No.

22-2927

In the United States Court of Appeals for the Eighth Circuit

________________
PARENTS DEFENDING EDUCATION,
Plaintiff-Appellant,
v.
LINN-MAR COMMUNITY SCHOOL DISTRICT, ET AL.,
Defendants-Appellees.
________________
On Appeal from the United States District Court for the
Northern District of Iowa, No. 1:22-cv-00078
________________
BRIEF OF AMICI CURIAE ADVANCING AMERICAN FREEDOM, INC.; AMERICAN
CORNERSTONE INSTITUTE; AMERICAN PRINCIPLES PROJECT; AMERICAN
VALUES; CENTENNIAL INSTITUTE AT COLORADO CHRISTIAN UNIVERSITY;
CITIZENS UNITED; CITIZENS UNITED FOUNDATION; COMMITTEE FOR JUSTICE;
COMMON SENSE CLUB; CONCERNED WOMEN FOR AMERICA; DR. JAMES
DOBSON FAMILY INSTITUTE; EAGLE FORUM; FAITH AND FREEDOM COALITION;
FAMILY RESEARCH COUNCIL; FOCUS ON THE FAMILY; NATIONAL CENTER FOR
PUBLIC POLICY RESEARCH; PROJECT 21 BLACK LEADERSHIP NETWORK;
SARAH PERRY; TEA PARTY PATRIOTS ACTION, INC.; THE FAMILY LEADER;
AND YOUNG AMERICA’S FOUNDATION SUPPORTING APPELLANT AND REVERSAL
________________

J. MARC WHEAT
Counsel of Record
ADVANCING AMERICAN FREEDOM, INC.
801 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
(202) 780-4848
[email protected]

Counsel for Amici Curiae

November 10, 2022

 RULE 26.1 CORPORATE DISCLOSURE STATEMENT

The amici curiae Advancing American Freedom, Inc.; American Cornerstone

Institute; American Principles Project; American Values; Centennial Institute at

Colorado Christian University; Citizens United; Citizens United Foundation;

Committee for Justice; Common Sense Club; Concerned Women for America; Dr.

James Dobson Family Institute; Eagle Forum; Faith and Freedom Coalition; Family

Research Council; Focus on the Family; National Center for Public Policy Research;

Project 21 Black Leadership Network; Sarah Perry; Tea Party Patriots Action, Inc.;

The FAMiLY LEADER; and Young America’s Foundation are nonprofit

corporations. They do not issue stock, and are neither owned by nor are the owners

of any other corporate entity, in part or in whole. They have no parent companies,

subsidiaries, affiliates, or members that have issued shares or debt securities to the

public. The corporations are operated by volunteer boards of directors.

i
 TABLE OF CONTENTS

RULE 26.1 CORPORATE DISCLOSURE STATEMENT...................................... i

TABLE OF AUTHORITIES ................................................................................... iii

STATEMENT OF INTEREST OF AMICI CURIAE ............................................... 1

INTRODUCTION AND SUMMARY OF THE ARGUMENT .............................. 7

ARGUMENT .......................................................................................................... 10

I. The Linn-Mar Community School District Transgender Policy Flouts the

Freedom of Parents to Direct the Upbringing, Education, and Care of
Their Children as a Fundamental Right.......................................................... 10

II. The Linn-Mar Community School District Transgender Policy Suppresses

First Amendment Free Speech and Religious Free Exercise Rights .............. 17

III. The Linn-Mar Community School District Transgender Policy Violates

the Protection of Pupil Rights Amendment of 1978 ...................................... 19

CONCLUSION ....................................................................................................... 21

CERTIFICATE OF COMPLIANCE ...................................................................... 23

VIRUS CHECK CERTIFICATION ....................................................................... 23

CERTIFICATE OF SERVICE ............................................................................... 24

ii
 TABLE OF AUTHORITIES
Cases
American Canoe Association Inc. v. City of Louisa Water and Sewer Comm'n,
389 F.3d 536 (6th Cir. 2004) ............................................................................... 20

Espinoza v. Mont. Dep’t of Revenue,

140 S. Ct. 2246 (2020) ........................................................................................ 18

Federal Election Commission v. Akins,

524 U.S. 11 (1998) .............................................................................................. 20

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) ............................................................................................ 20

Manzano v. South Dakota Dep't of Soc. Svcs.,

60 F.3d 505 (8th Cir. 1995) ................................................................................. 10

Meyer v. State of Nebraska,

262 U.S. 390 (1923) ............................................................................................ 13

Moore v. East Cleveland,

431 U.S. 494 (1977) ............................................................................................ 18

Obergefell v. Hodges,
576 U.S. ___ (2015) ............................................................................................ 18

Parham v. J. R.,
442 U.S. 584 (1979) ...................................................................................... 14, 15

Pierce v. Society of Sisters,

268 U.S. 510 (1925) ...................................................................................... 13, 14

Prince v. Commonwealth of Massachusetts,

321 U.S. 158 (1944) ................................................................................ 13, 14, 18

Pub. Citizen v. U.S. Dep't of Justice,

491 U.S. 440 (1989) ............................................................................................ 20

iii
Quilloin v. Walcott,
434 U.S. 246 (1978) ............................................................................................ 14

Reno v. Flores,
507 U.S. 292 (1993) ............................................................................................ 11

Robertson v. Allied Sols., LLC,

902 F.3d 690 (7th Cir. 2018) .............................................................................. 20

Sanchez v. State,
692 N.W.2d 812 (Iowa 2005) .............................................................................. 11

Santosky v. Kramer,
455 U.S. 745 (1982) ............................................................................................ 16

Smith v. Organization of Foster Families,

431 U.S. 816 (1977) ............................................................................................ 14

Spiker v. Spiker,
708 N.W.2d 347 (Iowa 2006) .................................................................... 9, 10, 11

Troxel v. Granville,
530 U.S. 57 (2000) .................................................................................. 11, 16, 20

Washington v. Glucksburg,
521 U.S. 702 (1997) ............................................................................................ 16

Wisconsin v. Yoder,
406 U.S. 205 (1972) ...................................................................................... 13, 19

Constitutional Provisions and Statutes

U.S. Const. amend. I ......................................................................................... 10, 17

U.S. Const. amend. XIV ................................................................................... 10, 17

Protection of Pupil Rights Amendment, 20 U.S.C. § 1232h .................................. 19

All Writs Act, 28 U.S.C. § 1651 ............................................................................. 21

iv
28 U.S.C. § 2201 ............................................................................................... 20, 21

42 U.S.C. § 1983 ..................................................................................................... 21

Regulations

34 CFR Part 98 ........................................................................................................ 19

Rules

FRAP 29(a)(2)........................................................................................................... 1

Other Authorities

Betsy DeVos, Speech at Hillsdale College, October 19, 2020. Transcript

available at https://blog.acton.org/archives/117383-redemption-not-retreat-
betsy-devos-vision-for-redeeming-u-s-education.html ......................................... 9

Cass R. Sunstein, Informational Regulation and Informational Standing: Akins

and Beyond, 147 PA. L. Rev. 613 (1999) ........................................................... 20

http://policy.linnmar.k12.ia.us/policy/50413-r-administrative-regulations-
regarding-transgender-and-students-nonconforming-
gender#:~:text=The%20Linn%2DMar%20Community%20School,to%20re
ceive%20supports%20at%20school.............................................................. 12, 17

https://www.linnmar.k12.ia.us/district/departments/student-support-
services/health-services/ ...................................................................................... 12

National Commission on Excellence in Education, A Nation at Risk: The

Imperative for Educational Reform (1983) ....................................................... 7, 9

Russell Kirk, The Conservative Constitution (1990) ........................................ 17, 18

Russell Kirk, The Politics of Prudence (1993) ......................................................... 7

v
 STATEMENT OF INTEREST OF AMICI CURIAE

Advancing American Freedom, Inc., (“AAF”) states under FRAP 29(a)(4)(E)

that no counsel for a party other than AAF authored this brief in whole or in part,

and no counsel or party other than AAF made a monetary contribution intended to

fund the preparation or submission of this brief. No person other than amicus or its

counsel made a monetary contribution to its preparation or submission. All parties

have consented to the filing of this brief. FRAP 29(a)(2).

Advancing American Freedom (AAF) is a nonprofit organization that promotes

and defends policies that elevate traditional American values, including freedom of

speech and the free exercise of religious belief. AAF believes that a person’s

freedom of speech and the free exercise of a person’s faith are among the most

fundamental of individual rights and must be secured, and that parental rights have

been established beyond debate as an enduring American tradition. 1

The American Cornerstone Institute is a nonpartisan, not-for-profit organization

founded by world-renowned pediatric neurosurgeon and 17th Secretary of the

Department of Housing and Urban Development Dr. Benjamin S. Carson. The

Institute’s mission is to educate the public on the importance of Faith, Liberty,

1
All parties received timely notice and have consented to the filing of this brief. No
counsel for a party authored this brief in whole or in part. No person other than
Amicus Curiae and its counsel made any monetary contribution intended to fund the
preparation or submission of this brief.

1
Community, and Life to the continued success of the United States of America. The

Institute believes the liberty interest of a parent to guide their child's education is a

fundamental right and an enduring American tradition.

American Principles Project is the premier conservative political organization

engaging in campaigns and elections and working to defend the American family in

politics.

American Values, led by President Gary Bauer, is a public policy educational

group committed to parents playing the central role in the education of America's

children.

The Centennial Institute at Colorado Christian University works to enhance

public understanding of the most important issues relating to faith, family, and

freedom. We support freedom of speech, the free exercise of religion, and parental

rights in education. We believe that parental partnership with educators is critical to

the quality education of America’s children.

Citizens United and Citizens United Foundation are dedicated to restoring

government to the people through a commitment to limited government, federalism,

individual liberty, and free enterprise. Citizens United and Citizens United

Foundation regularly participate as litigants and amici in important cases in which

these fundamental principles are at stake. Citizens United is a nonprofit social

welfare organization exempt from federal income tax under Internal Revenue Code

2
(“IRC”) section 501(c)(4). Citizens United Foundation is a nonprofit educational and

legal organization exempt from federal income tax under IRC section 501(c)(3).

Founded in 2002, the Committee for Justice (CFJ) is a nonprofit, nonpartisan

legal and policy organization dedicated to promoting the rule of law, protecting

individual liberty, and preserving the Constitution’s limits on governmental power.

CFJ files amicus curiae briefs in key cases, supports constitutionalist nominees to

the federal judiciary, and educates the American public and policymakers about the

benefits of individual liberty and the proper role of our judiciary.

Concerned Women for America (CWA) is the largest public policy women’s

organization in the United States with members in all fifty states, and thousands

within the Eighth Circuit. Through its grassroots organization, CWA encourages

policies that strengthen and protect women and families and advocates for the

traditional virtues that are central to America’s cultural health and welfare. CWA

actively promotes legislation, education, and policymaking that strengthens parental

rights and preserves women’s safety and dignity. Its members are people whose

voices are often overlooked-everyday, middle-class American women whose views

are not represented by the powerful elite.

The Dr. James Dobson Family Institute is a nonprofit organization that uplifts

and defends the biblical and traditional framework of the family, which includes

parental rights and the freedom to exercise one’s religious beliefs. Inherent within

3
these convictions are the freedom of speech and the right for parents to have the

principal input and influence over their child’s upbringing and academic

development. These most foundational rights have been preserved for centuries and

must be maintained for the institution of the family to remain intact and flourish.

The mission of Eagle Forum is to empower conservative and pro-family men and

women to participate in the process of self-government and public policy-making so

that America will continue to be a land of individual liberty, with respect for the

nuclear family, public and private virtue, and private enterprise. Its network of state-

based chapters share the mission of mobilizing and mentoring grassroots

conservative activists to impact public policy at all levels of government; from

Congress to state legislatures, to local commissions and boards. Eagle Forum is

organized under section 501(c)(4) of the IRS Code.

Family Research Council (FRC) seeks to advance faith, family, and freedom in

public policy. FRC recognizes and respects the right of parents to raise their children

as well as the fundamental right of free speech.

Focus on the Family is a Christian ministry organization, headquartered in

Colorado, committed to strengthening the family in the United States and abroad by

providing help and resources that are grounded in biblical principles. As part of that

mission, Focus on the Family educates and advocates for parental rights and

protecting the innocence of children. To that end, Focus has advocated since its

4
inception in 1977 for the strengthening of families through the education and training

of parents in their critically important roles as heads of their families, for the biblical

value of male and female, and for the primary role of parents in caring for, and

directing the upbringing of their children. The president of Focus on the Family, Jim

Daly, hosts the flagship Focus on the Family radio broadcast about family issues

carried daily on 2,000 radio outlets in the United States and heard weekly by nearly

7 million listeners.

The Project 21 Black Leadership Network has a long-standing interest in

protecting the rights of parents in the education of their children.

Tea Party Patriots Action, Inc. joins out of concern that as school districts and

the teachers unions have become increasingly brazen in teaching ideologically-

driven curriculum, parents have been systematically blocked from schools, and shut

out from performing their moral duties in their children's upbringing. Blocking

parents from receiving vital information about their own children's health and

welfare is a violation of parents' rights and exposes children to enormous risks. Tea

Party Patriots Action stands with parents and supports their right to be involved in

all aspects of their children's lives -- not relegated to the sidelines by school

administrators.

Young America’s Foundation is a 501(c)(3) non-profit, non-partisan, educational

organization whose mission is to educate and inspire increasing numbers of young

5
Americans concerning the ideas of individual freedom, a strong national defense,

free enterprise, and traditional values. The Foundation accomplishes its mission by

providing essential conferences, seminars, educational materials, internships, and

speakers to young people across the country.

Additional organizations and individuals, listed below, also join this brief. These

amici curiae are concerned about how the Eighth Circuit’s decision will affect the

rights of parents to raise their children and are committed to securing fundamental

constitutional rights against government infringement.

Additional amici curiae:

Terry Schilling
President
American Principles Project

Bill Spadea
Founder
Common Sense Club

Faith and Freedom Coalition

National Center for Public Policy Research

Sarah Perry
Former Senior Counsel to the Assistant Secretary for Civil Rights
U.S. Department of Education

Bob Vander Plaats

President/CEO
The FAMiLY LEADER

6
 INTRODUCTION AND SUMMARY OF THE ARGUMENT

“Ever since the publishing of the report of the National Commission on

Excellence in Education, ‘A Nation At Risk’ [in 1983], a great deal of talk about

education, and scribbling about it, have occurred. As for any evidences of general

improvement, however – why, one does not discover them easily.” Russell Kirk, The

Politics of Prudence 240 (1993). Indeed, even as early as 1983, it seemed that “Our

society and its educational institutions seem to have lost sight of the basic purposes

of schooling…” A Nation At Risk 5 (1983).

Perhaps there is no more astonishing example of “los[ing] sight of the basic

purposes of schooling” than the case before this Court concerning the secret

transitioning of children from one gender to another without the knowledge of

parents.

On April 25, 2022, the Linn-Mar School Board adopted Policy 504.13-R, entitled

“Administrative Regulations Regarding Transgender and Students Nonconforming

to Gender Role Stereotypes.” (“Policy”) See App.296-302, R. Doc. 3-11, at 44-50.

The Policy is designed to do three things: (1) effectuate students’ “gender transition”

requests; (2) keep the District’s actions secret from the students’ parents; and

(3) punish other students who do not use a student’s preferred pronouns when

speaking or who voice certain opinions concerning transgender issues.

7
 The Policy prevents parents from having any knowledge or control over their

child’s interests and questions involving “gender identity.” According to the Policy,

“[a]ny student in seventh grade or older will have priority of their support plan over

their parent/ guardian,” and parents have no right to know about or be “a part of the

meeting” to develop a Gender Support Plan. App.296-97, R. Doc. 3-11, at 44-45.

Many decisions regarding a student’s gender identity will be made “regardless of

age” and regardless of whether the District has the parent’s consent. App.298, R.

Doc. 3-11, at 46.

Notably, the District will not tell parents whether their child has requested or been

given a Gender Support Plan, whether the child has made requests or actions have

been taken concerning their gender identity, or whether it has any other information

that would reveal the child’s “transgender status.” App.296-98, R. Doc. 3-11, at 44-

46. Specifically, the District “shall not disclose information that may reveal a

student’s transgender status to others including ... parents ... unless legally required

to do so (such as national standardized testing, drivers permits, transcripts, etc.), or

unless the student has authorized such disclosure.” App.297, R. Doc. 3-11, at 45; see

also id. (Students “have a right to privacy which includes the right to keep one’s

transgender status private at school.”); id. (“School staff should always check with

the student first before contacting their parent/guardian.”). Indeed, the Policy openly

encourages children to deceive their parents by hiding the name and pronouns that

8
they are using at school. See id. (“School staff should ask the student what name and

pronouns they would like school officials to use in communications with their

family.”)

The most memorable conclusion from A Nation At Risk merits new currency in

light of the actions of the Linn-Mar School Board: “If an unfriendly foreign power

had attempted to impose… the … educational [policy] that exists today, we might

well have viewed it as an act of war. As it stands, we have allowed this to happen to

ourselves.” A Nation At Risk 5 (1983).

The Linn-Mar School Board’s actions are in direct conflict with one of the most

ancient liberties of parents to direct the upbringing, education, and care of their

children. In a speech at Hillsdale College, then-Secretary of Education Betsy DeVos

stated “[t]hat the family [is a] sovereign sphere... A sphere that predates government

altogether. It’s been said, after all, that the family is not only an institution; it’s also

the foundation for all other institutions. The nuclear family cultivates art, athletics,

business, education, faith, music, film – in a word, culture.” Undermining

fundamental parental rights undermines our culture.

The Iowa Supreme Court has consistently recognized that “the right to direct the

upbringing of one’s children, is fundamental,” and “state action infringing on that

interest must be narrowly tailored to serve a compelling state interest.” Spiker v.

Spiker, 708 N.W.2d 347, 351 (Iowa 2006). This Court has recognized that, as a

9
general matter, parents have a liberty interest in the "care, custody, and management

of their children." Manzano v. South Dakota Dep't of Soc. Svcs., 60 F.3d 505, 509-

10 (8th Cir. 1995). The Iowa Supreme Court and this Court are in the mainstream of

a long line of U.S. Supreme Court cases comprising a parental rights doctrine found

in the First and Fourteenth Amendments of the U.S. Constitution.

In criminal courts and in contract law, for example, juveniles are, for their own

protection, often deemed not yet psychologically prepared to accept full

responsibility for their actions. Restoring parental rights to guide, instruct, and

protect their children from impulsive and possibly ill-informed childhood decision

making (and their adult enablers), amici ask this Court to prevent the Linn-Mar

School Board from fundamentally altering historic presumptions about juveniles.

ARGUMENT

I. The Linn-Mar Community School District Transgender Policy Flouts the

Freedom of Parents to Direct the Upbringing, Education, and Care of
Their Children as a Fundamental Right.

This Court has recognized that, as a general matter, parents have a liberty interest

in the "care, custody, and management of their children." Manzano v. South Dakota

Dep't of Soc. Svcs., 60 F.3d 505, 509-10 (8th Cir. 1995).

More recently, in Spiker v. Spiker, 708 N.W.2d 347, 351 (Iowa 2006), the

Supreme Court of Iowa recognized that “the right to direct the upbringing of one’s

children, is fundamental,” and “state action infringing on that interest must be

10
narrowly tailored to serve a compelling state interest”[to] provide[] heightened

protection against government interference with certain fundamental rights and

liberty interests."'" Sanchez v. State, 692 N.W.2d 812, 819 (Iowa 2005) (quoting

Troxel v. Granville, 530 U.S. 57, 65 (2000)). We apply strict scrutiny when a

fundamental liberty interest is at issue. Id. at 819-20 (citing Reno v. Flores, 507 U.S.

292, 302 (1993)).” Spiker v. Spiker, 351.

That the Iowa Supreme Court applies strict scrutiny when a fundamental liberty

such as parental rights is at issue is clear in the case law; what is not clear is how

Linn-Mar Community District arrived at the decision that it will apply more

circumspection and parental involvement when administering aspirin than when

facilitating gender assignment to children under its care.

First, in the Linn-Mar Community School District, when it comes to distributing

any medication be it prescription or over-the-counter, a parent must approve of such

distribution through the medication permission form. This then allows the

Administration to dispense the medication to the student at the proper time, or if it

is over-the-counter, school administrators will impose an upper-bound limit of a

certain amount of ibuprofen or aspirin available to them over the course of the year.

11
If the medication permission form is not signed by the parent and returned, the school

will not administer the medication to the student.2

In contradistinction to the Linn-Mar aspirin policy, the Linn-Mar Transgender

Policy (formally, policy 504.13-R, entitled “Administrative Regulations Regarding

Transgender and Students Nonconforming to Gender Role Stereotypes”) may keep

parents completely in the dark about a school district administrator’s plans to

transition a child from one gender to the other. Under the Transgender Policy, a

student can request a meeting with the counselor to receive support and begin

implementation of the Gender Support Plan. The student (who is under the age of

consent and cannot enter into contracts) then has to agree to who will be a part of

the meeting, and if they do not want the parents to be there then the parents will not

be notified. When it comes to confidentiality of the child’s transgender status at

school, school administrators must ask the student before contacting parents, so that

staff knows the pronouns and name to use in case the parents have not learned of the

student’s transgender identity from someone other than school district staff. 3 Even

though parents of children at Linn-Mar Community School District may not be

2
https://www.linnmar.k12.ia.us/district/departments/student-support-
services/health-services/
3
http://policy.linnmar.k12.ia.us/policy/50413-r-administrative-regulations-
regarding-transgender-and-students-nonconforming-
gender#:~:text=The%20Linn%2DMar%20Community%20School,to%20receive%
20supports%20at%20school.

12
notified the gender assigned by school administrators to their own child, parents will

be notified if their child is provided aspirin or ibuprofen.

There is no Constitutional justification for the Linn-Mar Community School

District to conceal from parents some of the most sensitive matters for which a

family may face. “The fundamental theory of liberty upon which all governments in

this Union repose excludes any general power of the State to standardize its children

by forcing them to accept instruction... The child is not the mere creature of the State;

those who nurture him and direct his destiny have the right, coupled with the high

duty, to recognize and prepare him for additional obligations.” Pierce v. Society of

Sisters, 268 U.S. 510, 535 (1925).

In Wisconsin v. Yoder, the U.S. Supreme Court declared that parental rights have

been “established beyond debate as an enduring American tradition.” 406 US 205,

232 (1972). For almost a century, the U.S. Supreme Court has recognized the

traditional role of parents in directing the care, custody, and control of their minor

children. “It is the natural duty of the parent to give his children education suitable

to their station in life.” Meyer v. State of Nebraska, 262 U.S. 390, 400 (1923). “It is

cardinal with us that the custody, care and nurture of the child reside first in the

parents, whose primary function and freedom include preparation for obligations the

state can neither supply nor hinder… It is in recognition of this that these decisions

have respected the private realm of family life which the state cannot enter.” Prince

13
v. Commonwealth of Massachusetts, 321 U.S. 158, 166 (1944) “The liberty interest

in family privacy has its source, and its contours are ordinarily to be sought, not in

state law, but in intrinsic human rights, as they have been understood in "this

Nation's history and tradition." Smith v. Organization of Foster Families, 431 U.S.

816, 845 (1977).

When a student requests a Gender Support Plan, the school “will hold a meeting

with the student within 10 school days of being notified about the request.” App.297,

R. Doc. 3-11, at 45. The student’s parents have no right to participate in this

meeting, or unlike an aspirin being provided to a student, even know that it is

happening. School administrators insinuating themselves between students and

parents disrupts that important relationship within the family, and can precipitate the

breakup of the family unit. “We have recognized on numerous occasions that the

relationship between parent and child is constitutionally protected. We have little

doubt that the Due Process Clause would be offended if a State were to attempt to

force the breakup of a natural family, over the objections of the parents and their

children, without some showing of unfitness and for the sole reason that to do so was

thought to be in the children's best interest." Quilloin v. Walcott, 434 U.S. 246, 255

(1978).

In conflict with Parham, the Transgender Policy states that “[t]he student should

agree with who is a part of the meeting, including whether their parent/guardian will

14
participate.” App.297-98, R. Doc. 3-11, at 45-46. “The law's concept of the family

rests on a presumption that parents possess what a child lacks in maturity,

experience, and capacity for judgment required for making life's difficult decisions.

More important, historically it has recognized that natural bonds of affection lead

parents to act in the best interests of their children. The statist notion that

governmental power should supersede parental authority in all cases because some

parents abuse and neglect children is repugnant to American tradition. Simply

because the decision of a parent is not agreeable to a child or because it involves

risks does not automatically transfer the power to make that decision from the

parents to some agency or officer of the state.” Parham v. J. R., 442 U.S. 584, 602-

603 (1979).

What if school administrators imagine that parents would be less than

enthusiastic that their Johnny is now their Janey? (“Every student has the right to be

addressed by a name… that corresponds to their gender identity.” App.298, R. Doc.

3-11, at 46). The Transgender Policy is clear that parents need not be told about these

developments: the student “will have priority of their support plan over their

parent/guardian.” App.296, R. Doc. 3-11, at 44. Even so, “The fundamental liberty

interest of natural parents in the care, custody, and management of their child does

not evaporate simply because they have not been model parents or have lost

temporary custody of their child to the State. Even when blood relationships are

15
strained, parents retain a vital interest in preventing the irretrievable destruction of

their family life.” Santosky v. Kramer, 455 U.S. 745, 753 (1982).

“In a long line of cases, we have held that, in addition to the specific freedoms

protected by the Bill of Rights, the "liberty" specially protected by the Due Process

Clause includes the rights . . . to direct the education and upbringing of one's

children. The Fourteenth Amendment "forbids the government to infringe ...

'fundamental' liberty interests of all, no matter what process is provided, unless the

infringement is narrowly tailored to serve a compelling state interest." Washington

v. Glucksburg, 521 U.S. 702, 720-721 (1997). “The liberty interest at issue in this

case-the interest of parents in the care, custody, and control of their children-is

perhaps the oldest of the fundamental liberty interests recognized by this Court. In

light of this extensive precedent, it cannot now be doubted that the Due Process

Clause of the Fourteenth Amendment protects the fundamental right of parents to

make decisions concerning the care, custody, and control of their children.” Troxel

v. Granville, 530 U.S. 57, 65-66 (2000).

The Linn-Mar Community School District Transgender Policy is

unconstitutional on its face.

16
II. The Linn-Mar Community School District Transgender Policy
Suppresses First Amendment Free Speech and Religious Free Exercise
Rights

In addition to abridging time-honored parental rights, the Linn-Mar Transgender

Policy requires students not undergoing a school-led gender transition to use other

students’ preferred pronouns when speaking and prohibits a wide range of protected

speech. The Linn-Mar School Board policy states that “An intentional and/or

persistent refusal by staff or students to respect a student’s gender identity is a

violation of school board policies…”4 The Transgender Policy also prohibits

“[r]epeated of intentional misgendering” which is defined as “intentionally or

accidentally us[ing] the incorrect name or pronouns to refer to a person.” Id.

Penalties for these policy violations include suspension and expulsion.

Such a policy violates the freedom of speech and free exercise clauses of the First

Amendment. The Free Exercise Clause of the First Amendment, applicable to the

States under the Fourteenth Amendment, provides that “Congress shall make no law

. . . prohibiting the free exercise” of religion. This Court has a duty to safeguard

religious freedom because “[a]ny political constitution develops out of a moral

order; and every moral order has been derived from religious beliefs.” Russell Kirk,

4
http://policy.linnmar.k12.ia.us/policy/50413-r-administrative-regulations-
regarding-transgender-and-students-nonconforming-
gender#:~:text=The%20Linn%2DMar%20Community%20School,to%20receive%
20supports%20at%20school.

17
The Conservative Constitution 174 (1990). Indeed, “Our decisions establish that the

Constitution protects the sanctity of the family precisely because the institution of

the family is deeply rooted in this Nation's history and tradition. It is through the

family that we inculcate and pass down many of our most cherished values, moral

and cultural.” Moore v. East Cleveland, 431 U.S. 494, 503 (1977).

Here, Linn-Mar Community School District has clearly burdened students’

religious exercise by putting before them the difficult choice between avoiding

suspension or expulsion at the hands of school administrators on one side and

demonstrating tacit approval of gender ideology inconsistent with their religious

beliefs on the other. A student who objects to referring to another student by terms

that offend his or her conscience must be protected from reprisal, and the conscience

protected from coerced speech. “The right to be religious without the right to do

religious things would hardly amount to a right at all.” Espinoza v. Mont. Dep’t of

Revenue, 140 S. Ct. 2246, 2277 (2020) (Gorsuch, J., concurring). The U.S. Supreme

Court observed in Obergefell v. Hodges, 576 U.S. ___ (2015), “[t]he First

Amendment ensures that religious organizations and persons are given proper

protection as they seek to teach the principles that are so fulfilling and so central to

their lives and faiths.” Id., at ___ (slip op., at 27). “The values of parental direction

of the religious upbringing and education of their children in their early and

formative years have a high place in our society. Even more markedly than in Prince,

18
therefore, this case involves the fundamental interest of parents, as contrasted with

that of the State, to guide the religious future and education of their children. The

history and culture of Western civilization reflect a strong tradition of parental

concern for the nurture and upbringing of their children. This primary role of the

parents in the upbringing of their children is now established beyond debate as an

enduring American tradition.” Wisconsin v. Yoder, 406 U.S. 205, 232 (1972).

III. The Linn-Mar Community School District Transgender Policy Violates

the Protection of Pupil Rights Amendment of 1978

The Protection of Pupil Rights Amendment, 20 U.S.C. § 1232h and 34 CFR Part

98, protects public school children by empowering parents in two primary ways.

First, it provides parents with robust informational rights regarding school activities

that touch upon or affect family privacy. See 20 U.S.C. §§ 1232h(b), (c). Second, it

guarantees parents the right to prior notice and an opportunity to opt out their

children from (1) surveys and information gathering not directly related to academic

instruction that is designed to elicit information about attitudes, habits, traits,

opinions, beliefs or feelings; and (2) activities involving the planned, systematic use

of methods or techniques that are not directly related to academic instruction and

that are designed to affect behavioral, emotional, or attitudinal characteristics of an

individual or group (e.g., socio-emotional learning). 34 CFR 98.4. The Pupil Rights

Amendment codifies, in part, parents’ well-established constitutional liberty interest

19
in family privacy and in controlling their children’s education and upbringing. See

Troxel v. Granville, 530 U.S. 57, 65 (2000). (citations omitted).

The District’s violations of the Pupil Rights Amendment are actionable in federal

court. The Supreme Court has repeatedly recognized that a statutory right to

information also confers constitutional standing. See Federal Election Commission

v. Akins, 524 U.S. 11, 20-21 (1998) (“injury in fact” includes the inability to obtain

information that must be disclosed by statute); Lujan v. Defenders of Wildlife, 504

U.S. 555, 572 (1992) (standing if plaintiffs “are seeking to enforce a procedural

requirement the disregard of which could impair a separate concrete interest of

theirs”); American Canoe Association Inc. v. City of Louisa Water and Sewer

Comm'n, 389 F.3d 536 (6th Cir. 2004); see also Cass R. Sunstein, Informational

Regulation and Informational Standing: Akins and Beyond, 147 PA. L. Rev. 613,

650 (1999). The injury is not that the defendants are merely failing to obey the law,

it is that they are disobeying the law by failing to turn over information that parents

desire and need, and thereby directly impairing their ability to use it for the Pupil

Rights Amendment’s substantive purpose – protecting familial privacy and ensuring

parents have the right to control their child’s education. See Pub. Citizen v. U.S.

Dep't of Justice, 491 U.S. 440, 449 (1989); Robertson v. Allied Sols., LLC, 902 F.3d

690, 694 (7th Cir. 2018). Remedies could include a declaration of rights under 28

20
U.S.C. § 2201, a writ of mandamus under the All Writs Act, 28 U.S.C. § 1651, and/or

damages under 42 U.S.C. § 1983.

The Linn-Mar Community Transgender Policy, which is not and does not purport

to be directly related to academic instruction, violates the Pupil Rights Amendment

and concretely harms parents. It states “[a]ny student in seventh grade or older will

have priority of their support plan over their parent/ guardian,” and parents have no

right to know about or be “a part of the meeting” to develop a Gender Support Plan.

App.296-97, R. Doc. 3-11, at 44-45. It further states that many decisions regarding

a student’s gender identity will be made “regardless of age” and regardless of

whether the District has the parent’s consent. App.298, R. Doc. 3-11, at 46. In other

words, the District explicitly denies parents their statutory rights to know about, and

opt out from, its federally regulated information gathering, and from its activities

designed to affect a child’s behavior, emotions, or attitudes. Accordingly, the

District’s Transgender Policy is facially unlawful.

CONCLUSION

This Court should reverse the district court and enter a preliminary injunction in

favor of the parents.

21
Respectfully submitted,

/s/ J. Marc Wheat

J. Marc Wheat
Advancing American Freedom, Inc.
801 Pennsylvania Avenue, N.W.
Suite 930
Washington, D.C. 20004
(202) 780-4848
[email protected]

Counsel for Amicus Curiae

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 CERTIFICATE OF COMPLIANCE

1. This brief complies with the type-volume limitations of Fed. R. App. P.

32(a)(7)(B) and Fed. R. App. P. 29(d) because:

This brief contains 4,728 words, including footnotes, but excluding the parts

of the brief exempted by Fed. R. App. P. 32(f).

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32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this

brief has been prepared in a proportionally spaced typeface using Microsoft Word

in 14-point Times New Roman.

DATED: November 10, 2022 /s/ J. Marc Wheat

J. Marc Wheat

VIRUS CHECK CERTIFICATION

The electronic version of the addendum has been scanned for viruses and is

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DATED: November 10, 2022 /s/ J. Marc Wheat

J. Marc Wheat

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 CERTIFICATE OF SERVICE

I hereby certify that on November 10, 2022, I electronically filed the foregoing

brief with the Clerk for filing and transmittal of a Notice of Electronic Filing to the

participants in this appeal who are registered CM/ECF users.

DATED: November 10, 2022 /s/ J. Marc Wheat

J. Marc Wheat

24