Policy implications of Mahmoud v. Taylor

Note: The article below is intended to help boards navigate the new legal landscape for parental notification and opt-outs in light of Mahmoud v. Taylor, and to share CSBA’s preliminary analysis of the policy implications of the decision. CSBA will publish an initial set of updates to impacted sample policies in the coming weeks.

Background

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.

Key takeaways

• Mahmoud v. Taylor held that the First Amendment required a school district to provide parents/guardians with notice and the ability to opt their children out of instruction involving LGBTQ+ storybooks. While the Court did not hold that the district was prohibited from teaching the storybooks at issue, it held that the district needed to provide parents/guardians with notice of the materials to be taught and the right to opt out.
• School districts and county offices of education (COEs) should review Board Policy 6144 – Controversial Issues, which includes generic opt-out language.
• It is likely that CSBA’s sample Board Policy/Administrative Regulation 6142.1 – Sexual Health and HIV/AIDS Prevention Instruction, sample Board Policy/Administrative Regulation 6142.8 – Comprehensive Health Education, and sample Board Policy/Administrative Regulation 6141.2 – Recognition of Religious Beliefs and Customs will need to be updated. CSBA is currently reviewing these policies for potential updates.
• Almost two dozen other CSBA sample policies may be impacted. CSBA will continue to analyze Mahmoud to determine whether these sample policies and/or others may be impacted.
• Mahmoud does not specify how districts and COEs are to implement the requirement to provide notice and permit opt-outs. In consultation with legal counsel, districts and COEs may want to consider providing notice and offering opt-outs similar to those provisions provided by state law for comprehensive sexual health education and HIV prevention education.

Full details

1. Overview of Mahmoud

Mahmoud v. Taylor involves five LGBTQ+ inclusive storybooks approved by the Montgomery County Board of Education (board) for children in kindergarten through fifth grade 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.

Under preexisting 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 — which create a threat, or an objective danger, of undermining a parent’s religious beliefs impose a burden on that right. If there is a threat, or objective danger, of undermining a parent’s religious beliefs, the court will apply strict scrutiny, the highest level of judicial review for claims of violations of the Free Exercise clause.

To reach this standard, the Court relied on Yoder v. Wisconsin which held that Amish students could not be compelled to attend school through age 16 because it would “expos[e] Amish children to worldly influences in terms of attitudes, goals, and values contrary to [their] beliefs.” Importantly, the Court did not provide a specific test for determining when there is a “threat” or “objective danger” of undermining religious beliefs. (Yoder, which Justice Sonia Sotomayor’s dissent argued is not applicable to Mahmoud because its fact pattern is distinct, stated that the threat and objective danger of undermining the plaintiff’s religious beliefs in Yoder was that the Amish children had to “either abandon belief and be assimilated into society at large, or be forced to migrate to some other and more tolerant region,” which is not mentioned in the majority opinion here and offers little help with interpreting it.) However, the Court noted that whether a threat or objective danger of undermining the parents’ religious beliefs exists will be dependent on the facts of each case.

Here, the Court found that the lack of notice and inability to opt out created a threat of undermining the parents’ religious beliefs, thus burdening the parents’ free exercise rights. The Court wrote: “these books impose upon children a set of values and beliefs that are ‘hostile’ to their parents’ religious beliefs . . . [a]nd exert upon children a psychological ‘pressure to conform’ to their specific viewpoints.” The Court then determined whether the storybooks and the lack of an opt out option were nonetheless constitutional under the strict scrutiny standard. Policies that burden first amendment rights may nevertheless be deemed constitutional if they pass strict scrutiny, which requires a demonstration that the policy “advances interests of the highest order” and is narrowly tailored to achieve those interests.

The Court found that the board’s interest in maintaining a safe school environment that was conducive to learning was not sufficient to meet this standard, and that the policy was not narrowly tailored because it did not provide an opt-out provision. Thus, while the Court did not hold that the district was prohibited from teaching the storybooks at issue, it held that it needed to provide parents with notice of the materials to be taught and the right to opt out.

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.

1. Initial policy implications

Under California law, districts and COEs 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 districts and COEs. Additionally, CSBA has identified several sample policies that will likely need to be revised in light of Mahmoud. Three of these policies are described below.

1. Sample Board Policy 6144 – Controversial Issues

CSBA’s sample Board Policy 6144 – Controversial Issues (BP 6144) recognizes that a local educational agency’s (LEAs) 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. For this reason, BP 6144 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.” While this language does not explicitly mention religious beliefs as a legal basis for opting out, it is covered by the phrase “[w]hen required by law” as Mahmoud is now the law of the land.

It is recommended that districts and COEs 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, districts and COEs 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 districts and COEs from discriminating on the basis of protected characteristics such as sexual orientation and gender identity. Mahmoud does not impact these mandates or prohibitions.

1. Sample Board Policy/Administrative Regulation 6142.1 – Sexual Health and HIV/AIDS Prevention Instruction and sample Board Policy/Administrative Regulation 6142.8 – Comprehensive Health Education

Education Code Section 51934 requires that districts and COEs provide comprehensive sexual health education and HIV prevention instruction at least once in middle/junior high school and at least once in high school. However, 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. Yet 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 Board Policy/Administrative Regulation 6142.1 – Sexual Health and HIV/AIDS Prevention Instruction (BP/AR 6142.1) and sample Board Policy/Administrative Regulation 6142.8 – Comprehensive Health Education (BP/AR 6142.8) reflect these requirements.

In light of Mahmoud, BP/AR 6142.1 and BP/AR 6142.8 (and possibly Education Code Section 51932) will likely need to be revised to modify the limitations on opt-outs based on religious beliefs. CSBA has begun the process to update these BP/ARs.

1. Sample Board Policy/Administrative Regulation 6141.2 – Recognition of Religious Beliefs and Customs

CSBA’s sample Board Policy/Administrative Regulation 6141.2 – Recognition of Religious Beliefs and Customs (BP/AR 6141.2) focuses on teaching about religion, with direction to do so objectively on the basis that religion is an integral part of understanding society, culture, literature, and the arts. It states that instruction should highlight common religious principles and foster respect for diverse faiths and customs, while strictly prohibiting religious indoctrination and any preference for one religious viewpoint. BP/AR 6141.2 requires staff members to be sensitive to students’ religious development and treat all beliefs, including nonbelief, with fairness. It currently does not address the issue of notice and/or opt-out as articulated in Mahmoud. As a result, BP/AR 6142.1 will 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.

1. Other policy implications

In addition to the aforementioned three policies, 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. CSBA has identified the following 22 sample policies that may be affected; this list is meant to be illustrative rather than comprehensive.

While CSBA will continue to analyze Mahmoud, further clarity (e.g., state legislation, another court decision such as by the Ninth Circuit Court of Appeals, etc.) may be needed before determining whether updating any of these 22 sample policies is necessary.

Second, Mahmoud does not specify how districts and COEs are to implement the requirement to provide notice and to permit opt-outs. For instance, how often must notice be given and what instructional content must be noticed? Can a deadline be set for when opt-outs must be submitted? Is it a requirement for an opt-out request to be submitted in writing? These questions — and others — need answers from legislatures or the courts in order to craft sample policies accordingly.

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. Under that opt-out practice, districts and COEs provide parents/guardians with an annual notice that includes (among other things) the following information:

• That parents/guardians have a right to excuse their child from comprehensive sexual health or HIV prevention education, provided they submit their request in writing
• Whether comprehensive sexual health or HIV prevention education will be taught by district/COE personnel or outside consultants and, if the district/COE chooses to use outside consultants or guest speakers for this purpose, the following information:
  • The date of the instruction
  • The name of the organization or affiliation of each guest speaker
• If the arrangements for instruction by outside consultants or guest speakers are made after the beginning of the school year, the superintendent or designee shall notify parents/guardians by mail or another commonly used method of notification no fewer than 14 days before the instruction is given
• That students who do opt out will be given an alternative educational activity

Typically, districts and COEs include this information as part of their annual parent/guardian notification.

For districts or COEs interested in learning more, please refer to sample Board Policy/Administrative Regulation 6142.1 – Sexual Health and HIV/AIDS Prevention Instruction and sample Board Policy/Administrative Regulation 6142.8 – Comprehensive Health Education.

Important note regarding sample policies

It is important to note that CSBA’s policies are “samples” and not “models.” That is, they are designed to serve as starting points for policy development for districts and COEs, which are expected to review and, within the confines of the law, customize them to meet local needs and context. Moreover, once CSBA updates a sample policy, it may become out of date as laws change and new court opinions are published. Additionally, it is recommended that districts and COEs consult CSBA’s District and County Office of Education Legal Services or other legal counsel as part of policy development. While CSBA’s sample policies do go through a legal review process, they do not constitute legal advice as they are not provided as part of an attorney-client relationship.