In Mahmoud v. Taylor, the U.S. Supreme Court issued a major ruling reaffirming and extending constitutional protections for parents seeking to shield their children from public school instruction that conflicts with their religious beliefs. In a 6-3 decision, the Court held that a Maryland school district’s refusal to provide notice to parents when “LGBTQ+-inclusive” storybooks would be utilized in K-5 English/Language Arts instruction and to allow opt-outs from such curriculum substantially burdened parents’ rights under the Free Exercise Clause of the First Amendment. But the ruling may extend beyond storybooks.
The Court’s decision underscores the principle that parental rights in religious upbringing go beyond one’s home and extend into the public-school context. Rejecting the argument that parents can simply exit the system through private school or homeschooling, the Court concluded that public schools are a public benefit and within this public benefit is a constitutional obligation not to interfere with religious rights.
While the school district asserted that the use of inclusive storybooks was mere exposure to diverse viewpoints and therefore did not infringe on any religious rights, the Court found that the books went beyond exposure and, in any event, that exposure “is not the touchstone for determining whether the line is crossed.” Instead, the question to ask 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 parent wishes to instill in the child.”
The Court also brushed aside concerns regarding how administration of the opt-out process would create a substantial burden for schools. The Court pointed to other opt-outs in other contexts in Maryland and around the country (e.g., sex education) and faulted the school district for failing to show why opt-outs in this case could not be structured similarly.
The decision also provides guidance to lower courts but invites litigation to create the contours of the parental right. Whether a school district’s actions substantially interfere with the religious development of a child “will always be fact-sensitive.” This means general rules of application may be less likely and prediction of litigation outcomes for school district decisions may be more difficult particularly before subsequent lower-court decisions are entered. The Court highlighted two principles for lower courts to apply:
1. Educational requirements targeted towards very young children may be analyzed differently from requirements for high school students
2. Whether the instruction or materials are presented neutrally or in a manner creating pressure to conform
The Court also clarified that parents need not wait for specific harms to occur in order to challenge an educational policy. In line with general First Amendment doctrine, a plaintiff may bring a challenge and obtain judicial relief so long as there is a substantial risk that the harm will occur. The Court found a risk of harm present, as the district required the use of the storybooks and had published instructions for how teachers were to implement them.
Bose McKinney & Evans LLP’s Suggestions:
- School building administrators, particularly of primary and middle/junior high schools, should be immediately trained on how to respond before the 2025-2026 school year.
- Policies regarding opt-out should be restated to encompass this new, broad right, with procedure implemented through administrative guidelines.
- Evaluate whether notice may be possible before certain instructional materials are used and whether notice may be necessary for such materials.
- Monitor litigation and legislative developments.
The Education Group at Bose McKinney & Evans can help ensure your district is informed and ready to adapt policies appropriately to minimize litigation risk. Please contact Jon Mayes with any questions or concerns.
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