Amicus Curiae Brief — Blake Andrew Warner, Petitioner v. Hillsborough County School Board

No. 24-718

In the

Supreme Court of the United States

BLAKE ANDREW WARNER,

Petitioner,

v.

HILLSBOROUGH COUNTY SCHOOL BOARD,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of A ppeals for the Eleventh Circuit

AMICUS CURIAE BRIEF OF THE

RELIGIOUS FREEDOM INSTITUTE

IN SUPPORT OF PETITIONER

Brian T. Goldman

Counsel of Record

Holwell Shuster

& Goldberg LLP

425 Lexington Avenue

New York, NY 10017

(646) 837-5151

bgoldman@hsgllp.com

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

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

INTEREST OF AMICUS CURIAE ........................... 1

SUMMARY OF THE ARGUMENT ........................... 2

ARGUMENT .............................................................. 2

I.

The Counsel Mandate

Tramples Fundamental Rights ........................... 2

A. Parental Rights Are Fundamental............... 2

B. Proceeding Pro Se

Is A Parenting Choice ................................... 5

II. Pro Se Parent Representation

Is a Matter of Religious Liberty .......................... 8

III. Even A Legitimate

Governmental Interest Does

Not Outweigh This Fundamental Right ........... 10

CONCLUSION ......................................................... 12

ii

TABLE OF AUTHORITIES

Cases

Page(s)

Cheung v. Youth Orchestra Found. of Buffalo, Inc.,

906 F.2d 59 (2d Cir. 1990) .......................................6

Meyer v. Nebraska,

262 U.S. 390 (1923)..............................................2, 3

Parham v. J.R.,

442 U.S. 584 (1979)..................................................7

Pierce v. Soc'y of Sisters,

268 U.S. 510 (1925).......................................... 3, 4, 7

Prince v. Massachusetts,

321 U.S. 158 (1944)............................................ 4, 10

Troxel v. Granville,

530 U.S. 57 (2000).......................................... 5, 6, 11

Wisconsin v. Yoder,

406 U.S. 205 (1972)................................ 4, 5, 6, 7, 11

Other Authorities

1 Corinthians 1:10 .....................................................10

1 Timothy 5:8 .............................................................10

Deuteronomy 6:6–7 ...................................................10

Ephesians 6:4 ........................................................ 8, 10

Isaiah 1:17 ...................................................................8

Jeremiah 22:3 ..............................................................9

Matthew 18:1–5 ...........................................................9

Micah 6:8 .....................................................................9

iii

Philippians 2:15–16 .....................................................9

Proverbs 22:6 ...............................................................8

Psalm 133:1 .................................................................9

Surah An-Nahl, 16:72 ...............................................10

Surah Al-Isra, 17:24 ....................................................9

Surah Al-Ahqaf, 46:15 .................................................8

Surah Al-Ma'idah, 5:8 .................................................9

Rules

Sup. Ct. R. 37.2 ............................................................1

Model Rules of Pro. Conduct 1.14 ...............................1

Model Rules of Pro. Conduct 1.6 .................................1

1

INTEREST OF AMICUS CURIAE 1

The Religious Freedom Institute (RFI) is

committed to achieving broad acceptance of religious

liberty as a fundamental human right, a source of

individual and social flourishing, the cornerstone of a

successful society, and a driver of national and

international security. Among its core activities, RFI

equips students, parents, policymakers, professionals,

faith-based organization members, scholars, and

religious leaders through programs and resources

that communicate the true meaning and value of

religious freedom, and apply that understanding to

contemporary challenges and opportunities.

RFI envisions a world that respects religion as an

indispensable societal good and which promises

religious believers the freedom to live out their beliefs

fully and openly. RFI submits this brief because this

Petition raises fundamental questions concerning the

rights of parents to make child-rearing decisions in

accordance with their religious beliefs—including the

decision to litigate pro se on their children’s behalf.

1 Pursuant to Sup. Ct. R. 37.2, counsel of record for all parties

received timely notice of this filing. Amicus certifies that no party

or party’s counsel authored this brief in whole or in part and that

no party or party’s counsel made a monetary contribution

intended to fund the preparation or submission of this brief. No

person other than amicus or their counsel made a monetary

contribution to its preparation or submission.

2

SUMMARY OF THE ARGUMENT

For many parents, the desire to advocate for their

child’s legal interests in a courtroom stems from

genuinely-held religious convictions. Regrettably,

courts have eschewed any considerations of parental

autonomy and religious liberty in concocting the

judge-made “counsel mandate”—a blanket prohibition

on pro se representation by a parent of his child. This

Court should grant certiorari and reaffirm that the

Constitution safeguards parents’ fundamental right

to guide a child’s upbringing, including how that child

is represented in legal matters.

ARGUMENT

I. The Counsel Mandate

Tramples Fundamental Rights

A. Parental Rights Are Fundamental

Across a series of cases from Meyer v. Nebraska

onwards, this Court has emphasized that parental

rights are among the fundamental rights protected

by the federal Constitution, and that parental

rights are particularly durable when they intersect

with free-exercise claims.

1. In Meyer v. Nebraska, 262 U.S. 390 (1923),

this Court acknowledged that parents have a

fundamental constitutional right to direct the

education and upbringing of their children. Meyer

noted that “the liberty guaranteed . . . by the

Fourteenth Amendment . . . denotes not merely

freedom from bodily restraint, but also the right of

the individual . . . [to] bring up children, [and] to

worship God according to the dictates of his own

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conscience,” and emphasized that “this liberty may

not be interfered with, under the guise of

protecting the public interest, by legislative action

which is arbitrary or without reasonable relation

to some purpose within the competency of the

State to effect.” Id. at 399–400. Further, Meyer

recognized it is parents who bear the right (and

responsibility) of educating their children. See id.

at 400 (maintaining that, “[c]orresponding to the

right of control, it is the natural duty of the parent

to give his children education suitable to their

station in life,” and also that “the right of parents

to engage [educators] so to instruct their

children . . . [is] within the liberty of the

[Fourteenth] Amendment” (emphasis added)).

2. Similarly, in Pierce v. Society of Sisters, 268

U.S. 510 (1925), this Court expressly held that the

Due Process Clause of the Fourteenth Amendment

protects “the liberty of parents and guardians to

direct the upbringing and education of children

under their control.” Id. at 534. In so holding that

“the education of children” is “a part of the[]

liberty” of “parents and guardians,” ibid., the

Pierce Court explained that, although the

government has an interest in ensuring that

children are educated, see ibid., this interest does

not empower the government to eliminate all

alternatives to public education, see id. at 534–35.

Indeed, Pierce underscored the importance of

parental decisional autonomy: “The child is not the

mere creature of the State; those who nurture him

and direct his destiny have the right, coupled with

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the high duty, to recognize and prepare him for

additional obligations.” Id. at 535.

3. This Court continued to recognize these

foundational principles in later cases.

For instance, in Prince v. Massachusetts, 321

U.S. 158 (1944), this Court announced the high

standard that must be met for the government to

restrict parental rights. Id. at 166 (“[W]hen state

action impinges upon a claimed religious freedom,

it must fall unless shown to be necessary for or

conducive to the child’s protection against some

clear and present danger.”).

Although Prince upheld limits on parental

authority, it reaffirmed that it is parents who are

the primary decisionmakers for their children. See

id. at 166 (“It is cardinal with us that the custody,

care and nurture of the child reside first in the

parents, whose primary function and freedom

include preparation for obligations the state can

neither supply nor hinder.”).

Further, in Wisconsin v. Yoder, 406 U.S. 205

(1972), this Court solidified the principle that

parental authority—particularly when tied to

religious

freedom—overrides

countervailing

government interests. In addition to reiterating

that there exists a “fundamental interest of

parents, as contrasted with that of the State, to

guide the religious future and education of their

children,” Yoder stressed the primacy of parental

rights by establishing that parents, especially

when guided by faith, enjoy the unfettered right to

make decisions for their children, even in the face

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of compelling government interests (such as

compulsory education). See id. at 233 (“[W]hen the

interests of parenthood are combined with a free

exercise claim . . . , more than merely a reasonable

relation to some purpose within the competency of

the State is required to sustain the validity of the

State’s requirement under the First Amendment.”

(internal quotation marks omitted)).

Finally, in Troxel v. Granville, 530 U.S. 57

(2000), this Court held that “the Due Process

Clause does not permit a State to infringe on the

fundamental right of parents to make child rearing

decisions simply because a . . . judge believes a

‘better’ decision could be made.” Id. at 72–73. This

is especially true, Troxel remarked, because “[t]he

liberty interest at issue . . . of parents in the care,

custody, and control of their children . . . is

perhaps the oldest of the fundamental liberty

interests recognized by this Court.” Id. at 65.

Thus, “[i]n light of this extensive precedent, it

cannot now be doubted that the Due Process

Clause of the Fourteenth Amendment protects the

fundamental right of parents to make decisions

concerning the care, custody, and control of their

children.” See id. at 66.

B. Proceeding Pro Se Is A Parenting Choice

A parent’s decision to represent his child in court

is not merely a hiring decision. Rather, it is an

extension of the constitutionally-protected parental

role.

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Representing one’s child in legal proceedings is an

exercise of a parent’s right to ensure that his child’s

interests are properly protected; it directly involves

safeguarding a child’s rights and future opportunities.

It is thus a critical decision similar in kind to dictating

the contours of a child’s education, choosing medical

care for a child, and seeking custody of a child. Hence,

pro se representation by a parent of a child is part and

parcel of an “enduring American tradition,” Yoder,

406 U.S. at 232, namely, parents directing “the care,

custody, and control of their children,” Troxel, 530

U.S. at 65.

This Court affirmed in Troxel its recognition of the

principle—rooted in the common law—that parents

presumptively act in their child’s best interest when

making critical decisions, including medical decisions.

Similarly, a parent’s decision to advocate personally

on behalf of his child in court should receive the same

deference.

Unfortunately, that basic syllogism has not been

accepted by lower courts. See, e.g., Cheung v. Youth

Orchestra Foundation of Buffalo, Inc., 906 F.2d 59 (2d

Cir. 1990) (“There is nothing in the guardian-minor

relationship that suggests that the minor’s interests

would be furthered by representation by the nonattorney guardian.”). This, despite the fact a child’s

parents often best understand his unique needs and

7

circumstances, and are therefore best positioned to

advance his interests.2

Indeed, pro se representation by a parent of his

child is an act of direct involvement in the child’s

welfare and therefore constitutes an exercise of the

parent’s “high duty . . . to recognize and prepare [his

child] for additional obligations.” See Parham v. J.R.,

442 U.S. 584, 602 (1972) (quoting Pierce, 268 U.S. at

535). Indeed, the fact this Court clarified, in Yoder,

that its prior pronouncement of this “high duty” in

Pierce “must be read to include the inculcation of

moral standards, religious beliefs, and elements of

good citizenship,” is key: A parent who guides a child

through a legal dispute serves as an example for that

child of what it means to advocate for another’s

interests and pursue justice, fairness, and equity on

another’s behalf.

2 It bears noting that parents may feel they have no choice but

to represent a child pro se because they do not trust an attorney

faithfully to represent the child’s best interests given attorneys’

ethical obligation to keep confidential (i.e., to exclude parents

from) case information and related communications with minor

clients. See Model Rules of Pro. Conduct 1.14(a) (“When a client’s

capacity to make adequately considered decisions in connection

with

a

representation

is

diminished . . . because

of

minority, . . . the lawyer shall, as far as reasonably possible,

maintain a normal client-lawyer relationship with the client.”);

Model Rules of Pro. Conduct 1.6 (“A fundamental principle in the

client-lawyer relationship is that, in the absence of the client’s

informed consent, the lawyer must not reveal information

relating to the representation.”).

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II. Pro Se Parent Representation

Is A Matter Of Religious Liberty

As noted above, Yoder confirmed that parents have

the right to make decisions regarding their children’s

upbringing based on deeply-held beliefs—particularly

religious convictions. Motivations for parents to

represent their children in court may stem from

beliefs about family, morality, and responsibility,

beliefs that themselves emanate from deeply-held

religious views. Amicus identifies below teachings

from different faiths that touch on such common

principles.

To begin, many faiths designate parents as their

children’s divinely-appointed guardians.3 In other

words, parents of faith are regarded as stewards

responsible for protecting their children’s wellbeing—including their children’s legal welfare.

Additionally, a ubiquitous element within

religious teachings is the pursuit of justice and

3 See, e.g., Ephesians 6:4 (“Nurture them in the discipline and

instruction of the Lord.”); Proverbs 22:6 (“Train up a child in the

way he should go, and when he is old he will not depart from it.”);

Surah

Al-Ahqaf

46:15,

Sahih

International,

https://quran.com/46/15 (“And We have enjoined upon man, to

his parents, good treatment. His mother carried him with

hardship and gave birth to him with hardship, and his gestation

and weaning [period] is thirty months. [He grows] until, when he

reaches maturity and reaches [the age of] forty years, he says,

‘My Lord, enable me to be grateful for Your favor which You have

bestowed upon me and upon my parents[.]’”).

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fairness.4 Parents of faith may believe they are

obligated to advocate for their children in court,

especially if they believe their children were wronged.

Relatedly, protecting children’s innocence is a core

tenet in many religions.5 Parents of faith may seek to

represent their children in court in order to shield

their children from environments or decisions they

view as harmful to their development. Indeed, here,

Petitioner Blake Warner sought to represent his son

because he sought to shield his son from an

4 See, e.g., Isaiah 1:17 (“Learn to do good; seek justice, correct

oppression; bring justice to the fatherless, plead the widow’s

case.”); Jeremiah 22:3 (“Thus says the Lord: Do justice and

righteousness, and deliver from the hand of the oppressor him

who has been robbed. And do no wrong or violence to the resident

alien, the fatherless, and the widow, nor shed innocent blood in

this place.”); Micah 6:8 (“He has shown you, O mortal, what is

good. And what does the Lord require of you? To act justly and to

love mercy and to walk humbly with your God.”); Surah AlMa’idah 5:8, Sahih International, https://quran.com/5/8 (“Do not

let the hatred of a people lead you to injustice. Be just! That is

closer to righteousness[.]”).

5 See, e.g., Philippians 2:15–16 (“[S]o that you may become

blameless and pure, ‘children of God without fault in a warped

and crooked generation.’” (quoting Deuteronomy 32:5)); Matthew

18:1–5 (“At that time the disciples came to Jesus and asked,

‘Who, then, is the greatest in the kingdom of heaven?’ He called

a little child to him, and placed the child among them. And he

said: ‘Truly I tell you, unless you change and become like little

children, you will never enter the kingdom of heaven..”); Surah

Al-Isra 17:24, Sahih International, https://quran.com/17/24

(“And be humble with them out of mercy, and pray, ‘My Lord! Be

merciful to them as they raised me when I was young.’”).

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educational environment he regarded as detrimental

to his son’s development.

Finally, faiths frequently emphasize family unity

and communal responsibility.6 Many faiths encourage

parents to teach their children the distinction

between right and wrong.7 And in many faiths,

parents are regarded as the representatives of their

family in the broader community.8

III. Even A Legitimate

Governmental Interest Does

Not Outweigh This Fundamental Right

Even if the government has a legitimate interest in

ensuring competent representation, such an interest

does not outweigh parents’ fundamental right to

decide how their children’s interests are represented.

6 See, e.g., Psalm 133:1 (“Behold, how good and pleasant it is

when brothers dwell in unity!”); 1 Corinthians 1:10 (“I appeal to

you, brothers and sisters, in the name of our Lord Jesus Christ,

that all of you agree with one another in what you say and that

there be no divisions among you, but that you be perfectly united

in mind and thought.”); Surah An-Nahl 16:72, Sahih

International, https://quran.com/16/72 (“And Allah has made for

you spouses of your own kind, and given you through your

spouses children and grandchildren[.]”).

7 See, e.g., Deuteronomy 6:6–7 (“These commandments that I

give you today are to be on your hearts. Impress them on your

children[.]”); Ephesians 6:4 (“Fathers, do not exasperate your

children; instead, bring them up in the training and instruction

of the Lord.”).

8 See, e.g., 1 Timothy 5:8 (“Anyone who does not provide for their

relatives, and especially for their own household, has denied the

faith and is worse than an unbeliever.”).

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As noted above, this Court in Prince explained that

if the government seeks to interfere with a faith-based

parental right consistent with the Constitution, the

government must demonstrate that its actions are

narrowly tailored to ensure “the child’s protection

against some clear and present danger.” Prince, 321

U.S. at 167.

The government is unable to proffer any “clear and

present danger” sufficient to justify a blanket

prohibition on pro se parent representation. Indeed, a

parent’s decision to represent his child in court poses

no threat of “jeopardiz[ing] the health or safety of the

child,” or of “materially detract[ing] from the welfare

of society.” Yoder, 406 U.S. at 234. Moreover, to the

extent a parent turns out to lack the faculty to

represent competently his child in court, the court can

mitigate such concerns when they arise. There is no

need for a prophylactic bar.

Finally, because Yoder established that faith-based

parental decision-making warrants additional

insulation from governmental interference, parents

seeking to represent their children in court for

religious motivations enjoy enhanced protections. Any

attempt to justify the judge-made ban on pro se parent

representation deserves heightened scrutiny given

Troxel’s skepticism toward judicial infringement upon

child-rearing decisions. 530 U.S. at 72–73.

12

CONCLUSION

The Court should grant the petition for a writ of

certiorari.

Respectfully submitted,

Brian T. Goldman

Counsel of Record

HOLWELL SHUSTER

& GOLDBERG LLP

425 Lexington Avenue

New York, NY 10017

(646) 837-5151

bgoldman@hsgllp.com

Counsel for Amicus Curiae