In late June, a month before school was set to start in many parts of the country, and as public-school teachers finalized their rooms and materials, the Supreme Court issued a sweeping new interpretation of the Free Exercise Clause of the First Amendment, expanding the power of parents to veto their students' exposure to curriculum they may find objectionable.
Relating to LGBTQ+ students and curriculum in public education settings, Mahmoud v Montgomery Public Schools, for the first time, recognized a fundamental right under the First Amendment to opt out from classroom lessons that may pose what the majority called a "very real threat of undermining" sincerely held religious beliefs.
The case arose from a decision by the Montgomery County, Maryland, Public Schools (MCPS) to include a series of LGBTQ+-inclusive picture books into its K–5 English Language Arts curriculum. When the curriculum was originally introduced, parents who objected for religious reasons were granted a broad right to have their children excused from specific aspects of the curriculum (Guidelines for Respecting Religious Diversity). The Board subsequently received a high number of opt out requests, many of which had no relation to religious accommodation. In addition to the administrative burden this created, the Board also became increasingly concerned that permitting some students to leave the classroom whenever a teacher brought out books featuring LGBTQ characters could expose LGBTQ students (and those with LGBTQ parents) to social stigma and isolation.
In March 2023 MCPS announced it would no longer permit parents to opt out of instruction using the LGBTQ+ Storybooks. The Montgomery Public Schools maintained this position even for individuals and families who alleged the books conflicted with their religious beliefs. Instead of the opt-out provisions, MCPS implemented a multilevel appeal process for parents to challenge the "appropriateness of instructional materials or library books."
Parents from Muslim, Catholic, Orthodox Christian, and other faith backgrounds sued the Montgomery Public Schools, alleging the reversal of the opt out policy violated their right to raise their children in accordance with their religious beliefs. A Maryland district court and the U.S. Court of Appeals for the 4th Circuit ruled against the parents.
The Supreme Court reversed, with Justice Alito writing in support of the parents for the majority. The majority opinion relied on an expansive reading of the Court's 1972 ruling in Wisconsin v. Yoder. In Yoder, the issue was whether Amish parents could be compelled to keep their children in high school past eighth grade or risk criminal sanction. The Amish parents in Yoder argued that the mandatory attendance imposed by the state and the structure, content, and peer environment of public high school undermined their religious beliefs and the religious upbringing of their children. The Yoder Court agreed, holding that the state's interest in compulsory education did not justify the "substantial interference" with religious upbringing.
In contrast, Mahmoud did not involve compulsion or criminal sanctions, nor a threat to a specific group's religious beliefs. The issue was the inclusion of the LGBTQ+ books into the curriculum. Without addressing the distinction, the Supreme Court expanded the application of Yoder and concluded that the exposure to the ideas and beliefs presented in the books created a substantial burden on the parents' ability to guide their children's religious development and therefore constituted "substantial interference" and a violation of the Free Exercise Clause. The Court reasoned that the combination of the "moral messaging", the young age of the students, and the refusal of the Montgomery Schools to offer opt-outs, created a substantial burden on parents' ability to guide their children's religious development, just as the state requirement for compulsory education through high school had created a substantial burden for Amish families in Yoder.
What Comes Next? Lessons from Arizona Classrooms
Amidst a new constitutionally protected right that is subject to a strict scrutiny standard, public school educators are mandated to teach all children. In many parts of the country the Mahmoud decision is likely to heighten the tension between schools and parents as both grapple with how to balance the strengthened constitutionally protected religious rights of parents to demand exceptions to the school curriculum with the need to address controversial or complicated subjects in a country with many faith backgrounds.
Arizona is a state with legislation specifically targeted at this issue. Arizona statutes balance opt-outs for public district and public charter school parents with school choice and a school's right to control curriculum. Under Arizona law, parent rights are considered fundamental, school choice is critical, and parents are not permitted to micromanage the public-school curriculum. Parents may, however, opt their children out of a particular educational requirement. In this way, the Arizona statutory scheme comports with the majority opinion in Mahmoud in that it allows a school to establish a curriculum without an impermissible constitutional burden because of the opt-outs.
Years of applying these laws amid increasingly contentious political divides have shown that a well-implemented opt-out policy, which provides clear notice, and which makes room for open dialogue with families, does not threaten or undermine diversity. Of course, the implementation is not always simple. Issues arise in many forms, most commonly in language arts, history, and classics texts. Concerns that teachers may become fearful and self-censor material to avoid conflicts with parents, are real and strong; school leadership is required to address the concerns and provide support and training.
Parents may also overreach and demand the student be allowed not to participate in a subject matter class at all, or demand that the curriculum-based texts be changed entirely for everyone. This is not what Arizona law requires. Parents have options and choices for schools, and the courts support a school's right to create its curriculum. Opting out of specific reading does not mean eliminating a language arts requirement for a student but it may mean reading a different book for a specific assignment.
Final Thoughts
Parents and educators are partners in educating students. Meaningful dissent, wherever it may arise and regardless of who raises the issue, fosters critical thinking. In a pluralistic society this may require notice and accommodation to protect constitutional rights, and the Arizona experiment has shown that constitutional rights can be well protected without censorship or book bans in public schools. Open dialogue with those whose ideas may be different from our own is at the core of preserving and fostering a civil society. With the new Supreme Court directive, public districts and charters across the country may be well served to adopt a policy that requires transparency and allows some opt-outs.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.