Curriculum Opt-Out Based on Parents’ Religious Objection
In a 6-3 decision, the U.S. Supreme Court (Court) ruled that a school board’s refusal to allow parents to opt their children out of classroom instruction involving “LGBTQ+ inclusive” storybooks violated the parents’ right to free exercise of religion under the First Amendment of the U.S. Constitution.
During the 2022-2023 school year, the Montgomery Board of Education (Board) in Maryland approved certain storybooks featuring LGBTQ+ characters and themes for use in the K-12 curriculum, in an effort to better represent the diversity of students and families in the district. The Board expected that teachers would incorporate the books as part of literacy instruction in the classroom. Initially, the Board notified parents and allowed them to opt their children out of instruction involving the storybooks if they objected to it. However, for the 2023-2024 school year, the Board reversed its decision and prohibited parents from opting their children out of the instruction. The Board determined the volume of opt-out requests from parents had become unmanageable and disruptive to the classroom environment. The Board was also concerned that permitting some students to leave the classroom while the storybooks were being used would cause other students to experience social stigma and isolation. Parents of elementary school students subsequently filed a lawsuit against the Board, claiming that they should be able to opt their children out of the instruction because their exposure to the books was an unconstitutional burden on the parents’ free exercise of religion, specifically their right to direct the religious upbringing of their children.
The Court examined the storybooks at issue and found they conveyed “normative” messages to young children about sex and gender that were hostile to their parents’ religious beliefs. The Court also noted that discussion guides provided to the teachers encouraged them to reinforce the books’ viewpoints and “reprimand” children who disagreed. Relying on a past decision in which the Court ruled a state could not compel Amish parents to send their children to high school (Wisconsin v. Yoder, 406 U.S. 205 (1972)), the Court held that the use of the storybooks in the curriculum, combined with the Board’s refusal to allow parents to opt out, was an unconstitutional burden on the parents’ free exercise of religion. Therefore, the parents were entitled to notice and the opportunity to opt-out of instruction involving the books.
In its dissent, the Court’s liberal minority stated that students’ mere exposure to the storybooks in class did not give rise to a free exercise claim. The minority warned that requiring schools to provide advance notice and the opportunity to opt out of every material that could conflict with parents’ religious beliefs will “impose impossible administrative burdens on schools” and will have “serious chilling effects on public school curricula.” The minority argued that the majority’s holding could mean that schools would need to provide notice and opt-out to parents who have religious objections to books expressing implicit support for women’s rights, interfaith marriage, consumption of meat, and other topics.
Following this decision, districts will need to carefully weigh the risks of introducing or maintaining the use of instructional materials that conflict with parents’ religious beliefs without giving parents the opportunity to opt out of the instruction. Specific concerns and objections to material used in a school’s curriculum should be reviewed on a case-by-case basis in accordance with school board policy and in consultation with the board attorney.