USCA4 Appeal: 23-1890 Doc: 70-1 Filed: 10/17/2023 Pg: 1 of 15
`
``No. 23-1890
`United States Court of Appeals for the Fourth Circuit
`_________________
`
`TAMER MAHMOUD, ET AL.,
`PLAINTIFFS-APPELLANTS,
`
`v.
`
`MONIFA B. MCKNIGHT, ET AL.,
`DEFENDANTS-APPELLEES.
`_________________
`
`APPEAL FROM THE U.S. DISTRICT COURT FOR THE DISTRICT OF MARYLAND,
`NO. 23-CV-1380, HON. DEBORAH L. BOARDMAN, PRESIDING
`_________________
`
`
`
`BRIEF OF PROFESSOR ERIC DEGROFF AS AMICUS CURIAE
`SUPPORTING PLAINTIFFS-APPELLANTS AND REVERSAL
`_________________
`
`
`
`
`
`
`
`
`
`
`
`
`CHRISTOPHER MILLS
`Spero Law LLC
`557 East Bay Street #22251
`Charleston, SC 29413
`(843) 606-0640
`cmills@spero.law
`
`
`Counsel for Amicus Curiae
`
`
`
`
`
`
`
`

`

`USCA4 Appeal: 23-1890 Doc: 70-1 Filed: 10/17/2023 Pg: 2 of 15
`
`TABLE OF CONTENTS
`
`
`
`
`
`Page
`
`Table of Authorities .................................................................................................. ii
`Interest of Amicus Curiae .......................................................................................... 1
`Introduction ................................................................................................................ 2
`Argument.................................................................................................................... 3
`Parents have a historically recognized right to direct the education of
`their children, including through opt-outs. ............................................ 3
`Conclusion ............................................................................................................... 10
`
`
`
`
`

`

`USCA4 Appeal: 23-1890 Doc: 70-1 Filed: 10/17/2023 Pg: 3 of 15
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`CASES
`Citizens for a Responsible Curriculum v. Montgomery Cnty. Public Schs., No. 05-
`cv-1194, 2005 WL 1075634 (D. Md. May 5, 2005) .............................................. 2
`Hardwick v. Bd. of Sch. Trs., 205 P. 49 (Cal. App. 1921) .....................................8, 9
`Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407 (2022) ........................................ 3
`Meyer v. Nebraska, 262 U.S. 390 (1923) .................................................................. 4
`Morrow v. Wisconsin, 35 Wis. 59 (1874) .................................................................. 6
`New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022) ............ 3
`Rulison v. Post, 79 Ill. 567 (1897) ............................................................................. 7
`Sch. Bd. Dist. No. 18 v. Thompson, 103 P. 578 (Okla. 1909) .................................... 6
`Spillar v. Inhabitants of Woburn, 94 Mass. 127 (1866) ........................................8, 9
`State v. Ferguson, 144 N.W. 1039 (Neb. 1914) ....................................................7, 8
`State v. Sch. Dist., 48 N.W. 393 (Neb. 1891) ............................................................ 7
`Town of Greece v. Galloway, 572 U.S. 565 (2014) ................................................... 3
`Vollmar v. Stanley, 81 Colo. 276 (1927) ...............................................................8, 9
`
`OTHER AUTHORITIES
`Ben-Asher, The Lawmaking Family, 90 Wash. U. L. Rev. 363 (2012) ................6, 9
`Blackstone, Commentaries on the Laws of England (1983) ...................................... 4
`DeGroff, Parental Rights and Public School Curricula, 38 J.L. & Educ. 83
`(2009) ..................................................................................................................4, 5
`Friedman, The Parental Right to Control the Religious Education of a Child, 29
`Harv. L. Rev. 485 (1916)........................................................................................ 5
`Holland, The Law Relating to the Child: Its Protection, Education, and
`Employment (1914) ................................................................................................ 4
`Kleinberg, A Thirteenth-Century Struggle Over Custody: The Case of Catherine
`of Par-aux-Dames, 20 Bull. Medieval Canon L. 51 (1990) ................................... 5
`
`
`
`ii
`
`

`

`USCA4 Appeal: 23-1890 Doc: 70-1 Filed: 10/17/2023 Pg: 4 of 15
`
`INTEREST OF AMICUS CURIAE
`Amicus is a Professor at Regent University School of Law. He joined the fac-
`
`ulty in 1994 and has served as associate dean for academic and student affairs from
`
`1995 to 1998, associate dean for academic support from 1998 to 2000, and associate
`
`dean for academic affairs in 2015. He has taught several courses, including Property
`
`Law, Environmental Law, Administrative Law, Education Law, and Negotiation.
`
`His scholarship has focused on environmental regulation, parental rights, public ed-
`
`ucation, and law school pedagogy.1
`
`
`
`
`
`
`1 No party’s counsel authored this brief, and no one other than amicus or their coun-
`sel contributed money for it. All parties consented to this brief.
`
`
`
`

`

`USCA4 Appeal: 23-1890 Doc: 70-1 Filed: 10/17/2023 Pg: 5 of 15
`
`INTRODUCTION
`For centuries before the Founding, parents directed and controlled their chil-
`
`dren’s education, especially about subjects that implicated religious beliefs. This
`
`historical right continued at the Founding and later after the advent of public educa-
`
`tion in the nineteenth century. Courts and school administrators long ago settled on
`
`a system to respect the parents’ rights in directing their children’s education: the
`
`option to opt out of specific classes and lessons.
`
`The Montgomery County School Board’s new mandatory curriculum rules
`
`violate this time-honored tradition of parental rights. The Board’s actions would ab-
`
`rogate the rights of parents to direct their children’s education by depriving parents
`
`of not only the ability to opt out but also the ability to even know that controversial,
`
`contested lessons about gender and sexuality are being taught to their children. These
`
`topics implicate sincerely held religious beliefs. By taking these lessons out of the
`
`hands of parents, the Board has usurped the deeply-rooted parental right to control
`
`their children’s education and religious upbringing.
`
`Not for the first time, judicial intervention is needed to stop the Board’s ideo-
`
`logical indoctrination of schoolchildren. See Citizens for a Responsible Curriculum
`
`v. Montgomery Cnty. Public Schs., No. 05-cv-1194, 2005 WL 1075634 (D. Md. May
`
`5, 2005). The Court should reverse and remand for an injunction that would vindi-
`
`cate historical parental rights.
`
`
`
`2
`
`

`

`USCA4 Appeal: 23-1890 Doc: 70-1 Filed: 10/17/2023 Pg: 6 of 15
`
`ARGUMENT
`Parents have a historically recognized right to direct the education of their chil-
`dren, including through opt-outs.
`The First Amendment’s Religion Clauses “must be interpreted by ‘reference
`
`to historical practices and understandings.’” Kennedy v. Bremerton Sch. Dist., 142
`
`S. Ct. 2407, 2428 (2022) (quoting Town of Greece v. Galloway, 572 U.S. 565, 576
`
`(2014)). “An analysis focused on original meaning and history” is “the rule rather
`
`than some exception” when it comes to constitutional interpretation. Id. (cleaned
`
`up). “[T]o carry th[e] burden” of justifying a rule that infringes on First Amendment
`
`rights, including freedom of religion, “the government must generally point to his-
`
`torical evidence about the reach of the First Amendment’s protections.” New York
`
`State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2130 (2022). “[I]f earlier
`
`generations addressed [an analogous] societal problem, but did so through materially
`
`different means,” that “could be evidence that a modern regulation is unconstitu-
`
`tional.” Id. Or if they “attempted to enact analogous regulations,” “but those pro-
`
`posals were rejected on constitutional grounds, that rejection surely would [also]
`
`provide some probative evidence of unconstitutionality.” Id. at 2131. Here, parental
`
`opt-out rights in education have long been recognized within the historically analo-
`
`gous legal framework.
`
`Time and again, the Supreme Court has recognized the right of parents to
`
`“control the education of their own” without significant state interference. Meyer v.
`
`
`
`3
`
`

`

`USCA4 Appeal: 23-1890 Doc: 70-1 Filed: 10/17/2023 Pg: 7 of 15
`
`Nebraska, 262 U.S. 390, 401 (1923). Those holdings align with the historical tradi-
`
`tion of a parental right to direct a child’s education. Part of that right is the ability of
`
`parents to opt their children out of specific educational offerings in public schools.
`
`Under English common law, parents had the right and responsibility to “guide
`
`their children’s development.” DeGroff, Parental Rights and Public School Curric-
`
`ula, 38 J.L. & Educ. 83, 108 (2009) (citing 1 Blackstone, Commentaries on the Laws
`
`of England 440–41 (1983)). In fact, Blackstone asserted that it was “the duty of par-
`
`ents to their children” to provide for their education. Blackstone, supra, at 438–39.
`
`This duty, originally recognized as a moral duty, see id., was quickly recognized by
`
`the Court of Chancery as a legal right. Thus, the early English courts began to en-
`
`force “the right of parents to make educational choices for their children despite the
`
`wishes of the child or even the preferences of civil authorities.” DeGroff, supra, at
`
`110 (collecting English cases). By the nineteenth century, the right of a parent to
`
`make educational decisions for their child had become so ingrained in the common
`
`law that one scholar described that right as “absolute against all the world.” Holland,
`
`The Law Relating to the Child: Its Protection, Education, and Employment 60
`
`(1914).
`
`When a child’s education involved religious matters, the English common law
`
`went even further to protect the decisions of parents. The right was so strong at com-
`
`mon law that a father’s right to determine the religion in which a child would be
`
`
`
`4
`
`

`

`USCA4 Appeal: 23-1890 Doc: 70-1 Filed: 10/17/2023 Pg: 8 of 15
`
`educated continued after the father’s death. See Friedman, The Parental Right to
`
`Control the Religious Education of a Child, 29 Harv. L. Rev. 485, 488 (1916). Even
`
`when the courts believed that the parents’ decision to raise their children in a specific
`
`religion would jeopardize their children’s eternal welfare, they respected the deci-
`
`sion of the parents. DeGroff, supra, at 111.
`
`The English common law built on even older canonical laws dating back to
`
`the ninth century. Under those laws too, parents had a right to direct the education
`
`and upbringing of their child. For example, if a child decided to join a monastery
`
`before reaching legal age, “the parents ha[d] up to a year to demand that the child be
`
`returned to their custody.” Id. at 119 (quoting Kleinberg, A Thirteenth-Century
`
`Struggle Over Custody: The Case of Catherine of Par-aux-Dames, 20 Bull. Medie-
`
`val Canon L. 51, 58 (1990)). Further, ecclesiastical courts supported parents’ right
`
`to choose how to raise their children. Once again, even when those courts thought
`
`that keeping a child with his or her parents would lead to the child’s “eternal dam-
`
`nation,” the courts upheld the parents’ rights to make those choices. Id.
`
`Thus, evident in both the common law and the canonical law that heavily in-
`
`fluenced American traditions is the right of parents to direct their children’s educa-
`
`tion in religious and secular environments.
`
`Building on this rich history of a robust parental right, early decisions from
`
`state courts brought the common law’s conceptualization of the relationship between
`
`
`
`5
`
`

`

`USCA4 Appeal: 23-1890 Doc: 70-1 Filed: 10/17/2023 Pg: 9 of 15
`
`parents and a child’s education to the United States. In this era, the familial freedom
`
`to educate overrode “state-mandated education about civic values.” Ben-Asher, The
`
`Lawmaking Family, 90 Wash. U. L. Rev. 363, 377 (2012). The home was “consid-
`
`ered as the keystone of the governmental structure,” with parents ruling “supreme
`
`during the minority of their children.” Sch. Bd. Dist. No. 18 v. Thompson, 103 P.
`
`578, 581 (Okla. 1909).
`
`The parents’ absolute right over their child’s education naturally included a
`
`right to opt a child out of particular lessons or courses. In Morrow v. Wisconsin, for
`
`instance, the Supreme Court of Wisconsin resolved a disagreement between a parent
`
`and a teacher regarding the child’s course selection. 35 Wis. 59, 62–63 (1874). The
`
`parent wanted his child to focus on orthography, reading, writing, and arithmetic at
`
`the expense of geography. Id. His teacher disagreed. Id. The court ruled for the par-
`
`ent and held that the teacher “does not have an absolute right to prescribe and dictate
`
`what studies a child shall pursue.” Id. at 64. Instead, the court held that the father
`
`had “the right to direct what studies, included in the prescribed course, his child shall
`
`take.” Id. “[I]n case of a difference of opinion between the parent and teacher upon
`
`the subject, [the court] see[s] no reason for holding that the views of the teacher must
`
`prevail.” Id. at 66.
`
`The Illinois Supreme Court reached the same result in 1897, affirming a par-
`
`ent’s right to control their child’s education via opt-out. The parent-plaintiffs in
`
`
`
`6
`
`

`

`USCA4 Appeal: 23-1890 Doc: 70-1 Filed: 10/17/2023 Pg: 10 of 15
`
`Rulison v. Post encouraged their daughter to pursue and focus on the study of music
`
`with the hope that she would become a teacher. 79 Ill. 567, 569 (1897). When this
`
`decision to focus on music interfered with her ability to attend bookkeeping class,
`
`the principal forcibly expelled her from the building. Id. The court “left it purely
`
`optional with parents and guardians” whether their children needed to take certain
`
`classes outside of those enumerated in state law. Id. at 571, 574. When the principal
`
`attempted to force compliance with the school-created curriculum, the court held
`
`that he violated the parents’ right to direct their child’s education. See id. at 573–74.
`
`“The State has provided the means, and brought them within the reach of all, to
`
`acquire the benefits of a common school education, but leaves it to parents and
`
`guardians to determine the extent to which they will render it available to the chil-
`
`dren under their charge.” Id. at 573.
`
`Several cases in the late nineteenth century and early twentieth century in Ne-
`
`braska likewise affirmed the right of parents to direct their children’s education. Two
`
`cases involved parents’ attempts to opt their children out of classes in the public-
`
`school curriculum. State v. Sch. Dist., 48 N.W. 393, 394 (Neb. 1891) (attempting to
`
`remove the child from grammar class); State v. Ferguson, 144 N.W. 1039, 1042
`
`(Neb. 1914) (attempting to remove the child from home economics). The Supreme
`
`Court of Nebraska resolved both cases with a basic maxim: “the right of the par-
`
`ent . . . is superior to that of the school officers and the teachers.” Ferguson, 144
`
`
`
`7
`
`

`

`USCA4 Appeal: 23-1890 Doc: 70-1 Filed: 10/17/2023 Pg: 11 of 15
`
`N.W. at 1042 (quoting Sch. Dist., 48 N.W. at 394). To rule for the school, the court
`
`reasoned, would “destroy both the God-given and constitutional right of a parent to
`
`have some voice in the bringing up and education of his children.” Ferguson, 144
`
`N.W. at 1043. “In this age of agitation” surrounding World War I, the Supreme Court
`
`of Nebraska refused to allow “the doctrine of governmental paternalism [to go] too
`
`far, for, after all is said and done, the prime factor in our scheme of government is
`
`the American home.” Id. at 1044.
`
`These decisions expressed the longstanding tradition that parents can elect to
`
`opt their children out of specific classes and thereby direct their children’s education.
`
`This right persisted even after the proliferation of public schools in the middle of the
`
`nineteenth century. And contemporaneous state courts extended this principle to cur-
`
`riculum objections on religious grounds.
`
`Courts in Colorado, Massachusetts and California allowed plaintiff-parents to
`
`opt their children out of specific school activities because their children’s participa-
`
`tion violated their own and their children’s religious beliefs. See Vollmar v. Stanley,
`
`81 Colo. 276 (1927), overruled on other grounds, Conrad v. City & Cnty. of Denver,
`
`656 P.2d 662, 670 (Colo. 1982); Spillar v. Inhabitants of Woburn, 94 Mass. 127,
`
`128–29 (1866); Hardwick v. Bd. of Sch. Trs., 205 P. 49, 50 (Cal. App. 1921). In
`
`Vollmar, the Colorado Supreme Court upheld the right of a Catholic parent to have
`
`his child excused from daily readings from the King James version of the Bible.
`
`
`
`8
`
`

`

`USCA4 Appeal: 23-1890 Doc: 70-1 Filed: 10/17/2023 Pg: 12 of 15
`
`Emphasizing that the Colorado constitution gave the parent “a right . . . to have his
`
`child attend the public schools,” the court held that the school board could not force
`
`the parent to surrender that right as a condition of exercising his constitutional right
`
`to direct his child’s education. Id. at 282–83.
`
`Similarly, in Spillar, Massachusetts had instituted a practice that began each
`
`school day with a reading from the Bible and prayer. 94 Mass. at 128. The plaintiff-
`
`parents disagreed with the practice and wanted to opt their child out of this exercise.
`
`Id. at 129. Only because the practice allowed “a child to be excused from it” “if the
`
`parent requested” was the exercise allowed to continue. Id. at 130. In essence, the
`
`ability of parents to opt out of the practice was its saving grace. Id.
`
`Last, in Hardwick, the court determined that granting the school an “over-
`
`reaching power” that would deny parents “their natural as well as their constitutional
`
`right to govern or control” their children was a step too far. 205 P. at 709. Thus, the
`
`court allowed the parents to opt their children out of portions of physical education
`
`classes that included dancing, which violated the family’s religion. Id. at 714.
`
`In more recent decades, some courts have “dramatically” shifted the jurispru-
`
`dence of parental opt-outs as the state’s agenda has taken priority. See Ben-Asher,
`
`supra, at 372. But recognizing the right of parents to opt a child out of lessons and
`
`classes that burden their faith will align this Court with the longstanding history and
`
`tradition of respecting parents’ ability to direct their children’s education.
`
`
`
`9
`
`

`

`USCA4 Appeal: 23-1890 Doc: 70-1 Filed: 10/17/2023 Pg: 13 of 15
`
`CONCLUSION
`The Court should reverse and remand for entry of a preliminary injunction.
`
`Respectfully submitted,
`
`
`
`
`
`s/ Christopher Mills
`CHRISTOPHER MILLS
`Spero Law LLC
`557 East Bay Street #22251
`Charleston, SC 29413
`(843) 606-0640
`cmills@spero.law
`
`Counsel for Amicus Curiae
`
`
`
`
`
`
`
`
`
`
`OCTOBER 17, 2023
`
`
`
`
`10
`
`

`

`USCA4 Appeal: 23-1890 Doc: 70-1 Filed: 10/17/2023 Pg: 14 of 15
`
`CERTIFICATE OF COMPLIANCE
`
`1. This document complies with the type-volume limit of Fed. R. App. P.
`
`29(a)(5) because, excluding the parts of the document exempted by Fed. R. App. P.
`
`32(f), this brief contains 2,128 words.
`
`2. This document complies with the typeface requirements of Fed. R. App. P.
`
`32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because this
`
`document has been prepared in a proportionally spaced typeface using Microsoft
`
`Word 365 in 14-point Times New Roman font.
`
`Dated: October 17, 2023
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`/s Christopher Mills
`Christopher Mills
`
`
`
`
`
`
`
`
`
`

`

`USCA4 Appeal: 23-1890 Doc: 70-1 Filed: 10/17/2023 Pg: 15 of 15
`
`CERTIFICATE OF SERVICE
`
`I, Christopher Mills, an attorney, certify that on this day the foregoing Brief
`
`was served electronically on all parties via CM/ECF.
`
`Dated: October 17, 2023
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`s/ Christopher Mills
`Christopher Mills
`
`
`
`
`
`
`
`
`