The Supreme Court on Public School Opt-out Provisions

On Friday, June 27, the Supreme Court handed down its decision in Mahmoud v. Taylor, a case out of Montgomery County, Maryland, over whether parents have a right to opt their children out of public education materials that promote beliefs in contradiction with those the parents wish to teach their children. The Court decided 6-3 in favor of the parents.

I believe the Court’s decision makes this the ideal time to announce a new resource we will soon have available, as well: Later this month, we are publishing a review of the opt-out provisions in the laws of all fifty States, which I’ll outline below.

Mahmoud v. Taylor Background & Decision

In 2022, Montgomery County Public Schools adopted a set of books on LGBTQ+ topics to be incorporated into their elementary school curriculum. At first, parents were given notice and a chance to opt their children out if they didn’t want their children exposed to these materials.

Soon, however, so many parents were opting out that the school board decided to cancel the opt-out option. Administrators decided the process was just too burdensome, and they worried that the departure of so many students from the lessons would send a negative signal to the students who remained.

Parents objected, protested, and attended school board meetings to complain, but the school board did not relent. They simply would not be giving parents the right to opt out.

Writing for the majority, Justice Alito quoted earlier precedent, saying “‘[W]e have long recognized the rights of parents to direct “the religious upbringing” of their children.’ Espinoza v. Montana Dept. of Revenue, 591 U.S. 464, 486 (2020)(quoting Yoder, 406 U.S., at 213-214).” He went on to say that “for many people of faith across the country, there are few religious acts more important than the religious education of their children” and that “for many… the religious education of their children is not merely a preferred practice but rather a religious obligation.”

Certain lower courts have held that a parent’s right to send their child to a parochial or other private school if they choose solves this problem. If you don’t like what the public schools teach, take your child elsewhere.

But the majority opinion says that is not good enough:

“Due to financial and other constraints, however, many parents ‘have no choice but to send their children to a public school.’ As a result, the right of parents ‘to direct the religious upbringing of their’ children would be an empty promise if it did not follow those children into the public school classroom.” (citation omitted)

Then, the Court considered the standard of review, holding that to justify limiting the parents’ rights the schools’ policy must “survive strict scrutiny.”

This is a significant improvement over the Court’s holding in Troxell v. Granville (2ooo), which found parental rights to be “fundamental,” but mysteriously refrained from calling for ‘strict scrutiny,” the standard applied to every other fundamental right in our country. This case restores that high standard, at least regarding parental rights to direct the religious upbringing of their children.

Unfortunately, it does not do away with the need to secure a Parental Rights Amendment to the U.S. Constitution. The proposed Amendment will apply the same high standard to parental rights in every area, not just in religious upbringing, and will protect our rights from changes by a future Supreme Court decision.

Opt-Out in All Fifty States

Now, about that opt-out report:

I am pleased to announce the upcoming release of a publication, made possible through the hard work of legal interns here at the Parental Rights Foundation under the oversight of Will Estrada and then myself, that outlines the laws of all fifty States pertaining to opting your children out of certain classes, courses, or materials in the public schools.

We’re just putting the finishing touches on that report now, and it will be live on our website at ParentalRightsFoundation.org the week of July 21!

Conclusion

The Court’s decision on Friday is a tremendous victory for parents wishing to raise their children according to their own religious beliefs. Just how it affects State laws and public-school policies remains to be seen (and may ultimately vary by location). But I believe that respecting parents will prove good for children and good for our country.

As we celebrate our nation’s independence this weekend, let’s celebrate this victory for our family freedoms, as well!