Case Background and Precedent
Religious freedom-based challenges to educational policies and actions have gained significant traction in recent years. Cases like Kennedy v. Bremerton School District, 597 US 507 (2022), concerning a football coach’s right to pray on the field, and Carson v. Makin, 596 US 767 (2022), requiring Maine to extend tuition assistance to students attending religious schools, were harbingers of June 27th’s school/religious freedom Supreme Court decision, Mahmoud v. Taylor, 606 US ___, No. 24-297 (Jun. 27, 2025). In short, the Supreme Court is favoring the protection of individual religious freedoms under the First Amendment, including within the context of public education.
In Mahmoud, a group of parents sued the Montgomery County Board of Education in Maryland (the “Board of Education”). The parents asserted that because of their religious objections to storybooks used in kindergarten through fifth grade with LGBTQ+ storylines, the Board of Education had to provide notice of use of the books in the classroom and an opportunity to opt their children out of that instruction. In a 6-3 decision authored by Justice Samuel Alito, the Supreme Court ruled that the parents were entitled to an injunction requiring the Board of Education to provide notice concerning the instruction and allow opt-outs.
The Court’s opinion includes an in-depth review of cases involving religious freedom challenges to school matters. From a 1943 case in which the Court precluded enforcement of a policy requiring students salute the U.S. flag even with religious objection, to a 1972 case permitting Amish parents to withhold their children from school notwithstanding Wisconsin’s compulsory school attendance law, school policies and practices that intersect with religious views have been regular Court visitors.
The rulings from those precedents focus on whether a policy “‘substantially interfere[es] with the religious development of a child.’” Mahmoud, Slip Op. at 21 (internal citation omitted). If a policy does substantially interfere, it must survive strict constitutional scrutiny—meaning it must advance a compelling government interest and be narrowly tailored to advance it. If the policy does not meet that test, it is unconstitutional. The Court in Mahmoud found the policy of promoting teaching the LGBTQ+ texts at issue in the case to K-5 students substantially interfered with the parents’ right to direct religious development, and without notice of instruction and an opt-out option, the policy did not survive strict scrutiny. As a result, the Supreme Court ruled that the Board of Education likely violated the parents’ free exercise of religion right to direct the religious upbringing of their children.[1]
Facts Specific to the Case Drove the Opinion
Of import for school districts, the Mahmoud opinion clearly provides that the Court’s decision was the result of a “fact intensive” inquiry. The reason this matters is because school districts contemplating how to respond in light of the decision should carefully evaluate the specific situation in their district and compare it to factors that seemed to influence the court. Among those factors:
- The books were used with children who were young, impressionable and “likely to accept without question any moral messages conveyed by their teachers’ instruction,” Mahmoud, Slip Op. at 22;
- The books in question, according to the opinion, conveyed values and beliefs that conflicted with the sincerely held religious viewpoint of the parents—a religious viewpoint that the Court indicated is also held by many Americans. The books, according to the opinion, went beyond setting expectations concerning respect for all and instead endorsed a point of view that unquestionably implicated religious beliefs;
- The texts were presented as part of instruction as opposed to, for example, simply available in a library. Teachers were provided professional development concerning presenting the content as content that should be accepted, which expressly contradicted the parents’ religious instruction of their elementary school children.
The majority opinion rejected a number of arguments by the Board of Education and endorsed by a dissent by Justice Sonia Sotomayor. The dissent asserted that the books were designed to endorse mutual respect, but the majority found that they conveyed a particular viewpoint and noted that teachers were instructed to reprimand students who expressed disagreement. Similarly, the majority rejected arguments that parents could avoid the religious burden by enrolling their children in private school or home schooling them. Given the cost of private education and the breadth of the public benefit of public education, the Court found that not allowing an opt-out of instruction on the texts effectively conditioned obtaining a public benefit (a free public school education) on accepting a significant burden upon religious belief. Finally, the Court rejected Board of Education arguments that notice and opt-out requirements were too burdensome. In fact, the Board had at one time allowed an opt-out but after it became too cumbersome for building administrators and teachers, it rescinded it. The Court found that the existence of opt-outs for other types of instruction such as human sexuality indicated that the Board was overstating the administrative burden. In sum the administrative burden was not significant enough in light of Court’s determination that the texts substantially burdened the parents’ right to direct the religious upbringing of their children.
Districts May Need to Make Changes—or They May Not
There is no question that the Mahmoud decision is a major Constitutional decision impacting school districts. However, districts should carefully evaluate whether the decision really impacts their curriculum, policies, and practices, and if so, to what extent.
In some districts, there may not be instruction of young children that clearly conflicts with religious beliefs requiring notice of an opportunity to opt out. Schools should still be able to instruct on inclusion and acceptance; the Court took issue with what it described as indoctrination of children and the requirement that the children accept a point of view. Additionally, districts that have instruction that celebrates individuals, including LGBTQ+ persons for older children, may not be required to create a notice and opt-out process.
Districts may, though, wish to evaluate curriculum under the Mahmoud lens and attempt to create a practical notice and opt-out process for curriculum that has a likelihood of conflicting with religious beliefs. Similarly, districts should review any policies concerning religious accommodations or curriculum that may be implicated by the decision and consider whether revisions are warranted.
Challenges and Questions Lie Ahead
In Kennedy, Justice Sotomayor also dissented and wrote: “Today’s opinion provides little in the way of answers; the Court simply sets the stage for future legal challenges, which will inevitably follow.” Kennedy, 597 US at 574. That sentiment arguably equally applies to Mahmoud. Justice Sotomayor expressed significant concern that the decision will have a chilling effect on curricula and that schools will have to deal with countless parents asserting veto power over decisions and curriculum. If Justice Sotomayor’s prediction is accurate, it also may lead to courts having to address curriculum disputes much more regularly.
For example, most districts occasionally receive communication that indicates the parents object to a wide swath of curriculum including, for example, teaching of certain economic policies and principles or histories of underrepresented persons. Districts can anticipate those letters to be framed as religious objections, and districts will have to evaluate whether there is a true burden on religion. The Court’s opinion, in our view, gives room to assert that not every purported religious objection to curriculum requires notice and opt-out, but the Court’s line-drawing is not a model of clarity.
Additionally, developing notice and opt-out processes for districts that seek to create them will be difficult. While some areas of instruction—like human sexuality—already have well-established opt-out options, expanding these requirements to other areas would make it much more difficult for schools to manage. Providing notice about curriculum and managing additional opt-outs will certainly be cumbersome at best and near impossible at worst.
School districts have wrestled with challenging application of Constitutional principles before, and they will have to do so now in evaluation and application of Mahmoud. But school districts also find ways to manage the challenging intersection of individual rights and their responsibility to educate and embrace the learning and development of their students. No doubt districts will find ways to do so here.
As always, the Miller Nash education team is here to help—whether to talk through emerging issues or provide guidance as this complex situation continues to unfold.
[1] Because the case arose out of a preliminary injunction proceeding, the Court assessed whether the parents’ were “likely to succeed” if the case went to a final judgment. As a practical matter, the Supreme Court’s determination effectively creates a final decision.
This article is provided for informational purposes only—it does not constitute legal advice and does not create an attorney-client relationship between the firm and the reader. Readers should consult legal counsel before taking action relating to the subject matter of this article.
