Reply Brief — Libby Hilsenrath, on Behalf of Her Minor Child, C. H., Petitioner v. Chathams School District Board of Education

Supreme Court briefNov 17, 2025

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NO.25-256

In the

Supreme Court of the United States

LIBBY HILSENRATH, ON BEHALF OF HER MINOR CHILD,

C. H.,

Petitioner,

CHATHAMS SCHOOL DISTRICT BOARD OF EDUCATION,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Third Circuit

REPLY TO BRIEF IN OPPOSITION OF

RESPONDENT BOARD OF EDUCATION OF

THE SCHOOL DISTRICT OF THE CHATHAMS

Richard Thompson

Counsel of Record

Thomas More Law Center

24 Frank Lloyd Wright Drive

P.O. Box 393

Ann Arbor, MI 48106

Tel: (734) 827-2001

rthompson@thomasmore.org

Michael P. Hrycak

129 Beech Street

Cranford, NJ 07016

Counsel for Petitioner

TABLE OF CONTENTS

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

ARGUMENT .............................................................. 1

Specifying the proper test for

Establishment Clause claims relating

to school lessons that proselytize or

advance a specific religion over others is

critically important to ensure that

schools do not coerce children in ways

that undermine their religious beliefs........... 1

II.

Supreme Court guidance is necessary

because post-Kennedy there is broadbased confusion among the lower courts

as to the proper Establishment Clause

test (or tests) to apply. ................................... 6

III.

Given the overlap between the Religion

Clauses, Mahmoud clarifies the types of

coercive pressures that impermissibly

advance religious views that conflict

with the private beliefs of students and

their parents ................................................... 9

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

TABLE OF AUTHORITIES

Cases:

Agostini v. Felton,

521 U.S. 203 (1997) ...................................... 4, 5, 7-9

American Legion v. American Humanist Ass’n,

588 U.S. 29 (2019) ...................................................5

Edwards v. Aguillard,

482 U.S. 578 (1987) ...................................... 1-10, 12

Epperson v. Arkansas,

393 U.S. 97 (1968) ....................................................5

Espinoza v. Montana Dept. of Revenue,

591 U.S. 464 (2020) ..................................................2

Firewalker-Fields v. Lee,

58 F.4th 104 (4th Cir. 2023) ....................................9

Hilsenrath v. Sch. Dist. of Chathams,

136 F.4th 484 (3d Cir. 2025) ...................... 4, 5, 7-10

Hosanna-Tabor Evangelical Lutheran

Church & Sch. v. EEOC,

565 U.S. 171 (2012) ................................................10

Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507 (2022) .................................. 1, 2, 4, 6-9

Lee v. Weisman,

505 U.S. 577 (1992) .................................... 1, 2, 4-12

Lemon v. Kurtzman,

411 U.S. 192 (1973) .......................................... 4, 6-9

Mahmoud v. Taylor,

606 U.S. 522 (2025) .................................... 1, 3, 9-12

iii

Morse v. Frederick,

551 U.S. 393 (2007) ..................................................2

Our Lady of Guadalupe Sch. v Morrissey-Berru,

591 U.S. 732 (2020) ..................................................1

Roake v. Brumley,

141 F.4th 614 (5th Cir. 2025) ..................................8

Roake v. Brumley,

154 F.4th 329 (5th Cir. 2025) ..................................8

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

374 U.S. 203 (1963) ..............................................2, 7

Shurtleff v. City of Boston,

596 U.S. 243 (2022) .............................................. 4-7

Stone v. Graham,

449 U.S. 39 (1980) ....................................................6

Town of Greece v. Galloway,

572 U.S. 565 (2014) .............................................. 5-7

Wisconsin v. Yoder,

406 U.S. 205 (1972) ..........................................10, 12

ARGUMENT

The petition squarely presents an important

question that affects public schools and their students

across the Nation—whether, in the wake of Kennedy

v. Bremerton Sch. Dist., 597 U.S. 507 (2022), lessons

that proselytize or promote a specific religion violate

the Establishment Clause under Lee v. Weisman, 505

U.S. 577 (1992) and Edwards v. Aguillard, 482 U.S.

578 (1987) by advancing religious viewpoints that

contravene the religious beliefs of children and their

parents. Pet. at i-ii. Yet the Respondents never

address this critical issue, relying on cases that do not

involve public school students and minimizing the

implications of Mahmoud v. Taylor, 606 U.S. 522

(2025) on the government’s “duty to guard and respect

that sphere of inviolable conscience and belief” that

the Religion Clauses protect in the school setting.

Lee, 505 U.S. at 592.

I. Specifying the proper test for Establishment

Clause claims relating to school lessons that

proselytize or advance a specific religion

over others is critically important to ensure

that schools do not coerce children in ways

that undermine their religious beliefs.

This Court has repeatedly recognized that

“[r]eligious education is vital to many faiths practiced

in the United States.” Our Lady of Guadalupe Sch. v

Morrissey-Berru, 591 U.S. 732, 754 (2020). For many

believers, “the religious education of children is not

merely a preferred practice but rather a religious

obligation.” Mahmoud, 606 U.S. at 547. While some

parents “direct ‘the religious upbringing’ of their

children” by “sending [them] to religious schools,”

Espinoza v. Montana Dept. of Revenue, 591 U.S. 464,

486 (2020) (citation omitted), financial concerns make

it so that many parents “have no choice but to send

their children to a public school.” Morse v. Frederick,

551 U.S. 393, 424 (2007) (Alito, J., concurring). For

these parents, it is all the more important that this

“Court has been particularly vigilant in monitoring

compliance with the Establishment Clause in

elementary and secondary schools.” Edwards, 482

U.S. at 583.

Not surprisingly, given the “complementary

purposes” of the Religion Clauses, Kennedy, 597 U.S.

at 533, this broad protection of the religious beliefs of

parents and children flows from both the

Establishment and Free Exercises Clauses. Sch. Dist.

of Abington Twp. v. Schempp, 374 U.S. 203, 217 (1963)

(describing

“[t]he

interrelationship

the

Establishment and the Free Exercise Clauses”). The

Free Exercise Clause safeguards “the rights of parents

to direct ‘the religious upbringing’ of their children.”

Espinoza, 591 U.S. at 486 (citation omitted). Under

Edwards, the Establishment Clause protects the

same right of religious belief for parents and their

children. 482 U.S. at 584 (“Families entrust public

schools with the education of their children, but

condition their trust on the understanding that the

classroom will not purposely be used to advance

religious views that may conflict with the private

beliefs of the student and his or her family.”). And Lee

confirms that under the Establishment Clause the

State has a “duty to guard and respect that sphere of

inviolable conscience and belief which is the mark of a

free people.” 505 U.S. at 592.

According to the District, there is no

Establishment Clause problem here because “[t]his

Court has long held that public schools may use

religious texts and teachings as part of an objective

secular program of education without violating [the

Establishment Clause].”

Brief in Opposition of

Respondent Board of Education of the School District

of the Chathams (“Response”) at 13.1 Contrary to the

District’s claim, this case raises a different and

unsettled issue: whether lessons that proselytize or

promote a religion that conflicts with a parent’s or

child’s religious beliefs violate the Establishment

Clause. Neither the Third Circuit nor the District

addressed this critical issue.2

1 The District’s suggestion that students were not required to

watch the “Intro to Islam” video, Response at 7-8, is

irreconcilable with the sworn testimony of their own officials.

Students were assigned the PowerPoints discussing Islam, and

the “Intro To Islam” slide directed students to “Watch this

video.” JA 416. In fact, part of the assignment directed students:

“[a]s you watch this video clip, write down words that describe

Islam as presented by this video.” Id. The Superintendent

acknowledged C.H. watched the videos because they were

assigned, JA 343-44, and that the content of the proselytizing

video JA 435 was not a factual presentation. JA 335-39, 368-69.

Google Classroom material was treated the same as in-class

work. JA 441 (WCG Class Materials/Resources); JA 424 (MENA

test guide); JA 322 (LaSusa Dep. 30:14-24); JA 381 (LaSusa/30b6

Dep 32:12-15); JA 171-172 (Maher Dep. 30:12-22, 34:5-18).

This Court granted review in Mahmoud even though the

LGBTQ+ curricular material was part of an objective, secular

literature program. Here, as in Mahmoud, the effect of lessons

that “advance religious views” and “conflict with the private

beliefs of the student and his or her family” is a critical national

issue. Edwards, 482 U.S. at 584.

Having identified the wrong issue, the panel

compounded the problem by applying the wrong

Establishment Clause precedents, ignoring the cases

decided in the special context of public schools. In that

setting, Establishment Clause claims are governed by

Lee and Edwards, not Kennedy and Shurtleff v. City of

Boston, 596 U.S. 243 (2022). Yet neither the panel nor

the District mention, let alone discuss, Lee’s and

Edwards’s recognition that the Establishment Clause

prevents schools from “advanc[ing] religious views

that may conflict with the private beliefs of the

student and his or her family.” Edwards, 482 U.S. at

584.

Instead of relying on these school precedents, the

Hilsenrath majority treated Kennedy’s rejection of

Lemon and the endorsement test as license to fashion

a new “hallmarks” test, establishing its own unified

Establishment Clause standard. But Kennedy did not

overturn the numerous precedents that relied upon

Lemon. In fact, Kennedy cited Lee and Edwards

favorably, confirming their continued viability in the

school setting. Yet instead of following Lee and

Edwards, which emphasize the broad protection that

the Establishment Clause provides parents and

children who are concerned about the impact lessons

promoting a particular religion might have on their

“religious beliefs and worship,” Lee, 505 U.S. at 589,

the majority relied on Kennedy and Shurtleff, which

narrowed the government’s ability to invoke the

Establishment Clause to justify muzzling private

religious speech.

That was error. By indiscriminately applying its

hallmarks test to public schools, the Third Circuit

disregarded Agostini v. Felton’s directive to lower

courts that “if a precedent of this Court has direct

application in a case, yet appears to rest on reasons

rejected in some other line of decisions, the Court of

Appeals should follow the case which directly controls,

leaving to this Court the prerogative of overruling its

own decisions.” 521 U.S. 203, 237 (1997).

Disregarding Agostini, the District contends that

“the benchmarks regarding establishment of religion

[discussed in Town of Greece, American Legion, and

Shurtleff] … apply identically in the public-school

context.”

Response at 11.

Lee and Edwards

demonstrate that this claim is wrong. Given the age

of students coupled with compulsory attendance,

“there are heightened concerns with protecting

freedom of conscience from subtle coercive pressure in

the elementary and secondary public schools.” Lee,

505 U.S. at 592; Edwards, 482 U.S. at 583 (“The Court

has been particularly vigilant in monitoring

compliance with the Establishment Clause in

elementary and secondary schools … [given that

s]tudents in such institutions are impressionable and

their attendance is involuntary.”). Contrary to the

Third Circuit’s and the District’s suggestions, in the

school context neither “direct evidence of coercion” nor

coerced participation in a formal religious exercise is

required for an Establishment Clause violation.

Hilsenrath v. Sch. Dist. of Chathams, 136 F.4th 484,

492 (3d Cir. 2025); Response at 11, 15.

As Epperson v. Arkansas explained, while a

secular study of religion is permissible, “[t]he State

may not adopt programs or practices in its public

schools … which ‘aid or oppose’ any religion.” 393 U.S.

97, 106 (1968). The video lessons on Islam do just

that, “aiding” Islam by proselytizing and expounding

the virtues of the faith and its rich religious traditions.

Response at 7-8. The videos are also like the Ten

Commandments in Stone v. Graham in that, if the

videos (created by third parties, like UKIslam, see id.

at 8, that sought to promote and spread their Islamic

faith) “are to have any effect at all, it will be to induce

the schoolchildren to read, meditate upon, perhaps to

venerate and obey,” the teachings of Islam. 449 U.S.

39, 42 (1980). This is Hilsenrath’s concern, which

confirms that “families trust … that the classroom will

not purposely be used to advance religious views that

may conflict with the private beliefs of the student and

his or her family,” Edwards, 482 U.S. at 584, even

though no “formal religious exercise was taking place

in C.H.’s WCG class.” Response at 15.

Review is warranted, therefore, because whether

Kennedy and Shurtleff narrow the scope of

Establishment Clause protection under Lee and

Edwards is of great consequence to public schools

across the country as well as to the millions of parents

and children attending those schools.

II. Supreme Court guidance is necessary

because post-Kennedy there is broad-based

confusion among the lower courts as to the

proper Establishment Clause test (or tests) to

apply.

To address Lemon’s demise, Kennedy “instructed

that the Establishment Clause must be interpreted by

‘reference

historical

practices

and

understandings.’ ” 597 U.S. at 535 (quoting Town of

Greece v. Galloway, 572 U.S. 565, 576 (2014)) (cleaned

up). Any Establishment Clause line that separates

the constitutional from the unconstitutional must

“ ‘accord[] with history and faithfully reflect[] the

understanding of the Founding Fathers.’ ” Town of

Greece, 572 U.S. at 577 (quoting Schempp, 374 U.S. at

294 (Brennan, J., concurring)). At the same time,

Agostini requires lower courts to apply precedents

that have “direct application in a case” (Lee and

Edwards) even if those cases “appear[] to rest on

reasons rejected in some other line of decisions”

(Kennedy and Shurtleff). 521 U.S. at 237. Given the

large number of cases decided during the

Lemon/endorsement test era, lower courts have

special need for direction as to the proper

Establishment Clause test to apply in the public

school setting.

Hilsenrath illustrates that need. The majority

adopted a “hallmarks” test, drawing on the “telling

traits” of established churches that Justice Gorsuch

identified in his Shurtleff concurrence. Hilsenrath,

136 F.4th at 491. But the panel majority’s historical

test is in direct tension with Edwards, which

recognized that “[s]uch a historical approach is not

useful in determining the proper roles of church and

state in public schools, since free public education was

virtually nonexistent at the time the Constitution was

adopted.” 482 U.S. at 583 n.4.

Unconvinced, the concurrence ignored Edwards,

rejected the majority’s “hallmarks” test, and

questioned whether “history and tradition” can ever

serve “as freestanding constitutional norms.” Id. at

494 (Phipps, J., concurring in the judgment). In place

of the hallmarks test, Judge Phipps concluded that

“all that is needed is a recognition that teaching on

matters of religion or even encouraging religious belief

or practice in public school does not constitute a ‘law

respecting an establishment of religion.’ ” Id. at 495.

The concurrence provided no citation for its

“recognition” standard and never explained why

“encouraging religious belief or practice in public

school” would not violate the Establishment Clause

principles set out in Lee and Edwards. Id.

For its part, the District admits that “no one size

fits all test for evaluating Establishment Clause cases

was established in the wake of Lemon,” yet the

Hilsenrath majority suggests Kennedy did just that.

Response at 11.

Other courts, and even the

concurrence, have disagreed with the majority’s

approach.3 And none of these courts has addressed

Agostini. What the actual test or tests are, the

District never says. Instead, the District adds to the

confusion by proposing its own amalgamation of

Establishment Clause principles to conclude that the

proselytizing lessons on Islam are constitutional: “In

fact, no reasonable person, aware of the context of the

world history curriculum being taught, would ever

view the challenged materials as communicating a

message of coercion in a religious activity or

established church.” Response at 18-19. On this view,

the endorsement test (whether a reasonable person

would view the curriculum as communicating a

government message in the given context) combines

with some sort of coercion analysis to limit

Although the Fifth Circuit had denied that Kennedy

established a single hallmarks test, the District embraced that

analysis as rooted in “ ‘a broader tradition’ at the time of the

Founding or incorporation.” Roake v. Brumley, 141 F.4th 614,

646 (5th Cir. 2025); Response at 21. The Fifth Circuit recently

vacated Roake, see Roake v. Brumley, 154 F.4th 329 (5th Cir.

2025), suggesting Circuit-wide uncertainty about the governing

law.

Establishment Clause violations to cases involving

direct coercion in a religious activity or an established

church. The Establishment Clause right of students

and parents to be free from lessons that promote

religious views in conflict with their own is never

mentioned.

All of this shows that guidance is necessary. If, as

the District contends, the majority’s test “is merely

representative of the foremost historical practices and

understandings of establishing a religion,” Response

at 20, courts need to know, among other things,

(i) what test or tests should be used to replace Lemon,

(ii) Kennedy’s impact on precedents that applied

Lemon, and (iii) how “historical practices and

understandings” affect the coercion analysis in the

public school context. If the hallmarks test is the test,

many questions remain unanswered as the

concurrence and Fourth Circuit have noted.

Hilsenrath, 136 F.4th at 494-95 (Phipps, J.,

concurring); Firewalker-Fields v. Lee, 58 F.4th 104,

121 (4th Cir. 2023). Only this Court can resolve this

widespread confusion by directing lower courts to

follow Agostini and by reaffirming that Lee and

Edwards still apply in the school context.

III. Given the overlap between the Religion

Clauses, Mahmoud clarifies the types of

coercive pressures that impermissibly

advance religious views that conflict with

the private beliefs of students and their

parents.

This Court has recognized that the Free Exercise

and Establishment Clauses have “complementary

purposes” and frequently provide overlapping

protections for religious groups and individuals.

Hosanna-Tabor Evangelical Lutheran Church & Sch.

v. EEOC, 565 U.S. 171, 181 (2012) (describing how

“[b]oth Religion Clauses bar the government from

interfering with the decision of a religious group to fire

one of its ministers”).

This Court’s precedents

involving public school instruction illustrate the point.

Edwards and Lee provide generous Establishment

Clause protection to parents and their children from

state-mandated religious instruction or exercise,

“guard[ing] and respect[ing] that sphere of inviolable

conscience and belief which is the mark of a free

people.” Lee, 505 U.S. at 592. Wisconsin v. Yoder, 406

U.S. 205 (1972) and Mahmoud are to the same effect

in the Free Exercise arena, providing parents and

their children with broad protection from mandated

materials or instruction that contradicts their

religious convictions.

Despite this dual security, the District insists that

Mahmoud has no bearing on this case. The District is

wrong. Both Religion Clauses safeguard parents and

children from even subtle forms of governmental

coercion that arise from lessons that proselytize or

promote a specific religion. Mahmoud’s coercion

analysis, therefore, directly relates to the central issue

here—whether proselytizing videos included in a

larger history unit “advance religious views that may

conflict with the private beliefs of the student and his

or her family.” Edwards, 482 U.S. at 584.

The Third Circuit looked only for evidence of direct

coercion that “ ‘force[s students] to engage in a formal

religious exercise.’ ” Hilsenrath, 136 F.4th at 492

(citation omitted). For its part, the District would

saddle parents with the burden of showing that

“Respondent’s MENA curriculum” taken as a whole

does not “resemble[] the hallmarks of a religious

establishment, as interpreted through historical

practices and understandings.” Response at 26.

Mahmoud confirms that both requirements are

mistaken. Neither direct coercion nor participation in

a religious exercise/establishment are necessary

under the Religion Clauses.

Furthermore, Mahmoud instructs that the

coercion test, whether invoked in relation to Free

Exercise or Establishment, protects children and

parents (through notice and a chance to opt-out) from

specific lessons that conflict with their faith tradition.

When a secular lesson on a controversial topic (such

as the storybooks in Mahmoud) contradicts a parent’s

or child’s religious beliefs, the Free Exercise Clause is

implicated; when the challenged lesson involves

videos that proselytize and promote a particular faith,

Establishment Clause safeguards are triggered to

protect the “sphere of inviolable conscience and belief

which is the mark of a free people.” Lee, 505 U.S. at

592. In both situations, the lessons “undermine[]”

parents’ “ability to present” their desired religious

views “when the exact opposite message is positively

reinforced in the public school classroom at a very

young age.” 606 U.S. at 552. Thus, given the overlap

between the Religion Clauses, Mahmoud “is an

important precedent of this Court, and it cannot be

breezily dismissed as a special exception” that applies

only to Free Exercise claims. Id. at 558.

Finally, Hilsenrath does not invoke Mahmoud to

surreptitiously assert a Free Exercise claim; rather,

she asks this Court to consider—or at least permit the

Third Circuit to consider—Mahmoud’s impact on the

coercion analysis in the public school setting.

Mahmoud revitalized Yoder, confirming that the Free

Exercise Clause “protects against policies that impose

more subtle forms of interference with the religious

upbringing of children.” 606 U.S. at 548. Because Lee

and Edwards protect the same right to be free from

even subtly coercive lessons that contradict a family’s

religious beliefs, Mahmoud’s reasoning should apply

to Establishment Clause claims as well. The decision

below erred by manufacturing a tension between the

Establishment and Free Exercise Clauses that does

not exist in the public school setting.

CONCLUSION

For the reasons given above, this Court should

grant the petition for certiorari or, in the alternative,

remand the case for reconsideration in light of

Mahmoud.

Respectfully submitted,