The Right To Opt Out of Objectionable Teaching in School: ACLJ Files Major Supreme Court Brief To Defend Parental Rights and Religious Liberty

Does it burden parental rights for someone else to teach the parents’ children something the parents don’t want their children taught? The answer should be an obvious yes, but a federal appeals court reached the opposite conclusion. Fortunately, the U.S. Supreme Court has granted review of the case, Mahmoud v. Taylor. Here at the ACLJ, we’ve filed an amicus brief directly challenging the lower court’s basic error.

Imagine the scenario:

“Sam, what are you doing?”

Sam: “I’m teaching the Smith kids some bad words and showing them some dirty pictures.”

“What do their parents think about that?”

Sam: “I’m not telling the parents, so I’m not giving the parents a chance to say no. But it’s okay because a federal appeals court ruled that, so long as I don’t coerce the children to do or believe anything, there’s no burden on the parents.”

Crazy, you say? Yet that is exactly what the U.S. Court of Appeals for the Fourth Circuit held in Mahmoud v. Taylor. Parents found out that the public school system was teaching children things that directly contradicted the faith and morals the parents sought to instill in their children. So the parents sued, demanding (1) a right to know what the school was teaching and (2) a right to opt their children out of objectionable lessons.

The parents lost in federal trial court and appealed, asserting a federal constitutional right under the Free Exercise of Religion Clause to direct the upbringing of their children. The appeals court said the parents failed to show any burden on that right! I quote:

[E]xposure to objectionable material alone will not ordinarily pose a burden on an individual’s free exercise of religion because it lacks the requisite compulsion or pressure on an individual’s religious beliefs or conduct. . . . [T]he Parents point to their children’s young ages and impressionability [and] we are mindful that the [material is] intended for use with elementary-age children—including children in pre-Kindergarten and Head Start (younger than five years’ old). . . . That said, we cannot simply assume the contents . . . will in the future cross the line and pressure students to change their views or act contrary to their faith.

Pause for a minute and let that sink in. A school’s curriculum, says the court, does not pressure students to think or act differently. Here was our response in our amicus brief:

A dose of common sense is in order here. Education is a complete waste unless it actually, or likely, changes the students who are taught. . . . [T]he purpose of schooling is to produce an educated student – someone who is different in terms of scope of knowledge, power to reason, capacity to identify sources of information, etc.

This is not news. As the Supreme Court explained decades ago, “the objectives of public education [include] the ‘inculca[tion of] fundamental values necessary to the maintenance of a democratic political system.’” Bethel Sch. Dist. v. Fraser (1986) (emphasis added). We elaborated in our amicus brief:

[T]he central part of schooling is the teaching, the curriculum, precisely what is at issue here. To label that mere “exposure . . to material,” as the Fourth Circuit did, is profoundly to undersell education. This is not a case about students being merely “exposed” to a classmate’s words, appearance, or lifestyle. Nor is this a case about mere “exposure” to a teacher’s purple hair or unconventional attire. Rather, this case focuses on the very instruction being given to students – that is, what the students are being told to learn.

Further:

To hold to the contrary would be to regard as absurd a family’s preference for a college education at an institution of higher ed that supports the family’s values. And if such choices make sense for college-age children, they are all the more vital when it comes to youth. As Justice Brennan wrote for this Court, “The government’s activities in this area can have a magnified impact on impressionable young minds,” School Dist. v. Ball (1985).

In other words, either education has an impact on students or it doesn’t. If it doesn’t, then a lot of people are wasting a lot of time and money! But if it does – and obviously it does – then teaching children notions that undermine or conflict with what their parents teach them plainly “burdens” the parents’ efforts to raise their children as they see fit.

It is no answer to say the parents still get to present their side of the story to their children. As the Supreme Court already recognized (and we quote, from Wallace v. Jaffree (1985)):

That a child is offered an alternative may reduce the constraint; it does not eliminate the operation of influence by the school in matters sacred to conscience and outside the school’s domain. The law of imitation operates, and non-conformity is not an outstanding characteristic of children.

Even if the “exposure” were brief, it still would matter. As the Supreme Court has already recognized, having a child hear obscene language can “enlarge[] a child’s vocabulary in an instant,” which is why the FCC bars broadcast TV and radio from allowing such language during family audience hours. We emphasize:

So much more so when the child is instructed in a curriculum day in and day out, while parents are left to try to undo lessons explicitly or implicitly taught.

Our summation:

In short, the decision below disregarded what should be an obvious point: the parental right to direct the religious and moral upbringing of one’s children is burdened, and burdened heavily, if parents must surrender those children to daily, intentional inculcation of antagonistic values, without even notice or a right to opt out. That is not “mere exposure.” It is teaching children to embrace values at odds with those of their parents.

And this is not just an issue for parents who hold traditional values. Every parent should be concerned about the idea of government-run schools undercutting their parental efforts. As we state:

[T]he question could be whether the school defends or condemns Christopher Columbus and other explorers and colonists; embraces or warns against the Sexual Revolution; teaches why students should oppose or support abortion; promotes or denounces Marxism; or cultivates alarm or peace regarding future climate developments. Government-run schools – at least in the United States – do not have the right, at the expense of parents, to occupy pride of place in deciding what values children must daily be taught, leaving it to parents to supplement, correct, or undo, as best they can, any errors they perceive their children inevitably to have absorbed.

The Supreme Court is scheduled to hear Mahmoud v. Taylor on April 22 and issue its ruling by the end of June.