In oral argument, U.S. Supreme Court wrestles with the limits of public school parents’ opt-out rights
In oral argument in the case of Mahmoud v. Taylor, the U.S. Supreme Court probed the issue of whether and to what extent parents of young schoolchildren enjoy a right under the Free Exercise Clause of the First Amendment to opt their students out of curricular activities that conflict with their religious beliefs.
The case (see earlier post) revolves around a reading curriculum adopted by Maryland’s Montgomery County School Board that includes books featuring LGBTQ+ characters and suggestions for teachers on how to foster a community of respect and civility in addressing questions that may arise.
The school board initially provided opt outs to parents, but it contends that they proved unworkable. Plaintiff parents argue that because opt outs are provided for a range of other curricular topics — involving instruction in family life and sexuality — declining to provide opt outs for the reading curriculum amounts to religious discrimination. They emphasized that they are not seeking to have the books in question removed from the curriculum or from the library. They are asking for the right to opt out.
Like most religious liberty cases, the outcome of this dispute will turn on specific facts of the case. Still, the oral arguments presented some interesting and important general discussions about what level of conflict with religious beliefs the First Amendment requires before a parent’s rights are implicated and a public school is required to accommodate a sincere religious objection.
There were several excerpts from the transcript that caught my attention in thinking not just about the outcome of this case, but what kind of rule might the Court hand down? Questions focused on the difference between merely being exposed to an idea and that idea being normalized or affirmed or even coercive for students. Which level of conflict constitutes a burden on religious liberty? When is it just a reality of public education in a pluralistic society? How should a court tell the difference? On the administrative side, at what point are opt outs unworkable?
Justice Elena Kagan in particular tried to nail down how should a line be drawn, and she worried about the implications of a broad rule that allows parents to opt out of any conflict, first with the attorney for the plaintiffs:
JUSTICE KAGAN: Mr. Baxter … you’ve basically said: … my clients have religious principles that conflict with what is being taught. … [D]oes it matter what the subject matter is? Does it matter what the age of the child is? Does it matter what the nature of the instruction is? If so, how does it matter? Or, in the end, is what you’re saying: When a religious person confronts anything in a classroom that conflicts with her religious beliefs or her parents’ that — that the parent can then demand an opt-out?
MR. BAXTER: It’s really the latter, Your Honor. And that’s exactly what Montgomery County allowed in its own religious diversity guidelines. Anything that violated a student’s — or imposed a substantial burden, in their language, on a student’s religious or parent’s religious beliefs, they had the right to opt out. …
JUSTICE KAGAN: So this is a rule that applies as well to a 16-year-old in biology class saying, you know, I don’t — you know, the parents say: I don’t want my child to be there for the classes on evolution or on other biological matters which conflict with my religion? It would apply just as well to that?
…
MR. BAXTER: We know that those don’t happen very often…
JUSTICE KAGAN: But it would if there were?
MR. BAXTER: Certainly….
JUSTICE KAGAN: And if that’s the — if — so that’s a pretty broad rule.
She returned to the question in questioning the attorney for the School Board:
JUSTICE KAGAN: Mr. Schoenfeld …when I pushed Mr. Baxter a little bit … as to the consequences of [drawing lines], he said…we don’t see a lot of objections in high schools. We don’t see a lot of objections about evolution classes. You know, we — is that true? And should we count on it being true? And how can we tell if it’s true?
MR. SCHOENFELD: So two answers, Justice Kagan. The first is I don’t think you can count on it being true for exactly the reason Your Honor gave, which is, once this Court constitutionalizes that prerogative, you’re in a completely different world in terms of parents’ willingness or ability to invoke it. And with respect to the question of whether it is empirically true, the best data point is the last 40 years of litigation on these topics.…And the way that courts have controlled for the volume of those cases is to stop the inquiry at the burden stage and hold consistently in those cases while fully acknowledging that there may be circumstances that give rise to coercion, fully recognizing that exposure to ideas, even if they offend religious beliefs, do not qualify as a burden for free exercise purposes.
A decision in the case is expected by the end of June.
