State
Policy implications of Supreme Court decision in Mahmoud v. Taylor
Upholds right of parents to opt their children out of LGBTQ+ storybooks on religious grounds
On June 27, the U.S. Supreme Court released its opinion in Mahmoud v. Taylor, which addressed whether parents/guardians must be provided with notice and allowed to opt their children out of instruction regarding “LGBTQ+ storybooks” on the grounds it violates their First Amendment rights by substantially interfering with their children’s religious development. In addition to setting new legal precedent, the opinion has significant policy implications.

This article offers an initial assessment of those implications and some related observations to help boards navigate the new legal landscape for parental notification and opt-outs in light of Mahmoud v. Taylor. CSBA will publish an initial set of updates to impacted sample policies soon, if not available by the time of this publication.

A teacher helps a student with her work in a library.
Overview of Mahmoud
Mahmoud v. Taylor involves five LGBTQ+ inclusive storybooks approved by the Montgomery County Board of Education for children in grades K-5 in Maryland’s Montgomery County Public School District. The books were selected because the board felt its English language curriculum failed to represent many students and families in the county.

The board directed individual schools to teach the books the same way it would teach any other English language curriculum — “to assist with mastering reading concepts” and informed schools in the district that there was no planned instruction on gender or sexual orientation. The materials included a book about a child whose favorite uncle marries his male fiancé and a story about a prince and a knight, both men, who fall in love and marry. The district initially notified parents when the storybooks would be taught and allowed parents to opt their children out of the lessons.

After approximately a year, however, the notification and opt-out options were removed. Parents of various religious beliefs sued the district seeking an injunction that would allow them to receive notice of such curriculum and the ability to opt their children out. Both lower courts denied the requested relief, and the Supreme Court granted review. The Court, in a 6-3 opinion, held the plaintiffs were likely to succeed on their claim and were entitled to a preliminary injunction. The Court, however, did not hold that the district was prohibited from teaching the storybooks at issue.

Under pre-existing Court precedent, the First Amendment free exercise clause provides parents and guardians (collectively referred to as “parents” in the Court’s opinion) the right to direct their children’s religious upbringing. In Mahmoud, the Court found that curriculum materials — or the policy that requires their inclusion — create a threat, or an objective danger, of undermining a parent’s religious beliefs impose a burden on that right.

The Court directed the lower court to grant a preliminary injunction and the lower court will be required to determine whether to issue a permanent injunction. However, given the facts of this case, it is likely that instruction involving LGBTQ+ content in all LEAs will require notice and the ability to opt out. The holding may also apply to other types of instructional content and materials. California law creates additional complications as certain statutorily required instructional content may also allegedly undermine the religious beliefs of parents.

Initial policy implications
Under California law, local educational agencies are required to provide notice and the ability to opt out of certain instructional content only in very limited circumstances. Mahmoud appears to significantly expand the type of instructional content for which notice and the ability to opt out is required. However, at least one of CSBA’s sample policies contains language that is generally aligned with Mahmoud and which may be helpful to LEAs. Additionally, CSBA has identified several sample policies that will likely need to be revised in light of Mahmoud.

Sample BP 6144 – Controversial Issues

This sample policy recognizes that an LEA’s program may sometimes include instruction related to controversial issues that arouse strong reactions based on personal values and beliefs, political philosophy, culture, religion, or other influences. It contains generic language that applies when it is legally required to permit parents/guardians to opt their child out of specified instruction. Specifically, BP 6144 states: “When required by law, . . . parents/guardians shall be notified prior to instruction that they may request in writing that their child be excused from the instruction. Students whose parents/guardians decline such instruction may be offered an alternative activity of similar educational value.”

LEAs should review their adopted version of BP 6144 and — in light of local needs and considerations and in consultation with CSBA’s District and County Office of Education Legal Services or other legal counsel — determine whether revisions are necessary. In doing so, LEAs should be aware that California law, including the FAIR Act, mandates that educational instruction include the contributions of various groups, including LGBTQ+ individuals. Additionally, state law prohibits LEAs from discriminating on the basis of protected characteristics such as sexual orientation and gender identity. Mahmoud does not impact these mandates or prohibitions.

Other sample policies that are likely to be affected by the court decision are BP/Administrative Regulation (AR) 6142.1 – Sexual Health and HIV/AIDS Prevention Instruction and BP/AR 6142.8 – Comprehensive Health Education. While Education Code sections 51240 and 51938 permit parents/guardians to opt their children out of such instruction upon written request, including on the basis of religious beliefs, the ability to opt out is limited by Education Code Section 51932, which does not permit opt-outs of (i) instruction regarding human reproductive organs that do not involve comprehensive sexual health education or HIV prevention education (e.g., biology), or (ii) instruction involving gender, gender identity, gender expression, sexual orientation, discrimination, harassment, bullying, intimidation, relationships, or family that does not discuss human reproductive organs and their functions.

CSBA’s sample BP/AR 6141.2 – Recognition of Religious Beliefs and Customs will also likely need to be revised to reference the need for notice and the need to permit opt-outs based on religious beliefs. CSBA has begun that process.

Other policy implications

Mahmoud is likely to impact other policies as well, although the exact nature of that impact is not yet clear. First, the breadth of Mahmoud is unknown because its holding does not seem limited to the LGBTQ+ nature of the instruction. As a result, the opinion could be interpreted to mean that the requirement to provide notice and permit opt-outs could potentially be required for any instructional content if it interferes with the right of parents/guardians to direct the religious upbringing of their children. Second, Mahmoud does not specify how LEAs are to implement the requirement to provide notice and to permit opt-outs.

Given this lack of clear direction, districts and COEs may want to consider modeling their opt-out practice on how it is done under state law for comprehensive sexual health education and HIV prevention education. Typically, LEAs include this information as part of their annual parent/guardian notification.

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