by Chris Gilbert, Thompson & Horton LLP

On April 22, 2025, the Supreme Court heard oral argument in Mahmoud v. Taylor, a case from the Fourth Circuit about whether parents have a constitutional right to opt out of public school curriculum choices with which they disagree, in this case because of the parents’ religious beliefs.

At issue was the school district’s decision to use a series of LGBTQ-themed books, including a book called “Pride Puppy,” which (in the words of the court of appeals), depicts a family whose puppy gets lost amidst a LGBTQ-pride parade, with each page focused on a letter of the alphabet. The three- and four-year-old audience is invited to look for items such as “[drag] king,” “leather,” “lip ring,” “[drag] queen,” and “underwear.”  See 102 F.4^th 191, 197 (4^th Cir. 2024).  The parent plaintiffs claimed they were not challenging the school’s ability to adopt the curriculum and teach it to other children, but only the decision not to provide them of advance notice of the curriculum and an opportunity to opt out, which they claimed violated their constitutional rights to freely exercise their religion.

Under challenge in this case is a long series of cases going back to at least the 1960’s, in which courts have routinely held that parents do not have a constitutional right to pick and choose which aspects of a public school’s curriculum they wish their children exposed to.  This was true of sex education challenges in the 1960’s and 1970’s, secular humanism challenges in the 1980’s and 1990’s, and the teaching of evolution, including the “Intelligent Design” movement in the 2000’s.  Underlying most of these decisions is the common sense realization that, as Justice Jackson once noted, attempts to tailor a public school curriculum so as to satisfy everyone’s religious sensibilities would result in “[n]othing but educational confusion and a discrediting of the public school system….”  McCollum v. Bd. of Educ., 333 U.S. 203, 235 (1048) (Jackson, J., concurring).

With regards to religious challenges, the courts have consistently ruled that mere exposure to ideas that offend a person, on religious or other grounds, does not violate that person’s right to religious freedom.  Mozert v. Hawkins County Bd. of Educ., 827 F.2d 1058, 1068 (6th Cir. 1987) (rejecting free exercise challenge to the Holt, Rinehart, and Winston textbook series).  The Fourth Circuit, which reviewed this case on a very limited record (no discovery had yet taken place), ruled that on the “threadbare” record before it, the parents had not shown that exposure to the storybooks compelled them to violate their religion.

The question presented to the Supreme Court was “[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.”  Based on the 2 ½ hour argument last week, it appears almost certain that the six conservative justices will rule against the school district, as they all seemed to have concerns that the exposure at issue (at least as alleged) did amount to more coercion than past courts probably would have credited.

Some of the justices, however, might be more limited in their eventual rulings.  Both Justice Amy Coney Barrett and Justice Neil Gorsuch suggested that the alleged use of the books went beyond mere “exposure” and amounted to suggesting that the concepts in the books were “right” – so possibly they would limit their decisions to the facts of the case and not attack the “mere exposure” doctrine more broadly.  And Chief Justice John Roberts noted that the idea that just because you read about a concept in a school book doesn’t make it right might be a hard concept for five-year olds to understand – so he might possibly limit an opt-out right to lower grades and younger students.

The Maumoud argument was very late in the 2024-2025 term, so we probably shouldn’t expect a decision from the Court until the very end of the term (late June).  However, this case could have a significant impact on a school district’s ability to adopt and use uniform curriculum, and requiring schools to accommodate each parent’s individual preferences could place significant burdens on already-overtaxed teachers, both as to teaching and then testing over the materials.  We will let you know when we get a decision from  the Court.