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 A ppeals for the Fourth Circuit

BRIEF OF AMICI CURIAE SCHOLARS FOR

THE ADVANCEMENT OF CHILDREN’S

CONSTITUTIONAL RIGHTS AND STUDENTS

ENGAGED IN ADVANCING TEXAS

IN SUPPORT OF RESPONDENTS

Tanya Washington

Professor of Law

Georgia State University

College of Law

Jeremiah Chin

Assistant Professor of Law

University of Washington

School of Law

Sarah Medina Camiscoli

Assistant Professor of Law

Rutgers School of Law

Travis F. Chance

A malia Y. Sax-Bolder

Brownstein Hyatt

Farber Schreck, LLP

675 15th Street

Suite 2900

Denver, CO 80202

379775

Catherine E. Smith

Counsel of Record

Vincent L. Bradford

Professor of Law

Washington and Lee

University School of Law

506 Sydney Lewis Hall

Lexington, VA 24450

(832) 752-1458

csmith3@wlu.edu

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

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

INTERESTS OF AMICI . . . . . . . . . . . . . . . . . . . . . . . . . 1

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

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

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

I.

The Cour t Must Consider Students’

Constitutional Rights . . . . . . . . . . . . . . . . . . . . . . . 6

II. Petitioners’ Requested Relief Obfuscates

Students’ First Amendment Rights . . . . . . . . . . . 8

A. Pe t i t i o n e r s ’ R e q u e s t e d R e l i e f

Facilitates Viewpoint Discrimination

and Compels Students’ Silence . . . . . . . . . . 10

B. Petitioners’ Demanded Relief Would

Violate Students’ Rights to Access

Ideas and Information . . . . . . . . . . . . . . . . . 15

C. A “Marketplace of Ideas” that Prepares

Students to Participate in Democracy

Requires Conflicting Perspectives . . . . . . . 19

ii

Table of Contents

Page

III. Petitioners’ Demanded Relief Would

Give Legal Effect to Sex Discrimination

and LGBTQ+ Stereotyping, Violating

Children’s Equal Protection Rights . . . . . . . . . . 20

A. The Demanded Opt-Out Would Give

Legal Effect to Impermissible Sex

Discrimination . . . . . . . . . . . . . . . . . . . . . . . 23

B. The Demanded Opt-Out Would Give

Legal Effect to Impermissible LGBTQ+

Stereotyping . . . . . . . . . . . . . . . . . . . . . . . . . 25

C. Excluding LGBTQ+ Books Based on

Impermissible Private Views Harms

LGBTQ+ Children in Public Schools . . . . 28

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

APPENDIX A — COMPARISON OF

CURRICULAR MATERIALS . . . . . . . . . . . . . . . . 1a

iii

TABLE OF CITED AUTHORITIES

Page

Cases

303 Creative LLC v. Elenis,

600 U.S. 570 (2023) . . . . . . . . . . . . . . . . . . 11, 12, 13, 18

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

478 U.S. 675 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Bostock v. Clayton County,

590 U.S. 644 (2020) . . . . . . . . . . . . . . . . . . . . . . . . 24, 25

Bowers v. Hardwick,

478 U.S. 186 (1986) . . . . . . . . . . . . . . . . . . . . . . . . 21, 22

Brown v. Bd. of Educ.,

347 U.S. 483 (1954) . . . . . . . . . . . . . 8, 18, 19, 28, 29, 31

City of Cleburne v. Cleburne Living Ctr.,

473 U.S. 432 (1985) . . . . . . . . . . . . . . . . . . . . . . . . 21, 23

Epperson v. Arkansas,

393 U.S. 97 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

First Nat’l Bank of Boston v. Bellotti,

435 U.S. 765 (1978) . . . . . . . . . . . . . . . . . . . . . . . . 15, 16

Griswold v. Connecticut,

381 U.S. 479 (1965) . . . . . . . . . . . . . . . . . . . . . . . . 16, 17

Grutter v. Bollinger,

539 U.S. 306 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

iv

Cited Authorities

Page

In re Gault,

387 U.S. 1 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Island Trees Sch. Dist. v. Pico,

457 U.S. 853 (1982) . . . . . . . . . . . . . . . . . . 12, 15, 16, 17

J.E.B. v. Alabama,

511 U.S. 127 (1994) . . . . . . . . . . . . . . . . . . . . . 23, 24, 26

Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Keyishian v. Bd. of Regents,

385 U.S. 589 (1967) . . . . . . . . . . . . . . . . . . . . . . . . 19, 20

Lawrence v. Texas,

539 U.S. 558 (2003) . . . . . . . . . . . . . . . . . . . . . . . . 21, 22

Levy v. Louisiana,

391 U.S. 68 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

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

594 U.S. 180 (2021) . . . . . . . . . . . . . . . . 2, 13, 14, 19, 28

Mahmoud v. McKnight,

688 F. Supp. 3d 265 (D. Md. 2023) . . . . . . . . . . . . 26, 27

Masterpiece Cakeshop, Ltd. v.

Colo. Civ. Rts. Comm’n,

584 U.S. 617 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

v

Cited Authorities

Page

Matal v. Tam,

582 U.S. 218 (2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Meyer v. Nebraska,

262 U.S. 390 (1923) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Nken v. Holder,

556 U.S. 418 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Obergefell v. Hodges,

576 U.S. 644 (2015) . . . . . . . . . . . . . . . . . . . . . . . . 22, 29

Oyama v. Cal.,

332 U.S. 633 (1948) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Palmore v. Sidoti,

466 U.S. 429 (1984) . . . . . . . . . . . . . . . . . . . . . . . . 21, 22

Parents Involved in Cmty. Sch. v.

Seattle Sch. Dist. No. 1,

551 U.S. 701 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Planned Parenthood v. Danforth,

428 U.S. 52 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Plyler v. Doe,

457 U.S. 202 (1982) . . . . . . . . . . . . . . . . . . . . . . 8, 28, 29

Prince v. Massachusetts,

321 U.S. 158 (1944) . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8

vi

Cited Authorities

Page

Romer v. Evans,

517 U.S. 620 (1996) . . . . . . . . . . . . . . . . . . . . . . . . 23, 29

Rosenberger v. Rector & Visitors of Univ. of Va.,

515 U.S. 819 (1995) . . . . . . . . . . . . . . . . . . . . . . . . 11, 12

Starbucks Corp. v. McKinney,

602 U.S. 339 (2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Texas v. Johnson,

491 U.S. 397 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

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

393 U.S. 503 (1969) . . . . . . . . . 2, 7, 9, 10, 14, 15, 19, 20

United States v. Windsor,

570 U.S. 744 (2013) . . . . . . . . . . . . . . . . . . . . . . . . 29, 30

W. Va. Bd. of Ed. v. Barnette,

319 U.S. 624 (1943) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Weinberger v. Romero-Barcelo,

456 U.S. 305 (1982) . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 30

West Virginia Bd. of Ed. v. Barnette,

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

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

555 U.S. 7 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 31

vii

Cited Authorities

Page

Constitutional Provisions

U.S. Const. amend. I . . . . . . . . . . . . . . . . . 2, 4-9, 10, 13-18

U.S. Const. amend. XIV . . . . . . 2, 4, 5, 7, 9, 21-23, 26, 28

Statutes, Rules and Regulations

MD Code 13A.01.06.01(b) . . . . . . . . . . . . . . . . . . . . . . . . 17

U.S. Sup. Ct. R. 37.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Other Authorities

Barbara Bennett Woodhouse, Children’s Rights,

Handbook of Youth and Justice 377 (Susan O.

White ed., 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Sarah Medina Camiscoli, Teenage Rebels and

the Demand for Due Process, 16 Geo. J. of

Modern Critical Race Theory 27 (2024) . . . . . . . . . 9

Erwin Chemerinsky, Chemerinsky: Gorsuch Wrote

His “Most Important Opinion” in SCOTUS

Ruling Protecting LGBTQ Workers, ABA J.

(July 1, 2020), https://www.abajournal.com/

news/article/chemerinsky-justice-gorsuchjust-wrote-his-most-important-opinion . . . . . . . . . . 25

viii

Cited Authorities

Page

Cu r r icu lu m, Element a r y S chool Engl i sh

Language A rts, Montgomery Cnty. Pub.

Schs., https://www.montgomeryschoolsmd.org/

curriculum/english/es . . . . . . . . . . . . . . . . . . . . . . . . 2, 3

Anne C. Dailey & Laura A, Rosenbury, The New

Law of the Child, 127 Yale L.J. 1448 (2018) . . . . 8, 17

Anne C. Dailey, In Loco Republicae, 133 Yale L.J.

419 (2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 14

Pet’rs’ First Am. Compl., Mahmoud v. McKnight,

No. 8:23-cv-01380-DLB (D. Md. July 6, 2023) . . . . . . 3

Catherine E. Smith & Susannah W. Pollvogt,

Children as Proto-Citizens: Equal Protection,

Citizenship, and Lessons from the ChildCentered Cases, 48 U.C. Davis L. Rev. 655

(2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 28

Catherine E. Smith, “Children’s Equality Law”

in the Age of Parents’ Rights, 71 K an. L.

Rev. 539 (2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

Catherine E. Smith, Equal Protection for Children

of Gay and Lesbian Parents: Challenging

the Three Pillars of Exclusion—Legitimacy,

Dual- Gen d er Parentin g, an d Biol ogy,

28 Law & Ineq. 307 (2010) . . . . . . . . . . . . . . . . . . 29, 30

ix

Cited Authorities

Page

Catherine E. Smith, The Adult Rights Bearing

Archetype and How it Stifles Young People’s

Equal Protection, 19 Duke J. of Con. L. &

Pub. Policy 139 (2024) . . . . . . . . . . . . . . . . . . . . . . . . 29

Tanya Washington, In Windsor’s Wake: Section 2

of DOMA’s Defense of Marriage at the Expense

of Children, 48, Ind. L. Rev. 1 (2014) . . . . . . . . . . . . 29

1

INTERESTS OF AMICI1

Amici are members of Students Engaged in Advancing

Texas and United States legal scholars of children and the

law, education law, family law, and anti-discrimination law.

Students Engaged in Advancing Texas is a nonprofit

organization founded by young people to develop civic

leadership and belonging and represents students of

various faiths and identities who have an interest in the

outcome of this case.

Amici draw this Court’s attention to the constitutional

harms that public school students and LGBTQ+ students

and students with LGBTQ+ parents would bear should

the Court grant Petitioners’ injunctive relief. 2

INTRODUCTION

This case is about more than parents’ religious

rights and a public school’s opt-out policy. The outcome

will materially impact the experience of young people in

schools that the state compels them to attend and can

create lifelong stigma for LGBTQ+ children and families.

Petitioners’ brief neglects young people’s rights in public

schools.

1. In compliance with U.S. Sup. Ct. R. 37.6, this brief was not

authored, in whole or in part, by counsel for either party, and no

person other than Amici and Amici’s counsel contributed monetarily

to the preparation or submission of this brief.

2. “Student” and “child”/“children” are used interchangeably

throughout to demonstrate the dual status of the persons of interest

here—that they exist both at home and at school, and remain

independent persons with thoughts, views, ideas, and opinions.

2

Schools have a constitutional mandate to foster the

“robust exchange of ideas which discovers truth out of

a multitude of tongues, rather than through any kind

of authoritative selection,” 3 and to guarantee LGBTQ+

students the equal protection of the law.4

Petitioners seek to compel Montgomery County

Public Schools’ (MCPS) to provide them with “notice” and

“opt-out” procedures that will cause MCPS to suppress

opposing viewpoints by children and single out a group for

unequal treatment in violation of well-established First

and Fourteenth Amendment principles.

Petitioners base their requested relief on objections

to certain books in MCPS’ curriculum. For instance,

Petitioners object to Love, Violet because it depicts Violet

presenting another girl with a Valentine’s Day card, but

do not object to other books in the MCPS curriculum like

Stella Diaz Has Something to Say depicting Stella, a girl

character, who stresses over writing a Valentine’s Day

card for a boy on whom she has a crush. 5

They reject Uncle Bobby’s Wedding because it

spotlights a soon-to-be married uncle who just happens

to be marrying a man, but raise no concerns about Flora

3. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503,

740 (1969) (quotations and alterations omitted).

4. Mahanoy Area Sch. Dist. v. B.L., 594 U.S. 180, 190

(2021) (“America’s public schools are nurseries of democracy.

Our representative democracy only works if we protect the

‘marketplace of ideas.’”).

5. See Curriculum, Elementary School English Language Arts,

Montgomery Cnty. Pub. Schs., https://www.montgomeryschoolsmd.

org/curriculum/english/es (visited Apr. 8, 2025) (listing Stella Diaz

as part of the third grade English curriculum).

3

& Ulysses: The Illuminated Adventures, that portray

Flora’s discussions with her father about his divorce from

her mother.6

Petitioners also misrepresent Prince & Knight as

depicting two men who ‘dance intimately’ (when the

illustration shows two male newlyweds embracing in

front of family), but take no issue with MCPS curriculum

books such as Princess Hyacinth: the Surprising Tale

of a Girl Who Floated, portraying a child princess in her

undergarments floating in the sky as her love interest

attempts to tie her up with his kite.7

The demanded opt-out relief based on a scant record

would result in targeted, discriminatory state action

without “neutral and respectful consideration” 8 of the

rights of all students. The differences between the books

Petitioners target are based solely on the presence of

LGBTQ+ characters, not on the nature of engagement

between those characters, which in many ways is the

same. 9 Following this Court’s lead, “the way to stop

discrimination” by the state on the basis of gender and

6. See id. (listing Flora & Ulysses as part of the third grade

English curriculum).

7. Pet’rs’ First Am. Compl., Mahmoud v. McKnight, No.

8:23-cv-01380-DLB (D. Md. July 6, 2023), at ¶ 139; see also Appendix

A hereto.

8. Masterpiece Cakeshop, Ltd. v. Colo. Civ. Rts. Comm’n,

584 U.S. 617, 634 (2018).

9. “The only difference between the storybooks and other ELA

texts is that the storybooks include LGBTQ characters and their

points of view.” Resp’t.Br.7.

4

sexual orientation “is to stop discriminating” on the basis

of gender and sexual orientation.10

The Constitution protects Petitioners’ rights to

supervise children’s book choices in their homes; however,

countervailing constitutional considerations come into play

when parents seek to compel or disrupt a public school

district’s curricular choices. Students’ constitutionally

protected rights to educational entitlements and

experiences under the First and Fourteenth Amendments

will be infringed if Petitioners’ relief is granted. This

brief highlights the constitutional harms to students that

compel this Court to affirm.

SUMMARY OF ARGUMENT

Petitioners seek a mandatory injunction, compelling

MCPS to provide them the ability to opt their children out

of curricular materials involving LGBTQ+ characters and

themes. Several hundred years of equitable jurisprudence

require this Court to consider the public interest impacted

by such relief. In the context of this case, one of the most

significant public interest factors is the constitutional

rights of public school children.

Petitioners’ requested relief will infringe the First

Amendment rights of public school children. Just as

schools are constitutionally bound to respect the First

Amendment rights of students so long as their behavior

does not materially and substantially disrupt the work

and discipline of the school, parents’ First Amendment

10. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1,

551 U.S. 701, 748 (2007).

5

rights cannot be wielded to materially and substantially

disrupt the expression and learning of students at

school. Requiring MCPS to provide a constitutionally

mandated opt-out will result in MCPS’ infringment of

the constitutional rights of all students in the classroom.

The compelled opt-out will also cause MCPS to engage in

viewpoint discrimination and censor students’ access to

ideas in a learning environment. Petitioners do not object

to equivalent books with heteronormative characters and

stories, and so the demanded opt-out here will be applied

because of the content of the stories, a flagrant First

Amendment violation.

The First Amendment also provides public school

students the right to access ideas and information, even

those that their parents may consider objectionable.

Only by access and exposure to a wide array of ideas

and subjects do public schools fulfill their constitutional

mandates to train good citizens for a diverse democracy.

Similarly, Petitioners’ demanded relief hinders the

“marketplace of ideas” required in public schools to

achieve that objective.

Further, Petitioners’ requested relief would require

MCPS to violate the Fourteenth Amendment’s equal

protection guarantee. A state sponsored opt-out would

give legal effect to private biases that impermissibly

discriminate on the basis of sex and LGBTQ+ stereotypes,

causing LGBTQ+ children and their families psychic

harm.

Petitioners seek their relief on the basis of their

own constitutional rights, to the exclusion of all others,

including the rights of those most impacted by a compelled

6

opt-out. Only by considering the rights of children, and

balancing the rights of children, parents, and public

education’s role in a democracy, can this Court fully

consider the panoply of interests at stake. This Court

should affirm.

ARGUMENT

I.

The Court Must Consider Students’ Constitutional

Rights.

Petitioners ask this Court for a mandatory injunction,

exclusively focusing on whether MCPS has burdened their

First Amendment religious rights. Injunctive relief is an

“extraordinary remedy” for good reason.11 “[I]t directs

the conduct of a party, and does so with the backing of its

full coercive powers.”12

And so, a party seeking injunctive relief carries

a heavy burden—it “must establish that [it] is likely

to succeed on the merits, that [it] is likely to suffer

irreparable harm in the absence of preliminary relief,

that the balance of equities tips in [its] favor, and that an

injunction is in the public interest.”13 In fulfilling their

11. See, e.g., Nken v. Holder, 556 U.S. 418, 428 (2009) (quoting

Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982)).

12. Id.

13. Winter v. Natural Resources Def. Council, Inc., 555

U.S. 7, 20 (2008) (emphasis added). Each of “[t]hese commonplace

considerations applicable to cases in which injunctions are sought in

the federal courts” must be considered in every case because they

“reflect a ‘practice with a background of several hundred years of

history.’” Starbucks Corp. v. McKinney, 602 U.S. 339, 340 (2024)

(quoting Romero-Barcelo, 456 U.S. at 313).

7

judicial obligation, “courts of equity should pay particular

regard for the public consequences in employing the

extraordinary remedy of injunction.”14

While the religious rights of parents are important,

Petitioners’ myopic perspective on public school

curricula fails to “pay particular regard for the public

consequences”15 of their demanded relief that are adverse,

significant, and of constitutional dimension. Children are

neither functional nor physical constitutional extensions

of their parents—they are independent, constitutional

rights bearers.16

This case should not be decided in a vacuum, or in the

echo chamber of only parents’ constitutional rights. This

Court must properly account for the constitutional rights

and interests of those that would be most affected by the

Petitioners’ demand—public school children. In this case,

concern for students’ First and Fourteenth Amendment

rights must be paramount.

14. Romero-Barcelo, 456 U.S. at 313.

15. Id. at 312.

16. This Court has repeatedly affirmed that minors are not

merely constitutional extensions of their parents—instead, they

hold their own constitutional rights independent of their parents.

See Tinker, 393 U.S. at 511 (“Students in school as well as out of

school are ‘persons’ under our Constitution.”); Planned Parenthood

v. Danforth, 428 U.S. 52, 74 (1976) (“Constitutional rights do not

mature and come into being magically only when one attains the

state-defined age of majority.”). Children’s distinct constitutional

rights include First Amendment freedoms. Prince v. Massachusetts,

321 U.S. 158, 164 (1944).

8

II. Petitioners’ Requested Relief Obfuscates Students’

First Amendment Rights

This Court has clearly established the primacy of

parental rights, but it has also recognized that those rights

are not absolute. “[N]either rights of religion nor rights of

parenthood are beyond limitation.”17 And, there are times

when parents’ religious rights must yield to countervailing

considerations of public education and democracy. Amici

challenge “the classic defense of parental rights”18 as

the exclusive way to protect young people from harm.

Children’s rights have also played an “integral role in

ensuring the nation’s fidelity to its democratic ideals.”19

In the wake of the civil rights movement and

this Court’s landmark decision in Brown v. Board of

Education, 20 children were deemed “persons, equally

entitled with all others to be treated justly by the law,

even if they are treated differently.” 21

17. Prince, 321 U.S. at 166.

18. Anne C. Dailey & Laura A, Rosenbury, The New Law of

the Child, 127 Yale L.J. 1448, 1453 (2018).

19. Catherine E. Smith, “Children’s Equality Law” in the Age

of Parents’ Rights, 71 K an. L. Rev. 539, 539 (2023). See id. at 545–50

(summarizing landmark children’s rights cases, including Oyama

v. Cal., 332 U.S. 633 (1948), Plyler v. Doe, 457 U.S. 202 (1982), and

Brown v. Bd. of Educ., 347 U.S. 483 (1954)).

20. 347 U.S., at 493-95.

21. Barbara Bennett Woodhouse, Children’s Rights, Handbook

of Youth and Justice 377 (Susan O. White ed., 2001).

9

In the late 1960s, this Court explicitly recognized

children’s rights to freedom of speech and equal

protection. 22 In this Court’s early child-centered First

Amendment jurisprudence, it was made clear that children

do not shed their constitutional protections when they

enter the schools they are legally compelled to attend. 23

To allow one group of parents to substantially disrupt

curricular instruction via the proposed opt-out provisions

will infringe students’ First Amendment rights by

fostering and facilitating viewpoint discrimination and by

breaching their right to access ideas and information—two

distinct facets of the First Amendment. 24

These two First Amendment entitlements represent

two sides of the same coin in the learning spaces of public

schools: a protection from authority figures proscribing

a particular view, and an affirmative duty of education

22. See In re Gault, 387 U.S. 1, 13 (1967) (“Neither the

Fourteenth Amendment nor the Bill of Rights is for adults alone.);

Levy v. Louisiana, 391 U.S. 68, 70 (1968) (Children “are clearly

‘persons’ within the meaning of the Equal Protection Clause of the

Fourteenth Amendment.”); Tinker, 393 U.S. at 506 (“[S]tudents

[do not] shed their constitutional rights to freedom of speech or

expression at the schoolhouse gate.”).

23. See Tinker, 393 U.S. at 506.

24. The amici represented in this brief have advocated for

more protections for children’s rights in education, highlighting

the ways in which book bans and opt-out provisions for parents

alone obfuscate students’ constitutional rights. See Sarah Medina

Camiscoli, Teenage Rebels and the Demand for Due Process, 16 Geo.

J. of Modern Critical Race Theory 27, 29 (2024) (“The actions of

one person alone, challenging a book in a school library, should not

burden and restrict the education of 90,000 students in my district

without due process.”) (internal quote omitted).

10

to prepare students as learners, thinkers, and engaged

citizens. These imbricated yet discrete First Amendment

rights are both infringed by the opt-out provisions

Petitioners seek.

A.

Petitioners’ Requested Relief Facilitates

Viewpoint Discrimination and Compels

Students’ Silence

As this Court has reiterated, “our precedents remind

us that the First Amendment’s protections extend

to teachers and students, neither of whom shed their

constitutional rights to freedom of speech or expression

at the schoolhouse gate.” 25 Akin to book bans, opt-outs

flout core First Amendment principles because they lack

legitimate pedagogical purpose and give parents absolute

control over whether a student may engage with a topic—

without any input from students themselves. “[S]chool

officials cannot suppress ‘expressions of feelings with

which they do not wish to contend.’” 26 And the demanded

opt-out does exactly that; it applies only to books

reflecting certain viewpoints—subjects such as same-sex

relationships, LGBTQ+ families, or other characters or

plots that diverge from a heterosexual relationship or

family.

When Petitioners demand the ability to opt their

child out of exposure to books with LGBTQ+ characters,

families, or themes, they are asking the state to prohibit

their child’s speech based on their own viewpoint that

25. Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 527 (2022)

(quotations and citations omitted).

26. Tinker, 393 U.S. at 511 (citation omitted).

11

these themes are objectionable. 27 Removal of the child

from the classroom inhibits the child’s engagement with

teachers and other students, forcing the child’s absence

and silencing the child’s views. It also has the effect of

compelling the child to adopt the parents’ viewpoints on

these ideas and topics through state action, compelling the

child “to ‘utter what is not in [her] mind’ about a question

of political and religious significance.” 28

Petitioners’ requested relief thus has the simultaneous

effect of using the state to compel children in public schools

to adopt the parents’ speech and to compel children’s

silence on certain topics, irrespective of whether the

child agrees or disagrees with their parents’ views and

on whatever basis. “The government must abstain from

regulating speech when the specific motivating ideology or

the opinion or perspective of the speaker is the rationale

for the restriction.” 29 Just as the state may not compel

the student to accept a viewpoint on LGBTQ+ issues,

parents may not use the state, via a state-administered

opt-out right, to (1) compel adoption of their views to the

exclusion of others’ views or (2) remove the child from

being exposed to certain materials and therefore silence

the child’s thoughts and ideas about the materials.

Petitioners’ opt-out requirement would further

result in MCPS engaging in viewpoint discrimination,

27. Anne C. Dailey, In Loco Republicae, 133 Yale L.J. 419,

466 (2023).

28. 303 Creative LLC v. Elenis, 600 U.S. 570, 596 (2023)

(quoting W. Va. Bd. of Ed. v. Barnette, 319 U.S. 624, 634 (1943)).

29. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S.

819, 829 (1995).

12

an “egregious form of content discrimination.” 30 The

government generally cannot censor or suppress speech

simply because of its ideology or views. 31 That is true

even if those ideas might be considered “offensive or

disagreeable.” 32 As this Court has explained, “[g]iving

offense is a viewpoint.” 33

In 303 Creative, this Court found Colorado’s application

of its public accommodation law unconstitutional because

“Colorado seeks to compel [] speech in order to ‘excis[e]

certain ideas or viewpoints from the public dialogue.’”34

In its majority opinion, this Court stated:

In this case, Colorado seeks to force an

individual to speak in ways that align with its

views but defy her conscience about a matter

of major significance. . . . But, as this Court

has long held, the opportunity to think for

ourselves and to express those thoughts

freely is among our most cherished liberties

and part of what keeps our Republic strong. Of

course, abiding the Constitution’s commitment

to the freedom of speech means all of us will

encounter ideas we consider unattractive,

30. Id.

31. Island Trees Sch. Dist. v. Pico, 457 U.S. 853, 870-71

(1982) (holding that the “Constitution does not permit the official

suppression of ideas” based upon “narrowly partisan or political”

interests).

32. Texas v. Johnson, 491 U.S. 397, 414 (1989).

33. Matal v. Tam, 582 U.S. 218, 220 (2017).

34. 600 U.S. at 588 (citation omitted).

13

misguided, or even hurtful. But tolerance, not

coercion, is our Nation’s answer. The First

Amendment envisions the United States as a

rich and complex place where all persons are

free to think and speak as they wish, not as the

government demands. 35

Here, “tolerance, not coercion” must be the answer.

Within the classroom, students are in a public space for

learning where they must be free to “think and speak

as they wish”—not as certain parents may demand

through compelled government action. On that basis, the

Petitioners advocate for this Court to compel MCPS to

engage in impermissible viewpoint discrimination based

on the objections of parents.

Further, the desired opt-out requirement allows

parental censorship of on-campus activities, which for

students is the equivalent of state censorship of offcampus speech. As in Mahanoy Area Sch. District

v. B. L., the distinctions between on- and off-campus

speech are important First Amendment guardrails. 36 In

Mahanoy, this Court held that while public schools have

a special interest in regulating some off-campus speech

in addition to on-campus speech, that regulation must

stem from special interests that are enough to overcome

a student’s interest in free expression. 37 The Court noted

that “from the student speaker’s perspective, regulations

35. Id. at 602-603 (internal citations and quotations omitted,

(emphasis added).

36. 594 U.S. at 189–90.

37. Id.

14

of off-campus speech, when coupled with regulations of

on-campus speech, include all the speech a student utters

during the full 24-hour day. That means courts must be

more skeptical of a school’s efforts to regulate off-campus

speech, for doing so may mean the student cannot engage

in that kind of speech at all.” 38

Under Mahanoy’s reasoning, a constitutionally

compelled opt-out procedure dictated by parents prevents

the student from engaging with speech at home and at

school. In other words, the student may never be able to

“engage in that kind of speech at all.” 39

Schools do have a special interest in regulating

speech that “materially disrupts classwork or involves

substantial disorder or invasion of the rights of others[.]”40

The constitutionally mandated parental opt-out requested

by Petitioners goes beyond regulation to pure censorship.

It is not the content of the curriculum, but the viewpointdiscriminatory removal of students itself that materially

disrupts classwork, invading the First Amendment rights

of young people.

Engaging with a range of viewpoints in the classroom,

even some that parents find offensive, holds value in the

marketplace of ideas; indeed, it is a quintessential aspect

of that marketplace. The presence of materials that some

38. Id at 181.

39. Id. at 190. See also Dailey, In Loco Republicae, at 133

(“Outside of school, children may exercise their free speech rights

only at the pleasure of their parents-which is to say they effectively

have few or no actual expressive freedoms.”)

40. Tinker, 393 U.S. at 513.

15

students may find offensive within a classroom provides

all students with another viewpoint and contributes to

the “robust exchange of ideas which discovers truth out

of a multitude of tongues, rather than through any kind

of authoritative selection.”41 State facilitated viewpoint

discrimination cannot be allowed to so blatantly infringe

students’ constitutional rights. This public interest must

be accounted for in this Court’s determination of whether

the denial of injunctive relief was proper.

B. Petitioners’ Demanded Relief Would Violate

Student s’ Right s t o Acce s s Idea s a nd

Information

This Court has also recognized that First Amendment

protections extend beyond individual expression to

encompass “affording the public access to discussion,

debate, and the dissemination of information and ideas.”42

Critically, “the right to receive ideas is a necessary

predicate to the recipient’s meaningful exercise of his own

rights of speech, press, and political freedom.”43 And, those

rights should not be limited via parents’ administrative

fiat. America’s public institutions are designed to educate

students and help them achieve adulthood by receiving

a wealth of ideas and information, about which some of

the students may have different opinions. Students are

not “closed-circuit recipients of only that which the State

chooses to communicate.”44

41. Id. at 512 (quotations and alterations omitted).

42. First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 783

(1978), quoted in Pico, 457 U.S. at 866.

43. Pico, 457 U.S. at 867 (emphasis omitted).

44. Tinker, 393 U.S. at 511.

16

This Court’s plurality in Pico provides the analytical

framework for cases involving students’ constitutional

right to access ideas and information. In Pico, a school

removed certain books from libraries that it found to be

“anti-American, anti-Christian, anti-Sem[i]tic, and just

plain filthy.”45 While recognizing the school’s wide-ranging

discretion over curricular choices, this Court emphasized

that this discretion must comport with First Amendment

demands:

[W]e think that the First Amendment rights of

students may be directly and sharply implicated

by the removal of books from the shelves of a

school library. Our precedents have focused

‘not only on the role of the First Amendment

in fostering individual self-expression but also

on its role in affording the public access to

discussion, debate, and the dissemination of

information and ideas.’ First National Bank

of Boston v. Bellotti, 435 U.S. 765, 783[] (1978).

And we have recognized that ‘the State may

not, consistently with the spirit of the First

Amendment, contract the spectrum of available

knowledge. Griswold v. Connecticut, 381 U.S.

479, 482[] (1965). [. . .] [T]he right to receive

ideas is a necessary predicate to the recipient’s

meaningful exercise of his own rights of speech,

press, and political freedom.46

The Pico school sought to remove optional learning

materials from the school library; it was not seeking

45. 457 U.S. at 857 (internal quote omitted).

46. Id. at 866–67 (emphasis omitted).

17

to infringe students’ access to certain books within a

compulsory curriculum in the classroom, like Petitioners’

relief would do here. Students’ ability to access optional

books in a library is important. But students’ access to

certain books within the required curriculum enjoys

even greater First Amendment protection. MCPS has

the authority to curate curriculum, and students have a

complementary right to access the compulsory curriculum

established by it.47 The First Amendment protects students

from having certain ideas and information suppressed by

state action compelled by their parents, overriding MCPS’

long-respected authority over curricular decisions.48 And

if Petitioners’ relief is granted, MCPS may instead simply

remove all LGBTQ+-related materials from all curricula

to avoid further disputes or litigation, suppressing access

to a particular set of materials for all students entirely.

The curricular discretion of schools is derivative

of their “duty to inculcate community values.”49 MCPS

has established its community values as “provid[ing]

for educational equity and ensur[ing] that there are

no obstacles to accessing educational opportunities for

any student,”50 including by having LGBTQ+-inclusive

storybooks in its curriculum. Students’ First Amendment

47. Id. at 863.

48. Id. at 859–60; Epperson v. Arkansas, 393 U.S. 97, 107–09

(1968); Griswold, 381 U.S. at 482; Meyer v. Nebraska, 262 U.S. 390

(1923); see also The New Law of the Child, 127 Yale L.J. at 1453

(“Parental rights should never automatically trump the interests of

all others—most importantly, those of children themselves”).

49. Pico, 457 U.S. at 869.

50. MD Code Regs. 13A.01.06.01.(B).

18

rights to access this curriculum should not be infringed

by a required, state-sponsored opt-out that allows any

parents to cherry-pick pieces of the curriculum their

children will be able to access.

Students whose parents exercise this state-sponsored

opt-out will be excluded from exposure to LGBTQ+inclusive materials, without the students’ input. Parental

disagreement with curriculum content (based on religious

beliefs or otherwise) should be addressed in off-campus

family discussions, not by removing children from

educational experiences to which they are constitutionally

entitled. Reading a book does not compel students to

accept, adopt, or believe specific ideas or values; it simply

exposes them to perspectives they can evaluate for

themselves and from which they may develop their own

opinions. 51

The First Amendment operates to ensure a student’s

constitutional right to an educational experience that

functions as a true marketplace of ideas. Infringing on

public school children’s First Amendment rights to access

and contemplate ideas, even if their parents may object

to them, diminishes both the educational experience to

which they are constitutionally entitled and their capacity

for meaningful engagement as good citizens that public

education is established to foster and flourish. 52

51. But see 303 Creative LLC v. Elenis, 600 U.S. 570, 602–03

(2023) (holding Colorado “seeks to force an individual to ‘utter

what is not in [her] mind’ about a question of political and religious

significance” (quoting West Virginia Bd. of Ed. v. Barnette, 319 U.S.

624, 642 (1943)).

52. See generally Brown v. Bd. of Educ., 347 U.S. 483 (1954).

19

C.

A “Marketplace of Ideas” that Prepares

Students to Participate in Democracy Requires

Conflicting Perspectives.

This Court has consistently recognized the importance

of exposure to diverse perspectives in public education:

“‘[t]he Nation’s future depends upon leaders trained

through wide exposure to [the] robust exchange of ideas’”53

to prepare them to participate as citizens in a democracy.54

Thus, public schools have a constitutional mandate to

protect the expression of ideas in schools, even more so

when those ideas are unpopular: “[S]chools have a strong

interest in ensuring that future generations understand

the workings in practice of the well-known aphorism, “I

disapprove of what you say, but I will defend to the death

your right to say it.”55

Participating effectively in a democracy requires the

ability to hear new concepts and ideas that may differ

from one’s own and schools offer children a safe learning

environment in which to practice this skill. To grant

Petitioners their demanded relief would have the effect

of excluding certain students from the classroom on the

basis of the curriculum’s content, depriving all students

of the opportunity to practice the most fundamental

53. Tinker, 393 U.S. at 512 (quoting Keyishian v. Bd. of Regents,

385 U.S. 589, 603 (1967)).

54. Brown, 347 U.S. at 493; see also Catherine E. Smith &

Susannah W. Pollvogt, Children as Proto-Citizens: Equal Protection,

Citizenship, and Lessons from the Child-Centered Cases, 48 U.C.

Davis L. Rev. 655 (2014).

55. Mahanoy, 594 U.S. at 190.

20

democratic skill. Such selective access to curriculum would

fundamentally undermine public schools’ educational

mission to prepare students for citizenship in a diverse

society. 56

The presence of materials within a classroom that some

in society may find offensive provides all students with

another viewpoint. The public has a significant interest

in furthering the development of this “marketplace”57 and

that interest must be factored into the relief requested

by Petitioners.

III. Petitioners’ Demanded Relief Would Give Legal Effect

to Sex Discrimination and LGBTQ+ Stereotyping,

Violating Children’s Equal Protection Rights

To force MCPS to provide Petitioners an opt-out

from LGBTQ+ character-based books may result in

removal of the books and threaten well established

equal protection principles that prohibit giving indirect

legal effect to constitutionally impermissible private

biases. 58 “Private biases may be outside the reach of the

law, but the law cannot, directly or indirectly, give them

56. See Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 681

(1986) (noting schools’ role in preparing students for citizenship

and the privileges and responsibilities of adult life); Grutter v.

Bollinger, 539 U.S. 306, 331 (2003) (recognizing that exposure to

diversity “better prepares students for an increasingly diverse

workforce and society” (citation omitted)).

57. Tinker, 393 U.S. at 512 (quoting Keyishian, 385 U.S. at

603).

58. Resp’t.Br.2 (“MCPS tried to accommodate parents requests

to opt their children out of class when the storybooks were used until

doing so became unworkably disruptive.”).

21

effect.”59 This Court has addressed this prohibition in

several contexts, including LGBTQ+ cases.60

In the seminal case Palmore v. Sidoti,61 this Court

struck down a state family court’s order transferring

custody of a White couple’s young child from the mother

to father because of the mother’s marriage to a Black

man.62 This Court reversed the lower court’s reliance on

a segment of society’s private, biased views of interracial

relationships, proclaiming that while “the Constitution

cannot control such prejudices [] neither can it tolerate

them.”63 The elimination of racial discrimination by the

State is a core purpose of the Fourteenth Amendment:

the law must not give credence to private views in direct

contravention of the Amendment’s objectives.64

59. Palmore v. Sidoti, 466 U.S. 429, 433 (1984).

60. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985)

( “The City may not avoid the strictures of the [Equal Protection]

Clause by deferring to the wishes or objections of some fraction of the

body politic.”); Lawrence v. Texas, 539 U.S. 558, 578 (2003) (“[T]he

fact that the governing majority in a State has traditionally viewed a

particular practice as immoral is not a sufficient reason for upholding

a law prohibiting the practice; neither history nor tradition could

save a law prohibiting miscegenation from constitutional attack.”);

Bowers v. Hardwick, 478 U.S. 186, 212 (Blackmun, J., dissenting)

(“A State can no more punish private behavior because of religious

intolerance than it can punish such behavior because of racial animus.

“The Constitution cannot control such prejudices, but neither can it

tolerate them.” (quoting Palmore, 466 U.S. at 433)).

61. Palmore, 466 U.S. 429.

62. Id. at 430.

63. Id. at 433.

64. Id. at 432 (“This raises important federal concerns arising

from the Constitution’s commitment to eradicating discrimination

based on race.”).

22

Petitioners’ deeply held religious beliefs are, of course,

protected by the First Amendment. But the Fourteenth

Amendment prohibits state action that gives legal effect

to private views—even religious ones—that are contrary

to existing constitutional anti-discrimination mandates.65

This Court has echoed similar concerns about giving

legal effect to private beliefs contrary to constitutional

dictates against the LGBTQ+ community.66 In Obergefell

v. Hodges, this Court acknowledged that “many samesex couples provide loving and nurturing homes to their

children, whether biological or adopted,”67 and recognized

same-sex couples’ fundamental right to marry. In doing

so, Obergefell was clear that:

Many who deem same-sex marriage to be wrong

reach that conclusion based on decent and

honorable religious or philosophical premises

. . . . But when that sincere, personal opposition

becomes enacted law and public policy, the

necessary consequence is to put the imprimatur

of the State itself on an exclusion. . . .68

65. Id. at 433 (“ Private biases may be outside the reach of the

law, but the law cannot, directly or indirectly, give them effect.”).

66. See Lawrence v. Texas, 539 U.S. 558, 578 (2003)

(“[T]he fact that the governing majority in a State has traditionally

viewed a particular practice as immoral is not a sufficient reason

for upholding a law prohibiting the practice; neither history

nor tradition could save a law prohibiting miscegenation from

constitutional attack.”); Bowers v. Hardwick, 478 U.S. 186, 212

(1986) (Blackmun, J., dissenting).

67. Obergefell v. Hodges, 576 U.S. 644, 668 (2015).

68. 576 U.S. at 672. This Court has also struck down other

laws, including those supported by sincerely held moral and religious

23

The threshold inquiry is not about the source of

private belief; the issue is once that belief violates the

Fourteenth Amendment, the government may not give

it legal effect.

In this case, forcing MCPS to provide the demanded

opt-out gives legal effect to private beliefs that violate

constitutional mandates prohibiting sex discrimination

and engages in pernicious LGBTQ+ stereotyping.

Allowing the exclusion would also harm children in the

LGBTQ+ community by erasing representations of

themselves or their families in public schools.

A.

The Demanded Opt-Out Would Give Legal

Effect to Impermissible Sex Discrimination

Granting Petitioners’ relief because of thei r

view point (relig iously based or other w ise) would

stamp the government’s imprimatur on impermissible

sex classifications, a practice that carries a “strong

presumption” of “invalid[ity]” under Equal Protection

guarantees.69

The Equal Protection Clause “is essentially a

direction that all persons similarly situated should be

treated alike.”70 It protects against discriminating against

beliefs, that singled out or excluded LGBTQ+ people from the

Fourteenth Amendment’s strictures. See, e.g., Romer v. Evans, 517

U.S. 620, 635 (1996).

69. J.E.B. v. Alabama, 511 U.S. 127, 152 (1994) (Kennedy, J.,

concurring).

70. Cleburne Living Ctr., 473 U.S. at 439.

24

persons “on the basis of”—that is “because of”—certain

characteristics.71 The question of whether state action

violates the Equal Protection Clause by discriminating

because of one’s sex is essentially whether, “but for” sex,

the state action would have occurred.

In the context of discriminating between LGBTQ+

and non-LGBTQ+ classes, an Equal Protection violation

is unavoidable. Indeed, in Bostock v. Clayton County, this

Court determined that it is impossible to discriminate

against homosexual or transgender people without

engaging in sex discrimination.72

Petitioners object to books with LGBTQ+ characters,

but not books w ith heteronormative or cisgender

characters with similar storylines. Should MCPS be

forced to provide an opt-out, in turn resulting in its

inability to provide LGBTQ+ books in its curriculum,

the differential treatment by the state in the provision of

books amounts to impermissible sex discrimination.

Indeed, the sole cause for excluding the books

at issue is because of religious beliefs that hold that

legitimate relationships are only between men and

71. See J.E.B., 511 U.S. at 142 (“When persons are excluded

from participation in our democratic processes solely because of

race or gender, this promise of equality dims, and the integrity

of our judicial system is jeopardized.”).

72. 590 U.S. 644, 651–52 (2020) (“An employer who fires an

individual for being homosexual or transgender fires that person

for traits or actions it would not have questioned in members of a

different sex. Sex plays a necessary and undisguisable role in the

decision, exactly what Title VII forbids.”).

25

women.73 Bostock’s reasoning should apply with equal or

greater force in this context because “but for the sex”

of one of the characters, there would be no objection.74

In other words, if Violet were a boy (not a girl), the book

Love, Violet would not be one of the five challenged books.

Allowing the removal, voluntarily or by parentally forced

administrative decree, of books with LGBTQ+ content

because of private beliefs here gives legal effect to sex

discrimination.

B. The Demanded Opt-Out Would Give Legal

Effect to Impermissible LGBTQ+ Stereotyping

Granting Petitioners’ relief reduces LGBTQ+ people

to a narrow, single dimensional lens focused solely on

73. Id. at 656 (as long as “plaintiff’s sex was one but for cause

[of the challenged employment] decision, that is enough to trigger

the law” (emphasis added)).

74. Erwin Chemerinsky, Chemerinsky: Gorsuch Wrote His

“Most Important Opinion”’ in SCOTUS Ruling Protecting LGBTQ

Workers, ABA J. (July 1, 2020), https://www.abajournal.com/

news/article/chemerinsky-justice-gorsuch-just-wrote-his-mostimportant-opinion (“It is possible that the court will say Bostock

was just about interpreting the language of Title VII, and that it

is different under equal protection. But there seems to be little

basis for such a distinction once the court held that a prohibition

against sex discrimination includes outlawing discrimination

based on sexual orientation and gender identity.”); Bostock, 590

U.S. at 733140 S. Ct. at 1783 (Alito, J., dissenting) (“Under our

precedents, the Equal Protection Clause prohibits sex-based

discrimination unless a ‘heightened’ standard of review is met

. . . [] By equating discrimination because of sexual orientation

or gender identity with discrimination because of sex, the Court’s

decision will be cited as a ground for subjection subjecting all three

forms of discrimination to the same exacting standard of review.”

(internal citations omitted)).

26

sexual conduct that is not equally applied to heterosexual

or cisgender people. This harkens to an era in which

pernicious negative LGBTQ+ stereotypes reigned. It is

this one-sided view of LGBTQ+ people and state action

that has endorsed it that is at the heart of the prohibitions

of the Fourteenth Amendment. It is “axiomatic” that

discrimination that “serves to ratify and perpetuate

invidious, archaic, and overbroad stereotypes about” a

group of people offends the equal protection guarantee.75

Petitioners consistently equate LGBTQ+ characters,

families, or themes exclusively as offensive to their

religious teaching about sexual intercourse. For example,

Petitioners Mahmoud and Barakat’s religious grounds for

their objections are because “they have ‘a sacred duty’

to teach their children their faith, ‘including religiously

grounded sexual ethics.”

Petitioner Morrisons believe “gender is ‘interwoven’

with sex and that ‘marriage is the lifelong union of one

man and one woman—distinct from each other, while

complementary to each other—and that the nature and

purpose of human sexuality is fulfilled in that union.” 76

They believe “their religious obligation is ‘pressured’” by

the story books because they “conflict with their religious

understandings of marriage, sexuality, and gender.” 77

75. J.E.B., 511 U.S. at 131.

76. Mahmoud v. McKnight, 688 F. Supp. 3d 265, 276 (D. Md.

2023).

77. Id.

27

Petitioners repeatedly object to the use of LGBTQ+

books, using terms like “sexual health,” “sexual ethics,”

and “human sexuality.” But they fail to offer such sexually

laden interpretations of almost identical heterosexual

characters, families, or themes, and do not otherwise

explain how these books are about sexual health or similar

topics.78 In fact, Petitioners go so far as to argue that

books with LGBTQ+ characters are on par with the school

district’s “family life and sexual health curriculum,” even

as the school district is clear that “the storybooks are not

sex-education materials.” 79

If the sole inter pretation of a book ’s simple

representation of a “boy” and “girl” or a “mom” and

“dad” was always and unequivocally equated with sexual

conduct instead of the vast expanse of multifaceted

emotional, experiential, and relational aspects of life and

the human condition, one could imagine the offense. For

example, Petitioners claim that the book Born Ready

would require their children to speak about the body

parts of the main character. 80 While the main character

happens to be transgender, there is no mention of his

body. In fact, the book simply celebrates his life in a loving

78. Id. at 274 (“The individual plaintiffs have submitted

declarations in which they describe their religious beliefs and the

grounds for their objections. Mahmoud and Barakat believe they

have ‘a sacred duty’ to teach their children their faith, ‘including

religiously grounded sexual ethics.’”); id. at 274-75 (“They state

it would conflict with their religious duties to intentionally expose

their son to “activities and curriculum on sex, sexuality, and

gender that undermine Islamic teachings.”).

79. Resp’t.Br.2.

80. Resp’t.Br.11.

28

home, a supportive school, and an engaging martial arts

practice where he excels. The implication that the young

boy’s body is the center of conversation, instead of his

full life and gifts as a young person, reflects a stereotype

about transgender people.

Neither the majority nor a “fraction of the body politic”

is permitted to “use the power of the state to enforce [its

private] views on the whole of society through operation of

. . . law,” let alone to flout hallowed Fourteenth Amendment

tenets. But the demanded, state sponsored opt-out here

gives legal effect to impermissible stereotypes, in direct

violation of those tenets.

C.

Exclud i n g L GBT Q+ Bo ok s Ba s e d on

Impermissible Private Views Harms LGBTQ+

Children in Public Schools

It is important for children in the LGBTQ+ community

to see representations of themselves and their families in

public schools, which provide “the most important function

of state and local governments”81 and serve as the “nurseries

of democracy.”82 To effectively participate in democracy,

one must see themselves as an equal member in it. 83

Public schools must therefore not “singl[e] out” a group

of children in ways that create a “lifelong . . . stigma.”84

81. Brown v. Bd. of Educ., 347 U.S. 483 (1954).

82. Mahanoy Area Sch. Dist., 594 U.S. 180, 190 (2021).

83. Brown, 347 U.S. at 493; see also Catherine E. Smith &

Susannah W. Pollvogt, Children as Proto-Citizens: Equal Protection,

Citizenship, and Lessons from the Child-Centered Cases, 48 U.C.

Davis L. Rev. 655 (2014).

84. Plyler v. Doe, 457 U.S. 202, 238–39 (1982) (discussing treatment

of students as second class citizens); see also Brown, 347 U.S. 483.

29

This Court has repeatedly acknowledged that

discrimination causes psychic harm to children. 85 In

United States v. Windsor, this Court highlighted how the

“differentiation” of families based on the sex of parents

“humiliates tens of thousands of children now being raised

by same-sex couples.”86

To exclude LGBTQ+ books in the curriculum may

humiliate or embarrass children in LGBTQ+ communities

who may never see themselves or their families reflected

in the panoply of familial images in children’s books; such

rejection would also be confusing and painful. 87

Along with inflicting psychic harm, excluding books

with LGBTQ+ characters would impact the integrity of

LGBTQ+ families by interfering with a child’s relationship

to or association with their parents and siblings. 88 As the

85. Obergefell v. Hodges, 576 U.S. 644, 646; see also Brown, 347

U.S. at 494; Plyler, 457 U.S. at 222 (listing psychological harms to

children excluded from school enrollment because of their parents’

undocumented status); see also Tanya Washington, In Windsor’s

Wake: Section 2 of DOMA’s Defense of Marriage at the Expense

of Children, 48, Ind. L. Rev. 1, 64 (2014) (“Children in same-sex

families deserve to be protected from, not victimized by, harmful

and discriminatory governmental action.”).

86. 570 U.S. 744, 772 (2013).

87. Romer v. Evans, 517 U.S. 620, 635 (1996) (“A State cannot

so deem a class of persons a stranger to its laws.”). The exclusion of

young people in the LGBTQ+ community has especially deleterious

effects on our democracy. See generally Catherine E. Smith, The

Adult Rights Bearing Archetype and How it Stifles Young People’s

Equal Protection, 19 Duke J. of Con. L. & Pub. Policy 139 (2024).

88. See Catherine E. Smith, Equal Protection for Children

of Gay and Lesbian Parents: Challenging the Three Pillars of

30

Windsor Court observed, this kind of discrimination

“makes it even more difficult for [] children to understand

the integrity and closeness of their own family and its

concord with other families in their community and in

their daily lives.”89

Children are most impacted by the environments where

they spend significant time, like school. Discriminatory

exclusion of LGBTQ+ content in a public school may

send a message to students that identify as part of that

community—and to the world at large—that they and

their families are suspect and inferior. Moreover, these

very young children may internalize a harmful message

that they, as individuals, are “less worthy” than other

people. The interests of LGBTQ+ students must be

considered and, when that is properly done, denial of

injunctive relief to Petitioners was proper.90

CONCLUSION

Over seventy years ago, this Court recognized public

education as the cornerstone of training good stewards of

our democratic, pluralistic society:

Exclusion—Legitimacy, Dual-Gender Parenting, and Biology,

28 Law & Ineq. 307, 309 (2010) (“An underdeveloped area of sexual

orientation and gender identity scholarship is the legal rights and

remedies of those who face discrimination because of their relation

to or association with gays and lesbians, including children [in]

same-sex families.”).

89. 570 U.S. at 772.

90. Romero-Barcelo, 456 U.S. 305, 313 (1982).

31

Compulsory school attendance laws and

the great expenditures for education both

demonstrate our recognition of the importance

of education to our democratic society. It is

required in the performance of our most basic

public responsibilities, even service in the

armed forces. It is the very foundation of good

citizenship.91

Petitioners’ requested relief undermines MCPS’

authority over curricular choices to use its discretion to

prepare students for “good citizenship” in contravention of

the most fundamental and cherished American ideals by

seeking to suppress certain viewpoints and exposure to

ideas and deny LGBTQ+ children the equal protection of

laws. And, they seek to do so based on the “scant record”

of any burden on their religious rights,92 and without any

consideration of the rights of students and the role of

public schools. This Court should not mandate a practice

of coercion instead of tolerance.

“An injunction is a matter of equitable discretion; it does

not follow from success on the merits as a matter of course.”93

When due regard is given to the public interest in

Petitioners’ request—that is, the constitutional rights of

students—the Fourth Circuit’s decision was not an abuse

of discretion subject to reversal. This Court should affirm.

91. Brown, 347 U.S. at 493.

92. Pet.App.9a.

93. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 32 (2009).

32

Respectfully submitted,

Tanya Washington

Professor of Law

Georgia State University

College of Law

Jeremiah Chin

Assistant Professor of Law

University of Washington

School of Law

Sarah Medina Camiscoli

Assistant Professor of Law

Rutgers School of Law

Travis F. Chance

A malia Y. Sax-Bolder

Brownstein Hyatt

Farber Schreck, LLP

675 15th Street

Suite 2900

Denver, CO 80202

Catherine E. Smith

Counsel of Record

Vincent L. Bradford

Professor of Law

Washington and Lee

University School of Law

506 Sydney Lewis Hall

Lexington, VA 24450

(832) 752-1458

csmith3@wlu.edu

APPENDIX

i

TABLE OF APPENDICES

Page

APPENDIX A — COMPARISON OF

CURRICULAR MATERIALS . . . . . . . . . . . . . . . . . 1a

1a

APPENDIX A*Appendix

— COMPARISON OF

CURRICULAR MATERIALS

Petitioners object to the Prince & Knight, which features

two male characters, sharing a celebratory embrace at

their wedding, supported by family.

Petitioners do not object to books of similar grade level

with similar content such as Princess Hyacinth: the

2a

Appendix

Surprising Tale of a Girl Who Floated, portraying a child

princess in her undergarments floating in the sky as her

love interest attempts to tie her up with his kite.*

*. See Pet.App.425a (excerpt from Prince & Knight);

Curriculum, Elementary School English Language A rts,

Montgomery Cnty. Pub. Schs., https://www.montgomeryschoolsmd.

org/curriculum/english/es (visited Apr. 8, 2025) (listing Princess

Hyacinth as part of the kindergarten English curriculum).