Update: Supreme Court seems likely to side with parents in school opt-out case
Dispute involves use of LGBTQ-friendly books as part of English instruction
A majority of the Supreme Court seemed sympathetic today to a group of parents who had objected to being denied the right to opt their children out of instruction using LGTBQ-friendly textbooks in the Montgomery County, Md., public schools.
The parents aren’t asking for the county to stop instruction using the books, nor for the books to be banned in the school district, only that their children be given alternative instruction or otherwise not be required to attend classes when the books are being used. The parents, many of whom are Muslim or Eastern Orthodox Christian, claim that requiring the instruction would violate their First Amendment right to free exercise of religion.
The books are being used as part of English instruction. The schools’ program of sexuality education continues to allow parents to opt their children out.
The case is Mahmoud v. Taylor. The school system, which won in the Fourth Circuit U.S. Court of Appeals, claims in part that parental rights are not violated in part because students are not required to adopt any particular views regarding sexuality as a result of the instruction. The school system allowed parents to withdraw their children from classes when the books were introduced in 2022, but it changed its policy the following year after determining that the number of opt-outs, many of them not for religious reasons, made the mandate impractical. The decision to eliminate the opt-outs became a hot controversy in the county, resulting in board meetings with angry parents.
The county also says that the books weren’t added to the curriculum to promote any type of gender ideology, but to reinforce the school’s teachings on showing civility and respect for others regardless of their backgrounds.
During oral arguments today, the only justices who appeared particularly sympathetic to the schools’ claim about opt-outs being impractical were two of the court’s liberals, Sonia Sotomayor and Ketanji Brown Jackson. Another of the court’s liberals, Elena Kagan, said she was concerned that requiring opt-outs as a matter of constitutional intepretation would greatly increase the number of parents seeking opt-outs for a wide variety of instruction.
Justices’ statements and questions during oral arguments aren’t always a reliable indicator of how they will eventually vote.
On the other side, conservative Justice Samuel Alito seemed particularly skeptical of Montomery County’s claims. If Muslim parents object to the use of books that violate their beliefs, “your response is, that’s too bad,” he told a lawyer for the county.
“What’s the big deal about allowing them to opt out?” he asked at one point.
Another of the court’s conservatives, Brett Kavanaugh, who attended schools in Montgomery County, said he was mystified by the decision to eliminate the original opt-outs.
Another justice, Amy Coney Barrett, who typically is part of the court’s conservative bloc but sometimes sides with liberals, raised questions about the school system’s instructions to teachers about how to respond if students say something like a boy can’t become a girl. She said the instructions suggest that the schools are teaching more than civility and are trying to persuade students of a particular viewpoint on sexuality.
The oral arguments lasted more than double the scheduled hour, suggesting the importance of the case.
Even if the court sides with the parents, it was unclear during today’s hearing precisely what standard justices were inclined to use to determine when opt-outs would be constitutionally required.
Statements made during oral arguments suggested that Montgomery County is the outlier among the nation’s school systems in not allowing opt-outs for the teaching of controversial material.
Original article (Jan. 18, 2025): Parents fighting lack of opt-out for LGTBQ schoolbooks get Supreme Court hearing
The U.S. Supreme Court will hear a case that could determine whether parents have the constitutional right to opt their children out of instruction involving books that they object to on religious grounds, the court announced Friday.
The court said that it was accepting the case of Mahmoud v. Taylor, in which three sets of parents are challenging the policies of the Montgomery County (Md.) School Board, which in 2022 added half a dozen books with LGTBQ themes as part of its language-arts curriculum. The board at first allowed parents to opt out of instruction using the books, but it rescinded that option in 2023 after the number of parents objecting made granting opt-outs unwieldy.
The parents are not objecting to the school district including the books in its curriculum, only the lack of an opt-out policy for those books.
According to a court document filed by the parents, Montgomery County is the most religiously diverse county in the country. The document said most of the objecting parents were Muslim or Eastern Orthodox; the parents bringing the case are three Roman Catholics, two Muslims and a Ukrainian Orthodox adherent.
Mahmoud v. Taylor is the second religion case the high court has accepted for the current term; last month, the court agreed to hear Catholic Charities Bureau v. Wisconsin Labor and Industry Review Commission, which relates to how religion is defined in a tax case. It is also the court’s second case this term relating to LGBTQ issues; in December, the court heard oral arguments in United States v. Skrmetti, which relates to gender-affirming care for minors. Although both cases involve disputes over the balancing of governmental interests with parental rights, the high court is unlikely in either case to use its powers to define the limits of constitutional restrictions on parental authority.
So far, the Maryland parents been unsuccessful in court. After failing to obtain a federal injunction require the school district to allow opt-outs, they went to the Fourth Circuit U.S. Court of Appeals. But a panel from that court decided 2-1 that the school district was not acting in violation of the Constitution.
As is usual, when the Supreme Court announced that it would hear the appeal, the court did not indicate its reasoning nor how many justices wanted the case to proceed. No date has been set for oral arguments; a ruling is most likely to come in June.
The two judges of the appeals court siding with the parents were Steven Agee, a George W. Bush appointee, who wrote the majority opinion; and DeAndrea G. Benjamin, a Joe Biden appointee. The dissenting judge was Marvin Quattlebaum Jr., a Donald Trump appointee.
Agee found that the Montgomery County board acted legally because it did not require the parents nor their children to change their religious views:
[T]he Parents’ declarations do not suggest, nor does the existing record show, that the Parents or their children have in fact been asked to affirm views contrary to their own views on gender or sexuality, to disavow views on these matters that their religion espouses, or otherwise affirmatively act in violation of their religious beliefs. We have no basis in the current record for concluding that schools have acted inconsistent with the Assistant Superintendent’s declaration that “no student or adult is asked to change how they feel about these issues.”
Agee also wrote:
Supreme Court precedent requires some sort of direct or indirect pressure to abandon religious beliefs or affirmatively act contrary to those beliefs. ... And simply hearing about other views does not necessarily exert pressure to believe or act differently than one’s religious faith requires.
In his dissent, Quattlebaum suggested that the school board was prioritizing LGTBQ inclusivity over religious inclusivity because it didn’t view the parents’ views as important enough:
[W]hen the onion layers of the board’s argument are peeled back, the board seems to question the relative importance of the parents’ religious beliefs that their children should not be taught with the books the board required be used to promote diversity and inclusivity to the LGBTQ+ community. To explain, the board only denied opt-outs for instruction involving those books. So, despite disclaiming that it is doing so, the board’s arguments, which the district court adopted, really view the parents’ religious objections to the texts as less important than the board’s goals to improve inclusivity for the LGBTQ+ community. But this is the precisely the sort of value judgment about parents’ religious claims that courts must not make. To repeat, it “is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretations of those creeds.”1
The material in quote marks comes from a 1989 Supreme Court decision involving the tax liability of the Church of Scientology.