Background
Controversy arose at the start of the 2022–2023 academic year in Montgomery County, Maryland’s largest public school district when education officials added storybooks with LGBTQ+ themes and materials on transgender issues to its English language arts curriculum.
Some parents challenged materials, including the alphabet primer Pride Puppy!, which the Fourth Circuit noted was the only text expressly approved for use with three and four-year-olds in pre-K and Head Start classes.
The book portrays a family whose puppy gets lost at an LGBTQ+ Pride parade, devoting a page to each letter of the alphabet to celebrate Pride Day. A related assignment directed children to locate words such as “[drag] queen,” “king,” “leather,” and “lip ring.”
Other disputed materials “include[d] stories about a same-sex marriage, a transgender child’s rainbow-colored wig, and elementary school students replacing girl/boy bathroom markers with non-binary signs.”
Amid changing social values since the 1990s, there has been significant litigation over parental objections to sex education in schools.
Two months later, an interfaith coalition led by Muslim, Christian, and Jewish parents challenged educators’ refusal to allow them to excuse their preschool and elementary school-aged children from instruction using the disputed materials.
In August 2023, the federal trial court in Maryland, in what was originally known as Mahmoud v. McKnight, rejected the parental claim that they had a fundamental right to direct the care, custody, education, and control of their minor children by being informed about what they are taught at school.
In May 2024, a divided Fourth Circuit affirmed that officials did not violate the parents’ First Amendment right to the free exercise of religions, an issue that was not before the trial court, or undermine the values they sought to instill in their children by denying them the opportunity excuse their young from instruction to which they objected. The panel added that the Supreme Court never found that “exposure to views contrary to one’s own religious beliefs necessarily constitutes a cognizable burden” on the free exercise of religion. The court concluded that the board did not violate the parents’ rights in using the disputed storybooks, refusing to allow them to remove their children from the classes.
The dissent countered that board officials violated the parents’ rights to the free exercise of religion by forcing them “to make a choice — either adhere to their faith or receive a free public education for their children.”
The dissent would have invalidated the policy for failing to meet the constitutional standard of being neutral and generally applicable toward religion because “other religious opt-out requests are still allowed; just not for those opposed to the content of the [disputed] texts.”
At issue before the Supreme Court in Mahmoud is “[w]hether public schools burden parents’ religious exercise when they compel elementary school children to participate in instruction on gender and sexuality against their parents’ religious convictions and without notice or opportunity to opt-out.”
Reflections
Mahmoud raises challenging questions. On the one hand, students should receive instruction on a wide range of issues and from various perspectives. On the other hand, although framed under the guise of the free exercise of religion, the key question concerns where the line should be drawn as to parental rights to disagree with having their children exposed to materials inconsistent with their religious beliefs.
In Pierce, quoted earlier, the Supreme Court upheld the rights of nonpublic schools to exist while acknowledging the key role parents play in directing the lives and educations of their children. Amid changing social values since the 1990s, there has been significant litigation over parental objections to sex education in schools.
For instance, courts held that officials in Massachusetts did not have to excuse a high schooler from an explicit sex education program or allow kindergarteners and first graders to skip classes discussing same-sex couples; could ask sex-related questions to children in first, third, and fifth grades in California; and could pose personal inquiries to high school students in New Jersey about their sex lives.
Question of Control
The underlying question in Mahmoud as well as the cases identified in the previous paragraph, one likely to impact the duties of SBOs, their boards, and other education leaders because of how different communities will respond, is who ultimately controls what children are taught in public schools. The way the Supreme Court resolves this question by balancing the rights of school officials and parents may go a long way in reshaping the future of public education.
Given the controversy that Mahmoud and the other litigation on sex education have raised, education leaders may want to consider creating advisory committees to gain input from parents and community members when addressing such sensitive curricular topics.
Moreover, while it is, of course, too early to know the outcome in Mahmoud, and at the risk of affording critics a heckler’s veto because it may not be possible to please all parents, getting input in advance on sensitive topics such as sexuality may help head off controversy while allowing for smoother school-community operations.
At the same time, in the underlying controversy in Mahmoud, it is worth noting that while Montgomery County does not defer to parents, Maryland is one of 38 jurisdictions, including the District of Columbia, that calls on boards to offer parental opt-outs. Another six states have a combination of opt-outs and options, while four require parents to agree affirmatively to allow their children to attend sexuality instruction classes. Three states are silent on opt-outs but do not ban such policies. Because the Court is expected to rule in late June or early July 2025 when its current term ends, I will write a follow-up on this important case.