Mahmoud v. Taylor: Momentous Win for Parental Rights

On June 27, 2025, the U.S. Supreme Court recognized the constitutional right of parents to shield their children from government propaganda hostile to the parents’ religious beliefs. That sounds like something that should have been obvious, but the decision in Mahmoud v. Taylor represents a crucially important clarification of the constitutional Free Exercise rights of parents under the First Amendment. And the decision was not even unanimous: Three Justices on the Court actually would have rejected the parents’ claims and forced the parents either to have their children indoctrinated contrary to their beliefs – or to flee the public school system, at their own expense.

The ACLJ had filed a friend-of-the-court brief in the case defending parental rights. We’ve previously written about the case and our filing, see here and here, as well as the tremendous victory for parents in the case.

Recall that this case involved an effort by the Montgomery County, Maryland, school system to indoctrinate children from kindergarten through fifth grade. The rules the Court would embrace in this case would apply to any matter on which parents held one view while the “official” view of the school was to the contrary – say, on abortion, overpopulation, climate change, or any other hot topic impacting religious beliefs. It was therefore crucial that the Supreme Court get it right. Thankfully, it did! Here is a deeper dive into some of the more esoteric but important elements of this judicial victory.

1. Terminology–Justice Alito’s majority opinion is apparently the first and only Supreme Court opinion so far to use the phrase “government schools” when referring to public schools: “Government schools, like all government institutions, may not place unconstitutional burdens on religious exercise” (p. 17). What’s in a name? Calling the institutions “government schools” is important. This terminology underscores that constitutional rights that apply against the state and federal government apply here as well. As the Court put it (quoting the famous Tinker case): “[T]he right to free exercise, like other First Amendment rights, is not ‘shed . . . at the schoolhouse gate’” (pp. 16–17). There is no “public school” exception to the Constitution.

Furthermore, the term “public schools” conjures an image of participation of the community at large, like “public opinion” or “public streets,” when in fact school boards can ignore community outcry – as they did in this case – when dictating policy. Here, the school system refused even to agree to let parents know about the brainwashing books being read to the young students, and – having encountered a large number of objecting parents – revoked a prior agreement to let parents opt their children out of the instruction. Too many were objecting! It was classic iron-fisted government imposition of its preferred views. And it violated the right to the Free Exercise of religion.

2. Constitutional Test –Parental objections to government school propaganda are not constrained by the anemic Smith test. Translation, please! Well, in the 1970s, the Supreme Court had adopted a very strong test – strict scrutiny – for review of government burdens on religious liberty. Having that test applied meant that the government would be very hard-pressed to justify any infringement on religious freedom. But in the 1990 decision of Employment Division v. Smith, the Supreme Court largely repudiated that strong test, replacing it with a much weaker standard that seemed almost to erase the Free Exercise Clause from the First Amendment. We recently urged the Supreme Court in an amicus brief in Catholic Charities Bureau (CCB) v. Wisconsin LIRC to discard the flaccid Smith test altogether. And in that CCB case, as we wrote previously, the Court in its favorable ruling did not use, or even mention, the Smith test.

In its Mahmoud ruling, the Supreme Court also declined to use the Smith test. Instead, the Court applied . . . strict scrutiny! The Court explained that Smith itself did not purport to overrule pre-Smith cases that applied strict scrutiny. One of those cases was Wisconsin v. Yoder, in which the Court ruled that it violated the Free Exercise rights of Amish parents to force them to subject their children to a government-run education that profoundly undermined their Amish beliefs. The Mahmoud decision embraced and reaffirmed Yoder: “Yoder is an important precedent of this Court, and it cannot be breezily dismissed as a special exception granted to one particular religious minority” (p. 30). And Yoder survives despite Smith: “When the burden imposed is of the same character as that imposed in Yoder, we need not ask whether the law at issue is neutral or generally applicable before proceeding to strict scrutiny” (p. 36).

This is doctrinally one of the most important parts of the Mahmoud ruling. The Court makes it crystal clear that government school efforts to propagandize children contrary to parental beliefs are unconstitutional unless the government can satisfy strict scrutiny – i.e., show a compelling interest and prove that there is no less restrictive alternative (like an opt-out). This is a far more valuable test for parents than the Smith test. Under Smith, it would be a defense for the school to say it was indoctrinating everyone equally – i.e., to argue the law is “neutral” as to religion and “generally applicable” to all students. The Mahmoud/Yoder test is significantly more protective of parental rights.

3. Applicability to Classroom Instruction –In Yoder, the Court ruled that the Amish could keep their children out of the government high schools. In Tinker, the Court ruled that students retained their rights during the school day (there, wearing symbolic armbands). And now in Mahmoud, the Court has held that parental Free Exercise rights apply to school instruction: “[T]he right of parents ‘to direct the religious upbringing of their’ children would be an empty promise if it did not follow those children into the public school classroom” (p. 19). This does not mean parents get to control the public school curricula. As the Court explained (p. 40):

It must be emphasized that what the parents seek here is not the right to micromanage the public school curriculum, but rather to have their children opt out of a particular educational requirement that burdens their well-established right “to direct ‘the religious upbringing’ of their children.”

This means schools do not have free rein to brainwash children without either notifying the parents or allowing the parents to opt their children out.

4. Paying Twice for Education –The Mahmoud Court also recognized the fundamental injustice of making parents pay (through taxes) for public schools while being forced either to swallow objectionable instruction or buy their way out of the system (p. 34):

It is both insulting and legally unsound to tell parents that they must abstain from public education in order to raise their children in their religious faiths, when alternatives can be prohibitively expensive and they already contribute to financing the public schools.

The Supreme Court’s recognition of this dilemma is a major step forward. How can it be just for the government to fail to accommodate genuine parental concerns and instead impose its preferred educational program, while at the same time compelling parents to pay for and send their children to the government schools – or buy their way out? As the Court said (pp. 1–2):

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. . . . And a government cannot condition the benefit of free public education on parents’ acceptance of such instruction.

The obvious answer to the dilemma is school choice: Have the money follow the student. That way, parents can select the educational program that is best for their children, rather than being forced into a one-size-fits-all government program.

5. Dangerous Dissent –Finally, it is worth mentioning that three members of the Supreme Court dissented. In an opinion by Justice Sotomayor, joined by Justices Kagan and Jackson, the dissenters rejected the idea that “mere exposure” (p. 12) of children to objectionable material was any big deal. Apparently, these Justices have forgotten about the movie rating system. The whole point of rating movies “R” or “NC-17” is to protect children from “mere exposure” to inappropriate material. While Justice Thomas, in a separate concurrence, saw through the Montgomery County schools’ pursuit of “ideological conformity” (p. 8), the dissenters found nothing to see here: “It is possible, of course, that such instruction may introduce students to concepts or views objectionable to their faiths. Being ‘merely made acquainted with’ these themes, however, does not give rise to a cognizable free exercise burden” (p. 13).

Fortunately, the Supreme Court majority did not buy the dissent’s pooh-poohing of the indoctrination (pp. 23–24):

[O]ther Americans wish to present a different moral message to their children. And their ability to present that message is undermined when the exact opposite message is positively reinforced in the public school classroom at a very young age. (Emphasis added.)

Indeed, the majority minced no words in describing the dissent (p. 31):

We reject this chilling vision of the power of the state to strip away the critical right of parents to guide the religious development of their children. Yoder and Barnette [the flag salute case] embody a very different view of religious liberty, one that comports with the fundamental values of the American people.

Mahmoud v. Taylor represents a major victory for parental rights. We were delighted to have played a part in this achievement!