Effect of ‘Mahmoud’ on Mass. public schools debated

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The U.S. Supreme Court‘s recent decision recognizing parents had the right to opt their children out of a Maryland school district’s LGBTQ+-inclusive curriculum raises questions as to what extent — if any — Massachusetts public schools need to revise their procedures for classwork aimed at fostering inclusivity.

The court in Mahmoud v. Taylor held that parents challenging the Montgomery County Board of Education’s introduction of “LGBTQ+-inclusive” storybooks in the curriculum were entitled to injunctive relief as they were “likely to prevail” on their claims that the board’s denial of both notice of such classwork and “opt outs” when requested violated their First Amendment right to the free exercise of religion.

According to a source in the Attorney General’s Office, Mahmoud does not require changes to Massachusetts laws, and it is business as usual for inclusivity curricula designed to prevent bullying and harassment. Because Mahmoud was a fact-specific case, it has no broader application to Massachusetts public schools, the office said.

Mary L. Bonauto, senior director of civil rights and legal strategies for GLBTQ Legal Advocates & Defenders, concurred.

“School authorities, often with participation and support from local communities, establish the curriculum, manage the schools, ensure safety, and advance positive learning environments,” Bonauto said in an emailed statement. “This decision changes none of that. Parents and schoolteachers and staff have been and can continue to be aligned in supporting education so that all children can learn and grow.”

But other attorneys paint a different picture of what lies ahead for the commonwealth’s public schools in the aftermath of Mahmoud.

Samuel Whiting, general counsel at the Massachusetts Family Institute, said he anticipates there will be a number of parents prepared to use Mahmoud to vindicate their rights.

“We have been in touch with many parents who are certainly ready to wield this decision in whatever way they can to ensure that their rights to instill their religious values into their children without the school’s interference are respected,” he said.

Braintree attorney Felicia S. Vasudevan, who represents school districts in a broad range of matters that include civil rights, expects public schools across the state to be busy revising their policies to conform with the holding in Mahmoud.

Vasudevan said there currently is no uniform policy that Massachusetts public schools follow regarding parents opting their children out of inclusivity curricula. She said some districts offer opt-outs but many do not.

We have been in touch with many parents who are certainly ready to wield this decision in whatever way they can to ensure that their rights to instill their religious values into their children without the school’s interference are respected.

— Samuel Whiting, Massachusetts Family Institute

Vasudevan said that will change.

“Based on the language in the majority opinion in Mahmoud, Massachusetts schools are now going to need to think about having policies and procedures for opt-outs for certain parts of the curriculum,” she said.

Eric S. Baxter, counsel for the plaintiffs in Mahmoud, said if parents can show that the instruction would violate their sincerely held religious beliefs and interfere with their ability to raise their children according to those religious beliefs, “that’s going to be a problem.”

Current state of play

Massachusetts law already guarantees parents the right to opt their children out of sex education courses. Under G.L.c. 71, §32A, school districts “implementing or maintaining curriculum which primarily involves human sexual education or human sexuality issues shall adopt a policy ensuring parental/guardian notification. Such policy shall afford parents or guardians the flexibility to exempt their children from any portion of said curriculum through written notification to the school principal.”

Whiting believes Massachusetts school districts have been misinterpreting the state’s sex education opt-out requirement as not applying to LGBTQ+-inclusive curriculum.

“The Massachusetts sex ed law does say that you can opt out of curriculum that covers human sexuality issues,” Whiting said. “We believe that would cover sexual orientation and gender identity. But the Department of Elementary and Secondary Education and most Massachusetts public schools have disagreed with us.”

The DESE did not respond to a request for comment.

According to Whiting, Mahmoud alters the legal environment dramatically to the benefit of parents.

“The decision recognizes a constitutional right for parents to say, ‘No, I don’t want my child to learn something in public schools that conflicts with my religious beliefs and poses a threat of undermining those beliefs,’” he said.

Mahmoud also effectively overturns longstanding precedent in the 1st Circuit, Whiting said. In 2008, a panel of the 1st U.S. Circuit Court of Appeals in Parker v. Hurley upheld the dismissal of a civil rights lawsuit filed by Lexington parents who objected to same-sex families being discussed in their children’s elementary school classrooms.

In an opinion authored by Judge Sandra L. Lynch, the panel expressed a view of the First Amendment’s free exercise clause that would appear to be out of step with the U.S. Supreme Court’s latest teachings.

“We do not suggest that the school’s choice of books for young students has not deeply offended the plaintiffs’ sincerely held religious beliefs,” Lynch wrote. “If the school system has been insufficiently sensitive to such religious beliefs, the plaintiffs may seek recourse to the normal political processes for change in the town and state. They are not entitled to a federal judicial remedy under the U.S. Constitution.”

According to Vasudevan, many school districts in Massachusetts have for years relied on Parker as authority for not giving parents the right to opt out of certain curriculum.

Baxter pointed out that, like Massachusetts, Maryland law provides parents the right to opt their children out of curriculum dealing with human sexuality and sex education.

“[In Mahmoud,] these books were always presented to the court as ‘inclusivity curriculum.’ That was never in question,” said Baxter, senior counsel for The Becket Fund for Religious Liberty. “And the court said Montgomery County had to let parents opt out of those books. So I don’t see how Massachusetts thinks they can get around that opinion.”

The majority in Mahmoud observed that the Montgomery County school board, while denying opt-outs for LGBTQ+ curriculum, complied with state law by allowing opt-outs from the district’s “Family Life and Human Sexuality” unit of instruction.

The majority further found that the school district’s ability to manage opt-outs mandated by state law with respect to sex education undercut its claims that it could not feasibly manage parental opt-outs with respect to LGBTQ+ curriculum.

“If the Board can structure the ‘Family Life and Human Sexuality’ curriculum to more easily accommodate opt outs, it could structure instruction concerning the ‘LGBTQ+-inclusive’ storybooks similarly,” wrote Justice Samuel A. Alito Jr., author of the majority opinion. “The Board cannot escape its obligation to honor parents’ free exercise rights by deliberately designing its curriculum to make parental opt outs more cumbersome.”

Taste of defeat

Attorney General Andrea J. Campbell joined the Maryland AG and the AGs from 16 other states and the District of Columbia in filing an amicus brief in support of the Montgomery County school board defendants in Mahmoud. The brief urged the court to uphold local discretion to incorporate LGBTQ+-inclusive books in curriculum without opt-outs.

“Local school districts have the right to determine that the use of LGBTQ-inclusive books helps to foster inclusive learning environments for all our students,” Campbell said in announcing the filing of the brief.

The AGs argued that the Montgomery County school board’s refusal to accept parental opt-outs fell well within the discretion of state and local governments to adopt policies necessary to create safe and supportive environments for LGBTQ+ students.

“Incorporating LGBTQ-inclusive books into the language arts curriculum helps students develop respect and tolerance for students who are LGBTQ,” the AGs wrote. “And declining to allow opt-outs reflects a determination that, whatever one’s views about whether being LGBTQ is ‘right’ or ‘wrong,’ students must learn to treat LGBTQ people with respect and dignity — consistent with public education’s role in bringing together ‘diverse and conflicting elements in our society’ and thus furthering ‘fundamental values necessary to the maintenance of a democratic political system.’”

But the court was unpersuaded by Campbell and her colleagues.

“A government burdens the religious exercise of parents when it requires them to submit their children to instruction that poses ‘a very real threat of undermining’ the religious beliefs and practices that the parents wish to instill,” Alito wrote. “And a government cannot condition the benefit of free public education on parents’ acceptance of such instruction.”

In a statement released in response to the court’s decision, Campbell said she was “deeply disappointed.”

“Requiring a parent opt-out for LGBTQ-inclusive curriculum not only sends a harmful message to LGBTQ+ students, who already face higher risks of bullying and discrimination, but also threatens other forms of inclusive education — including Black history and other culturally significant experiences that have shaped our shared democracy,” Campbell said.

No excuses

Whiting said he expects there to be temptation on the part of the DESE and schools to read Mahmoud narrowly and continue to argue that challenged curricula are simply aimed at fostering inclusivity and do not undermine sincerely held religious beliefs.

But he sees Mahmoud as a “sweeping” decision.

This is not an issue to be taken lightly by the public schools. Now that the court has made its opinion clear, even individual teachers, principals, superintendents and administrators may be personally liable.

— Eric S. Baxter, Washington, D.C.

“If they follow that temptation [to interpret Mahmoud] narrowly, then they are going to face legal action and are going to lose based on this decision,” he said. “I don’t think the Supreme Court left any wiggle room to continue this type of instruction without providing notice and the opportunity to opt out.”

Those school districts will also be on the hook for attorneys’ fees, Baxter said.

“This is not an issue to be taken lightly by the public schools. Now that the court has made its opinion clear, even individual teachers, principals, superintendents and administrators may be personally liable,” he warned.

Whiting said a critical aspect of Mahmoud was the majority’s rejection of arguments commonly raised by school boards in refusing to allow parents to opt their children out of inclusivity curriculum.

The Montgomery County board argued permitting opt-outs from the “LGBTQ+-inclusive” storybooks at issue was unworkable given that, when the board allowed opt-outs in the past, it resulted in an “unsustainable” level of student absences.

But Alito called the board’s concern “self-inflicted.”

“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,” Alito wrote. “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. There is no de maximis exception to the Free Exercise Clause.”

Alito likewise swept aside the board’s argument that its no opt-out policy was justified by a need to protect students from “social stigma and isolation.” In that regard, he noted there was no evidence that opt-outs required by state law in the sex education context resulted in stigma and isolation.

“Even if it did, the Board cannot purport to rescue one group of students from stigma and isolation by stigmatizing and isolating another,” Alito wrote. “A classroom environment that is welcoming to all students is something to be commended, but such an environment cannot be achieved through hostility toward the religious beliefs of students and their parents.”

Whiting said he believes Mahmoud also undercuts the argument made by school boards that LGBTQ+ inclusivity instruction is necessary to prevent bullying and harassment in the classroom.

“Schools can instill the idea that you should respect everyone regardless of their traits,” Whiting said. “But that doesn’t mean that schools get to indoctrinate kids on what they should believe on these very sensitive issues of human sexuality and gender identity.”

“This idea that there needs to be some sort of ideological instruction for people to be ‘kind’ just gets everything backwards,” Baxter added.