Mahmoud v. Taylor, 145 S. Ct. 2332 (2025). The Supreme Court of the United States holds that a school district’s introduction of LGBTQ+-inclusive storybooks, along with its decision to withhold opt-outs from such instruction, placed an unconstitutional burden on the parents’ rights to the free exercise of their religion.
BACKGROUND
During the 2022-2023 school year, the Montgomery County Board of Education (“Board”) introduced a variety of inclusive texts into the public school curriculum. Those texts included five “LGBTQ+-inclusive” storybooks (“Storybooks”) approved for students in kindergarten through fifth grade, which have story lines focused on sexuality and gender. When parents sought to have their children excused from instruction involving those books, the Board initially compromised with the parents by notifying them when the Storybooks would be taught and permitting their children to be excused from the instruction. Less than a year after the Board introduced the Storybooks, however, it rescinded the parental opt-out policy. Among other things, the Board said that it “could not accommodate the growing number of opt-out requests without causing significant disruptions to the classroom environment.”
A group of parents filed a lawsuit asserting that that the Board’s no-opt-out policy infringed their right to the free exercise of their religion and requested a preliminary injunction prohibiting the Board from forcing their children to read, listen to, or discuss the Storybooks. The district court denied their request and the Fourth Circuit affirmed that denial. The Supreme Court, however, held that the parents were entitled to an injunction.
DISCUSSION
Government schools, like all government institutions, may not place unconstitutional burdens on religious exercise. In Mahmoud, the Court explained that, in the public school context, it had previously recognized limits on the government’s ability to interfere with a student’s religious upbringing. For example, in West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 (1943), the court held that a state law that required students to say the pledge of allegiance violated the First Amendment rights of certain students. In short, a requirement that students make an affirmation contrary to their parents’ religious beliefs is not permitted by the First Amendment.
Moreover, the Court explained that in Wisconsin v. Yoder, 406 U.S. 205 (1972), it had invalidated laws that imposed more subtle forms of interference with the religious upbringing of children than were present in Barnette. In that case, a Wisconsin law required that parents send their children to public or private school until the age of 16. The Court concluded that this violated the rights of certain Amish plaintiffs because the requirement “interposes a serious barrier to the integration of the Amish child into the Amish religious community.” In other words, the Court explained, mandating exposure to influences that would substantially interfere with religious beliefs may violate the constitution.
The Court noted that the question as to whether a law “substantially interferes with the religious development of a child” is “fact-intensive” and will depend on: 1) the specific religious beliefs and practices asserted; and 2) the specific nature of the educational requirement or curricular feature at issue. For example, educational requirements targeted toward very young children may be analyzed differently from educational requirements for high school students. In addition, a court must also consider the specific context in which the instruction or materials at issue are presented to determine whether they are presented in a neutral manner or if they are presented in a manner that is “hostile” to religious viewpoints and designed to impose upon students a “pressure to conform.”
With that background, in Mahmoud, the Court concluded that the Storybooks at issue were clearly designed to present certain values and beliefs as things to be celebrated and certain contrary values and beliefs as things to be rejected. Because these books carried with them “a very real threat of undermining” the religious beliefs the parents wished to instill in their children, the Court concluded that the books, combined with its no-opt-out policy, burdened the parents’ rights to the free exercise of their religion.
Normally, schools are permitted to place incidental burdens on religious exercise if they do so pursuant to a neutral policy that is generally applicable. However, pursuant to Yoder, the Mahmoud Court held that because the policy “substantially interferes with the religious development” of the parents’ children and because those polices pose “a very real threat of undermining” the religious beliefs and practices that the parents wish to instill in their children, the Board’s policy had to survive strict scrutiny even if it was neutral and generally applicable.
To survive strict scrutiny, a government must demonstrate that its policy “advances ‘interests of the highest order’ and is narrowly tailored to achieve those interests.” Unsurprisingly, the Board could not meet this burden. The Court noted that opt-outs were provided for other forms of instruction and that parallel instruction was provided for multilingual learners and students with individualized educational programs, so this “robust system of exceptions” undermined any argument that religious exemptions could not be granted for the parents in this case.
Accordingly, the Court concluded that the Board’s introduction of the Storybooks, along with its decision to withhold opt-outs, placed an unconstitutional burden on the parents’ rights to the free exercise of their religion. It also directed the lower court to order the Board to notify plaintiffs in advance whenever one of the Storybooks or any other similar book is to be used in any way and to allow them to have their children excused from that instruction.
PRACTICAL ADVICE
The Mahmoud decision strengthens and solidifies parental rights to direct the religious upbringing of their children in public schools. However, its direct impact on Pennsylvania schools will be minimal because the central holding, that schools must allow opt-outs from instruction that offends parents’ religious beliefs, is consistent with existing Pennsylvania law. Specifically, 22 Pa. Code §4.4(d) provides that parents and guardians have the right to have their children excused from specific instruction that conflicts with their religious beliefs. In fact, the Court noted that many states, including Pennsylvania, permit broad opt-outs from discrete aspects of the public school curriculum.
The interesting question for Pennsylvania schools will be what type of notice is required about materials used in the classroom. As noted above, the Court required that the Mahmoud plaintiffs receive prior notice of the Storybooks so that they would have an opportunity to remove their children from instruction. Similarly, 22 Pa. Code §4.4 provides that parents and guardians have the right to access information about a school’s curriculum, including instructional materials. Pennsylvania school districts should work with their solicitors to determine what type of notice is provided to parents so that they can effectively exercise their rights under Mahmoud and 22 Pa. Code §4.4(d).
