USCA4 Appeal: 23-1890 Doc: 99 Filed: 10/30/2023 Pg: 1 of 34
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`No. 23-1890
`
`In the United States Court of Appeals
`for the Fourth Circuit
`
`
`
`TAMER MAHMOUD, et al.,
`Plaintiffs-Appellants,
`
`v.
`
`MONIFA B. MCKNIGHT, et al.,
`Defendants-Appellees.
`
`
`
`On Appeal from the United States District Court for the
`District of Maryland, Southern Division
`(No. 8:23-cv-1380) (The Hon. Deborah L. Boardman)
`
`
`BRIEF OF AMICUS CURIAE PROFESSOR JUSTIN DRIVER
`
`
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`
`
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`
`
` AMANDA FLUG DAVIDOFF
`DANIEL J. RICHARDSON
`CASON J.B. REILY
`SULLIVAN & CROMWELL LLP
`1700 New York Avenue NW
`Washington, DC 20006
`(202) 956-7500
`davidoffa@sullcrom.com
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`TABLE OF CONTENTS
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`Page
`
`Interest of the Amicus Curiae ............................................................................... 1
`
`Introduction and Summary of Argument ............................................................. 2
`
`Argument .................................................................................................................. 5
`
`I. Appellants’ Free Exercise Theory Would Destabilize Existing
`Doctrine and Prove Unworkable in Practice ................................................. 5
`
`A.
`
`Supreme Court Precedent Interpreting the Religion
`Clauses Has Established a Stable Framework That
`Accommodates Competing Interests................................................ 5
`
`B. Allowing Free Exercise Challenges to Public-School
`Curricular Choices Would Unwind the Existing
`Framework and Harm Public Education ....................................... 15
`
`II. Appellants’ Free Exercise Theory Would Allow Private Parties to
`Impermissibly Regulate Government Speech ............................................. 20
`
`Conclusion ............................................................................................................... 26
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`-i-
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`
`
`Cases
`
`TABLE OF AUTHORITIES
`
` Page(s)
`
`Agostini v. Felton,
`521 U.S. 203 (1997) .......................................................................................... 7, 9
`
`Bauchman v. West High Sch.,
`132 F.3d 542 (10th Cir. 1997) ........................................................................... 14
`
`Board of Educ. of Westside Cmty. Schs. v. Mergens,
`496 U.S. 226 (1990) ........................................................................................ 8, 12
`
`Bowen v. Roy,
`476 U.S. 693 (1986) ...................................................................................... 13, 15
`
`California Parents for Equalization of Educ. Materials v.
`Torlakson, 973 F.3d 1010 (9th Cir. 2020) ........................................... 17, 24, 25
`
`Carson v. Makin,
`596 U.S. ___(2022) ............................................................................................ 10
`
`Engel v. Vitale,
`370 U.S. 421 (1962) .......................................................................................... 6, 7
`
`Espinoza v. Montana Dept. of Revenue,
`591 U.S. ___ (2020) ........................................................................................... 11
`
`Fellowship of Christian Athletes v. San Jose Unified
`Sch. Dist. Bd. of Educ., 82 F.4th 664 (9th Cir. 2023) ...................................... 8
`
`Fleischfresser v. Directors of Sch. Dist. 200,
`15 F.3d 680 (7th Cir. 1994) ......................................................................... 14, 17
`
`Florey v. Sioux Falls Sch. Dist. 49-5,
`619 F.2d 1311 (8th Cir. 1980) ........................................................................... 16
`
`Grove v. Mead Sch. Dist. No. 354,
`753 F.2d 1528 (9th Cir. 1985) ........................................................................... 14
`
`-ii-
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`Hazelwood Sch. Dist. v. Kuhlmeier,
`484 U.S. 260 (1988) ............................................................................................ 22
`
`A.H. ex rel. Hernandez v. Northside Independent Sch. Dist.,
`916 F. Supp. 2d 757 (W.D. Tex. 2013) ............................................................. 17
`
`Johanns v. Livestock Marketing Ass’n,
`544 U.S. 550 (2005) ............................................................................................ 21
`
`Keller v. State Bar of Cal.,
`496 U.S. 1 (1990) ................................................................................................ 25
`
`Kennedy v. Bremerton Sch. Dist.,
`597 U.S. ___ (2022) ........................................................................................... 19
`
`Lee v. Weisman,
`505 U.S. 577 (1992) .......................................................................................... 6, 7
`
`Loving v. Virginia,
`388 U.S. 1 (1967) ................................................................................................ 23
`
`Mahanoy Area Sch. Dist. v. B.L.,
`594 U.S. ___ (2021) ........................................................................................... 25
`
`Meyer v. Nebraska,
`262 US. 390 (1923) ............................................................................................... 9
`
`Milliken v. Bradley,
`418 U.S. 717 (1974) ............................................................................................ 11
`
`Mitchell v. Helms,
`530 U.S. 793 (2000) .......................................................................................... 7, 9
`
`Morrison ex rel. Morrison v. Board of Educ. of Boyd Cnty., Ky.,
`419 F. Supp. 2d 937 (E.D. Ky. 2006) ............................................................... 17
`
`Morse v. Frederick,
`551 U.S. 393 (2007) ........................................................................................... 22
`
`Mozert v. Hawkins Cnty. Bd. of Educ.,
`827 F.2d 1058 (6th Cir. 1987) ..................................................................... 14, 16
`
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`Parker v. Hurley,
`514 F.3d 87 (1st Cir. 2008) ............................................................................... 14
`
`Pierce v. Society of the Sisters of the Holy Names of
`Jesus and Mary, 268 U.S. 510 (1925) ............................................................. 10
`
`Pleasant Grove City, Utah v. Summun,
`555 U.S. 460 (2009) ...................................................................................... 20, 21
`
`Rust v. Sullivan,
`500 U.S. 173 (1991) ............................................................................................ 21
`
`San Antonio Indep. Sch. Dist. v. Rodriguez,
`411 U.S. 1 (1973) ................................................................................................ 12
`
`Santa Fe Indep. Sch. Dist. v. Doe,
`530 U.S. 290 (2000) .............................................................................................. 7
`
`School Dist. of Abington Twp., Pa. v. Schempp,
`374 U.S. 203 (1963) .............................................................................................. 7
`
`Stone v. Graham,
`449 U.S. 39 (1980) ................................................................................................ 7
`
`Swanson v. Guthrie Indep. Sch. Dist. No. I-L,
`135 F.3d 694 (10th Cir. 1998) ........................................................................... 14
`
`Trinity Lutheran Church of Columbia, Inc. v. Comer,
`582 U.S. 449 (2017) .............................................................................................. 6
`
`Turner v. City Council of City of Fredericksburg, Va.,
`534 F.3d 352 (4th Cir. 2008) ............................................................................. 21
`
`United States v. Lee,
`455 U.S. 252 (1982) ...................................................................................... 13, 18
`
`Wallace v. Jaffree,
`472 U.S. 38 (1984) .......................................................................................... 8, 10
`
`Wisconsin v. Yoder,
`406 U.S. 205 (1972) .......................................................................... 10, 13, 14, 15
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`Zelman v. Simmons-Harris,
`536 U.S. 639 (2002) .................................................................................... 5, 9, 11
`
`Constitutional Provision
`
`U.S. Const. amend. I ................................................................................................ 5
`
`Other Authorities
`
`Ian Dooley, Banned Books Week 2019: And Tango Makes Three,
`Cotsen Children’s Library (Sept. 23, 2019) ............................................. 18, 24
`
`Justin Driver, The Schoolhouse Gate: Public Education,
`the Supreme Court, and the Battle for the
`American Mind (2018) ........................................................................... passim
`
`Justin Driver, Three Hail Marys: Carson, Kennedy, and the
`Fractured Détente over Religion and Education,
`136 Harv. L. Rev. 208 (2017) ............................................................................. 9
`
`EdChoice, The ABCs of School Choice (2021) .................................................... 11
`
`Cynthia Greenlee, Banned Bunnies, N.Y. Times (Apr. 26, 2023) ................... 24
`
`Maryland Department of Education,
`High School United States History Framework (Sept. 2020) .................... 23
`
`National Center for Education Statistics,
`Private School Enrollment, (May 2022) ........................................................ 11
`
`Pew Research Center, For a Lot of American Teens, Religion
`Is a Regular Part of the Public School Day (Oct. 3, 2019) .......................... 11
`
`Brian D. Ray, Research Facts on Homeschooling
`Nat’l Home Educ. Rsch. Inst., (July 20, 2023) .............................................. 11
`
`J. Harvie Wilkinson III, Goss v. Lopez: The Supreme Court as
`School Superintendent, 1975 Sup. Ct. Rev. 25 (1975) ............................ 12, 19
`
`Mary Zawadzki, Banned Book Week 2019: Strega Nona,
`Cotsen Children’s Library (Sept. 27, 2019) ................................................... 18
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`INTEREST OF THE AMICUS CURIAE
`
`Justin Driver is the Robert R. Slaughter Professor of Law at Yale Law
`
`School. An elected fellow of the American Law Institute and the American
`
`Academy of Arts and Sciences, he teaches and writes on constitutional law and
`
`public education. Driver is the author of The Schoolhouse Gate: Public
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`Education, the Supreme Court, and the Battle for the American Mind (2018),
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`which received the Steven S. Goldberg Award for Distinguished Scholarship
`
`in Education Law, and was selected as a Washington Post notable book of the
`
`year. Professor Driver submits this brief to inform the Court of the broader
`
`constitutional context that supports the district court’s decision in this case.
`
`Professor Driver has no personal interest in the outcome of this case.1
`
`
`
`
`
`
`1 Amicus affirms that no party or counsel for any party authored this brief in
`whole or in part and that no one other than Amicus or its counsel contributed
`any money that was intended to fund the preparation or submission of this
`brief. The parties have consented to this filing.
`
`
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`

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`INTRODUCTION AND SUMMARY OF ARGUMENT
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`Appellants claim that Montgomery County Public Schools (“MCPS”)
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`violated their rights under the Free Exercise Clause by “compel[ling] them
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`and their children to participate in instruction prohibited by their faith.”
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`Appellants’ Br. 24. The district court rejected that claim, reasoning that
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`“[e]very court that has addressed the question has concluded that the mere
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`exposure in public school to ideas that contradict religious beliefs does not
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`burden the religious exercise of students or parents.” J.A. 755–756 (collecting
`
`cases).
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`That decision was correct. As Appellees explain, there is “uniform
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`judicial consensus that mere exposure in public school to ideas that contradict
`
`religious beliefs does not burden religious exercise.” Appellees’ Br. 16. But
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`more than that, the district court’s decision adhered to a longstanding body of
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`law at the intersection of constitutional law and public education in the United
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`States. In recent decades, the Supreme Court has decided a number of cases
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`that accommodate the needs of religious communities in the educational
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`system. These decisions have permitted students to engage in religious
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`expression in public schools and upheld state and local programs that make
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`public funds available to parents who wish to enroll their children in private
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`religious institutions. But the Court has also repeatedly emphasized the
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`importance of local control over education, and has never endorsed Free
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`Exercise theories that would shift that control from democratically elected
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`officials to federal courts or inhibit constitutionally protected government
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`speech. Taken together, the Court’s decisions have struck a careful balance,
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`one that aligns the values of the First Amendment with the central importance
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`of public education in American life.
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`A decision in Appellants’ favor would disturb that balance. Although
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`Appellants claim to seek only “modest relief” in this case, Appellants’ Br. 25,
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`their theory of the First Amendment is anything but modest. To the contrary,
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`their extravagant theory would routinely require MCPS and every other
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`public school system across the country to offer student-specific instruction
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`when parents suspect that an idea or message expressed as part of a public-
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`school curriculum conflicts with the tenets of their faith. The result is both
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`unworkable and undemocratic. Schools would be unable to function
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`effectively, as parents would have the right to flyspeck curricula in a wide
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`range of academic subjects, including English, history, science, and civics
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`education. And schools would be discouraged from providing the education
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`they believe to be most valuable, in favor of making choices that—they hope,
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`but can never know—would provoke the fewest parents to opt out.
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`That chilling effect holds implications beyond the Free Exercise Clause.
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`The Supreme Court’s Free Speech cases have recognized that it does not
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`violate the Constitution for the government itself to engage in speech that
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`addresses particular content or espouses a specific viewpoint. That
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`principle—known as the government speech doctrine—plays an important
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`role in a democratic society, allowing the government to remain responsive to
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`the local community and to raise topics—like the importance of respect and
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`responsibility—that enjoy community support. And it is vital in public schools,
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`which are entrusted with the responsibility of instilling civic values. But if
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`individual parents are able to successfully challenge curricular decisions under
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`the Free Exercise Clause, public schools would be chilled from addressing
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`important topics.
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`In rejecting Appellants’ claims, the district court adhered to precedent
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`and refused to adopt a theory that would conflict with the Supreme Court’s
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`Free Exercise and Free Speech jurisprudence. Its judgment should be
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`affirmed.
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`ARGUMENT
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`I. Appellants’ Free Exercise Theory Would Destabilize Existing
`Doctrine and Prove Unworkable in Practice.
`
`The Supreme Court has made clear that the Religion Clauses do not bar
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`all religious expression in public schools, nor do they prevent communities
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`from providing financial aid to parents wishing to pursue religious education
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`outside the public school system. But at the same time, the Court’s decisions
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`have never endorsed a constitutional right for parents to dictate that public
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`schools provide their children with a curriculum tailored to their faith. Such a
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`right would undermine the Court’s decisions recognizing the importance of
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`local control over public schools and would prove entirely unworkable in
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`practice.
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`A.
`
`Supreme Court Precedent Interpreting the Religion Clauses
`Has Established a Stable Framework That Accommodates
`Competing Interests.
`
`1.
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`The First Amendment of the Constitution provides that
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`“Congress shall make no law [1] respecting an establishment of religion, or
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`[2] prohibiting the free exercise thereof.” U.S. Const. amend. I. Those
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`Religion Clauses prevent “a State from enacting laws that have the ‘purpose’
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`or ‘effect’ of advancing or inhibiting religion,” Zelman v. Simmons-Harris,
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`536 U.S. 639, 648–649 (2002) (citation omitted), while also “protect[ing]
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`religious observers against unequal treatment” by the government, Trinity
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`Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449, 458 (2017) (citation
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`omitted). The Religion Clauses ensure that families who enroll their children
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`in public schools remain free from religious coercion, but do not require
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`students to shed their religious identity at the schoolhouse gate. The Supreme
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`Court’s interpretation of the clauses recognizes the unique role that public
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`schools play in American life.
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`a.
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`The Court’s Establishment Clause precedent ensures that
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`children will not be exposed to state-sponsored religious expression as a
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`condition of attending public school. Those decisions recognize the coercive
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`effect of the government’s endorsement of particular faiths and “demonstrate
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`awareness” that “this religiously diverse nation must take special steps to
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`forestall any notion that simply receiving an education subjects students to
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`proselytization.” Justin Driver, The Schoolhouse Gate 362–363 (2018).
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`Since Engel v. Vitale, 370 U.S. 421 (1962), the Court has time and again
`
`held that the Establishment Clause protects public-school students from
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`anything approaching “an attempt to employ the machinery of the State to
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`enforce a religious orthodoxy.” Lee v. Weisman, 505 U.S. 577, 592 (1992).
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`Applying that principle, the Court has struck down various forms of state-
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`sponsored religious expression, including prayer in the classroom or at other
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`school-sponsored events.
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` See id. (clergy-led prayer at public-school
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`graduation ceremonies); Engel, 370 U.S. at 421 (recitation of official state
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`prayer); School Dist. of Abington Twp., Pa. v. Schempp, 374 U.S. 203 (1963)
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`(daily Bible readings in public schools); Stone v. Graham, 449 U.S. 39 (1980)
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`(mandatory posting of Ten Commandments in public-school classrooms);
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`Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000) (state-backed prayer at
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`public school football games). It has also barred state and local governments
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`from providing “direct aid to religious schools” through various public funding
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`programs. Mitchell v. Helms, 530 U.S. 793, 842–844 (2000) (O’Connor, J.,
`
`concurring in the judgment) (controlling opinion); see also Agostini v. Felton,
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`521 U.S. 203, 225–226 (1997).
`
`b.
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`At the same time, the Court has not barred religion from the
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`public school system or erected an impermeable barrier between public funds
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`and religious education. Santa Fe, 530 U.S. at 302 (“[T]here is a crucial
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`difference between government speech endorsing religion, which the
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`Establishment Clause forbids, and private speech endorsing religion, which
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`the Free Speech and Free Exercise Clauses protect.” (citation omitted)
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`(emphasis in orginal)). Instead, its decisions emphatically reject “the notion
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`that religion and education must remain wholly separate,” and make clear that
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`students may “attend[] public schools” without “abandoning their religious
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`identities.” The Schoolhouse Gate at 393–395.
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`First, the Court’s decisions allow students to engage in individual
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`religious expression while in public schools. See id. at 394–399. In Wallace v.
`
`Jaffree, 472 U.S. 38 (1984), the Court struck down an Alabama statute
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`authorizing moments of silence in public school “for meditation or voluntary
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`prayer.” The Schoolhouse Gate at 396. But in so doing, the Court issued a
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`decision that was broadly supportive of other “moment-of-silence statutes,”
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`which do not refer to prayer and “provide students who wish to pray with an
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`opportunity to do so.” Id. at 397 (explaining that Wallace was hailed as a
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`“victory” for religious expression at the time). Similarly, the Court has held
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`that schools may provide “equal access” to school facilities for religious
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`student organizations without violating the Establishment Clause. Board of
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`Educ. of Westside Cmty. Schs. v. Mergens, 496 U.S. 226, 247–253 (1990); see
`
`also Fellowship of Christian Athletes v. San Jose Unified Sch. Dist. Bd. of
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`Educ., 82 F.4th 664, 672, 685–693 (9th Cir. 2023) (en banc) (holding that a
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`school district violated the Free Exercise Clause by “penaliz[ing]” a student
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`group “based on its religious beliefs”).
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`Second, the Court has held that the Establishment Clause does not
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`prevent state and local governments from providing indirect, neutral financial
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`support for families who wish to enroll their children in religious schools.
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`Zelman , 536 U.S. at 644–645 (upholding school-choice program that provided
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`tuition aid for students attending religious schools); see also Mitchell, 530 U.S.
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`at 843 (upholding program by which “government aid supports a school’s
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`religious mission only because of independent decisions made by numerous
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`individuals”) (O’Connor, J., concurring in the judgment); Agostini, 521 U.S. at
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`225–226 (holding government may make tuition aid “available generally
`
`without regard to the sectarian-nonsectarian, or public-nonpublic nature of the
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`institution benefited”) (citation omitted). As a result of these decisions,
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`communities can use tax dollars to support religious education, so long as
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`religious schools are treated on the same terms as other private schools.
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`Third, the Court’s decisions under both the Free Exercise Clause and
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`the Due Process Clause provide religious parents with broad rights to instruct
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`their children outside of the public school system. A century ago, the Court
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`recognized the right of Nebraska’s Zion Parochial School to provide Biblical
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`instruction to the children of German families in their native tongue. See
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`Meyer v. Nebraska, 262 U.S. 390 (1923); see also Justin Driver, Three Hail
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`Marys: Carson, Kennedy, and the Fractured Détente over Religion and
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`Education, 136 Harv. L. Rev. 208, 234 (2022). Just two years later, the
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`Supreme Court emphatically rejected Oregon’s effort to mandate public-
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`school attendance and prevent parents from providing “[s]ystematic religious
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`instruction and moral training according to the tenets of the Roman Catholic
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`Church.” Pierce v. Soc’y of the Sisters of the Holy Names of Jesus and Mary,
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`268 U.S. 510, 532 (1925). The Court’s more recent Free Exercise decisions
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`chart a similar course, ensuring that States do not discriminate against
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`parents who wish to educate their children in private religious schools, Carson
`
`v. Makin, 596 U.S. ___ (2022), and do not compel public-school attendance
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`when doing so would pose a “danger to the continued existence of an ancient
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`religious faith.” Wisconsin v. Yoder, 406 U.S. 205, 218 n.9 (1972).
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`The facts on the ground demonstrate the importance of these decisions
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`for religious expression. Thirty-four states have enacted statutes authorizing
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`or requiring moments of silence consistent with the decision in Wallace. See
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`The Schoolhouse Gate at 397. Many families across the country take
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`advantage of private-school voucher programs, including programs like the
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`one upheld
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`in Zelman,2
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` and three million American children are
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`homeschooled.3 And private religious expression remains commonplace in
`
`public education, as students routinely wear religious clothing or jewelry,
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`engage in prayer, and organize on-campus religious clubs.4
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`2.
`
`Although the Court’s decisions have supported various forms of
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`religious expression in education, the Court has never embraced theories that
`
`would allow individual parents or students to dictate public school curricula
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`that reinforce their religious beliefs every step of the way.
`
`The Supreme Court has recognized that “local autonomy has long been
`
`thought essential both to the maintenance of community concern and support
`
`for public schools and to quality of the educational process.” Milliken v.
`
`
`2 250,000 children use public vouchers to attend private school. See EdChoice,
`The ABCs of School Choice 25 (2021), https://www.edchoice.org/wp-
`content/uploads/2021/03/2021-ABCs-of-School-Choice-WEB-2-24.pdf. Some
`of these students are among the 3.5 million children nationwide that attend
`private religious schools (of the 4.7 million attending all private schools). See
`Private School Enrollment, Nat’l Ctr. for Educ. Stats., (May 2022)
`https://nces.ed.gov/programs/coe/indicator/cgc/private-school-enrollment.
`
`3 Brian D. Ray, Research Facts on Homeschooling, Nat’l Home Educ. Rsch.
`Inst.,
`(July
`20,
`2023),
`https://www.nheri.org/research-facts-on-
`homeschooling/.
`
`4 For a Lot of American Teens, Religion Is a Regular Part of the Public School
`Day,
`Pew
`Rsch.
`Ctr.
`(Oct.
`3,
`2019),
`https://www.pewresearch.org/religion/2019/10/03/for-a-lot-of-american-teens-
`religion-is-a-regular-part-of-the-public-school-day/.
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`Bradley, 418 U.S. 717, 741–742 (1974). For that reason, the Court has been
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`wary of endorsing constitutional theories that would require courts to second-
`
`guess public schools’ curricular decisions or saddle judges with the burden of
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`overseeing the day-to-day operations of a public school system. See San
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`Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 41 (1973) (noting that
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`courts lack “the expertise and the familiarity with local problems” necessary
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`to manage public education); J. Harvie Wilkinson III, Goss v. Lopez: The
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`Supreme Court as School Superintendent, 1975 Sup. Ct. Rev. 25, 73–74 (1975)
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`(criticizing
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`the
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`effect
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`of
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`“load[ing]
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`upon
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`the
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`public
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`school
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`system . . . constitutional baggage,” which hampers
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`local communities’
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`“capacity to influence” public schools).
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`The Court’s Religion Clause precedents are consistent with those
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`decisions. Although the Court has recognized a right for students who wish to
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`engage in religious expression to be treated on the same terms as other
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`students, see Mergens, 496 U.S. at 247–253, it has not required schools to make
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`benefits available for certain religious groups that are not available to others.
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`See Espinoza v. Montana Dept. of Revenue, 591 U.S. ___, ___(2020) (slip op.,
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`at 20) (holding that, although a State “need not subsidize” religious education,
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`“once a State decides to” offer a benefit, it cannot condition provision of that
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`benefit on religion). Similarly, the Court’s decision in Yoder permitted Old
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`Order Amish parents to opt out of the public school system altogether where
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`public school education threatened the faith’s very existence. But as the Court
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`recognized in another context, “[t]he Free Exercise Clause simply cannot be
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`understood to require the Government to conduct its own internal affairs in
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`ways that comport with the religious beliefs of particular citizens.” Bowen v.
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`Roy, 476 U.S. 693, 699 (1986).
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`Appellants hang much of their argument on Yoder, which they claim
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`requires schools to “shield their children from any teaching that would harm
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`their formation . . . in accordance with the Parents’ religious beliefs.”
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`Appellants’ Br. 20. But Yoder in no way supports judicial intrusion into the
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`daily operation of public schools, which would, of course, interfere with the
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`education of other students. See United States v. Lee, 455 U.S. 252, 261 (1982)
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`(rejecting a Free Exercise claim that would “operate[] to impose the
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`employer’s religious faith on the employees”). The Court in Yoder relied on
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`the “lengthy and successful track record of the Old Order Amish as a stand-
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`alone society”—and the relationship of faith to the society’s “entire mode of
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`life”—to “support the claim that enforcement of the State’s requirement of
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`compulsory formal education after the eighth grade would gravely endanger
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`if not destroy the free exercise of respondents’ religious beliefs.” The
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`Schoolhouse Gate at 406; Yoder, 406 U.S. at 219. It hardly follows that the
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`state must afford students who can and do attend public school an individually
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`tailored curriculum to conform to every potential religious objection.
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`“[P]arents simply do not have a constitutional right to control each and every
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`aspect of their children’s education and oust the state’s authority over that
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`subject.” Swanson v. Guthrie Indep. Sch. Dist. No. I-L, 135 F.3d 694, 699
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`(10th Cir. 1998).
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`Lower courts, looking to the Supreme Court’s guidance on Free
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`Exercise claims implicating the public school system, have uniformly rejected
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`claims that parents’ religious freedoms were burdened by ideas or messages
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`included in public school curricula. Parker v. Hurley, 514 F.3d 87, 107 (1st Cir.
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`2008); Bauchman v. West High Sch., 132 F.3d 542, 556–558 (10th Cir. 1997);
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`Fleischfresser v. Directors of Sch. Dist. 200, 15 F.3d 680, 689–690 (7th Cir.
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`1994); Mozert v. Hawkins Cnty. Bd. of Educ., 827 F.2d 1058, 1065 (6th Cir.
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`1987); Grove v. Mead Sch. Dist. No. 354, 753 F.2d 1528, 1533–1534 (9th Cir.
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`1985). The district court followed the same course here, J.A. 770–775, and its
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`decision was correct.
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`to Public-School
`B. Allowing Free Exercise Challenges
`Curricular Choices Would Unwind the Existing Framework
`and Harm Public Education.
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`The Free Exercise Clause has never been held to require the
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`government to take affirmative steps to advance any individual’s religious
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`beliefs. See Bowen, 476 U.S. at 699. But that is exactly what Appellants are
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`asking for here. Their claim—that the Free Exercise Clause requires schools
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`to serve parents a curricular buffet in order to avoid any possibility of religious
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`offense—is neither warranted by precedent nor workable in practice. And it
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`would transfer local control over education from democratically elected school
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`boards to the loudest subset of individual parents and the courts hearing their
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`claims.
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`According to Appellants, the Constitution requires MCPS to indulge
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`“their religious practice of shielding their elementary school children from
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`ideology . . . that violates their religious beliefs,” and to provide opt-outs for
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`any portion of the curriculum that conflicts with parents’ religious views.
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`Appellants’ Br. 33. Although they claim that relief is “more modest” than the
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`right to opt out of the public school system recognized in Yoder, id. at 25,
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`Appellants severely misread Yoder. The relief in Yoder permitted parents to
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`exit the public school system altogether. By contrast, a decision in Appellants’
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`favor would empow