By Jordan Shead, Esq. and Andrew Schwartz, Esq.
In the Supreme Court’s most significant case affecting the public schools during the 2024-25 term, the Court provided a major victory to the parental rights movement that has been gaining traction since the COVID-19 pandemic. Although the consequences from the decision are far from being fully known, what is clear is that the Supreme Court has lowered the standard for parents to opt their children out of public-school curriculum that they object to on the grounds of their religious beliefs.
In the case of Mahmoud v. Taylor, the Supreme Court held a public school’s curriculum choices violate the free exercise of religion when the school requires parents to submit their children to instruction that poses a “very real threat of undermining” the religious beliefs and practices that the parents wish to instill at home.
For most of our history it was generally understood that schools were a place where children could be exposed to many diverse ideas and concepts—even those that are controversial and may go against certain core religious beliefs. While that is still true, the Supreme Court’s decision in Mahmoud v. Taylor, now allows parents to essentially exempt their children from aspects of the curriculum that they deem would pose a “very real threat of undermining” or “substantially interfering” with the religious beliefs and practices they seek to instill at home.
As the Court noted, whether something “burdens” the free exercise of religion is always a fact sensitive inquiry. Therefore, it is important to discuss the facts underlying the decision.
The Montgomery County School District, the largest and most religiously diverse in Maryland, with over one million residents, sought to introduce books and materials that included LBGTQ+ concepts to better reflect its diverse population. Although the materials were introduced across the curriculum, the dispute focused on five story books approved for students between kindergarten and the fifth grade. The books included story lines that focused on same-sex marriage and gender identity. After receiving numerous religious-based complaints from parents, the Board instituted a policy that gave parents the option to opt their children out of such instruction without consequence.
However, several months later the Board rescinded the opt-out policy and notified the families that they would no longer be given the option to opt their children out. The Board also informed the families that absences due to religious objections would no longer be considered excused. The Board determined to rescind the opt-out policy because it was burdening the delivery of its instruction. The Board claimed that its educators could not accommodate the large number opt-out requests without creating “significant disruptions” in the classroom and also contended that removing students from certain aspects of the curriculum caused “social stigma and isolation” to those who opted out. Despite rescinding the opt-out policy, the District was still bound by a statute—similar to N.J.SA. 18A:35-4.7 in New Jersey—which allowed, and still allows, parents to opt their children out of Maryland’s “family life and human sexuality instruction,” commonly known as “sex education,” which is generally taught in grades 7 through 12.
But the parent-challengers in Mahmoud went beyond objecting to a health curriculum that focused on safe sex and contraception. Their objection was to children’s books that dealt with the topic of LBGTQ+ on the basis that it interfered with or undermined the religious beliefs that they wanted to instill in their children.
The parents bypassed the District’s internal appeals process, and went directly to Federal Court where they sought an injunction to end the District’s no opt-out policy on the ground that forcing their children to participate in the curriculum would violate the First Amendment’s prohibition on the free exercise of religion.
The Supreme Court found the books at issue were “unmistakenly normative” and presented certain LBGTQ+ “values and beliefs as things to be celebrated, and certain contrary values and beliefs as things to be rejected.” As a result, the Court enjoined or ended the District’s no opt-out policy and made clear that parents have the right—grounded in the First Amendment—to opt their children out of curriculum that poses “very real threat of undermining” the religious beliefs and practices they wish to instill at home.
We encourage our members to review and read the books at issue in this dispute. Although they are all children’s books, approved for students between kindergarten and fifth grade, the books deal with LBGTQ+ themes. “Intersection Allies” depicts a transgendered child among other children of varying backgrounds along with certain issues that transgendered individuals face—like bathroom choice. “Prince & Knight” is about a coming-of-age-prince who happens to fall in love with another male, with their marriage being celebrated. “Love Violet” is about a young girl who falls in love with another female. “Born Ready” tells the story of a child named Penelope who was born female but identified as a male. “Uncle Bobby’s Wedding” is about a young girl named Chloe who learns that her favorite uncle is marrying another man.
These books were placed on the shelves in classrooms and incorporated into the curriculum “the same way that other books [were] used, namely, . . . for students to find on their own,” to recommend to their peers or to use as a read aloud. But a District official made clear that the teachers could not elect not to use the LBGTQ+ books at all.
Although we can all have a reasoned debate as to whether these books were “unmistakenly normative” and presented certain LBGTQ+ themes as “things to be celebrated” as found by the Supreme Court’s six-member majority, or whether the books merely exposed children to diverse thoughts, as discussed by the Court’s three dissenting voices, what is now clear is that parents will have a greater say in classroom curriculum choices than ever
And that is the chief takeaway from this decision. How far this right goes and whether there are any limiting parameters remains to be seen as the courts will surely grapple with these questions in the post-Mahmoud landscape.
We encourage our school leaders to be in close communication with their board attorneys for guidance when dealing with parents’ religious objections to curriculum choices.
As always, please contact us for any specific legal advice and – stay tuned.