Can parents keep their kids from learning about evolution in public schools? What about books featuring wizards? What about pacifism? Feminism? Earth Day?
There’s seemingly no end to religious objections that one could make to various topics. That’s relevant because the Supreme Court is hearing arguments Tuesday from Maryland parents who want to keep their elementary school kids from instruction involving gender and sexuality that they say bucks their beliefs.
Technically, the plaintiffs of various faiths aren’t trying to control what gets taught or to ban books. Rather, they’re asking for notice and a chance to opt their kids out of certain instruction, in this case sparked by books featuring LGBTQ characters.
So, what’s the problem with that? After all, the Montgomery County school system previously allowed such “opt-outs.”
Lawyers for the school system told the justices that growing opt-out requests prompted three related concerns: “high student absenteeism, the infeasibility of administering opt-outs across classrooms and schools, and the risk of exposing students who believe the storybooks represent them and their families to social stigma and isolation.”
They said the implications of the parents’ position are drastic, accusing them of trying to “unsettle a decades-old consensus that parents who choose to send their children to public school are not deprived of their right to freely exercise their religion simply because their children are exposed to curricular materials the parents find offensive.”
Outside briefs from school groups highlight the potential impact beyond the particular facts of this case.
One of them tells the justices that the idea behind keeping kindergartners from the books at issue here “will also apply to the parents of a high-school or middle-school student who wish to prevent their ninth grader from being exposed to evolution or their sixth-grader being exposed to any pictures of girls who are not wearing a hijab.” Likewise, another brief lists an array of objections lodged around the country to various topics, such as interracial marriage, feminism, yoga, Earth Day, community service, magic, witches, wizards, evolution, vaccinations and more.
Still, the parents say they face an “impossible choice”: subject their children to instruction against their beliefs or lose out on public education. They’re represented by a religious liberty group and backed by the Trump administration. Representing the school system is WilmerHale, one of the law firms targeted by the administration’s revenge orders. The firm has fought back on First Amendment grounds, thus far successfully. The parents in Tuesday’s case, called Mahmoud v. Taylor, cite the amendment’s religious freedom guarantee. That atmospheric element aside, religious claims have broadly fared well at the Roberts Court. And this latest case has the makings of one that could garner at least a majority of the justices’ sympathies. Ultimately, it could wind up being not so much whether the religious side wins but where the court draws the line. That line-drawing consideration is an important one in many appeals but especially so here. Tuesday’s hearing could shed light on what the court will do as the term nears its unofficial end, when the court usually publishes its final rulings by July. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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