Supreme Court Addresses Religious Opt-Outs for LGBTQ-Inclusive Curricular Materials in Elementary Schools

The Supreme Court’s recent decision in Mahmoud v. Taylor has raised new considerations for districts faced with requests from parents to excuse students from instruction they believe is at odds with their religious beliefs.

In Mahmoud, the controversy ensued when the Montgomery County (Maryland) Board of Education amended its policy with respect to the use of what the Board described as “LGBTQ+-inclusive” storybooks in kindergarten through grade five. For several months after the materials were introduced to the language arts curriculum in late 2022, the Board notified parents when the texts would be taught and permitted them to excuse their children from the instruction. In March 2023, however, the Board ended that practice, citing the disruptions caused by the growing number of opt-out requests.

A group of parents representing diverse religious beliefs then brought this action, claiming that their First Amendment rights to practice their religion had been violated. They sought a preliminary injunction requiring the district to permit them to opt out of this instruction while the court case was pending.

The Court ruled in favor of the parents.  In reaching this decision, the Court held that claims about compulsory education that implicated the rights of parents to instruct their children with respect to their religious beliefs would be reviewed with “strict scrutiny.”

After a review that included a discussion of each of the five challenged books, the Court concluded that the Board’s policy was not necessary to achieve its compelling interest in having an undisrupted school environment conducive to learning. The Court posed the question for review as whether the instructional materials are “presented in a neutral manner, or in a manner that is ‘hostile’ to religious viewpoints and designed to impose upon students a ‘pressure to conform’?”

Here, the Court emphasized that the storybooks were meant to be presented by teachers to elementary grade students and that the texts were “unmistakably normative” in that they portrayed certain values and beliefs related to gender and sexuality as worthy of celebration, and other values and beliefs around the same topics as harmful and hurtful. The Court also highlighted that the guidance the Board provided to teachers advised them to “disrupt” their students’ thinking and included talking points and model responses that explicitly contradicted the parents’ religious views. The Court therefore rejected the dissent’s characterization of the instruction as merely passive “exposure to objectionable ideas,” or as a lesson in “mutual respect.”

The Court then observed that the Board continued to permit requests for excusal from certain instruction in other circumstances, such as for lessons on family life and human sexuality, where (as in Connecticut) opt-outs are required by state law. Accordingly, the Board could not demonstrate that parental opt-out from this instruction was unduly burdensome. The Court therefore ruled that the parents were entitled to a preliminary injunction and, pending final resolution of the proceedings, must be notified when any of the challenged texts is to be used and allowed to excuse their children from that instruction.

The Court emphasized that determining whether a board of education policy impermissibly interferes with the religious rights at issue “will always be fact-intensive.” From a practical perspective, this means that there is no one-size-fits-all takeaway from the opinion—instead, school districts must carefully consider their unique circumstances when confronted with issues in this area. To that end, we encourage boards of education and school officials to review their existing policies and practices and seek individualized guidance from legal counsel as needed.