A recent U.S. Supreme Court decision expands the rights of parents to excuse their children from instruction under the First Amendment’s Free Exercise Clause. In the case Mahmoud v. Taylor, the Court ruled that parents seeking to opt their children out of LGBTQ-supportive books are entitled to an injunction while affirming that a school district “burdens the religious exercise of parents when it requires them 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.”

The case involves a Maryland school district that introduced a variety of LGBTQ-themed texts into its kindergarten through fifth-grade curriculum.  The texts included five storybooks with storylines focused on sexuality and gender.  The school district initially allowed parents to excuse their students from instruction involving the books, but then rescinded the opt-out practice due to the growing number of parents utilizing it.  This prompted a group of parents to: (1) file a lawsuit claiming that the no-opt-out policy infringed on parents’ right to the free exercise of their religion and (2) pursue an injunction prohibiting the school district from forcing their children and other students, over the objection of their parents, to read, listen to, or discuss the storybooks.

The Supreme Court held that the parents have shown that they are entitled to a preliminary injunction ordering the Maryland school district to notify parents in advance whenever one of the books in question or any similar book is to be used in any way and to allow them to have their children excused from that instruction.

The decision of the Court was primarily based on the case Wisconsin v. Yoder, 406 U.S. 205 (1972), which found that the enforcement of a compulsory-education law violated the Free Exercise Clause of the First Amendment by substantially interfering with the religious development of Amish children.[1]  In reaching this decision, the Court recognized that parents “have a right to direct the religious upbringing of their children,” and that this right can be infringed by laws that pose “a very real threat of undermining” a family’s religious convictions.  Likewise, the Court in Mahmoud found the school district’s introduction of the LGBTQ storybooks, combined with the decision to withhold notice to parents and to forbid opt-outs, “substantially interferes with religious development of their children and imposes the kind of burden on religious exercise that Yoder found unacceptable.”

The Supreme Court noted that the question of whether a law (or government-based policy or practice) “substantially interferes 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? 

In analyzing the facts of the Mahmoud case, the Court found that the “books impose upon children a set of values and beliefs that are hostile to their parents’ religious beliefs” while “exert[ing] upon children a psychological pressure to conform to their specific viewpoints,” presenting “the same kind of objective danger to the free exercise of religion” identified in Yoder, which was “exacerbated by the fact that the books [were] presented to young children by authority figures in elementary classrooms.”

A likely consequence of this decision will be school districts receiving more opt-out requests from parents. Current school board policies, administrative guidelines and forms that address opting out of classroom instruction must be interpreted and followed in compliance with the Mahmoud decision. 

Additional Information about this case and guidance on compliance with the decision will be discussed at MASB’s upcoming Back to School Legal Workshop. For details on registering for the workshop and its complete agenda, please visit MASB’s website.