships.

2. Petitioners have not established a cognizable

burden on their religious exercise. Because of its

preliminary posture, the record in this case permits no

conclusion regarding how any of the books have been

used in classrooms, how students may have reacted to

the books, or how teachers may have responded to

students’ questions. Petitioners’ case therefore depends

on the notion that mere exposure to ideas can

unconstitutionally burden religious exercise. This

Court’s precedents do not support that theory. Moreover, such a theory could not be cabined to circumstances such as these. Instead, parents would seemingly have an unfettered constitutional entitlement

to opt their children out (and presumably receive

prior notice) of any part of a school curriculum. The

First Amendment does not require that result. But

3

if the Court does conclude that petitioners have

established a free exercise burden, this case does not

present the question of what level of scrutiny applies—

much less whether it has been satisfied in this case—

and the Court accordingly should allow the court of

appeals to address that question in the first instance.

ARGUMENT

I. THE COUNTY’S EFFORTS TO PROMOTE

RESPECT AND TOLERANCE FOR LGTBQ

PEOPLE FALL WITHIN STATE AND LOCAL

GOVERNMENTS’ BROAD DISCRETION TO SHAPE

PUBLIC EDUCATION.

This Court has repeatedly recognized both the

important role of public education and the broad

discretion that state and local governments possess

to shape its content. Policies such as the County’s,

which seek to ensure safe and supportive learning

environments for LGBTQ students, come well within

this authority.

A. State and Local Governments Possess

Broad Discretion in How They Educate

Students.

Public schools play a foundational role in American

society. For decades, courts have recognized that these

institutions serve as States’ primary tool in raising

successive generations of citizens, enabling them to

lead fulfilled lives, and creating the building blocks

of broader societal cohesion. In Brown v. Board of

Education, for instance, this Court observed that

public schools are “a principal instrument in awakening the child to cultural values, in preparing him for

later professional training, and in helping him to

adjust normally to his environment.” 347 U.S. 483, 493

4

(1954). Indeed, Brown noted, the public school system

is “the very foundation of good citizenship” and of

central “importance . . . to our democratic society.” Id.

Since Brown, the Court has repeatedly noted its

“historic dedication to public education,” “express[ed]

an abiding respect for the vital role of education in a

free society,” and recognized “‘the grave significance of

education both to the individual and to our society.’”

San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1,

30 (1973) (collecting cases). The Court has emphasized “[t]he importance of public schools in the

preparation of individuals for participation as citizens,

and in the preservation of the values on which our

society rests.” Ambach v. Norwick, 441 U.S. 68, 76

(1979). Public education, the Court observed, “inculcat[es]

fundamental values necessary to the maintenance of a

democratic political system.” Id. at 77.

This Court has also made clear that public education

benefits both individuals and the fabric of society.

In Bethel School District No. 403 v. Fraser, the Court

observed that public schools “prepare pupils for citizenship in the Republic” by “inculcat[ing] the habits

and manners of civility as values in themselves

conducive to happiness” and recognized that such

values are “indispensable to the practice of selfgovernment in the community and the nation.” 478

U.S. 675, 681 (1986) (citation omitted). Oft-cited

concurrences have emphasized this same principle.

See McCollum v. Board of Ed. of Sch. Dist. No. 71, 333

U.S. 203, 216, 231 (1948) (Frankfurter, J., concurring)

(observing that public schools are “perhaps the most

powerful agency for promoting cohesion among a

heterogenous democratic people” and are “at once the

symbol of our democracy and the most pervasive

means for promoting our common destiny”); School

5

Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 24142 (1963) (Brennan, J., concurring) (observing that a

“public secular education” serves “uniquely democratic

values”). Public schools thus lie at the heart of States’

obligation to provide people with the skills they need

as citizens, as well as States’ opportunity to contribute

to the orderly functioning of a democratic society.

State and local governments possess broad latitude

to shape the public school environment according to

the priorities and values of the communities students

are being prepared to join as fully fledged citizens

(subject, of course, to constitutional and other federal

and state law constraints). See, e.g., Board of Educ.,

Island Trees Union Free Sch. Dist. No. 26 v. Pico,

457 U.S. 853, 863-64 (1982) (noting that “local school

boards have broad discretion in the management of

school affairs” and that “local school boards must be

permitted to establish and apply their curriculum in

such a way as to transmit community values” (internal

quotation marks omitted)). This Court has underscored that “States and local school boards are

generally afforded considerable discretion in operating

public schools.” Edwards v. Aguillard, 482 U.S. 578,

583 (1987); see also, e.g., Tinker v. Des Moines Indep.

Cmty. Sch. Dist., 393 U.S. 503, 507 (1969) (“[T]he Court

has repeatedly emphasized the need for affirming the

comprehensive authority of the States and of school

officials, consistent with fundamental constitutional

safeguards, to prescribe and control conduct in the

schools.”); Epperson v. Arkansas, 393 U.S. 97, 104

(1968) (“By and large, public education in our Nation

is committed to the control of state and local authorities.”). And the Court has firmly grounded this

discretion in the States’ paramount interest in providing

their citizens with an education. See, e.g., Wisconsin v.

Yoder, 406 U.S. 205, 213 (1972) (“There is no doubt as

6

to the power of a State, having a high responsibility for

education of its citizens, to impose reasonable regulations

for the control and duration of basic education.”).

B. States’ and Schools’ Broad Educational

Discretion Encompasses Policies That

Protect LGBTQ Students from Harm.

This Court has recognized that States’ responsibility

to provide public education encompasses the duty to

“protect[]” students from harm. Mahanoy Area Sch.

Dist. v. B.L., 594 U.S. 180, 189 (2021). Similarly,

governmental institutions 1 and medical and educational organizations 2 have recognized that physically

and psychologically safe schools are indispensable to

educating students. Research has emphasized the

importance of physical and psychological safety and

security. 3 Indeed, a school’s educational environment

influences many facets of a child’s development,

including social-emotional and academic learning. 4

Safe and supportive school environments allow

students to develop positive relationships, regulate

their emotions and behavior, and maintain physical

and psychological well-being—thus bolstering their

See, e.g., Off. of Elementary and Secondary Educ., U.S. Dep’t

of Educ., Safe and Supportive Schools (2023), https://perma.cc/

3UK5-Y9ZQ; Nat’l Ctr. on Safe Supportive Learning Environments, About (2022), https://perma.cc/3WES-WPL4.

1

See, e.g., Am. Psych. Ass’n, Safe and Supportive Schools

Project (2014), https://tinyurl.com/4utzz8kp.

2

Jenna Howard Terrell, Conceptualizing and Measuring Safe

and Supportive Schools, 24 Contemp. Sch. Psych. 327-29 (Aug.

2020), https://tinyurl.com/bd5tt93x.

3

See Linda Darling-Hammond et al., Implications for

Educational Practice of the Science of Learning and Development,

24 Applied Dev. Sci. 97-98 (Feb. 17, 2019), https://tinyurl.

com/yc4jvr9m.

4

7

prospects for academic and non-academic success. 5 By

contrast, fear and anxiety weaken children’s cognitive

capacity, disrupt the learning process, and impede

students’ ability to learn at a physiological level. 6

Providing a safe school environment is especially

important for LGBTQ youth, who experience disproportionately high levels of discrimination and

violence. 7 In one 2022 study, 68% of LGBTQ students

reported feeling unsafe at school because of their

sexual orientation or gender identity, and nearly all

reported hearing homophobic language used by their

peers. 8 In a 2023 mental health survey, 60% of LGBTQ

youth respondents reported being discriminated

against because of their sexual orientation or gender

identity. 9 Indeed, a majority of LGBTQ youth in this

survey reported experiencing verbal harassment, and

significant fractions reported being disciplined for

standing up to bullies or being subjected to unwanted

sexual contact because of their LGBTQ status. 10

Additionally, LGBTQ students of color and students

with disabilities face compounded levels of discrimination. 11 Discrimination, violence, and harassment

5

Mass. Gen. Laws ch. 69, § 1P(a).

6

Darling-Hammond et al., supra note 4, at 102.

Joseph G. Kosciw et al., GLSEN, The 2021 National School

Climate Survey: The Experiences of LGBTQ+ Youth in Our

Nation’s Schools xv-xvii, 83, 93 (2022), https://tinyurl.com/

mtsva2nd.

7

8

Id. at xv-xvi.

The Trevor Project, 2023 National Survey on the Mental

Health of LGBTQ Young People (2023), https://tinyurl.com/

3nwfnrx9.

9

10

Id.

See, e.g., Nhan L. Truong et al., GLSEN, Erasure and

Resilience: The Experiences of LGBTQ Students of Color—Black

11

8

reduce LGBTQ students’ sense of belonging to their

school communities. 12

Negative treatment based on sexual orientation or

gender identity and expression in educational settings

can result in severe health consequences, too. As a

result of societal stigma and mistreatment, majorities

of LGBTQ youth report experiencing depression and

anxiety. 13 One recent survey found that 41% of

LGBTQ youth had seriously considered suicide in the

past year, with 14% actually attempting suicide—and

these figures rise for transgender or nonbinary youth

and for LGBTQ youth of color. 14 Negative school

environments exacerbate these problems, as LGBTQ

students who report experiencing victimization or

discrimination at school are likelier to have low selfesteem or to suffer from depression. 15 Indeed, research

has established direct connections between victimization of LGBTQ youth at school and the development of

depressive symptoms and other significant mental

health issues. 16 And research has also connected peer

victimization and lower levels of school belonging to

increased suicidality among LGBTQ youth. 17

LGBTQ Youth in U.S. Schools (2020), https://tinyurl.com/

ynhf9zxb.

12

Kosciw et al., supra note 7, at xix-xx.

13

The Trevor Project, supra note 9.

14

Id.

15

Kosciw et al., supra note 7, at xviii-xx.

Tyler Hatchel et al., Sexual Harassment Victimization,

School Belonging, and Depressive Symptoms Among LGBTQ

Adolescents: Temporal Insights, 88(4) Am. J. Orthopsychiatry 422,

426-27 (2018), https://tinyurl.com/26ynk3yv.

16

Tyler Hatchel et al., Peer Victimization and Suicidality

Among LGBTQ Youth: The Roles of School Belonging, Self17

9

Discrimination, harassment, and stigma based on

sexual orientation or gender identity also detrimentally impact LGBTQ students’ academic outcomes.

LGBTQ students who experience high levels of

victimization or who experience discrimination are

significantly more likely to miss school, have lower

GPAs, and report feeling less connected to their school

communities. 18 Close to 80% of LGBTQ youth report

avoiding school functions or extracurricular activities

because they feel unsafe or uncomfortable at school. 19

These negative outcomes echo throughout students’

lives; LGBTQ students who experience high levels of

victimization because of their sexual orientation or

gender identity are only half as likely to report plans

to pursue post-secondary education like college or

trade school. 20

Conversely, LGBTQ students who experience

increased affirmation and acceptance at school enjoy

significantly improved mental health and academic

outcomes. One survey found that LGBTQ students

who have access to supportive school staff, gaystraight alliances, inclusive school policies, and

(as especially relevant here) curricula that included

LGBTQ topics heard fewer homophobic remarks at

school, experienced less discrimination, were less

likely to miss school, reported a better sense of

belonging and connection in school, and had more

plans to pursue post-secondary education. 21 Moreover,

Compassion, and Parental Support, 16(2) J. LGBT Youth 134,

147-48 (2019), https://tinyurl.com/5n8m8ypp.

18

Kosciw et al., supra note 7, at xviii-xx.

19

Id. at xv.

20

Id. at xix.

21

Id. at xx-xxiv.

10

these students enjoyed better psychological well-being,

reporting higher self-esteem and lower rates of

depression or suicidality. 22 Analyses of differences in

policies and outcomes across various school systems

have similarly revealed that LGBTQ students at

schools with supportive policies concerning sexual

orientation and gender identity had more positive

experiences, better perceptions of the school environment, and reduced truancy. 23

C. Policies Such as the County’s Fall

Within State and Local Educational

Discretion.

Particularly given the need to create safe and

supportive environments for LGBTQ students, policies

like the County’s fall well within state and local

discretion. Incorporating LGBTQ-inclusive books into

the language arts curriculum helps students develop

respect and tolerance for students who are LGBTQ.

And declining to allow opt-outs reflects a determination that, whatever one’s views about whether being

LGBTQ is “right” or “wrong,” students must learn to

treat LGBTQ people with respect and dignity—

consistent with public education’s role in bringing

together “diverse and conflicting elements in our

society” and thus furthering “fundamental values

Id.; see also, e.g., Wojciech Kaczkowski et al., Examining the

Relationship Between LGBTQ-Supportive School Health Policies

and Practices and Psychosocial Health Outcomes of Lesbian, Gay,

Bisexual, and Heterosexual Students, 9(1) LGBT Health 43-53

(Jan. 2022), https://tinyurl.com/34m5fvu5.

22

Jack K. Day et al., Safe and Supportive Schools for LGBT

Youth: Addressing Educational Inequities Through Inclusive

Policies and Practices, 74 J. Sch. Psych. 29-43 (June 2019),

https://tinyurl.com/4e9zydk4.

23

11

necessary to the maintenance of a democratic political

system.” Ambach, 441 U.S. at 77.

Indeed, efforts such as these often reflect policies of

nondiscrimination enshrined in state law. Cognizant

of the importance of education to our communities’

youth, as well as the broad negative effects of discrimination, many of our States (as well as other

jurisdictions) have protected LGBTQ students by

codifying prohibitions against discrimination on the

basis of sexual orientation or gender identity. 24 In

Maryland, for instance, local school systems are

required to have policies and regulations “designed to

create and maintain environments that are equitable,

fair, safe, diverse, and inclusive.” Md. Code Regs.

(“COMAR”) 13A.01.06.04C(1). Further, public prekindergarten, primary, and secondary schools, as well as

nonpublic schools that receive funds from the State,

are prohibited from discriminating against current or

prospective students on the basis of, among other

things, sexual orientation or gender identity. Md. Code

Ann., Educ. § 26-704 (LexisNexis 2022).

Endeavors like the County’s are consistent with our

States’ efforts to address bullying, too. Maryland law,

for instance, requires each school system to establish

a policy prohibiting bullying, harassment, or intimidation based on a statewide model policy. Id. § 7-424.1. 25

“Bullying, harassment, or intimidation” is defined to

include certain conduct motivated by, among other

See, e.g., Mass. Gen. Laws ch. 76, § 5; Movement Advancement Project, Equality Maps: Safe Schools Laws (2022),

https://tinyurl.com/4bubd64k (“nondiscrimination” tab) (compiling laws of all States).

24

See also Md. State Dep’t of Educ., Model Policy: Bullying,

Harassment, or Intimidation (2021), https://tinyurl.com/2c4wvtvj.

25

12

things, a student’s sexual orientation or gender identity. Id. § 7-424. As this definition reflects, bullying

can be rooted in animus. By fostering respect for, and

familiarity with, LGBTQ people, LGBTQ-inclusive

books can help prevent bullying from occurring at all.

Parents who disagree with a school’s approach to

any of this have ample recourse. In Maryland, beyond

attending school board meetings, they are free to raise

their concerns with the county school superintendent,

whose decision can then be appealed to the county

school board. Id. § 4-205(c)(2). The county school

board’s decision, in turn, can be appealed to the

State Board of Education, id. §§ 2-205(e), 4-205(c)(3),

whose decision is subject to judicial review in the

same manner as any other agency decision, COMAR

13A.01.05.11. Although parents may not always agree

with the outcome, the availability of processes such as

these helps ensure that school boards can “transmit

community values.” Board of Educ., Island Trees

Union Free Sch. Dist. No. 26, 457 U.S. at 864.

Petitioners are wrong to point to purported inequity

between the County’s policy and the common practice

of allowing students to opt out of sex education classes,

including in Maryland. See Pet’r Br. 36-37. Stated

simply, the books at issue are not sex education.

Maryland’s regulations do require school systems to

establish procedures allowing students to opt out of

“instruction related to family life and human sexuality

objectives.” COMAR 13A.04.18.01D(2)(e)(i). That requirement refers specifically to the “Family Life and Human

Sexuality” component of the State’s comprehensive

health education program, COMAR 13A.04.18.01C(1)(c),

whose principal objective is to “help students adopt

and maintain healthy behaviors and skills that

contribute directly to a student’s ability to successfully

13

practice behaviors that protect and promote health and

avoid or reduce health risks,” COMAR 13A.04.18.01B(1).

To that end, the regulation outlining “comprehensive

health education standards” provides that “[s]tudents

will comprehend concepts related to health promotion

and disease prevention to enhance health,” then

enumerates those concepts to include family life and

human sexuality alongside mental and emotional

health, substance abuse prevention, safety and violence

prevention, healthy eating, and disease prevention

and control. COMAR 13A.04.18.01C(1). Thus, the

“instruction regarding family life and human sexuality

objectives” from which students may opt out is

instruction directed toward promoting students’ health

as part of the overall required health curriculum.

Efforts like those at issue here are a different matter

altogether. Cf. Tandon v. Newsom, 593 U.S. 61, 62

(2021) (prescribing inquiry into whether government

regulations treat “comparable secular activity more

favorably than religious exercise” (emphasis added));

id. (explaining that “whether two activities are

comparable for purposes of the Free Exercise Clause

must be judged “against the asserted government

interest that justifies the regulation at issue”). The

books in question are designed to foster tolerance and

acceptance by underscoring, for all students, that

LGBTQ people exist and deserve to be treated with

dignity and respect. They are not meant as sex

education; they do not discuss physical intimacy; and

they are not otherwise meant to “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,” COMAR

13A.04.18.01B(1). Indeed, the notion that books

featuring LGBTQ characters are by definition “sex

14

education” would mean that books featuring heterosexual romantic or family relationships are also “sex

education” and likewise trigger opt-out rights. 26 Thus,

that schools allow opt-outs for sex education does not

suggest that the County is obligated to allow opt-outs

here—whether as a matter of state law or as a matter

of free exercise—any more than it would be obligated

to allow opt-outs from other non-sex-education

instruction, such as math or geography.

II. PETITIONERS HAVE FAILED TO ESTABLISH A

CONSTITUTIONAL BURDEN ON THE MINIMAL

RECORD AT THIS PRELIMINARY PHASE.

The Fourth Circuit correctly concluded that the

“threadbare record developed to date” in this case

“does not support th[e] conclusion” that the use of the

books at issue will go beyond “mere exposure” and veer

into “direct or indirect pressure to abandon religious

beliefs or affirmatively act contrary to those beliefs.”

Pet. App. 35a-36a & n.14. While petitioners suggest

that teachers might be pressuring students or stifling

disagreement about the books, see, e.g., Pet’r Br. 11-12,

there is no evidence that this actually has occurred.

This case therefore does not present the question

whether such pressure, if it existed, would burden

petitioners’ free exercise rights. Rather, the scant

record here permits consideration of only a much

broader claim: that petitioners’ free exercise rights are

For example, the children’s book Pat the Bunny features

characters called “Mummy” and “Daddy,” and at one point says

that “Paul,” a child, “can put his finger through Mummy’s ring.”

Dorothy Kunhardt, Pat the Bunny 15 (1940). Because the book

involves a heterosexual marital relationship that apparently has

produced children, under petitioners’ theory it would seem to

constitute sex education.

26

15

burdened by their children’s mere exposure to concepts

at odds with their religious beliefs. Nothing in this

Court’s precedent suggests such a dangerously expansive principle, and the Court should reject it.

As the Fourth Circuit recognized, the record, at this

early phase of litigation, contains no evidence as to

how the challenged books are used in Montgomery

County. See Pet. App. 33a (noting lack of clarity

regarding “how any teacher or school employee has

actually used any of the Storybooks in the Parents’

children’s classrooms, how often the Storybooks are

actually being used, what any child has been taught in

conjunction with their use, or what conversations have

ensued about their themes”). And while petitioners

cite to County teacher guidance that suggests answers

to students’ questions, Pet’r Br. 11-12, there is no

evidence that this guidance has ever been used. Pet.

App. 43a. This paucity of information is a result of

petitioners’ own strategy of seeking this Court’s review

of the denial of a preliminary injunction rather than

developing the record further through fact discovery.

Justices of this Court have rightly been wary of

adjudicating constitutional issues in similar circumstances. See, e.g., Gonzales v. Raich, 545 U.S. 1,

55 (2005) (O’Connor, J., joined by Rehnquist, C.J.,

and Thomas, J., dissenting) (noting that relevant

“[f]acts . . . may be developed in litigation,” but that

“in part because this case comes to us from the grant

of a preliminary injunction, there has been no such

development”); Thornburgh v. American Coll. of

Obstetricians & Gynecologists, 476 U.S. 747, 815 (1986)

(O’Connor, J., joined by Rehnquist, J., dissenting)

(objecting to “prematurely decid[ing] serious constitutional questions on an inadequate record, in contravention

of settled principles of constitutional adjudication and

procedural fairness” where “[t]here has been no trial

16

on the merits, and appellants have had no opportunity

to develop facts that might have a bearing on the

constitutionality of the statute” at issue); O’Bannon v.

Town Ct. Nursing Ctr., 447 U.S. 773, 803 n.10 (1980)

(Blackmun, J., concurring) (questioning whether constitutional issue was “properly presented” where case

arose “from the refusal to extend a preliminary

injunction—an order preceded by limited development

of the record and not guided by focused presentation of

legal arguments”).

Without evidence about how, if at all, teachers talk

about the books in question—apart from simply

reading them—the record cannot support a conclusion

that students are being coerced either to adopt a

particular view or to abandon any previously held

views. The Fourth Circuit therefore correctly concluded

that petitioners cannot meet the preliminary injunction standard with respect to any free exercise

claim based on students being coerced to change their

religious beliefs. Pet. App. 34a; see Winter v. Natural

Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (a preliminary injunction is an “extraordinary remedy that may

only be awarded upon a clear showing that the

plaintiff is entitled to such relief”). Petitioners’ only

remaining claim on this record is that their free

exercise rights are burdened simply by the exposure

of their children to instruction inconsistent with

petitioners’ religious beliefs.

The First Amendment does not extend so far.

Although petitioners rely heavily on this Court’s

decisions in Yoder and West Virginia State Board of

Education v. Barnette, 319 U.S. 624 (1943), those cases

do not support their claim. If anything, both decisions

confirm that mere exposure to contrary views, as

17

opposed to coercion to affirm or adopt such views,

cannot constitute a burden on free exercise.

In Yoder, the constitutional problem was not

exposure to instruction contrary to plaintiffs’ Amish

beliefs. Rather, the Court found, based on a welldeveloped factual record including detailed expert

testimony, that the law burdened plaintiffs’ free

exercise rights because attending high school itself

was antithetical to their religious beliefs, and that

mandatory school attendance posed an existential

threat to their religious community. See Yoder, 406

U.S. at 209 (describing expert testimony about “the

relationship of the Amish belief concerning school

attendance to the more general tenets of their

religion,” and “the impact that compulsory high school

attendance could have on the continued survival of

Amish communities” (emphasis added)); id. at 211

(“Formal high school education beyond the eighth

grade is contrary to Amish beliefs not only because it

places Amish children in an environment hostile to

Amish beliefs with increasing emphasis on competition in class work and sports and with pressure to

conform to the styles, manners, and ways of the peer

group, but also because it takes them away from their

community, physically and emotionally, during the

crucial and formative adolescent period of life.”). The

Court emphasized that the plaintiffs had presented an

exceedingly detailed record regarding “the interrelationship of belief with their mode of life, the vital

role that belief and daily conduct play in the continued

survival of Old Order Amish communities and their

religious organization, and the hazards presented by

the State’s enforcement” of the compulsory schooling

statute. Id. at 235.

18

Yoder made clear that its holding had a narrow

reach. The Court opined that “probably few other

religious groups or sects could make” the showing

the Amish had made. Id. at 235-36. Neither that

conclusion nor the Court’s detailed discussion of the

existential threat posed to the Amish community by

mandatory “attend[ance],” id. at 207, would have made

sense if plaintiffs could have demonstrated a free

exercise burden simply by pointing to instruction

contrary to their religious beliefs.

The inconsistency between Barnette and petitioners’

theory is even clearer. In Barnette, a West Virginia law

compelled students to salute and pledge allegiance to

the United States flag. 319 U.S. at 629. A group of

Jehovah’s Witnesses sued, stating that they considered

the flag a graven image and that saluting it violated

their religious beliefs. Id. In finding a First Amendment violation, this Court emphasized that the

mandatory flag salute and pledge of allegiance

constituted “a compulsion of students to declare a

belief,” id. at 631, and that the law “requires the

individual to communicate by word and sign his

acceptance of the political ideas it thus bespeaks,” id.

at 633. At the same time, the Court distinguished

making students “acquainted with the flag salute so

that they may be informed as to what it is or even what

it means,” id. at 631. Thus, simply instructing

plaintiffs on material contrary to their religious

beliefs was permissible, even though “requir[ing] the

individual to communicate by word and sign his

acceptance of the political ideas” was not. Id. at 633;

see also Bowen v. Roy, 476 U.S. 693, 704-705 (1986)

(describing Barnette as “rel[ying] on the showing

that compulsion of certain activity with religious

significance was involved”). Petitioners’ “exposure”

19

theory cannot be squared with that understanding of

the First Amendment.

The parental rights cases on which petitioners rely

do not support their exposure theory, either. See Meyer

v. Nebraska, 262 U.S. 390 (1923), Pierce v. Society of

Sisters of Holy Names of Jesus & Mary, 268 U.S. 510

(1925); Espinoza v. Montana Dep’t of Revenue, 591 U.S.

464 (2020). In Meyer, the Court held that a teacher’s

due process rights were violated when he was

prosecuted for teaching German, 262 U.S. at 396-97,

402, and in Pierce, the Court struck down a law that

required children to attend public school, 268 U.S.

at 530, 534-35. While both decisions recognized the

“liberty of parents and guardians to direct the

upbringing and education of children,” id. at 534-35,

neither suggested that parents could demand that the

government shield their children from simply hearing

contrary ideas. Indeed, this Court has interpreted

Meyer and Pierce narrowly. See, e.g., Runyon v.

McCrary, 427 U.S. 160, 177 (1976) (emphasizing that

Pierce “‘held simply that while a State may posit

(educational) standards, it may not pre-empt the

educational process by requiring children to attend

public schools’” (quoting Yoder, 406 U.S. at 239 (White,

J., concurring))); id. (explaining that “Meyer and its

progeny,” including Pierce and Yoder, “entitle [petitioner

private schools] to no more” than to “remain presumptively free to inculcate whatever values and standards

they deem desirable”); Norwood v. Harrison, 413 U.S.

455, 461 (1973) (recognizing the “limited scope of

Pierce,” which “affirmed the right of private schools to

exist and to operate”). Similarly, Espinoza reiterated

“the rights of parents to direct ‘the religious

upbringing’ of children,” 591 U.S at 485 (quoting Yoder,

406 U.S. at 213-14), but nowhere suggested a right to

avoid exposure to contrary ideas. Indeed, that case

20

addressed a wholly unrelated question: whether

Montana’s prohibition on providing tuition assistance

to parents who send their children to religious schools

violated the Free Exercise Clause. Id. at 468.

Furthermore, the breadth of the rule petitioners

propose is astonishing. Under petitioners’ theory that

they can control precisely what their children hear in

school, there is no principled way to distinguish the

books at issue from any other part of a school’s

curriculum, nor petitioners’ particular objections to

LGBTQ-themed content from any other religiously

based reason parents might want their children opted

out of exposure to certain content. Petitioners thus

assert the right to opt out of any part of a school

curriculum on religious grounds. Because topics

implicating religious belief could arise in almost any

class covering almost any subject—from the Reformation

to the civil rights movement, from the Big Bang to

dinosaurs, from Macbeth to Beloved—petitioners’

theory could require schools to provide parents with

detailed advance notice of nearly every topic to be

covered every day in every classroom, along with a

corresponding opportunity to opt out. Such a regime

would significantly interfere with the well-recognized

authority and responsibility of state and local governments, beholden to their citizens through elections,

to set educational parameters for their communities.

See discussion at pages 3-6 above. It also would saddle

schools with significant logistical burdens, as the

record in this case reflects. See, e.g., Pet. App. 607a

(school administrator’s declaration that “individual

principals and teachers could not accommodate the

growing number of opt out requests without causing

significant disruptions to the classroom environment”).

This Court should thus reject petitioners’ expansive

exposure theory of free exercise.

21

If this Court does conclude that petitioners’ free

exercise rights were burdened, however, it should not,

at this preliminary stage, decide what level of scrutiny

applies, much less whether that level of scrutiny is

satisfied here. Since the court of appeals affirmed the

denial of the preliminary injunction motion on the

ground that petitioner had not established a burden,

it did not address any further constitutional question.

The question presented, in turn, encompasses only

whether a burden exists. Pet. i; see Sup. Ct. R. 14.1(a).

Thus, in the event that the Court finds a free exercise

burden here, it should remand to allow the Fourth

Circuit to consider the scrutiny-related questions in

the first instance.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted,

ANDREA JOY CAMPBELL

Attorney General of

Massachusetts

ANTHONY G. BROWN

Attorney General of

Maryland

DAVID C. KRAVITZ

State Solicitor

ANNA LUMELSKY

Deputy State Solicitor

ADAM CAMBIER

Assistant Attorney General

One Ashburton Place

Boston, Massachusetts 02108

anna.lumelsky@mass.gov

(617) 963-2204

JULIA DOYLE

Solicitor General

JOSHUA M. SEGAL*

Principal Deputy Solicitor

General

200 Saint Paul Place

20th Floor

Baltimore, Maryland 21202

jsegal@oag.state.md.us

(410) 576-6446

April 2025

* Counsel of Record

[Counsel listing continued on following page.]

22

ROB BONTA

Attorney General of

California

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Sacramento, CA 95814

WILLIAM TONG

Attorney General of

Connecticut

165 Capitol Avenue

Hartford, CT 06106

PHILIP J. WEISER

Attorney General of

Colorado

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10th Floor

Denver, CO 80203

KATHLEEN JENNINGS

Attorney General of

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Attorney General for the

District of Columbia

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Suite 8100

Washington, DC 20001

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Attorney General of

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Illinois

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Chicago, IL 60601

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Attorney General of

Maine

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Augusta, ME 04333-0006

DANA NESSEL

Attorney General of

Michigan

P.O. Box 30212

Lansing, MI 48909

KEITH ELLISON

Attorney General of

Minnesota

102 State Capitol

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King Jr. Blvd.

St. Paul, MN 55155

23

AARON D. FORD

Attorney General of

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Attorney General of

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Attorney General of

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Attorney General of

Rhode Island

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Attorney General of

Washington

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Olympia, WA 98504