By David Nash, Esq., Director of Legal Education and National Outreach, Foundation for Educational Administration
On June 27, 2025, the U.S. Supreme Court decided the case of Mahmoud v. Taylor, which involved a challenge by a group of parents to the Montgomery County, Maryland Public Schools use of LGBTQ+ inclusive books at the K-5 level. The parents in this case objected to the district’s refusal to provide parents with prior notice and the ability to opt their children out of lessons using those books which the parents asserted interfered with their religious upbringing of their children. For additional information on the Court’s decision, we encourage you to listen to the LEGAL ONE Podcast on this topic, which can be accessed here. We also encourage you to see the article Parental Choice and Mahmoud v. Taylor.
The Mahmoud decision has caused significant confusion in the public school community, creating uncertainty for school districts on how best to move forward regarding their curriculum, books and instructional materials. In this article, we review a number of foreseeable legal issues that may occur in light of the Mahmoud decision, identify key considerations for responding to those issues, and review the ongoing legal obligations of school districts related to addressing gender identity and sexual orientation in New Jersey’s public schools.
Note, of course, that this article should not be construed as legal advice and that the lack of clarity in the Mahmoud decision raises a number of complex issues. Therefore, school districts are urged to consult with your school board attorney in determining how to respond to particular issues that are raised.
Foreseeable Issues
Forseeable Issue: Parents’ claiming that certain aspects of curriculum and instruction, including those unrelated to gender identity or sexual orientation, violate their constitutional rights related to the religious upbringing of their children.
Key Considerations for Response: School districts will need to assess, on a case by case basis, such claims, which the majority opinion in Mahmoud acknowledges will be a fact-sensitive inquiry. The Court did identify the following considerations that should be part of that analysis, saying that:
“the question whether a law substantially interfer[es] with the religious development of a child will always be fact-intensive. It will depend on the specific religious beliefs and practices asserted, as well as the specific nature of the educational requirement or curricular feature at issue. Educational requirements targeted toward very young children, for example, may be analyzed differently from educational requirements for high school students. A court must also consider the specific context in which the instruction or materials at issue are presented. Are they presented in a neutral manner, or are they presented in a manner that is hostile to religious viewpoints and designed to impose upon students a pressure to conform?”
It is important to stress that age is a relevant factor in the analysis, and that a parent does not automatically have a legally viable complaint and a right to opt their child out, just because the parent claims interference with religious upbringing. The test outlined above, which unfortunately does not provide detailed guidance for school districts, will need to be applied on a case by case basis in responding to such complaints.
Foreseeable Issue: Parental complaints about LGBTQIA+ materials in a classroom library
Key Considerations for Response: The Mahmoud decision did address materials included in K-5 classroom libraries that were accessible to students, and that students were encouraged to read. In responding to parent opt out requests at the K-5 level, school districts should ensure that students are not being allowed to access LGBTQ+ inclusive materials from classroom libraries if the parent has requested the child be opted out of classroom discussions on gender identity and sexual orientation.
Foreseeable Issue: A school district receives complaints about books available in the school library and demands the removal of any books that address issues of gender identity or sexual orientation.
Key Considerations for Response: The Mahmoud decision does not address issues related to accessing school library materials, unless such materials were required to be accessed to complete a classroom assignment, and that would of course be limited to the particular child’s access, not to the presence of the material in the school library. Otherwise, any parent requests to remove a book or other material from the school library would be governed by New Jersey law. As of December of 2025, the Freedom to Read Act will govern such requests. That law requires that school districts ensure that all students have access to diverse and inclusive material in the school library, that material not be excluded just because it covers a specific topic such as gender identity or sexual orientation, and that any removal only occurs if the particular book or other material in question is deemed developmentally inappropriate for students of a given age. For additional information on the Freedom to Read Act see the NJDOE Broadcast Email on August 13, 2025 – Development of Model Policies for Library Material Curation and Review Under the Freedom to Read Act and the LEGAL ONE Article – Freedom to Read Act Become Law.
Foreseeable Issue: Student brings up an issue in class related to gender identity or sexual orientation which is not a planned part of the classroom discussion
Key Considerations for Response: It is not uncommon for students to make incidental comments in class that are not directly related to the academic content being discussed. Such incidental comments will often be unforeseeable, and therefore would not have allowed the school district to provide parents with advance notice or the ability to opt their child out of that discussion. To the extent the teacher is able to quickly redirect that conversation to the planned academic content this should not require the child to be removed from that classroom discussion on the spot.
Foreseeable Issue: Parent demands opt out right for High School or Middle School students
Key Considerations for Response: The Mahmoud decision does not provide clear direction for responding to parental opt out demands for middle school or high school students where objections are raised related to LGBTQ+ inclusive materials. Absent such clear direction, and given provisions in New Jersey law limiting parental opt out rights to the health curriculum only, districts should consult with their board attorney and may consider continuing with existing protocols at the middle school and high school levels.
The Court in Mahmoud acknowledged that the age of students is a key part of the analysis as to whether or not instruction is going to have a coercive effect on students and their religious upbringing, and that older students are less likely to feel pressure to conform their views with those being presented by the teacher in class, indicating that “[i]t goes without saying, however, that the age of the children involved is highly relevant in any assessment of the likely effect of instruction on the subjects in question.”
Foreseeable Issue: Parent demands that all issues related to gender identity or sexual orientation be removed from the curriculum or that the curriculum be narrowed because their child now is constantly having to be removed from class
Key Considerations for Response: Eliminating references to gender identity or sexual orientation from the curriculum would violate New Jersey law. In addition, dramatically narrowing the scope of offerings may undermine the ability of districts to effectively implement existing requirements in New Jersey Student Learning Standards (NJSLS) or other state law. The NJSLS do require districts to address a range of topics related to educational equity, including gender identity and sexual orientation. In addition, New Jersey has a specific statutory requirement to address issues related to gender identity and sexual orientation in the curriculum in grades K-12 under P.L. 2021, c. 32. New Jersey also has a requirement to address the political, economic and social contributions of members of the LGBTQ+ community at the middle school and high school levels under P.L. 2019, c. 6.
Foreseeable Issue: School district is pressured to present a “neutral” view and allow presentation of “both sides” on issues such as allowing access to restrooms or locker rooms, use of affirming pronouns and even recognizing the existence of LGBTQIA+ individuals.
Key Considerations for Response: Whether or not to recognize the existence and respect the dignity of LGTBQIA+ individuals is not an issue where schools should allow debate to take place in school, just as schools would not allow open debate as to recognition or respect for other groups related to race, ethnicity, disability, etc. In addition, the New Jersey Law Against Discrimination requires individuals in places of public accommodation (including schools) to be able access facilities such as restrooms and locker rooms aligned with their gender identity.
Foreseeable Issue: Student makes hurtful or insensitive comments in class related to gender identity or sexual orientation
Key Considerations for Response: State and federal courts have consistently held that student First Amendment rights do not extend to engaging in hurtful, bias-related speech in school, and such speech will likely need to be investigated as potential harassment, intimidation or bullying. In addition, where student speech intentionally discriminates and targets other students due to a protected class (e.g., race, ethnicity, disability, gender, gender identity, sexual orientation) the school district would have an obligation to report that as a bias-related incident to local law enforcement and the County Prosecutor’s office under N.J.A.C. 6A:16-6.3(e).
Foreseeable Issue: LGBTQIA+ students and/or opted out students being targeted, stigmatized by other students
Key Considerations for Response: It is foreseeable that the heightened focus on classroom discussions related to gender identity and sexual orientation, and the process of students being removed from class as part of opting out, could lead to students being targeted by others. This may include LGBTQIA+ students, as well as the students who are opted out of class. School districts should consider training classroom teachers, counselors, school leaders and other staff on how to promote respectful communication for all students, and how to respond if inappropriate comments are made related to gender identity, sexual orientation or the decision to opt out of certain classroom discussions, including mandatory reporting requirements.
Foreseeable Issue: Student disagreeing with parent opt out decision, wanting to remain in class
Key Considerations for Response: School districts should honor the wishes of parents where such disagreements may occur between parent and child. In cases where the student has reached the age of majority – 18 – and is capable of making educational decisions for themselves, then districts may honor the student’s wishes.
Foreseeable Issue: Parent objecting to presence of affirming symbols such as a rainbow sticker in classroom
Key Considerations for Response: The New Jersey State Attorney General and Commissioner of Education have issued guidance encouraging school districts to support the inclusion of symbols of affirmation in classrooms. Such symbols are intended to signal that classrooms are a safe space for all students. The removal of such symbols could send a signal that the classroom is no longer a safe and affirming place and increase the potential for bias-related incidents to occur.
Foreseeable Issue: Parent complaining child is not getting a meaningful education during opt out periods, or perhaps not even being properly supervised
Key Considerations for Response: In cases where students are being allowed to opt out of classroom discussions, school districts are expected to ensure that those students are properly supervised and are still receiving an appropriate education. This requires a case by case analysis of how to address the opt out in question. School districts should draw on their existing protocols for students who are opted out of health classes. Alternative reading assignments aligned to the appropriate New Jersey Student Learning Students may be necessary. Guided activities for a student to complete in a school library/media center may be appropriate for that student when opted out of a single class period. For more extended periods of opt out, more active engagement with the student with an appropriately certified teacher may be necessary.
Foreseeable Issue: A parent demands individualized notice immediately prior to any classroom discussion related to gender identity or sexual orientation.
Key Considerations for Response: The majority decision in Mahmoud did indicate that the refusal to provide parents with notice did violate their rights. The Court said, “The Board’s introduction of the ‘LGBTQ+-inclusive’ storybooks, combined with its decision to withhold notice to parents and to forbid opt outs, substantially interferes with the religious development of petitioners’ children and imposes the kind of burden on religious exercise that Yoder found unacceptable.”
The Court was not specific on what would constitute sufficient notice. As a general matter, it would be prudent for school districts to ensure that all parents have access to the district’s curriculum, typically through the district’s website. In addition, once a parent of a K-5 child has specifically requested their child be opted out of discussions related to gender identity or sexual orientation based on religious concerns, the Court decision suggests that more individualized notice of planned classroom discussions taking place on those topics may be necessary. It should be stressed that such notice does not mean that a parent then has the right to withhold the child from school on that day or that such an absence would be considered excused. Local board policy would still guide what constitutes an excused absence for purposes such as course credit and truancy.
Foreseeable Issue: Parents complain about their child having a teacher who is a member of the LGBTQIA+ community and that having such a teacher interferes with the religious upbringing of their child.
Response: The Mahmoud decision does not in any way indicate that the gender identity or sexual orientation of a teacher would interfere with the religious upbringing of a child. In addition, a parent would not have the right to such sensitive, private information under our State privacy laws, including the Open Public Records Act. There is no legal basis for a claim that a teacher or other staff member’s gender identity or sexual orientation is relevant to an analysis of whether classroom instruction in some way interferes with a parent’s right to direct the religious upbringing of their child.
Moving Forward
The decision in Mahmoud v. Taylor does signal a parental right to notice and opt out at the K-5 level for classroom discussions and use of materials related to gender identity or sexual orientation, if the parent claims interference with their religious upbringing. As discussed above, school districts should be prepared for such requests, and have protocols in place to accommodate children opted out of such classes. It is important to stress that the decision does not signal that parents will have the same opt out rights at the middle or high school level. It does not signal that school districts should remove LGBTQ+ inclusive material from the curriculum, and any such removal would violate existing State requirements. As discussed above, there is potential that the Mahmoud decision may be misinterpreted, and districts should be prepared for the range of foreseeable requests outlined in this article. This will in some cases include requested actions that are not required by the Mahmoud decision, and which in many cases may be inconsistent with other legal obligations under New Jersey law.
Finally, it is important to note that the overarching need to ensure a safe and affirming environment for all students, staff members and families remains intact. School districts should continue to work proactively to promote a sense of belonging and prioritize the physical and emotional wellbeing of all students, including those who are members of the LGBTQIA+ community.