Education Law Notes  

In a 6-3 decision with the justices split along familiar ideological lines, the United States Supreme Court held on Friday, June 27, in Mahmoud v. Taylor, 606 U.S. ___ (2025) (Case No. 24-297), that public school curriculum or instruction that “substantially interfere[s] with the religious development of [a] child or pose[s] a very real threat of undermining the religious beliefs and practices the parent wishes to instill in the child” potentially violates the First Amendment’s so-called “Free Exercise Clause,” a provision of the United States Constitution that makes government action that prohibits the free exercise of religion unconstitutional.  As a result of this decision, parents in Connecticut and across the country will have expanded powers to exempt their children from curriculum or instruction on religious grounds.

Mahmoud’s Facts

In many ways the Mahmoud case is a touchstone for the political and cultural battles that have played out across the country in public schools in recent years.  Montgomery County Maryland is home to over a million residents and according to a recent survey is the most religiously diverse school district in the United States.  In October of 2022, the Montgomery County Board of Education (the “Board”) approved the use of a group of so-called “LGBTQ-Inclusive Storybooks" (the "Storybooks") for use as part of the pre-K through 12th grade language arts curriculum within the District.  In particular, the Board’s decision to incorporate the Storybooks into the curriculum was motivated by a desire to ensure that some of the books used in the District’s schools were representative of LGBTQ students and families within the District. 

The Mahmoud lawsuit specifically concerns five Storybooks that were approved for use with students in kindergarten through the fifth grade.  The Supreme Court’s majority and dissenting opinions characterize the Storybooks differently, but generally speaking the Storybooks are designed to introduce children to LGBTQ supportive themes.  For instance:

Prince & Knight tells the story of a coming-of-age prince whose parents wish to match him with a kind and worthy bride.  After meeting with many ladies, the prince tells his parents that he is looking for something different in a partner by his side.  Later in the book, the prince falls into the embrace of a knight after the two finish battling a fearsome dragon.  After the knight takes off his helmet, the prince and knight gaze into each other’s eyes, and their hearts begin to race.  The whole kingdom later applauds on the two men’s wedding day.

Similarly, another one of the Storybooks addresses gender-identity issues.  As described by the Court’s opinion:

Born Ready: The True Story of a Boy Named Penelope tells the story of Penelope, a child who is initially treated as a girl. The story is told from the perspective of Penelope, who at one point says “If they’d all stop and listen, I’d tell them about me. Inside I’m a boy.”  When Penelope’s mother later assures her that “‘If you feel like a boy, that’s okay,’” Penelope responds: “‘No, Mama, I don’t feel like a boy. I AM a boy.’” Penelope tells her mother:

“‘I love you, Mama, but I don’t want to be you. I want to be Papa. I don’t want tomorrow to come because tomorrow I’ll look like you. Please help me, Mama. Help me to be a boy.’”

Penelope’s mother then agrees that she is a boy, and Penelope says: "'For the first time, my insides don’t feel like fire. They feel like warm, golden love.'”  Later, after the family starts treating Penelope as a boy, Penelope’s brother complains that “‘You can’t become a boy. You have to be born one.’” This comment draws a rebuke from Penelope’s mother: “‘Not everything needs to make sense. This is about love.’”

Teachers were encouraged to incorporate and use the Storybooks into the curriculum in the same manner as other approved texts.  The Storybooks were left on bookshelves for students to find themselves but could also be selected for classroom read aloud and recommended to specific students.  According to the Court’s record, District officials instructed teachers that they were not free to decline to use the Storybooks in their classrooms.  Moreover, as part of a professional development workshop during the summer before the Storybooks were introduced into classrooms, teachers were given a guidance document for responding to student and parent inquiries that sought to support LGBTQ inclusiveness:

For example, if a student asserts that two men cannot get married, the guidance document encouraged teachers to respond by saying: “When people are adults they can get married. Two men who love each other can decide they want to get married.” If a student claims that a character “can’t be a boy if he was born a girl,” teachers were encouraged to respond: “That comment is hurtful.”  And if a student asks “[w]hat’s transgender?”, it was recommended that teachers explain: “When we’re born, people make a guess about our gender and label us ‘boy’ or ‘girl’ based on our body parts. Sometimes they’re right and sometimes they’re wrong.”

At the start of the 2022-23 school year, the District provided parents with notice of the Storybooks inclusion in the language arts curriculum and the chance for parents to opt their children out of instruction with the Storybooks through an individual accommodation process that enabled children to engage in alternative instruction.  However, in March of 2023 the Board elected to revoke its notice and opt-out practices with respect to the Storybooks because of the disruption a growing number of opt-outs were having on the classroom environment.

In response to this decision, more than 1,000 parents signed a petition seeking to restore the District’s notice and opt-out practices.  When the Board refused to reconsider, a number of District parents – including devout Muslim, Catholic and Ukrainian Orthodox parents – sued for a court ordered injunction blocking the Board from including the Storybooks in the District’s mandatory curriculum without parental opt-out rights.  The parents asserted that the mandatory use of the Storybooks in the District’s language arts curriculum without prior parental notice and the opportunity to opt out infringed upon their First Amendment right to freely exercise religion.

The Decision

At its core, Mahmoud largely turns on a dispute regarding the case’s underlying facts.  While the conservative majority opinion characterizes the Board’s use of the Storybooks as a form of normative, pro-LGBTQ “coercion” directed at very young children, the dissenting opinion, authored by Justice Sotomayor, joined by two other justices, instead describes the use of the Storybooks as nothing more than an effort by the Board to “expose” children to the reality that LGBTQ people exist.    

Within this framework, the majority opinion largely turns on an expanded reading of a prior 1972 decision, Wisconsin v. Yoder, 406 U.S. 205 (1972), in which the Supreme Court exempted the parents of Amish children from a Wisconsin compulsory school-attendance statute that required Wisconsin parents to send their children to public or private school until at least the age of sixteen.  The Supreme Court found in Yoder that “attendance at high school, public or private, was [so] contrary to the Amish religion and way of life . . .” that it could “ultimately result in the destruction of the Old Order Amish church community as it exists in the United States . . .”  Id. at 209, 212.  As a result, Wisconsin’s compulsory school-attendance law “compel[ed] [the Amish], under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs.”  Id. at 218.  Based on these factual findings the Court found that enforcement of the Wisconsin law would “gravely endanger” the Amish’s Free Exercise rights and that the interest the State of Wisconsin had in ensuring that all children were educated up to the age of sixteen was not compelling enough to overcome the danger posed to the Amish’s right to freely exercise their religion.  Id. at 235-236.

Citing to Yoder, the majority opinion characterizes the “coercive” nature of the Storybooks as exactly the “kind of objective danger to the free exercise of religion that the First Amendment was designed to prevent.”  Mahmoud, at 27, citing Yoder, at 218.  From there the Court goes on to find that the Board’s interest in avoiding the disruption caused by extensive opt-outs from instruction is not sufficient to override the interests of parents in directing the religious upbringing of their children, and that as such the Board’s refusal to provide parents with notice and the opportunity to opt their children out of the Storybooks did not survive strict scrutiny.

What Does the Decision Mean?

The Court’s opinion in Mahmoud emphasizes that the question of whether curriculum or instruction “substantially interferes with the religious development of a child” will always be a fact-intensive inquiry.  As the Court acknowledges, the age of students and the manner in which such curriculum or instruction is presented are important considerations in determining substantial interference.

Moreover, it is important to note that ultimately Mahmoud is really a case about whether the Board’s use of the Storybooks without advance parental notice and the opportunity to opt-out was Constitutionally permissible.  As much as the case revolves around the Board’s use of the Storybooks and whether they were coercive or just a means of exposing children to LGBTQ people, the ultimate issue for Constitutional purposes was not whether the Board could elect to incorporate the Storybooks into District curriculum and instruction at all, but rather whether the Board could incorporate the Storybooks into District curriculum and instruction without prior parental notice and opt-out opportunities.

With this being said, Mahmoud is a very important case that will certainly have a significant impact on educational law and policy.  While Connecticut currently has a handful of statutes allowing for student exemptions from instruction on topics like HIV/AIDS, family life education, animal dissection and firearm safety, Mahmoud likely opens the door to a broad new category for religious exemptions.  Accordingly, prior to the start of the 2025-26 school year public schools should consider working with their counsel to develop protocols for giving parents advance notice of materials that may impact parents’ free exercise of religion along with an opt-out process.  School administrators should also consider how opt-out requests will be processed and evaluated – for example, should parental affidavits summarizing the grounds of “substantially interference with religious development” be utilized?  Schools will also need to determine how exactly students who have opted-out of instruction will be accommodated.  Will students be assigned an alternative assignment for credit?  Will students go to an open study hall?

As time goes on, the practical impact of the Mahmoud decision on school operations will certainly become clearer, but for now school leaders should be aware that the Supreme Court has opened the door to a new avenue for challenging curriculum and instruction and plan accordingly.