USCA4 Appeal: 23-1890 Doc: 101 Filed: 10/30/2023 Pg: 1 of 35
`
`No. 23-1890
`
`UNITED STATES COURT OF APPEALS
`FOR THE FOURTH CIRCUIT
`
`
`TAMER MAHMOUD ET AL.,
`Plaintiffs-Appellants,
`
`v.
`MONIFA B. MCKNIGHT, IN HER OFFICIAL CAPACITY AS SUPERINTENDENT OF THE
`MONTGOMERY COUNTY BOARD OF EDUCATION, ET AL.,
` Defendants-Appellees.
`
`
`
`On Appeal from the United States District Court
`for the District of Maryland
`Case No. 8:23-cv-01380-DLB– Judge Deborah L. Boardman
`
`
`BRIEF OF AMICI CURIAE
`THE AMERICAN CIVIL LIBERTIES UNION AND
`THE AMERICAN CIVIL LIBERTIES UNION OF MARYLAND
`IN SUPPORT OF DEFENDANTS-APPELLEES AND AFFIRMATION
`
`
`DAVID ROCAH
`DEBORAH JEON
`American Civil Liberties Union
`Foundation of Maryland
`3600 Clipper Mill Road, Suite 350
`Baltimore, MD 21211
`Tel: (410) 889-8555
`
`
`Counsel for Amici Curiae
`
`ADITI FRUITWALA
` Counsel of Record
`HEATHER WEAVER
`DANIEL MACH
`American Civil Liberties Union
`Foundation
`915 15th St NW
`Washington, DC 20005
`Tel: (202) 457-0800
`
`
`
`
`
`
`
`
`
`No. 23-1890
`
`UNITED STATES COURT OF APPEALS
`FOR THE FOURTH CIRCUIT
`
`
`TAMER MAHMOUD ET AL.,
`Plaintiffs-Appellants,
`
`v.
`MONIFA B. MCKNIGHT, IN HER OFFICIAL CAPACITY AS SUPERINTENDENT OF THE
`MONTGOMERY COUNTY BOARD OF EDUCATION, ET AL.,
` Defendants-Appellees.
`
`
`
`On Appeal from the United States District Court
`for the District of Maryland
`Case No. 8:23-cv-01380-DLB– Judge Deborah L. Boardman
`
`
`BRIEF OF AMICI CURIAE
`THE AMERICAN CIVIL LIBERTIES UNION AND
`THE AMERICAN CIVIL LIBERTIES UNION OF MARYLAND
`IN SUPPORT OF DEFENDANTS-APPELLEES AND AFFIRMATION
`
`
`DAVID ROCAH
`DEBORAH JEON
`American Civil Liberties Union
`Foundation of Maryland
`3600 Clipper Mill Road, Suite 350
`Baltimore, MD 21211
`Tel: (410) 889-8555
`
`
`Counsel for Amici Curiae
`
`ADITI FRUITWALA
` Counsel of Record
`HEATHER WEAVER
`DANIEL MACH
`American Civil Liberties Union
`Foundation
`915 15th St NW
`Washington, DC 20005
`Tel: (202) 457-0800
`
`
`
`
`
`
`
`
`
`USCA4 Appeal: 23-1890 Doc: 101 Filed: 10/30/2023 Pg: 2 of 35
`
`UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
`
`DISCLOSURE STATEMENT
`
`(cid:120)
`
`In civil, agency, bankruptcy, and mandamus cases, a disclosure statement must be filed by all
`parties, with the following exceptions: (1) the United States is not required to file a disclosure
`statement; (2) an indigent party is not required to file a disclosure statement; and (3) a state
`or local government is not required to file a disclosure statement in pro se cases. (All parties
`to the action in the district court are considered parties to a mandamus case.)
`In criminal and post-conviction cases, a corporate defendant must file a disclosure statement.
`In criminal cases, the United States must file a disclosure statement if there was an
`organizational victim of the alleged criminal activity. (See question 7.)
`(cid:120) Any corporate amicus curiae must file a disclosure statement.
`(cid:120) Counsel has a continuing duty to update the disclosure statement.
`
`(cid:120)
`(cid:120)
`
`23-1890
`No. __________
`
`Caption: __________________________________________________
`Tamer Mahmoud et al. v. Monifa B. McKnight et al.
`
`Pursuant to FRAP 26.1 and Local Rule 26.1,
`
`______________________________________________________________________________
`American Civil Liberties Union (ACLU)
`(name of party/amicus)
`
`______________________________________________________________________________
`
`who is _______________________, makes the following disclosure:
`amicus
`(appellant/appellee/petitioner/respondent/amicus/intervenor)
`
`1.
`
`2.
`
`3.
`
`Is party/amicus a publicly held corporation or other publicly held entity?
`
`YES
`
`✔
`
`NO
`
`NO
`YES
`Does party/amicus have any parent corporations?
`✔
`If yes, identify all parent corporations, including all generations of parent corporations:
`
`Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or
`other publicly held entity?
`YES
`NO
`✔
`If yes, identify all such owners:
`
`12/01/2019 SCC
`
`- 1 -
`
`
`
`USCA4 Appeal: 23-1890 Doc: 101 Filed: 10/30/2023 Pg: 3 of 35
`
`4.
`
`5.
`
`6.
`
`7.
`
`Is there any other publicly held corporation or other publicly held entity that has a direct
`financial interest in the outcome of the litigation?
`YES NO
`✔
`If yes, identify entity and nature of interest:
`
`YES NO
`Is party a trade association? (amici curiae do not complete this question)
`If yes, identify any publicly held member whose stock or equity value could be affected
`substantially by the outcome of the proceeding or whose claims the trade association is
`pursuing in a representative capacity, or state that there is no such member:
`
`YES NO
`Does this case arise out of a bankruptcy proceeding?
`✔
`If yes, the debtor, the trustee, or the appellant (if neither the debtor nor the trustee is a
`party) must list (1) the members of any creditors’ committee, (2) each debtor (if not in the
`caption), and (3) if a debtor is a corporation, the parent corporation and any publicly held
`corporation that owns 10% or more of the stock of the debtor.
`
`YES NO
`Is this a criminal case in which there was an organizational victim?
`✔
`If yes, the United States, absent good cause shown, must list (1) each organizational
`victim of the criminal activity and (2) if an organizational victim is a corporation, the
`parent corporation and any publicly held corporation that owns 10% or more of the stock
`of victim, to the extent that information can be obtained through due diligence.
`
`/s/ Aditi Fruitwala
`Signature: ____________________________________
`
`Date: ___________________
`October 25, 2023
`
`ACLU
`Counsel for: __________________________________
`
`- 2 -
`
`Print to PDF for Filing
`
`
`
`USCA4 Appeal: 23-1890 Doc: 101 Filed: 10/30/2023 Pg: 4 of 35
`
`UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
`
`DISCLOSURE STATEMENT
`
`(cid:120)
`
`In civil, agency, bankruptcy, and mandamus cases, a disclosure statement must be filed by all
`parties, with the following exceptions: (1) the United States is not required to file a disclosure
`statement; (2) an indigent party is not required to file a disclosure statement; and (3) a state
`or local government is not required to file a disclosure statement in pro se cases. (All parties
`to the action in the district court are considered parties to a mandamus case.)
`In criminal and post-conviction cases, a corporate defendant must file a disclosure statement.
`In criminal cases, the United States must file a disclosure statement if there was an
`organizational victim of the alleged criminal activity. (See question 7.)
`(cid:120) Any corporate amicus curiae must file a disclosure statement.
`(cid:120) Counsel has a continuing duty to update the disclosure statement.
`
`(cid:120)
`(cid:120)
`
`23-1890
`No. __________
`
`Caption: __________________________________________________
`Tamer Mahmoud et al. v. Monifa B. McKnight et al.
`
`Pursuant to FRAP 26.1 and Local Rule 26.1,
`
`______________________________________________________________________________
`American Civil Liberties Union (ACLU) of Maryland
`(name of party/amicus)
`
`______________________________________________________________________________
`
`who is _______________________, makes the following disclosure:
`amicus
`(appellant/appellee/petitioner/respondent/amicus/intervenor)
`
`1.
`
`2.
`
`3.
`
`Is party/amicus a publicly held corporation or other publicly held entity?
`
`YES
`
`✔
`
`NO
`
`NO
`YES
`Does party/amicus have any parent corporations?
`✔
`If yes, identify all parent corporations, including all generations of parent corporations:
`
`Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or
`other publicly held entity?
`YES
`NO
`✔
`If yes, identify all such owners:
`
`12/01/2019 SCC
`
`- 1 -
`
`
`
`USCA4 Appeal: 23-1890 Doc: 101 Filed: 10/30/2023 Pg: 5 of 35
`
`4.
`
`5.
`
`6.
`
`7.
`
`Is there any other publicly held corporation or other publicly held entity that has a direct
`financial interest in the outcome of the litigation?
`YES NO
`✔
`If yes, identify entity and nature of interest:
`
`YES NO
`Is party a trade association? (amici curiae do not complete this question)
`If yes, identify any publicly held member whose stock or equity value could be affected
`substantially by the outcome of the proceeding or whose claims the trade association is
`pursuing in a representative capacity, or state that there is no such member:
`
`YES NO
`Does this case arise out of a bankruptcy proceeding?
`✔
`If yes, the debtor, the trustee, or the appellant (if neither the debtor nor the trustee is a
`party) must list (1) the members of any creditors’ committee, (2) each debtor (if not in the
`caption), and (3) if a debtor is a corporation, the parent corporation and any publicly held
`corporation that owns 10% or more of the stock of the debtor.
`
`YES NO
`Is this a criminal case in which there was an organizational victim?
`✔
`If yes, the United States, absent good cause shown, must list (1) each organizational
`victim of the criminal activity and (2) if an organizational victim is a corporation, the
`parent corporation and any publicly held corporation that owns 10% or more of the stock
`of victim, to the extent that information can be obtained through due diligence.
`
`/s/ David Rocah
`Signature: ____________________________________
`
`Date: ___________________
`October 25, 2023
`
`ACLU of Maryland
`Counsel for: __________________________________
`
`- 2 -
`
`Print to PDF for Filing
`
`
`
`USCA4 Appeal: 23-1890 Doc: 101 Filed: 10/30/2023 Pg: 6 of 35
`
`
`
`
`
`
`
`
`TABLE OF CONTENTS
`
` Page(s)
`CORPORATE DISCLOSURE STATEMENT .......................................................... i
`TABLE OF AUTHORITIES ................................................................................... iii
`
`INTERESTS OF THE AMICI CURIAE .................................................................... 1
`
`BACKGROUND ....................................................................................................... 2
`
`SUMMARY OF ARGUMENT ................................................................................. 6
`
`ARGUMENT ............................................................................................................. 8
`
`I. Yoder Does Not Require Courts to Apply Strict Scrutiny to Every Curricular
`Requirement
`or Educational Rule
`to Which Parents Object
`on Religious Grounds ...................................................................................... 9
`
`is Not Triggered Under Tandon Because
`II. Strict Scrutiny
`MCPS’s “No Opt-Out” Policy Does Not Favor Secular Conduct Over
`Religious Conduct. ........................................................................................ 11
`
`III. Strict Scrutiny Does Not Apply Under Fulton Because MCPS’s
`Policy Prohibiting Opt-Outs Does Not Permit Any Exemptions. ................. 17
`
`IV. Masterpiece Does Not Apply Here Because MCPS’s “No Opt-Out” Policy
`Was Not Enacted Out of Religious Hostility. ................................................ 20
`
`CONCLUSION ........................................................................................................ 22
`
`CERTIFICATE OF COMPLIANCE ....................................................................... 24
`
`CERTIFICATE OF FILING AND SERVICE ........................................................ 25
`
`
`
`
`
`
`
`
`ii
`
`
`
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`
`
`
`
`
`
`
`
`TABLE OF AUTHORITIES
`
`
`Bauchman v. West High Sch.,
` 132 F.3d 542 (10th Cir. 1997) ................................................................................... 5
`
`Blau v. Fort Thomas Pub. Sch. Dist.
` 401 F.3d 381 (6th Cir. 2005) ................................................................................ 10
`
`
`Canaan Christian Church v. Montgomery Cnty.,
` 29 F.4th 182, 198 (4th Cir. 2022), cert. denied, 143 S. Ct. 566 (2023) ...... passim
`
`
`Church of Lukumi Babalu Aye, Inc. v. City of Hialeah,
` 508 U.S. 520 (1993) ................................................................................. 6, 12, 20
`
`
`Combs v. Homer-Ctr. Sch. Dist.,
` 540 F.3d 231 (3d Cir. 2008) ................................................................................. 10
`
`
`CompassCare v. Hochul,
` No. 22-951 (2d Cir. filed Apr. 29, 2022) ............................................................... 1
`
`
`D.L. ex rel. K.L. v. Baltimore Bd. of Sch. Comm’rs,
` 706 F.3d 256 (4th Cir. 2013) ................................................................................ 10
`
`
`Doe v. San Diego Unified School District,
`19 F.4th 1173 (9th Cir. 2021) ........................................................................... 15, 16
`
`
`Does 1-11 v. Bd of Regents of Univ of Colo.,
` No. 21-cv-02637, 2022 WL 252320, at *5 (D. Colo, Jan. 27, 2022) .................. 17
`
`
`Does 1-3 v. Mills,
` 142 S. Ct. 1112 (2022) (mem.) ............................................................................ 13
`
`
`
`
`iii
`
`
`
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`
`
`Does 1-6 v. Mills,
` 16 F.4th 20 (1st Cir. 2021), cert. denied sub nom ............................................... 13
`
`
`
`
`
`
`Employment Div. v. Smith,
` 494 U.S. 872 (1990) ....................................................................................... 6, 19
`
`
`Firszt v. Bresnahan,
` No. 21-CV-6798, 2022 WL 138141, at *3 (N.D. Ill. Jan. 14, 2022) ................... 18
`
`
`Fitzgerald v. Roncalli High Sch., Inc.,
` 73 F.4th 529 (7th Cir. 2023) .................................................................................. 1
`
`
`Fleischfresser v. Dirs. of School Dist. 200,
` 15 F.3d 680 (7th Cir. 1994) .................................................................................... 5
`
`
`Fulton v. City of Philadelphia,
` 141 S. Ct. 1868 (2021) ................................................................................ passim
`
`Kane v. De Blasio,
` 19 F.4th 152 (2d Cir. 2021) ........................................................................... 14, 15
`
`
`Leone v. Essex Cnty. Prosecutor's Off.,
` No. 21-12786, 2021 WL 4317240, at *6 (D. N.J. Sept. 23, 2021) ...................... 18
`
`
`Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm’n,
` 138 S. Ct. 1719 (2018) ................................................................... 1, 7, 20, 21, 22
`
`Mozert v. Hawkins Cnty. Bd. of Educ.,
` 827 F.2d 1058 (6th Cir. 1987) ................................................................................ 5
`
`
`Parker v. Hurley,
` 514 F.3d 87 (1st Cir. 2008) .................................................................... 5, 9, 10, 11
`
`
`
`
`
`iv
`
`
`
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`
`
`
`Swanson v. Guthrie Indep. Sch. Dist.
` No. I-L, 135 F.3d 694 (10th Cir. 1998) ................................................................ 11
`
`
`
`
`
`
`Swartz v. Sylvester,
` 53 F.4th 693 (1st Cir. 2022) ................................................................................. 18
`
`
`Tandon v. Newsom,
` 141 S. Ct. 1294 (2021) ............................................................7, 11, 12, 13, 14, 17
`
`
`Thai Meditation Ass’n of Alab, Inc. v. City of Mobile,
` 83 F.4th 922 (11th Cir. 2023) ............................................................................... 19
`
`
`Tingley v. Ferguson,
` 47 F.4th 1055 (9th Cir. 2022) .............................................................................. 18
`
`
`Tranchita v. Callahan,
` No. 20-C-5956, 2022 WL 392893, at *6 (N.D. Ill. Feb. 9, 2022) ....................... 19
`
`
`We The Patriots USA, Inc. v. Hochul,
` 17 F.4th 266 (2d Cir. 2021), opinion clarified, 17 F.4th 368 (2d Cir. 2021), cert.
`denied sub nom. Dr. A. v. Hochul, 142 S. Ct. 2569 (2022). .................... 12, 16, 19
`
`
`Wisconsin v. Yoder,
`406 U.S. 205 (1972) ................................................................................ 6, 7, 9, 10
`
`
`Workman v. Mingo Cty. Bd. of Educ.,
` 419 F. App’x 348, (4th Cir. 2011) ........................................................................ 10
`
`
`
`
`
`v
`
`
`
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`
`
`
`
`
`
`
`INTERESTS OF THE AMICI CURIAE1
`The American Civil Liberties Union Foundation (ACLU) is a nationwide,
`
`nonprofit, nonpartisan organization with nearly two million members and
`
`supporters dedicated to advancing the principles of liberty and equality embodied
`
`in the Constitution. The ACLU of Maryland is one of the ACLU’s statewide
`
`affiliates with more than 30,000 members.
`
`As organizations that advocate for First Amendment liberties, including
`
`religious-freedom rights, as well as equal rights for lesbian, gay, bisexual,
`
`transgender, and queer (LGBTQ) people, the ACLU, the ACLU of Maryland, and
`
`their members have a strong interest in the application of proper standards when
`
`evaluating constitutional challenges to civil rights laws. The ACLU and ACLU of
`
`Maryland have appeared as counsel-of-record or amici in many cases nationwide
`
`involving religious liberties and LGBTQ inclusion. See, e.g., Fulton v. City of
`
`Philadelphia, 141 S. Ct. 1868 (2021) (counsel); Masterpiece Cakeshop, Ltd. v.
`
`Colo. C.R. Comm’n, 138 S. Ct. 1719 (2018) (counsel); Fitzgerald v. Roncalli High
`
`Sch., Inc., 73 F.4th 529 (7th Cir. 2023) (amicus); CompassCare v. Hochul, No. 22-
`
`951 (2d Cir. filed Apr. 29, 2022) (amicus).
`
`
`1 Amici affirm that no counsel for any party authored this brief in whole or in part
`and that no person other than amici, their members, or their counsel made a
`monetary contribution intended to fund the brief’s preparation or submission. The
`parties have consented to the filing of this brief.
`1
`
`
`
`
`
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`
`
`
`
`
`
`
`BACKGROUND
` In 2022, Montgomery County Public Schools (MCPS) added storybooks
`
`featuring LGBTQ characters to its elementary school English Language Arts
`
`(ELA) curriculum to further “diversity, equity, and nondiscrimination.” JA727.
`
`Among the new books were titles such as Uncle Bobby’s Wedding, in which a niece
`
`struggles with the fear of losing her favorite uncle after he marries his partner,
`
`JA107-135, and Pride Puppy, in which a family attends an LGBTQ Pride parade
`
`with a mischievous puppy, JA081-099. These and other newly added books
`
`explore themes of family, belonging, adventure, and love—themes that are
`
`archetypal and familiar in children’s storybooks.
`
`The LGBTQ-inclusive books are “a small subset of many books used in the
`
`MCPS [ELA] curriculum.” JA767. Teachers have latitude in how to incorporate
`
`the books into their instruction. They can “put [the books] on [a] shelf for students
`
`to find on their own; to recommend a book to a student who would enjoy it; to
`
`offer the books as an option for literature circles, book clubs, or paired reading
`
`groups; or to use them as a read aloud.” JA735. The curriculum does not include
`
`“instruction on gender identity and sexual orientation.” JA736. Rather, the books
`
`are used in the same manner as many other books in the English curriculum: “to
`
`assist students with mastering reading concepts like answering questions about
`
`
`
`2
`
`
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`
`
`characters, retelling key events” and “drawing inferences about story characters
`
`
`
`
`
`based on their actions.” JA736.
`
`
`
`After the introduction of the LGBTQ-inclusive books, some parents
`
`requested that their children be excused from class when the books were used.
`
`JA740. Some of the requests were based on religious objections to LGBTQ-related
`
`content, but many were not. Id. Some parents, for example, viewed any mention of
`
`sexual orientation or gender identity as inappropriate for their children’s age. Id.
`
`Teachers and principals initially attempted to accommodate these objections by
`
`allowing the students to be excused from classroom instruction using the
`
`storybooks. Id.2
`
`
`
`By March of 2023, however, the growing number of opt-out requests created
`
`several problems. First, it led to high percentages of student absenteeism, not only
`
`in ELA classes, but in other courses as well, as some parents kept their children
`
`home for the entire school day if an LGBTQ storybook would be read as part of
`
`the ELA course. JA741-742. Second, managing the numerous opt-out requests
`
`across classrooms and schools became infeasible. Id. Finally, permitting students to
`
`leave when stories involving LGBTQ people were read in class created a
`
`
`2 In 2022, MCPS promulgated Religious Diversity Guidelines that permit a school
`to create an opt-out policy “when possible.” JA729. “If such requests become too
`frequent or too burdensome, the school may refuse to accommodate the[m].”
`JA729.
`
`
`
`3
`
`
`
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`
`
`stigmatizing environment for students who are LGBTQ or who have LGBTQ
`
`
`
`
`
`family members. Id. Ultimately, principals and teachers expressed that they “could
`
`not accommodate the growing number of opt out requests without causing
`
`significant disruptions to the classroom environment and undermining MCPS’s
`
`educational mission.” JA741. As one example, after receiving notice that a
`
`storybook featuring LGBTQ characters would be read during class, the parents of
`
`“dozens of students in a single elementary school” requested that their children be
`
`excused from the class, JA741, which would require the school to assign the
`
`students alternate teachers to provide alternate assignments, see e.g., JA397. After
`
`attempting for months to accommodate the number of opt-out requests, MCPS
`
`determined that the opt-outs were not workable and that they defeated the
`
`curriculum’s goals of ensuring a classroom environment that fosters “social
`
`integration of all students and families,” JA465, “promotes equity, respect, and
`
`civility,” JA496, and “is safe and conducive to learning for all students,” JA741.
`
`
`
`On March 23, 2023, MCPS informed parents, teachers, and principals that
`
`opt-outs to the ELA curriculum would not be permitted in the new school year,
`
`stating: “Students and families may not choose to opt out of engaging with any
`
`instructional materials, other than ‘Family Life and Human Sexuality Unit of
`
`
`
`4
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`
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`Instruction’ which is specifically permitted by Maryland law.3 As such, teachers
`
`
`
`
`
`will not send home letters to inform families when inclusive books are read in the
`
`future.” JA740.
`
`
`
`Some parents of MCPS students filed the lawsuit at issue here, claiming the
`
`elimination of opt-outs violated their free-speech, free-exercise, and substantive-
`
`due-process rights under the U.S. Constitution and Maryland law. JA046. They
`
`sought a preliminary injunction based on their free exercise and substantive due
`
`process claims. The district court denied their motion, holding that the Plaintiffs
`
`could not establish a burden on their religious exercise. The district court’s
`
`decision reflects the conclusion reached by every court to consider the issue: “mere
`
`exposure in public school to ideas that contradict religious beliefs does not burden
`
`the religious exercise of students or parents.” JA755 (citing, among others, Parker
`
`v. Hurley, 514 F.3d 87, 107 (1st Cir. 2008); Bauchman v. West High Sch., 132 F.3d
`
`542, 557 (10th Cir. 1997); Fleischfresser v. Dirs. of School Dist. 200, 15 F.3d 680,
`
`690 (7th Cir. 1994); Mozert v. Hawkins Cnty. Bd. of Educ., 827 F.2d 1058, 1065
`
`
`3 Maryland law requires schools to provide “a comprehensive health education”
`that includes instruction on “family life and human sexuality” that represents
`students “regardless of ability, sexual orientation, and gender expression.” JA 728-
`29. The statute mandates that parents be provided with an opportunity “to review
`instructional materials” used in the health class and that schools develop “policies,
`guidance, and/or procedures for student opt-out.” JA728-29.
`
`
`
`
`5
`
`
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`
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`(6th Cir. 1987)). Finding no burden, the district court correctly concluded that it
`
`
`
`
`
`need not reach Plaintiffs’ arguments for applying strict scrutiny. JA755.
`
`SUMMARY OF ARGUMENT
`Amici agree with the district court’s conclusion that Plaintiffs-Appellants
`
`have not established a cognizable burden on their religious exercise. But amici
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`write separately here to explain that, regardless of any burden, MCPS’s policy
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`prohibiting opt-outs from the ELA curriculum should be subject to rational-basis
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`review, not strict scrutiny.
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`A “neutral law of general applicability” is subject to rational-basis review
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`under the Free Exercise Clause of the First Amendment, even if it incidentally
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`burdens a particular religious practice or belief. Employment Div. v. Smith, 494
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`U.S. 872, 878-79 (1990); see also Church of Lukumi Babalu Aye, Inc. v. City of
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`Hialeah, 508 U.S. 520, 531 (1993). The MCPS policy against opt-outs from the
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`ELA curriculum fits comfortably within this longstanding precedent: It covers all
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`students and families across the board, regardless of the reason for their objection
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`to any portion of ELA instruction. None of the four grounds identified by the
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`Plaintiffs-Appellants seeking to justify strict scrutiny requires this Court to depart
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`from the Smith standard.
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` First, Plaintiffs-Appellants argue that the Supreme Court’s ruling in
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`Wisconsin v. Yoder, 406 U.S. 205 (1972) requires the Court to apply strict scrutiny
`6
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`USCA4 Appeal: 23-1890 Doc: 101 Filed: 10/30/2023 Pg: 16 of 35
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`here. But Yoder was about the right to opt out entirely of the formal education
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`system. Id. at 207. It did not confer on parents who decide to participate in a public
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`school system the right to subject to strict scrutiny every legal, curricular, or school
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`requirement to which they may have religious objections.
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`Second, Plaintiffs-Appellants contend MCPS’s policy is subject to strict
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`scrutiny because it runs afoul of the Supreme Court’s edict in Tandon v. Newsom,
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`141 S. Ct. 1294 (2021) against treating “comparable secular activity more
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`favorably than religious exercise.” Id. at 1296. Like Yoder, Tandon is inapposite
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`here: The policy prohibiting opt-outs from the ELA curriculum does not treat
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`secularly motivated conduct and religiously motivated conduct differently; rather,
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`they are treated exactly alike, and the rule makes no distinction between them.
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`Third, Plaintiffs-Appellants assert that strict scrutiny applies under Fulton v.
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`City of Philadelphia, 141 S. Ct. 1868 (2021). But strict scrutiny is triggered under
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`Fulton only where a policy provides for a formal framework of purely
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`discretionary, individualized exemptions. Id. at 1878. Here, there are no
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`exemptions authorized under the policy.
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`Finally, Plaintiffs-Appellants allege that MCPS’s prohibition on ELA
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`curriculum opt-outs is “hostile to . . . religious beliefs” and thus warrants strict
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`scrutiny under Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm’n, 138 S. Ct. 1719,
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`7
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`USCA4 Appeal: 23-1890 Doc: 101 Filed: 10/30/2023 Pg: 17 of 35
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`1731 (2018) (citation omitted). Not so. As the evidence below demonstrates, the
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`
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`sheer number of ELA opt-out requests proved to be utterly unworkable, created a
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`harmful environment for LGTBQ students, and undermined MCPS’s educational
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`mission. This was true regardless of the reason behind the opt-out request (whether
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`religious or not). The decision to prohibit opt-outs going forward was not rooted in
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`animus toward religion, but rather in a desire to resolve the problems created by
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`the previous opt-out allowances.
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`Under the governing precedent, MCPS easily overcomes rational-basis
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`review and is not required to offer exceptions to its “facially neutral and generally
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`applicable” policy. See Canaan Christian Church v. Montgomery Cnty., 29 F.4th
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`182, 198 (4th Cir. 2022), cert. denied, 143 S. Ct. 566 (2023) (failure to create a
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`religious exception to a policy restricting land use was generally applicable and
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`subject to rational-basis review). Accordingly, amici respectfully suggest that this
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`Court affirm the district court’s judgment.4
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`ARGUMENT
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`4 While beyond the scope of this brief, the MCPS “No Opt-Out” Policy would also
`easily overcome strict scrutiny. MCPS has compelling interests in carrying out its
`educational mission and avoiding a hostile environment for LGBTQ students.
`MCPS’s rule against opt-outs is narrowly tailored, as illustrated by the previous
`harms imposed by allowing exemptions.
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`8
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`USCA4 Appeal: 23-1890 Doc: 101 Filed: 10/30/2023 Pg: 18 of 35
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`I. Yoder Does Not Require Courts to Apply Strict Scrutiny to Every
`Curricular Requirement or Educational Rule to Which Parents Object
`on Religious Grounds.
`Plaintiffs-Appellants argue that the Supreme Court’s ruling in Yoder requires
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`the Court to apply strict scrutiny here. Opening Br. 24-33, ECF No. 56. In Yoder,
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`the Supreme Court held that the state could not compel Amish children to attend
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`traditional public or private schools for formal education after eighth grade, against
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`their and their parents’ wishes—where doing so would not only violate core Amish
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`religious precepts but would also threaten the existence of the entire Amish
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`community’s way of life. Yoder, 406 U.S. at 235. Yoder was about the right to opt
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`out entirely of the formal education system. Id. at 208. Consequently, the ruling is
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`“essentially sui generis, as few sects could make a similar showing of a unique and
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`demanding religious way of life that is fundamentally incompatible with any
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`schooling system.” Parker, 514 F.3d at 100.
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`Unlike Yoder, Plaintiffs-Appellants do not request to withdraw their children
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`from the formal education system, or even public school entirely, but rather to
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`dictate—based on their religious beliefs—the curriculum that their children will be
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`taught. Yoder does not confer on parents this broad right, and Plaintiffs-Appellants’
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`suggestion that it does would completely hamstring the operation of public
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`schools.
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`9
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`Yoder itself cautions that its holding “in no way alter[ed] [the Court’s]
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`recognition of the obvious fact that courts are not school boards or legislatures, and
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`are ill-equipped to determine the ‘necessity’ of discrete aspects of a State’s
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`program of compulsory education.” 406 U.S. at 234-35. Parents can decide which
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`school their child attends, but parents have no constitutional right to “direct how a
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`public school teaches their child.” Parker, 514 F.3d at 102 (quoting Blau v. Fort
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`Thomas Pub. Sch. Dist. 401 F.3d 381, 395 (6th Cir. 2005)). Indeed, as this Court
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`has recognized, “[t]he right to a religious education does not extend to a right to
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`demand that public schools accommodate [parents’] educational preferences.” D.L.
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`ex rel. K.L. v. Baltimore Bd. of Sch. Comm’rs, 706 F.3d 256, 264 (4th Cir. 2013).
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`“The school board need not serve up its publicly funded services like a buffet from
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`which Appellants can pick and choose.” Id. To find otherwise would result in an
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`unworkable school system—one in which students could opt out of anything they
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`find objectionable, from English literature to evolution to slavery.
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`Finally, Plaintiffs-Appellants suggest that struct scrutiny applies because
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`their parental rights implicate their free-exercise claim. Opening Br. 25, ECF No.
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`56. Simultaneously invoking religious interests, however, does not somehow
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`radically expand the basic boundaries of other rights. This Court has never
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`recognized the hybrid-rights doctrine cited by Plaintiffs-Appellants. See Workman
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`v. Mingo Cty. Bd. of Educ., 419 F. App’x 348, 353 (4th Cir. 2011) (citing Combs v.
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`10
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`Homer-Ctr. Sch. Dist., 540 F.3d 231, 244-47 (3d Cir. 2008)). As the district court
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`correctly observed, “[n]o published circuit court opinion . . . ha[d] ever applied
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`strict scrutiny to a case in which plaintiffs argued they had presented a hybrid
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`claim.” JA781 (citing Parker, 514 F.3d at 98). It “cannot be true that a plaintiff can
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`simply invoke the parental rights doctrine, combine it with a claimed free exercise
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`right, and thereby force the government to demonstrate the presence of a
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`compelling state interest.” Swanson v. Guthrie Indep. Sch. Dist. No. I-L, 135 F.3d
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`694, 700 (10th Cir. 1998).
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`II. Strict Scrutiny is Not Triggered Under Tandon Because MCPS’s “No
`Opt-Out” Policy Does Not Favor Secular Conduct Over Religious
`Conduct.
`Under Tandon, a government regulation is not neutral or generally
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`applicable—and will be subject to strict scrutiny review—only if it treats
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`“comparable secular activity more favorably than religious exercise.” Tandon, 141
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`S. Ct. at 1296-97 (applying strict scrutiny to pandemic restrictions that “treat[ed]
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`some comparable secular activities,” such as patronizing hair salons and
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`restaurants, “more favorably than” religious activiti
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