Jeremiah Chin: Silencing Children’s Rights (Repost from Verfassungsblog) – United States

The U.S. Supreme Court decided Mahmoud v. Taylor on June 27, 2025. In doing so, it dramatically expanded parental rights over students and education without concern for the rights of children or consideration of pedagogy and curriculum. While the current era of the Supreme Court under Chief Justice John Roberts has repeatedly blurred lines dividing religious groups and state power under the First Amendment, Mahmoud rewrites the First Amendment for children entirely. The Court concluded that the government burdens the religious exercise of parents by failing to provide mandatory notice and opt-out policies when school materials include Lesbian, Gay, Bisexual, or Transgender (LGBTQ+) topics. Instead of addressing the plurality of views around sexual orientation and gender, the Court indirectly, but unsubtly, installs a traditional values framework that imposes norms of heterosexuality, religious fundamentalism and parental micromanagement of curriculum. This simultaneously threatens the expression, learning, and community built in schools for everyone.

The stories of Mahmoud v. Taylor

Decided on June 27, 2025, Mahmoud v. Taylor represents a struggle between religious parents and secular public education over curriculum in Montgomery County Public Schools (MCPS) in Maryland. Maryland incorporated several suggested texts for instructors that would include LGBTQ+ characters to better reflect the diverse community of students and parents within the district. Several parents objected on religious grounds, requesting the school provide notice and offer an opt-out option when such materials are used in the classroom. At first, MCPS was willing to provide the option to parents but found the measures administratively unfeasible and potentially stigmatizing to students, concluding that no notice or opt-out was required because parents had access to book lists prior to every school year.

The different justices’ retellings of the case reveal their radically different framings of the facts. In the majority opinion of the Court, Justice Samuel Alito describes the origins of the conflict as rooting “in the years leading up to 2022”, when the MCPS “apparently ‘determined that the books used in its existing English and Language Arts curriculum were not representative of many students and families in Montgomery County’” because they did not include LGBTQ characters. According to Alito, this prompted the school district to include five storybooks for children between 5 and 11 years old. The pointed use of “apparently” and the lack of context make the MCPS decision appear abrupt and arbitrary rather than a good-faith effort by the school district to provide a more robust curriculum.

Justice Sotomayor’s dissent, in turn, reveals that the Court’s framing obfuscates a long effort by MCPS in reconciling the fact that “certain perspectives…were absent from its English language curriculum,” and only the latest in a broad effort to promote a “fully inclusive environment for all students’ by using instructional materials that reflect [the] diversity of the global community, including persons with disabilities, persons from diverse racial, ethnic, and cultural backgrounds, as well as persons of diverse gender identity, gender expression, or sexual orientation.” Justice Sotomayor’s telling of the facts focuses on the MCPS Board, subject matter experts, and teachers building a diverse and inclusive curriculum. Justice Alito’s framing in turn assumes the position of the plaintiffs, a religiously diverse coalition of parents whose sincerely held religious beliefs’ most apparent common thread is anti-LGBTQ bias.

Though Justice Alito is rhetorically deeply concerned with impressionable “young children, like those of [the plaintiff parents],” he spends little time talking about the rights, experiences, or issues faced by children in the classroom. Instead, he accuses the dissent of trying to “divert attention from…children subject to the instruction” by emphasizing the texts, characters, and importance of the curriculum. According to Justice Alito, the dissent takes on a “deliberately blinkered view” and is “air-brushing the record” by arguing that the inclusion of books with LGBTQ characters is “just about exposure and kindness.” Justice Alito’s framing of the issues for the majority views the books as “impos[ing] upon children a set of values and beliefs that are ‘hostile’ to their parents’ religious beliefs.” In this light, the mere inclusion and existence of these five books with LGBTQ characters and themes and instructional guidance for teachers presents an existential threat to religion. These books only make up a small percentage of the curriculum – with guidance for classroom discussion that affirms that Lesbian, Gay, Bisexual, Transgender, and other people exist and have rights to exist.

The hyperbolic disaster-framing by Justice Alito, therefore, concludes that because “the storybooks unmistakably convey a particular viewpoint about same-sex marriage and gender” and instructional materials “specifically encouraged teachers to reinforce this viewpoint” and discuss disagreements with students, the policy of inclusion, therefore, burdens the parents’ right to the free exercise of religion and is subject to strict scrutiny, which means that a government must demonstrate that its policy advances compelling government interests and is narrowly tailored to achieve those ends. The failure to permit an opt-out when including these LGBTQ storybooks thus unconstitutionally burdens the parents’ rights of control over their children. The Court disclaims that the Board’s proposed curriculum has any educational value. It simply states that it places an unconstitutional burden on the parent’s religious exercise if it is imposed without the chance for opt-outs. In doing so, it sidesteps any good-faith balancing of interests. Worse: It fails to recognize that including and discussing books from different perspectives in a school curriculum has value in an educational environment.

Faith, parents, and the first amendment

The Court’s broad reading of the parental rights to control the upbringing of their children paradoxically narrows the understanding of the First Amendment to be strictly a relationship between parents and the government. Fundamentally, the First Amendment to the United States Constitution is a restriction on the power of the state. It proclaims that Congress shall make no law “respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of people to peaceably assemble, and to petition the Government for a redress of grievances.” Later applied to State governments and municipalities, the amendment’s broad language reflects the importance the authors placed on resistance to state suppression of religious, expressive, and associational freedoms.

Theoretically, this freedom to believe, express, and associate should also apply broadly to a variety of perspectives. No single religion or type of speech is singled out, and the only subject of restriction is the state. That is, First Amendment rights should impose restrictions on the state, not compulsion for individuals to act, talk, believe, or associate in specific ways. But despite its expansive declaration of freedom that would prohibit governmental interference with expression or religion, the First Amendment has often faced limiting principles to facilitate the practical governance of a diverse, pluralistic society.

In Employment Division, Department of Human Resources of Oregon v. Smith (1990), the Court recognized that “neutral laws of general applicability” could be constitutionally imposed on religious conduct and beliefs. The decision prohibited members of the Native American Church from receiving unemployment benefits. The plaintiffs were Indigenous persons who practiced their faith by taking peyote as part of a traditional ceremony. Justice Scalia claimed that the policy in question, prohibiting persons taking drugs from receiving unemployment benefits, did not unconstitutionally burden the plaintiffs’ religious practice. The reason was that this practice was “unconnected” to other valid constitutional rights and to “any communicative activity, or parental right.” Neutral laws of general applicability are therefore presumed valid unless they compel expression or interfere with other constitutional rights, in which case they are subjected to closer scrutiny.

Even when neutrally worded and generally applicable, state laws that compel expression and conduct can be unconstitutional. In West Virginia State Board of Education v. Barnette (1943), for example, the Court struck down a state law requiring compulsory flag salutes and recitation of the Pledge of Allegiance – practices that violated the beliefs of a Jehovah’s Witness student whose faith prohibits pledging allegiance to symbols like the flag. State laws that compel school attendance, on the other hand, are generally constitutional. Exceptions to this are state laws that restrict parents’ rights to choose private religious schools over public schools (Pierce v. Society of Sisters, 1925) and laws compelling school attendance that directly contradict religious beliefs (Wisconsin v. Yoder, 1971).

Critically, none of these cases, which articulate the free exercise of religion and parental rights, give parents total control over their children. Both Barnette and Pierce emphasize the importance of public education in preparing children to participate in society and sustain democratic governance. The answer in these cases was not to isolate children but to ensure the curriculum was inclusive of their religious practices. In Barnette, for example, the Court did not bar schools from including the pledge in their curriculum – it simply held that students could not be compelled to recite it.

In Justice Alito’s account in Mahmoud, students are exposed to a curriculum and instructions acknowledging the existence and rights of LGBTQ individuals – an exposure he suggests amounts to a violation of religious tenets. Yet even on his own terms, the burden on parents lies in the mere exposure to viewpoints that may conflict with their beliefs, not in any form of compelled activity. No assignment requires students to affirm a particular viewpoint, and the schools do not evaluate students based on what they say, think, or believe. The stories are readily available and read to the class, accompanied by instructions for teachers on how to engage with students in a way that validates both the story and the student.

Viewpoint discrimination

The Court has often found that the answer to disfavored speech, or expression that might be contrary to the views of others, is still protected speech. As Justice Alito explained in Matal v. Tam: “giving offense is a viewpoint.” Freedom of speech and free exercise of religion under the constitution, therefore, must include even those ideas that some might find offensive, with limited exceptions for speech that imminently incites lawless activity (Brandenburg v. Ohio, 1969) or obscenity (though the Court struggles to find a solid definition of the concept). The requirement of neutral laws of general applicability guards against so-called content- or viewpoint-based regulations of speech.

Mahmoud v. Taylor launders viewpoint discrimination through parental rights, allowing the regulation of classroom content through parental opt-outs while completely ignoring the students as learners, participants, or even people with rights. In Tinker v. Des Moines Independent Community School District (1969), the Court built upon cases like Barnette and Pierce, highlighting the importance of children’s speech within schools and validating that students hold First Amendment rights in schools. It found the suspension of young persons for wearing black armbands to protest the Vietnam War unconstitutional. Justice Abe Fortas explained for the majority that “it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years.”

Justice Alito in Mahmoud extends this to parents. As he notes, the parent’s “right to free exercise, like other First Amendment rights, is not ‘shed . . . at the schoolhouse gate.’” This paraphrase of Tinker excludes the fact that students and teachers possess the same rights of free exercise, expression, and association in schools as well in not-so-subtle ways. A constitutionally mandated parental opt-out that the Court provides in Mahmoud defies the reasoning of West Virginia v. Barnette, which Justice Alito relies on as the foundation of his analysis of parental rights. In Barnette, Justice Robert Jackson explained, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” Yet Justice Alito’s decision in Mahmoud allows parents to compel teachers and school officials to ensure their prescribed orthodoxy, meaning students no longer may discuss, express, or associate with LGBTQ storybooks as part of the official curriculum.

For those who come after

The Court’s opinion in Mahmoud v. Taylor sacrifices student’s First Amendment rights in the name of parental control. This enables parents to compel the speech and beliefs of students rather than let students develop their own thoughts, views, and beliefs – free to conform or disagree with the beliefs of their parents and classmates. This type of compelled speech would otherwise be prohibited. Mahmoud allows parents to compel the state to engage in viewpoint discrimination – something neither the parents nor the state could achieve alone, whether as a matter of constitutional law or practical enforcement.

Mahmoud decides on a vision of the future that is very much rooted in the past, severely restricting students from engaging with views that they may or may not share. Elsewhere, I have discussed how the history and traditional uses of originalism by the current Supreme Court bind us to narrow historical reasoning rather than an expansive historical understanding of the future – proposing Constitutional Futurism as a remedy to the originalism that has overturned reproductive rights, gun control, and now even children’s right to inclusive education and expression in Mahmoud v. Taylor. Justice Alito’s majority opinion endorses robust parental control over students, teachers and schools, when those parents already have curriculum oversight through ordinary democratic processes. The Court fails to recognize students – and children generally – as persons with rights, thoughts, and opinions that also deserve consideration. Rather than relying on tradition and compulsion, instruction can provide students with a way of questioning that can interrogate or even affirm their beliefs. This failure to recognize the personhood of children misses the expansive potential of future generations, all in the name of history and tradition.

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