They’ve been labeled domestic terrorists. They’ve been silenced and escorted out of school board meetings. They’ve been lied to by school administrators hiding their children’s gender identities. And American parents are fed up. Battle-weary and still stinging from Biden’s whole-of-government approach to disenfranchising parents from their own children, “parental rights” may well have been the silent referenda in last November’s election. American culture has birthed a type of collectivist, “they belong to all of us” mentality that has parents across the country desperate for clarification on where, in fact, their right to parent their children and direct their education begins and ends. That clarity finally is on the way.
On April 22, the Supreme Court will hear oral arguments in Mahmoud v. Taylor. On that day, the justices will consider whether the Montgomery County Board of Education, representing the largest school district in Maryland, burdened the free exercise rights of a group of religious parents when it removed parental notice and opt-outs for instruction on sexuality and gender identity for children as young as three and four years old.
Montgomery County’s curriculum included references to gay pride parades, gender transitions, pronoun preferences, and classroom discussions on concepts such as “intersex,” “drag queen,” and “non-binary” gender identities. The School Board admitted that the included materials were chosen to disrupt “cisnormativity” and “either/or thinking” among young students, and even the Board’s own principals objected to the curriculum as they felt it was “not appropriate for the intended age group,” “sham[ed]” students with contrary opinions, and was “dismissive of religious beliefs.”
While it once permitted curricular opt out for parents, the Board of Education inexplicably reversed course two years later, eliminating not only the right of opt-out, but even the notification to parents of when the material would be presented.
This case’s resolution should be a simple one. As far back as 1925 in Pierce v. Society of Sisters, the Supreme Court struck down a state law that “unreasonably interfere[d] with the liberty interest of parents and guardians to direct the upbringing and education of children under their control,” adding that “the child is not the mere creature of the State.”
In 1972, in Wisconsin v. Yoder, the Supreme Court struck down a state law requiring children to attend school beyond the eighth grade, holding that it violated the Free Exercise Clause of the First Amendment by interfering with the parents’ constitutional right to direct the religious upbringing of their children.
A century of Supreme Court jurisprudence has affirmed and reaffirmed that the parental right is—as the Court recognized in Troxel v. Granville in 2000—among the oldest of the fundamental liberty interests ever recognized by the Court.
But there are categories within education in which parents have no cognizable legal interest. And it’s these categories on which Montgomery County has relied as reason for why the parents’ claims should fail. In Vernonia School District v. Acton, for example, the Supreme Court in 1995 noted that during the school day, the state’s power is “custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults.” Because of this, categories of school administration and yes, even curriculum are generally beyond the realm of parents’ constitutional challenges.
This is, unless those categories implicate and violate religious liberty rights. Unless, for example, curriculum is both compulsory and instructive on issues that contradicts what all civilizations, and virtually all faith traditions for all time have recognized as unchanging theological and scientific reality—the nature of males and females as immutably, biologically distinct and unchanging. Then, the calculus changes altogether. The Mahmoud Petitioners filed suit not challenging the curriculum, but arguing that compelling their elementary-age children to participate in the instruction contrary to their parents’ religious convictions violated the Free Exercise Clause.
But the U.S. Court of Appeals for the Fourth Circuit found for the School Board by narrowly construing the Yoder case. So narrowly, in fact, that the court seemed to say nothing short of a school forcing students “to change their religious beliefs or conduct” could possibly satisfy the parents’ Free Exercise challenge.
That’s preposterous.
As the dissent noted in the Fourth Circuit, “burdening the exercise of religion is not limited to direct coercion . . . [religious liberty] may be infringed by the denial of or placing of conditions upon a benefit or privilege.” The Montgomery County School Board’s no-opt-out policy forced parents, the dissent wrote, “to either live out their faith or forego the public benefit.”
Children are not community property. They are not wards of the state. And parental rights are not only primary, but they are also pre-political—extant well before the American education system was born. The family unit is both the basis for any flourishing society, and as old as time itself. And the right of parents to direct the religious upbringing of their children is one of the Supreme Court’s most longstanding, constitutionally recognized rights.
On Tuesday, let us hope the Supreme Court recognizes just that—and treats any infringement thereon with the skepticism it so richly deserves.
Sarah Parshall Perry is the Vice President and Legal Fellow at Defending Education. She is a former Senior Counsel to the Assistant Secretary for Civil Rights at the U.S. Department of Education.
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