Supreme Court Addresses the Right of Parents to Opt-Out of Curriculum for Religious Reasons
Are school districts required to allow parents to opt out of LGBTQ+ curriculum based on religious objections? On June 27, 2025, the United States Supreme Court shed some light on this question by a granting a preliminary injunction in Mahmoud v. Taylor, 606 U.S. ___ (2025). In this case, parents challenged a Maryland school district’s decision not to allow parents to opt out of LGBTQ+-inclusive instruction. Although the Court’s preliminary injunction does not decide the issue, it offers school districts some insight into how the courts will address religious opt out policies in the future. It also raises questions regarding the scope of parental rights, if any, to opt out of other curriculum that conflicts with their sincerely held religious beliefs.
The case arose from the Montgomery County Board of Education’s decision to introduce “LGBTQ+-inclusive Storybooks” into Montgomery County Public Schools’ (“the District’s”) K–5 English Language Arts program as supplemental curriculum. The LGBTQ+ Storybooks, which addressed topics such as same-sex relationships and gender identity, were selected through an instructional framework emphasizing diversity and representation. The District initially provided advanced notice to parents when teachers would use the LGBTQ+ Storybooks and allowed parents to “opt out” of related curriculum. However, the District later reversed this “opt-out” policy, claiming that “individual principals and teachers could not accommodate the growing number of opt out requests without causing significant disruptions to the classroom environment.”
The plaintiffs, who are parents of District students from various religious traditions, filed suit, asserting that the revised policy substantially burdened their right to direct the religious upbringing of their children. Specifically, the parents claimed that contents of the LGBTQ+ Storybooks contradicted religious beliefs and practices that they wanted to instill in their children. Thus, the parents alleged that by refusing to allow opt outs of curriculum utilizing the LGBTQ-Storybooks, the District infringed on their religious and parental rights to raise their children in accordance with their religious beliefs. The District argued that the LGBTQ+ Storybooks did not impose any values on students but instead exposed students to ideas about marriage and gender identity as part of lessons in mutual respect. The District also argued that allowing for opt-outs would have created an extreme administrative burden by requiring the District to track when the LGBTQ+ Storybooks would be raised in class and provide alternative lessons to all opt out students. Further, the District claimed that eliminating the opt out was necessary to maintain a safe school environment conducive to learning for all students.
The federal district court denied the parents’ request for a preliminary injunction, and the Fourth Circuit Court of Appeal affirmed the district court decision. The Supreme Court, in a 6-3 decision authored by Justice Samuel Alito, reversed these decisions. By granting the preliminary injunction, the Court concluded that the parents were likely to succeed on their claim that the District’s actions unconstitutionally burdened their religious exercises. In its discussion, the Court focused on how the LGBTQ+ Storybooks presented specific issues. Although the District claimed the LGBTQ+ Books merely exposed students to LGBTQ+ ideas that some may find objectionable, the Court concluded that the LGBTQ+ Storybooks conveyed a “normative message” that supported particular viewpoints about same-sex marriage and gender. Specifically, the Court found that the LGBTQ+ Storybooks presented same-sex weddings as occasions for celebration and deemed the belief that gender is bound with biological sex as “hurtful.” According to the Court, the LGBTQ+ Storybooks presented these ideas from a moral perspective in ways that younger students may interpret as authoritative or normative, particularly when reinforced by teacher-led discussion. The Court also pointed to teacher guidance materials that encouraged specific responses to student dissent that the Court found may inhibit the expression of contrary religious viewpoints. Thus, the Court concluded that the LGBTQ+ Storybooks prevented parents from raising their children to believe gender is inextricably bound with biological sex or hold “traditional” views on marriage.
According to the Court, by requiring students to participate in the LGBTQ+ Storybook curriculum, the District pressured students to reject beliefs that contradicted these messages. Because the Court found that the LGBTQ+ Storybooks represented a normative message on the topics of marriage and gender identity, it found that requiring students to be exposed to the LGBTQ+ Storybooks posed “‘a very real threat of undermining’ the religious beliefs and practices that the parents wish to instill.” Thus, the Court found that the District’s decision to prohibit parents from opting out of LGBTQ+ Storybook curriculum infringed on the parents’ right to the free exercise of their religion.
The Court relied primarily on Wisconsin v. Yoder (1972) 406 U.S. 205, which held that the government may not compel school attendance when doing so substantially interferes with parents’ ability to raise their children in accordance with their religious beliefs. It held that the First Amendment protects parents’ rights to direct the religious upbringing of their children and that government policies that “substantially interfere” with this right may trigger strict constitutional scrutiny. The Court concluded that using the Storybooks, combined with the absence of notice and the denial of opt-outs, amounted to such interference. The Court emphasized that the relevant constitutional inquiry is not whether a curriculum merely exposes students to ideas that conflict with religious teachings but whether the instruction imposes an “objective danger” to a parent’s free exercise of religion.
In determining the appropriate standard of review when instruction poses “a very real threat of undermining’ the religious beliefs and practices that the parents wish to instill,” the Court held that strict scrutiny applied. “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.’” It reasoned that, like the compulsory education policy in Yoder, the challenged policy imposed a direct burden on religious exercise that general educational interests could not justify. The District asserted a compelling interest in inclusive education and classroom management, but the Court found that interest unpersuasive because the District allowed opt-outs in other curricular areas, such as health education. The Court did not view the policy as narrowly tailored to serve a compelling interest, and thus, it concluded the policy likely violated the Free Exercise Clause.
Justice Sonia Sotomayor authored the dissenting opinion. She criticized the majority’s decision that, as she characterized it, “[e]xposing students to the ‘message’ that LGBTQ people exist, and that their loved ones may celebrate their marriages and life events … is enough to trigger the most demanding form of judicial scrutiny.” She also argued that the majority’s opinion “offers no limiting principle,” asserting that this holding has implications far beyond the use of LGBTQ+-inclusive books, such as books that express “implicit support for” consumption of meat, immodest dress, and “countless other topics [that] may conflict with sincerely held religious beliefs ….” She argued that, under the majority’s holding, these types of materials would also require notice and the opportunity for parents to opt out.
By granting a preliminary injunction, the Court did not issue a final decision on the matters at issue in the Mahmoud case, concluding only that the parents are likely to succeed in their free exercise claims and sending the case back to the trial court for consideration in light of the Court’s opinion. Still, the Court’s decision is a significant development in the law governing parental rights, curriculum design, and religious accommodation in public education, and the reach of the decision beyond LGBTQ+ inclusive instruction will need to be addressed in the lower courts. But on the narrow issue of LGBTQ+ instruction, the Court suggests that when LGBTQ+ curriculum supports, or presents a “normative message,” about certain viewpoints related to marriage and/or gender identity, it may substantially interfere with a parent’s ability to convey religious values to their children. In these situations, the Court’s preliminary injunction suggests schools must implement an opt out process to allow parents to remove their children from the subject curriculum.
In considering the potential application of this case in California, it is notable that California’s 2011 Senate Bill 48, also referred to as the Fair, Accurate, Inclusive, Respectful (FAIR) Act, amended Education Code section 51204.5 to require that instruction in social sciences include a study of the role and contributions of lesbian, gay, bisexual, and transgender Americans, persons with disabilities, and members of other ethnic and cultural groups, to the development of California and the United States. The FAIR Act does not include a provision mandating that parents be permitted to opt out of the curriculum based upon their closely held beliefs. However, the California Health Youth Act (CHYA), Education Code section 51930-51939 – which became law in 2019, and requires school districts throughout the state to provide students with comprehensive sexual health education, along with information about HIV prevention, at least once in high school and once in middle school – specifically allows parents to opt out of comprehensive sexual health education. CHYA also permits local districts to choose which curriculum and instructional resources (including textbooks and worksheets) they will use to teach comprehensive sexual health education to their students.
AALRR will continue to monitor the Mahmoud case and other cases addressing curriculum and religious objections to help schools navigate the balance between supporting an inclusive environment, ensuring the efficient operations of the school environment, and respecting the religious beliefs of all parents and students in accordance with the First Amendment of the U.S. Constitution.
Special thanks to our law clerk, Elyse Capelli, for her assistance with this alert.
This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.
© 2025 Atkinson, Andelson, Loya, Ruud & Romo
Attorneys
- Partner858-485-9526
- Partner925-227-9200
- Partner949-453-4260
- Partner562-653-3200