Part 3 of the series Judicial Round Up – Corralling Cases That Affect Schools
Allen Clendaniel, Sedor, Wendlandt, Evans & Filippi, LLC
This year, our firm’s educational lawyers are focusing on important cases that affect school districts in Alaska and throughout our country. This month we write about the recent United States Supreme Court case, Mahmoud v. Taylor, which addresses parents’ right to opt out of instruction based on religious objections.
Here are the relevant facts. A large public school district in Maryland, approved LGBTQ-inclusive books for its English Language Arts curriculum. These “Storybooks” featured characters and themes related to sexual orientation and gender identity. The picture book The Prince and the Knight is about a prince who, after his parents try to find him a bride, teams up with a brave knight to defeat a dragon threatening their kingdom.In the majority opinion, Justice Alito described the conclusion of the picture book: “After the knight takes off his helmet, the prince and knight ‘gaz[e] into each other’s eyes, [and] their hearts beg[in] to race.’ The whole kingdom later applauds ‘on the two men’s wedding day.’” Another book for K-5 students was titled: Born Ready: The True Story of a Boy Named Penelope.
Initially, the School Board required that parents receive notice before the books would be used. The School Board’s policy allowed parent to opt their children out of lessons involving the LGBTQ books, in accordance with the School District’s “Guidelines for Respecting Religious Diversity” policy. Five months later, the School Board abruptly reversed this policy, eliminating all notice and opt-out options. The School Board later cited concerns about classroom disruption, administrative burden, and potential stigmatization of individuals represented in the books.
Three sets of parents sued Montgomery County’s School Board and Superintendent Thomas Taylor, alleging that their First Amendment and due process rights were violated. The lead plaintiffs were Muslim. The other parents were Roman Catholic and Ukrainian Orthodox. The parents sought a preliminary injunction reinstating the opt-out policy.
The case started in the United States District Court for the District of Maryland. The District Court denied the parents’ request for a preliminary injunction to restore the policy allowing them to opt their children out of lessons. The judge held that “with or without an opt-out right, the parents remain free to pursue their sacred obligations to instruct their children in their faiths” and that “[e]ven if their children’s exposure to religiously offensive ideas makes the parents’ efforts less likely to succeed, that does not amount to a government-imposed burden on their religious exercise.”
The parents appealed to the United States Court of Appeals for the Fourth Circuit, which upheld the District Court’s decision in a 2-1 ruling. The Fourth Circuit found the record lacked evidence that the schools compelled families to change or violate their religious beliefs. The majority found that “simply hearing about other views does not necessarily exert pressure to believe or act differently than one’s religious faith requires.”
The parents petitioned to the United States Supreme Court, which agreed to hear the case.
At the Supreme Court, the parents argued that under Wisconsin v. Yoder (1972), the Free Exercise Clause of the First Amendment prohibits government schools from “substantially interfering with the right of parents to direct the religious upbringing of their children.” The Supreme Court in Yoder held that a Wisconsin law requiring school attendance unduly burdened the Free Exercise Clause by forcing Amish parents to send their children to public school after eighth grade, which violated core Amish beliefs requiring them to remain “aloof from the world.”
The parents also argued that the Board’s ban on opt-outs and notice are not generally applicable or neutral under Church of Lukumi Babalu Aye, Inc. v. City of Hialeah (1993) and are therefore subject to strict scrutiny review. In Lukumi, the Supreme Court held that ordinances prohibiting animal sacrifice violated the Free Exercise Clause because they were not neutral nor of general application. The Supreme Court also stated that the sole reasons for imposing burdens of the law must be secular, and not as mechanisms, overt or disguised, to persecute or oppress a religion or its practices. Under strict scrutiny, the government must demonstrate that its course was justified by a compelling state interest and narrowly tailored in pursuit of that interest.
The School District, on the other hand, argued that the parents could not establish the threshold element of a Free Exercise claim – coercion, or compulsion or pressure to alter one’s religious convictions or practice. The School District also argued that the parents failed to show a cognizable burden, which should end the Court’s inquiry. The School District further asserted that even if the Court found a cognizable burden, it should return the case to the trial court to determine whether the School District’s policy refusing notice to parents and prohibiting the ability of parents to opt out is neutral and generally applicable.
On June 27, 2025, the Supreme Court released a 6-3 decision in favor of the parents. The Court held that the parents were entitled to a preliminary injunction providing that “until all appellate review in this case is completed, the Board should be ordered to notify them in advance whenever one of the books in question or any other similar book is to be used in any way and to allow them to have their children excused from that instruction.” The Supreme Court determined that the parents had made the requisite showing that 1) they were likely to succeed on the merits of their claim that the Board’s polices unconstitutionally burden their religious exercise; 2) they were likely to suffer irreparable harm in the absence of preliminary relief; 3) the balance of equities tipped in their favor; and 4) an injunction was in the public interest. Accordingly, the Supreme Court reversed the judgment of the Court of Appeals and remanded the case for further proceedings.
The majority opinion, written by Justice Alito, found that the Board’s practices of introducing the storybooks and forbidding notice and opt-outs substantially interfered with the religious development of the parents’ children and imposed the kind of burden on religious exercise that Yoder found unacceptable. Similar to the compulsory high school education in Yoder, the Court found that the LGTBQ books imposed upon children a set of values and beliefs that were “hostile” to their parents’ religious beliefs. These books also exerted upon children a psychological “pressure to conform” to their specific viewpoints.
The Court did not agree that these books were mere exposure to objectionable ideas or as lessons in mutual respect, since the majority found the storybooks unmistakenly convey a particular viewpoint about same-sex marriage and gender and the Board specifically encouraged teachers to reinforce this viewpoint and reprimand any children who disagree.
The Court said the key question is whether the educational requirement or curriculum at issue would “substantially interfere with the religious development” of the child or pose “a very real threat of undermining” the religious beliefs and practices the parents wish to instill in the child.
Finally, the Court applied strict scrutiny to the burden imposed by the School District’s no notice and no opt-out policy. In order to survive strict scrutiny, the School District must demonstrate that its policy advances “interests of the highest order” and is narrowly tailored to achieve those interests. The Court pointed out the Board’s allowance of opt outs in a variety of other circumstances, such as for the health unit titled the “Family Life and Human Sexuality” program, undermined its assertion that the no-opt-out policy was necessary to serve the interest in maintaining a school environment that is safe and conducive to learning for every student.
Justice Sotomayor wrote a fiery dissent warning that America’s public education system will be burdened by the Court’s ruling. She wrote: “Given the great diversity of religious beliefs in this country, countless interactions that occur every day in public schools might expose children to messages that conflict with a parent’s religious beliefs. If that is sufficient to trigger strict scrutiny, then little is not.” She added: “The result will be chaos for this Nation’s public schools. Requiring schools to provide advance notice and the chance to opt-out of every lesson plan or story time that might implicate a parent’s religious beliefs will impose impossible administrative burdens on schools.” Finally, the dissent argued that the majority opinion “constitutionalizes a parental veto power over curricular choices long left to the democratic process and local administrators.”
Practice Pointers
The Mahmoud v. Taylor case is a significant case in the evolution of the First Amendment’s religious freedom jurisprudence. Each month we provide “Practice Pointers.”
- Review your curriculum for topics addressing sexuality, gender identity, religion, or other deeply held values.
- Ensure that your policy explicitly states when and how parents/guardians will be notified of such materials in advance.
- Confirm that the opt-out process is meaningful (clear, accessible, timely) and that alternative instruction is available (so that students are not simply sent to hallways unsupervised).
- Train administrators and teachers regarding best practices regarding controversial instruction, notice requirements and the opt-out process.
