The First Amendment to the U.S. Constitution prohibits “an establishment of religion” while guaranteeing “the free exercise thereof.” These two themes—freedom from religion and freedom of religion—are commonly known as the Establishment Clause and the Free Exercise Clause. In numerous cases over the past century, the U.S. Supreme Court has provided guidance on what constitutes an establishment of religion in the public school setting, and when school districts are required to accommodate the free exercise rights of students and staff.
For many years, the Court took an expansive view of the Establishment Clause in school-related matters, applying a test focusing heavily on appearances. If a reasonable person perceived that a practice or event reflected a district’s endorsement of a particular religion or religion in general, that typically would doom it to failure under the Court’s Establishment Clause jurisprudence. At the same time, the Court took a narrow view of free exercise rights in school, especially when religious expression by students or staff gave rise to the perception of district endorsement.
Over the past few decades, however, as more conservative appointees have joined the Court, it has grown more receptive to religious activities in the school setting. The perception test has now been explicitly rejected in favor of a coercion test that, in the Court majority’s view, aligns more closely to what the founders considered an establishment of religion when the First Amendment was adopted. Readers may recall the Court’s decision, a couple of terms ago, involving the high school football coach who prayed at the 50-yard line after home games, accompanied by many of his players and even some from opposing teams. The district banned the practice because it looked like a school-sponsored prayer meeting, but the Court found that the coach’s First Amendment rights took precedence because no one was coerced to participate. The decision in that case was in line with other recent rulings giving primacy to the Free Exercise Clause and deemphasizing the Establishment Clause.
This past June, on the final day of its term, the U.S. Supreme Court issued its latest pronouncement on the subject, this time in a case involving the free exercise rights of parents. In Mahmoud v. Taylor, the Court addressed parents’ religious objections to readings from “LBGTQ+-inclusive” storybooks to their elementary school-age children. The case arose from a clash between parents from diverse religious backgrounds and school officials in Montgomery County, Maryland, over the school district’s refusal to allow opt-outs from lessons where these stories were presented. In an opinion for the six-member majority authored by Justice Samuel Alito, the Court held that when a district’s curricular choices interfere with parents’ religious upbringing of their children, the district owes a duty of reasonable accommodation—an opt-out, in this case—which cannot be denied absent a compelling justification that wasn’t shown there. The Court further ordered the district to notify the objecting parents in advance whenever one of the books or any similar book was going to be used. Justice Sonia Sotomayor, joined by two other Justices from the Court’s liberal wing, filed a vigorous dissenting opinion.
It’s important to note that this decision was entered at the preliminary injunction stage of the proceedings. Technically, all the Court ruled is that the parents stand a good enough chance of prevailing at the end of the case that they’re entitled to this interim relief while the litigation goes forward in the lower courts. Still, the Court majority has tipped its hand on where it stands on the ultimate issue in the case, and announced a rule that, as a practical matter, binds all school districts in the nation effective immediately.
Many judicial decisions are written in dense legalese that only lawyers and judges can understand. This one is quite readable, and board members and administrators are encouraged to review both the majority and dissenting opinions, which sharply articulate the opposing positions on the Court. There may be many in the New Jersey public school community who agree with the dissenters’ views, but this article will focus on the majority opinion, as it now represents controlling law.
Much of the debate in this case centered on whether the stories, and especially their manner of presentation, were intended merely to expose students to non-traditional versions of sexuality to foster tolerance and respect, or to coerce them to conform to a mindset about what versions of sexuality are acceptable. The Court majority observed that the books in this case were “unmistakably normative[,] . . . clearly designed to present certain values and beliefs as things to be celebrated and certain contrary values and beliefs as things to be rejected.” One of the books included a discussion guide suggesting that “at any point in our lives, we can choose to identify with one gender, multiple genders, or neither gender,” and asked children, “What pronouns fit you best?”
To facilitate classroom discussion, the district suggested how teachers should respond to students’ questions. For example, if a student asked, “what is 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.” Teachers were encouraged to “disrupt [students’] either/or thinking.” The Court found that the lessons were clearly intended to inculcate values and viewpoints that directly conflicted with the religious beliefs of the Muslim and Christian parents who complained that the instruction interfered with their children’s religious upbringing.
The district argued that allowing opt-outs wasn’t feasible, but the Court wasn’t persuaded. For starters, the district allowed opt-outs for various other course offerings and could not provide a convincing explanation why it could not be done here. The district’s fallback position was that allowing too many opt-outs would cause significant disruption to the classroom environment, and permitting some students to exit the classroom would expose other students to social stigma and isolation. To this, the Court responded: “The Board is doubtless aware of the presence in Montgomery County of substantial religious communities whose members hold traditional views on marriage, sex and gender. When it comes to instruction that would burden the religious exercise of parents, the Board cannot escape its obligations under the Free Exercise Clause by crafting a curriculum that is so burdensome that a substantial number of parents elect to opt out.”
The majority relied heavily on the Court’s 1972 decision in Wisconsin v. Yoder exempting Amish children from the state’s compulsory attendance laws after eighth grade for religious reasons. Yoder generally recognized a parental right “to direct the religious upbringing of their children.” That right, the Court held, deserves protection from laws posing “a very real threat of undermining” the religious beliefs and practices that parents wish to instill in their children.
For over half a century since Yoder was decided, most federal courts viewed it as a narrow ruling limited to the unique circumstances of the Amish community. In case after case, litigants who have attempted to rely on Yoder for more broad-based challenges to public school curriculum decisions have almost always been unsuccessful. But the Court majority in Mahmoud read Yoder much differently. In their framing, Yoder was by no means limited to its facts but recognized a wide-ranging right of parents to exercise discretion over what their children are taught if it undermines parents’ religious upbringing of their children, unless school officials have persuasive reasons compelling enough to overcome the parents’ objections.
The Court announced a new legal analysis that lower courts must undertake when parents request to opt their children out of lessons. Until Mahmoud, the prevailing view in the federal courts was that if school officials merely enforce rules of general applicability in a neutral manner without targeting religion for unfavorable treatment, any incidental burden on the free exercise of religion is legally immaterial. The Court, in Mahmoud, rejected that position, at least when compulsory school attendance is involved. In that case, rejection of parents’ religious opt-out requests must survive “strict scrutiny,” a daunting legal hurdle requiring demonstration of a compelling state interest, and a narrowly tailored approach no broader than necessary to serve it.
There are some important nuances to the Court’s decision that should guide districts in complying with this ruling. First, the Court made clear that nothing in its decision limits what school districts can teach. It was only addressing the right of religious parents to have their children excused from certain lessons. Second, the parents in this case were able to articulate specific reasons why the lessons interfered with the religious upbringing of their children. Third, the Court emphasized a distinction between lessons targeted at highly impressionable elementary school students, and those taught at the high school level where students may be mature enough to decide for themselves what viewpoints they wish to embrace. Fourth, the Court distinguished between coursework presented in a neutral manner in the academic study of a subject, and pressuring students to conform to a particular viewpoint. (Not unlike the distinction between a comparative religion course and religious instruction). Fifth, the Court did not grant parents carte blanche to insist on any accommodation they desired, nor did the majority foreclose the possibility that in some cases there may be no feasible accommodation. It simply held that on the facts of this case, the district had no persuasive reason to deny the opt-out accommodation at issue.
The Supreme Court typically paints with a broad brush, establishing general rules for the lower courts to apply to specific facts in future cases. So, until our own federal appeals court governing New Jersey applies Mahmoud’s holding to different scenarios that we suspect will arise in the near future, there is much that is unclear about the impact of the Court’s decision. There are, nevertheless, several take-aways that New Jersey school districts should seriously consider.
Nothing in the Court’s decision imposes any limitations on what school districts can teach, what messaging is permissible regarding LGBTQ+ issues, or what celebrations are legally ok (e.g. “Pride Month”). Nor does the decision empower students to engage in “harassment, intimidation or bullying” (HIB) toward fellow students whose sexuality they may find religiously offensive, or in any way address districts’ legal obligations to accommodate transgender students. The only issue before the Court was whether parents should be able to opt their children out of lessons they believe interfere with their children’s religious upbringing.
Even so, there remain unresolved legal issues around the Trump Administration’s campaign against “radical ideology,” the boundary line between HIB and speech protected by the First Amendment, and the extent of legally required accommodation for transgender students under Title IX and the New Jersey Law Against Discrimination that are the subject of ongoing litigation and beyond the scope of this article.
Before the ink was dry on the Mahmoud decision, some advocacy groups were already advising their followers that the religious opt-out right extends to non-curricular activities like use of transgender students’ preferred names or pronouns, or sharing bathroom or locker rooms with transgender students. The holding in Mahmoud did not go that far. Still, even before Mahmoud, students had a First Amendment right to refrain from participation in certain activities that offended their religious beliefs. And even the New Jersey Department of Education’s “Transgender Guidance for School Districts,” encourages corresponding accommodation for non-transgender students who, for whatever reason, may feel uncomfortable sharing intimate spaces with transgender schoolmates: “Non-transgender students should also be afforded the option to use a private facility, such as a unisex facility or the nurse’s restroom, should they feel uncomfortable.” It remains to be seen how the lower federal courts factor Mahmoud into their analysis of these issues going forward.
Do not reflexively dismiss religious opt-out requests. Develop a centralized process for evaluating whether, and how, to accommodate them. Classroom teachers and building-level administrators are ill-equipped to make these fact-sensitive, legally complex determinations, especially when there may be post-Mahmoud lower court decisions spelling out clearer guidance on how it’s to be applied to particular situations. Districts should coordinate with their employee professional associations and involve designated central office personnel with specialized training, and legal counsel if necessary, so that rank-and-file staff don’t have to play lawyer.
Until the lower federal courts provide more clarity in future cases, school administrators should treat religious opt-out requests in a manner similar to disability accommodation requests. Start with an “interactive discussion” about what the real concern is, and attempt to reach an outcome that’s administratively feasible. Apply the “what’s the big deal” test in determining to grant or deny a particular request.
The Court’s opinion placed no guardrails on what sort of lessons could be targeted for this accommodation. As the dissenting opinion argued, “[n]ext to go could be teaching on evolution, the work of female scientist Marie Curie, or the history of vaccines.” There’s at least a plausible argument: State-mandated curricula necessary for graduation should be treated differently than discretionary material like the storybooks in Mahmoud, but it’s speculative at this point whether the courts will recognize such a distinction.
The Court’s holding in Mahmoud extends only to sincere religious objections. The federal courts have recognized at least some permissible methods to test sincerity, but they are quite limited. For example, if a parents’ claimed religious objection conflicts with other positions they have taken on the same issue, that could call their sincerity into question. At a minimum, districts have the right to request parents to explain, specifically, how the challenged lesson interferes with their ability to control their child’s religious upbringing. The parents in Mahmoud were able to do so, and districts may ask objecting parents to do the same. It is not the district’s place to judge the validity of those objections, even if school officials have a different view of what that religion requires, but it is not unreasonable to ask parents for an explanation before proceeding further.
The Court in Mahmoud addressed the free exercise rights of parents, not students. The implication in Mahmoud is that at least for very young children their parents’ positions take precedence. But what about middle or high school students who may be mature enough to think more freely for themselves? Even the majority in Mahmoud conceded that opt-out requests for older students may be treated more skeptically because they are less impressionable than the elementary school students before the Court in that case. And what indirect implications might Mahmoud’s solicitous approach to parents’ religious rights have for issues like notification of their children’s transgender status? It’s too soon to tell, but districts should remain in contact with their legal counsel for updates as the courts grapple with these questions.
Once parents have requested notice of lessons they find religiously objectionable, districts should develop a protocol for informing them when those lessons are going to be taught. One problem faced by the district in Mahmoud was that the storybook readings in question were not shoe-horned into a single course, like sex education, that students could easily opt-out of without causing disruption throughout the school day. If you anticipate numerous religious objections to particular lessons, consider presenting them in one particular course or period of the day, so opt-outs and advance notice do not pose the logistical problem that Montgomery County created for itself. This highlights the value of open lines of communication with local clergy who can provide helpful orientation to the religious beliefs and obligations of the communities they represent, and a “heads up” to aspects of the curriculum where you can expect religious opt-out requests so you can plan accordingly.
Title 18A requires districts to infuse the curriculum with instruction on the contributions of various groups that have historically been ignored in textbooks and other curricular material. N.J.S.A. 18A:35-4.36a goes even further, requiring districts to “highlight and promote diversity, including economic diversity, equity, inclusion, tolerance, and belonging in connection with gender and sexual orientation, race and ethnicity, disabilities, and religious tolerance[.]” (Emphasis added.) In light of Mahmoud, districts should be especially mindful of the boundary between exposure and indoctrination. It is one thing to “highlight” to students the existence of others who may be different from themselves and to foster respect and welcomeness for all in the school community. It is quite another to “promote” a particular mindset or viewpoint on whether certain versions of sexuality or lifestyle choices are to be celebrated, especially with impressionable elementary school students who may feel pressured to conform. To avoid the same problems the district faced in Mahmoud, this distinction should be made clear to the teaching staff. Also, since many teachers have strongly held opinions on all sides of this issue, which they are entitled to as private citizens, they should be reminded that while on duty they cannot use their classroom as soapboxes to advocate their own personal viewpoints on these matters.
Mahmoud is a significant shift in the legal landscape, and uncertainties remain about the outer limits of the rights recognized by the Court. But with careful planning and up-to-date legal advice, districts should be able to implement this new ruling with sensitivity to parents’ rights and a minimum of disruption to the school day.
*This article reflects the views of the author but is not intended to provide legal advice. Readers are encouraged to seek guidance from their school districts’ own legal counsel.
David B. Rubin is of counsel to the Busch Law Group.
