On June 27, 2025, the United States Supreme Court expanded the rights of parents to opt their children out of certain instruction within the school day under the Free Exercise Clause of the First Amendment. See Mahmoud v. Taylor, 145 S. Ct. 2332 (2025).
The case began when a Maryland school district introduced books that included lesbian, gay, bisexual, transgender, or other non-heteronormative sexual orientations into the curriculum of grades ranging from kindergarten through fifth grade. The parents who brought the action are of the Ukrainian Orthodox, Catholic, and Muslim faith. Initially, the school policy allowed the parents to excuse their children from classroom instruction that included these books. Soon after, however, the district rescinded the policy. The parents filed a lawsuit asking the court for a preliminary injunction to prohibit the district from forcing their children to participate in the instruction.
In making their claim, the parents in Mahmoud argued that refusing to allow them to opt their children out of the LGBTQ+ instruction violated their constitutional right to the free exercise of religion. The Court ruled 6-3 in favor of a preliminary injunction entitling the parents to notice of the LBBTQ+ materials and opportunity to opt their children out of instruction involving the contested books while the case proceeds.
Writing for the majority, Justice Alito emphasized that the storybooks were not merely neutral exposures to diverse ideas but instead conveyed normative messages—portraying same-sex marriage as a universally positive institution and promoting gender fluidity in a manner that pressured young children to accept views that conflicted with their families’ beliefs.
The Court relied heavily on an earlier case, Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526, 32 L.Ed.2d 15 (1972), in which the Supreme Court held that Wisconsin’s compulsory education law posed “a very real threat of undermining” the religious upbringing of Amish children, and thereby violated the Free Exercise Clause of the First Amendment. The Court found that the school board’s actions in Mahmoud imposed a similar constitutional burden.
Planning for All Opt-Out Requests
Districts should remember that the Mahmoud decision was based on a fact-specific situation involving LGBTQ+ instructional materials. However, Districts should also be prepared to process all religious-based opt-out requests and know when a Mahmoud notice might be necessary. To this end, districts should consider the following action steps:
- Conduct an internal audit by a committee of qualified individuals (e.g., teachers, library specialist, etc.) of curriculum and instruction involving controversial topics including sexuality and gender nonconformance. In the audit, consider the context of the exposure including:
a. Is it required reading in the classroom, part of the classroom library, or part of a daily lesson?
b. Is the content neutral or possibly hostile to any specific religious beliefs or practices?
c. What are the ages of children involved (e.g., elementary, middle, or high school?)
- Review district policies and procedures to determine if the district has an opt-out policy for certain subjects or controversial issues.
- Develop a policy which may include:
a. Requirements for initiating opt-out request:
i. Written request
ii. Specific information about religious beliefs and nexus between instruction and undue burden on religious belief.
b. Develop process for review of requests:
i. Who will review the request? Will it be a committee of relevant, knowledgeable staff?
ii. Who will make the final decision?
iii. Will there be an appeal process?
- Consult with legal counsel in preparing and responding to opt-out requests.
Conclusion
We will continue to monitor the case and opt-out provisions in regard to school districts and provide updates to our clients on all relevant matters. In addition, the attorneys at Renning, Lewis & Lacy, s.c., are available to consult further on the issues discussed in this update.
