U.S. Supreme Court endorses parental opt-out for LGBTQ+ curriculum

On June 27, in a 6/3 majority decision in Mahmoud v Taylor, the United States Supreme Court ruled that a public school district violated parents’ constitutional right involving religious freedom by forcing their children to participate in LGBTQ+ curriculum without providing an opt-out provision. The Board of Education of Montgomery County, Maryland (“school district”) introduced a variety of LGBTQ+ inclusive storybooks into its kindergarten through fifth-grade elementary curriculum that required discussion over the values illustrated by these books. The school district distributed educational instructions to teachers, advising that these books were designed to “disrupt children’s thinking about sexuality and gender.” The school district conducted teacher workshops that coached teachers in how to respond to children who raised questions about whether the concepts would force them to reject values taught at home. In workshops and in developing the curriculum, the board selected books based on whether “heteronormativity” and whether power hierarchies that uphold the dominant culture are reinforced or disrupted. One of the books involved a homosexual relationship between a prince and a knight. Another book, ‘Love Violet,’ followed a girl named Violet who had a crush on a female classmate. The third book, ‘Born Ready,’ was a true story about a boy named Penelope who insisted to his mother that he was a girl.

The school district serviced a diverse constituency of religious faiths, including Christian denominations, Jewish, Muslims, Hindus, and Buddhists.  At first, the school district did offer an opt-out provision for parents who objected to the curriculum, but so many objected that the board then revoked the opt-out option. Instead, the school district told parents it would notify them when the books were going to be used, but that the LGBTQ+ curriculum was mandatory.

A collection of these parents filed a legal challenge arguing that the mandated LGBTQ+ curriculum for their elementary students violated their constitutional free exercise right and religious beliefs under the First Amendment to the United States Constitution. Both the United States Federal District Court of Maryland and the United States Fourth Circuit Court of Appeals affirmed the school district’s right to mandate the LGBTQ+ curriculum.

The United States Supreme Court majority opinion reversed. In Justice Alito’s majority opinion, he observed that the Supreme Court “long recognized the rights of parents to direct their religious upbringing with their children.” When those rights are violated by government policies that substantially interfere with the religious development of children, such interference violates the First Amendment of the Constitution, which guarantees religious freedom and the free exercise thereof. The question of whether a government action substantially interferes with parental religious development of a child depends on the specific religious belief and practices, the specific feature or educational or curricular requirement, and the manner in which the instruction or materials are presented—are they presented in a neutral manner or presented in a manner that is hostile to religious viewpoints and in a manner designed to pressure conformity. Educational requirements targeted at very young children may also be analyzed differently from educational requirements for high school students.

In weighing these factors, the majority opinion concluded that the school district’s compulsory LGBTQ+ curriculum substantially interfered with parents’ religious development of their children. The curriculum and books targeted very young children. The books were designed to present certain values and beliefs as things to be celebrated and certain contrary values and beliefs as things to be rejected. Significantly, the majority opinion applied the strict scrutiny legal test, since the threat of undermining religious beliefs and practices invoked a fundamental constitutional right. Under the strict scrutiny standard, the government must demonstrate that its policy advances the interest of the highest order or that there was a compelling governmental interest and that the means adopted are narrowly tailored to achieve those interests.

The Supreme Court had no difficulty in concluding that the school district’s expressed interest in mandating its LGBTQ+ curriculum failed this strict scrutiny test. The LGBTQ+ storybooks, along with the district’s decision to withhold parental opt-outs, proposed an unconstitutional burden on the parents’ right to the free exercise of their religion. The arguments to the contrary were found unpersuasive, including the argument that parents still had the option to teach their children religious views that conflicted with the LGBTQ+ curriculum.

In light of this United States Supreme Court case, compulsory LGBTQ+ curriculum may risk legal challenges from parents whose religious views oppose this teaching to their children. The best option is to offer parental opt-outs for LGBTQ+ curriculum in a similar manner that opt-outs are required to be offered for sexual education courses. Indeed, it may be prudent to reserve the introduction of LGBTQ+ curriculum to sex education courses, which are normally offered to more mature pupil audiences.

This publication is intended for general informational purposes only and does not constitute legal advice or a solicitation to provide legal services. The information in this publication is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Readers should not act upon this information without seeking professional legal counsel. The views and opinions expressed herein represent those of the individual author only and are not necessarily the views of Clark Hill PLC. Although we attempt to ensure that postings on our website are complete, accurate, and up to date, we assume no responsibility for their completeness, accuracy, or timeliness.